Brewer appeals injunction to 9th Circuit

Legal papers filed with the court by attorneys for the governor say they will argue Bolton 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.

Late Thursday, attorneys for the U.S. Justice Department agreed with Brewer's legal team that there should be an expedited appeal of the injunction.

But there still will be no quick action. Even the schedule suggested by Brewer attorneys John Bouma and Joe Kanefield would not have the appellate court hear the case - much less issue a ruling - until the second week in September.

And it could be even longer than that: Assistant U.S. Attorney Daniel Tenny said the federal government actually needs more time than the governor has offered to respond to the appeal. Under his schedule, the hearing might not occur until the end of September or early October.

In their filing Thursday, Brewer's attorneys did not cite any specific errors the governor believes the judge made. But they argued there is a need for a quick decision.

"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.

Brewer put a sharper point on it.

"Every day that we lose, in my opinion, is another day we don't have any solution to the problems that Arizona's facing," Brewer said. "And we have suffered long enough."

There may, however, be a way around at least some of the legal fight: Brewer said she is weighing whether to ask state legislators to make some minor changes in the law that might get around the legal problems the judge cited in issuing the injunction.

For example, Bolton said a provision requiring police to check the immigration status of anyone arrested also sweeps in those who are not actually handcuffed and taken to jail but also thousands who are simply cited at the scene and released.

Bouma tried to convince the judge that lawmakers really meant it to apply only to those actually "booked." But she said that's not what the law said.

But that will get a fight from Sen. Russell Pearce, R-Mesa, who crafted the original legislation. "It doesn't need to be fixed," he said, saying the judge was just wrong.

"Why would I pander to her?" Pearce continued. "She's an activist judge looking for an appointment to the 9th Circuit."

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 had shown it is likely that SB 1070 is pre-empted by federal law.

He said that is a question of law - rather than disputed facts - a question he said the appellate judges will want to consider themselves, from scratch.

The governor may not be the only one seeking appellate review.

In issuing her ruling Wednesday, Bolton rejected the request by the Justice Department to enjoin enforcement of some sections of SB 1070. These deal largely with those who harbor or transport illegal immigrants or urge them to come to this country illegally.

Dennis Burke, the U.S. attorney for Arizona, said any decision will have to come from the Solicitor General's Office in Washington.