As U.S. Supreme Court tosses key provisions of Arizona's law, Utahns debate fate of HB497.
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Your move, Judge Clark Waddoups.
With the U.S. Supreme Court ruling on Arizona's enforcement-only immigration law Monday a splintered, divided affair Utah's version of that measure is back in the hands of Waddoups, the U.S. District Court judge who deferred ruling on Utah's HB497 earlier this year, choosing to wait for the nation's top court to weigh in on the Grand Canyon State's SB1070.
While both sides of the immigration debate claimed victory in Monday's decision, most everyone agreed on one point:
"At the end of the day, what this decision does," Utah Attorney General Mark Shurtleff said, "is to ensure more litigation."
That's because while there is some spillover from what the justices ruled on Arizona's SB1070 onto Utah's enforcement-only proposal, several components weren't addressed at all namely the parts of the Beehive State's law that American Civil Liberties Union lawyers believe require racial profiling to enforce and another element that makes it a felony to induce an illegal immigrant to cross state lines into Utah.
The Supreme Court threw out three provisions of the Arizona law that aren't a part of Utah's HB497. Those include making it a criminal offense for illegal immigrants to seek employment, failing to carry proper documents as proof of a right to be in the state and allowing police to arrest suspected illegal immigrants without warrants.
"We do believe the ruling is primarily a win for the state of Utah and our HB497," Shurtleff said. "There were a couple of provisions struck down in the Arizona law that are not in our law. I think our legislators were very wise to take a look a the problems [of SB1070]."
But Karen McCreary, executive director of the ACLU of Utah, said the ruling was a signal for Utah law enforcement to proceed cautiously in the wake of what the Supreme Court was silent on, namely racial profiling.
"The court gave a stoplight to the first three provisions and a blinking red light to the fourth, 'show-me-your-papers' provision," she said, "which I think should give local law enforcement pause."
The difference between Arizona's law and Utah's on the area of checking immigration status as a part of a criminal investigation a key provision upheld by the Supreme Court is where both sides split on how Waddoups might use the decision to uphold or overturn that section of HB497.
The Supreme Court upheld Arizona's law requiring police to check legal status upon any lawful stop. But Utah's measure says officers "shall request verification of the citizenship or the immigration status of the person, except as allowed if the person is arrested for an alleged offense that is a class A misdemeanor or a felony."
Shurtleff said he believes Monday's ruling covers Utah's law because it's not as broad in scope as the one passed by its southern neighbor.
"Starting today in Arizona, police officers are required in any encounter with an individual, if they have reasonable suspicion they are in the country illegally, to inquire," Shurtleff said. "In Utah ... officers will be making that inquiry only based on arrest, probable cause, a major felony or class A misdemeanor."
But Marina Lowe, legislative and policy counsel for the ACLU of Utah, argues HB497 doesn't clearly define an arrest as the point at which immigration status must be checked and that it is much more similar to SB1070.
In HB497, it says "any law enforcement officer who, acting in the enforcement of any state law or local ordinance, conducts any lawful stop, detention or arrest of a person" who can't provide identification "the officer shall request verification of the citizenship or the immigration status of the person."
Lowe said that puts HB497 in the same neighborhood as SB1070.
"The way the law is written, law enforcement can only act once there already is a lawful stop or detention in place," she said. "The way the Supreme Court read it is ... that law enforcement would have the ability to initiate contact with [U.S. Immigration and Customs Enforcement] to determine immigration status."
Roger Tsai, a Salt Lake City immigration attorney, said Waddoups would likely uphold the enforcement provision if he believes it was narrower than SB1070 to begin with.
However, he said, one interesting component of Monday's ruling is how it will play against the recent decision by President Barack Obama to allow students who were brought to the country illegally to attend college and get work permits.
He said those students known as Dream Act kids are placed in a position where they're getting mixed signals that say they can't be deported but remain unable to provide law enforcement proof they have a right to be in the country.
"It's going to be very gray," he said. "The ruling just isn't clear on how that will play out."
Until Waddoups rules when that might be is unknown depending on whether he asks each side to write arguments based on Monday's ruling and calls them in for a hearing or simply issues a written decision HB497 remains on hold through a temporary restraining order.
Former state Rep. Stephen Sandstrom, R-Orem, the original sponsor of HB497, said he read lower court decisions on SB1070 and tailored his version so it didn't have the parts tossed out by the Supreme Court. He said he also added anti-racial-profiling language in his bill that he believes will allow Waddoups to uphold the law.
"It was a big deal for me," Sandstrom said. "I didn't want a bill that was targeting Hispanics like the Arizona law does. I don't think SB1070 is good law."
Gov. Gary Herbert issued a statement late Monday and said the Supreme Court decision "has validated the core part of Utah's HB497."
Michael Clara, chairman of the Utah Republican Hispanic Assembly, said he thought the Supreme Court ruling would likely allow HB497 to stay on the books. He also said Latinos in Utah shouldn't be worried about HB497, though he could not say the same for Arizona.
"I don't think there should be a concern for Latinos in Utah," he said. "But I'm a citizen, and I wouldn't go to Arizona based on what is going on there and because of the color of my skin."