A protester holds a sign as members of the state Assembly speak in favor of legislation of the Green Light Bill granting undocumented Immigrant driver's licenses during a rally at the state Capitol in Albany, N.Y., on Monday. Photo: Hans Pennink/AP

Attorneys for Rensselaer County Clerk Frank Merola said in a new court filing that they're uniquely situated to challenge a state law allowing undocumented immigrants to obtain driver's licenses, fighting an attempt to combine their case with one in Buffalo over the same issue.

They also argued that consolidating the two cases would delay an outcome in the litigation, likely beyond the date when county clerks are set to start granting those licenses in December.

"There is no time for Defendants' procedural maneuvering," Merola's attorneys wrote. "The Green Light Law is scheduled to go into effect on December 14, 2019. … Significant preparation and ramp-up will be required by Mr. Merola and his staff if this law were to go into effect."

Merola is represented in the litigation by Karl Sleight and Elliot Hallak, both attorneys with Harris Beach in Albany. 

Their filing was in response to a motion from the New York Attorney General's Office last month to transfer the case to the U.S. District Court for the Western District of New York in Buffalo, where another challenge to the law from Erie County Clerk Michael Kearns is ongoing. 

The Attorney General's Office had argued in its motion to transfer the case to the Western District that blending the two lawsuits would streamline the litigation and allow the state to avoid duplicative efforts in defending multiple, similar challenges to the same law.

"Here, a significant, and wholly unnecessary, multiplicity of litigation, duplication of pleadings and motions, and corresponding multiplication of effort on the part of the parties and the courts, will result if this matter is not transferred to the W.D.N.Y.," the Attorney General's Office wrote.

It also noted that consolidating the litigation would avoid a situation where two federal judges issue conflicting rulings, which would then have to be resolved by the U.S. Court of Appeals for the Second Circuit.

Merola brought his suit in the Northern District of New York shortly after Kearns filed his challenge against the law in July. Both lawsuits were filed against Gov. Andrew Cuomo, New York Attorney General Letitia James, and state Department of Motor Vehicles Commissioner Mark Schroeder. 

Merola's attorneys argued that, beyond the fact that his challenge came second, there's nothing tying their case to Western New York. In fact, they argued, there's an argument to be made that the Northern District, which includes Albany, has stronger ties to the litigation.

The statute, called the Green Light Law, was approved by the Legislature and signed by Cuomo in Albany, they noted. Plus, all three state officials targeted by the litigation maintain a principal office in Albany, and the majority of state DMV employees work outside the Western District.

"Here, the relevant factors weigh decidedly in favor of denying Defendants' request," Merola's attorneys wrote. "Notably, Mr. Merola's selection of this District as the venue for this action is entitled to significant deference since this District has — by far — the most substantial connection to the parties and the underlying facts."

It's possible, they wrote, that the Northern District may have even been the state's preferred venue if Merola had filed his lawsuit elsewhere, and before Kearns. 

"It is likely that if the Kearns v. Cuomo case was not currently pending, and Mr. Merola had filed this action in W.D.N.Y., [the state] would have moved to dismiss the case based on improper venue," Merola's attorneys wrote.

That was, partly, in response to an argument from the state that the case should be transferred to the Western District based on the so-called first-filed rule. As it sounds, that's when a similar case is consolidated with a different lawsuit that was filed first.

"The plaintiffs in each action are different in name only as they have the exact same job … both bring their respective actions based wholly on the alleged effect they claim the [law] will have on them in their capacity as County Clerks … and both claim that said State law will affect them in the same way," the state wrote.

Both Merola and Kearns were among the county clerks that decried the new law approved in June by the state Legislature that will require them, in December, to begin issuing special driver's licenses to individuals without considering their immigration status. 

Each filed a separate lawsuit with, roughly, the same argument against the statute, which was signed into law by Cuomo nearly three months ago. They claimed the measure contradicted a section of federal law that bars individuals from harboring undocumented individuals living in the country without legal status. 

That puts them in an impossible situation, Kearns and Merola have argued. They can either comply with the law, while risking scrutiny from the federal government, or refuse to issue the licenses and accept ramifications from the state. 

But there are also facts unique to Merola's case that may not be considered if the litigation is consolidated, his attorneys wrote. Rensselaer County, for example, has a 287(g) agreement with U.S. Immigration and Customs Enforcement, in which the county has agreed to cooperate with federal immigration officials.

The conditions of that agreement, which observers have predicted will also be the subject of a legal challenge in the future, contradict the state law, Merola's attorneys argued. 

"The requirements under the agreement are directly at odds with the Green Light Law's prohibition upon disclosing information concerning a person's immigration status or the type of license they applied for or were issued," they wrote.

They may also have an opportunity to fast-track the litigation in the Northern District, Merola's attorneys wrote, because the state hasn't moved to dismiss his lawsuit as of yet, instead opting to file an answer to the complaint last week. 

That gives them the option to now move for the case to be resolved, on its merits, which could lead to a decision before an outcome in the Buffalo case. Kearns has moved to enjoin the state from enforcing the law, but arguments aren't scheduled until late October.

"Defendants should not be allowed to 'run out the clock' on Mr. Merola by further delaying a decision on the merits in this action," Merola's attorneys wrote.

READ MORE:

Granting Licenses to Undocumented Immigrants Won't Place County Clerks at Risk, NY Lawyers Argue in Brief

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