Lawmaker will try again to give prosecutors civil subpoena power to Arizona sanctions law

Ariz. sanctions law supporters seek subpoena power

PHOENIX — For the second straight year, advocates for tougher immigration enforcement plan to return to the Arizona Legislature in the coming days to push for greater power for prosecutors who investigate employers who knowingly hire illegal immigrants.

They plan to seek civil subpoena power for prosecutors so they can force suspected violators of Arizona’s employer sanctions law to turn over records and give testimony. Prosecutors in Maricopa County say several businesses have cited privacy concerns when refusing to voluntarily hand over employment records at the beginning of investigations.

“How many other violators are out there that we don’t know about because we are unable to fully investigate?” asked Maricopa County Attorney Andrew Thomas, whose office has examined the most potential employer sanctions cases in the state.

Proponents say prosecutors need civil subpoenas to hold violators accountable and that the authority they plan to seek is similar to the powers of state boards and agencies that regulate business licenses. Business groups and other opponents say such a move would give prosecutors too much power and could lead to abuses.

“The case has not been made that the law should be expanded to include subpoena power,” said Glenn Hamer, president and chief executive of the Arizona Chamber of Commerce and Industry.

The law, which carries license suspensions and revocations for those who knowingly make illegal hires, is intended to lessen the economic incentive for immigrants to sneak into the country by holding employers accountable for hiring those who sneak across the border. Supporters say the law was needed because the federal government hasn’t adequately enforced a similar federal law.

The state law has prompted or contributed to an unknown number of illegal immigrants leaving Arizona for their home countries or other American states. Authorities across Arizona have examined several dozen complaints of employer sanctions violations. But in the two years since the law took effect, only two civil cases have been filed in court against employers. Both were in Maricopa County, where prosecutors say they have two dozen potential employer sanctions cases.

A now-defunct Glendale amusement park that has acknowledged violating the law in 2008 settled its case in mid-December and will have its business license suspended for 10 days if it reopens. Prosecutors also filed a civil employers sanctions case against a custom furniture maker in Scottsdale.

The two top difficulties cited by prosecutors in building employer sanctions cases are their lack of civil subpoena power and a requirement that they prove that a given employer knew he or she was hiring an illegal immigrant.

Republican Sen. Russell Pearce of Mesa, who led the effort to create the law and tried unsuccessfully last year to put civil subpoena power in the law, scoffed at suggestions that giving prosecutors more power would lead to abuses.

“It’s not far-reaching. The truth is that there are folks who really don’t want any of the laws enforced,” said Pearce, who plans to file a version of the proposal for the legislative session that begins Jan. 11.

The subpoena bill filed last year by Pearce would have allowed prosecutors to issue subpoenas that require witnesses to testify and businesses to hand over documents. That bill, proposed at a time when lawmakers were focused on Arizona’s budget crisis, never got a committee hearing.

Pearce said prosecutors would still have to present evidence of violations to a judge before getting civil subpoenas.

Julie Pace, a lawyer representing business groups who have unsuccessfully tried to overturn the law, disputed the claim by prosecutors that employers weren’t handing over records.

Pace also said prosecutors can get access to the records once they file a civil case against an employer and believes Pearce wants to give access to the records before a case is filed. “It’s too much concentrated power,” Pace said.