By Howard Fischer
Mail | X: @azcapmedia

PHOENIX — She didn’t like the measure when Republican lawmakers first proposed it and when it went on the ballot.

But Democratic Attorney General Kris Mayes has joined with Republican legislative leaders in a bid to quash a legal challenge to Proposition 314.

Assistant Attorney General Alexander Samuels, writing for his boss, is telling Maricopa County Superior Court Judge Peter Thompson there’s no legal basis for the lawsuit filed by two organizations who say they represent those who enter the country through the southern border.

The key provision in the measure approved by voters in November allows state and local police to arrest those who are not citizens who enter the country at other than a port of entry.

Living United for Change in Arizona and the Arizona Center for Empowerment are targeting a portion of the law that says police can arrest someone 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 that 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.
That goes to how challengers say the law is likely to be enforced in a discriminatory way.

Samuels, in the legal filings, does not address that claim. He told Thompson that he, too, need not consider it.

The reason, Samuels said, is the law, despite voter approval in November by a 62.5% to 37.5% margin, is not in effect.

That’s because the ballot measure was crafted with a “trigger.” It cannot take effect in Arizona until there is a final court ruling on SB 4, a Texas law on which it is modeled.

Arizona lawmakers, rather than picking their own legal fight, agreed to condition Proposition 314 on Texas getting the final go-ahead, something that has not occurred and something that could require the issue to get all the way to the U.S. Supreme Court.

What that means, Samuels is telling Thompson, is courts have no authority to rule on something that has not happened and may never happen.
Anyway, he said, it is a judge reviewing any given case — if and when the law takes effect — who will determine whether what the legislation has defined as “probable cause” is legal.

Samuels also urged Thompson to dismiss another claim by challengers that Proposition 314 is violates a constitutional provision that says any ballot measure that mandates new state spending also must include a new source of revenue — not existing funds — to pay for it. And those revenues must be “sufficient to cover the entire immediate and future costs of the proposal.”

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 putting a precise figure on that has been difficult, at least in part because there is no way to know how long any individual who is arrested will remain in the system

That is a critical number because the measure says anyone arrested for a first-time offense of crossing the border illegally can instead agree to be deported instead of risking conviction and time behind bars. There are no estimates of how many of the 1,500 who would be caught — a figure the governor’s office said came from the Department of Public Safety — would choose deportation versus incarceration.

“State funds will not be expended until the illegal entry scheme becomes enforceable (if that ever happens),” Samuels wrote.

Even then, he argued, there’s no hard evidence to back the contention that new state spending is inevitable.

Richie Taylor, press aide to Mayes, said the legal filing should not be seen as her endorsing the policies and provisions in Proposition 314. In fact, she opposed the 2024 measure saying it “could very well lead to racial profiling” and that it would cause “havoc and harm” to the Arizona economy as did SB 1070, a 2010 law designed to give police more power to stop and question people about their immigration status.

Taylor said, however, his boss, by virtue of her office, is legally obligated to defend state laws, whether approved by the Legislature or by voters themselves.

The only time Mayes has not, he said, is when she has concluded the law is unconstitutional. That has occurred when Mayes refused to mount a legal fight to defend abortion restrictions.

But Taylor said that, regardless of what is in Proposition 314, it is not inherently unconstitutional.

In a separate legal filing, attorney Thomas Basile who is representing House Speaker Steve Montenegro and Senate President Warren Petersen, is raising similar arguments about why the lawsuit challenging Proposition 314 should be dismissed.

He said the constitutional rule about requiring a new source of revenue might be triggered if Proposition 314 had “inevitable and quantifiable financial cost.” That, said Basile, might include a mandate that law enforcement agencies must hire a certain number of additional personnel.

But he said that can’t be extended to include what’s in the proposition and whatever costs will occur for things like transporting someone who has been arrested to the border, which is an option under the law.

“Any costs associated with physically transferring defendants who are the subject of removal orders are, at most, incidental to the ‘transport provision,’” Basile said.

He also said the ballot measure does not categorically demand any state or local official undertake any specific action. Instead, Basile said any expenses are conditioned on things that may or may not happen, including whether a judge agrees to drop the charges so a person can be deported.

Basile also told Thompson there’s nothing illegal or improper about Arizona lawmakers, who crafted Proposition 314, making its enforcement conditional on what happens in court with the Texas law. He said it simply acknowledges that federal courts always have final say.
No date has been set for a hearing.