House advances measure to deny illegal immigrants punitive damages - East Valley Tribune: Immigration

House advances measure to deny illegal immigrants punitive damages

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Posted: Wednesday, February 16, 2011 7:24 pm | Updated: 3:05 pm, Thu Feb 17, 2011.

A House panel on Wednesday approved legislation designed to benefit one man: Cochise rancher Roger Barnett.

The measure would spell out that anyone who is in this country illegally cannot collect punitive damages even after winning a lawsuit.

Voters already approved a constitutional amendment doing precisely that in 2006. But that came nearly two years too late for Barnett who was sued following a 2004 incident when 16 illegal immigrants said the rancher illegally imprisoned them.

HB 2191 makes that ballot measure retroactive to the beginning of 2004.

If it survives the legislative process -- and if it is found legal -- the change could save Barnett $60,000, the amount of punitive damages four of the plaintiffs were awarded two years ago. Rep. Jim Weiers, R-Phoenix, said that's exactly what he has in mind.

Jaime Ferrant of the Border Action Network said the measure "sets a dangerous precedent.''

"This bill would establish that a certain person, or certain persons, are so important that we must make sure that they get their own set of laws to protect them,'' Ferrant said.

"Mr. Barnett had his day in court,'' Ferrant continued. "There he brought witnesses, provided testimony and was sentenced.''

Weiers was undeterred.

He said nearly 75 percent of those voting in 2006 approved the constitutional change. Weiers said that is a clear indication of the will of the people.

And he said that the amendment, referred to the ballot by the Legislature, was a direct reaction to the fact that lawmakers knew Barnett was being sued.

"We weren't smart enough at that point to understand that there was going to be a time lapse,'' Weiers said, making Barnett unable to take advantage of the change.

Weiers also said the restriction makes sense.

"How incredibly silly that you've got people breaking the law, trespassing, doing this and that on personal property, and then you're handed punitive damage awards,'' he said.

Tucson attorney David Hardy, who represents Barnett, said he and his client quickly realized that the 2006 change in the constitution was "no use to us.'' But Hardy said it didn't have to be that way.

As approved, the constitutional provision says that someone who is present in Arizona in violation of federal immigration laws is ineligible to collect punitive damages. Hardy said a better wording -- one that would have helped his client -- would have denied punitive damages to anyone who was in this country illegally at the time of the incident, not when the lawsuit was filed or the verdict returned.

Rep. Debbie McCune Davis, D-Phoenix, said she's not even sure this measure will help Barnett, as that $60,000 verdict came in a federal court lawsuit. But federal judges, when considering issues like this, generally look to the laws of the state where the incident occurred to determine the standard for awarding damages.

The three Democrats on the panel voted against the legislation. Rep. Catherine Miranda, D-Phoenix, said it sends the "wrong message.''

Weiers said he believes the measure will withstand legal challenges, even though it effectively seeks to retroactively change the law before voters approved the necessary constitutional amendment. He also rejected Ferrant's contention that the plan illegally alters something that voters approved.

The committee action comes two weeks after the 9th Circuit Court of Appeals refused to overturn the verdict against Barnett. The judges rejected arguments that the trial judge should have told jurors they could consider his claim of self defense.

Hardy said he will be filing legal papers today asking the court to reconsider its ruling.

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