VOL. 18 ISSUE NO. 26   |   JUNE 30 – JULY 6, 2010


Mexico redefines chutzpah by filing amicus brief against SB 1070

Brewer seeks order addressing whether amici briefs may be filed and considered by the court, and, if so, the procedures to be followed
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PHOENIX – In Yiddish, the term chutzpah means brazen nerve, audacity, gall, which is what some people used to describe Mexico’s actions last week when it filed an amicus curiae (friend of the court) brief in the case docketed as Friendly House v. Michael B. Whiting, expressing “its grave concerns over Arizona Senate Bill 1070 … and to underscore the importance of declaring SB 1070 unconstitutional in its entirety.”

Mexico says it “seeks to ensure that its bilateral diplomatic relations with the United States of America are transparent, consistent and reliable, and not frustrated by individual U.S. states’ action, in particular the Arizona defendants herein.”

It also claims that, under Article 5(a) of the Vienna Convention on Consular Relations, Mexico has a right to protect the interests of its nationals within the limits of international law.

Mexico wants to assure that its citizens, present in the United States, are “accorded the human and civil rights granted under the U.S. Constitution; having therefore a substantial and compelling interest in protecting its citizens and ensuring that their ethnicity is not used as a basis for state-sanctioned acts of discrimination, including the inequitable application of civil and criminal laws and state’s law enforcement powers.”

It appears Mexican officials haven’t read the law, as it claims SB 1070 will create an imminent threat of state-sanctioned bias that will lead to disparate treatment among Mexican nationals in the United States.

Additionally, Mexico asserts SB 1070 will cause disparate treatment of Mexican citizens as compared to U.S. citizens, which it says will take place in the form of racial profiling and will cause detentions of Mexican citizens “without regard to whether they have taken any actions or exhibited any behavior indicating they are guilty of a crime or ‘unlawfully present’ in the U.S.”

Mexico also claims Arizona, through SB 1070, imposes its own “independent and conflicting requirements” despite specific provisions of federal immigration law that permit Arizona to assist with the enforcement of immigration law after receiving federal approval and appropriate training to ensure constitutionality.

To bolster its point, the brief cites Hines v. Davidowitz, a 1941 U.S. Supreme Court case that originated in the U.S. District Court for the Middle District of Pennsylvania over an alien registration law that conflicted with federal law, which are also not the laws currently in effect.

SB 1070, on the other hand mimics, verbatim, federal law with added language to ensure against racial profiling, even though federal law permits profiling to a certain degree when dealing with illegal aliens.

Mexico claims it is greatly concerned over the repercussions SB 1070 could have on trade and commercial relations with the United States, noting Mexico is the third largest trading partner of the United States and the second largest purchaser of U.S. exports.

While Mexico worries about the passage of SB 1070 posing a threat to the “mutually beneficial trade between the two nations,” supporters of SB 1070, as blog after blog will corroborate, say Mexico should be more worried about the threat it’s posing by filing an amicus brief and interfering with our country’s affairs.

However, further on into the brief, Mexico makes clear its ulterior motives, by stating, “With over 11 million nationals in the United States, Mexico has a significant interest in U.S. comprehensive immigration reform.”

Although it doesn’t say so, the over 11 million nationals, to which Mexico, the largest contributor of illegal aliens to this country, refers, is the number of Mexicans living in the United States illegally.

The following day, Governor Jan Brewer, an intervenor defendant, along with the state of Arizona, filed a motion for an order limiting amici curiae briefing stating, “Since its enactment, the ‘Support Our Law and Safe Neighborhoods Act,’ as amended (SB 1070), has drawn considerable local and national attention. Even at this early stage of the litigation, more than ten amici curiae have filed motions in this case – with new motions for leave to file amicus briefs coming in daily.”

Brewer is seeking a procedural order from the court “addressing whether amici briefs may be filed and considered by the court and, if so, the procedures to be followed.”

Brewer noted the court may exercise discretion to limit amici curiae briefing and cited case law regarding their purpose: “Historically, amicus curiae is an impartial individual who suggests the interpretation and status of the law, gives information concerning it, and advises the court in order that justice may be done, rather than to advocate a point of view so that the cause may be won by one party or another.”

Because amici briefs are not anticipated at the district court level, Brewer pointed to Federal Rule of Appeal 29, which states an “amicus curiae may file a brief only by leave of the court or if the brief states that all parties have consented to its filing.”

“All of the parties have not consented,” said Brewer, adding, “Therefore, requesting leave of this court is the only proper method for obtaining amicus curiae participation.”

Commentary accompanying the Ninth Circuit Court of Appeals local rule on amici curiae briefs states:

“The filing of multiple amici curiae briefs raising the same points in support of one party is disfavored. Prospective amici are encouraged to file a joint brief. Movants are reminded that the court will review the amicus curiae brief in conjunction with the briefs submitted by the parties, so that amici briefs should not repeat arguments or factual statements made by the parties.”

Supreme Court rule 37(a) advises that an amicus brief that brings to the court’s attention matters not otherwise raised by the parties may be helpful, but a brief “that does not serve this purpose burdens the court, and its filing is not favored.”

Brewer asked that the court preclude amici curiae briefs either in support of or in opposition to the motions to dismiss, which she says raise discrete legal issues between the parties that will not be assisted by amici filings.

She also suggested, should the case survive dismissal, that briefs be confined to the merits for declaratory and injunctive relief, be limited in length, contain no appendix or attachment, that an amicus curiae not file a reply brief and other rules.

In a separate filing Brewer moved for a stay of the time to respond to the motions for leave to file amici curiae briefs until after the court has determined whether such briefs will be permitted at all.

As of press time, the court had not yet ruled on the state’s motions.

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