Federal attorneys are urging a judge not to allow others challenging Arizona's new immigration law to piggy-back onto their case.
In legal papers filed Tuesday, lawyers for the U.S. Department of Justice said allowing the claims of a Phoenix police officer and Chicanos Por La Causa to be combined with their own legal arguments would undermine their efforts to have the law voided. Joshua Wilkenfeld, the assistant U.S. attorney who signed the pleadings, said consolidation would be "inappropriate.''
But attorney Stephen Montoya who made the request said it is the federal government that is being inappropriate by refusing to work together.
"Individuals have the right, in my opinion, to expect their federal government to step up and defend them in court,'' he said.
Montoya said the only reason he filed his lawsuit on April 29 is that the Department of Justice was nowhere in sight after Gov. Jan Brewer signed the measure. In fact, the federal government did not enter the fray until July 6.
He said if the Obama administration had acted earlier he and his clients never would have gotten involved. But now that they have, Montoya said, it makes sense to combine the two cases -- and probably the five others lawsuits also challenging the law.
Much of Montoya's case is based on the claim by David Salgado, a Phoenix police officer, that SB 1070 is unconstitutional. Salgado wants the court to declare the law unenforceable to keep him from having to choose between enforcing what he believes is an illegal law or risking losing his job for failing to do so.
The Department of Justice case is a bit more generic, claiming that various provisions of the law, set to take effect Thursday, are an illegal effort by the state to intrude into the exclusive right of the federal government to control immigration policy."
"Both actions seek the same relief,'' Montoya wrote to U.S. District Court Judge Susan Bolton who is hearing both cases.
He said they both seek a preliminary injunction precluding certain sections from being enforced while the merits of the law are litigated. And, ultimately, both want those sections of the law struck down.
Bolton heard separate legal arguments on the motion for preliminary injunction earlier this month, along with a third request filed by attorneys for civil rights groups. As of late Tuesday she had not yet issued a ruling.
Wilkenfeld, in the government's response, said Montoya is wrong.
He said Montoya seeks to void only three sections of the law: one that spells out when police who have stopped someone must check their immigration status, one making it a state crime for people who are not U.S. citizens to not carry their alien registration cards, and one expanding the power of police to make arrests without a warrant.
By contrast, Wilkenfeld said, the Department of Justice is also challenging new provisions dealing with smuggling and harboring illegal immigrants as well as one making it a violation of Arizona law for anyone not in this country legally to seek work.
And Wilkenfeld said there is no evidence that consolidating the cases will result in more efficient handling of the issue.
While Montoya argues that the issues are the same, he doesn't intend to drop his lawsuit if the cases are not consolidated.
Some of that, he said, is related to the fact that he's already put in a lot of work. But Montoya said some of it is political.
"This lawsuit is not a political football to us,'' he told Capitol Media Services.
"I believe that this administration will see it to the end,'' Montoya explained. But he noted there are moves in Congress to block the Department of Justice from pursuing the lawsuit.
And it's an open question of who will be in the White House after the 2012 election, with the possibility that the case, what will all the appeals, could drag on that long.
"That makes us think that we cannot rely on the federal government to defend our rights exclusively,'' Montoya said. "Even though we would like the protection of the federal government, like all citizens of the United States would like the protection of the federal government, we also have to be realistic and be prepared to defend ourselves if the federal government, for some reason, isn't there to defend us any more.''
Wilkenfeld said there's another difference between the cases: He noted the state is challenging the legal right of Salgado to sue. By contrast, Wilkenfeld said, that question is not present in the government's case.
Montoya countered by pointing out that attorneys for Gov. Jan Brewer, in their own response to the Department of Justice lawsuit, claim the federal government has not shown any actual harm from SB 1070 and therefore has no right to challenge the law.