United States of America v. Arizona, State of, et al

Filing 53

LODGED Proposed Amicus Curiae Memorandum re: 52 MOTION for Leave to File Amicus Curiae Memorandum. Document to be filed by Clerk if Motion to Leave to File or Amend is granted. Filed by Arizona Municipal Risk Retention Pool. (Peters, Donald)

United States of America v. Arizona, State of, et al

Doc. 53

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Donald M. Peters 005929 Kristin Mackin 023985 LaSOTA & PETERS, PLC 722 East Osborn Road, Suite 100 Phoenix, AZ 85014 Telephone: [phone] Facsimile: [phone] [e-mail] Jeffrey T. Murray MOYES SELLERS & SIMS 1850 N. Central Avenue, Suite 1100 Phoenix, AZ 85004 Telephone: [phone] Facsimile: [phone] [e-mail] Attorneys for Arizona Municipal Risk Retention Pool

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA THE UNITED STATES OF AMERICA, Plaintiff, vs. THE STATE OF ARIZONA, et al., Defendants. No. 2:10-cv-01413-SRB AMICUS CURIAE MEMORANDUM OF ARIZONA MUNICIPAL RISK RETENTION POOL

The Arizona Municipal Risk Retention Pool ("the Insurance Pool") takes no position as to whether S.B. 1070 is constitutional or whether it is preempted by federal law. The cities and towns that comprise the Insurance Pool's membership do not have a common view of S.B. 1070. Some support the measure. Some oppose it.
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The Insurance Pool's members do not, however, want to divert any more taxpayer dollars than necessary to paying civil judgments. Because of that concern, the Insurance Pool submits that one sentence of the new law should be preliminarily enjoined pending a ruling on the merits. The sentence with which the Insurance Pool is concerned is found in the amended version of A.R.S. § 11-1051(B): "Any person who is arrested shall have the person's immigration status determined before the person is released." The Insurance Pool will refer to this provision as the mandatory-detention provision. Until this Court determines whether S.B. 1070 is valid, the mandatory-detention provision creates an insoluble dilemma for Arizona's cities and towns, including the seventy-four cities and towns that are members of the Insurance Pool. If the Insurance Pool's members abide by the mandatory-detention provision while this litigation is pending and this Court ultimately finds that the provision is invalid, the Insurance Pool's members may face large liabilities. Individuals who are detained pursuant to the provision may well bring civil actions if the provision is ultimately ruled invalid. S.B. 1070 requires the Insurance Pool's members to indemnify law enforcement officials for any liabilities incurred as a result of its provisions. See A.R.S. § 11-1051(K). If the Insurance Pool's members do not enforce the mandatory-detention provision while this litigation is pending, they will still face the prospect of significant liabilities. S.B. 1070 authorizes any legal resident of Arizona to sue cities, towns and their officials if the immigration laws are not enforced to the full

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extent allowed by law. See A.R.S. § 11-1051(H). The measure requires that the courts impose significant financial penalties on any city or town that is determined to be under-enforcing the law. Id. In short, Arizona's cities and towns are caught between Scylla and Charybdis. No matter what they do while the validity of the law is being adjudicated, they face the prospect of large liabilities for damages, civil penalties and attorneys' fees. The Insurance Pool's members will also incur significant costs for transporting and caring for any individuals who are detained. The Court can take judicial notice that many Arizona municipalities are already experiencing severe financial difficulties. The limited resources they have available are acutely needed to provide municipal services. Those resources should not be diverted to paying unnecessary and avoidable civil judgments if that prospect can be avoided. In this instance, it can be avoided. Arizona's cities and towns should not be required to enforce the mandatory-detention provision until this Court determines whether the provision is valid. It must be reiterated that the Insurance Pool takes no position on the validity of the mandatory-detention provision or any other provision of S.B. 1070. The Insurance Pool's concern is with not wasting taxpayer dollars while the validity of the law is being decided.

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July 19, 2010. LaSOTA & PETERS PLC

By:

/s/Donald M. Peters Donald M. Peters Kristin Mackin 722 East Osborn Road, Suite #100 Phoenix, Arizona 85014 Jeffrey T. Murray MOYES SELLERS & SIMS 1850 N. Central Avenue, Suite 1100 Phoenix, AZ 85004 Attorneys for Arizona Municipal Risk Retention Pool

Original of the foregoing electronically filed this 19th day of July, 2010 with: Clerk of the United States District Court For the District of Arizona 401 W. Washington Street Phoenix, AZ 85003 Copy of the foregoing hand-delivered this 19th day of July, 2010, to: The Honorable Susan R. Bolton United States District Court For the District of Arizona 401 W. Washington Street Phoenix, AZ 85003

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Copy of the foregoing mailed and emailed this 19th day of July, 2010 to: Joshua Wilkenfeld U.S. Department of Justice Civil Division ­ Federal Programs Branch 20 Massachusetts Avenue Washington, DC 20530 Varu Chilakamarri U.S. Department of Justice 20 Massachusetts Avenue NW Washington, DC 20001 John J. Bouma Joseph G. Adams Robert Arthur Henry Snell & Wilmer LLP 1 Arizona Center 400 E. Van Buren Phoenix, AZ 85004 Joseph Andrew Kanefield Office of Governor Janice K. Brewer 1700 W. Washington Street, 9th Floor Phoenix, AZ 85007 Anne Milgram Center for the Administration of Criminal Law 139 MacDougal Street, Suite 307 New York, NY 10012 Anthony S. Barkow Center for the Administration of Criminal Law 139 MacDougal Street, Suite 307 New York, NY 10012 Ellen London Jessica Alexandra Murzyn Friedman Kaplan Seiler & Adelman LLP 1633 Broadway, 46th Floor New York, NY 10019

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Ricardo Solano, Jr. Friedman Kaplan Seiler & Adelman 1 Gateway Ctr., 25th Floor Newark, NJ 07102 By: /s/ Toni Vanchieri

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