Posted on 01/17/2008 4:42:01 AM PST by radar101
PHOENIX — A federal judge hinted Wednesday that he may give the go-ahead for prosecutors to begin charging companies with violating Arizona's new employer sanctions law — but only in cases where workers were hired this year.
U.S. District Judge Neil Wake considered claims by attorneys for business groups and others that the statute denies employers their constitutionally guaranteed "due process" rights to defend themselves against charges of knowingly hiring people not authorized to work in this country.
That is because the law could be interpreted to say a state judge determines whether a worker is undocumented solely on what is in a federal database. Attorney Lou Moffa Jr. said that denies companies he represents the opportunity to present contrary evidence.
But Wake suggested that's all irrelevant if companies comply with a provision of the law that requires them to check the legal status of all new employees through a different federal database. The law, and the requirement to check, took effect Jan. 1.
Wake said if a company used the E-Verify system, it has no worries at all. If the database says the employee is legally entitled to work in this country, the company has a defense against being prosecuted. And the law says an employer can be found guilty only if prosecutors can show the company knowingly or intentionally hired an undocumented worker.
If Wake rules the law applies only to those hired beginning this year it will be in direct conflict with the intent of the sponsor of the measure. Rep. Russell Pearce, R-Mesa, said he believes the law allows prosecutors to go after any company that has undocumented workers on its payroll this year, no matter when they were hired.
But Wake said he has to rely on the wording of the law and not what legislators may have intended. And that law made it illegal beginning Jan. 1 for a company to "employ" an unauthorized worker.
He said that word could just mean "hire" rather than indicating someone is on the payroll after that date, regardless of the date of hire.
"The word is exquisitely ambiguous," the judge said. And Wake said given the harsh penalties for breaking the law — suspension or revocation of state licenses — he is required to interpret it in a way that allows it to be enforced in the fairest way possible.
At the core of the legal argument is the question of whether the law provides the constitutionally required opportunity for a company charged with violating it to defend itself.
Federal regulations bar employers from using the E-Verify system to check the legal status of existing workers. But a state judge, reviewing charges of illegal hiring against a firm, determines the legality of the worker in question solely through a federal database. Wake said that could leave companies at risk of loss of license for a worker already on the payroll before Jan. 1, someone whose status they had no way to check before. Wake said he hopes to rule on the legality of the law by Feb. 1 but said it may take a bit longer. In the interim, he got promises from lawyers for the various county attorneys that they would not bring charges against any company before March 1.
That will give whichever side loses the lawsuit a chance to file an appeal.
Wake apparently has been less impressed with other arguments by challengers of the law that it is pre-empted by federal statutes.
He specifically noted the state statute lets state judges suspend or revoke any licenses of firms that knowingly or intentionally break the law. And Wake pointed out the federal law that bars states from imposing civil and criminal penalties does contain an exception for licenses.
And not to mention, conspiracy to commit even a misdemeanor is a felony in all 50 states.
Only to someone that graduated at the bottom of his class, judges often get their jobs because they cannot make a living otherwise and other attorneys feel sorry for them.
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