As an Arizona rancher faced a court order earlier this year to pay $87,000 to illegal immigrants he caught on his land, the Legislature set out to right what many considered a wrong. The Legislature passed a law to make retroactive to 2004 a 2006 referendum banning courts from awarding punitive damages to illegal immigrants. The rancher, Roger Barnett, had lost a civil lawsuit alleging that he held the immigrants at gunpoint in the 2004 incident, assaulted them and caused emotional distress. But opponents of the law say it's unconstitutional. They say the Legislature lacks authority to overturn court decisions and that lawmakers can't pass a law to benefit only one person.
'It makes a mockery of the separation of powers,' said Jaime Farrant, policy director for the immigrant-rights group Border Action Network.
The first test of the law's constitutionality could come as early as Tuesday. A Cochise County judge will decide how to proceed with a request from a different rancher who says a judgment against him in a similar civil lawsuit should be overturned.
Barnett caseIn March 2004, Barnett apprehended a group of illegal immigrants on his ranch and turned them over to law enforcement. The immigrants alleged that Barnett held them at gunpoint and kicked one of the women. Barnett, who claimed to have apprehended thousands of illegal immigrants crossing through his ranch, disputed the allegations.
Barnett was never criminally charged in the case.
The case garnered national attention and outraged many in the Legislature. Lawmakers in 2006 passed a measure asking voters to change the state Constitution to forbid Arizona courts from awarding punitive damages to illegal immigrants. Prop. 102 passed with 74 percent approval.
But lawmakers realized later that the measure was too late to help Barnett because it wasn't retroactive.
In 2009, a federal court jury found that Barnett didn't violate the civil rights of the immigrants but ordered him to pay $77,000 to the victims for the claims of assault and causing emotional distress.
Barnett appealed. This February, the U.S. Court of Appeals for the 9th Circuit upheld the lower-court ruling. With interest the amount came to about $87,000.
Less than a week later, Republican lawmakers tacked an amendment onto an unrelated bill that would put the constitutional restriction created under Proposition 102 into state statute and make that state statute retroactive to Jan. 1, 2004.
It's illegal for the Legislature to change a voter-approved measure without getting permission from voters. Creating the state statute and changing it instead of the voter-approved constitutional provision may get the Legislature around that problem. It's not uncommon for the Legislature to repeat things in the state Constitution in state statute.
Legislative actionDuring committee hearing on House Bill 2191 [Legislator, Rep. Jim Weiers, R-Phoenix, said the issue dated back to Mr. Barnett's case and he added that Prop. 102 was intended to help Barnett.]
'It would have been a lot easier if the Legislature had been smarter at that time and made the date retroactive,' Weiers said during committee hearings. 'When (Prop. 102) was introduced, it was for the intent of that exact incident, nothing more and nothing less. This is an attempt to right a wrong.'
Farrant of Border Action Network was the only one to testify against the bill. He said the bill was unconstitutional for at least two reasons: It was intended to benefit a single person, and it sought to change a voter-approved measure. He said he also was concerned about the precedent the new law sets.
'This person was accused in civil court of assaulting over 16 immigrants, and the court determined he assaulted them and sentenced him to pay,' Farrant said. 'And now we're going to pass a law to help him?'
Weiers said during committee hearings that he had vetted the bill with several attorneys and that they all determined it to be constitutional because it changes the new statute and not the voter-approved constitutional provision. 'I've been assured by attorneys that by doing it this way, it is extremely constitutional,' he said. As for helping a single person, Weiers said during committee, it's not the first time the Legislature has done so.
In 2009, the Legislature passed a measure that helped Harold Fish, who was convicted of second-degree murder in the 2004 shooting of a hiker near Payson. The measure required a 2006 change in self-defense law, made amid Fish's trial, to be applied retroactively. The change shifted the burden of proof from the defendant to the prosecution, and the retroactive date allowed it to apply to Fish.Based on the new law, Fish was released from prison and not retried.
House Rules attorney Tim Fleming in February deemed HB 2191 constitutional, though he admitted at the time that he didn't understand why it was retroactive and wasn't sure how effective it would be at reversing a judgment. [ed. Don't worry, these AZ legislators are genuises.]
'I haven't done a lot of research on it,' he told the House Rules Committee, which is charged with evaluating the constitutionality of proposed legislation. [ed. uh, hus.]
Although the debate over the law focused on the Barnett case, another Arizona rancher believes the new law will help him as well.In 2003, Arizona rancher Casey Nethercott and several other members of a volunteer border-patrol group called Ranch Rescue stopped two illegal immigrants on a ranch they were patrolling in Texas. The immigrants alleged that Nethercott threatened them and pistol-whipped a male immigrant in the head. Nethercott was criminally charged with aggravated assault, unlawful restraint and unlawful possession of a firearm by a felon. He was ultimately convicted of the unlawful possession charge and sentenced to serve several years in a Texas prison.A year after the incident, the Southern Poverty Law Center filed a civil lawsuit against Nethercott and several of the other men on behalf of the immigrants. The Texas state court in 2005 issued a civil judgment of $850,000 against Nethercott. A Cochise County judge later signed over Nethercott's ranch to the immigrants to cover some of the judgment.
The ranch was divided up and sold.
Nethercott called the passage of HB 2191 an 'absolute victory. I hope everybody in America knows that they stole my home,' Nethercott said. 'Now, nobody else can go through this.' [ . . . ]
Emboldened by the new law, Nethercott has filed a motion in Cochise County Superior Court to vacate the judgment against him. A hearing is scheduled for Tuesday morning in Bisbee.
Mary Bauer of the Southern Poverty Law Center is the lead attorney on the case. She said she is looking forward to trying the matter in the courts. She said she doesn't believe it is constitutional for a state Legislature to overturn a court ruling.
'The Constitution prohibits things called bills of attainder aimed at particular individuals or individual cases like this," she said. "And the Legislature can't come in and undo something that a court has done.' [ed. Oh really, shows what Ms. Bauerr knows about AZ!]
Bauer said the property has long since been sold, so even if Nethercott did win his argument, he won't get his ranch back.
Nethercott, who is representing himself, said he would not try to take the ranch from its new owners. He wants money, he said, and he believes the new state law will help him get it. He plans to ask for $10 million in punitive damages against the Southern Poverty Law Center. 'It's law now,' he said. 'You have to go by it.'"
Gotta love Nethercott, a real man of the law! Er, retroactive law.
Just in case it slips your mind, the United State Constitution, Article I, Sections 9 & 10 prohibit enactment of ex post facto (retroactive laws) by both the state and federal governments. Apparently this slipped the notice of the Arizona legislature and Governor Jan Brewer.