7/21/2010 4:09:00 PM SB1070 suit: Burden of proof a 'balance of hardships'
Hearing will not be televised
PHOENIX -- A federal judge has rejected efforts to let TV stations videotape and air Thursday's two hearings challenging Arizona's new immigration law.
In an order Tuesday, U.S. District Court Judge Susan Bolton said she really has no authority to grant the request by the First Amendment Coalition of Arizona to let cameras and tape recorders into the courtroom. She cited rules that specifically prohibit those devices in federal court, even when not in session.
Bolton acknowledged the arguments by Dan Barr who represents the coalition that the justices of the 9th Circuit Court of Appeals, whose jurisdiction includes Arizona, have approved experiments allowing recording of "historically significant proceedings." She said, though, the federal court in Arizona hasn't adopted any rules to make that happen here.
Anyway, Bolton continued, that special rule requires cases to be broadcast to be selected by the chief judge of the federal court in Arizona after consulting with the chief judge of the 9th Circuit. And that, she said, leaves a regular district judge like her without the power to do anything about the request.
Bolton said, though, that the public is not being denied access to the proceedings.
"Other than the ability to record the arguments by audio or video, the press is welcome to attend and report on the hearing," the judge wrote. And she said both hearings will be transcribed "and a transcript can be ordered by any interested person."
Barr said it is unfortunate that Bolton turned down the request.
"This would have been the perfect case to demonstrate the value of camera coverage to the federal courts," he said. "It would have attracted a lot of viewers online and on broadcast and cable TV."
Television cameras and audio recorders already are allowed in hearings at the 9th Circuit, but only on a case-by-case basis with the final decision up to the judges hearing each request. The U.S. Supreme Court, however, does not allow either.
State courts in Arizona generally permit both, though there are provisions for judges to close a hearing to broadcasting if they believe it is necessary.
By Howard Fischer Capitol Media Services
PHOENIX -- Foes of Arizona's new immigration law seeking to block enforcement don't need to absolutely prove to a federal judge Thursday that it is illegal.
But they do need to convince U.S. District Court Judge Susan Bolton that when the case finally goes to trial months from now, they are likely to win.
Jack Chin, a professor at the James E. Rogers College of Law at the University of Arizona, said the likelihood of success is one of the things a judge must consider when confronted with a request for a preliminary injunction. That it what attorneys for both the U.S. Department of Justice and several civil rights groups are seeking in separate hearings.
But Chin said that's not the whole story.
He said a judge must decide the "balance of hardships."
"One of the hardships would be people being arrested unlawfully, if, indeed, it is unlawful," Chin said. "But then the state would say 'We are being restrained from enforcing a valid law that was enacted pursuant to our constitutional authority as a state.'"
Finally, he said, there is the related but separate issue of who will suffer "irreparable harm" whether the law is permitted to take effect or placed on hold pending a full-blown trial.
Chin said judges have a lot of leeway.
"There's no strict formula, there's no strict relationship between the factors," he explained. But he said attorneys need to pay attention to all three elements.
"A complete lack of a showing on one prong is going to kill you," Chin said. "If you have really irreparable harm but no case, you're not going to get your injunction."
But he said that, given the discretion of judges, they can give different weight to each factor.
"If the harm is overwhelming, a court might say a somewhat less compelling showing of a likelihood of success on the merits will get you your injunction," he said.
Chin said, though, that whichever side loses likely will seek immediate relief from the 9th Circuit Court of Appeals.
