Strike Everything

Nearly five months ago, I reported that the lasting impact of SB1070 – assuming it ever goes into effect the way its drafters intended – may be to increase the number of illegal immigrants who are given temporary work visas and permanent U.S. citizenship.

A major part of that story is the severe backlog in immigration court. Several immigration attorneys I spoke with told me that the courts have been inundated with deportation proceedings, and cases were regularly being scheduled for 2013 and beyond. One attorney said he had a hearing scheduled for February 2014.

The increase in border enforcement that began two years ago is now resulting in an even bigger backlog in Arizona immigration courts, which only have five judges. Attorney David Asser told me this week that Judge John Richardson, who operates out of the Phoenix court, is scheduling cases for May 2015.

Those cases are for immigrants who hope to stay in the United States. Last year, more than 5,100 illegal immigrants who were processed through federal immigration courts in Arizona were released from custody on bond while they fought deportation. The vast majority of them were eligible for work authorization documents that are valid until their cases are resolved.

And that five-year schedule is only for the final hearing on the merits of a case, not appeals. Asser said it takes upwards of three years for an appeal to be resolved.

During that whole time, the immigrants will be living with their families and working in the state just as legally as those who crafted the nation’s toughest immigration law.

- Jim Small

Arizona’s latest First Amendment Supreme Court case is trying to determine whether a Deer Valley High School student’s foul-mouthed insults hurled at a teacher are “fighting words” and criminal.

The Arizona Supreme Court, which took its gavels and robes on the road today, is hearing oral arguments on the case at Nogales High School, but a PG version is promised for the high school audience, since the briefs filed with the court are filled with words that would have led to soap in the mouths of previous generations.

The student, Nickolas, is asking the Arizona Supreme Court to overturn two lower courts that found he broke Arizona’s teacher abuse statute, which doesn’t define abuse, when he kept calling her a name you’ll hear on many rap recordings. He didn’t touch the teacher, didn’t get in her face, didn’t throw anything at her, he just yelled at her from across the room and as he walked out of class.

All the statute says is that abusing a teacher or other school employee on school grounds is a class 3 misdemeanor.

It was also a misdemeanor to “insult” a teacher on school grounds, but the legislature struck the word from the law in 1989.

A 2000 Court of Appeals Division II decision found that a student who told his teacher four times to, well, more or less leave him alone, was protected speech and did not violate the teacher abuse statute.

Insulting words and disrespectful behavior was insufficient in determining abuse, the court found.

The Court of Appeals Division I decided this year that Nickolas’ repeated assertions to his teacher that she was a, um, mean lady, triggered the fighting words doctrine, thus, taking it out of the realm of protected speech.

“The curious trek of the teacher abuse statute takes another turn and only the Arizona Supreme Court is able to solve the confusion,” wrote Ellen Edge Katz in a brief to the court. Katz is defending Master Nickolas.

Black’s Law Dictionary says fighting words are those “which by their very utterance inflict injury or tend to incite an immediate breach of the peace.”

According to the Supreme Court’s summary of the case, the issue at hand is whether the Court of Appeals correctly applied the fighting words doctrine when it focused on “the theoretical reaction of the hypothetical reasonable person” rather than on the likely reaction of the teacher who was the target of Nickolas’ words.

Katz argues that if the court correctly applies the fighting words doctrine, then her client’s words are “constitutionally protected speech.”

The teacher in this case remained calm and professional, but that doesn’t mean she didn’t want to backhand the lad, the state argued in writing to the court.

- Gary Grado