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Judge tosses challenge to Tucson 'sanctuary city' initiative

Measure will go to voters in November, unless ruling overturned on appeal

A judge ruled Friday against a challenge brought by Republicans, allowing an initiative to make Tucson a "sanctuary city" to go to voters in November. Supporters celebrated, while opponents are discussing an appeal of the decision.

The organizers behind the initiative, the People's Defense Initiative, submitted in July what they said were nearly twice the number necessary to put the measure, "Tucson Families Free & Together," on the ballot in the general election. A group of local Republicans sued to block the initiative, alleging that not enough valid signatures had been submitted, and that the city's initiative procedures violated state law and the Arizona Constitution.

The city defended its actions in court at a hearing Monday — a somewhat ironic position given that no city elected officials are backing the measure and City Attorney Mike Rankin has pointed out what he says are potential legal problems with it, if it were to pass.

Nonetheless, the city's defense of its processes was vigorous enough that Pima County Superior Court Judge Douglas Metcalf rejected all of the arguments brought by the challengers seeking to block the initiative. The judge didn't even reach the point of reviewing the arguments made by the group that brought the initiative.

"The court dismissed every single claim our opponents made. Every single one," said Zaira Livier, campaign manager for the group.

"It is ironic that our opponents have challenged Prop. 205 because they claim it violates state law, yet their first challenge to the initiative was tossed out of court for having no legal basis. They lost on the law," she said. "According to Judge Metcalf's ruling, our opponents misinterpreted and misapplies the Arizona Constitution, Arizona Revised Statutes, and the Tucson City Code. Yet we are supposed to take them seriously when they say Prop. 205 is illegal? The court did not throw out one single circulator's affidavit, or invalidate one single signature. This proves how organized we are and committed we are to making Tucson a sanctuary city."

Ruling: Judge OKs Tucson 'sanctuary city' initiative for ballot

In an 12-page ruling released Friday afternoon, the judge dismissed all of the claims made by the attorneys for Benny White, Ann Hollis and Mike Ebert, citing state law as allowing the city to develop its own procedures for reviewing initiatives — including specifying the number of signatures required to put a measure on the ballot.

"The Court has determined that Plaintiffs' complaint fails as a matter of law," the judge wrote.

The suit, filed by attorneys with the GOP-associated firm Munger, Chadwick & Denker, claimed that in addition to the city improperly setting the number of required signatures too low, there were procedural mistakes in reviewing the petitions, and that a majority of the petitions that were filed should be thrown out.

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Judge Metcalf rejected each of those contentions, and called off evidentiary hearings to review each of the challenged petition signatures that had been provisionally scheduled for next week. The ruling found that the city's laws and procedures were in compliance with state law, and that the initiative backers hadn't filed invalid petitions as the Republicans had asserted.

The decision "showed how specious those claims were," said Joel Feinman, the Pima County Public Defender and one of the leaders of the group that brought the initiative.

"We are discussing an appeal," White said simply, immediately after receiving the ruling. The attorneys handling the plaintiffs' suit, John Anderson and Zachary Cohen, declined to answer questions about their case after their presentation at Monday's hearing.

Text: Tucson 'sanctuary city' initiative

Rankin said Friday evening that "We'll continue to defend our code and the city clerk's application of the law" if there is an appeal.

"It is important to note that this case has nothing to do with the content, subject matter or merits of the initiative itself," Rankin said. "Instead, the lawsuit challenged the provisions of the Charter and code of the city, and the actions of the city clerk — based on the guidance from the City Attorney's Office — in applying the law as it relates to how local initiatives get on the ballot for the voters to consider."

"Judge Metcalf's ruling is very clear: the city clerk correctly applied the law," Rankin said.

The judge's "ruling in our favor clears the way for Tucson to finally choose to protect our family members, neighbors and co-workers from the dangerous, racist and inhumane policies of the Trump administration," Livier said in a news release Friday.

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Organizers turned in just more than 18,200 signatures, and a little more than 13,000 were found to be valid in a review by the City Clerk's Office and the Pima County Recorder's Office.

The city's procedures called for at least 9,241 to be valid for an initiative to make the ballot this year, calculated from 15 percent of the votes cast for mayoral candidates in the last election.

The GOP argument was that the correct figure should be at least 12,400, meaning that the measure should not be sent to voters. The Republicans also claimed that some 14,000 of the petitions sheets should not be accepted, and that about 40 percent of the signatures filed were "invalid" or "fraudulent."

The judge ruled that the interpretation offered by the challengers' lawsuit wasn't merited under state and city laws.

The Republican challengers based much of their case on a reading of a state law, 19-143, that reads in part:

The whole number of votes cast at the city or town election at which a mayor or councilman was chosen last preceding the submission of the application for an initiative petition is the basis for computing the number of qualified electors of the city or town required to sign the petition

They argued that because Tucson's law bases the required number of signatures on the number of votes cast for candidates for mayor at the last election in which one was chosen, that the city's law was illegal and unconstitutional.

What the plaintiffs left out of their original argument was noted in the city's legal response: the sentence in that state statute continues with another clause:

unless the city or town by charter or ordinance provides an alternative basis for computing the number of necessary signatures.

Judge Metcalf sided with the argument made by Assistant City Attorney Dennis McLaughlin, who told the court during Monday's hearing that the city's law not only comports with the state statute allowing Tucson to set up its own initiative system, but that the local procedures track almost directly with the basis that the state uses: "the whole number of votes cast for all candidates for governor."

The judge's ruling emphasized the second clause of that law, even providing a Webster's Dictionary definition of "unless" and explaining that "'unless' is a superordinating word that shows what follows prevails over what came before it" and citing a legal text by the late U.S. Supreme Court Justice Antonin Scalia (a noted conservative). The judge further cited Scalia's guide to interpreting statutes in finding against two other attempted claims by the Republican plaintiffs.

Tucson law would restrict law enforcement

Livier said as they turned in petitions in early July that during the signature drive, many people asked, "What does 'sanctuary' mean?" 

"And almost every person that asked this question signed because the proposed policies made perfect sense to them," Livier said.

The initiative, if passed by voters, will add a new section to the Tucson City Code, mainly placing restrictions on law enforcement activities.

For her, turning in the signatures was "bittersweet" because it came on the anniversary of her brother's funeral. Her brother, Said Serrato, who lived in Tucson before he was deported, was killed in Mexico in June 2018. Livier spent a month raising money to bring her brother's body back to Arizona.

Filings: Read all of the court documents in the case

"For me personally, I buried my brother exactly a year ago, so it is a bittersweet moment, but I am hopeful and our community is hopeful," Livier said. "That is what this is—it’s a campaign of hope." 

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She also said that people asked about federal funding, but that organizers found this was an easy question to answer. Federal officials have "a changing definition of sanctuary," she said, "and it relates to ICE detainees in the jails." 

But, "Tucson doesn’t have jurisdiction over the county jail therefore that policy is not in our initiative," she said, and noted that courts have rejected attempts to withhold funds based on city's sanctuary policy.

City officials point to potential legal pitfalls

City officials have balked at the initiative. In January, City Attorney Mike Rankin said that parts of the initiative are "in direct conflict" with Arizona's controversial SB1070.

City atty: 'Sanctuary city' initiative may violate SB1070

Rankin, in a memo prepared for the mayor and City Council, said that the measure would violate state law in some aspects, and limit local cooperation with federal law enforcement agencies, such as the FBI, Marshals Service or DEA, if they did not sign a special agreement with Tucson. He also said that parts of the proposed ordinance were legally unenforceable as written, and said that the measure could provide protection against immigration inquiries for people charged with domestic violence and sexual assault.

Organizers said they specifically wrote the measure to withstand challenges, that it was designed to make some criminal investigations more effective, and purposefully used the word "sanctuary" in the initiative.

No current members of the Tucson City Council have publicly supported the measure. None of the candidates running for mayor are backers of the initiative, and only a couple of the four Democratic primary candidates in Ward 1 on the West Side have said they are in favor of it.

In their own memo in response to Rankin's, the group behind the initiative argued that the provisions would not "hinder" law enforcement, and that the proposed ordinance would bring Tucson police policies "into line with long-standing federal guidelines." 

If the initiative is approved by city voters and becomes a city ordinance, the state attorney general could file a lawsuit in the Arizona Supreme Court. However, the authors of the initiative, including Billy Peard, former staff attorney with the American Civil Liberties Union of Arizona, have said that the law was "custom-crafted" to solve these issues, and other legal observers have said that the initiative is "very crafty." 

Josh Nuñez, a Phoenix attorney who specializes in immigration law, said he does believe there is a "cause for concern with the initiative.”

Morlock: MLK & impatience: Dubious sanctuary initiative seeks to create necessary 'tension'

"However, I think that the way that the initiative is written is very crafty. It’s written in a very smart manner that I think allows for the possibility that if the people of Tucson vote in favor of initiative, then it might stand a constitutional challenge," he said.

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Livier said that Tucson Families Free & Together was necessary because of "the political climate and the anti-immigrant and inhumane efforts of the trump administration." 

"This administration has really pulled the mask off and has shown the entire country what U.S. immigration policies truly are," she said. "Tucson understands that sanctuary is not controversial, but separating families and caging children is." 

In recent months, images and descriptions of the treatment of migrant children, as well as last year's disastrous and controversial policy of separating children from their parents in an attempt to stymie immigrants from coming to the U.S. and seeking asylum, has set the tone of a wider fight over immigration. 

And, Tucson she said, "has a history of standing on the right side of issues. The community at large stands with migrants. We understand that families should be kept together. We understand SB1070 is racist and immoral," Livier said.

'Sanctuary' controversial, especially under Trump

The notion of city-wide sanctuary policy for immigrants has been controversial for more than a decade, but under the Trump administration it has taken on new meaning, as the president and White House officials have repeatedly attacked so-called "sanctuary cities," complaining that such policies protect criminals. 

At one point, U.S. Immigration and Customs Enforcement published a list of sanctuary cities, though the list was so flawed that the agency withdrew it after a few months. Later, former Attorney General Jeff Sessions tried to use grant funding as leverage to force cities to withdraw so-called "sanctuary city" policies, but a federal judge in California issued a nationwide injunction in Feb. 19 limiting the maneuver. The Trump administration also lost in a similar case after the city of Philadelphia challenged the restriction, and a three-judge panel at the Third Circuit Court of Appeals agreed with a lower court judge, who said the attempt to impose conditions on the Edward Byrne Memorial Justice Assistance Grant was "arbitrary and capricious."

GOP vowed challenge

Pima County Republicans quickly said they were planning on challenging the signatures as the initiative petitions were filed.

In a Facebook post and email, Chairman David Eppihimer asked for volunteers to review the signatures. 

"If enough unqualified signatures are discovered, the Pima County Republican Party will challenge these petitions through every legal process available, so that this misguided effort never reaches the ballot," he wrote.  

"In this town, defeating a ballot measure titled Keep Families Together will be an uphill climb," Eppihimer said.

At the time, Livier called the GOP's attempt to review signatures "a laughable effort." 

"They couldn’t organize themselves to get to the kitchen of their own home," she said." Our team is skilled, experienced, and strong. If they bring a fight, they will do what they do best—fail miserably," Livier said.

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Paul Ingram/TucsonSentinel.com

Zaira Livier, during an event launching the petition drive in January.

Part of SB 1070 still in effect

Six years after SB 1070 was created, and four years after parts of it were tossed out by the U.S. Supreme Court, Arizona officials settled the remaining parts of the law in September 2016.

Under that legal agreement, officers cannot use race or ethnicity as the basis for reasonable suspicion that someone is unlawfully present in the United States, they cannot stop people solely to conduct immigration investigations, and they cannot hold people beyond the time necessary solely to investigate immigration status.

If police officers suspect that a person is in the country without authorization, they made contact immigration officials, including U.S. Customs and Immigration Enforcement and U.S. Border Patrol, "unless doing so would prolong the stop or detention."

In the event that officers believe a federal criminal immigration crime has taken place, they may wait "a reasonable time" for federal officials, but if ICE or CBP fails to respond, or does not arrive within a reasonable amount of time, officers must release the individual.

During "consensual contact," officers may ask, but "shall not demand, that an individual produce immigration documents," officials said.

The agreement also eliminated two provisions that were built into SB1070, including one that made it a state crime to knowingly transport or harbor someone in the country without authorization and made it illegal to "encourage or induce" someone to come to the state if they lack authorization.

TPD's general orders

Tucson's leaders have outlined a narrow policy that limits when Tucson Police Department officers can contact immigration authorities.

Following a series of court challenges that tossed out nearly all of SB 1070, a general order regarding immigration was developed that attempted to balance the "need for community trust and cooperation" against the remaining requirements of the state law. Former TPD Chief Roberto Villaseñor was widely critical of SB 1070, but repeatedly argued that as a law enforcement officer he was required to follow the statute.

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