Unwilling to rely on the outcome of their new lawsuit, business groups trying to void Arizona’s employer sanctions law are asking a federal appeals court to overturn a judge’s ruling throwing out their original claim.
Attorney David Selden took the first steps Friday to appealing the week-old ruling by U.S. District Court Judge Neil Wake that the businesses do not have legal standing to challenge the law. Wake said they sued the wrong defendants.
The judge also said they provided no evidence that anyone would be harmed if the main part of the statute — letting a judge suspend or revoke the license of firms that hire undocumented workers — takes effect.
But the appeal does more than set up a parallel process for attacking the law. It gives the businesses two additional chances to get a restraining order barring the state from enforcing the law scheduled to take effect on Jan. 1.
First, by filing a notice of appeal, Selden can argue to Wake that it would be unfair to subject companies to the requirements of the law until the 9th U.S. Circuit Court of Appeals gets a chance to review the trial judge’s ruling.
That could take months.
And even if Wake refuses, Selden then can ask the appellate judges to issue their own restraining order.
The legal maneuvers come five days after Selden filed a second lawsuit challenging the law. That new lawsuit seeks its own restraining order against enforcement until the new complaint can be heard.
Wake has scheduled a hearing for Tuesday on that request.
But the judge indicated Thursday he may not grant the stay, saying there would have been no reason for a new lawsuit — and no pressing Jan. 1 deadline — had challengers properly prepared the first lawsuit.
In tossing the case, Wake pointed out that he was being asked to bar the prosecution of anyone for knowingly hiring undocumented workers. Businesses also want an order ensuring they can’t be forced to check the legal status of new employees through the government’s E-Verify program.
But Wake said the people empowered to enforce the law are the 15 county attorneys, none of whom were named as defendants in the case. Instead, the challengers sued the Attorney General’s Office.
Selden’s new lawsuit does add the county attorneys. But he said he still believes there was nothing wrong with the original claim, saying the attorney general has a role in enforcing the law.
If the 9th Circuit agrees, that doesn’t mean the businesses win and the law goes away. Instead, the appellate judges would send the original case back to Wake with direction to consider the actual merits of their claims.
Central to those claims is the argument that Congress does not allow states to determine who is in this country legally or to punish firms which hire undocumented workers. That’s the conclusion reached in July by a federal judge in Pennsylvania who voided a city ordinance in Hazelton taking away city licenses of firms that hire those not here legally.