Search results for "arizona"

Obamacare Comes Full Circle in Arizona

One of the first governors to push back against the Medicaid expansion was Arizona Governor Jan Brewer. Brewer vigorously opposed Obamacare for nearly three years. However, after the Court upheld the law, and gave states the option to opt into the Medicaid expansion, Brewer pulled a 180, and supported joining Obamacare. In a bizarre tactic, Brewer decided to veto every bill until the state legislature voted to opt in. Ultimately, the Arizona legislature gave Brewer what she sought, and accepted the expansion.

This sudden reversal in Arizona is all the more unexpected in light of the fact that it was originally Brewer’s opposition to Obamacare that may have back the government into a corner where it could not win on the Medicaid issue in NFIB v. Sebelius. As I discuss in Unprecedented, it was a letter that Brewer sent to HHS in March 2010 asking to opt-out of part of the expansion which helped seed the government’s defeat.

Five days before the Affordable Care Act was signed into law Jan Brewer notified the Department of Health and Human Services that it intended to terminate its participation under the KidsCare program. This program, commonly known as CHIP, was one aspect of the Affordable Care Act’s expansion that provided additional funding to the states to provide health insurance for children.

One week after the Affordable Care Act became law, HHS responded with an ominous and pointed letter: “In order to retain the current level of existing funding, the state would need to comply with the new conditions under the ACA.” This observation was followed by a warning: “We want you to be aware that it appears that your request . . . would result in a loss of [all] Medicaid funding for Arizona.” If Arizona opted out of CHIP, it [...]

Continue Reading 0

Bill of Rights Monument in Arizona

There is a nice story in the New York Times today about a new Bill of Rights monument in Arizona. The best part is that this monument was apparently spearheaded by comedian and juggler Chris Bliss (fantastic juggling video here). How often do you find virtuosic juggling and the Bill of Rights in a single front-page story?

My only quibble is that I have to wonder whether Bliss and/or Arizona realize that the Bill of Rights binds the federal government and does not apply, of its own force, to states. See Barron v. Baltimore; The Objects of the Constitution. If you’re going to build a monument like this in the shadow of a state capitol, perhaps you should also include the Fourteenth Amendment, which has, of course, been held to restrain state governments from violating (most of) the same rights enshrined in the Bill of Rights. [...]

Continue Reading 0

Odd Arizona Court of Appeals Decision

Fortunately it’s unpublished, and the defendant likely deserved to lose on this claim, but I was still surprised by the court’s analysis. The case is State v. Merrick (Ariz. Ct. App. Oct. 30, 2012), and the relevant portion reads:

Defendant also contends that the court abused its discretion by granting the State’s motion in limine which precluded him from presenting a freedom of religion defense pursuant to A.R.S. § 41-1493.01 (West 2012).

Section 41-1493.01 is part of Title 41, article 9, entitled “free exercise of religion protected.” Section 41-1493.01 provides that one has a fundamental right to free exercise of religion, and applies while a person is employed by the state or other governmental entity.

Although the statutory free exercise of religion provision protects employees of state government, it is not a defense to criminal conduct. The legislature did not make the free exercise of religion a defense in Title 13 of the Arizona Revised Statutes. And, Defendant has not cited to any case where § 41-1493.01 has been presented as a defense in a criminal case, and we have not discovered one. Consequently, the trial court did not err by granting the State’s motion in limine.

But, as I read § 41-1493.01,

  1. It never mentions “employees of state government.”
  2. It provides that it can be raised as a “defense in a judicial proceeding,” and applies to “all state and local laws and ordinances and the implementation of those laws and ordinances, whether statutory or otherwise, and whether adopted before or after the effective date of this article,” with no exceptions for criminal laws.
  3. It has indeed been presented as a defense in a criminal case, and discussed extensively by the Arizona Supreme Court in such a case, State v. Hardesty (Ariz. 2009). The Arizona Supreme Court
Continue Reading 0

Most of Arizona Immigration Law Preempted

There’s no health care decision today, but the Court did decide Arizona v. United States. In a 5-3 decision, the Court found that federal law preempted most of the challenged provisions (specifically Sections 3, 5(C), and 6), and held another provision (Section 2(B)) would need to be construed by state courts before the Court could find it to be preempted as well. Justice Kennedy wrote for the Court, joined by the Chief Justice and Justices Ginsburg, Breyer, and Sotomayor. Justices Scalia, Thomas, and Alito concurred in part and dissented in part, each writing his own opinion. Scalia and Thomas would have found that none of the provisions were preempted. Justice Alito agreed with the majority on the preemption of one provision (Section 3), but disagreed on the others. Justice Kagan recused.

In other news, the Court summarily reversed the Montana Supreme Court in American Tradition Partnership, Inc. v. Bullock and held that mandatory life without parole is unconstitutional for juveniles in Miller v. Alabama. Both decisions were 5-4 with typical lineups and Justice Kennedy as the swing justice. Also interesting, the Miller case produced three dissents, one by the Chief Justice (joined by the other conservatives), one by Thomas (joined by Scalia) and one by Alito (joined by Scalia).

[Note: Post updated to correct characterization of the dissents in Arizona v. United States and holding in Miller v. Alabama.] [...]

Continue Reading 0

Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments

Arizona Categorically Bans Consideration of a Person’s Religiously Motivated Acts in Government Appointments

The just-enacted Ariz. Rev. Stat. § 41-1493.04 provides, in relevant part:

B. Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s exercise of religion.

C. This section is not a defense to and does not authorize any person to engage in sexual misconduct or any criminal conduct.

And “exercise of religion” is defined (in § 41-1493.01) very broadly:

“Exercise of religion” means the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

I take it that the new provision doesn’t literally mean that the government shall not deny a person an appointment or position based on the person’s ability to act in a particular way, since everybody is able to do so. It’s also possible that section C will be read not just as not authorizing criminal conduct (a meaning that’s relevant to section A, which I hope to blog about separately), but as also exempting criminal conduct from section B, though that is not section C’s literal meaning. The new law, coupled with the old, would then essentially mean:

Government shall not deny a person an appointment to public office or a position on a board, commission or committee based on the person’s … [non-criminal] [action or inaction that is] substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief.

Even read this way, though, the statute would be quite remarkably broad. Government officeholders and board and commission members are often selected based on their ideological [...]

Continue Reading 0

Hispanics on Arizona’s Anti-Illegal-Immigrant Statute

From a Quinnipiac poll, conducted April 11 to April 17:

47. As you may know, in 2010 the state of Arizona passed a law that requires police to verify the legal status of someone they have already stopped or arrested if they suspect that the person is in the country illegally. Do you approve or disapprove of Arizona’s immigration law?

The answers by race/ethnicity: Whites approve 66%-28%, blacks approve 55%-37%, and Hispanics disapprove 49%-47%. I thought the near even division among Hispanics was noteworthy, and indicative of just how broad anti-illegal-immigration sentiment is, including among the group whose citizen and legal resident members are most likely to suffer the side effects of such enforcement (e.g., extended detention if there’s some mistake, or possibly a stop that is motivated partly by a concern about the person’s possibly being an illegal immigrant).

On the other hand, that a May 7-12, 2010 AP-Univision Poll poll, which asked, “Do you think that local police forces should have the power to enforce immigration laws, or do you think the job of enforcing immigration laws should be reserved only for the federal government?,” reported that 16% of Hispanics said local police should have such power, and 81% said it should be reserved for the federal government. (There was similar hostility to the Arizona law in particular, but without details on what the Arizona law does.) I’m not sure how to reconcile these results with the Quinnipiac results, though obviously the text of the question must make something of a difference.

Incidentally, the 2010 AP-Univision poll concluded, among other things, 52% of Hispanics said the U.S. government “should do more to keep illegal immigrants from entering and staying in the U.S.” (42% disagreed), even though 74% of Hispanics said that on balance “illegal immigrants mostly make [...]

Continue Reading 0

Arizona Cyber-Harassment Bill Has Been Narrowed

The Arizona cyber-harassment bill, which I blogged about March 31, has now been narrowed in the Arizona Legislature. The original proposal — which had been passed in nearly identical forms by both houses of the Arizona Legislature — read,

It is unlawful for any person, with intent to terrify, intimidate, threaten, harass, annoy or offend, to use a telephone ANY ELECTRONIC OR DIGITAL DEVICE and use any obscene, lewd or profane language or suggest any lewd or lascivious act, or threaten to inflict physical harm to the person or property of any person.

This, as I argued, would have posed serious First Amendment problems. Telephones are basically one-to-one devices, so a phone call that uses profane language to offend is likely meant only to offend the one recipient, rather than to persuade or inform anyone; but computers used to post Facebook messages or send Twitter messages or post blog items can offend some listeners while persuading and informing others.

So, under the proposal, posting a comment to a newspaper article — or a blog — saying that the article or post author is “fucking out of line” would have been a crime: It’s said with intent to offend, it uses an electronic or digital device, and it uses what likely will be seen as profane language (see, e.g., City of Columbia Falls v. Bennett (Mont. 1991)). Likewise if a blog poster were to post the same in response to a commenter’s comment. Likewise if someone posts something in response to an e-mail on an e-mail-based discussion list, or in a chatroom, or wherever else. (Note that if “profane” is read to mean not vulgarly insulting, but instead religiously offensive, see City of Bellevue v. Lorang (Wash. 2000), then the statute would have been unconstitutional as well.)

The [...]

Continue Reading 0

“En Banc 9th Circuit Decides Very Important Voter ID and Voter Registration Case from Arizona”

Prof. Rick Hasen (Election Law Blog) reports on today’s en banc decision in Gonzalez v. Arizona. An excerpt from the opinion (paragraph break added):

Proposition 200 requires prospective voters in Arizona to provide proof of U.S. citizenship in order to register to vote, see Ariz. Rev. Stat. § 16-166(F) (the “registration provision”), and requires registered voters to show identification to cast a ballot at the polls, see Ariz. Rev. Stat. § 16-579(A) (the “polling place provision”). This appeal raises the questions whether Proposition 200 violates § 2 of the Voting Rights Act of 1965 (VRA), 42 U.S.C. § 1973, is unconstitutional under the Fourteenth or Twenty-fourth Amendments to the Constitution, or is void as inconsistent with the National Voter Registration Act of 1993 (NVRA), 42 U.S.C. §§ 1973gg et seq.

We uphold Proposition 200’s requirement that voters show identification at the polling place, but conclude that the NVRA supersedes Proposition 200’s registration provision as that provision is applied to applicants using the National Mail Voter Registration Form (the “Federal Form”) to register to vote in federal elections.

Prof. Hasen’s post discusses the implications of the ruling. [...]

Continue Reading 0

Revisions Planned for Arizona Ban on “Obscene, Lewd or Profane Language” Used Online “With Intent to … Offend”

As I noted last week, both houses of the Arizona legislature passed a bill that would say,

It is unlawful for any person, with intent to[, among other things,] harass, annoy or offend, to use any electronic or digital device and use any obscene, lewd or profane language ….

Many people criticized the bill, as did I, but just a few days ago, a co-sponsor of the bill (UPDATE: Vic Williams) was having none of it, writing,

As the co-sponsor of HB2549 I can see the conspiracy have their tin-foil hats on tonight.

HB2549 is being chased down by the “black-helicopter” crowd. Their claims of internet restriction are unfounded and way off base!!

You can read the bill and full details @

Yet the tin foil apparently worked: Another co-sponsor has now announced that the bill will be revised, before being sent to the Governor. According to CNN,

[Arizona Rep. Ted] Vogt said Wednesday that the bill would be amended to say those harassing communications must be directed at a specific person and must be “unwanted or unsolicited.”…

The bill will not apply to online comment sections or semi-public forums such as Facebook walls, Vogt said.

“With Facebook, you’ve got control over who your friends are,” he said. “So if somebody is threatening you and you never de-friend them then you’re not controlling it. You’re inviting people to comment freely on your Facebook page. You can de-friend them and you can end the problem there.”

Comments sections are the same, he said, since websites don’t have to invite people to comment and can take down those sections if they are worried about threats.

I haven’t seen any specific proposed text (none is posted yet on the Legislature’s site), so I can’t speak to how good the [...]

Continue Reading 0

FCC Standards Come to Arizona Classrooms

Here’s a bill currently being considered by the Arizona Legislature:

A. If a person who provides classroom instruction in a public school engages in speech or conduct that would violate the standards adopted by the federal communications commission concerning obscenity, indecency and profanity if that speech or conduct were broadcast on television or radio:

1. For the first occurrence, the school shall suspend the person, at a minimum, for one week of employment, and the person shall not receive any compensation for the duration of the suspension….

2. For the second occurrence, the school shall suspend the person, at a minimum, for two weeks of employment, and the person shall not receive any compensation for the duration of the suspension….

3. For the third occurrence, the school shall terminate the employment of the person….

B. For the purposes of this section, “public school” means a public preschool program, a public elementary school, a public junior high school, a public middle school, a public high school, a public vocational education program, a public community college or a public university in this state.

What a silly bill. First, what’s the point of this sort of micromanagement by the legislature? I would guess that in most schools, teachers’ vulgarities will get them disciplined by administrators even without a state statute. Moreover, I would assume that such discipline can be more finely calibrated than the statute suggests — is it really obvious that a high school teacher who swears in the classroom three times in his career (perhaps given some extenuating provocation) must be fired?

Second, the FCC standards are notoriously vague, as this Second Circuit decision (now being reviewed by the Supreme Court) laid out. The standards have shifted dramatically over time, and by subject matter. I assume that even under the [...]

Continue Reading 73

Arizona Governor Vetoes Bill That Provides Absolute Religious Exemption from Occupational Licensing and Disciplinary Regimes

This is the bill I blogged about last week; Monday, Gov. Brewer vetoed the bill. The Verde Independent reports that the governor warned of a risk that the protection might be “abuse[d],” and though she offered no specific details,

[The Governor’s] office made public a letter she got from the head of the Peace Officers Standards and Training Board pointing up one potential problem.

“Polygamy is prohibited by the Arizona constitution but it is not criminal conduct in Arizona,” wrote Lyle Mann, executive director of the organization …. He said three police officers have had their certification revoked because they practice polygamy.

[Mann] said AzPOST revoked certification of two other officers in the polygamous community of Colorado City. He said the pair had corresponded with Warren Jeffs, leader of the Fundamentalist Church of Latter-Day Saints, while Jeffs was a fugitive, but refused to provide information that might have helped locate him.

“They claimed that their protection of the fugitive was a religious practice,” Mann wrote to the governor.

“Under this law, it could be argued that following the direction of the church, rather than the constitution and code of ethics, is a right and the state may not intervene to protect its citizens from what appeared to be a church-controlled police force,” Mann said.

Gov. Brewer is apparently open to signing a narrower bill. If anyone can point me to the full text of the governor’s veto message, or of the Peace Officers Standards and Training Board letter, I’d be much obliged. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.

UPDATE: Thanks to commenter Robert for passing along a pointer to the veto letter. [...]

Continue Reading 32

Private prison lobbying and Arizona’s SB 1070

I just read this roughly two-week-old NPR story about private prison lobbying for the Arizona immigration law. The idea is this: “NPR spent the past several months analyzing hundreds of pages of campaign finance reports, lobbying documents and corporate records. What they show is a quiet, behind-the-scenes effort to help draft and pass Arizona Senate Bill 1070 by an industry that stands to benefit from it: the private prison industry.”

I take an interest in this, since my 2008 Stanford Law Review article, Privatization and the Law and Economics of Political Advocacy, took a look at the argument that private prison firms will lobby in favor of measures that increase incarceration. I argued there that there was no clear theoretical reason why private prison firms would do this (essentially, they would, under plausible assumptions, prefer to free-ride off of the advocacy expenditures of the larger public-sector actors interested in incarceration, for instance the prison guards’ unions), and very little empirical evidence that they’ve done it. So if this NPR article is right, then this is potentially an important piece of empirical evidence going the other way.

Trouble is, the NPR story is very short and low on details. So if anyone knows more, I’d be happy to know.

First, the story explains how the Arizona legislator who thought up the idea ran it through the American Legislative Exchange Council (ALEC), a conservative organization that writes model legislation. Various corporations, including private prison firms, are members of ALEC. Private prison firms are also members of ALEC’s Criminal Justice Task Force, which worked on this legislation. But this is ambiguous evidence of private prison involvement in pro-incarceration issues, since the Criminal Justice Task Force also deals with prison privatization, where we’d fully expect private prison companies to be involved. So [...]

Continue Reading 51

Ninth Circuit Lets Foreign Governments File Amicus Briefs in Challenge to Arizona’s Immigration Laws

Politico reports on this, and on the Arizona Gov. Jan Brewer’s reaction:

Republican Gov. Jan Brewer on Tuesday asked a federal court to disallow foreign governments from joining the U.S. Department of Justice lawsuit to overturn the law.

The move comes in response to a 9th Circuit Court of Appeals ruling issued Monday, allowing nearly a dozen Latin American countries — Mexico, Argentina, Bolivia, Brazil, Costa Rica, Ecuador, El Salvador, Nicaragua, Paraguay, Peru and Chile — to submit friend-of-the-court briefs in Justice’s challenge to SB 1070, which Brewer signed into law in April and is considered one of the nation’s toughest immigration-enforcement measures.

“As do many citizens, I find it incredibly offensive that these foreign governments are using our court system to meddle in a domestic legal dispute and to oppose the rule of law,” [Gov. Brewer said].

“What’s even more offensive is that this effort has been supported by the U.S. Department of Justice. American sovereignty begins in the U.S. Constitution and at the border,” she added. “I am confident the 9th Circuit will do the right thing and recognize foreign interference in U.S. legal proceedings and allow the State of Arizona to respond to their brief.”

My reaction is: So what? I have nothing against “American sovereignty,” and tend to be skeptical of proposals that would dilute it. But there’s nothing wrong, I think, with branches of the American sovereign government listening to the views of foreign governments. There’s nothing wrong with foreign governments being allowed to submit statements to Congressional hearings, or submit petitions to the President, or to submit amicus briefs to U.S. courts.

Moreover, consider the arguments made by the Mexico government’s brief: [...]

Continue Reading 84