675 F.3d 802 (5th Cir. 2012), 10-10751, Villas at Parkside Partners v. City of Farmers Branch, Texas

Docket Nº:10-10751.
Citation:675 F.3d 802
Opinion Judge:REAVLEY, Circuit Judge:
Party Name:VILLAS AT PARKSIDE PARTNERS, doing business as Villas at Parkside; Lakeview at Parkside Partners, Limited, doing business as Lakeview at Parkside; Chateau Ritz Partners, doing business as Chateau De Ville; Mary Miller Smith; Plaintiffs-Appellees, v. The CITY OF FARMERS BRANCH, TEXAS, Defendant-Appellant. Valentin Reyes; Alicia Garcia; Ginger Edward
Attorney:William A. Brewer, III, Charles Dunham Biles (argued), James Stephen Renard, Bickel & Brewer, Dallas, TX, Nina Perales (argued), Rebecca McNeill Couto, Mexican-American Legal Defense & Educational Fund, San Antonio, TX, R. David Broiles, Fort Worth, TX, Lisa S. Graybill, Am. Civ. Liberties Union ...
Judge Panel:Before REAVLEY, ELROD and GRAVES, Circuit Judges. JENNIFER WALKER ELROD, Circuit Judge, concurring in part and dissenting in part:
Case Date:March 21, 2012
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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675 F.3d 802 (5th Cir. 2012)

VILLAS AT PARKSIDE PARTNERS, doing business as Villas at Parkside; Lakeview at Parkside Partners, Limited, doing business as Lakeview at Parkside; Chateau Ritz Partners, doing business as Chateau De Ville; Mary Miller Smith; Plaintiffs-Appellees,

v.

The CITY OF FARMERS BRANCH, TEXAS, Defendant-Appellant.

Valentin Reyes; Alicia Garcia; Ginger Edwards; Jose Guadalupe Arias; Aide Garza, Plaintiffs-Appellees,

v.

City of Farmers Branch, Defendant-Appellant.

No. 10-10751.

United States Court of Appeals, Fifth Circuit.

March 21, 2012

Page 803

William A. Brewer, III, Charles Dunham Biles (argued), James Stephen Renard, Bickel & Brewer, Dallas, TX, Nina Perales (argued), Rebecca McNeill Couto, Mexican-American Legal Defense & Educational Fund, San Antonio, TX, R. David Broiles, Fort Worth, TX, Lisa S. Graybill, Am. Civ. Liberties Union Found. of Texas, Austin, TX, Omar C. Jadwat, Am. Civ. Liberties Union Found. Immigrants' Rights Project, New York City, Jennifer C. Newell, Am. Civ. Liberties Union Found. Immigrants' Rights Project, San Francisco, CA, for Plaintiffs-Appellees.

Peter Michael Jung, Strasburger & Price, L.L.P., Dallas, TX, Kris William Kobach (argued), Immigration Reform Law Institute, Kansas City, KS, for Defendant-Appellant.

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Carlos Ramon Soltero, McGinnis, Lochridge & Kilgore, L.L.P., Austin, TX, for Texas Apartment Ass'n, Inc., Amicus Curiae.

Morris J. Baller, Goldstein, Demchak, Baller, Borgen & Dardarian, Oakland, CA, for Dominican American National Roundtable, Hispanic Nat. Bar Ass'n, League of United Latin American Citizens, Mexican-American Bar Ass'n of Texas, National Ass'n of Elected and Appointed Officials, National Ass'n of Latino Elected and Appointed Officials Educational Fund, National Council of La Raza, Amici Curiae.

Benjamin M. Shultz, U.S. Dept. of Justice, Civ. Div., App. Staff, Daniel Bentele Hahs Tenny, U.S. Dept. of Justice, Washington, DC, for United States Office of Solicitor General, Amicus Curiae.

Appeals from the United States District Court for the Northern District of Texas.

Before REAVLEY, ELROD and GRAVES, Circuit Judges.

REAVLEY, Circuit Judge:

The City of Farmers Branch, Texas, (" the City" ) appeals the district court's summary judgment enjoining it from implementing a purported housing ordinance that requires all adults living in rental housing within the City to obtain an occupancy license conditioned upon the occupant's citizenship or lawful immigration status. The district court concluded that the ordinance was preempted by federal law as a regulation of immigration that infringed Congress's constitutional power. The court also concluded that the ordinance was field preempted and conflict preempted under federal law. We conclude that the ordinance's sole purpose is not to regulate housing but to exclude undocumented aliens, specifically Latinos, from the City of Farmers Branch and that it is an impermissible regulation of immigration. We hold that the ordinance is unconstitutional and presents an obstacle to federal authority on immigration and the conduct of foreign affairs. We therefore AFFIRM the district court's judgment.

I. Background

The City adopted Ordinance 2952 (" the Ordinance" ) on January 22, 2008, requiring that every adult person wishing to rent or lease any single family residence or apartment within Farmers Branch must apply for a residential occupancy license from the City's Building Inspector.1 Any proposed occupant who is not a United States citizen must provide an identification number establishing lawful presence in this country. If the non-citizen has no identification number, he may declare a lack of knowledge of such a number. The Building Inspector must verify with the federal government whether a non-citizen is " an alien lawfully present in the United States."

The Building Inspector will revoke the occupancy license of an alien who is unlawfully present in this country. If the federal government is unable to verify the occupant's lawful status as requested, the Building Inspector may take the word of the alien, but the Ordinance makes it a criminal offense to make a false declaration on the occupancy license application. It is also a criminal offense for a person to occupy rental housing without a valid occupancy license or for a lessor to knowingly permit a person to occupy a rental unit without a valid license. The penalty for each offense is a fine of $500 per day of the occupancy.

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The history of Ordinance 2952 began several years prior to its enactment when the City Council for Farmers Branch began considering a need to address perceived harms posed by illegal aliens, particularly Latinos, residing in the City. In 2006, the City Council passed a resolution expressing frustration over the federal government's purported failure to enforce immigration laws and to prevent the " influx of illegal aliens ... estimated in the millions" that were " coming in across our most southerly border." The resolution declared the City's intent to " take whatever steps it legally can to respond to the legitimate concerns of our citizens." The City also adopted a resolution declaring English as the official language of Farmers Branch. The City subsequently passed Ordinance 2892, the first of three attempts to regulate immigration in the rental housing context. That ordinance directed owners and property managers to require submission of evidence of citizenship or immigration status for each tenant family. Around the time of that ordinance's adoption, the City also created a task force to assess redevelopment opportunities in the City, which issued several reports identifying the City's " lower income, minority population" and its increasing Hispanic and ethnic population as concerns and obstacles for redevelopment. 2 Ordinance 2892 was later repealed in 2007 after a state court enjoined it due to possible violations of the Texas Open Meetings Act.

The City Council subsequently adopted substantially similar provisions by passing Ordinance 2903, however, which additionally provided for a referendum on the measure. Voters in the City approved Ordinance 2903, but in May 2008 a federal district court enjoined its enforcement, holding that the ordinance violated due process, was void for vagueness, and was an impermissible regulation of immigration under the Supremacy Clause.3

The City tried again to affect immigration through its housing regulations with the adoption of Ordinance 2952. The preamble to the Ordinance expresses a specific intent " to enact regulations that are harmonious with federal immigration law and which aid in its enforcement." Testimony of City officials during the proceedings in this case confirmed what was obvious from the text of the ordinance— that the City's intent with each of the regulations noted above was to enact an exclusionary rule for illegal aliens in Farmers Branch. For example, Tim O'Hare, who was a member of the City Council until he was elected mayor in 2007, testified that the 2006 English language resolution was intended to increase assimilation of non-English speakers and to make the City less attractive to undocumented immigrants.4 He stated that the

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resolution and the ordinance that followed were meant to " help reduce the illegal immigrant population in Farmers Branch." Indeed, O'Hare testified that the purpose of all three ordinances— 2892, 2903, and 2952— was to " mak[e] it difficult for illegal aliens to rent property in the City of Farmers Branch ...." He also testified about his frustration with the federal government's failure to enforce immigration laws, and he confirmed that Ordinance 2952 was intended to compensate for that perceived failure. O'Hare's testimony was consistent with that of City Attorney Tim Scott, who also testified that the goal of the Ordinance was to address illegal immigration issues and to " reduce the number of illegal immigrants in Farmers Branch."

As justification for the above intent, the Ordinance expresses that it is authorized pursuant to the City's " police power to protect the health, safety, and welfare of its citizens." It further states that the Ordinance does not entail an intent to " alter supplant, disrupt, or interfere with federal immigration law."

Two groups of plaintiffs representing lessors and lessees of rental property in Farmers Branch brought a pre-enforcement action against the City raising a facial challenge to the Ordinance. In ruling on cross-motions for summary judgment, the district court permanently enjoined enforcement of the Ordinance on three grounds.5 The district court concluded that the Ordinance was a local " regulation of immigration" entrusted by the Constitution to Congress and was therefore preempted under the Supremacy Clause.6 Although some local regulation which merely touches on aliens may be permissible,7 the district court here reasoned that " the Ordinance, though grounded in federal immigration classifications, is an invalid regulation of immigration because it uses those classifications for purposes not authorized or contemplated by federal law." 8

The district court further determined that the Ordinance was impliedly preempted by the Immigration and Nationality Act (" INA" )9 under theories of both field preemption and conflict preemption.10 The court reasoned that the INA is a " comprehensive regime for adjudicating an individual's right to remain in the country; " therefore, the Ordinance, " in addition to constituting a prohibited regulation of immigration [was field] preempted by the INA, which provides the exclusive means for removing aliens or adjudicating their status for that purpose." 11 With respect to conflict preemption, the...

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