Home / 2012 year in review / Immigration, abortion, gay rights put Arizona in national legal spotlight

Immigration, abortion, gay rights put Arizona in national legal spotlight

Arizona politics not only kept courts busy in 2012, but led to a landmark case in June when the U.S. Supreme Court gutted the state’s most prominent immigration policy.

The court decided it will take up one more Arizona immigration-related case in its current term, but passed on an Arizona case involving gay marriage. Federal judges also prevented two Arizona abortion laws from taking effect while lawsuits challenging them are litigated.

Maricopa County Sheriff Joe Arpaio found himself in court — again, but this time it was the federal government suing him and alleging the law enforcement agency had a culture of racial profiling. Arpaio also found himself at the center of the storm in the disbarment of former Maricopa County Attorney Andrew Thomas.


Both sides of the immigration debate declared victory as the U.S. Supreme Court on June 25 gutted SB1070, the premiere law of Arizona’s immigration policy.

The court let stand a provision requiring police officers to check the immigration status of people they suspect to be in the country illegally. But the Obama administration effectively made it useless with its enforcement policy of deporting only people who have criminal records, who recently crossed the border or who have been deported before.

Gov. Jan Brewer, whose political career skyrocketed after she approved the legislation in April 2010, said, “While we are grateful for this legal victory, today is an opportunity to reflect on our journey and focus upon the true task ahead: the implementation and enforcement of this law in an even-handed manner that lives up to our highest ideals as American citizens.”

The court struck down provisions that would have made it a state crime for immigrants who lack federal documentation to seek work. Also struck down was a provision that would have allowed police to make warrantless arrests of people suspected of committing crimes that would allow them to be removed from the country.

Because of those three deleted provisions and the Obama enforcement policy, police officers are unable to do anything with illegal immigrants except turn them over to the federal government, which won’t act unless a suspect meets one of the standards for deportation.

Gay marriage

As the Supreme Court’s new term began in October, there was potential for the state to be part of another landmark case, but the court declined to hear an Arizona case involving gay marriage and instead took ones from New York and California. The Arizona case, Brewer v. Diaz, was one of 10 the court pondered reviewing. It involves a 2009 ban on health benefits for domestic partners of state employees. Since the court didn’t accept the case, the 9th U.S. Circuit Court of Appeals ruling that the ban discriminates against gay and lesbian state employees will stand.

The court did accept Arizona v. Inter Tribal Council, a case to review the constitutionality of a 2004 ballot measure that requires proof of citizenship to register to vote.

Arizona State University professor Paul Bender said the question in the case is narrow and shouldn’t have much impact nationwide. The court will decide whether to overturn a 9th U.S. Circuit Court decision that the National Voter Registration Act supersedes Arizona’s law. The federal law doesn’t require voters to prove their identities, but they must swear under penalty of perjury they are citizens.

Arizona Attorney General Tom Horne, who will argue the case before the court, said illegal immigrants will be able to vote if the law is struck down.


Two Arizona abortion laws enacted in 2012 were challenged in court.  Both are on hold as they move through appeals.

The 9th Circuit fast-tracked the case challenging Arizona’s 20-week ban on abortion, HB2036. So a ruling is expected in early 2013.

The state successfully defended the law in U.S. District Court, but the three Arizona doctors who brought the suit challenging it persuaded the appellate court to stop the law from taking effect until the case is resolved.

The law moves the timeline on when the state can restrict abortions. Under Roe v. Wade that timeline is at viability, when a baby can survive outside the womb, or about 24 weeks. Arizona’s law is based on the premise that a baby in the womb can feel pain after 20 weeks.

The pro-life movement has been waiting for a case to challenge Roe, and some believe this is it. Although Arizona wasn’t the first to pass such a law, it was the first law to be challenged, mostly because pro-choice proponents elsewhere couldn’t find doctors to be plaintiffs in a lawsuit and reveal they provided abortions.

In upholding the law, Judge James Teilborg of U.S. District Court in Phoenix concluded it doesn’t ban abortions before viability, but limits some abortions between 20 and 24 weeks.

The other case involves a law, passed as HB2800, which bans Planned Parenthood and any other group that maintains an abortion clinic from receiving public funding. The case is also in the 9th Circuit, where the state is appealing a ruling by Judge Neil V. Wake of U.S. District Court who found that the law violates the rights of Medicaid patients under federal law to receive care from the provider of their choice.

The outcome could also be monumental in the abortion battle. A victory for the pro-life movement would leave Planned Parenthood politically vulnerable to more attacks on the federal level. A pro-choice win would send pro-life proponents back to the drawing board in their efforts to close Planned Parenthood.

Feds Sue Arpaio

In May, the U.S. Department of Justice took up Arpaio’s dare to sue him on allegations he racially profiled Latinos during his immigration patrols. The lawsuit and any results of it will probably be the last word on such allegations leveled against Arpaio related to his immigration enforcement.

The federal government, which had been investigating Arpaio and the Sheriff’s Office for years, came out with a damning report in December 2011 alleging an institutional culture of racial profiling. The government wouldn’t elaborate on its findings beyond what the report stated.

Arpaio and the Department of Justice Civil Rights Division lawyers tried to avert a lawsuit and sought an agreement on training for deputies, collecting data and outreach to Latinos. But the sticking point was a court-appointed monitor to enforce the agreement. Arpaio wouldn’t budge, saying such a monitor would be a micromanager who would take away his authority.

“I am not going to surrender my office to the federal government,” he said.

Arpaio got good news in September, when the Department of Justice announced it would not pursue criminal charges against him, ending a four-year abuse of power investigation.

Thomas’ disbarment

Former Maricopa County Attorney Andrew Thomas was once one of the most powerful lawmen in the state, but the day after his disbarment he claimed to be the fall guy in a corrupt legal system and compared himself to historical martyrs.

“Other men far greater than I have gone to jail in defense of principles they believed in and so that they would not kowtow to a corrupt order,” Thomas said, as he stood among the cheers of supporters and catcalls of detractors. “People like Gandhi, people like Dr. King, people like (Aleksandr) Solzhenitsyn, people like Thomas Moore. And I will tell you there are some things worth fighting for and someone has to clean up this town.”

Thomas’ disbarment order formally put in writing what many had claimed for a long time, that he and Arpaio were a corrupt tandem that laid siege to their political opponents.

Thomas and Lisa Aubuchon, a former county prosecutor, were disbarred after a three-member disciplinary panel found they led a three-year campaign of revenge against Thomas’ and Arpaio’s political enemies, which included county managers, private lawyers who worked for the county, and judges. Thomas and Aubuchon even brought criminal charges of bribery against Maricopa County Superior Court Judge Gary Donahoe, which ultimately were dismissed.

Thomas decided not to fight his professional punishment and will be able to seek his license back in five years. Aubuchon has appealed and so did Rachel Alexander, a former deputy county attorney who was suspended for six months and a day for her part in the fight between Thomas and his enemies. Their appeals are pending.

Death Penalty

Arizona came up one execution shy in 2012 of tying the state record for most executions in one year. And although the state executed six prisoners, the ones on death row won some long fought for concessions from the state in how it conducts executions, ending years of litigation.

Beginning in 2007, the prisoners fought in federal court for a host of changes to the state’s execution policies. The state has incrementally given in to the demands, often after courts would express a dim view of the policies during last minute court proceedings before executions.

The Department of Corrections put the changes in writing Sept. 21, and the prisoners dropped their lawsuit a month later. The most significant changes the death row inmates sought was to be put to death with a single lethal chemical rather than a mixture of three; having access to their attorneys for up to an hour before execution; and allowing witnesses to view them being prepped for execution.

One execution did involve political overtones when attorneys for Samuel Lopez, who had been convicted in the rape and murder of 59-year-old Estefana Holmes, questioned the legality and experience of the appointments of new members to the Board of Executive Clemency. The new board was set to hear the prisoner’s plea for leniency in May, but his attorneys claimed the new members were political cronies of Gov. Jan Brewer and they hadn’t met the legally required time for training before his hearing.  Brewer denied the claims, Lopez was denied clemency, and he was executed in June.

The three new appointments made the five-member board a full panel appointed by Brewer, but the board also lost its most experienced member, chairman Duane Belcher, who was fired after a tiff with a staffer for the governor.

Belcher had served on the panel for 20 years and was one of the last members of a board that unanimously recommended in 2009 to reduce a life sentence for a man many believed was innocent of a double murder. Brewer drew national attention and criticism for her denial of the reduction. The prisoner, Bill Macumber, 77, spent 37 years in prison, but he was released in November after striking a deal with the Maricopa County Attorney’s Office in which he pleaded no contest to two counts of second-degree murder and was set free for time served rather than go through a third trial.

Arizona Supreme Court

Former Vice Chief Justice Andrew Hurwitz moved on to the 9th U.S. Circuit Court of Appeals in June, but not without controversy when some U.S. Senate Republicans and pro-life groups opposed his nomination. Democrats had to invoke rarely used procedural tactics to force an up and down vote. The beef with Hurwitz centered on a 2002 article he wrote highlighting opinions he drafted as a clerk for U.S. District Court Judge Jon Newman. Hurwitz stated that the opinions had a crucial influence on the outcome and reasoning of Roe v. Wade.

Despite the controversy, he was confirmed on a voice vote.

Ann Scott Timmer, an Arizona Court of Appeals judge, took the place of Hurwitz on the state’s high court in October, getting the job on her fourth try.

The court also lost retired Justice Michael Ryan, who died Jan. 30 at age 66. Before joining the Supreme Court, the former combat Marine had presided over some of Arizona’s historical political cases, including the criminal trial of former Gov. Evan Mecham and the AZScam trial in which corrupt lawmakers were convicted of taking bribes in a sting.

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