PHOENIX — Gov. Jan Brewer this afternoon asked the 9th Circuit Court of Appeals to review — and overturn — an order by U.S. District Court Judge Susan Bolton blocking Arizona from enforcing key provisions of its new immigration law.
Legal papers filed by attorneys for the governor say they will argue that the judge either abused her discretion or based her decision on an erroneous legal premise. The notice does not spell out, however, exactly what basis Brewer has to argue either theory.
But there will be no quick action: Even in seeking an "expedited" appeal of the ruling, the attorneys for the state do not foresee the case being ready to argue until the second week of September. That means the sections of law that Bolton enjoined Arizona from enforcing will remain on hold.
At this point, the schedule suggested by attorneys John Bouma and Joe Kanefield would not have the state even submit its legal arguments until Aug. 12. That would give the U.S. Department of Justice until Aug. 26 to file its own arguments, with the governor filing her response to those the following week.
While the legal papers did not cite any specific errors the governor believes the judge made, her attorneys said there is a need for quick action.
"It is an appeal of a preliminary injunction enjoining several key provisions of SB 1070 that the Arizona Legislature determined were critical to address serious criminal, environmental and economic problems Arizona has been suffering as a consequence of illegal immigration and the lack of effective enforcement activity by the federal government,'' they wrote.
Gabriel "Jack'' Chin, a professor of law at the University of Arizona, said the good news for the governor's office is that the appellate judges are likely to consider the case from scratch.
He said Bolton's injunction was based largely on her conclusion that the Department of Justice would prevail once there is a full-blown trial on the merits of SB 1070. Chin said the appellate judges, in reviewing what she did, will want to make that decision for themselves.
The governor may not be the only one seeking appellate review.
In issuing her ruling Wednesday, Bolton rejected the request by the Department of Justice to enjoin enforcement of some sections of SB 1070.
Dennis Burke, the U.S. attorney for Arizona, said any decision will have to come from the solicitor general's office in Washington. Repeated messages seeking comment were not returned.
But Burke said he believes that Bolton made the right decision.
"This bill was constitutionally flawed,'' he said.
Today's legal maneuvers come against a backdrop of protests despite the fact that the judge blocked enforcement of the major sections of the law.
The remaining parts of Arizona's law took effect today, but it will be hard to notice.
Agreeing with U.S. Justice Department arguments, Bolton temporarily blocked key provisions of the law Wednesday, including requirements for law-enforcement officers to check the immigration status of those they have stopped and not release them until their immigration status is verified.
The remaining provisions won't alter police work or daily life in Arizona much, legal analysts and Southern Arizona leaders agreed.
UA law professor Chin called the ruling "virtually a complete win for the United States" and said that the "heart of SB 1070 has been enjoined."
Perhaps more importantly, Chin said, the judge's ruling suggests that the federal government will succeed at thwarting the state law in further court hearings.
However, the Obama administration may face a more difficult argument over immigration in the political arena, supporters of the state law said.
For now, "nothing is going to change," Pima County Sheriff Clarence Dupnik said. "We already aggressively enforce illegal immigration, but we do it in a way that doesn't affect taxpayers."
Cooperating with federal immigration officials is something Tucson police also already do, Police Chief Roberto Villaseñor said. The ruling prevents his officers from having to enforce provisions that would have put them in difficult positions, he said. "There's a sense of relief in that we don't need to act on this right away," Villaseñor said.
Despite the ruling, the law's backers remained upbeat.
Brewer called the ruling a "bump in the road" and said she was confident that the bill is "constitutional, and it is carefully crafted."
"A temporary injunction is not the end of it," Brewer said.
State Sen. Russell Pearce, the Mesa Republican who authored the bill, called the judge's ruling a victory because it leaves in place the provision that forces cities to comply with federal immigration laws and prevents them from establishing "sanctuaries."
"Striking down these sanctuary-city policies has always been the No. 1 priority of SB 1070," Pearce said in a written statement. "Judge Bolton has made it clear. These policies are illegal, and cities in violation will face significant fines immediately."
But it was unclear which Arizona cities, if any, would be affected by the part of the new law that requires them to enforce immigration laws to the fullest extent permissible. Pearce's spokesman did not return calls or e-mails seeking the senator's definition of a sanctuary city or the names of Arizona cities that have sanctuary policies.
Sanctuary cities are commonly defined as those that restrict their employees from cooperating with federal immigration authorities, despite the federal law that requires cooperation, said Mark Krikorian, executive director of the Washington, D.C.-based Center for Immigration Studies. San Francisco is the best-known example.
The passage of that provision is "modestly important in a practical sense," Krikorian said. "But it's very important symbolically, because sanctuary cities are able to ignore federal immigration laws with impunity."
By emphasizing the sanctuary-cities win, Pearce is "grasping at straws," said Jennifer Allen, executive director of the Tucson-based Border Action Network.
"The lesson of the day for Senator Pearce is he was wrong. He put together a bill that was so poorly written, so far-reaching, and was unconstitutional," she said.
Despite the planned appeal and the potential of an eventual U.S. Supreme Court hearing, Bolton's ruling has an excellent chance of standing up to appeal and becoming the final decision, said Chin, the UA law professor.
"Even though this is technically only a preliminary injunction, this is really the whole ballgame," Chin said. "Her preliminary injunction is basically saying that the U.S. is going to win in the end."
The decision is based on reasonable application of correct legal principals regarding federal pre-emption issues, which means it would take a new fact or a new law to emerge to change the outcome, Chin said. Neither is likely.
He also predicted that the ruling would serve as a warning to other states that are considering passing similar laws.
But politically, the Obama administration's decision to sue in opposition of the law, along with its win Wednesday, puts pressure on the White House to act more forcefully on immigration and border issues. Pinal County Sheriff Paul Babeu, a leading supporter of the law, pointed out that the administration won by arguing that it is the federal government's job to enforce immigration laws.
"We in Arizona could not agree more that it is his job, and we demand that he do his job and protect our state, rather than continuing to fight us in court," Babeu said.
Krikorian, of the Center for Immigration Studies, agreed.
"The political consequences are not going to be pretty for the administration," he said. "The ruling just re-enforces the sense that came from filing the lawsuit in the first place - that the federal government won't permit the immigration laws to be enforced."
State will appeal ruling to 9th Circuit today, Brewer says