Thursday, October 16, 2014
Yesterday, in Lopez-Valenzuela v. Arpaio, the U.S. Court of Appeals for the Ninth Circuit sitting en banc reversed the district court’s summary judgment in a class action challenging Proposition 100, a ballot measure passed by Arizona voters that amended the state constitution to preclude bail for certain felony offenses if the person charged has entered or remained in the United States unlawfully and if the proof is evident or the presumption great as to the charge.
Judge Fisher wrote the opinion for the court, joined by Chief Judge Kozinski, and Judges Thomas, McKeown, Berzpon, Bybee, M. Smith and Nguyen joined in full, with Judge Watford joining all but one part of the opinion. The court held that Proposition 1 00, a nd its implementing laws and rules, violated substantive due process. Apply ing the heightened substantive due process scrutiny set forth in U , 481 U.S. 739, 746-48 (1987), the en banc court held that the Proposition 100 laws do not a ddress an established “particularly acute problem ,” are not limited to “a specific category of extremely serious offenses,” and do not afford the individualized determination of flight risk or dangerousness that Salerno deemed essential. Rather, the laws represent a scattershot attempt at addressing flight risk and are not narrowly tailored to serve a compelling interest. In addition, the en banc court held that the challenged laws are excessive in relation to the state’s legitimate interest in assuring arrestees’ presence for trial.
Concurring , Judge Nguyen agreed with the majority that Proposition 100 violates substantive due process. She wrote separately to address the record of legislative intent, which she believed demonstrates that Proposition 100 was intentionally drafted to punish undocumented immigrants for their “illegal” status, e ven if they pose no flight risk or danger to the community.
Dissenting, Judge Tallman, joined by Judg e O’Scannlain, stated that Proposition 100 is not ex cessive in relation to Arizona’s compelling regulatory interest in ensuring that undocumented immigrants who commit serious felony offenses stand trial.
Dissenting, Judg e O’Scannlain stated that the question of whether deny ing bail to undocumented immigrants based on flight risk is unconstitutionally excessive should have been analyzed under the Eighth Amendment’s Excessive Bail Clause. J u dg e O’Scannlain tentatively concluded that the Eighth Amendment does not restrict legislative discretion to declare certain crimes nonbailable.
Attorneys for the American Civil Liberties Union Foundation, Immigrants’ Rights Project and the ACLU Foundation of Arizona, hand;led the case for the plaintiffs-appellants.