Ted Simons: We will hear about a plan to stop bullying from an international bullying prevention expert. Those stories next on "Arizona Horizon." Good evening. Welcome to "Arizona Horizon." I'm Ted Simons. Democratic state representative Ben Arredondo is expected to plead guilty tomorrow to federal charges involving for public corruption. Earlier this year he was indicted on allegations that he took tickets from sporting events from real estate developers in exchange to help facilitate land deals. The developers were FBI agents running a sting operation. He pleaded not guilty, but a change of plea hearing is set for tomorrow in U.S. district court. United States Supreme Court began the new session this week. With the new term comes another Arizona case to be considered. The high court has agreed to hear an Arizona death penalty case that will be argued by the state attorney general Tom Horne. Here to talk about that case and give us a preview of the court session, is ASU law professor Paul Bender. Always good to see you. Thanks for joining us tonight.
Paul Bender: Nice to see you too.
Ted Simons: Before we get to specifics, is this going to be a big session for the court?
Paul Bender: We don't know yet. One case that will be argued next week that is potentially very important, that’s a challenge to the affirmative action program of the University of Texas. There are on, the horizon, some cases that could be really important. Like gay marriage related cases but we don't know if they will take those or not. Even with the affirmative action case, you don't know whether the case will be a landmark case until it is decided and they write the opinion. Because the opinion can be very narrow or it can very broad.
Ted Simons: Interesting. Let's get to Arizona. It seems like we're always around as far as the --
Paul Bender: It does seem to be lately.
Ted Simons: Yeah, Ryan versus Gonzalez, death penalty case, involving what, competency.
Paul Bender: It is an interesting case. It is not terribly important except of course to the parties involved. It is an interesting issue. Death penalty case -- they have two of them. Another from the sixth circuit. Where the defendant went -- was convicted, went through the state post conviction remedies and is asking for federal habeas corpus. After he brings the federal habeas corpus petition, he becomes mentally incompetent. His lawyers go to court and say put this thing on hold because we need to consult with him in order to present his case. Because the issues in this federal habeas involve issues that he knows about, we were not his lawyers then. He has had 10 different lawyers. And so, it is important to have his cooperation. He can't cooperate because he doesn’t know what is going on. So, put this thing on hold until his mental condition improves, which may be never. In this case the 9th circuit held that it should be stayed until his mental health improves and if it never improves, they can't ever execute him.
Ted Simons: And that is the issue, is it not? You have a de facto were not going to impose a death penalty.
Paul Bender: That would be true if the 9th circuit decision stands. On the other hand, if you say, too bad. We're going to go ahead and hear the habeas and if in fact his participation would be helpful to him and he can't participate because of the mental condition, then that’s not fair to him. You may end up executing somebody who should not be executed. So it’s a dilemma for the courts. The 9th and 6th circuit both decided that you ought to stay the preceding, and lead it up to the district judge to find out one, if he is competent and two if his participation really helpful and necessary to his lawyers. And if he is incompetent and it is necessary, stay. If the issue is one that doesn’t involve him and his participation is necessary then don’t stay. The question is will the Supreme Court leave that up to the lower courts or will it say no, you can't do this because it is an indefinite state.
Ted Simons: Well, what do you think?
Paul Bender: I think they will say you can't do this. You have to go ahead with the proceeding. You can't indefinitely stay it. Maybe for a few months or a year, but if there is no real chance of him getting better, that you are not going to -- I don't think they will permit the lower federal courts to put off executions indefinitely.
Ted Simons: And that might mean executing someone who doesn't understand what’s happening.
Paul Bender: That is a different issue. If he really doesn't understand what is happening to him in the execution, why he is being executed, then you can't then you cannot execute him. Somebody in order to be executable has to understand what is going on. That is a different test is he competent enough to participate with his lawyers? He could understand enough to be executed but not understand enough of what is going on to help his lawyers. So, that is true ultimately you can't execute him that he is so out of it he doesn't know what is happening, but that is not the necessarily same thing as incompetent to help your lawyers.
Ted Simons: Interesting. Okay, a couple of Arizona lawyers may or may not be here, voter registration, the other domestic partner benefits. Do we know what’s going to happen with these two cases?
Paul Bender: Not yet, one of the cases was on the conference list last week. We thought the court would take it or deny it. They have not acted on it. That case involves the domestic partnership arrangement. Janet Napolitano when she was governor changed the rules and said state employees could get health benefits for their domestic partnerships, whether same-sex partnerships or different sex partnerships they could get health benefits. Governor Brewer did not like that and she changed that. The legislature has now passed a statute which says health benefits for state employees only go to the spouses and children, no domestic partners, either same-sex domestic partners or heterosexual domestic partners. That was challenged as a violation of the equal protection clause because it said that it is said that it discriminated against same sex couples and it had that affect. In the ninth circuit of panel opinion budget, Mary Shroeder who used to be chief judge held that it was unconstitutional, and there was a petition for rehearing which was denied. The court's most conservative judge wrote an opinion descending from the denial and saying that this is wrong. And I think the Supreme Court will take that case seriously mostly because it is a very interesting case. It is a difficult case to know what to do. The Supreme Court has never said that discrimination on the grounds of sexual orientation is a suspect kind of discrimination. They have always treated it as like any other kind of discrimination, subject to just a rationale basis test. All of the government has to show that is a reason for doing it, where a suspect classification, they have to have a compelling reason. And in this case, Mary Schroeder said they needed a compelling reason. The Supreme Court has never said that about discrimination against gays so later in the term the court will consider whether to take gay marriage related cases involving the federal defense of marriage act challenged or more or less the same grounds. I think there is a good chance they will hold this until they see what they want to do with those and then maybe take this and or even if they don't take it, hold it and decide the issue and apply it to this case. So, that’s a potentially important case.
Ted Simons: What about the voter registration?
Paul Bender: Voting registration case is on tomorrow's conference list. We should know by next Monday whether they are going to take that one or not. That is a challenge to proposition 200, I think it was, which requires you to have documentary proof of citizenship in order to register to vote. A lot of controversy about the identification requirements when you go to vote. This is not when you go to vote. This is when you go to register. 1993, the federal government passed a motor voter act, which was intended to make it easier to register to vote and they have to let you register when you register your car, get a driver's license. It is meant to make it very easy. It says as a federal form that has to be used by the state. And the federal form does not require documentary proof of citizenship. The state law requires documentary proof of citizenship. The question is whether that state law is preempted by the federal law. 9th circuit held that it was and that was an embank decision. I think there were only one or two descents. It seems to me that it is probably right and the court might deny it. On the other hand, it’s an issue that is interesting to people now and it’s a ninth circuit deciding a civil liberty, civil rights on the liberal side, so there is a very good chance the court will take that.
Ted Simons: All right, we’ll keep an eye on that. When you mentioned earlier as a big case, this is Fischer vs. the University of Texas, we're talking admission stuff. I thought all this stuff-- Wasn't there a Michigan case years ago?
Paul Bender: Not all that long ago. In 2003, Michigan law school case in which the Supreme Court opinion by Justice O'Connor, 5-4 opinion, held that law schools and other undergraduate institutions, educational institutions generally can use race as one of many factors in admission decisions in order to get a diverse class. That was a 5-4 decision. If that case had come up after Justice Leo replaced Justice O’Connor it would’ve come out the other way I think pretty clearly. So now, Justice Leo has replaced Justice O’Connor and one big question in that case is will the court overrule the, it’s called a Grutter case will they overrule it and say they did not say that you can never use race as a factor in admissions? There were four people who wanted to say that in 2003. There now may be five. On the other hand, we have a court led by a chief justice who said that he is not into overruling cases and he wants stability in the law. As you may remember at the end of the last term, he appeared to some people to be becoming a judicial statesman and he was going to bring the court together and stop the partisan bickering. It will be interesting to see whether that shows up here or whether the court will say we are going to overrule that case. We think it is wrong.
Ted Simons: As far as the Texas case is concerned, sounds as though, and correct me if I am wrong, state of Texas has already decided to accept the top 10% no matter who you are or what high school you are going to. Maybe diversity is already being shown.
Paul Bender: That's the narrow ground on which the court can and I think should, and may very well actually decide the case. That is when it looked like you could not use race at all because the 5th circuit where Texas is decided that you couldn't, University of Texas said, we had a plan which was struck down because it used race, but we really want diversity. They adopted a statute which says that if you are in the top 10% of your class at a Texas high school, you have a right to get into the University of Texas. Whatever campus you want to go to. That produced a lot of diversity. Ironically, that produced a lot of diversity because Texas has segregated schools. And so, you have a lot of segregated schools where minorities are almost the entire school. Top 10% of the class is very heavily minority. That resulted in a very substantial amount of diversity. And then when the Supreme Court decided in 2003 that you could use race in a limited way as a factor, Texas said well, we want to do that, too. Because we don't have as much diversity as we would like to have. It is true we have a fairly large percentage of Hispanics and blacks but they are at departments of the university where there is no diversity. And we would like to look at people applying and try to admit people who will diversify the economics, physics department and stuff like that. That is the issue. Are they entitled to when they have a lot of diversity, are they entitled to even when they already have a lot of diversity in the university as a whole, are they entitled to take race into account to make sure that different departments and majors and schools in the university are also diverse.
Ted Simons: What do you think is going to happen?
Paul Bender: I think chances are the court will decide on a narrow ground that they already have enough diversity and they can't use this. You can only use it when you don't have any. Four of them don't want to let you use race at all and I think Justice Kenny is the swing vote. He has been opposed to the use of race. I don't think he is ready to say you can never use race. I would think he would be the 5th vote for a narrow decision which says Texas can't do it because they already had it on a nonracial basis.
Ted Simons: Before we let you go, expecting fireworks any time during this? The last session closed with a bang. We talked about big cases earlier on. You mentioned this University of Texas case. Do you thinking any fireworks?
Paul Bender: There could be fireworks there. For example, if the court overrules the Grutter case and says suddenly, you can't use race at all. There will be people on the court who are very upset with that and they will let you know. And if the gay marriage issue comes up later, you could imagine the same could be true there.
Ted Simons: All right, it’s always good to see you. Thank you for joining us, we appreciate it.
Paul Bender: Same here, Ted.