PHOENIX (By Mary Jo Pitzl and Ronald J. Hansen, Arizona Republic) December 22, 2007 — Arizona's employer-sanctions law survived its second legal challenge Friday when a federal judge ruled the public would suffer the greater harm if the measure fails to take effect on schedule.

The decision by U.S. District Court Judge Neil V. Wake clears the way for the measure to become law in 10 days, on Jan. 1. Wake denied a request to block the law temporarily, pending further court hearings on whether it is constitutional.

In his ruling, Wake wrote that despite the business groups' arguments they would be harmed by the law, the greater harm would be to the general public if the law is blocked.

"The balance of harm tips sharply against plaintiffs, not in their favor," Wake wrote.

He noted that the county attorneys charged with enforcing the law stated in court this week they could not bring any enforcement actions until at least Feb. 1, casting doubt on arguments that the debut of the law would hurt anyone in the short run.

The business and Hispanic civil-rights groups challenging the law said they intend to seek an injunction from the 9th U.S. Circuit Court of Appeals in San Francisco. Late Friday, that court decided it would not hear any motions to block the sanctions law until there is a ruling in a Jan. 16 Phoenix hearing on the merits of the law.

A full hearing on the merits of the law is set for Jan. 16 in Phoenix, giving the business and civil-rights groups time to make their case for stopping the law before any businesses are prosecuted.

The ruling was not a surprise to the plaintiffs, who had been buffeted by tough questioning from the judge at two hearings in the last two months.

"Just based on where he was coming from in the last hearing, you could tell this is what he was going to do," said David Jones, president of the Arizona Contractors Association, one of the 12 business groups suing over the law. "We kind of felt like the (appeals court) was going to have to decide this all along."

The Legal Arizona Workers Act, now known as the Employer Sanctions Law, was passed by the Legislature in June and was signed into law in July by Gov. Janet Napolitano. The law requires employers to check the validity of new hires' identities against a federal database that taps into information maintained by the Social Security Administration and the federal Department of Homeland Security.

Attorney Julie Pace said in an e-mail to reporters the judge in Phoenix cited no evidence to back up his finding that a restraining order would harm the public more than a lack of one would harm business and Hispanic groups.

"The court used general statements of national consequences regarding immigration without reference to specific events in Arizona," she noted.

Attorneys for the state welcomed the ruling. "We are thankful for a well-reasoned opinion and we are continuing to prepare for the hearing on Jan. 16," said Andrea Esquer, spokeswoman for the Arizona Attorney General's office.

The lawsuit names the attorney general, as well as the state's 15 county attorneys.

In denying the restraining order, Wake said the groups "have not shown a likelihood of success on the merits, much less a strong likelihood." Being able to demonstrate that likelihood is a key factor in granting such an order.

Wake also denied the groups' request for a preliminary injunction. That could have delayed the law indefinitely. Again, Wake said he was not impressed with arguments that it would be costly for businesses to comply with the law's requirement to use the Jon Garrido for Phoenix City Council
system to check on the legality of new hires. The system is free and computer based.

He said businesses "suffer only the expense of having their computer staff log some more hours, with off-setting business benefits as well, and helping authorized workers clear up their records."

In contrast, low-wage workers who are legally in the country suffer the downside of competing against illegal labor which can always underbid them, Wake noted. It's those workers who would feel the greatest harm from the sanctions law not being enforced, he wrote.

If the decision wasn't surprising to those involved in the case, it did raise eyebrows to some who are not. Some lettuce growers in Yuma seemed to expect the law would be put on hold, said Ken Rosevear, executive director of the Yuma County Chamber of Commerce. What's more, it comes at a critical time for that industry, he said.

"January is the peak for harvesting. This stuff is time sensitive," Rosevear said. "It only has a few hours before it has to be on a truck rolling."

The law will go into effect as crossing the Mexican border there is increasingly difficult, he said. "Right now the border problem is a bigger problem than the verification issue," he said.

Steve Chucri, president of the Arizona Restaurant and Hospitality Association, said he was disappointed Wake seemed to give short shrift to the argument that complying with the sanctions law will cause a financial burden.

"Maybe in the court's eyes that doesn't seem like a lot of money or a cause for injury but you have to look at this in its totality," Chucri said. Many smaller restaurants are already seeing operating costs rise $100,000 while larger ones are absorbing $1 million spikes due to the higher minimum wage, he said. "Adding another $76,000 to your costs per year is not something to just blink at."

Wake's action moves the legal drama to San Francisco, where attorneys for the business and civil-rights groups have already laid the groundwork for requesting a restraining order from the federal appeals court. That court has only three business days left this year, as it is closed Dec. 24 and 25 for Christmas, as well as Dec. 31 for New Year's Eve.