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Judge holds off on decision after Erie County clerk, state argue over Green Light Law

Tom Dinki/WBFO News
Erie County Clerk Mickey Kearns addresses the media after Wednesday's hearing over his Green Light Law lawsuit.

Will New York’s Green Light Law put county clerks at risk of being federally prosecuted for helping hide undocumented immigrants?


That was one of the main questions debated Wednesday during oral arguments for Erie County Clerk Mickey Kearns’ high-profile lawsuit against the state for allowing undocumented immigrants to obtain driver's licenses.


U.S. District Judge Elizabeth Wolford ultimately reserved decision on Kearns’ request she put an injunction on the new law, saying she hopes to make a decision in mid-November.


“We knew when we filed this paperwork that this was not going to be a sprint — this is going to be a marathon,” Kearns told reporters after the hearing, “and whatever decision is rendered, we will continue to fight and we will continue to make sure we are doing the proper thing.”


The Driver's License Access and Privacy Act, known as the Green Light Law, was signed into law by Gov. Andrew Cuomo in June and is set to take effect Dec. 14.


The law will mean Kearns and other county clerks across the state, who oversee their local Department of Motor Vehicles (DMV) offices, have to provide driver’s licenses to undocumented immigrants.


 It will also prohibit their offices from sharing drivers’ information with immigration enforcement officials and mandate they warn drivers if immigration officials ask for their information.


Kearns says the law is unconstitutional and meant to shield undocumented immigrants from Immigration and Customs Enforcement (ICE), while the state contends it is constitutional and meant to ensure drivers are licensed and insured.


But much of the Wednesday’s arguments focused not on the law’s constitutionality, but whether Kearns even has the legal standing to challenge it.


“If not the county clerks, who are most affected by the requirement they implement the terms of the Green Light Law, then who?” said Kearns’ counsel, Assistant County Attorney Kenneth Kirby.


He argued that if Kearns complies with the Green Light law, he could potentially be charged with the federal anti-harboring statute, which makes it illegal for someone to help hide someone who is in the country illegally.


If Kearns refuses to comply with the Green Light law, Cuomo and the state Attorney General’s Office could remove him from his position as clerk.


“We’re between a rock and a hard place,” Kearns told reporters after the hearing.


However, state Assistant Solicitor General Linda Fang argued neither threat is credible.


She cast doubt on whether there’s a realistic chance Kearns could be federally prosecuted. She said 13 other states allow undocumented immigrants to have driver’s licenses and she’s not aware of any of their public officials being charged for it.


Plus, Fang noted Kearns would not even be the one directly providing the driver’s licenses to the undocumented immigrants, leading to a debate in court about whether Kearns ever works the counter at the DMV.


“We had 600 people come to the Cheektowaga facility on Saturday. That’s why we hire people to do that,” Kearns told reporters before adding, “They’re acting on behalf of this office.”


As for the argument he’ll lose his job if he doesn’t carry out the Green Light Law, Fang said there’s not necessarily true. He might just be stripped of his authority over driver’s licenses, she suggested.

Plus, she said that’s not a valid argument in a lawsuit.


“That’s a self-inflicted injury for not wanting to administer the act,” she told the judge.


There was also argument over the Green Light Law’s requirement that clerks’ offices withhold drivers’ information to immigration officials, and that they alert drivers within three days if immigration officials obtain warrants for their information.


Kirby argued Kearns has the right as a citizen to assist the federal government in enforcing its laws.


Fang said Kearns and other clerks are already prohibited from using drivers’ information for non-DMV purposes, adding that immigration enforcement is not a DMV purpose.


“He can freelance as an ICE agent, but not when he’s acting in the capacity of the DMV,” Fang said.

Kearns, speaking after court, pointed out he was wearing an ICE pin on his suit jacket, but said he has no plans of working for ICE.


Pro-immigration activists were in attendance at the hearing, including the New York Immigration Coalition, which advocated for the Green Light Law.


Meghan Maloney de Zaldivar, the group’s Western New York manager of member engagement, called Kearns’ arguments “politically motivated,” adding that politicians are using the issue to “divide the public.”


Kearns said he’s not trying to divide the public, adding his office often works with refugees and that he recently visited Italy and Ireland.


“This is not about policy. This is not about individuals. It’s about the constitution,” he said.


The Trump administration may become involved in the lawsuit, according to Kirby. He said the administration told him it plans to submit papers in the case, adding it has until Nov. 12 to do so.

That would coincide with Wolford’s timeline to make a decision around mid-November.


“I can’t speak for her whether or not she is going to make a decision before or after she receives those papers,” Kirby said.

Tom Dinki joined WBFO in August 2019 to cover issues affecting older adults.
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