Republican legislative leaders are moving to use taxpayer funds to pay the legal fees of current and former lawmakers whose personal emails have been subpoenaed in the ongoing legal fight over a 2010 immigration law.
Senate President Andy Biggs said the groups challenging SB 1070 are on a “fishing expedition” in an attempt to prove the law was motivated by racial hatred.
But Biggs, who is an attorney, said just because the Mexican American Legal Defense and Educational Fund wants the records does not mean it is are entitled to them. He called the subpoenas “pure harassment.”
Biggs said it's unfair to make those subpoenaed take money out of their own pockets, particularly as the issue relates to something they did as legislators.
At this point the proposal is to spend $100,000 to fight the subpoenas.
SB 1070 was designed to provide police more power to detain and question those suspected of being in this country illegally. Proponents, led by former state Sen. Russell Pearce, R-Mesa, said the failure of the federal government to fight illegal immigration forced Arizona to do what it can.
Some sections of the law already have been declared illegal by federal courts, but the U.S. Supreme Court refused to void a section which requires police to question people they have stopped about their immigration status if they have reason to believe they are in this country illegally.
The justices, however, left the door open for future challenges based on new evidence.
Challengers are now hoping to prove that SB 1070 has less to do with illegal immigration and more with discrimination. Subpoenas have specifically requested emails with certain words like “alien,” “illegals,” “Mexican,” “wetback,” and “undocumented.”
Victor Viramontes, senior counsel for MALDEF, said the comments legislators were making around the time SB 1070 was adopted are relevant — no matter what the forum.
“Pearce, for example, was using his personal email to make comments about Latinos in reference to 1070 and in reference to Latinos generally,” he said.
Senate Majority Whip Adam Driggs said the current and former lawmakers should not simply turn over their emails.
“Just because somebody asks for something doesn't mean they have the legal right to it,” he said. “That's why you need an attorney to determine if this is a lawful subpoena or not or if this is just an entity that's harassing you and making you go through everything you have going back 10 years.”
Driggs said there's a particular concern for those who are not currently in the House or Senate — and do not have the benefit of in-house legal counsel.
“Why should these former legislators go out of pocket to defend against something that happened while they were serving in their elected official capacity?” he asked.
Biggs said it's even more unfair than that. He said some of those whose emails have been subpoenaed were not even in the Legislature when SB 1070 was approved.
He said no the taxpayer-provided legal help won't fight every subpoena.
For example, he said taxpayers won't fight to protect emails from political campaign committees. But Biggs, who did not get a subpoena, said many lawmakers send work-related emails from their personal accounts.
“We have an obligation to protect the institution,” the Senate president said.
Driggs said the subpoenas are overly broad. For example, he said the subpoenas even include requests for any emails with the word “English.”
But Viramontes said the request is justified.
“Language is so closely related to discrimination against Latinos,” he said.
Driggs also said he believes the challengers are just grasping at straws in their attempt to kill the law.
“I seriously doubt that any of that stuff exists,” he said of emails showing some sort of racial motive for the law. To the extent those trying to overturn it are looking for Pearce's motivation, Driggs said it doesn't take a subpoena.
“Everyone's already seen all of Russell's chain emails,” he said. Pearce had a habit of forwarding not only his own thoughts on immigration, but anything else sent to him, to everyone on his distribution list.
Viramontes would not comment on the propriety of using public funds to try to shield the personal emails of the lawmakers. But he said the expense should not be necessary.
“The Legislature has spent an inordinate amount of money defending against an unconstitutional statute,” he said.
“This is what happens when you choose to pass statutes that don't respect people's constitutional rights,” Viramontes continued. “You have to pay to defend that.”