PHOENIX — Gov. Doug Ducey’s repeated assertions that he is not the one fighting to keep “deferred-action” recipients from getting licenses to drive are not true, a spokeswoman for Attorney General Mark Brnovich said Friday.
Since taking office two years ago, Ducey has refused to overturn a 2012 executive order by predecessor Jan Brewer denying licenses to those who are in this country illegally but allowed to remain and work under policies of the U.S. Department of Homeland Security.
A federal appeals court already has enjoined as unconstitutional part of that order covering “dreamers”; a separate lawsuit by other deferred-action recipients still being denied licenses by the Arizona Department of Transportation is making its way through trial court in Phoenix.
During the last year, Ducey has repeatedly sidestepped questions from Capitol Media Services about his decision to leave Brewer’s order denying licenses in place. The governor said Brnovich’s office is pursuing the issue and he wants to see what the courts ultimately rule.
The governor also said it’s not up to him to decide whether to settle this latest lawsuit. Instead, Ducey said those decisions are being made by Brnovich’s office.
On Friday, however, Brnovich spokeswoman Mia Garcia said that’s not true.
“The Governor’s Office and ADOT (state transportation department) are being represented by outside counsel in this matter,” she said.
It was Brewer who, on her own, hired Douglas Northup to defend her executive order, without going through the Attorney General’s Office. And Northup continues to represent the Ducey administration in court. “Please refer to them for comment,” Garcia said.
Gubernatorial press aide Daniel Scarpinato said Ducey’s numerous prior statements about reasons for leaving the executive order in place and about Brnovich running the litigation were in error.
He said the governor’s comments were not designed to mislead, but that instead were likely mistaken due to the fact that he inherited multiple lawsuits from the Brewer administration when he took office in January 2015. That includes one case since decided by the 9th U.S. Circuit Court of Appeals declaring that Arizona cannot legally deny licenses to those in ex-President Obama’s Deferred Action for Childhood Arrivals (DACA) program.
But the current case involving those in other deferred-action programs — another one Ducey said was being handled by Brnovich — was filed in 2016, after Ducey had been governor for more than a year. And it specifically names Ducey as a defendant because he has the power to rescind Brewer’s order.
A federal judge late last week rebuffed a bid by Northup to throw out the lawsuit filed by some “deferred-action” recipients who are not DACA recipients but also have been denied a license to drive.
Judge David Campbell said there is evidence that the five individuals who sued are being denied the same driving privileges that ADOT grants to others who have similar legal status. He said that gives them standing to bring their case to federal court. The judge also rejected claims by Northup that they actually can get a license — if they produce certain other evidence.
“Indeed, when asked during oral argument where a person could go to learn of this policy and how to comply with it, defense counsel was unaware of any place where it has been publicized,” Campbell wrote.
The lawsuit has its roots in Obama’s 2012 decision creating DACA, which allows those who arrived in this country illegally as children to remain if they met other conditions. Those who qualify are issued Employment Authorization Documents (EAD) permitting them to work legally in this country.
Brewer, in her executive order, directed ADOT not to provide licenses to DACA recipients, saying they are not qualified under a 1996 state law that states licenses are available only to people whose presence is “authorized by federal law.”
But federal appellate judges pointed out that Arizona has long issued licenses to those in other “deferred-action” programs, requiring only their EAD as proof. Appellate Judge Harry Pregerson wrote that Brewer’s order was motivated by “a dogged animus” against DACA recipients.
In the new ruling, Campbell separately refused Northup’s bid to dismiss the governor from the lawsuit.
He said Northup would first have to prove the decision by ADOT to expand the list of who is not entitled to licenses was simply a way of trying to stop the first lawsuit by DACA recipients by showing they were not being singled out.
But Campbell said it’s a whole different story if ADOT is denying licenses to these other deferred-action recipients to comply with the 2012 executive order. That puts Ducey, who has left the order in place, directly in the role of denying the licenses to these deferred-action recipients.
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