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Utah immigration law could hinge on fate of Arizona's

Published April 27, 2012 2:16 pm

Supreme Court • State officials are optimistic Utah's law will stand.
This is an archived article that was published on sltrib.com in 2012, and information in the article may be outdated. It is provided only for personal research purposes and may not be reprinted.

So now the two sides wait while eight judges sort through the immigration time bomb known simply known as SB1070.

Utah Attorney General Mark Shurtleff read the transcripts of Wednesday's U.S. Supreme Court hearing on Arizona's enforcement-only law and said, based on the questioning from the justices, it was difficult to imagine how they wouldn't uphold provisions of SB1070.

By doing that, he said, it would seem all but certain Utah's version — HB497 — would also stand. "It seems it was a pretty harsh day for the federal government," Shurtleff said.

But nothing is certain until as late as June, when the Supreme Court issues a decision on the highly charged provision that turned Arizona into the bull's-eye of the immigration debate. That law led to a domino-effect among several other states — including Utah — to pass similar enforcement-only measures aimed at illegal immigrants.

But Arizona's law differed from Utah's in four key ways — though all of SB1070's provisions were in effect when Rep. Stephen Sandstrom, R-Provo, first made his proposal public in 2010. But Sandstrom, who met with key critics of the bill on a statewide tour pitching his measure's goals, allowed for HB497 to be altered.

Sandstrom eventually said he didn't want to do what Arizona did as pressure mounted from the business community, leaders in Utah's Republican Party and religious groups to avoid passing a copycat of SB1070. "For example, I don't think it's practical to check status on every single person on, say, a traffic stop,' Sandstrom said. "That's one of the things we negotiated on that bill that I think turned out better than the original language."

So instead of requiring local police to check legal status of people during a lawful stop, Sandstrom's version only required it be checked on a felony or Class A misdemeanor stop. On other misdemeanors, the check is left to the officer's discretion.

Instead of requiring people to have papers on them verifying their right to be in the country as Arizona's law does, Sandstrom's version required papers only when a suspect is being questioned in a crime.

And, there is no provision to allow people to sue local police for not enforcing HB497.

Despite those differences, HB497 had a federal court hearing that lasted more than six hours in February as attorneys with the National Immigration Law Center (NILC) and the American Civil Liberties Union argued the Utah law would lead to racial profiling and violations of the Fourth Amendment — warrantless search and seizure along with unlawful detentions.

U.S. District Court Judge Clark Waddoups delayed a decision in the Utah case until the Supreme Court rules on SB1070.

Karen Tumlin, managing attorney with NILC, said HB497 would be unconstitutional because it would require a person to wait while local police verified legal status — even after the original reason for a stop had been resolved by either issuing a citation or not finding enough evidence to detain the person. That, she said, would amount to a warrantless arrest.

"We see concern with the police-check provision on SB1070 and HB497, which would lead to unlawful detention," she said.

But even if the Supreme Court upholds SB1070, both that law and Utah's law will still be subject to court hearings as lawsuits filed by civil liberties groups would then go forward.

If the court rules in favor of Arizona and Waddoups believes HB497 should be upheld, the law would take effect despite ongoing civil litigation. Tumlin could attempt to file a temporary restraining order again to block it taking effect.

Gov. Gary Herbert, a named defendant in the HB497 lawsuit, said he was confident it would stand as law. "I've always believed that the Utah immigration law ... is a better law than Arizona's so I just think it was stronger," Herbert said. "If they uphold the Arizona law, I expect they will uphold the Utah law."

Robert Gehrke contributed to this report