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. Photo: Hans Pennink/AP

An effort by the New York Attorney General's Office to consolidate two separate lawsuits over a new state law that is set to allow undocumented immigrants to obtain driver's licenses in New York was rejected Wednesday, when a federal judge declined to transfer one of the matters out of Albany.

U.S. District Judge Gary Sharpe of the Northern District of New York in Albany wrote in the decision Tuesday morning that the Albany-based suit had no connection to the other in Buffalo.

"The Northern District of New York's jurisdiction encompasses the capital of New York State, where most, if not all, witnesses, documents/proof, and operative facts are located," Sharpe wrote. "This case has practically no connection at all to the Western District."

Sharpe did, however, decide to put proceedings in the Albany case on hold until a federal judge in Buffalo hands down a ruling in that case on either a motion to throw out the litigation or stop the state from enforcing the statute. The law is set to take effect in December.

The legal challenge before Sharpe was brought earlier this year by Rensselaer County Clerk Frank Merola, who's argued that the law is both unconstitutional and would require him to break the law by granting driver's licenses to undocumented immigrants.

Merola is represented by Karl Sleight of the Harris Beach law firm and Rensselaer County Attorney Carl Kempf in the challenge, which is targeting the state's so-called Green Light Law.

The measure, approved by the Legislature this year and signed into law by Gov. Andrew Cuomo, would allow undocumented immigrants to apply for driver's licenses in New York state. Those individuals would not have to reveal their immigration status at any time during the application process, and their personal information would be kept from authorities.

It was first challenged in federal court by Erie County Clerk Michael Kearns, who argued, like Merola, that the statute would force him to break federal law by helping undocumented immigrants with efforts to remain in the country.

Kearns brought the case in the U.S. District Court for the Western District of New York, where it's before U.S. District Judge Elizabeth Wolford.

In that case, attorneys for Kearns have filed a motion for a preliminary injunction, which would stop the state from enforcing the law when it takes effect. The state, meanwhile, has filed a motion to dismiss the litigation.

Enforcement of the law isn't a choice for county clerks in New York. If they choose to forgo compliance with the statute, they can face sanctions. Among them is the possibility of being removed from office by Cuomo, who has exclusive power to do so.

Both Kearns and Merola, who filed his lawsuit a few weeks later, argued that the law would put them in the impossible situation of either risking federal prosecution by complying with the law or the state consequences if they didn't.

Attorneys for New York state have argued, in return, that neither Kearns nor Merola would be at risk of federal charges because they wouldn't, at any point, learn the immigration status of the individuals applying for licenses under the law.

But rather than litigate the two cases separately, the New York Attorney General's Office was seeking to move Merola's case to the Western District of New York to be consolidated with the challenge from Kearns.

Attorneys for the state had argued that, because Kearns filed his lawsuit first, and the two were substantially similar, they should be litigated together.

In federal court, there's a presumption that the case filed second will yield to the initial legal challenge, but there are exceptions to that rule, Sharpe wrote. Chief among them, he said, is when the presumption is measured against factors of convenience.

Sharpe, in declining to transfer Merola's case to the Western District, wrote that it would be more convenient for the litigation to remain in Albany.

"Merola obviously chose this forum and is of less means than defendants," Sharpe wrote.

Attorneys for Merola had also argued against any pause in their lawsuit, warning that they could be precluded from seeking injunctive relief before the law takes effect if the proceedings in Kearns' litigation drag out.

Sharpe addressed that concern by noting the timeline in the Kearns litigation. Briefs on the dual motions before Wolford in the Western District are scheduled to be submitted later this month, with a decision expected shortly thereafter.

If there's no decision in the Kearns matter by the beginning of November, Sharpe wrote, Merola's attorneys will have the opportunity to outline how they'd prefer to proceed before the law takes effect.

Sleight, one of Merola's attorneys, said when reached by the New York Law Journal Wednesday that they were satisfied with Sharpe's decision to leave the case in Albany.

"We're certainly pleased that Judge Sharpe agreed that the Northern District was the proper venue," Sleight said. "We thought it was curious that the attorney general, with all its resources, wanted to vacate the capital district and have this case heard in the Western District."

New York Attorney General Letitia James did not comment on the outcome of the decision Wednesday, but said her office will continue to defend the law in whichever venue a challenge exists.

"The Green Light law aims to make our roads safer and our economy stronger," James said. "As the state's attorney and chief law enforcement officer, I will continue to vigorously defend this law."

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