State attorney to lawmakers: Avoid making insulting, discriminatory remarks

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A lawmaker’s colorful quotes about a piece of legislation can be a headache for an attorney later.

Dominic Draye, an assistant solicitor general whose job includes defending the state in court when someone challenges a state law, said plaintiffs often use the statements of lawmakers to demonstrate there was a nefarious purpose behind certain legislation.

On October 12, Draye gave a roomful of lawmakers gathered for a presentation on the Attorney General’s Federalism Unit a gentle reminder to watch what they say.

“It is an obstacle we have to overcome sometimes,” he said.

A classic example is a case in which a human rights group, Puente Arizona, alleges the Legislature acted in a discriminatory way in passing laws in 2007 and 2008 to target people who are living in the country illegally and accused of using fake or stolen identification to get jobs.

The state in May won an appeal at the 9th U.S. Circuit Court of Appeals, overturning a U.S. District Court ruling that prohibited police and prosecutors from enforcing the stolen identity law.

Draye was in U.S. District Court in Phoenix on October 13 arguing to have the case dismissed.

Puente Arizona’s attorney, Anne Lai, wrote in a plaintiff’s motion that the legislative record shows little about singling out employment for making an identity theft law.

“But it is replete with hostile statements towards undocumented immigrants as a group — painting them as undesirable, culturally inferior and unreasonably dangerous, and, therefore, deserving of punishment,” Lai wrote.

Lai singles out statements of the bill’s sponsor, former Senate President Russell Pearce.

“Further, Pearce’s comment that ‘(w)e have become the carjacking, home invasion, and identity theft capital in the world’ was a signature line that he repeated again and again when railing against undocumented immigrants,” Lai wrote.

She said Sen. John Kavanagh, R-Fountain Hills, who was in the House at the time, former Rep. Ray Barnes, R-Phoenix, former Sen. Bob Burns, R-Glendale, former Sen. Tom O’Halleran, R-Sedona, and former Sen. Barbara Leff, R-Phoenix, all shared Pearce’s understanding that the identity-theft provisions were immigration measures.

O’Halleran, who is now the Democratic nominee in the 1st Congressional District race, said he wanted to make the punishment as tough as possible to keep illegal immigrants in jail and ineligible to become citizens.

And during a debate on an amendment to lessen the punishment, Burns advocated against it because adopting the amendment “would be viewed as a weakening of our opposition on illegal immigration.”

Former Maricopa County Attorney Andrew Thomas, who is now disbarred, and Sheriff Joe Arpaio, used the identity theft laws as a way to raid businesses and search for illegal immigrants.

Draye said the identity theft law “is neutral on its face – it applies to everybody, unauthorized aliens and U.S. citizens alike.”

Draye said the ID theft law was a single provision in a larger piece of legislation, so a few comments by a small group of legislators who opposed an amendment on reducing the penalties in that provision can’t show the intent of the full body.

In a court document, Draye asked the court to take notice of a book entitled “Congress Is a ‘They,’ Not an ‘It:’ Legislative Intent as Oxymoron.”

Draye said the lawmakers’ comments don’t prove discriminatory intent was a substantial and motivating factor in adopting the law.