2 sheriffs join to defend 1070

While Pima stays out, Babeu, Dever cultivate role in costly ACLU case
2010-09-05T00:00:00Z 2010-09-05T00:07:44Z 2 sheriffs join to defend 1070Tim Steller Arizona Daily Star Arizona Daily Star
September 05, 2010 12:00 am  • 

The American Civil Liberties Union caused a chaos of responses, some of them costly, when it sued county officials, not the state of Arizona, over SB 1070.

As a result, taxpayers and donors are forking over the equivalent of hundreds of thousands of dollars in attorneys' time to mount a defense for some county attorneys and sheriffs, while other counties are simply letting the governor's attorneys take the lead.

The ACLU and civil rights groups sued all of the state's sheriffs and county attorneys when they challenged the constitutionality of SB 1070 May 17. By contrast, on July 6, the U.S. Justice Department sued the state of Arizona over the law.

To respond to the ACLU suit, the Pima County Attorneys Office had six lawyers working full-time for weeks, said Chief Deputy County Attorney Amelia Cramer. Eventually, they decided to take no position on the suit.

"For them to take a neutral position took a tremendous amount of work, equivalent to tens of thousands of dollars," Cramer said.

On the other hand, Cochise County Sheriff Larry Dever and Pinal County Sheriff Paul Babeu, who strongly support the state's new immigration-enforcement law, have embraced their position as defendants in the ACLU case. They've sponsored a nationwide, Web-based fundraising effort, called BorderSheriffs.com, that has so far raised $125,000 and now has a high-profile chairman, former gubernatorial candidate Buz Mills, trying to raise more.

Last week, Dever even persuaded the Cochise County Board of Supervisors to let him try to make the Sheriff's Office a defendant in the separate U.S. Justice Department case, an unusual move in that counties usually try to avoid becoming lawsuit defendants.

All this legal activity and spending by county officials, Cramer believes, is because of a misinterpretation.

The American Civil Liberties Union sued all Arizona's county attorneys and sheriffs over SB 1070 because they were required to do so in a 2007 case challenging the constitutionality of the state's employer-sanctions law, said Dan Pochoda, legal director of the ACLU in Arizona.

This time, he said, "We erred on the side of caution and named all the county attorneys and sheriffs."

But the employer-sanctions law is different from SB 1070 in that it specifies that only county attorneys may prosecute resulting cases, not the attorney general. The state could have been the sole defendant in the SB 1070 case, said Cramer and University of Arizona law professor Gabriel "Jack" Chin, who is closely following the 1070 suits.

State now has the lead

On June 18, U.S. District Court Judge Susan R. Bolton allowed the state, represented by private law firm Snell & Wilmer, to become a defendant in the ACLU case, although it wasn't originally named. Now the state is the lead defendant, expected to make the main arguments in the case.

The state's attorneys are racking up bills fast: In the first six months of the SB 1070 cases, through June, they added up to a total of about $442,000, and of that, $116,270 was for the ACLU suit. But the governor's legal defense fund has received $3.6 million in donations, meaning that the legal bills won't cost Arizona tax dollars until after they use up the donations, much of them from out of state.

Similar to Gov. Jan Brewer's legal defense fund, Cochise Sheriff Dever and Pinal Sheriff Babeu launched a fundraising drive with the help of the Iowa-based Legacy Foundation and the Scottsdale-based Rose Law Group.

From the beginning, the effort has publicly mixed the Justice Department's suit against Arizona over 1070, in which the sheriffs aren't named as defendants, and the ACLU-led suit against the county officials.

A press release announcing the effort also suggested, falsely, that the sheriffs are in some personal legal jeopardy over the suit - a line Mills picked up last week as he began fundraising for BorderSheriffs.com

On Wednesday morning, Mills told Fox & Friends host Gretchen Carlson: "These folks are being sued personally by the ACLU."

He repeated that claim in an interview later that day with the Arizona Daily Star.

But the two sheriffs are in no personal jeopardy from the lawsuits, said lawyers involved in the case. The initial complaint says each sheriff and county attorney is being sued "in his official capacity."

Babeu: Pinal attorney "unfit"

Cochise County Attorney Ed Rheinheimer accepted the offer of the Rose Law Group to represent Cochise County. Pinal County Attorney James Walsh declined it, prompting an angry press release from the border sheriffs group.

"This latest rejection by County Attorney Jim Walsh only confirms that he is unfit to represent me and the office of the sheriff as we enforce the Arizona immigration law, SB 1070," Babeu said in the press release.

Babeu continues to raise funds for the group, whose lead lawyer, Brian Bergin, says it expects to offer an "aggressive and passionate defense" from a law enforcement perspective. He filed a friend-of-the-court brief Friday on Dever's behalf in the Justice Department's anti-1070 suit.

Dever said he knew he wanted to be actively involved in the suit when he watched a hearing on the SB 1070 suit.

"I was in the courtroom when Gov. Brewer's lawyers were arguing this thing, and I got so frustrated listening to them get so entangled in legal rhetoric," Dever said. "They missed the whole point of the practical application and tactical application of the law."

Asked about the counties' roles in the ACLU suit, UA law professor Chin said they don't need to be defendants to have a say.

"Even if there is something special that law enforcement has to offer, which there may be, it can be brought in by declaration, affidavit, testimony, etc.," he said.

Contact reporter Tim Steller at 807-8427 or at tsteller@azstarnet.com

Copyright 2014 Arizona Daily Star. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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