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High court won’t block ruling overturning bail ban for some immigrants

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WASHINGTON – The Supreme Court on Thursday said it would not block a lower court’s ruling that overturned Arizona’s voter-approved ban on bail for immigrant felony suspects who are in this country illegally.

The decision to lift a temporary stay that had been in place since Friday means an October ruling the 9th U.S. Circuit Court of Appeals that had voided the law as unconstitutional can take effect while Arizona officials prepare a formal appeal.

Maricopa County Attorney Bill Montgomery said in a prepared statement Thursday that his office would work on a formal appeal to the high court, but that he was “obviously disappointed” that the law would be overturned in the meantime.

He said his office would work in the meantime to meet the flood of bail review motions that would be filed by felony suspects “as a consequence of the Ninth Circuit’s callous rejection of legitimate state interests and the Supreme Court’s disappointing indifference.”

But an attorney for the American Civil Liberties Union, which had challenged the law, said in a statement Thursday that the Supreme Court’s decision “puts an end to Arizona’s unconstitutional attempt to jettison the presumption of innocence and the right to a bond hearing.”

“We hope that Maricopa County will accept this decision as the end of the road in this long-fought battle and move forward in the interests of all Arizonans,” said Cecillia Wang, legal counsel for the ACLU.

Arizona voters in 2006 overwhelming approved Proposition 100, a state constitutional amendment that prohibits a judge from granting bail to suspects in felony cases if the suspect is in this country illegally.

Supporters of the law said it was necessary because illegal immigrants posed a high risk of flight before trial.

State lawmakers passed legislation that extended the bail ban to cover class 1 to class 4 felonies, a range that critics said could ensnare people accused of crimes “like shoplifting and bad checks.”

The ACLU sued to overturn the law and a divided 9th Circuit Court agreed in an Oct. 15 ruling that said the law was unconstitutionally broad and amounted to a “scatter-shot” attempt to rein in all immigrants.

Circuit Judge Jacqueline Nguyen went further, saying in a concurring opinion that the law was “intentionally drafted to punish undocumented immigrants for their ‘illegal’ status.”

Montgomery asked for a stay while his office prepared an appeal to the Supreme Court. He argued that overturning the law eight years after it was put in place would overwhelm courts with bail hearings and release potentially dangerous criminals who might take advantage of their freedom and flee the country.

Justice Anthony Kennedy issued a stay on Friday and gave the ACLU until Monday to file a response.

The ACLU said Monday that Montgomery had not shown that the state would suffer harm if the lower court ruling took effect, and that he had not shown that the high court was likely to take the case or to overturn it.

The court yesterday appeared to agree, lifting the stay and allowing the circuit court ruling to take effect.

Justice Clarence Thomas, joined by Justice Antonin Scalia, said in the order that he agreed with the rest of the court that the stay had to be lifted because there was “no reasonable probability that four justices will consider the issue.”

But Thomas called the decision “unfortunate.”

“We owe the people of Arizona the respect of our review,” he said.

Montgomery blasted what he called the circuit court’s “serial disregard of the system of federalism” and that he will be requesting a writ of certiorari – the formal name for an appeal to the Supreme Court.

“We will seek certiorari to give the Supreme Court the opportunity to rectify the Ninth Circuit’s action and to further our legitimate state concerns and interests in safeguarding the public and securing defendants’ appearance in court,” Montgomery said in a statement from his office.

State court officials had scheduled requests for bail review hearings beginning next week, according to filings in the case earlier this week.