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Judge dismisses lawsuit by sanctuary city backers as a 'practical matter'

A judge dismissed a lawsuit filed by supporters of the Tucson's sanctuary initiative during a hearing Monday, arguing he could not rule "as a practical matter or a matter of law" before next Tuesday's election.

After a 20-minute hearing and a short recess, Superior Court Judge Brendan J. Griffin returned to the courtroom and dismissed the lawsuit, launched by backers of Prop. 205  — the Tucson Families Free & Together initiative — which would alter the city's ordinances to limit cooperation with federal immigration and law enforcement authorities and make Tucson a "sanctuary city." 

On October 9, backers of the initiative filed a lawsuit, arguing that city officials were illegally “electioneering” to urge “no” votes on the measure. Friday, city officials filed a motion to dismiss the lawsuit, saying that the suit was "transparently contrived and staged" move to "mislead" voters. As part of their argument, the city's lawyers asked for sanctions against the initiative's backers, the People's Defense Initiative, to cover the city's attorney's fees. 

Griffin that he couldn't rule on a preliminary injunction because of procedural complaints, and that the elements had not been satisfied, and that he didn't think that there was a "likelihood of success" nor that potential harms "could be prevented," through his issuing a ruling before the election. 

"I'm disappointed," said Zaira Livier, the co-founder of PDI. "I wasn't expecting to get a dismissal today. I was under the impression that our complaint showed and was very detailed in showing where they were breaking the law." 

"While we supplied them with their request, it looks like our team because of money and time, just didn't have the ability to do all of the other stuff, and get this evidence, which we thought was very detailed in our complaint," Livier said. 

"For them to rely on newsletters and memos that happened months after the fact is just disingenuous, and the court picked up on that immediately," said City Councilman Steve Kozachik. "It was all about them trying to get some free publicity, free PR, for the election. The question now is, does the court come down with a hammer on them for trying to manipulate the legal system. And, I suspect that he wants the parties to get together and split the baby, and agree to let the attorney's fees go away." 

When asked about the cost of attorney's fees, Kozachik demurred on the cost, saying "I don't know, but the thing should have cost us zero dollars, it was without merit." he said. "And, they knew that." 

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Griffin gave PDI's attorney until Friday to appeal the dismissal, putting any potential judgements against the city even closer to voting day.  

City Attorney Mike Rankin said he didn't know how much the city had spent, but that "we've been cranking a lot of hours on this," and cited the transcript that was produced from Livier's recording of a meeting with him in January. 

City officials claimed suit by sanctuary organizers was 'staged to mislead' voters

In a sharply written motion last week, the city of Tucson argued that a lawsuit filed by backers of the Prop. 205 sanctuary city initiative is a "transparently contrived and staged" move to "mislead" voters, and that a "secret recording" shows the backers agree with critiques made by city officials.

They also argued that deposition testimony, as well as a recording of a meeting between City Attorney Mike Rankin and a legal advisor for the Tucson Police Department and two members of the People's Defense Initiative — co-founder Zaira Livier and attorney Billy Peard — showed that allegations made by the group are "knowingly false or otherwise misleading." 

In response, a lawyer for PDI argued that the lawsuit was "triggered by the latest in a chain of unbroken acts" by city officials. 

In his 18-page motion, attorney Ali Farhang argued that the backers of Prop. 205 filed their complaint against city leaders "the very day before ballots were to be distributed to voters" in the city. Farhang also argued that two memos issued by the city, including a January analysis by City Attorney Mike Rankin, which argued that the citizen-led initiative could violate Arizona's SB1070, and an Oct. 8 memo written by City Manager Mike Ortega, are "truthful, objective, and impartial." 

On Oct. 9,  backers of Prop. 205 filed a lawsuit, claiming that Tucson officials are illegally "electioneering" to urge city voters to reject the bill, which would make Tucson a "sanctuary" for immigrants by adopting an ordinance limiting local cooperation with federal immigration authorities. 

Under Arizona law, it's illegal for government officials to use public resources to attempt to effect the outcome of an election. 

Officials have said they are just providing even-handed information about the potential impacts if the initiative is passed, without specifically urging any votes. This includes memos and  statements that have argued that the measure may cost the city a huge chunk of its budget — potentially millions in state-shared revenue and federal grants, and block Tucson police from working with federal law enforcement investigating non-immigration crimes. Backers have said that the officials are exaggerating the potential problems, and using public resources to attempt to persuade voters.

Along with Rankin and Ortega, the lawsuit named Tucson Police Chief Chris Magnus, and City Councilman Steve Kozachik. 

Rankin also said that Livier made a "secret recording" during that "good faith" meeting during which Rankin spoke about his concerns about the potential consequences of Prop. 205 and the "safety and welfare of Tucson residents." 

"Plaintiffs are just unhappy because the Memoranda do not fall in line with Plaintiffs’ own, admittedly biased support for Proposition 205," Farhang wrote. 

"The biggest takeaway is that other side is stuck on the detail of Rankin’s memorandum, and they seem to be trying to prove that it's factually accurate and legally defensible, but in our view that missing the point of the lawsuit," Peard said last week. "It's not about the legal factors or the veracity, but it's about the campaign that city officials have engaged in, and Rankin's tongue-in-cheek comments that were made," he said. 

"Prop. 205 is a historic people-powered campaign," Livier said last week. "We are doing something which has never been done before. We are merely proposing a choice to Tucson voters." 

"The city’s officials do not have the right to impede, using our own tax dollars, on our constitutionally protected right to direct democracy. Their actions of the last 10 months are not only illegal but they are deeply immoral," she said.

"This is why we filed suit," Livier said. 

In a Friday email to Tucson's mayor and City Council, Rankin wrote that the city filed their motion to the lawsuit just under deadline because "as it turned out, we used every minute of that time to complete" the motion because city officials also transcribed the recording of the January meeting, resulting in a 134-page transcript. 

"On Monday, we learned that Livier had secretly recorded the 2-hour meeting," Rankin wrote in his email. "We received that recording Monday evening, and had to transcribe it in order to use it in support of the Motion." 

"The recording was critical, in that it shows that I described to the PDI representatives, in great detail, the impacts and potential consequences of the language of the Proposition, even before I issued my Memorandum to the Mayor and Council on January 16th," he wrote. 

Livier said that she recorded the conversation "for the sake of note-taking" because she is not an attorney and this was "great opportunity to discuss the bill in detail with the city attorney." 

"I wanted to be able to capture exactly what their concerns and positions were as we were just beginning our campaign," she said last week. "What’s important to note here is that the recording was only made public because the defense asked for it." 

"Otherwise, it was a forgotten item on our end," she said. "Only one other person on my team listened to it, it was not distributed, nor was it ever spoken about publicly. It was completely private and never used for any political maneuvering," Livier said.  

Lane Mandel, a city spokeswoman, said last week that the city attorney did not know about the recording, but rather asked if one existed because, "he's been doing this a long time." 

"The fact that they knew it existed is of great concern to me," Livier said. "And the fact that they are publicly calling me unethical because I used a recording for the sake of note keeping (a recording which, again, was never distributed or made public) only serves to deflect from their own unethical and clearly illegal behavior." 

The memos issued by the city "are objectively neutral and provide a legally and factual[ly] accurate summary of Proposition 205's direct  effects and the possibility of its indirect effects," Farhang wrote. "Plaintiffs admit that January 2016 Memo does not expressly request voters take any particular position on Proposition 205," he wrote. 

And, Farhang argued that the recording shows that the initiative's backers "admit that most of its analysis is factually and legally correct," he wrote. "They only dispute the substantive analysis" on three sections, he said. 

"Moreover, Livier explicitly admitted that Mr. Rankin’s opinions were correct for many portions of Proposition 205," he wrote

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This includes how police officers could "form reasonable suspicion for a stop or other detention" as well as "whether it is practicable to investigate a detainee’s immigration status during a traffic stop." Rankin also criticized how the change in the city's ordinances would apply to those accused of sex crimes and domestic violence, and how the city would work with federal officials in the future. 

Farhang listed the kinds of factors that TPD officers could not use to consider for reasonable suspicion, and then wrote during her deposition Livier agreed that under Prop. 205, "a minivan on a known alien smuggling corridor and containing 12 passengers crammed inside, all lacking identification, none of those factors would amount to reasonable suspicion, correct? They would not be able to be considered?"

"Right," Livier responded. 

There's also the question of how Proposition 205, if approved by voters, would affect millions in state-shared revenues. In recent weeks, state legislators have already said they're preparing legislation to challenge the city. And, while the Trump administration has so far lost in court when it has attempted to punish so-called "sanctuary cities" by withholding federal grants, there's still concern that some grants that help fund Tucson police could be withheld in the future. 

Friday evening, Paul Gattone, an attorney representing PDI, filed his own motion, writing that the most serious part of their complaint, or gravamen, is not that Rankin wrote the memo, but rather that the memo was part of an effort to change voter's minds. 

"While Plaintiffs certainly disagree with many of Mr. Rankin's legal conclusions, such legal conclusions are not what make the memo and the other City efforts" a violation of Arizona law. "Rather, both the January 2019 legal memorandum and subsequent efforts by Defendants evince a clear intent to influence the outcome of an election," Gattone wrote. 

And, he said that PDI would explain their cause during hearing Monday. 

Gattone also challenged an argument from the defendants that there was a deliberate delay in filing the lawsuit before ballots were mailed. 

While Farhang argued that PDI had waited until Oct. 9, Gattone argued that the lawsuit was "triggered by the latest in a chain of unbroken acts on the part of the Defendants: the publication of an October 8th Q&A document." 

That was the document released by Ortega, the city's manager. 

"Contrary to Defendants’ characterization, Plaintiffs filed this lawsuit the next day and served it within 48 hours of discovering the violation. It is true that Plaintiffs allege a long pattern of unlawful behavior, but the sine qua non of Plaintiffs’ lawsuit was Defendants'  issuance of the October 8 Memorandum. That memorandum – issued three days before voters began  receiving ballots – was timed to reach and influence voters at the precise moment that voters were forming their final opinions," Gattone wrote. 

"In short, it was Defendants’ timing, rather than Plaintiffs’ timing, that determined when this lawsuit was filed," he said.

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Judge hints at decision during hearing

During Monday's hearing, as the city's attorney, Ali Farhang, made his arguments, Griffin interrupted him, and turned to PDI's lawyer, Paul Gattone, to complain that he didn't know what the parties wanted.

"You haven't given me a reason" to rule on a temporary restraining order or a preliminary injunction, he said. After, a few minutes of back-and-forth discussion, Griffin retuned to Farhang, who argued that the court's decision hinges on a "poignant" complaint against the city, and that the lawsuit was frivolous and based around a public relations campaign.

Farhang attacked the reasoning for the lawsuit, arguing that if Griffin found in favor of PDI it would be "tantamount to saying that no city official can comment" on voter initiatives.

Farhang told the court that nearly 60,000 votes had already been made, and that there was "no procedure to claw them back."

"This was never meant to get a ruling," Farhang argued, "but to get the best PR."

He argued that the lawsuit filed just after the city published an Oct. 8 memo had been "in the can," and because of that, Griffin should rule on sanctions in favor of the city.

Farhan asked for attorneys fees as well, arguing that "all we're asking for is consequences mandated by statute."

Gattone replied that he "took great offense" to the assertion that the lawsuit was filed as a "media stunt.

"There are facts that are in dispute here," Gattone said. "This was done because of the actions of the defendants in this case," Gattone said, noting that it wasn't just the Jan. 16 memo issued by the city, but also an Oct. 8 "Q&A" that set off the lawsuit.

"What is materially different," between the two memos, asked Griffin. "Is there anything different from the January memo from the October memo?"

The October memo is "just one more instance of them violating the law," Gattone replied.

"Is the substance any different?" Griffin pressed.

"I don't know that the substance is any different," Gattone said, but the Oct. 8 memo was "more of an attempt to influence" voters because it was "done within days of the the ballots going out. We believe that timing was purposeful."

The lawsuit "was not a publicity stunt, it was not an effort to gain an unfair advantage, it was not harassment, or an effort to intimidate," Gattone said, making the granting of fees reasonable. "There's nothing frivolous about it."

"How do I rule on summary judgement, when there's no evidence, especially from your side?" Griffin complained. He said that a summary judgement was a "meaty" thought process, and it "seems the first thing" would be an injunction.

"The ruling on summary judgment would have to be against you," Griffin said during the hearing.

City seeks attorney fees

Billy Peard, one of the authors of Tucson Families Free & Together, said that he thought it was "common" for defendants to seek attorney's fees as part of a response to a lawsuit, and that often the word "frivolous" was used to make those arguments.

He also said that he was confident that the lawsuit was not frivolous, because there's still "an outstanding question about the city violating the law here.

"The court did not do today, the court did not rule on whether the city's behavior was legal or illegal," he said. Rather, Griffin's decision to dismiss the case was made simply because there was "not enough time to render a decision before Nov. 5."

PDI could pursue a lawsuit, Peard said. "But, the priority now, in the next 8 days, is to make sure that voters vote, and they understand why Prop 205 deserves a yes vote."

The campaign will continue, she said for an idea that is "true and right."

"Unfortunately, we weren't able to make a clear point with a case that we've won that would've have stopped them from doing this," Livier said. "But, I tell you what, we do plan on doing this again, with other issues. And, then we'll be more prepared if something like this happens again."

Petitions challenged, new campaign forms against sanctuary 

This is the second lawsuit involving PDI's campaign make Tucson a sanctuary city for immigrants. 

In July, the organizers behind "Tucson Families Free & Together" submitted what they said were nearly twice the number of signatures to get the bill on the ballot in the general election. However, 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.

On Aug. 16, a judge rejected their arguments and tossed the challenge 

In an 12-page ruling, Pima County Superior Court Judge Douglas Metcalf  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.

Meanwhile, Proposition 205 faces a well-funded campaign to vote "no" against the measure. The Tucson Association of Realtors,  Tucson Metropolitan Chamber of Commerce, the Southern Arizona Leadership Council, and Chicanos Por La Causa are expected to spend at least $200,000 on advertising and mailers against Prop. 205, and the American Civil Liberties Union of Arizona has begun its own campaign, spending more than $100,000 to encourage voters to make Tucson a sanctuary city. 

At the same time, Prop. 205 backers are knocking on hundreds of doors per day, especially in mid-town neighborhoods, and have sent out at least 3,000 letters personally addressed letters, all in an attempt to convince voters, said Maria Johnson, a member of the "Tucson Families Free & Together" campaign.

Unicorns? 

During the January meeting, Rankin presented a number of worries, ranging from concern that state or federal officials might become aware that TPD officers rarely make immigration inquiries. 

"I would prefer this not leave this room," he said, "the number of calls from officers for immigration inquiries is minuscule," he said. "My fear is that even—regardless of whether this passes or not, if it's on the ballot and it's the subject of discussion and debate," Rankin began, "folks start looking at it and say 'what the hell is Tucson doing there, only calling one time a month." 

"Then we could get a challenge to our existing," general orders, Rankin argued, mentioning a similar issue in Phoenix. 

Peard responded that the American Civil Liberties Union of Arizona helped and wrote a "friend of the court" amicus brief to help Phoenix. 

Peard also noted Tucson's experience with an attempt to buy back guns, which was ultimately stymied by the state Legislature. 

Rankin asked how the bill would affect joint law enforcement task forces, arguing that some agencies may be unwilling to sign memorandums of understanding. 

As Farhang wrote, Rankin's Jan. 16 memo concluded that Prop. 205 "requires the Tucson Police Department to "secure MOUs before participating in joint law enforcement task-forces, operations “or similar endeavors” with federal agencies; that the required MOU language restricts the arrest authority of the federal agencies’ officers within Tucson city limits; and that Mr. Rankin believes “it is extremely unlikely that any of these federal agencies would consent to such an agreement,” the result being an end to all joint law enforcement collaboration with any federal agency.

During their  conversation, Peard referred to these as "unicorns" indicating that they would be rare events when an agency refused to make such an agreement with the city.

While the backers of Prop. 205 have repeatedly called such agreements "commonplace" in their public statements, they haven't been able to provide an example of an MOU in which a federal law enforcement agency has given up arrest powers.

Along with that quip, the recording also showed that Peard agreed in a moment that one section of the initiative was "overbroad." 

Rankin began by arguing that a section intended to protect victims and witnesses of sexual assault and domestic violence could classified, as he put in the "most attacking way possible" as an "immigration amnesty for child molesters." 

Peard responded by saying that the "primary intent was more specifically" for "domestic violence scenarios" and would keep a TPD officer from asking the immigration status of both parties.

Peard said Friday that he was "not entirely clear on the provision at the time" because "Tucson Families Free and Together" was drafted by a community effort, and during that moment, the initiative was "still freshly inked." 

"In the meeting, I didn’t have my head in that mindset," Peard said. "The reason why the group drafted that provision, as the campaign has been saying for several months, is to recognize the reality of the situation, and that in those situations victims are particularly vulnerable and sensitive, and we need to be careful." 

"And, now regardless of the outcome," of Prop. 205, "I'd advocate that these crimes should be treated with these considerations in mind." 

Livier said during her deposition Monday that the section was drafted with help from victims "by survivors that are undocumented" and "by immigration lawyers" Livier explained that "immigration status" hinders people from reporting these crimes, often times because a child or spouse is undocumented. "So, if it's their husband that's beating them, and there's a chance that they're going to be deported if they call the police, they won't call the police, and that's exactly why we put this there." 

"This is just during an investigation to make sure that victims can come forward and that they feel comfortable in these very sensitive -- during these very sensitive investigations," she said. 

"This movement isn’t just about winning," Livier said. "This movement is about truth-telling and challenging those who so often fail us. Our community is seeking transformational, long lasting change, and illegal electioneering will no longer be taken lightly as we more forward with that mission." 

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3 comments on this story

3
17 comments
Oct 29, 2019, 10:15 pm
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My understanding is that the logic is a)the victim will not report if she (lets suppose its a she) is afraid of deportation AND she will not report if she thinks that he (lets suppose its a he) can be deported and therefore escape justice or jail or prison in the united states. He needs to be prosecuted for the crime, not sent “home” where he can continue to perpetrate. For the longest time we actually had such a provision, I believe—where victims of domestic violence were granted a stay in this country to fully prosecute their cases.  I will happily take correction if I am wrong.

2
12 comments
Oct 28, 2019, 6:39 pm
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I find it quite fascinating how the initiative say they’re “disappointed… because our complaint showed… where [the city] were breaking the law”—considering that the intiative’s whole raison d’Ítre is the support of those who break the law. Immigration law is in need of reform, but we need to do it the right and consistent way, not by patching potholes with questionable means.

1
17 comments
Oct 28, 2019, 5:17 pm
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I am still stumped by the unified response of the City to Prop 205—which is to join with the likes of Finchem, Leach, et al. and pillory the idea that immigrants deserve to live among us as human beings with human rights to security and freedom from targeting. (And to do it by belittling the motives of the 205 campaign’s founders, supporters and legal staff) This campaign of fear has been “education” like the interference of Pinnacle and APS in the electoral race to improve access to solar power was “education”. Except this time it is paid for with our tax dollars,not just our electricity rates.  Seems like our local officials, from candidates to police chiefs, show up in their “uniforms” or identified by their titles on flyers, in print, and anywhere they can to tell us how to vote. 

The name calling has reached a point (actually some of the candidates started out at that point!) that makes a mockery of “civility” workshops that have attended and appreciated in the past. I always knew the state of Az was corrupt, and I’n actually kind of heartbroken as it sinks in that the city of Tucson appears to be too. Call me naive, but I thought we were better than this.

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Paul Ingram/TucsonSentinel.com

Zaira Livier speaks to supporters at Exo Coffee about the bill, with a ballot for Tucson's sanctuary city bill.

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