Judge hits state with $2m in legal fees for ‘dreamers’ license suit

The unsuccessful bid by Gov. Jan Brewer and the state to keep “dreamers” from getting licenses to drive is going to cost Arizona nearly $2 million.

In an order Monday, U.S. District Court Judge David Campbell said the challengers to the former governor’s executive order are entitled to almost $1.9 million in legal fees. And Campbell agreed they are owed more than $81,000 in other costs.

That’s on top of whatever the state had to pay its own outside attorneys in the losing legal effort, a number that the Attorney General’s Office said was not immediately available.

“That’s outrageous,” Brewer told Capitol Media Services when informed of Campbell’s order. And the now-former governor said she still believes her directive to deny licenses to dreamers based on her reading of state law was legal, no matter what the courts ruled.

“I believe in the judicial system,” she said. ” But I think that our interpretation was correct.”

But paying this tab isn’t going to end the amount of taxpayer money being spent over the fight on who is entitled to legally drive in the state.

Gov. Doug Ducey is currently engaged in a separate and protracted legal battle to deny state-issued licenses to other “deferred action” recipients who were not part of the first lawsuit.

There is no current tally of what that fight is costing taxpayers. But as of a year ago the state Department of Transportation said it already had paid out almost $210,000 to lawyers representing the governor in that legal fight.

And if Ducey loses, taxpayers again will be on the hook for the legal fees of challengers.

Campbell’s order finally ends the first legal fight that goes back to 2012.

That’s when the Obama administration created the Deferred Action for Childhood Arrivals program. It says that those who arrived in this country illegally as children could stay without fear of deportation and even legally work if they met certain other conditions. At last count there were about 31,000 DACA recipients in Arizona.

Brewer, in an executive order, directed the Arizona Department of Transportation to deny licenses to DACA recipients, saying they are not qualified under a 1996 state law that says licenses are available only to those whose presence is “authorized by federal law.” She specifically argued that the U.S. Department of Homeland Security has no legal authority to permit DACA recipients to remain and work.

That argument failed to convince federal judges who said Arizona cannot decide for itself who is legally entitled to be in the country. In fact, appellate Judge Harry Pregerson wrote that Brewer’s order was motivated by “a dogged animus” against DACA recipients.

Even after Brewer left office at the end of 2014, the state kept fighting the lawsuit all the way to the U.S. Supreme Court, which issued a final ruling earlier this year. That paved the way for Campbell to award legal fees to the challengers, including the Mexican American Legal Defense and Educational Fund, the National Immigration Law Center and the American Civil Liberties Union.

What’s now left is Ducey’s own legal fight with deferred-action recipients which in some ways is a spinoff of the original — and now lost — legal battle.

In contesting Brewer’s order, one of the arguments made by challengers is that the state was not being fair because it had been providing licenses for years to those in other deferred-action programs. These included domestic violence victims, those with pending visa applications, and those allowed to stay for humanitarian reasons.

So in its bid to buttress the decision to deny licenses to dreamers, the state stopped issuing licenses to those in the other covered groups. And since they were not included in the original laws — they had been getting licenses until being cut off — they were not covered by the separate ruling on behalf of dreamers.

That resulted in a new lawsuit by those affected, this one specifically against Ducey. And he hired his own attorneys — at state expense — to argue that these other deferred-action recipients are not entitled to a state license to drive.

Ducey has defended maintaining the lawsuit, even in the face of the U.S. Supreme Court ruling against Arizona in the earlier case. But the governor has so far had no better luck than his predecessor in convincing the courts to deny the bid by these other deferred-action recipients for the right to drive legally.

Campbell, who is hearing that case, too, said there is evidence that the individuals who sued are being denied the same driving privileges that ADOT grants to others who have similar legal status. And he rejected claims by Douglas Northup, the attorney Ducey hired at state expense, that these people 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 had been publicized,” the judge wrote.

Ducey now is seeking review by the 9th Circuit Court of Appeals.