Escobar v. Brewer et al

Filing 48

RESPONSE re 9 Answer to Amended Complaint, Crossclaim (Answer to Cross-Claim) by Defendant Jan Brewer. (Bouma, John)

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1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 John J. Bouma (#001358) Robert A. Henry (#015104) Joseph G. Adams (#018210) SNELL & WILMER L.L.P. One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 Phone: (602) 382-6000 Fax: (602) 382-6070 jbouma@swlaw.com Joseph A. Kanefield (#015838) Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Telephone: (602) 542-1586 Fax: (602) 542-7602 jkanefield@az.gov Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA Martin H. Escobar, Plaintiff, v. Jan Brewer, Governor of the State of Arizona, in her Official and Individual Capacity; the City of Tucson, a municipal corporation, Defendants. The City of Tucson, Cross-plaintiff, v. The State of Arizona, a body politic; and Jan Brewer, in her capacity as Governor of the State of Arizona, Cross-defendants. Case No. CV10-00249-TUC-DCB GOVERNOR BREWER'S ANSWER TO CROSS-CLAIM FILED BY THE CITY OF TUCSON 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 For her Answer to the Cross-Claim filed by the City of Tucson, defendant/crossdefendant Janice K. Brewer, in her capacity as Governor of the State of Arizona ("Governor Brewer"), hereby admits, denies, and alleges as follows: 1. 2. Governor Brewer admits the allegations in paragraph 23. Responding to the allegations in paragraph 24, Governor Brewer admits that the State of Arizona has the legal authority to adopt general laws and that the City of Tucson is required to enforce them. 3. 4. Governor Brewer admits the allegations in paragraph 25. Governor Brewer admits the allegations in paragraph 26 with respect to Governor Brewer only. 5. Responding to paragraph 27, Governor Brewer admits that Article VI, 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Section 2 of the United States Constitution provides, among other things, that "the Laws of the United States" shall be "the supreme Law of the Land." 6. Responding to paragraph 28, Governor Brewer admits that Article 2, Snell & Wilmer L.L.P. Section 3 of the Arizona Constitution provides that "The Constitution of the United States is the supreme law of the land." 7. Responding to the allegations in paragraph 29, Governor Brewer admits only that she has those obligations imposed by applicable law. 8. Responding to the allegations in paragraph 30, Governor Brewer admits that the United States has the authority to regulate immigration law as set forth in applicable federal case law. 9. 10. 11. 12. 13. 14. 15. Governor Brewer denies the allegations in paragraph 31. Governor Brewer denies the allegations in paragraph 32. Governor Brewer admits the allegations in paragraph 33. Governor Brewer admits the allegations in paragraph 34. Governor Brewer admits the allegations in paragraph 35. Governor Brewer denies the allegations in paragraph 36. Responding to the allegations in paragraph 37, Governor Brewer admits -2- 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 that a Section 287(g) agreement provides a way for federal immigration authority to be delegated to local police agencies. Governor Brewer affirmatively alleges that Section 287(g) provides, among other things, that "Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision of a State... to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States." Governor Brewer lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations in paragraph 37. 16. Responding to paragraph 38, Governor Brewer admits that A.R.S. 13- 3903 provides a procedure for the citation and release of persons arrested for misdemeanors. Governor Brewer lacks knowledge or information at this time sufficient to form a belief about the truth of the remaining allegations in paragraph 38. 17. 18. 19. 20. Governor Brewer admits the allegations in paragraph 39. Governor Brewer denies the allegations in paragraph 40. Governor Brewer denies the allegations in paragraph 41. Governor Brewer lacks knowledge or information at this time sufficient to 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. form a belief about the truth of the allegations in paragraph 42. 21. 22. 23. 24. 25. 26. Governor Brewer denies the allegations in paragraph 43. Governor Brewer denies the allegations in paragraph 44. Governor Brewer denies the allegations in paragraph 45. Governor Brewer denies the allegations in paragraph 46. Governor Brewer denies the allegations in paragraph 47. Governor Brewer lacks knowledge or information sufficient to form a belief about the truth of the allegations in paragraph 48. 27. Responding to the allegations in paragraph 49, Governor Brewer admits that the Act presumes that a person is not an alien and unlawfully present in the United States if the person produces a valid Arizona driver's license or any other valid United States federal, state, or local government issued identification if the entity requires proof -3- 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 of legal presence in the United States before issuance. Governor Brewer further admits that certain states, such as New Mexico, do not require proof of citizenship for issuance of a driver's license. Governor Brewer denies the remaining allegations in paragraph 49. 28. 29. 30. Governor Brewer denies the allegations in paragraph 50. Governor Brewer denies the allegations in paragraph 51. Governor Brewer lacks knowledge or information sufficient to form a belief about the truth of the allegations in paragraph 52. 31. Governor Brewer lacks knowledge or information sufficient to form a belief about the truth of the allegations in paragraph 53. 32. Governor Brewer lacks knowledge or information sufficient to form a belief about the truth of the allegations in paragraph 54. 33. Governor Brewer lacks knowledge or information sufficient to form a 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. belief about the truth of the allegations in paragraph 55. 34. Responding to the allegations in paragraph 56, Governor Brewer admits that the statute provides for civil actions by legal residents of this state to challenge officials or agencies that limit or restrict the enforcement of federal immigration law. Governor Brewer denies the remaining allegations in paragraph 56. 35. 36. 37. 38. 39. 40. 41. 42. Governor Brewer denies the allegations in paragraph 57. Governor Brewer denies the allegations in paragraph 58. Governor Brewer denies the allegations in paragraph 59. Governor Brewer denies the allegations in paragraph 60. Governor Brewer denies the allegations in paragraph 61. Governor Brewer denies the allegations in paragraph 62. Governor Brewer denies the allegations in paragraph 63. Governor Brewer denies each and every allegation not specifically admitted in this answer. AFFIRMATIVE DEFENSES 43. The Cross-Claim fails to a claim upon which relief can be granted. -4- 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 44. The Court lacks subject matter jurisdiction over the Cross-Claim asserted by the City of Tucson. 45. The Cross-Claim against the State of Arizona is prohibited by the Eleventh Amendment of the United States Constitution. 46. The City of Tucson lacks standing to pursue this Cross-Claim. Among other things, the City of Tucson has failed to allege facts demonstrating an injury in fact sufficient to grant it standing. 47. The City of Tucson's facial challenge to the constitutionality of SB 1070 is barred to the extent that it relies on hypothetical or speculative circumstances. 48. SB 1070 is not preempted by federal law or the United States Constitution. SB 1070 does not conflict with federal law, does not constitute an improper regulation of immigration, and Congress has not fully occupied the field. 49. 8 U.S.C. 1357(g) is not the sole means by which state or local law 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. enforcement can enforce federal immigration law. 50. Constitution. 51. SB 1070 does not violate the Commerce Clause of the United States SB 1070 does not violate the Fourth Amendment of the United States Constitution or discriminate against interstate commerce. 52. SB 1070 does not provide for an impermissible delegation of police powers to individuals. 53. The City of Tucson's budget policies and other policies do not provide a basis to invalidate or undermine SB 1070. WHEREFORE, having fully answered the Cross-Claim, Governor Brewer respectfully prays as follows: A. That the Cross-Claim be dismissed with prejudice in its entirety and that the City of Tucson take nothing thereby; B. That Governor Brewer be awarded and recover from the City of Tucson her reasonable costs and attorneys' fees incurred in the defense of this Cross-Claim to the -5- 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 extent allowed by law; and C. appropriate. Respectfully submitted this 21st day of June, 2010. SNELL & WILMER L.L.P. By s/John J. Bouma John J. Bouma Robert A. Henry Joseph G. Adams One Arizona Center 400 E. Van Buren Phoenix, AZ 85004-2202 and By s/Joseph A. Kanefield with permission Joseph A. Kanefield Office of Governor Janice K. Brewer 1700 W. Washington, 9th Floor Phoenix, AZ 85007 Attorneys for Defendant Janice K. Brewer, Governor of the State of Arizona For such other and further relief as the Court may deem just and 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Snell & Wilmer L.L.P. -6- 1 2 3 4 5 6 7 8 9 10 11 LAW OFFICES One Arizona Center, 400 E. Van Buren Phoenix, Arizona 85004-2202 (602) 382-6000 CERTIFICATE OF SERVICE I hereby certify that on June 21, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the CM/ECF registrants on record: s/John J. Bouma 11654569 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 -7- Snell & Wilmer L.L.P.

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