Chris Zavadil/Fremont Tribune | Posted: Tuesday, March 27, 2012 11:45 am | (3) Comments
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Appeals have been filed on both sides following last month’s summary judgment on Fremont’s illegal immigration ordinance.

The City of Fremont filed a cross appeal after the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund appealed to the 8th Circuit Court of Appeals last week.

Also last week, ACLU plaintiffs filed a motion for $709,245 in attorney’s fees.

The District Court on March 16 granted MALDEF plaintiffs an extension until March 30 to file motions for attorneys’ fees and costs.

U.S. District Court Judge Laurie Smith Camp upheld parts of Ordinance 5165 and struck down other parts in a declaratory judgment on Feb. 20.

Smith Camp issued a permanent injunction and declared void provisions prohibiting the harboring of illegal aliens, providing for the revocation of occupancy licenses, and penalties following the revocation of occupancy licenses.

Smith Camp wrote those provisions are preempted by the Immigration and Nationality Act and violate the Fair Housing Act.

The rest of the ordinance, however, was upheld, including portions authorizing the city to issue occupancy licenses.

The Fremont City Council voted on Feb. 28 to enact employment portions requiring the use of E-Verify, and to continue delaying the rest of the ordinance until legal challenges have been settled.

The city on March 13 allocated $450,000 toward implementation of the employment portions, and this week will consider amending the salary and pay schedule to create two full-time positions under the city attorney.

Businesses have until May 4 to comply with the employment portion of the ordinance.

Amy A. Miller, ACLU Nebraska legal director, announced in a Feb. 28 letter to the city council that the ACLU would appeal Smith Camp’s decision, “because we remain convinced that the entire ordinance is an illegal use of city power.”

The ACLU and MALDEF each appealed Smith Camp’s decision that upheld portions of the ordinance allowing the city to issue occupancy licenses.

The ACLU is also challenging whether Smith Camp’s decision to deny plaintiffs’ claims that the ordinance exceeds the city’s municipal authority, and her ruling that parts of the ordinance found to be invalid are severable from other parts of the ordinance.

“We made a strategic decision to go forward on the claims that are listed in our notice of appeal. We do think the entire ordinance is unlawful and wrong-headed, but we decided to focus on these claims,” Jennifer Chang Newell, a staff attorney with the ACLU Immigrants’ Rights Project, told the Tribune.

“The grounds for their appeal are not surprising,” said attorney Kris Kobach, who wrote the ordinance and is defending it on behalf of the city.

“I think it’s interesting that both plaintiff groups seem to now admit that they have no hope of winning in their preemption challenge against the employment part of the Fremont ordinance.

“I think they’re severability claim is a particularly weak one because the ordinance did include a severability clause, and the people of Fremont voted on the ordinance with that severability clause in it,” Kobach said. “I think Judge Smith Camp’s analysis is spot on, that clearly it can be severed if necessary.”

The city, in its cross appeal, takes issue with Smith Camp’s ruling that parts of Ordinance 5165 are preempted by federal law and violate the Fair Housing Act.

Kobach also questions whether plaintiffs have standing to claims in the case.

“I’m very optimistic moving forward. I firmly believe that the 8th Circuit will rule in the city’s favor, just as Judge Smith Camp did, and perhaps even more so,” he said. “We’re cross appealing the narrow issues on which Judge Smith Camp ruled in the plaintiffs’ favor.”

Chang Newell said the ACLU is optimistic, too.

“Especially after the 5th Circuit in the Farmers Branch case just issued a decision last week holding unconstitutional a nearly identical housing ordinance in Farmers Branch, Texas, we are feeling pretty good,” she said.

The 5th U.S. Circuit Court of Appeals ruled that Farmers Branch surpassed its authority in passing a law in 2008 that would ban illegal immigrants from renting housing, and revoke rental licenses from landlords who knowingly rented to illegal immigrants.

“Basically Farmers Branch was a housing ordinance, and it’s nearly identical (to Fremont’s),” Chang Newell said. “It’s also an occupancy license scheme that would have authorized revocation of the occupancy license based on immigration status. The 5th Circuit struck the entire thing down as preempted under the Supremacy Clause.”




Read more: Appeals filed on illegal immigration ordinance