Judicial Watch and Russell Pearce File Lame Lawsuit Against Arizona AG

The right-wing advocacy group Judicial Watch is suing the Arizona Attorney General's Office for public records that it apparently already has.

In a mass email sent out on November 15, Judicial Watch announced that six days before, it had filed suit in Maricopa County Superior Court against Arizona Attorney General Mark Brnovich, accusing the conservative Republican of stonewalling "for nearly two months" a public-records request the Washington, D.C.-based organization submitted on behalf of former state Senate President Russell Pearce, the primary sponsor in 2010 of Arizona's notorious immigration law, Senate Bill 1070.

Judicial Watch's September 20 request sought all communications between the AG's office and — in the words of Judicial Watch's email —"the ACLU and other illegal alien advocacy groups" regarding a settlement in a six-year old lawsuit regarding SB 1070, Valle del Sol v. Whiting.

The settlement, announced September 15, let stand the heart of the law — Section 2b, which requires police officers to check on the immigration status of detainees "when practicable" and when there is reasonable suspicion to believe the detainee is in the country illegally — with the AG issuing an informal opinion offering guidance to local law enforcement on how to enforce the law.

In Judicial Watch's broadside against the AG's office, Judicial Watch president Tom Fitton accuses Brnovich of "thumbing his nose at the rule of law" and of "outsourcing" his office's work to the ACLU, writing, "We have little doubt that this is all about thwarting any illegal immigration enforcement by a Trump administration."

Pearce, who was booted from the state senate in a historic recall election in 2011 and now works in the county treasurer's office, is quoted in the statement as saying that with the settlement, the AG "undermined the rule of law" and was "hiding" his office's communications with "illegal alien advocates" with whom he was "negotiating the meaning of duly enacted laws."

Beneath the hyperbolic rhetoric is a "Donate" button.

Judicial Watch's press release is inaccurate on several fronts. According to internal Attorney General's Office emails, which New Times obtained through a public-records request of its own, the office was preparing to release the records in question when Judicial Watch filed suit.

According to one of these emails, senior litigation counsel Michael Tryon spoke to a Judicial Watch lawyer on November 14. In the email, Tryon recounts the conversation, stating that the Judicial Watch attorney agreed to dismiss the lawsuit and not seek attorneys' fees, considering that the AG was releasing the documents.

The next day, Judicial Watch sent out its vitriolic press release.

Calls from New Times both to Judicial Watch and to the local attorney helping with them with the case have not been returned.

There is one email from Mark Spencer, the former president of Phoenix's police union who now works as the "Southwest projects coordinator" for Judicial Watch in Arizona, to Ryan Anderson, the AG's communications director, which offers an excuse.

Spencer writes that after speaking with Ryan, he reached out to the Judicial Watch attorney in D.C., who told him the press release had gone out before his conversation with the AG's office.

Yet Judicial Watch has not followed up on the press release, which has been regurgitated by other right-wing sites. And so far, the Maricopa County Superior Court docket does not show the lawsuit as having been dismissed.

In fact, judging from the AG's Office's internal emails, there was no effort on behalf of the AG to delay the release of the records. The original request from Judicial Watch on September 20 demanded the documents within ten days. A deputy public-information officer immediately responded, advising Judicial Watch attorney Jim Petersen that because public-records requests are fulfilled in the order they are received, she could not guarantee a ten-day turnaround.

From September 20 till the date of the lawsuit, November 9, there are 51 days. The document the AG produced for Judicial Watch is 572 pages long, and AG's Office emails include discussion between Tryon and John Lopez, the state's solicitor general, as to whether the materials are prohibited from release because they're considered to be "work product" or because they involve settlement negotiations.

Ultimately, on October 26, the AG's office decided to release the requested documents to Judicial Watch. The only holdup was that Tryon and Lopez wanted to draft a letter to accompany the documents. On November 10, Lopez emailed an underling that he'd have the letter ready November 14 — the day Lopez and others at the AG's Office were finally notified of the lawsuit.

Arizona's public-records law states that the custodian of records "shall promptly furnish" copies to any person requesting them. According to Dan Barr, an expert in media and First Amendment law with PerkinsCoie in Phoenix, the Arizona State Legislature purposely left the word "promptly" open to interpretation by the courts on a case-by-case basis.

"It doesn't strike me as a very compelling lawsuit," Barr says of Judicial Watch's complaint. "It would be more compelling at 51 days if it was a one-page piece of paper that they released without any redactions whatsoever."

Barr says different factors play into whether a public body has or has not acted promptly, from the size and sensitivity of the documents to whether they require internal review prior to release.

"Obviously, these people have other public-records requests going on," Barr says. "So it's not like you drop everything and you're looking at one records request in a vacuum.

"Here [the AG's office] produced the documents within two months," he goes on. "Do I wish we all lived in a world where government agencies have to produce stuff within ten days? Sure. But we don't live in that world."

Judicial Watch's contention in its press release that Brnovich somehow caved on the settlement in Valle del Sol v. Whiting and let the ACLU write it, is not borne out by the facts.

The U.S. Supreme Court ruled in 2012 on SB 1070, striking down some parts of the law but leaving Section 2b alone. Justice Anthony Kennedy, who authored the majority's decision in Arizona v. United States, wrote that 2b could not be presumed to be pre-empted by federal law, because it was possible that it could be enforced in a way that would be consistent with federal law.

Writes Kennedy:

It is not clear at this stage and on this record that §2(B), in practice, will require state officers to delay the release of detainees for no reason other than to verify their immigration status. This would raise constitutional concerns. And it would disrupt the federal framework to put state officers in the position of holding aliens in custody for possible unlawful presence without federal direction and supervision. But §2(B) could be read to avoid these concerns. If the law only requires state officers to conduct a status check during the course of an authorized, lawful detention or after a detainee has been released, the provision would likely survive preemption — at least absent some showing that it has other consequences that are adverse to federal law and its objectives. 

The "guidance" the Arizona AG gives in his informal opinion reflects the U.S. Supreme Court's ruling on 1070, as well the rulings of other federal courts. At one point it states, "An officer or jail official shall not prolong an arrest or detention for an immigration inquiry, including to request or obtain verification of immigration status." As justification, the guidance cites the above passage.

And what to make of Tom Fitton's charge that Brnovich "outsourced his work to the ACLU and other illegal alien advocates"?

If you read through the 572 pages of emails back and forth between the AG's office on one side and the ACLU, the Mexican American Legal Defense and Educational Fund (MALDEF), and the National Immigration Law Center (NILC) on the other, it's pretty clear that the AG's office is in control of the situation. For instance, during the give and take, Solicitor General Lopez clarifies that the policy will be "non-binding on state and local law enforcement," that it will be issued by the AG's office, and that it will "merely represent non-binding guidance."

Several e-mails note that the starting point for the opinion is a document that was originally intended to be a policy manual for the Arizona Department of Public Safety. Lopez informs the other side that the model policy is "the baseline piece of any settlement." The ACLU, NILC, and MALDEF make suggestions throughout, and even offer a preamble, but the basic document is supplied by the AG's office.

At one point, the ACLU objects to the use of the adjective "informal" to describe the opinion and asks that it be taken out. But the word remains, albeit with a footnote stating that the analysis has the same "persuasive weight" as a formal AG's opinion.

The AG's opinion, published on the office's website, was one part of the agreement that ended Valle del Sol v. Whiting. The parties also agreed to a permanent injunction on a section of SB 1070 that would have allowed a police officer to impound a car if the driver was transporting or attempting to harbor an illegal alien. But the harboring/transporting provision already had been enjoined by the courts, rendering the impound provision moot.

Additionally, both parties agreed not to appeal the summary judgement issued by U.S. District Court Judge Susan R. Bolton in 2015, which resulted in a win for the ACLU and the other organizations on a provision regarding day laborers but otherwise favored the state. Both sides could have appealed the decision to the Ninth U.S. Circuit Court of Appeals but found it in their interest not to do so, mainly because the ACLU likely would lose on 2b, given the 2012 SCOTUS decision, and the Arizona Attorney General probably would lose on the day-laborer provision, because of the Ninth Circuit's ruling in a related case.

Finally, because Bolton ruled in favor of the ACLU, MALDEF, and NILC on the provision of 1070 that would have prevented day laborers from seeking or accepting work on the streets from passing vehicles, those three organizations were due attorneys' fees under under federal civil-rights law.

The Judicial Watch press release makes this situation sound like something unusual. It's not, and Judicial Watch knows this because it is awarded attorneys' fees all the time in federal court. Just Google "Judicial Watch" and "attorneys' fees" for examples.

Though the AG's office initially makes an offer of $600,000 to the three organizations regarding legal fees, both sides settle on $1.4 million. The asking price for the three organizations is not mentioned in the documents provided to Judicial Watch, but sources tell New Times that the asking price from MALDEF, ACLU, and NILC initially was more than twice the settlement amount.

In other words, the settlement in Valle del Sol v. Whiting saved the state a lot of money, because these organizations mention in their communications to the AG's office that they may continue to fight for their fees in court if the two sides cannot agree on an amount. Hypothetically, the groups might have gotten more money, considering the length of the litigation and the number of working hours involved.

Given these facts, why is Judicial Watch making such a big deal out of the settlement in Valle del Sol v. Whiting?

There are a couple of reasons. One is that Judicial Watch has always been close to Pearce, who despises Brnovich — mainly because in 2014, Brnovich was the first major GOP politician to denounce remarks Pearce made on his now-defunct radio show, that women on public assistance should be sterilized.

Those remarks were roundly condemned by other GOP-ers at the time, and as a result, Pearce was forced to resign his position as first vice chair of the Arizona Republican Party. So maybe the Judicial Watch suit is a bit of payback on Pearce's part.

As far as Judicial Watch goes, well, according to an October report in the New York Times, the organization has banked a good deal of resources in drowning Hillary Clinton in litigation. The article reported that Judicial Watch was the plaintiff in 20 lawsuits involving Clinton, and even after the election, Judicial Watch continues to release documents and emails related to Clinton's time as secretary of state.

But given that Clinton lost to Trump and essentially is retired from politics, who cares what public records Judicial Watch digs up at this point? Without Clinton, the organization lacks a powerful foil to use for fundraising.

Is Judicial Watch casting about for new targets? Perhaps, though the organization seems to have shot itself in the foot while aiming at Brnovich, a Goldwater Institute Republican.

Asked for a comment, Brnovich spokesman Ryan Anderson told New Times that maybe once Judicial Watch reads the doorstop of documents it has received from the AG's office, the group might better understand the settlement.

"Sometimes groups are more focused on headlines and fundraising than actual results," Anderson observed.

Read the Attorney General's Office's emails regarding Judicial Watch's public-records request:
AG's Office E-mails Concerning Judicial Watch's Public Records Request

Read Judicial Watch's lawsuit against Arizona Attorney General Mark Brnovich:
Judicial Watch's Lame Lawsuit Against the Arizona AG

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Stephen is a former staff writer and columnist at Phoenix New Times.
Contact: Stephen Lemons