Maricopa Co., Arizona v. Angel Valenzuela, 135 S.Ct. 428 (2014)

The 9th Circuit has stymied every attempt by the State of Arizona to identify and return illegal aliens who illegally entered this country.  If the federal government, which insists on unqualified immigration jurisdiction, would adopt Arizona statutes the immigrant issue would be resolved.  In Maricopa County 8 years ago the citizens enacted a statute by referendum denying bail for persons arrested and detained for determination of legal status.  Obviously an illegal alien is likely to flee after arrest and incarceration if bail is unnecessary.  Not according to a 9th Circuit panel denying enforcement of the Arizona statute on an en banc hearing reversing the three judge panel that had enforced the law; 770 F.3d 772 (2014).

The naiveté of this court is incomparable.  Does anyone think a person in detention will not flee as soon as he is released because of his illegal status in the country?  The 9th Circuit court, using the old worn out, all purpose policy excuse of the Due Process Clause, invalidated the statute. The County sought a stay of the order but the Supreme Court denied  the petition. Justice Thomas commented:.

Statement of Justice THOMAS, with whom Justice SCALIA joins, respecting the denial of the application for a stay.

“Petitioner [Maricopa Co.] asks us to stay a judgment of the United States Court Appeals for the Ninth Circuit holding unconstitutional an amendment to the Arizona Constitution that the State’s citizens approved overwhelmingly in a referendum eight years ago. I join my colleagues in denying this application only because there appears to be no “reasonable probability that four Justices will consider the issue sufficiently meritorious to grant certiorari.” Hollingsworth v. Perry, 558 U.S. 183, 190, 130 S.Ct. 705, 175 L.Ed.2d 657 (2010) (per curiam). That is unfortunate.

We have recognized a strong presumption in favor of granting writs of certiorari to review decisions of lower courts holding federal statutes unconstitutional. See United States v. Bajakajian, 524 U.S. 321, 327, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); United States v. Gainey, 380 U.S. 63, 65, 85 S.Ct. 754, 13 L.Ed.2d 658 (1965). States deserve no less consideration. See Janklow v. Planned Parenthood, Sioux Falls Clinic, 517 U.S. 1174, 1177, 116 S.Ct. 1582, 134 L.Ed.2d 679 (1996) (SCALIA, J., dissenting from denial of certiorari: (“This decision is questionable enough that we should, since the invalidation of state law is at issue, accord review”). Indeed, we often review decision striking down state laws, even in the absence of a disagreement among lower courts. See, e.g., Hollingsworth v. Perry, 570 U.S. ––––, 133 S.Ct. 2652, 186 L.Ed.2d 768 (2013); Cook v. Gralike, 531 U.S. 510, 121 S.Ct. 1029, 149 L.Ed.2d 44 (2001); Saenz v. Roe, 526 U.S. 489, 119 S.Ct. 1518, 143 L.Ed.2d 689 (1999); Renne v. Geary, 501 U.S. 312, 111 S.Ct. 2331, 115 L.Ed.2d 288 (1991); Massachusetts v. Oakes, 491 U.S. 576, 109 S.Ct. 2633, 105 L.Ed.2d 493 (1989). But for reasons that escape me, we have not done so with any consistency, especially in recent months. See, e.g., Herbert v. Kitchen, ––– U.S. ––––, 135 S.Ct. 265, ––– L.Ed.2d –––– (2014); Smith v. Bishop, ––– U.S. ––––, 135 S.Ct. 271, ––– L.Ed.2d –––– (2014); Rainey v. Bostic, ––– U.S. ––––, 135 S.Ct. 286, ––– L.Ed.2d –––– (2014); Walker v. Wolf, ––– U.S. ––––, 135 S.Ct. 316, ––– L.Ed.2d –––– (2014); see also Otter v. Latta, ––– U.S. ––––, 135 S.Ct. 345, –––L.Ed.2d –––– (2014) (denying a stay); Parnell v. Hamby, ––– U.S. ––––, 135 S.Ct. 399, ––– L.Ed.2d –––– (2014) (same). At the very least, we owe the people of Arizona the respect of our review before we let stand a decision facially invalidating a state constitutional amendment. Of course, the Court has yet to act on a petition for writ of certiorari in this matter, and I hope my prediction about whether that petition will be granted proves wrong. Our recent practice, however, gives me little reason to be optimistic.”

Justice Thomas is correct.  The referendum was enacted by Arizona voters contingent on state sovereignty.  The Supreme Court may understandably agree the federal government exercises jurisdiction on who may enter the country, but once a person is inside country borders state sovereignty exists, and the  people decide requirements for residence.


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  • Scalia, Hon. Antonin Gregory


Taylor v. Cate, 772 F.3d 842 (9th Cir.2014)

Several judges on the 9th Circuit who have never tried a criminal case apparently are completely unaware of the cost and injustice of some of their opinions. The author of Taylor is in that group.

Taylor was convicted in state court of shooting and killing a store clerk in a two-man robbery.  The prosecutor could not establish which of the two men did the actual shooting and informed the jury the non shooter was an aider and abettor and as guilty as the principle.  The jury found Taylor was the shooter, and the court sentenced him as the principle.

Somehow, the DA and police subsequently discovered Taylor was not the shooter and the jury had made a mistake.  This commendable prosecutorial investigation was administratively opened and eventually the prosecutor and trial judge agreed to a reduced sentence. Taylor filed this procedure for review in the California Court of Appeal on grounds of erroneous sentencing, and on denial by the court he sought review in the California Supreme Court  The Supreme Court in its order referred only to resentencing, not the grounds Taylor alleged as “not guilty” as a principle. Remanded to the Court of Appeal.

The California Court of Appeal on remand affirmed the judgment of the trial court; the California Supreme Court denied review; the federal magistrate denied the petition for habeas corpus in district court.  The 9th Circuit panel granted the petition in an incomprehensible opinion.  When 9th Circuit judges want to reach their ideological opinions, they find their way and always for the defendant.  Taylor v. Cate is deja vu all over again.

According to the 9th Circuit majority panel, the California Supreme Court order only applied to resentencing, not Taylor’s claim on the merits that the jury had not found him guilty as an aider and abettor, avoiding AEDPA, and on remand the California Court of Appeal held only the resentencing was approved. Now the panel could review de novo.

What better and fairer resolution of sentence reduction could be found anywhere except in the 9th Circuit?  The panel ruled the jury had never convicted Taylor as an aider and abettor and he must be retried.  In the meantime, the other robber was found not guilty. This case was tried in 1987 and now both men are free unless the prosecutor can find witnesses to retry Taylor as an aider and abettor. He would be sentenced, if found guilty, to the same sentence the DA recommended and the trial court approved.The defendant was found guilty as a principle but the sentence is higher than for an aider and abettor.  Both are treated equally for purposes of conviction, and Taylor should be sentenced as an aider and abettor. Which the trial court did.

The majority panel writes that the sentencing error is not harmless and deprives the defendant of a trial as an aider and abettor under the Sixth Amendment and Due Process Clause.  The author of the panel cited a 9th Circuit case reversed by the Supreme Court in support of her decision.

The dissent seeks an equitable decision.  If the DA cannot re try this 1987 case because witnesses cannot be found, both defendants go free.  What an injustice. The trial court understood.  The DA was oriented to justice in agreeing to a reduced sentence.  All the California courts and the federal court agreed. En banc time, and if denied, petition for cert. alleging another 9th Circuit error to add to their record.