Saying they were protecting the legislative process, the House and Senate voted along party lines Thursday to hire a lawyer to help them fight subpoenas over the state's controversial 2010 immigration law.
The legislation sets aside up to $100,000 to contest a request by the American Civil Liberties Union for the personal emails and other correspondence between some current and former lawmakers and those who might have helped them craft or line up votes for SB 1070. The subpoenas are fairly broad, asking for any documents that contain one or more of certain selected words, ranging from “Mexican,” “Hispanic” and “alien” to “illegals” or “wetback.”
House Speaker Andy Tobin called the subpoenas “clear harassment.”
This special legislation, which now goes to Gov. Jan Brewer, is necessary because of the nature of the lawsuit. It seeks a federal court ruling that a key provision of SB 1070 dealing with requiring some individuals to produce documents to police is unconstitutional because the law is racially motivated.
The Attorney General's Office would have represented lawmakers if they were named as defendants. But it is the state itself as the defendant, with the lawmakers — or at least their communications — essentially serving as witnesses for the plaintiffs. There is no authorization for a state-provided defense to fight the subpoenas.
Rep. John Kavanagh, R-Fountain Hills, called the subpoenas “a massive fishing expedition'' and a "ridiculous witch hunt for stupid documents.”
He pointed out that one of the words lawmakers have been told to look for is “English.” Kavanagh said that would even require him to produce the user manual for his new plasma screen TV in his office.
But those involved in challenging the law say the subpoenas serve a valid purpose.
A key contention of foes is that SB 1070 was not a legitimate attempt by Arizona to deal with the problem of illegal immigration but instead was motivated by racial bias. Attorney Victor Viramontes of the Mexican American Legal Defense and Educational Fund said that would allow a judge to declare the law invalid.
To prove that, challengers need actual evidence, something that could be shown by what the lawmakers were writing to others and the communications they were getting from those helping to line up the votes for the law.
Justin Cox, an ACLU attorney, said the ideal situation would be to file a public records request for any emails in lawmakers' state-provided legislative accounts. But Cox said it appears that the state has not archived them, leaving other communications as the only method of proving their claim.
Aside from seeking lawmakers' personal emails, challengers also hope to fill in the gaps of missing official emails by serving subpoenas on others who have communicated with legislators on the issue.