Passed in 2010, Arizona’s SB 1070 has been controversial since the beginning. Recall that some portions of Arizona’s attempt to control immigration and immigrants in SB 1070 reached the United States Supreme Court in Arizona v. United States, with a majority holding major portions of the state law were preempted by the federal statutory immigration law and thus invalid under the Constitution’s Supremacy Clause, Article VI. The Court, however, upheld section 2(B), perhaps the most controversial aspect, often known as the “show me your papers” provision.
But preemption was not the only constitutional attack on SB1070; and these challenges are slowly but surely making their way to the Ninth Circuit. In March, a panel of the Ninth Circuit rendered its opinion in Valle Del Sol v. Whiting and upheld District Judge Susan Bolton’s preliminary injunction against enforcement of the day labor regulations of SB 1070 as violative of the First Amendment.
Today, the Ninth Circuit again rendered an opinion upholding Judge Bolton’s preliminary injunction; and although the case is again styled Valle Del Sol v. Whiting, the provisions of SB 1070 at issue, codified as Arizona Revised Statutes §13-2929, are the ones that attempted to “criminalize the harboring and transporting of unauthorized aliens” within Arizona.
Authored for the panel by Judge Richard Paez, and joined by John T. Noonan, with a concurring opinion and minimal dissent by Judge Carlos Bea, the opinion devoted about 10 of its 45 pages to the issue of standing, concluding that there was both individual and organizational standing.
On the merits, the panel found a due process violation:
Section 13-2929 states that “[i]t is unlawful for a personwho is in violation of a criminal offense” to knowingly orrecklessly transport, conceal, harbor, or shield anunauthorized alien. We conclude that the phrase “in violationof a criminal offense” is unintelligible and therefore thestatute is void for vagueness.
Interestingly, the footnote to this passage explains:
The plaintiffs did not originally raise this issue. But in order toaddress the plaintiffs’ preemption claim, we must first interpret thestatute’s provisions. In attempting to do so, we are confronted with thisincomprehensible element of § 13-2929. Thus, we resolve the vaguenessissue because it is both “antecedent to . . . and ultimately dispositive of”the appeal before us.
The court stated that “Arizona makes no claim that ‘in violation of a criminal offense’ makes any sense as written.” The panel rejected Arizona’s arguments to “save” the statute’s wording, stating that Arizona would have the court “replace a nonsensical statutory element with a different element” rather than engage in the more permissible approach of adopting a limiting construction.
The court then engaged with the preemption challenge, stating that even if it were to accept Arizona’s proposed interpretation of the statute, the statute is also preempted by federal law, under the doctrines of field preemption and conflict preemption. It was from this analysis that Judge Bea dissented, saying that because the case is “resolved on other grounds, namely vagueness, I believe the court should not reach the preemption issue.”
The mistake – – – carelessness? – – – in the drafting of this provision was a fatal flaw. While the legislature could redraft legislation, as the court notes, perhaps the political will in Arizona for bills such as SB1070 has diminished.