Maricopa County Attorney Andrew Thomas will violate the employer sanctions law if he investigates and prosecutes complaints in the manner he announced earlier this month, attorneys challenging the sanctions measure claim in a recent court filing.
Thomas’ Sept. 21 announcement that prosecutors in his office “will analyze the [complaints] investigated and determine if there is sufficient evidence to go to court to seek to suspend or revoke the business license of the employer” overreaches his statutory authority under the law passed earlier this year, the attorneys allege.
Because the law requires county attorneys to prosecute all complaints deemed “not frivolous,” attorneys David Selden and Julie Pace wrote in a Sept. 25 court filing that Thomas’ announcement “is, in substance, a manifesto of the County Attorney’s intent to violate the law…[which] specifically outlaws the County Attorney from exercising the discretion or authority to determine” if charges should be brought against businesses.
“The ironic thing is,” Selden said in a Sept. 27 interview, “the county attorney is trying to tell businesses and citizens, ‘trust us.’
“The people who wrote the law didn’t trust them. That’s why they said 100 percent prosecutions. If the Legislature didn’t trust the county attorneys, why should the citizens?”
In effect, Selden and Pace are citing Thomas’ plans to prosecute some cases and not others as an example of flaws in the law.
But the County Attorney’s Office and the law’s author both say the prosecutors do have discretion under the law to determine if a business purposely hired an illegal immigrant or if it was an accident.
Rep. Russell Pearce, R-18, says the claim in the federal court filing takes a portion of the law out of context.
“Don’t forget the other parts,” he said. “Mistakes don’t get prosecuted. It’s very clear you must knowingly or intentionally hire [an illegal worker].”
Not knowingly or intentionally hiring an illegal immigrant, Pearce and Maricopa County Attorney’s Office spokesman Barnett Lotstein agree, means a complaint would be deemed frivolous, and thus never prosecuted.
However, Selden says the law as written specifically outlines how an investigation is to proceed. The only acceptable investigation technique under the law is verifying the suspected illegal immigrant’s work eligibility with the federal Immigration and Naturalization Service, and the law forbids other investigatory techniques.
“A state, county or local official shall not attempt to independently make a final determination on whether an alien is authorized to work in the United States,” A.R.S. § 23-212 reads.
While Selden says the law limits investigators to only using the federal government to determine if a complaint is frivolous, Pearce says that language merely establishes how county attorneys are to determine if the subject of a complaint is, in fact, in the country illegally. If the employee is not legal, he says, then the investigation continues.
“That’s written that way simply to tell county attorneys that they have no need to proceed with an investigation if they deem [a complaint] to be frivolous,” Pearce said. “Everything’s written for a reason in this bill.”
Lotstein says the Maricopa County Attorney’s Office intends to do just that.
“It’s ridiculous to me,” he said. “How would we know if it’s frivolous unless we investigate it and find out what the facts are?”
Selden remains unconvinced. Interpreting the law as it was passed, he says, means Thomas and other county attorneys who don’t prosecute every complaint in which the employee was hired illegally – whether by accident or not – will be exercising a judgment not given them under the law and opening their county to civil rights lawsuits.
“This chest-thumping to say they’re getting tough on immigrations, what they’re basically saying is they’re opening up the treasury to run roughshod over the law,” Selden said. “Shall means shall.”