A federal judge on Friday blocked illegal immigrants in the new "deferred action'' program from arguing in court they are being "irreparably harmed'' by the refusal of Gov. Jan Brewer to let them have Arizona drivers' licenses.
Judge David Campbell agreed to a request by the attorneys for the five individual plaintiffs in the lawsuit that they should not be questioned about how they obtained work or are driving. He said that issue is irrelevant to their legal claims that they are being denied equal rights or that the directive issued by the governor denying them licenses is preempted by federal law.
But Campbell said challengers cannot have it both ways.
"Plaintiffs will not be permitted to argue that they were forced to drive or work illegally and that they are irreparably harmed by the inability to work or drive illegally,'' the judge wrote. He said if information on how they were able to drive and get to work is off-limits to the governor, then the plaintiffs themselves cannot use it for their own legal purposes.
The ruling is significant because one key in the lawsuit filed late last year by the challengers is that the governor's order "severely frustrates their ability to obtain employment and achieve economic self-sufficiency.'' That could undermine their bid to convince Campbell at a hearing scheduled for next month to immediately block the governor's directive and to order the state to start issuing licenses to those affected.
Campbell separately rejected a bid by the challengers to question the governor herself. He said that is unnecessary for the purposes of next month's hearing.
But he also rebuffed a bid by the governor to block either side from sharing information about the case with the press and public.
Campbell said it's one thing for parties to a lawsuit to ask that certain documents, like pretrial depositions of those involved and other witnesses, be kept as confidential. But he found this request unacceptable.
"The court will not enter a gag order at this time and will not require that non-confidential information be held confidential,'' the judge wrote.
The fight stems from a decision last year by the Obama administration not to deport illegal immigrants who were brought here as children, were not yet 30 and could meet certain other conditions. The "Deferred Action Childhood Arrival'' policy also entitled those who qualify to get permits to work legally in this country.
These deferrals are for two years but renewable. About 1.4 million nationwide are eligible, including close to 80,000 in Arizona.
Brewer, however, told the state Motor Vehicle Division not to issue any of these individuals a driver's license, citing a 1996 state law requiring applications show their presence is "authorized under federal law.'' She said the DACA program does not authorize anyone to be in the United States but simply says they will not be deported, at least for the time being.
The Arizona Dream Act Coalition and five individuals, represented by various rights groups, want Campbell to rule that Brewer is wrong, arguing the president's action does authorize the presence of those in the DACA program.
Gubernatorial press aide Matthew Benson, asked about the judge's ruling on release of information, denied that Brewer wants to keep information about the legal proceedings from the public. But he indicated the governor has been unhappy with news reports.
"The American Civil Liberties Union has consistently argued this issue in the media and presented information incorrectly,'' he told Capitol Media Services. "We simply want to make sure this issue is litigated in the court, where it's appropriate.''
But Benson insisted the state's request was never to keep attorneys for the other side from talking with the press.
"The state has simply wanted to make certain that sensitive depositions didn't become fodder for the ACLU's PR effort,'' he said.
The latest legal maneuvers come nearly a month after U.S. Citizenship and Immigration Services issued a memo to address frequently asked questions about the DACA program. Of note, the memo says anyone who is approved "is authorized by the Department of Homeland Security to be present in the United States.''
Benson said the governor's legal team continues to study the memo but that the directive remains in place.
Officials in other states, however, apparently have gotten the answers they need.
Two weeks ago, after the USCIS memo was issued, Michigan Secretary of State Ruth Johnson said her agency will issue drivers' licenses to those approved for the DACA program. That reverses Johnson's earlier conclusion that the individuals involved were not in the country legally.
That state had been named in a lawsuit virtually identical to the one pending here.
But the DACA participants in Michigan will get specially designated licenses which will carry expiration dates that match the date that each person's deferral expires.
Iowa officials also have reversed their refusal to issue licenses in the wake of last month's memo.