Attorneys Want to See Jan Brewer’s Notes

PHOENIX (CN) - Opponents of Arizona's harsh immigration law, SB 1070, want to subpoena former Gov. Jan Brewer for emails and notes she used to write a book on her "Fight Against Special Interests, Liberal Media, and Cynical Politicos to Secure America's Border."

Brewer, not surprisingly, is resisting the subpoena.

Attorneys for 11 civil rights organizations filed a motion to compel non-party Janice Brewer to comply with their subpoena in Valle del Sol et al. v. Michael B. Whiting et al., on Feb. 13, in Federal Court.

Michael Whiting is the sheriff of Apache County.

The attorneys claim Brewer's notes are central to their clients' equal protection claim because Brewer's book, "Scorpions for Breakfast: My Fight Against Special Interests, Liberal Media, and Cynical Politicos to Secure America's Border," described what SB 1070 was meant to address, how it was passed through the Legislature, and criticisms of it.

The book did not include any references, footnotes, or bibliography, the plaintiffs say, but since it was written with a ghost writer, "common sense suggests that the writing of the book was aided by source documents - emails, letters, memoranda, notes of meetings, recordings of interviews, etc."

The attorneys say they requested the documents in August 2014, but Brewer refused to comply, claiming she had written the book in a personal capacity, and that she was named only in her official capacity as an intervenor defendant in a challenging the law.

Brewer's attorney, Robert Henry with Snell & Wilmer, wrote in a letter to the ACLU that Brewer need not comply with the subpoena because there have never been allegations against her in court that she "allegedly had, or ever allegedly had, any racial animus or discriminatory intent in connection with her review of S.B. 1070 (or her signing of the provisions of S.B. 1070 into law)."

Henry's Dec. 12, 2014 letter, filed as an exhibit for the lawsuit, claims there is no passage in the book that would give rise to claims of discriminatory or inappropriate intent.

"There is to be sure not a single sentence, or even a single word in context, in this personal memoir that states or even implies that Governor Brewer had an improper motive or intent in connection with her review and passage of this bill into law, or that she ever saw or considered anything from any other personal upon which she considered or relied," the letter states.

Henry said the plaintiffs' request violates Brewer's First Amendment rights.

"Governor Brewer and those working on her book commented on drafts of 'Scorpions for Breakfast' and communicated regarding what should or should not be included," Henry wrote. "Disclosure of drafts, interviews, and communications between Governor Brewer and those with whom she worked in connection with Scorpions for Breakfast, would result in a chilling of associational and political speech rights."

But the attorneys say Brewer should validate her First Amendment concerns by substantiating them with a privilege log describing the nature of the documents she does not want to disclose.

"The documentation of such communications can hardly be considered secret, as the communications are obviously known to the participants themselves, including Governor Brewer's staff and any Arizona legislators and legislative staff who worked on the drafting and passage of S.B. 1070," the attorneys say in their Feb. 13 motion.

U.S. District Judge Susan Bolton has enjoined much of S.B. 1070. The law required police officers to check a person's immigration status, required immigrants to carry identification documents with them, made it illegal for undocumented workers to seek employment in public, and made human smuggling a state crime.

The U.S. Supreme Court left in place three sections of the law, including the "papers please" provision, saying it could not determine whether police officers asking for immigration papers is unconstitutional.

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