Ted Simons: Two court cases of note this week. The first deals with what some refer to as the papers please section of SB-1070, the other involves a legislature sweep of a mortgage relief fund. And here to talk about both cases is Howard Fischer of Capitol Media services.
Howard Fischer: This is the section that says if you stop somebody as police officer and have reasonable suspicion there in this country illegally you must check their immigration status. The Obama administration sued over 1070 and got an injunction from Judge Bolton. The Supreme Court upheld most of it except for this section saying we can't say as a preemptive challenge that this is preempted by federal law. Now we're back in court with groups like the ACLU and National Immigration Law center saying we believe the only way you can enforce 1070 would be biased against Hispanics and it would lead to racial profiling, and therefore, back to Judge Bolton. We would like a new injunction to keep this from taking effect before the Supreme Court court order kicks in.
Ted Simons: The Supreme Court’s ruling, didn't that basically open the door to once the law is enacted works, once the injunction is lifted, then you can challenge?
Howard Fischer: It was very clear. If you listen to the judges who argued this they said how do we determine how this is going to be brought into effect? If you want to come back afterwards and call it as applied challenge and say you have racial profiling, do that. That's the big hurdle these folks have. They contend that based on activities of Joe Arpaio even before the law is in effect, statements of racial animus, emails by Russell Pearce, they can show this is racially biased. I think the judge is having a hard time with that saying, look, you have no victims here. You have nobody who is under immediate threat of harm, which is the standard for an injunction.
Ted Simons: What about the judge looking at the idea of just me checking your identification prolongs detention and is thus unconstitutional?
Howard Fischer: Well, again, the U.S. Supreme Court, when they looked at this said, “Add some specific case. How do we know?” Judge Bolton said, “Well, is a 35 minute stop too long? Well it depends if a 35 minutes was what you needed to write them the traffic ticket and check out the tires, then you shouldn’t go ahead say that's too long.
Ted Simons: Any timetable for a decision?
Howard Fischer: No. The judge is running up against a deadline because she still hasn't complied with the Supreme Court order that says dissolve the earlier injunction. I would assume within the next three, four days we may get an order on this one.
Ted Simons: Okay, let's talk about the mortgage settlement fund. What is that? What did the legislature try to do or want to do or successfully do and who is trying to block that?
Howard Fischer: Last year, actually early this year, there was a multi-state settlement with five big lenders who were accused of mortgage fraud. They said, “Well we didn't do it and we won't do it again,” your standard language. Arizona got a big chunk of that. Most of that goes directly to home owners who lost their homes so they can get a cash settlement or to people who will get help to refinance their homes. State got 97 million for its own damages. Tim Hogan contends that 97 million is supposed to help people navigate the system; help with housing counseling, attorneys, everything else. The legislature took 50 million of that during the session, said, you know, the state itself was damaged by the action of the mortgage lenders, so we're going to use it to balance the budget. Hogan sued. The hearing today in court in front of judge Mark Brain was over the question of what does that language mean when the state Attorney General Tom Horne said I'll put it into a trust fund, did that allow him to say, “Well the legislature can take it?”
Ted Simons: Sounds like Missouri, Wisconsin, a couple of states, have already done this, lawmakers say, “Yes, the settlements is supposed to be for housing related reasons.” We lost a lot of revenue and a lot of public funds for housing related reasons. The housing market took a dump.
Howard Fischer: But the problem is that you have two problems. A, was it the activities of these five lenders in those robo signings that caused it. B, Tom Horne agreed to language setting up a trust fund. That makes him the trustee which basically precludes the legislature from saying we're going to take this for our own purposes.
Ted Simons: The judge was pretty public about his statements, Attorney General Horne was. Is that being used for evidence and how serious is that being considered?
Howard Fischer: It was funny because when Horne's attorney said, “You know, Your Honor, my client agreed to this” and the judge basically said, “oh, and you're going to tell me he did it willingly?”
Ted Simons: Timetable on this one?
Howard Fischer: Timetable probably several weeks because there is no rush. The state agreed not to transfer the funds before the end of the year, so it gives Judge Brain a little bit of time.
Ted Simons: Well we are going to have a little bit more time to talk about this on Friday's show. Thanks for joining us.
Howard Fischer: You're welcome.