Attorney Victor Viramontes of the Mexican American Legal Defense and Educational Fund contends the Brewer administration is improperly hiding behind claims of privilege to avoid answering questions about how she and the Department of Administration came up with the policy. He wants U.S. District Court Judge David Campbell to order both ADOT and Brewer's staff to produce documents leading up to the policy change.
The move is getting a fight from the governor's lawyers.
In his own filings with the court, Douglas Northup, lead counsel for Brewer, charges that MALDEF has been “asking blatantly inappropriate questions aimed at invading the attorney-client privilege.” He wants Campbell to rebuff Viramontes.
What the judge rules could determine the ultimate outcome of the case.
Viramontes said that the question of whether those in the Deferred Action for Childhood Arrivals program are entitled to Arizona licenses goes beyond the simple issue of whether they are authorized by federal law to be in this country.
He pointed out that the lawsuit is based in large part on MALDEF's contention that Brewer and her staff decided ahead of time they wanted to deny licenses to DACA recipients but wanted to do it in a way so that the policy change would not affect others in the country illegally. That, Viramontes said, would violate constitutional requirements to treat all people equally.
Earlier this year Campbell said there appears to be some basis for that equal protection claim. So ADOT altered the policy, again, in a way that Viramontes argues was similarly designed mainly to keep licenses out of the hands of DACA recipients.
“Under the equal protection analysis, your motivation is one of the key factors that you have to evaluate to figure out if they're discriminating,” he said. “By denying us this discovery, they're keeping us from proving our case.”
What Viramontes wants are internal memos and emails among ADOT and Brewer staff made ahead of the policy changes, and he wants those involved in changing the policy to answer questions about how all that came about.
So far he has questioned ADOT Director John Halikowski and several others. He said, though, it may become necessary to take a deposition from Brewer herself.
Northup told Campbell there are reasons the judge should reject Viramontes' request. One is the issue of attorney-client privilege.
“The privilege's purpose is to encourage full and frank communication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice,” he wrote in his legal briefs. Northup said that should not be broken.
But Viramontes said it appears the lawyers were doing more than simply providing advice as requested.
“It looks like the attorneys were present at all the meetings or did all the work, one of the two,” he said. “And they can't shield the entirely of governmental work just by having a lawyer there.”
Brewer's other claim is that any internal discussions are protected because they are part of the “deliberative process.” Northup said government agencies are entitled to withhold documents “that reflect advisory opinions, recommendations and deliberations comprising part of a process by which government decisions and policies are formulated.”
Viramontes said all that's irrelevant, at least here.
“In the context of a discrimination case, there is no ‘deliberative process,’” he said. Viramontes told the judge that Brewer and ADOT are trying to have it both ways.
“Defendants claim that their actions were not motivated by an improper purpose, yet at the same time seek to shield documents and conversations regarding the bases for their decisions to prohibit driver's licenses to the plaintiffs and other deferred action recipients,” he wrote.
Questions of privilege aside, Northup contends that any unstated intent that those who crafted the policy had is simply irrelevant to the lawsuit. He said Viramontes can get the evidence he needs to show the state had a rational basis for both the 2012 policy and this year's changes without getting the documents he now wants.
Brewer's original executive order in August 2012 concluded that the Obama administration's DACA program did not amount to legally authorizing anyone to be in this country.
She said the program simply allows those who arrived as children to remain and work without fear that Homeland Security will seek to have them deported. And that, Brewer said, still leaves those who qualify for DACA outside the requirements of a 1996 state law saying licenses are available only to those whose presence is “authorized by federal law.”
Earlier this year, though, Campbell noted that Arizona was still granting licenses to those in various other “deferred action” programs. That, he said, opened the door for MALDEF to argue equal protection violations.
In response, ADOT rescinded its own long-standing practice of granting licenses to those in these other groups, including victims of domestic violence who the Department of Homeland Security has allowed to remain in this country.
Gubernatorial press aide Andrew Wilder did not respond to requests for comment on the latest court filing.
He also refused to discuss this year's policy change when it became public. Instead he issued a prepared statement saying the change in policy affects only those who "cannot demonstrate authorized presence under federal law.''
But Wilder would not explain why ADOT had, until now, granted licenses to those in other “deferred-action” programs.
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