A battle is being waged through legal briefs over whether a handful of Arizona businesses that indicated they intend to violate the employer sanctions law by hiring illegal immigrants should be allowed to remain anonymous in court, but at least one lawmaker believes the attempt will be unsuccessful.
“It may not reach the legal threshold,” said Rep. Kyrsten Sinema, a Valley attorney and critic of the sanctions law.
At issue is a push by a coalition of business groups challenging the law to convince the court to consider three Maricopa County businesses that have signed affidavits stating they will continue to violate the law when it goes into effect in January.
“Revealing their identities would work a substantial burden on the employer and their employees,” attorney David Selden wrote Dec. 10 when asking the court to shield the businesses. “It would chill similar challenges to unconstitutional state laws and discourage parties from defending their constitutional rights.”
The affidavits were filed as part of a second legal challenge brought by the business groups. The first lawsuit was dismissed Dec. 7 after a U.S. District Court judge ruled there was no standing to sue because, among other reasons, the plaintiffs’ businesses said they hired only legal workers and thus would not be prosecuted under the new law.
One of the business owners also swears he or she has “personally been threatened by employees of the Maricopa County Sheriff’s Office and Maricopa [County] Attorney’s Office that my business or I will be prosecuted under the…employer sanctions law,” addressing another of the shortcomings in the first lawsuit that was cited as a reason for its dismissal.
But in a Dec. 21 filing, Solicitor General Mary O’Grady wrote that it was “troubling” that businesses would admit to violating state and federal laws prohibiting hiring illegal immigrants, and then ask the courts to hide their identities to avoid detection by the law enforcement agencies tasked with enforcing the law.
“Those who knowingly choose to violate the law should be prepared to bear the consequences,” O’Grady wrote.
She also argued there is no reason to believe any business will be selectively prosecuted for participating in the lawsuit, and the claim that one business had been personally threatened by Maricopa County officials amounts to little more than officials pledging to carry out their obligations to enforce the law.
Selden also argued there was no need to identify the businesses, as there is no “public benefit” gained by revealing their identities.
But O’Grady said anonymity would prevent the defendants from deposing or cross-examining the business owners “and would be hampered in their ability” to defend the law.
Sinema, D-15, said she believes the “John Doe” business owners, as they are referred to in court documents, have a valid concern about being targeted by county officials for retribution. Given the vindictive history of both Sheriff Joe Arpaio and County Attorney Andrew Thomas, she said, “businesses that participate in this suit would face harm” and could lose their business licenses.
“Even people who support Sheriff Joe and Andy Thomas would say, ‘Of course they’ll go after those companies,’” Sinema said.
But she also concedes that O’Grady’s arguments against allowing the businesses to remain anonymous are legally sound.
“Whether or not it reaches a legal threshold has nothing to do with whether their concerns are valid,” Sinema said. “I think that’s why people hate attorneys — because what’s right and wrong isn’t always what’s legal.”
Wake is expected to rule on the plaintiff’s motion seeking a protective order for the John Doe affiants before a scheduled Jan. 16 preliminary injunction hearing.