By Howard Fischer
Capitol Media Services
PHOENIX -- A judge has rejected efforts to void a measure approved by voters last year on immigration.
In a new ruling, Maricopa County Superior Court Judge Michael Valenzuela acknowledged that a key provision of Proposition 314 -- it allows police to arrest those who cross the border at other than a port of entry -- is written so it takes effect only if federal courts uphold a virtually identical law in Texas. That Texas statute, however, remains on hold while its legality is being considered by federal appellate courts.
"The legislature may not delegate its power to make laws,'' the judge wrote.
But Valenzuela ruled that linking enforcement of the power to arrest border crossers to what a federal judge will do with the Texas law is not an illegal delegation.
"The legislature may properly make the applicability of a law contingent on another circumstance,'' he wrote. And linking enforcement of Proposition 314 to what courts decide on the legality of Texas law, Valenzuela said, does not cede the legislature's power to actually create a law to another.
Living United for Change in Arizona, which filed suit earlier this year, had no better luck convincing the judge to void other parts of the law, regardless of whether it is contingent on what happens in Texas.
Most notable is that the law allowing police to arrest suspected border crossers says that can happen only if they have "probable cause.'' That includes actually witnessing someone entering the United States illegal or if they have a recording of the event.
There is, however, also a catch-all provision which allows police to make an arrest if they have "any other constitutionally sufficient indicia of probable cause.''
That, however, is not defined in the legislation. And challenger say that opens the door for the law -- if and when it takes effect -- to be enforced in a discriminatory way.
Valenzuela, however, sidestepped the question precisely because this part of the law is not yet in effect and, more to the point, may never be enforceable, depending on what happens in that Texas case.
"Plaintiffs face no injury -- and may never suffer injury,'' the judge said, saying the claim is not legally "ripe'' for a court to consider. He said the only way to decide the legality of the law "must be based on the facts as they exist and not what may occur in the future.''
LUCHA had no better luck trying to void other provisions in the ballot measure, including:
- Mandating that state and local agencies use a federal database to verify the immigration status of those seeking public benefits;
- Requiring state and local police to transport those being deported to the border through which they crossed;
- Spelling out that the state Department of Corrections, Rehabilitation and Reentry must accept those who are arrested or convicted of violating the law against border crossing if local agencies lack the jail space.
The most visible part of the measure, approved in November by a margin of 62.5 to 37.5, allows police to arrest those who enter Arizona from Mexico other than at a port of entry. It is modeled after SB 4, a similar law enacted in 2023 in Texas.
But enforcement of that Texas law remains on hold while a federal appellate court decides whether immigration is the sole province of the federal government. Arizona lawmakers, rather than picking their own legal fight, agreed to condition Prop 314 on Texas getting the final go-ahead, something that could require the issue to get all the way to the U.S. Supreme Court.
Republicans in the Arizona Legislature actually had approved a measure last year to authorize such arrests, only to have it vetoed by Democratic Gov. Katie Hobbs. So the GOP leadership decided to bypass the governor and send it -- with the contingency link to the fate of the Texas law -- directly to voters.
But before sending the final version to the ballot, however, lawmakers added other issues which LUCHA also challenged.
One requires state and local agencies to use the Systematic Alien Verification for Entitlements Program to determine the legal status of those seeking benefits.
Attorney Jim Barton who represents LUCHA and the Arizona Center for Empowerment, which also sued, said the problem with that is the Arizona Constitution says any voter-approved measure that carries a price tag also is required to come up with plan to fund it, not just right now but for what it will cost in the future.
And that, he said, specifically includes use of the SAVE program.
Only problem with that, Valenzuela argued, is that the web site for U.S. Citizenship and Immigration Services, which maintains the program, "shows that there is no cost for state, local, tribal and territorial government agencies to use SAVE.'' So no cost, the judge said, means no new mandatory spending.
That, however, still leaves the question of whether there are other costs, like for police having to drive offenders to the border to be deported and state prisons having to absorb any overflow of people charged with violating the law about crossing the border illegally.
A report by legislative budget staffers said there will be costs associated with arrests, prosecutions and incarceration of those who police arrest for crossing the border illegally. That includes an estimated $41 million in law enforcement costs and $16.6 million for incarceration in just the first six months, with that latter figure estimated to his $178 million by 2029.
But Valenzuela said these legal arguments suffer the same legal deficiency as the claim that the definition of "probable cause'' is illegal: They are speculative unless and until the border-crosser law, linked to the fate of the Texas statute, is enforceable here. And that, he said, runs into the same legal "ripeness'' problem.
"The court is faced with provisions of the act that are not currently enforceable and may never be so,'' the judge wrote.
LUCHA did not challenge another provision added to Prop. 314 on fentanyl sales.
Selling the drug already was a felony, punishable by a presumptive sentence of five years in prison. The new language in the ballot measure adds another five years if the seller knew the drug being sold was fentanyl and if it resulted in the death of another.
Barton said he and his clients are studying the ruling. But he said an appeal is likely.
"We think the judge got it wrong,'' Barton said.
But Senate President Warren Petersen, who had interceded in the case to defend the voter-approved law along with Attorney General Kris Mayes, praised the ruling as "upholding the will of voters who passed Prop. 314 to protect our communities from illegal crossings and fentanyl.''
The Gilbert Republican also said it's possible that the new law -- particularly the provision on state and local police arresting border crossers -- may never need to be enforced. It depends, he said, on who in in the White House.
He noted it was enacted before President Trump took office in January, saying he "truly delivered the most secure border in U.S. history.''
"If our nation ever sees a repeat of lawless from an administration, like we witnessed with Biden-Harris, Arizonans will be ready to uphold the rule of law.''
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