By Howard Fischer
Capitol Media Services
PHOENIX -- There's nothing legally wrong with asking voters to boost penalties for lethal fentanyl sales in the same ballot measure that seeks to let police arrest illegal border crossers, an attorney for state lawmakers is arguing to the Arizona Supreme Court.
In new court filings, attorney Beau Roysden does not dispute legal arguments by foes that provisions related to illegal immigration in Proposition 314 are not directly tied to whether someone who sells fentanyl that results in the death of another person should face a presumptive 10-year prison term.
But he told the justices that's not the legal test to see whether it violates constitutional language that limits ballot measures to a single subject. All that's required, he said, is that all the provisions a part of a larger plan to accomplish a specific purpose.
In this case, Roysden said, the Legislature made specific findings that everything in the initiative "that both problems are contributing to an unsecure border.'' And that, he said, is enough to send it to voters on an all-or-nothing basis.
The Republican lawmakers who crafted the ballot measure won the first round earlier this month when Maricopa County Superior Court Judge Scott Minder concluded that all five provisions of what started out in the Legislature as HCR 2060 were closely related enough to comply with what the Arizona Constitution allows.
These include:
- Allowing state and local police to arrest those who enter Arizona from Mexico at other than a port of entry;
- Permitting a judge to drop charges if the person agrees to self-deport;
- Making it illegal to apply for public benefits using false documents;
- Providing for criminal penalties to use false information or documents to evade normal verification processes for employment;
- Enacting enhanced sentences for anyone who knowingly sells "lethal fentanyl'' that causes the death of another person.
Andrew Gaona, representing several Latino rights groups, said the drug measure has no business being stuffed into a package dealing with whether people are in this country legally. He pointed out the penalties apply to anyone who sells fentanyl, even if they are U.S. citizens.
Jim Barton, attorney for Living United for Change in Arizona which filed its own challenge, went farther. He said there is no link between those caught crossing the border and the fact that some individuals who may already be here illegally might apply for a library card.
All that, both said, violates the single-subject rule and precludes the measure from being presented to voters.
They also argued that packaging it all into a single ballot measure constitutes illegal "log rolling.'' That's where proponents put multiple issues into a single measure in a take-it-or-leave it manner, forcing people who may like one provision to also have to accept other sections with which they disasgree.
Minder rejected the challenges, sending the case now to the Supreme Court which will make the final decision about whether Prop 314 will be on the November ballot. Roysden is urging the justices to leave that lower court ruling intact.
The key, Roysden said, is that lawmakers clearly identified the measure as "responses to harms related to an unsecure border.'' And he said even the provision on fenanyl, while it doesn't apply solely to those who are not here legally, fits within that definition because of the dangers of the drug and the impact of its transportation across the border, including enticing people to enter the country illegally.
More to the point, Roysden said challengers are interpreting what the constitution does and does not allow in a single ballot measure far too narrowly.
"The single subject rule does not require relatedness of provisions to each other beyond germaneness to one general subject,'' he wrote. Roysden said the provisions about entry, verification for benefits and the return of people who cross the border illegally "relate to each other, particularly given the act's express findings that both problems are contributing to an unsecure border.''
Put another way, he said, the focus is on the goal of the legislation -- securing the border -- not the individual provisions.
That, said Roysden, also includes the enhanced penalties for fentanyl sales.
He said the Legislature concluded that the cartels that smuggle people and drugs finance their operations by trafficking in fentanyl. Lawmakers also made findings that "illicit fentanyl is primarily responsible for an increasing number of overdose deaths in Arizona.''
The bottom line, Roysden said, is that it all fits into the goal of lawmakers to deal with "harms related to an unsecure border.''
The justices have not said when they will rule. But they do need to act within the next few weeks: Counties begin printing up ballots around the third week of August.
Legal issues aside, foes say what's in Prop 314 is a bad idea, arguing it would lead to racial profiling. Those arguments are irrelevant to whether the measure can go on the ballot and instead have to be fought out in the court of public opinion.
Even if the measure is approved, however, there is the chance for further litigation, including over the question of whether the state can assume any role in dealing with border security.
A federal appeals court has so far barred Texas from implementing its own SB 4, which became a model for the language allowing police to arrest border crossers, after being sued by the U.S. Department of Justice. GOP lawmakers here, recognizing that issue, included language in Prop 314 to say that provision could not take effect until there was a final court action on the Texas law.
Generally speaking, however, Arizona courts will not rule on the legality of specific provisions of a measure unless and until it is enacted. The only pre-election challenges allowed are ones like this one where the issue is whether it violates the single-subject rule.
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