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ARCHIVED ISSUE PAGE (LAST UPDATED OCTOBER 2011)

An increasing number of states and local communities have passed laws targeting non-citizens in the United States, creating obstacles to their ability to find work, secure housing, qualify for a driver’s license, and even obtain a marriage license.  With increasing success, immigrant advocates have challenged many of these measures in court.  A summary of the cases are below. 

Contact Us! Please contact the Clearinghouse at clearinghouse@immcouncil.org with any new cases or information relevant to the cases summarized below.

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Contact Us! Please contact the Clearinghouse at clearinghouse@immcouncil.org with any new cases or information relevant to the cases summarized below.

Developments By State

Alabama

Court Issues Preliminary Injunction Barring Provisions of Sweeping Alabama Immigration Law, but Allows Other Provisions to Take Effect

Hispanic Interest Coalition of Alabama v. Bentley, No. 11-2484 (N.D. Ala. filed July 8, 2011); No. 11-14535 (11th Cir. appeal filed Oct. 4, 2011)
United States v. Alabama, No. 11-2746 (N.D. Ala. filed Aug. 1, 2011); No. 11-14532 (11th Cir. appeal filed Oct. 4, 2011)
Parsley v. Bentley, No. 11-2736 (N.D. Ala. filed Aug. 1, 2011)

On September 28, U.S. District Judge Sharon Blackburn enjoined numerous provisions of Alabama H.B. 56 while permitting other sections to go into effect pending a trial on the merits.  The rulings came in response to suits filed by three separate plaintiffs—the federal government (United States v. Alabama), a coalition of civil rights groups (Hispanic Interest Coalition of Alabama v. Bentley), and church leaders (Parsley v. Bentley)—alleging the statute violated various sections of the Immigration and Nationality Act, federal civil rights laws, the First, Fourth, Sixth, and Fourteenth Amendments, and the Contracts Clause of the U.S. Constitution.    

Judge Blackburn barred the following provisions from taking effect:

  • Section 8, which would have restricted access to postsecondary education to U.S. citizens, lawful permanent residents, and temporary nonimmigrants;
  • Sections 10(e), 11(e), and 13(h), which would have forbidden courts from considering evidence of lawful immigration status introduced by defendants whom immigration officials allege be unlawfully in the United States;
  • Sections 11(a) and 11(f), which would have forbidden the solicitation of work by “unauthorized aliens,” and the picking up of individuals on the street for purposes of engaging in work;
  • Section 13, which would have criminalized the concealing, transporting, or renting to unlawfully present noncitizens, or inducing them to come to Alabama;
  • Section 16, which would have prohibited businesses from listing as a deductible expense any compensation paid to employees lacking valid work authorization;
  • Section 17, which would have created a cause of action for U.S. citizens or lawfully-present noncitizens who are fired (or not hired) by businesses in favor of unlawfully present noncitizens. 

Judge Blackburn declined to enjoin other provisions, including:

  • Section 10, which criminalizes noncitizens’ failure to obtain or carry an “alien registration document” provided by the federal government;
  • Section 12, which requires law enforcement officers to investigate the immigration status of any person the officer stops, arrests or detains, if the officer has “reasonable suspicion” to believe the person is unlawfully present in the United States;
  • Section 18, which requires law enforcement officers to arrest and investigate the immigration status of individuals encountered driving without a license;
  • Section 19, which requires the denial of bond to any incarcerated person determined to be unlawfully present in the United States;
  • Section 27, which, with certain exceptions, prohibits state courts from enforcing contracts between undocumented noncitizens and parties who had “constructive” knowledge of their unlawful immigration status;
  • Section 28, which requires school administrators to ascertain and report to state authorities the immigration status of any newly enrolling student who was born abroad or to an undocumented parent;
  • Section 30 makes it a felony for unlawfully present noncitizens to enter into a business transaction with the State of Alabama.

Following Judge Blackburn’s ruling, the United States and the coalition of civil rights plaintiffs collectively asked the U.S. Court of Appeals for the Eleventh Circuit to issue a stay pending appeal of Sections 10, 12, 18, 27, 28 and 30.  The Eleventh Circuit granted the motion with respect to Sections 10 and 28, and denied the motion with respect to Section 12, 18, 27, and 30.

Arizona

For information on the legal challenges to Arizona state law SB 1070, please see the LAC’s Litigation Issue Page Arizona SB 1070, Legal Challenges and Economic Realities.

Class Action Challenges Local Arizona Law Requiring Pretrial Detention
Lopez-Valenzuela v. Maricopa County, No. 08-660 (D. Ariz filed Apr. 4, 2008)
(CASE CLOSED)

On April 4, 2008, plaintiffs and proposed class members brought suit against Maricopa County and county officials, challenging the constitutionality of an amendment to the Arizona state constitution known as Proposition 100. In 2006, Proposition 100 amended the bail provision of the Arizona Constitution to provide that state courts shall not set bail “[f]or felony offenses as prescribed by the legislature if the person charged has entered or remained in the United States illegally and if the proof is evident or the presumption great as to the present charge.” After the passage of Proposition 100, the Arizona state legislature (1) amended the state bail statute to broaden the definition of “serious felony offense” to include a large number of offenses, including non-violent offenses, and (2) lowered the standard of proof required to find that a defendant “has entered or remained in the United States illegally” to a probable cause standard.

The complaint alleges that the Proposition 100 laws -- and defendants’ policies, practices and procedures implementing these laws -- violate plaintiffs’ substantive and procedural due process rights. Plaintiffs also allege that Proposition 100 laws violate plaintiffs’ (1) Fifth Amendment right against self-incrimination (2) Sixth Amendment right to counsel; and (3) Eighth Amendment right to be free from excessive bail. Further, the complaint alleges the laws violate the Supremacy Clause. Plaintiffs request injunctive and declaratory relief, attorneys’ fees and class certification.

On April 30, 2008, Judge Mundell, a defendant in the action, filed a motion to dismiss the complaint against her. On May 14, Maricopa County and other individual named defendants filed a motion to dismiss. On December 9, 2008, the motion to dismiss was granted in part and denied in part. Named defendants were not dismissed from the action; however the court held the plaintiffs had not alleged sufficient facts to support their claim of federal preemption. The December 9 order also granted plaintiffs’ request for class certification.

On December 22 and 23, 2008, respectively, defendants Maricopa County and Mundell filed separate answers to the complaint. On August 14, 2009, pursuant to parties’ stipulation, the claim against Judge Mundell was dismissed.

In August 2010, the Defendants filed a motion for partial summary judgment.  In September, the plaintiffs filed a motion for summary judgment, which argued that Proposition 100 violates the Due Process Clause of the 14th Amendment and the Excessive Bail Clause of the Eighth Amendment, and in the alternative, that a separate policy of forbidding appointed attorneys at initial appearances violates the right to counsel under the Sixth Amendment.  A ruling on the motions is still pending. The Court heard oral argument on these motions on December 13, 2010.

In an Order dated March 29, 2010, the Court granted Defendants’ motion for partial summary judgment and denied Plaintiffs’ motion for summary judgment. On April 27, 2011, in order to proceed with an appeal of the dismissed claims, plaintiffs filed a motion to 1) dismiss the sole remaining claim challenging Proposition 100 under the Self-Incrimination Clause of the Fifth Amendment without prejudice and 2) enter final judgment. On May 13, 2011, the Court granted Plaintiff’s motion to dismiss and motion for final judgment, thereby entering final judgment of dismissal of the action.

First Employer Sanctions Case Under LAWA Pending
State of Arizona v. Scottsdale Art Factory, No. 09-036359, (Ariz. Super. Nov. 18, 2009), removed to federal court, No. 09-02576 (D. Ariz. filed Dec. 9, 2009), remanded to state court (Aug. 27, 2010).

On November 18, 2009, the Maricopa County Attorney in Arizona filed the first case seeking employer sanctions after the Ninth Circuit upheld the Legal Arizona Workers Act (LAWA) in Arizona Contractors Assoc., Inc. v. Napolitano, 526 F. Supp. 2d 968 (D. Ariz. 2007), aff'd sub nom. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), petition for cert. filed sub nom. Chamber of Commerce v. Candelaria, (July 24, 2009) (No. 09-115). The suit against Scottsdale Art Factory, L.L.C., alleges that the defendant violated A.R.S. §§ 23-212 and 212.01 when it knowingly hired an individual not authorized to work in the United States, subjecting it to liability that included employer sanctions. On December 9, 2009, the case was removed to the District of Arizona.

The original complaint filed in state court on November 18, 2009, alleged that during an unrelated investigation into forgery and identity theft, the Maricopa County Sheriff’s Office encountered an employee of the defendant who law enforcement personnel later determined was “residing in the United States illegally.” The complaint requests that the court find that the defendant violated A.R.S. §23-212.01(A) pursuant to the provisions of A.R.S. §23-212.01(F)(1); enter an order that defendant terminate the employment of all unauthorized aliens; suspend defendant’s business license for no less than 10 days; and place the defendant on a five-year probationary period requiring the filing of quarterly reports in keeping with A.R.S. §23-212.01(F)(1)(b).

On January 19, 2010, defendants filed a second amended answer to the complaint and a counterclaim against the Maricopa County Attorney. Defendants denied liability, and, in the counterclaim, alleged that the investigation and prosecution of defendants violated, inter alia, their Fourth Amendment right to be free from unreasonable searches and seizures, Due Process protections under the U.S. and Arizona Constitutions, and the Supremacy Clause. On January 19, 2010, the parties cross-motioned for partial summary judgment. Currently, the case is still pending and no hearing date has been set.

On August 27, 2010, without ruling on the motions for summary judgment, the court granted the state of Arizona’s motion to remand the case back to state court, finding the suit did not sufficiently implicate federal issues.

Court Enjoins Cave Creek Anti-Solicitation Ordinance
Lopez v. Cave Creek, 559 F. Supp. 2d 1030 (D. Ariz. 2008)
(CASE CLOSED)

Day laborers in Cave Creek, Ariz., successfully challenged an anti-solicitation city ordinance. The ordinance, allegedly aimed at day laborers, barred individuals standing on or next to a street or highway from soliciting employment, business or contributions from passing drivers and even individuals in parked cars. The plaintiffs alleged that the ordinance violated the First Amendment because it constitutes a content-based regulation of free speech by prohibiting specific methods of soliciting employment. The plaintiffs also asserted that the ordinance was aimed at illegal immigrants based on public statements made by town officials. The suit sought injunctive and declaratory relief.

On June 2, 2008, the district court found the anti-solicitation ordinance unconstitutional and issued a preliminary injunction. The court reasoned that solicitation is a form of speech, and because the measure is content-based in that it bars only certain types of speech, it is unconstitutional. In the alternative, the court found that the ordinance is unconstitutional because it is not narrowly tailored to fit the local government's purported interest in promoting traffic safety. In addition, the court found that plaintiffs demonstrated a probability of irreparable harm.

On August 8, 2008, the court issued a final order and approved the parties' stipulation for a permanent injunction. The court stated that plaintiffs are the prevailing party for purposes of attorney's fees.

Ninth Circuit Upholds State Law Barring Employment of Undocumented Immigrants; Supreme Court to Review Holding
Arizona Contractors Assoc., Inc. v. Napolitano, 526 F. Supp. 2d 968 (D. Ariz. 2007), aff'd sub nom. Chicanos Por La Causa, Inc. v. Napolitano, 558 F.3d 856 (9th Cir. 2009), cert. granted sub nom. Chamber of Commerce v. Whiting, (June 28, 2010) (No. 09-115)

On September 17, 2008, the Ninth Circuit upheld an Arizona statute that prohibits employers from knowingly or intentionally employing an unauthorized immigrant. The Legal Arizona Workers Act requires employers to verify the employment eligibility of each employee through a federal verification program known as "E-Verify." Under this law, employers may have their business licenses suspended after a first violation, and permanently revoked after a second violation.

On appeal, the issue was whether federal law preempted the Arizona Act. The court of appeals agreed with the district court that the Legal Arizona Workers Act was not preempted by federal law. The federal law provision at issue, 8 U.S.C. § 1324a(h)(2), preempts state sanctions for hiring unauthorized immigrants "other than through licensing and similar laws." The court reasoned that because the Act was a "licensing" law within the meaning of 8 U.S.C. § 1324a(h)(2), it was not expressly preempted. The court held further that the provision of the law requiring employers to use E-Verify is not expressly or impliedly preempted by federal policy.

On July 24, 2009, plaintiffs filed a petition for certiorari with the Supreme Court. The Supreme Court invited the Solicitor General to file a brief in the case expressing the views of the United States. In the brief for the United States as amicus curiae, the Solicitor General asked the court to grant the writ of certiorari to consider whether provisions of the Immigration Reform and Control Act (IRCA), codified at 8 U.S.C. § 1324(h)(2), expressly preempt the provisions of the Arizona state law. According to the United States, the Arizona law is expressly pre-empted by federal immigration law and the case presents an important legal question that warrants the Supreme Court’s consideration.

On June 28, 2010, the Supreme Court granted the petition for certiorari to address three questions:

  1. Whether an Arizona statute that imposes sanctions on employers who hire unauthorized aliens is invalid under a federal statute that expressly "preempt[s] any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.C. § 1324a(h)(2).
  2. Whether the Arizona statute, which requires all employers to participate in a federal electronic employment verification system, is preempted by a federal law that specifically makes that system voluntary. 8 U.S.C. § 1324a note.
  3. Whether the Arizona statute is impliedly preempted because it undermines the "comprehensive scheme" that Congress created to regulate the employment of aliens. Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 147 (2002).

The Court heard argument on December 8, 2010 (click for transcript or audio of the argument). On May 26, 2011, the Court held that the Arizona statute is not preempted by federal law in a 5-3 decision. Adopting a broad definition of licensing, the Court relied on a specific exception in the Immigration and Nationality Act that permits state governments to regulate employment verification through licensing. Click here to read more about the Supreme Court’s holding in Chamber of Commerce v. Whiting.

California 

Permanent Injunction Stops City of Escondido from Enforcing Ordinances
Garrett v. City of Escondido, 465 F.Supp.2d 1043 (S.D. Cal. 2006)
(CASE CLOSED)

After a lawsuit was filed by landlords, tenants, and a human rights group, the City of Escondido agreed not to enforce an ordinance that targets landlords who rent to undocumented immigrants. Both parties asked the court to enter a final judgment and permanent injunction to prevent the defendant, City of Escondido, from enforcing the ordinance. The court permanently enjoined the city from enforcing the ordinance on December 12, 2006.

Georgia 

Civil Rights Groups Challenge Georgia Law Authorizing Police to Demand Documents Demonstrating Immigration Status
Georgia Latino Alliance for Human Rights v. Nathan Deal, No. 1:11-cv-01804-TWT (N.D. Ga. filed June 2, 2011), appeal docketed, No. 11-13044 (11th Cir., July 8, 2011).

On June 2, 2011, several civil rights and faith-based organizations filed a class action challenging Georgia’s comprehensive immigration law, House Bill 87 (“HB 87”). The complaint alleges that HB 87 creates a punitive and comprehensive immigration system that, inter alia: (1) authorizes state and local police to investigate the immigration status of noncitizens and to arrest individuals on suspicion of violating immigration laws [Section 8]; (2) creates new criminal immigration laws relating to transporting, concealing, or harboring “illegal aliens” wholly administered by the state [Section 7]; (3) denies public benefits to noncitizens unable to provide one of several identification documents enumerated by the state; and (4) outlaws the use of foreign consular identification cards.

The complaint charges that HB 87 is unconstitutional because it violates the Supremacy Clause and core civil rights secured by the Constitution, including the Fourth Amendment’s freedom from unreasonable searches and seizures, the Right to Travel pursuant to the Equal Protection Clause and the Commerce Clause, and the Fourteenth Amendment’s guarantees to equal protection and due process under the law. The complaint also alleges that HB 87 separation-of-powers safeguards in the Georgia Constitution. Plaintiffs seek preliminary and permanent injunctive relief and a declaration that HB 87 is unconstitutional.  

The court held a hearing on plaintiffs’ motion for preliminary injunction and defendants’ motion to dismiss on June 20, 2011. On June 27, 2011, the court granted the plaintiffs’ motion for preliminary injunction and granted in part and denied in part defendants’ motion to dismiss.  While the court dismissed plaintiffs’ Fourth Amendment, Right to Travel, Equal Protection, Due Process, and state constitutional claims, the court found that plaintiffs demonstrated a likelihood of success on the merits as to their claims that sections of HB 87 is preempted by federal law.  Accordingly, the court preliminary enjoined enforcement of Sections 7 and 8 of HB 87 (authorizing investigation of immigration status and creating new state crimes) and ordered that state and local law enforcement officers and officials have no authorization to arrest, detain, or prosecute anyone pursuant to these provisions while the injunction remains in effect. 

On July 5, 2011, defendants appealed preliminary injunction order to the Eleventh Circuit and subsequently moved the district court to stay the case pending the outcome of the appeal.

Georgia Court Issues TRO Enjoining Enforcement of Local Ordinance and Stays Proceedings Pending Decisions in Hazleton and City of Valley Park, Mo.
Stewart v. Cherokee County, Ga., No. 07-0015 (N.D. Ga. 2007)
(CASE CLOSED)

A group of Cherokee County residents challenged a local ordinance that created penalties for "harboring" undocumented immigrants. The ordinance defines "harboring" as renting or leasing to an undocumented immigrant knowingly or with reckless disregard of a person's immigration status. Plaintiffs have alleged that the ordinance violates the U.S. Constitution as well as federal and state law. On January 4, 2007, the court issued a temporary restraining order and a preliminary injunction enjoining Cherokee County from enforcing the ordinance. The court stayed proceedings until a final judgment has been issued and appeals have been pursued in Lozano v. City of Hazleton (Pennsylvania) and Reynolds v. City of Valley Park, Mo. (Missouri). On August 28, 2007, the court administratively closed the case.

The court's order granting a preliminary injunction is available on the ACLU's website.

Illinois 

Court Holds Illinois Law Preempted by Federal E-Verify Program
United States v. Illinois, No. 07-3261, 2009 U.S. Dist. LEXIS 19533 (C.D. Ill. 2009)
(CASE CLOSED)

A district court in Illinois held that a state law is preempted by the federal E-Verify program. The court struck down an amendment to the Illinois Right to Privacy Act that barred employers from enrolling in the E-Verify program until the program met certain standards set by the state. On a motion for summary judgment, the court held that the Illinois law violated the Supremacy Clause, reasoning that it frustrates Congress's intent of making the E-Verify program available to all employers in all states. The court stated that the state of Illinois cannot require the federal government to meet its more stringent standards.

Indiana 

Class Action Challenges Indiana Law Allowing Police to Make Warrantless Arrests of Noncitizens
Urtiz v. City of Indianapolis
, No. 1:11-CV 0708 SEB-MJD (S.D. Ind. filed May 25, 2011)

On May 25, 2011, plaintiffs filed a class action challenging Indiana’s Senate Enrolled Act 590 (“SEA 590”). SEA 590 allows state and local law enforcement officers to make warrantless arrests of noncitizens who have been issued a removal order, detainer, or notice of action, even if they have been lawfully released by federal immigration officials and have committed no crime. The law also allows police to arrest anyone who has been indicted or convicted of an aggravated felony, regardless of whether the person is a U.S. citizen, was never convicted of the offense, was released on bail, or has already served a sentence. In addition, SEA 590 makes it unlawful for foreign nationals to offer their foreign government-issued identification card for identification purposes in Indiana. 

Plaintiffs’ complaint charges that the law authorizes police to make arrests without reasonable suspicion or probable cause in violation of the Fourth Amendment.  It further alleges that the Indiana law is unconstitutional because it is preempted by federal immigration law. Plaintiffs filed a motion for preliminary injunction on May 26, 2011, challenging two sections of SEA 590, Section 18 (authorizing warrantless arrest of those with removal order, detainer notice of action, or probable cause of aggravated felony) and Section 19 (prohibiting use of consular identification cards), as unconstitutional.

On June 24, 2011, the court granted Plaintiffs’ motion for preliminary injunction, blocking implementation of Section 18 and Section 19 of SEA 590 until a final determination can be made by the court as to their constitutionality.

Immigrants Prevail Against Driver's License Ordinance
Villegas v. Silverman, 832 N.E.2d 598 (Ind. Ct. App. 2005), cert. denied sub nom. Miller v. Villegas, 130 S. Ct. 400 (2009)
(CASE CLOSED)

A group of individuals brought a class action lawsuit against the Commissioner of the Indiana Bureau of Motor Vehicles (BMV) concerning identification requirements for obtaining drivers licenses and identification cards. The state law required individuals seeking a license or other documents from the BMV to present proof of identification that would confirm their lawful resident status. Plaintiffs challenged the law as unconstitutional and as violating the state Administrative Rules and Procedures Act (ARPA).

The trial court granted summary judgment to defendants, holding that plaintiffs lacked standing to challenge the statute. On September 30, 2008, the Indiana Court of Appeals reversed, holding that plaintiffs had standing to challenge the state law, and that the state law is void because the identification requirements constituted a “rule” and the law was not adopted in accordance with the ARPA.

Kentucky 

Lawful Permanent Resident Successfully Challenges Kentucky Law Requiring U.S. Citizenship to Obtain Weapon License
Say v. Adams, No. 07-377, (W.D. Ky. 2008), opinion on att’ys fees 2009 U.S. Dist. LEXIS 23863 (W.D. Ky. 2009)
(CASE CLOSED)

A lawful permanent resident of Kentucky successfully challenged a state statute that barred resident immigrants from obtaining licenses to carry a concealed deadly weapon. The statute required all applicants for a license to carry a concealed weapon to be U.S. citizens. The complaint alleged that this citizenship requirement violates the Equal Protection Clause. On March 13, 2008, the court granted plaintiff's motion for a preliminary injunction, finding that he was likely to succeed on the merits. On April 15, 2008, the defendant filed a motion to dismiss the action as moot because the state legislature had removed the citizenship requirement from the Kentucky statute.

On June 25, 2008, the court converted the previously preliminary injunction into a permanent injunction. On March, 24, 2009, the court also denied defendant's motion to dismiss as moot and awarded attorney's fees.

Louisiana 

Louisiana Court Finds Statute Targeting Drivers Unconstitutional, Quashes Charges Against Arrestee
State of Louisiana v. Barrientos, No. 06-1726 (La. 24th Jud. Dist. Ct. Jefferson Parish 2007)
(CASE CLOSED)

A Louisiana state court granted defendant's motion to quash in a criminal case involving a law barring certain noncitizens from driving. Barrientos was charged with violating a state statute that prohibits any "alien student" or "nonresident alien" from driving without proof that he or she is "lawfully present in the United States." The law called for the arresting officer to cancel the driver's license and to notify federal immigration officials of the name and the location of the person.

In a January 31, 2007, order, the court held that the statute unconstitutionally preempts federal law. Specifically, the court noted that the terms employed by the statute, "alien student" and "nonresident alien," are incompatible with federal law. Furthermore, the statute's identification requirements place an unlawful burden on noncitizens.

Michigan 

After Suit Filed, MI Enacts New Legislation on Driver's Licenses
Gates et al. v. Land, No. 08-186 (Mich. Cir. Ct., Ingham County 2008)
(CASE CLOSED)

On Febraury 13, 2008, six Michigan residents filed suit against the Michigan Secretary of State challenging a new interpretation of the Michigan Vehicle Code to limit the issuance of driver’s licenses in Michigan to U.S. citizens and lawful permanent residents. The interpretation came after the Michigan Attorney General announced a new interpretation of the Code’s definition of the word “resident.” The complaint alleged that Michigan's interpretation of the Vehicle Code barred thousands of legal residents from obtaining licenses. The Code was subsequently amended to ensure that all legal residents are able to obtain driver's licenses and the case was administratively closed.

Missouri 

Court Grants Summary Judgment to City in Suit Challenging City Ordinance
Gray v. City of Valley Park, No. 08-1681, 567 F.3d 976 (8th Cir. 2009)
(CASE CLOSED)

Following Reynolds v. City of Valley Park (see case description below), the city of Valley Park amended and reenacted ordinances requiring employers to investigate and determine the immigration status of its employees and punish employers suspected of hiring undocumented workers. The plaintiffs, a business and a business owner, brought suit to challenge one such ordinance - ordinance 1722. The complaint alleged that the ordinance conflicts with, violates, and is preempted by IRCA; violates the due process and equal protection clauses of the Fourteenth Amendment; is precluded by Reynolds; and violates Missouri state law.

On January 31, 2008, the court granted summary judgment in favor of the defendants finding that (1) there was no issue preclusion arising from the state court's earlier decision regarding ordinances 1708 and 1715 because ordinance 1722 was not identical to these previously enjoined ordinances; (2) federal law did not preempt ordinance 1722; (3) appellants lacked standing to pursue an equal protection claim; (4) ordinance 1722 did not violate the Due Process Clause; and (5) ordinance 1722 did not violate Missouri law.

Plaintiffs appealed the decision to the Eighth Circuit Court of Appeals. They argued that the court of appeals should remand the case to district court with instructions to vacate the January 31, 2008, decision and to remand the matter to state court based on lack of federal subject-matter jurisdiction. Plaintiffs argued they had standing to seek relief under the Missouri Declaratory Judgment Act in state court, but that there was no case or controversy sufficient to give rise to subject-matter jurisdiction under the Federal Declaratory Judgment Act. Specifically, plaintiffs stated that there was no justiciable case or controversy because there was no actual or imminent injury-in-fact, as the ordinance has not been enforced against the plaintiffs and there was no threat that the ordinance would be enforced against them.

In the alternative, plaintiffs argued that, under principles of issue-preclusion, the district court should have deferred to the decision of the Missouri state court that the same penalty provision that appeared in a previously enjoined state ordinance and in ordinance 1722 is invalid under state law. Plaintiffs argued that the district court misconstrued the question to be whether the two ordinances are identical rather than whether the penalty provisions in each ordinance are identical.

The court of appeals upheld the district court decision, finding that the district court properly exercised jurisdiction over the matter and that the penalty provision in ordinance 1722 was not invalid under state law.

Missouri Court Enjoins Enforcement of Ordinances Targeting Landlords and Business Owners
Reynolds v. City of Valley Park, Mo., 254 S.W.3d 264 (Mo. Ct. App. 2002)
(CASE CLOSED)

A group of landlords and the Metropolitan St. Louis Equal Housing Opportunity Council brought suit in Missouri state court challenging a Valley Park city ordinance that bars businesses from "aid[ing] and abet[ting] illegal aliens or illegal immigration," as well as renting to undocumented immigrants. Businesses that violated the ordinance would be subject to fines and denied business permits and city contracts for five years. Plaintiffs argued that the ordinance was unconstitutional and violated federal and state law.

The court issued a temporary restraining order (TRO) to block enforcement of the ordinance. Hours later, the city council passed a second version of the ordinance, and the court issued a second TRO to stop enforcement of the second ordinance. On March 12, 2007, the court granted the plaintiff's motion for judgment on the pleadings, declared the ordinances void and permanently enjoined their enforcement.

The court's order granting the permanent injunction and other pleadings in this case are available on the ACLU's website.

Nebraska

Fremont Suspends Voter Initiative Following Court Challenge; City Council Had Previously Rejected Measure to Avoid Litigation Costs
Martinez v. Fremont
, No. 10-3140 (D. Neb filed July 21, 2010)

Employers, tenants, and landlords have challenged a Freemont, Nebraska ordinance with the stated purpose of targeting the “[h]arboring or [h]iring of [i]llegal [a]liens.”  The measure, which voters passed in June 2010, makes it unlawful for a person or business entity that owns a dwelling unit in the City to “harbor an illegal alien in the dwelling unit, knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law.” It requires all residents who wish to inhabit rental housing in the city to obtain an “occupancy license” from the Fremont Police Department—which is in turn required to ascertain the lawfulness of any non-citizen applicant’s presence with federal immigration authorities—and establishes penalties of $100 per tenant per day against landlords who rent units to individual lacking such licenses.  Separately, the measure requires all businesses in the city to register with the E-Verify, a voluntary federal program that permits employers who elect to participate to electronically determine whether a job applicant can legally work in the United States.     

Previously, in June 2008, Fremont’s City Council voted against the measure’s enactment and filed a preemptive lawsuit in state court arguing that its enactment would be unconstitutional. The Nebraska Supreme Court declined to address the merits of the suit before voters decided the measure. Following passage of the ordinance at the polls, the plaintiffs filed suit on July 21, 2010, to enjoin the measure in federal court. The complaint alleges that the ordinance violates the Supremacy Clause of the U.S. Constitution, the Due Process and Equal Protection clauses of the 14th Amendment, the Fair Housing Act and Nebraska law. Plaintiffs seek injunctive and declaratory relief and attorneys fees. On July 27, less than a week after the filing of the initial complaint, the Fremont City Council voted to suspend its ordinance pending the outcome of litigation. 

On February 17, 2011, U.S. District Judge Laurie Smith Camp set a trial date for April 10, 2012. On February 22, 2011, plaintiffs amended their complaint, which defendant answered on March 18, 2011. Plaintiffs again amended their complaint on April 21, 2011. Defendant answered plaintiffs’ third amended complaint on May 9, 2011.

New Jersey

Township Repeals Ordinance After Complaint Filing
Riverside Coalition of Business Persons v. Township of Riverside, No. 06-03842 (N.J. Super. Ct. filed Aug. 15, 2006)
(CASE CLOSED)

Landlords, immigrants and residents of Riverside Township, New Jersey are challenging an ordinance that prohibits property owners from renting, leasing, or allowing their property to be used by "illegal immigrants." Plaintiffs argue the ordinance is ultra vires to state law and violates property owners' substantive due process rights as well as other provisions of New Jersey law. On September 17, 2007, Riverside Township repealed the ordinance and the case was subsequently administratively closed.

New York 

District Court Preliminarily Enjoins Oyster Bay Ordinance that Seeks to Prohibit Day Laborers from Soliciting Employment
Centro de la Comunidad Hispana de Locust Valley v. Town of Oyster Bay, No. 10-02262 (E.D.N.Y. filed May 18, 2010), appeal filed, June 21, 2010.

Plaintiffs Centro de la Comunidad Hispana de Locust Valley and the Workplace Project, organizations whose members include day laborers, brought a §1983 action against the Town of Oyster Bay, New York alleging that Chapter 205.32 of the Code of the Town of Oyster Bay (“the ordinance”) violates plaintiffs’ constitutional rights. The ordinance prohibits a person from stopping a passing car for employment purposes and prohibits particular methods of speech, including “waving arms, making hand signals, shouting . . . , jumping up and down, waving signs, . . . standing in the [street], or entering the [street]” when used by pedestrians to “solicit employment.”

The expressed legislative intent of the ordinance is to address traffic and pedestrian safety. However, plaintiffs allege that the ordinance was passed “to prevent a group of predominantly Latino, immigrant day laborers from soliciting work in Oyster Bay so as to drive them out of their communities and out of the sight of residents who wish they were not there.” Plaintiffs claim that the ordinance violates their First and Fourteenth Amendment rights. They ask the court for declaratory and injunctive relief and attorney’s fees.

On June 1, 2010, the court issued an order granting a preliminary injunction enjoining enforcement of the ordinance pending final resolution of the merits of plaintiffs’ First Amendment claims.  On June 21, defendants filed a notice of appeal with the U.S. Court of Appeals for the Second Circuit, and on June 22 filed an answer and counterclaim in district court. Defendants requested that the court declare that the ordinance is a lawful and valid exercise of the police powers of the Town of Oyster Bay and that it does not violate or contravene the First Amendment. Defendants also requested attorneys fees. On July 12, 2010, plaintiffs filed an answer to defendants’ counterclaims.

On May 17, 2011, the Court of Appeals affirmed the district court’s decision to grant plaintiff’s request to enter a preliminary injunction. The court noted that it is within the district court’s ultimate discretion to determine whether the most efficient course of the action is to proceed to trial, hold a preliminary injunction hearing, or advance the trial on the merits and consolidate it with the hearing.

District Court Declares New York Law Unconstitutional
Kirk v. N.Y. State Dep't of Education, No. 08-cv-06016 (2d Cir. filed June 24, 2008)
(CASE CLOSED)

A district court struck down a New York state regulation that restricted veterinarian licenses to U.S. citizens and LPRs. The plaintiff, a Canadian citizen, had been granted a temporary visa under NAFTA specifically to practice veterinary medicine. Under the state law, plaintiff does not qualify for a permanent veterinarian license, but the state granted him a waiver of the citizenship/LPR requirement so that he was able to work under a limited license until July 2008.

In his complaint, plaintiff alleged that New York's restriction violated the Equal Protection Clause and the Supremacy Clause. The court granted plaintiff's motion for summary judgment. It held that non-immigrants are a suspect class for purposes of the Equal Protection Clause and that the New York law fails to pass strict scrutiny. However, even under the less stringent rational basis test, the law still violates the Equal Protection Clause. The court also concluded that the law conflicts with NAFTA and therefore is invalid under the Supremacy Clause. See Kirk v. New York State Dep't of Education, 562 F. Supp. 2d 405 (W.D.N.Y. 2008).

On July 24, 2008, the state filed a notice of appeal to the Second Circuit. On August 14, 2009, the court of appeals granted the parties’ joint motion to dismiss the appeal as moot and to vacate the district court judgment. The court found the appeal was moot in light of the United States’ grant of permanent legal residency status to the plaintiff. The court also noted that defendants represented they will not seek to revoke plaintiffs’ permanent veterinary license because of the court action.

On January 9, 2009, the court of appeals found plaintiff was the “prevailing party” and awarded attorneys fees. On November 11, 2009, the court of appeals denied defendants’ motion to vacate the attorney fee award, finding that the plaintiff was the prevailing party as a result of obtaining judgment on the merits at the district court level, even though the judgment was later vacated as moot, due to events occurring outside of the action.

Oklahoma 

On November 1, 2007, Oklahoma implemented a law that created sweeping regulations in the area of immigration. Among its provisions, the statute (HB 1804) seeks to control employer verification of immigration status; criminalizes the transport, concealment, harboring or sheltering of any person who is in the state unlawfully; and authorizes some state entities to require proof of citizenship before extending their services to individuals. After the law went into effect, several Oklahoma residents filed lawsuits challenging the validity of the statute on various grounds. Below is a summary of the challenges.

Partial Win for Oklahoma Businesses Challenging Employment Verification Law
Chamber of Commerce v. Edmonson, 594 F.3d 742 (10th Cir. 2010) aff’g in part and rev’g in part Chamber of Commerce v. Henry, No. 08-109 (W.D. Okla. 2008)

On February 2, 2010, the Tenth Circuit partially upheld and partially reversed a district court decision enjoining enforcement of an Oklahoma law regulating verification of employment eligibility. Various national, state and local chambers of commerce and trade associations that represent businesses in Oklahoma brought suit to challenge three provisions of the Oklahoma Taxpayer and Citizen Protection Act of 2007 (the “Act”). The plaintiffs alleged that Sections 7(B), 7(C), and 9 of the Act were expressly and impliedly preempted by federal law and thus unconstitutional under the Supremacy Clause. Section 7(B) requires businesses to use the Basic Pilot Program to verify the work authorization status of their employees or risk debarment from contracting with Oklahoma public employers (the Basic Pilot program, commonly referred to as E-Verify, is an internet-based system of employment authorization verification established pursuant to IIRIRA). Section 7(C) of the Act makes it a discriminatory practice for an employer to terminate an authorized worker while retaining an employee that the employer knows or reasonably should know is unauthorized to work. Section 9 requires contracting entities either to verify the work eligibility of their individual independent contractors or withhold certain taxes from those contractors.

The court first found that the case survived most jurisdictional challenges. It held: (1) that the plaintiffs had associational standing to challenge the three provisions of the Act; and (2) that the Attorney General, under the Eleventh Amendment, was only immune from suit with respect to Sections 7(C) and 9. The court then upheld the district court’s grant of a preliminary injunction with respect to Sections 7(C) and 9, finding that plaintiffs are likely to succeed on the merits of their claims that Section 7(C) is expressly preempted and that Section 9 is impliedly preempted, and that that the remaining considerations favored issuance of a preliminary injunction. However, the panel reversed the grant of preliminary injunction against the enforcement of Section 7(B), the provision forcing businesses to participate in Basic Pilot, the voluntary federal employment verification program.

Following the Tenth Circuit decision, the case is presently pending in the Western District of Oklahoma and discovery is underway.

Challenge to Oklahoma Law Dismissed for Lack of Standing
National Coalition for Latino Clergy. v. Henry, No. 07-594 (N.D. Okla. filed Oct. 15, 2007)
(CASE CLOSED)

A district court dismissed a challenge to the Oklahoma immigration law brought by a religious association, churches, restaurants and unnamed plaintiffs. The plaintiffs alleged that the state law violates the Supremacy Clause, Due Process Clause and Equal Protection Clause of the U.S. Constitution, as well as provisions of the Oklahoma Constitution. The court stated that plaintiffs did not have standing to challenge the law and therefore dismissed the case. It reasoned that the National Coalition and its Oklahoma branch lacked standing to sue because neither they nor any of their members suffered or were threatened with an injury. The court ruled that other plaintiffs lacked standing because there was no causal link between the alleged injury and the challenged law, and others did not have standing because the alleged injuries were too speculative.

National Coalition for Latino Clergy v. Henry, No. 07-613 (N.D. Okla. filed Oct. 15, 2007)
(CASE CLOSED)

A district court dismissed a second suit challenging the Oklahoma immigration law for lack of standing. This challenge was brought by some of the same plaintiffs as the case above, No. 07-0594. The court ruled that the restaurants and the churches did not have standing to sue because their claims were too speculative and lacked imminence. The religious organization did not have standing because there was not an individual member who was harmed by the law. As to the individual plaintiffs, the court dismissed their case because these plaintiffs lacked prudential standing. The court focused on the fact that the plaintiffs are "illegal aliens" and opined that "the proper remedy for the injuries alleged by the remaining plaintiffs - all of whom are in willing violation of federal immigration law - is not judicial intervention, rather, it is simple compliance with federal immigration law."

Pennsylvania 

Supreme Court Vacates Injunction Against Hazleton Ordinances, Remands for Further Consideration in Light of Chamber of Commerce v. Whiting
Lozano v. City of Hazleton, 496 F. Supp. 2d 477 (M.D. Pa 2007); aff'd 620 F.3d 170 (3d Cir. 2010); cert. granted, vacated and remanded, Hazleton v. Lozano, No. 10-772, 563 U.S. __ (2011).

Following its decision in Chamber of Commerce v. Whiting, 563 U.S. __ (2011), the Supreme Court granted, vacated, and remanded the Third Circuit's affirmance of an injunction prohibiting the city of Hazleton, Pennsylvania, from enforcing a pair of controversial ordinances designed to prevent business owners and landlords from employing or housing undocumented immigrants.

The Hazleton ordinances, which subsequently inspired similar measures in localities around the country, were initially enacted in mid-2006.  Under the employment provisions, the City could revoke the business license of any employer accused of hiring a noncitizen who lacked federal work authorization, and could withhold such licenses from certain businesses unless they enrolled in the federal E-Verify program.  Under the housing provisions, the City could impose fines against landlords renting to any adult lacking a so-called “Occupancy Permit”—which residents could only obtain by presenting proof of citizenship or legal residency to City officials.  

Various landlords, tenants, and business owners in Hazleton challenged the ordinances in federal district court, alleging the ordinances violated the U.S. Constitution as well as federal and state statutes.  The district court found for the plaintiffs, enjoining the ordinances in 2007.  The Third Circuit affirmed the district court’s finding that the two ordinances conflicted with the letter and spirit of numerous federal laws and thus ran afoul of the Supremacy Clause of the U.S. Constitution.

In affirming the district court’s injunction, the Third Circuit found the City’s wide-sweeping provisions conflicted with the federal government’s more nuanced approach.  With respect to the employment provisions, the court noted that Congress struck a “careful balance” in creating the modern-day verification system, particularly by seeking to minimize the burden on business owners and to avoid discrimination against job applicants who may appear “foreign.”  The court also noted that Congress prohibited federal officials from requiring businesses to participate in E-Verify, and criticized a Ninth Circuit opinion—in a case scheduled for argument at the Supreme Court in December 2010—upholding an Arizona law making use of E-Verify mandatory.  Thus, the court found that the employment provisions directly undermined the objectives of federal laws.

In addressing Hazleton’s housing provisions, the court found the City sought to preemptively expel noncitizens whom the federal government had never ordered removed from the country.  The court wrote that the federal government retains discretion as to when and whether to initiate removal proceedings, and that Congress created numerous methods through which noncitizens who were once unauthorized can gain lawful status.  Thus, the court found the housing provisions of Hazleton's ordinances were preempted by federal law.

Court Strikes Down Policy Requiring Proof of Lawful Presence for Marriage License
Buck v. Stankovic, No. 07-00717 (M.D. Pa. filed Apr. 17. 2007)
(CASE CLOSED)

A U.S. citizen and a citizen of Mexico filed suit against a Pennsylvania official for denying their application for a marriage license based on a policy that requires persons seeking to obtain a marriage license to prove their lawful presence in the United States. Plaintiffs allege that this policy is unconstitutional because it violates their right to marry, the Equal Protection Clause, and the Supremacy Clause. The plaintiffs moved for a TRO and/or preliminary injunction, and the court held a hearing on the motion on April 26, 2007. On May 1, 2007, the court granted the plaintiffs' TRO. It enjoined defendants from requiring the non-U.S. citizen plaintiff to produce a visa or other proof of his lawful presence in the United States as a condition of obtaining a marriage license. The court reasoned that both plaintiffs had a fundamental right to marry and that defendants' policy was not narrowly tailored to a sufficiently important state interest. Therefore, the court reasoned, the policy would likely be found unconstitutional.

In January 2008, the parties reached agreement on a consent order, which the court issued on February 11, 2008. According to the terms of the consent order, the defendant: no longer will require applicants for a marriage license to produce proof of lawful residence in the United States; will publicize this new policy; and will pay plaintiff $10,000 in damages. The court also ordered the defendant to pay attorney's fees.

Tennessee 

 

Lawsuit Challenges Legality of 287(g) Agreement Under Local Charter
Renteria-Villegas v. Hall
, No. 11-32-II (Tenn. Chanc. filed Jan. 7, 2011), removed to federal court, No. 11-0218 (M.D. Tenn. March 9, 2011).

In January, a resident of Nashville, Tenn., filed a complaint seeking a temporary injunction of the 287(g) agreement between U.S. Immigration and Customs Enforcement (ICE) and the Davidson County Sheriff’s Office.  The complaint alleges that the agreement violates Section 287(g) of the Immigration and Nationality Act, which permits designated law enforcement agents to carry out the powers of federal immigration officers “to the extent consistent with state and local law,” because members of the sheriff’s office are prohibited from engaging in general law enforcement functions under the local charter.

The complaint notes that in 1963, the Charter of Metropolitan Nashville and Davidson County transferred all general law enforcement powers from the Davidson County Sheriff’s Office to the newly created Metropolitan Police Department.  The following year, the Tennessee Supreme Court confirmed that the charter stripped the Sheriff of all law enforcement powers except those “necessary and incidental” to the oversight of city jails. Metropolitan Government of Nashville & Davidson County v. Poe, 383 S.W. 265, 275 (Tenn. 1964).

After the complaint was filed in state court, the local defendants successfully moved to join ICE as a defendant and have the case removed to federal court.  The federal district judge overseeing the case then certified to the Tennessee Supreme Court the question of whether the 287(g) agreement violates the local charter. In addition to injunctive relief, plaintiff seeks a declaratory judgment and damages. 

 

Lawsuit Challenging Tennessee Department of Safety's Confiscation of Immigration Documents Voluntarily Dismissed
Bautista v. Tennessee Dep't of Safety, No. 08-01125 (M.D. Tenn. filed Nov. 24, 2008)
(CASE CLOSED)

Two lawful permanent residents filed a class action in district court in Tennessee after the state Department of Safety confiscated their green cards and held the documents for several months while they were obtaining or renewing their drivers' licenses. The complaint alleges that defendants took plaintiffs' immigration documents without reasonable suspicion that they were counterfeit and kept them beyond a reasonable time to check their validity. Plaintiffs assert that the confiscations are part of a continuing trend at the Tennessee Department of Safety and the conduct is motivated by discrimination based on national origin and race. The complaint also alleges that defendants failed to follow proper procedures for confiscating their documents. Defendants' conduct, plaintiffs allege, has caused them to suffer emotional distress; hindered their freedom of movement; and has caused them to incur legal fees. Plaintiffs have brought claims under the U.S. Constitution; Title VI of the Civil Rights Act of 1964; and the Tennessee state constitution. They seek declaratory, injunctive and monetary relief.

Defendants filed an answer and plaintiffs subsequently moved to amend the complaint. On March 26, 2009, the court dismissed and administratively closed the case after plaintiffs stipulated to a voluntary dismissal. Neither the court order nor the plaintiffs' stipulation explained why the parties decided to voluntarily dismiss their claims.

Texas 

On November 13, 2006, the City of Farmers Branch passed ordinance 2892, the first of several ordinances attempting to regulate landlords who rent to immigrants and immigrant tenants. Before ordinance 2892 went into effect, a Farmer’s Branch business owner filed lawsuits challenging the validity of the ordinance on various grounds. In response, the city repealed the ordinances and notified the court. On January 22, 2007, the city passed ordinance 2903, a second iteration of the original ordinance with minor changes. Before the second ordinance went into effect, several landlords, tenants and business owners filed suit challenging the ordinances as unconstitutional. The three cases were consolidated and on May 28, 2008, the court permanently enjoined the city from enforcing the second ordinance. On January 22, 2008, while the litigation was still pending, the city passed ordinance 2952, a third version of the original ordinance. On September 12, 2008, the date the ordinance became effective, property owners and tenants again filed two suits challenging the ordinance as an impermissible regulation of immigration. On March 24, 2010, the court permanently enjoined the city from enforcing the ordinance. Below are the summaries of these challenges.

City Repeals Ordinance 2892 After Court Issues Temporary Restraining Order on City Ordinance
 Ramos v. City of Farmers Branch, No. 06-12227 (Tex. Dist. Ct. 2006), aff’d, City of Farmers Branch v. Ramos, No. 07-00137, 235 S.W.3d 462 (Tx. Ct. App. 2007)

A real estate agent brought suit in the District Court of Dallas County challenging the enforcement of two ordinances that prevent landlords from renting to undocumented immigrants and require landlords to meet certain property maintenance requirements. The plaintiff claimed that the city council violated the Texas Open Meetings Act when it voted to approve the ordinances in closed-door meetings. On January 9, 2007, the plaintiff applied for a temporary restraining order and on January 11, 2007, the court granted the order, stating that the ordinance "may have been approved and adopted in violation of the Texas Open Meetings Act, causing irreparable injury to Plaintiff and other citizens of Farmers Branch, Texas." The court set a hearing date for January 22, 2007, to determine whether the TRO should be made a temporary injunction pending a full trial on the merits. At the same time, the city repealed both ordinances and notified the court. The defendants also filed a plea to the jurisdiction to dismiss the lawsuit, claiming sovereign immunity, and the trial court denied the plea. Defendants subsequently brought an interlocutory appeal, and the appeals court affirmed the denial.

Court Bars City from Enforcing Ordinance 2903 Aimed at Landlords, Dismisses Damages Claim

  • Villas at Parkside Partners v. City of Farmers Branch, No. 06-2371, 577 F. Supp. 2d 851 (N.D. Tex. 2008);
    • Vasquez v. City of Farmers Branch, No. 06-02376 (N.D. Tex. 2006) (consolidated with Villas at Parkside Partners, No. 06-2371, 577 F. Supp. 2d 851);
    • Barrietos v. City of Farmers Branch, No. 07-00061(N.D. Tex. 2007) (consolidated with Villas at Parkside Partners, No. 06-2371, 577 F. Supp. 2d 851)

In three suits, tenants, landlords and business owners challenged ordinance 2903 that requires property owners and managers to obtain proof of citizenship or eligible immigration status before taking on tenants. In April 2007, the court consolidated the cases, and in May 2007 the court granted a TRO, finding that federal law preempted the ordinance. It reasoned that the measure did not adopt federal immigration regulations but rather impermissibly adopted housing regulations used to determine noncitizens' eligibility for federal housing subsidies.

In June 2007, the court granted the plaintiffs' application for a preliminary injunction, barring the city of Farmers Branch from enforcing the ordinance pending a trial on the merits or other disposition of the case. Although the injunction remained in place, on December 11, 2007, the court granted the city's motion to dismiss plaintiffs' claims for compensatory damages. The court reasoned that because the ordinance never was enforced, plaintiffs did not suffer any damages.

On May 28, 2008, the court ruled on plaintiffs' remaining requests for declaratory and injunctive relief, granting plaintiffs' motion for partial summary judgment and permanently enjoining the city of Farmers Branch from enforcing the ordinance. The court held that the ordinance was preempted by federal law because it impermissibly attempts to regulate immigration. In addition, the court held that it could not "save" the ordinance by severing portions of the ordinance so that it would not be preempted by federal law. Finally, the court held that the ordinance violated the Due Process clause of the Fourteenth Amendment because it was void for vagueness.

During the litigation, the city of Farmer’s Branch passed ordinance 2953 that required a city license to rent property. The court held that the new ordinance was distinct from ordinance 2903, the original ordinance challenged in this case. Therefore, the court found that challenges to the new ordinance would not be considered along with a challenge to ordinance 2903.

Both parties subsequently filed motions with regards to the new city ordinance 2953. Defendants sought declaratory judgment from the court, alleging that the new regulation is constitutional and valid. Meanwhile, the Vasquez plaintiffs moved for the court to certify a partial final judgment with regards to the ordinance 2903, but preserve jurisdiction over the remaining claims concerning the new ordinance. The Villas plaintiffs, however, were against even a partial final judgment because, they argued, the claims as to the ordinance 2903 were not moot. However, on August 29, 2008, the court held that an entry of final judgment was appropriate as to all claims challenging the ordinance 2903. It reasoned that it had already awarded plaintiffs all the specific relief they had sought in their pleadings when it declared the original ordinance unconstitutional and permanently enjoined the city from enforcing it. On February 3, 2009, the court referred the case to alternative dispute resolution to resolve the issue of attorneys fees. As of September 2010, parties have not yet reached a settlement.

Court Enjoins Enforcement of Ordinance 2952 Requiring Issuance of City License to Enter Into Lease
 Villas at Parkside Partners v. City of Farmers Branch, No. 08-01551, (N.D. Tex. 2010); Reyes v. City of Farmers Branch, No. 08-01615, (N.D. Tex. 2008) (consolidated with Villas at Parkside Partners, No. 08-01551); Villas at Parkside Partners v. City of Farmers Branch, No. 10-10928 (5th Cir. filed Sept. 20, 2010)

In two suits, landlords, property owners and a city resident challenged ordinance 2952 that requires that persons eighteen years of age or older report to the city their intent to occupy a leased or rented residence within city limits. The ordinance requires that each resident in a dwelling must pay the city $5 for an occupancy license. If the prospective occupant does not attest to being a U.S. citizen, the city building inspector must verify with the federal government that the prospective occupant is an alien lawfully present within the United States in order to receive a license. The ordinance also subjects landlords who do not evict unlicensed renters to criminal and civil penalties.

In September 2008, the court consolidated the cases and granted a TRO and then a preliminary injunction barring the city from enforcing the ordinance until the final disposition of the case. On April 20, 2010, the parties filed cross motions for summary judgment. The plaintiffs’ motion alleged that the ordinance was unconstitutional because it was preempted by and not congruent with existing federal immigration law and sought to regulate immigration by creating the city’s own “removal scheme.” Plaintiffs argued that by regulating who could seek shelter in the city based on designations not defined in federal immigration law, the city was encroaching on the federal government’s exclusive authority to regulate immigration. The defendants’ motion for summary judgment countered that the plaintiffs did not have standing and that the ordinance was constitutional and only regulated rental contracts according to federally provided information on the status of individual prospective tenants and did not regulate immigration itself.

On March 24, 2010, the court permanently enjoined the enforcement of Ordinance 2952. In the order on cross-motions for summary judgment, the court held that the tenant and landlord plaintiffs had standing to bring the lawsuit. The court found that because preemption pursuant to the Supremacy Clause of the United States Constitution provided sufficient grounds to enjoin the enforcement of the ordinance, the court did not need to consider plaintiffs’ remaining claims. On July 15, 2010, defendants appealed the decision to the Fifth Circuit Court of Appeals.

Utah

Court Temporarily Enjoins Enforcement of Utah Law Authorizing Police to Demand Identification Documents and Investigate Immigration Status  
Utah Coalition of La Raza v. Herbert, No. 2:11-CV-401 CW (D. Utah filed May 3, 2011)

On May 3, 2011, several organizations and individuals who live in Utah or travel there regularly filed a class action challenging the Utah Illegal Immigration Enforcement Act (“H.B. 497”) as unconstitutional. H.B. 497 creates new state-law criminal penalties for immigration-related conduct and imposes responsibilities on police officers to demand identification documents and investigate immigration status. According to the complaint, H.B. 497 is unconstitutional because it violates both the U.S. and Utah Constitutions, including the Supremacy Clause, the Fourth Amendment, the Right to Travel, the Equal Protection Clause, and the Utah Constitution’s guarantee of the uniform operation of laws. Plaintiffs seek declaratory and injunctive relief.

On May 11, 2011, the court granted plaintiffs’ Motion for a Temporary Restraining Order, finding that plaintiffs presented sufficient evidence to create a substantial question about H.B. 497’s constitutionality. The court will hear Plaintiffs’ motion for a preliminary injunction on July 14, 2011.

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