By Howard Fischer | Capitol Media Services/Arizona Daily Star
Former Gov. Jan Brewer is not going to have to give the notes she used for her “Scorpions for Breakfast” book to groups challenging the controversial immigration law she signed — at least not now.
U.S. District Court Judge Susan Bolton has rejected arguments by attorneys for immigrant-rights groups that they need the notes to make their case that SB 1070 is unconstitutional because it was enacted with racial bias.
The judge said the notes are not relevant to the case.
Comments by Logan Elia, Rose Law Group, whose practice includes intellectual property:
The issue before Judge Bolton appears to be whether SB1070 is illegal because it was passed with intent to discriminate against minorities.
On the surface, it is easy to see why the ACLU would want former Governor Brewer’s book notes. Possibly, those notes include her thoughts about the purpose of SB1070. But, ultimately, I think that Judge Bolton was right when she allowed Brewer to keep her book notes confidential.
Although our courts do sometimes void laws for discriminatory intent, the standard is very high. The discriminatory intent required is more than intent as volition or intent as awareness of a consequence. Instead, a law can only be struck down for discriminatory intent when it was passed because of – and not merely in spite of – its adverse effects upon minorities.
The United States Supreme Court has already ruled that the surviving provisions of SB1070 have a valid and facially neutral purpose, which is to facilitate enforcement of the immigration laws. Regardless of how anyone feels about those laws, or Brewer’s book, no evidence suggests that Brewer’s book notes will help the ACLU make its case. At this point, the ACLU is merely fishing.
This is a case where our courts must weigh Brewer’s privacy rights against a litigant’s right to discover information. In this specific instance, the least invasive way to discover Brewer’s thoughts about SB1070 is probably to ask her about it under oath. With that option available, there is little justification for requiring Brewer to hand over all of her personal book notes.
