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ACLU of Utah Reporter In this Issue: What happens in Arizona Stops in Arizona
SB 1070 was signed into law on April 23, 2010, by Arizona governor Jan Brewer and requires police officers in Arizona to demand papers proving citizenship or immigration status from people whom they stop, based only on some undefined “reasonable suspicion” that they are in the country unlawfully. But in America, everyone is supposed to be presumed innocent. SB 1070 turns the presumption of innocence on its head. Because in most cases it is hard to conceive of any legitimate way law enforcement could develop a suspicion that someone is here unlawfully, this law clearly invites racial profiling by officers who are likely to rely on the way people look in forming any “suspicion” that they are not in this country legally. Under this law, people who look “foreign” are more likely to be stopped for minor infractions – like having a broken taillight, jaywalking, or having an overgrown lawn – and then asked for their papers if police believe, just by looking at them, that they could be in the country unlawfully. That means that U.S. citizens and non-citizens alike will be required to carry papers on them at all times. These tactics are the hallmarks of a “police state,” more often associated with totalitarian regimes than with the Democratic Republic we are supposed to be. What is the ACLU doing about the law? How does the law cause racial profiling and harm the community? Using local police officers who are untrained in the complexities and proper enforcement of federal immigration law is a recipe for racial profiling, particularly in Arizona. For three years, Maricopa County Sheriff Joe Arpaio has deployed hundreds of deputies and volunteer groups to target Latino neighborhoods, rounding up people on the streets, questioning and detaining people driving through traffic stops and the like, including U.S. citizens and lawful residents, based on presumptions that they may be unlawfully present in the United States. Two-thirds of Arizonans already live in Maricopa County; this law will require that all police officers in the state act like Arpaio’s deputies. Finally, as many top law enforcement officials have already acknowledged, this law will significantly harm the public trust that law enforcement officials need in order to protect the people of Arizona, and will alienate police officers from the communities they serve. The law will force police officers to devote scarce resources to investigating false threats rather than solving serious crimes. SB 1070 threatens to transform Arizona into a police state where all Latino residents, and others who look or sound foreign, are treated like potential criminal suspects. How might this law impact Utahns? Frequently asked questions about the Arizona Law (PDF) >> ACLU Seeks to File Brief in Death Penalty Case As part of its on-going indigent defense project, the ACLU of Utah filed a motion in Weber County District Court seeking permission to submit an amicus curiae—or “friend of the court”—brief in the death penalty case State v. Ethridge. Jacob Ethridge, who is indigent, faces capital murder charges stemming from the 2008 deaths of two women. Weber County, which opted out of the statewide Indigent Capital Defense Trust Fund (which provides funds to all participating counties for the defense of capital cases), recently sought to replace Mr. Ethridge’s court-appointed attorneys with two new lawyers who have general service public defender contracts with Weber County. Mr. Ethridge’s current attorneys were appointed approximately 18 months ago, while they were with the Weber County Public Defender’s Association (“Weber PDA”). In an effort to save approximately $100,000 per year, the Weber County Commission voted to eliminate the Weber PDA beginning on January 1, 2010. Weber County now contracts with individual attorneys for indigent defense services. The proposed new lead attorney, who is currently under contract with Weber County to provide juvenile criminal defense and also maintains a small private practice, has never tried a capital case. Presumably, he would have been asked to add Mr. Ethridge’s capital defense to his already-existing caseload. In its motion, the ACLU argued: “Weber County, having voluntarily opted out of the [Fund] and having consented to the appointment of [current defense counsel 18 months ago], may [not now] unilaterally decide to override Mr. Ethridge’s constitutional right to maintain the appointed counsel of his choice on the sole basis that it may save the county money.” The ACLU further noted: “Having chosen to prosecute this matter as a capital case, Weber County has placed at stake not only Mr. Ethridge’s liberty, but also his life. . . . Weber County’s . . . interest in saving money simply cannot trump an individual’s Sixth Amendment right to counsel or his Fifth and Fourteenth Amendment rights to due process and equal protection.” Following oral argument, the Court issued a lengthy written decision affirming Mr. Ethridge’s right to maintain his current counsel. Noting that ABA standards “suggest that continuity of counsel is important for adequate and effective representation,” the Court found that Mr. Ethridge’s counsel had already hired experts, developed trial and mitigation phrase strategies, and nearly completed their preparation for trial. Quoting a case cited by the ACLU, the Court held: “‘[O]nce counsel is appointed to represent an indigent defendant . . . the parties enter into an attorney-client relationship which is no less inviolable than if counsel had been retained. To hold otherwise would be to subject that relationship to an unwarranted and invidious discrimination arising merely from the poverty of the accused.’” More about the ACLU of Utah's efforts to address the constitutionally inadequate state of indigent criminal defense in Utah >> ACLU OF UTAH Represents Independent Candidate for Governor in Supreme Court E-Signatures Case
The ACLU of Utah, along with cooperating attorney Brent V. Manning, recently stepped in to represent Farley Anderson, an independent candidate for governor whose petition to be placed on the general election ballot was wrongfully rejected by the Lieutenant Governor in March 2010. Mr. Anderson, who filed his original action pro se, seeks a ruling from the Court that “e-signatures”—signatures collected online—should be treated the same as handwritten signatures for purposes of independent candidate nominating petitions. Mr. Anderson also seeks a ruling from the Supreme Court on the constitutional right of independent political candidates to fair and equal access to the general election ballot. The Lieutenant Governor’s decision to exclude Mr. Anderson from the general election ballot flies in the face of each and every of the above principles and constitutional mandates. On March 19, 2010, Mr. Anderson presented to the Lieutenant Governor a nominating petition signed by over 1,000 Utah voters, as is required by the Election Law for independent candidates wishing to run for statewide office. The Lieutenant Governor rejected Mr. Anderson’s petition because a small portion of the signatures were e-signatures. The Lieutenant Governor argued, in direct contravention of Utah common and statutory law, that those were not legal signatures under Utah State law.
“The issues here are simple,” states Mr. Manning. “Since the earliest days of the common law, a ‘signature’ was any mark that the signing individual intended to be his ‘signature.’ That was true whether the mark was on paper, on wood, on a wall, or on a cow. For the Lieutenant Governor to carve out ‘e-signatures’ as somehow less worthy of recognition than any other signature contradicts the established law of this State.” The State also requires unaffiliated candidates to submit petitions far in advance of the time when major party candidates must be certified for the November ballot. The ACLU of Utah believes that the imposition of onerous and unfair requirements for independent, non-party candidates for office unconstitutionally excludes from the electoral process unaffiliated candidates and those voters who would support them. In arguing the case before the Supreme Court on June 2, Mr. Manning heavily emphasized both of these points, noting that the Lieutenant Governor’s decision to refuse “e-signatures” is just as arbitrary as a decision to refuse, for example, signatures printed in red ink. The legal validity of any signature depends on whether the signing party intended it to be his or her signature. An e-signature is no different in that respect from a handwritten signature, as evidenced by the ever-growing number of government agencies using e-signatures for a wide range of filings, including income tax returns, drivers’ license renewals, and voter registrations. At oral argument, the Lieutenant Governor argued (for the first time) that the real problem with e-signatures is an increased risk of fraud. As Mr. Manning and the Court noted, however, the gathering of both handwritten and electronic signatures poses some risk of fraud, but there is no evidence to suggest that e-signatures are more susceptible to fraud in the political arena than their handwritten counterparts. Indeed, the website used by Mr. Anderson to petition online incorporated innovative anti-fraud protections to reduce significantly the risk of fraud in the signature-gathering process. The ACLU of Utah believes that every voter, and every otherwise qualified candidate, should have fair and equal access to the ballot, the process of gathering handwritten signatures is expensive and time-consuming. Allowing the use of e-signatures in the electoral process will encourage and allow voters and the candidates they support to become more involved in the political process, which can only be a good thing. Update: UTAH SUPREME COURT VALIDATES USE OF E-SIGNATURES IN ELECTORAL PROCESS Read the ACLU of Utah press release >> Read more about the ACLU of Utah's work to protect participatory democracy and voting rights >>
On the Hill: 2010 Legislative Report REPRODUCTIVE
FREEDOM Specifically, the bill removes immunity for women who seek to obtain or obtain an unlawful abortion, defined as any action, resulting in the death of a fetus, that is not considered a medical procedure done under a physician’s care. This bill changed the presumption that abortions obtained by a woman in this state are legal - forcing Utah women to prove that the abortions they obtain (or miscarriages they suffer) are not unlawful. We worked with Planned Parenthood and other partners to halt - or at least amend - this bill. We testified in multiple committee hearings, gave media interviews and lobbied individual legislators with warnings of the bill’s likely consequences. In the end, Gov. Herbert signed a substitute bill, HB 462, “Criminal Homicide & Abortion Revisions,” which only marginally improved upon the original.
RACIAL JUSTICE We worked with community partners to educate policymakers at all levels of government about the enduring importance of equal opportunity programs and the consequences of banning such programs. Thanks to this intense lobbying effort, the stalwart dedication of some members of the legislature, and vocal mobilization by hundreds of young people, this bill did not come to a vote. Unfortunately, the resolution’s sponsor made clear that this bill will reappear during next year’s session - and will be discussed in interim meetings before then. We are mobilizing now to fight this harmful measure in the coming year by spearheading a coalition of advocates, organizations and community leaders invested in preserving equal opportunity programs in our state. SEPARATION OF
POWERS Recognizing the opportunity the bill presented to interject politics into the judicial branch, we actively opposed this legislation, sending out action alerts to our members and information to the entire Senate. SB 108 did not pass, but a similar bill in the House (HB 289) did pass and was signed into law by the governor. We also opposed SB 109 “Chief Justice of the Utah Supreme Court Appointment,” which sought to give to the governor the power to select the chief justice of the Utah Supreme Court. The bill clearly threatened the separation of powers envisioned by the Utah constitutional framers, and would have violated the integrity and independence of our judiciary. Thankfully, legislators recognized that the bill went too far in disrupting the checks and balances of our governmental system; the bill did not receive a final vote. PRIVACY &
TECHNOLOGY We opposed SB 277 “DNA Modifications,” which sought to expand the state’s practice of collecting DNA samples from convicted criminals to those merely arrested of certain crimes. The ACLU vigorously objects to this increasingly popular law enforcement practice, as it violates the 4th Amendment prohibition on unreasonable searches and seizures. It also undermines the fundamental American belief that we are all “innocent until proven guilty.” Despite our strenuous efforts, the bill passed - although not before undergoing modifications that make it slightly more favorable to the arrestees who would be subject to DNA collection. We also worked against HB 150, “Administrative Subpoena Amendments,” which broadened the state’s power to engage in executive warrantless searches. Specifically, the bill expanded to a broader category of crimes the recently enacted law allowing for warrantless searches by law enforcement pursuant to investigation. This expansion of law enforcement power represents an incredibly dangerous threat to our civil liberties and creates perverse incentives for government to engage in fishing expeditions against individuals where there is no probable cause – as was clearly and infamously seen in abuses of the federal government’s National Security Letters.
IMMIGRANTS’ RIGHTS We testified and lobbied against this bill, pointing out that the E-Verify system is inherently flawed and that immigration regulation is the role of the federal government. Although the bill ultimately passed, it was substantially amended from its original state. The enacted version does not include penalties for non-compliance, making this law, for all intents and purposes, voluntary. The ACLU is concerned however, that with SB 251 now in place, the legislature will amend the law to make participation more mandatory in the future. We also opposed HB 428, “Nonresident Tuition Amendments,” a proposal to repeal the Utah program that allows undocumented college students to pay in-state tuition. Though the bill was introduced too late in the session to have any hearings, we have no doubt that the issue will reappear in future legislative sessions. With our partners in the Enriching Utah Coalition, we will be prepared to work against it when it next emerges. By the Numbers Too many to count... Gay-Straight Alliance Clubs Flourish in Southern Utah Schools, with ACLU Help
After the ACLU of Utah intervened on the students’ behalf, four Washington County high schools abandoned their unconstitutional school policies for student club formation and, for the first time ever, allowed students to form Gay-Straight Alliances (GSAs) on campus. For years, the schools restricted student club formation by requiring, in essence, popular or majority approval of club applications. For example, several of the schools required onerous signature-collection efforts before an application could even be submitted, and then majority, or even unanimous, approval by the student council. All the schools required approval by the principal and the faculty of every student club application, with no objective criteria in place to guide faculty or administrators in making their decision. The only supposed criteria in place to guide their decisions were completely subjective, such that all clubs be for “moral” purposes or promote only “wholesome activities.” Fortunately, however, the School District, unlike its high schools, already had in place a content-neutral policy for the formation of student clubs. The ACLU worked cooperatively with district administrators to make sure that the unconstitutional school-specific policies were abandoned and that only the district guidelines were utilized when analyzing club applications. Once applications were considered under the district’s content-neutral policy, all four GSA applications that were submitted were approved. “The issue here is not just discrimination against the LGBT community, but also a violation of these students’ basic First Amendment rights,” said ACLU of Utah Legal Director Darcy Goddard. The specific body of constitutional law addressing the right for students to form GSAs developed in response to the exclusion of religious groups from college and high school campuses. “We would be in Washington County, having this exact same discussion, if the high schools were unconstitutionally excluding from campus the Young Republicans’ Club,” said Goddard. After reading about the ACLU’s recent work in Washington County, students from Tooele and Davis Counties contacted the ACLU of Utah for help combating similar policies in their school districts. In Tooele and Davis Counties, not only are the school-specific policies unconstitutional, but so too are the district-wide policies for club formation, in the ACLU of Utah’s opinion. Those districts’ policies include the exact type of subjective and majoritarian criteria that were formerly utilized in Washington County. Although the ACLU of Utah hopes to work cooperatively with district administrators in Tooele and Davis Counties, it is prepared to litigate the issues if necessary. Goddard states, “It would be unfortunate if we have to litigate these basic First Amendment principles against Tooele and Davis Counties, but it may well come to that. That said, I thought the same the thing about Washington County, and I was pleasantly surprised by the district’s willingness to work with us to protect their students’ rights.” These Dedicated Utah Youth Stand Up For Their Rights - and YOURS, too! The ACLU of Utah is pleased to announce the winners of its 2010 Youth Activist Scholarship Awards. Qualifying candidates from all across the state were reviewed by a community panel and the winners were selected based on the students’ dedication to civil liberties, the challenges they have overcome, and the leadership they have displayed through their actions. Each winner is awarded $1,000 towards their first year of college.
Ingrid Asplund - Walden School, Provo “Defending civil liberties is a core value in my life, and the driving passion behind my quest for further education. I am deeply committed to using the privilege of my education in the defense of those who are not as privileged.” Ingrid is an advocate for honest and comprehensive sex education, a guerilla peer educator, a champion for free speech and the right to protest, a world traveler, and a creative artist of many stripes.
Joel Organista - West High School, Salt Lake City “When youth are efficiently involved in politics and knowing their rights they become agents for positive change in their communities.” Joel is an immigrant to the United States who appreciates the right to petition one’s government, an amateur filmmaker, a crusader against institutionalized racism and a leader in his school and community.
Amber Labaron - American Fork High School, American Fork “A change can start with just one voice. As I continue to voice my views, I can make a difference; I believe that youth have an amazing potential to make a difference in the world around them.” Amber is a voice for the voiceless around the globe, an advocate for the rights of women and children, a former United Nations intern, and a native Utahn who understands the importance of expanding one’s horizons.
At our Annual Bill of Rights Celebration on May 1, we gathered with 400 ACLU of Utah members, friends and supporters to reflect together on “The Future of Freedom.” The Celebration gave us a much-needed opportunity to congratulate one another on the civil liberties successes we’ve achieved over the past year - and to prepare for the work we face in the months ahead. We honored several extraordinary activists, recognized this year’s Youth Activist Scholarship winners, and enjoyed a captivating keynote speech by national ACLU Legal Director Steve Shapiro - who has nearly two decades of experience bringing complex civil liberties cases before the U.S. Supreme Court.
2010 Award Recipients Torch of Freedom Award:
Special Recognition
Dinner Sponsors Liberty Allies Utah Activists Form Group to Oppose the Death Penalty
The ACLU recognizes that the death penalty is the ultimate denial of civil liberties and violates the Eighth Amendment protection against cruel and unusual punishment. There is also a growing public concern that the nation’s death penalty system lacks fairness and reliability, a concern fueled by the increasing number of exonerations of those who were on death row across the country. Many of these exonerations were made possible by the relatively recent advances in DNA and other scientific testing. Recognizing that capital punishment is not only costly but has also failed to deter crime, more than a dozen states have abolished the death penalty over the last several years. Increasingly, families of murder victims, the faith community, law enforcement officials, attorneys, and sensible individuals of all political stripes are coming together to oppose this system. For over a year, activists and organizers have been meeting regularly to discuss how to best address death penalty issues in Utah and decided to form an official coalition. The group, Utahns for Alternatives to the Death Penalty (UTADP), of which the ACLU of Utah is a founding member, is a statewide coalition of secular and religious organizations, as well as concerned individuals dedicated to stopping executions in our state. This work has a growing sense of urgency with the planned state execution, by firing squad, of Ronnie Lee Gardner at 12:01 A.M. on June 18th. Gardener would be the first execution since 1999, when Joseph Mitchell Parsons was put to death by lethal injection. UTADP began a public campaign with a press conference on April 23, the same day that a date was set for Gardner’s execution. UTADP has two events planned on Thursday, June 17, in response to the scheduled execution; an Interfaith Prayer Vigil, which will be held from 5:30 p.m. to 6:30 p.m. at The Cathedral Church of St. Mark and a Public Rally with speakers and music at the south steps of the Utah State Capitol Building from 9:00 p.m. to 12:00 p.m. (See the flyer on the front page for more details) The tide is turning on the death penalty. Not only are cries for alternatives growing louder across the nation but internationally as well. The U.S. is only surpassed by Iran, Iraq and Saudi Arabia in the number of people executed in 2009. Many countries and international NGO’s are advocating for an end to the death penalty and recently retiring U.S. Supreme Court Justice John Paul Stevens expressed the opinion that he felt the death penalty to be unconstitutional. UTADP is calling for a moratorium on executions in Utah while a study is conducted to investigate alternatives like life in prison without parole. More information about the ACLU of Utah's work on the death penalty >> Panel Discussions Explore Balance of Religious Rights with LGBT Equality Since last April, the ACLU of Utah has hosted four panel discussions, dubbed “Beyond the Division,” to explore perceived tensions between religious liberty and equal protection and treatment for all people, regardless of sexual orientation or gender identity. Originally conceived in the wake of California’s Proposition 8, these events address, from a legal perspective, common myths about how equality for LGBT people may impact the rights of religious people. Every panel has benefited from the legal expertise of Professor Clifford Rosky (University of Utah S.J. Quinney College of Law), who specializes in LGBT legal issues, and Professor Frederick Gedicks (Brigham Young University Law School), who focuses on religious freedom. The panels also have involved clergy from a variety of faith traditions - including Jewish, Catholic and Episcopalian - as well as elected officials and other community leaders. “Beyond the Division” discussions have been held at Salt Lake Community College and the University of Utah in Salt Lake City, Weber State University in Ogden, and Utah Valley University in Orem. If you are interested in bringing a “Beyond the Division” discussion to your college or community, contact Anna Brower at (801) 521-9862 ext. 100. More information about the ACLU of Utah's work to protect LGBT equality >> The Director’s Chair
The racism behind much of the anti-immigrant rhetoric and legislation is becoming increasingly obvious. In Utah, Latino colleagues have been receiving hate mail with graphic racist and sexual threats after speaking out. Salt Lake City Police Chief Chris Burbank reports he too is the recipient of similar hate mail following his recent meeting with the Department of Justice expressing his concerns over Arizona’s anti-immigrant legislation, SB 1070. While Arizona’s bill now makes racial profiling the de facto law of the state, Maricopa County Sheriff Arpaio has thrived for some time on applying increasingly racist and humiliating tactics in his dealings with immigrants and those whose appear to be so due to their appearance. Following the passage of Utah’s omnibus immigration statute, SB 81, in 2008, the Utah legislature hosted “hearings” around the state over a period of months. ACLU of Utah representatives attended each one. The atmosphere of each meeting was highly charged as audience members stomped their feet and clapped their hands when anti-immigrant statements were made. Few Latinos attended; friends told me they felt the large rowdy crowds and frequent use of dehumanizing and racist language made it too difficult and unproductive to attend. In the months leading up to the implementation of SB 81, and since, religious and community leaders have reported increasing fear among the immigrant community as well as racial harassment. Courageous and principled law enforcement officials in Salt Lake, Park City and other jurisdictions expressed their opposition to SB 81’s efforts to force them to be “deputized” as immigration enforcement officers, fearing the resulting decrease in the type of trust and communication that are so critical to effective law enforcement. Recent research conducted by the Consortium for Police Leadership in Equity (“Consortium”), Deputizing Discrimination? Causes and Effects of Cross-Deputization Policy in Salt Lake City, concludes that support for cross-deputization is predicated upon racial prejudice and is a threat to individuals’ values. The Consortium’s report also finds that immigrants and Latinos are no more likely to commit crimes than whites. Arizona’s SB 1070 – and Utah’s current SB 81- are designed to scare not only undocumented immigrants but Latinos and Hispanics in the same way that Jim Crow laws scared and criminalize African-Americans in the South. The United States is becoming increasingly diverse, both racially and ethnically. There seem to be growing parallels between current anti-immigrant legislation, and the push for states rights, with efforts of groups like the 1950/60s era white Citizens Councils’ in the south who pushed back against desegregation and civil rights legislation. Utah is also becoming increasingly diverse. According to the US Census bureau in 2007, 1 in 7 Utahns are Latino or Asian. Latinos make up 30% of all current Mormon church members in the U.S., while the number of the Mormon church’s Latin American members has increased by 70% from four years ago. The Catholic church is growing in similar ways. Enacting Utah legislation similar to Arizona’s would continue to single out people of color for disparate treatment while driving wedges between the public and the police. Immigration reform is needed in the United States, but using that need as a cover for the spreading of racism and fear is unacceptable and not to be tolerated. The President’s Corner
We citizens of Utah will participate in the killing of a human being on June 18, 2010. In the name of each of us, five of our law enforcement officers with five .30 caliber rifles, four of which will be loaded, will take aim at a paper target placed over the heart of a human being and will shoot him dead. The ACLU national office supports the Capital Punishment Project (CPP), which focuses litigation on death penalty cases involving: (1) innocent persons; (2) severely mentally ill persons; (3) persons who face execution because of poor legal representation; (4) persons who face execution because of systemic discrimination. The CPP also seeks to improve the fairness of capital trials and appeals. In Utah, your local affiliate of the ACLU supports Utahns for Alternatives to the Death Penalty (UTADP). UTADP opposes the death penalty because of: (1) its high cost and ineffectiveness; (2) its diversion of resources from effective crime reduction programs; (3) its failure to meet the needs of the victims’ families; (4) the existence of other means of protecting society; (5) the arbitrary and discriminatory imposition of the penalty; (6) the irreversible nature of imposing death on innocent persons; and (7) its conflict with widely held religious beliefs. I applaud the efforts of both of these organizations and particularly am proud to be associated with the ACLU’s efforts nationally and locally to seek alternatives to this arcane, cruel, ineffective, discriminatory, and irreversible method of punishment. I believe that implementation of the death penalty is much more about we the people, in whose name the execution occurs, than it is about the individual who is executed. I have not mentioned the name of the individual who is scheduled to die in Utah on June 18th, because I do not believe this debate has anything to do with him. This debate has to do with what allowing death to be committed in our names does to each one of us. When the five shots are fired on June 18th, and four .30 caliber bullets will violently tear into the chest of a human being and destroy his heart, a little part of the heart of each Utahn will die, a little part of the heart of each U.S. citizen will die, and a little part of the heart of every member of humanity will die. Independent of any of our particular religious practices, I believe that if we look deeply within ourselves, beyond our cultural heritage, beyond our own egos, into our souls, we know it is not good to kill other humans. Just because it is not our fingers on those triggers does not exonerate us from the death we allow to be caused in our name. I felt a part of me died when we executed Gary Gilmore in 1977, and at each of the 1,211 executions in the U.S. since then. I dread that feeling for myself and for all of us on June 18th. Founded in 1920, the American Civil Liberties Union is a nationwide, nonpartisan organization dedicated to working in the courts, legislatures, and communities to defend and preserve the individual rights and liberties guaranteed to all people in this country by both the Constitution and the laws of the United States. The ACLU of Utah was chartered in 1958 to work on constitutional issues that are pertinent to those living in this state. Our priorities include freedom of speech, expression, and association; freedom of religion, including the separation of church and state; the right to privacy; safe prison and jail conditions; and equal protection and due process of the laws. About the ACLU of Utah Staff Board of Directors Legal Panel Interns and Volunteers Contact Information
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