PHOENIX - A federal judge ruled Thursday that attorneys for Gov. Jan Brewer can argue in court those suing her for denying them licenses are driving anyway.
Judge David Campbell agreed the question of the current activities of the five plaintiffs is relevant to whether they are entitled to an injunction ordering the state to issue driver licenses. The only thing Brewer's lawyers cannot do is detail which of the five plaintiffs is doing what.
Thursday's ruling is important because the challengers are asking Campbell today to issue an injunction that effectively would require the Arizona Department of Transportation to issue licenses to those who have been accepted into the Obama administration's "Deferred Action Childhood Arrival" program.
Their lawyers contend acceptance effectively means they have federal authorization to be in this country, which they say qualifies them to get a state-issued license to drive, the same as others in similar federal programs.
But federal law requires anyone seeking an injunction - essentially an interim order blocking the law even before a full-blown trial - to prove several things. One of those is that those challenging the law show "irreparable harm" from its enforcement.
In legal papers already filed, Brewer's attorneys say the plaintiffs have "freely admitted" they either own cars and drive on a regular basis to go to school, work or take care of personal needs, or use vehicles owned by others. Even those who make no such admission have acknowledged they "have someone readily available to drive them."
Karen Tumlin, attorney for the National Immigration Law Center, just because the plaintiffs are driving anyway does not mean they are facing no harm.
If nothing else, she said, there is the fear of being stopped by police and charged with driving without a license.
Campbell's ruling allowing Brewer's attorneys to talk about the driving habits of those who have sued is limited. They are barred them from talking about specific actions by specific individuals.
Attorney Orion Danjuma of the American Civil Liberties Union, which also is representing the challengers, said he does not want individual actions revealed because driving without a license is a misdemeanor, which could impact efforts to renew their deferred status every two years.
Tumlin said all five plaintiffs in the lawsuit have been given social security cards and permission to work legally in this country.
Brewer, however, ordered ADOT not to provide driver licenses to those who qualify for the program, citing a 1996 Arizona law requiring applicants to show their presence is "authorized under federal law." And her attorneys contend the decision by the Department of Homeland Security not to pursue them does not amount to authorization.
The state has issued licenses to others who have been told by the federal government that they can remain for the time being and have been given permission to work for other reasons. That, the challengers contend, means the state is illegally applying the law unequally.
But Douglas Northup, who will be arguing the case for Brewer today, said the comparisons with others who are given work-authorization cards by Homeland Security are invalid because the deferred action program is not federal law, but simply a policy by the administration not to enforce the law against certain people.