Villas at Parkside Partners v. City Of Farmers Branch

Decision Date22 July 2013
Docket NumberNo. 10–10751.,10–10751.
Citation726 F.3d 524
PartiesVILLAS 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 Garza; Ginger Edwards; Jose Guadalupe Arias; Aide Garza, Plaintiffs–Appellees v. City of Farmers Branch, Defendant–Appellant.
CourtU.S. Court of Appeals — Fifth Circuit

OPINION TEXT STARTS HERE

William A. Brewer, III, Esq., Charles Dunham Biles (argued), Esq., James Stephen Renard, Esq., Jack George Breffney Teman, Bickel & Brewer, Dallas, TX, Nina Perales (argued), Esq., Rebecca McNeill Couto da Silva, Esq., Mexican–American Legal Defense & Educational Fund, San Antonio, TX, R. David Broiles, Fort Worth, TX, Omar C. Jadwat, American Civil Liberties Union Foundation, Immigrants' Rights Project, New York, NY, Jennifer C. Newell, American Civil Liberties Union Foundation, Immigrants' Rights Project, San Francisco, CA, Rebecca L. Robertson, Attorney, Houston, TX, for PlaintiffsAppellees.

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

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

Before STEWART, Chief Judge, and REAVLEY, JOLLY, DAVIS, JONES, SMITH, DENNIS, CLEMENT, PRADO, OWEN, ELROD, SOUTHWICK, HAYNES, GRAVES, and HIGGINSON,

Circuit Judges.*

HIGGINSON, Circuit Judge, joined by CARL E. STEWART, Chief Judge, and W. EUGENE DAVIS, LESLIE H. SOUTHWICK, and HAYNES, Circuit Judges.

“America's history has long been a story of immigrants.” 1 That story, a complicated history of inclusion and exclusion,2 has unfolded according to law, but also contrary to law. See Ex parte Kumezo Kawato, 317 U.S. 69, 73–74, 63 S.Ct. 115, 87 L.Ed. 58 (1942) (the United States is “a country whose life blood came from an immigrant stream.”). As the Supreme Court has emphasized—and indeed, as a constitutional imperative—a country's treatment of non-citizens within its borders can gravely affect foreign relations. Hines v. Davidowitz, 312 U.S. 52, 62–68, 61 S.Ct. 399, 85 L.Ed. 581 (1941); Arizona v. United States, ––– U.S. ––––, 132 S.Ct. 2492, 2498–99, 183 L.Ed.2d 351 (2012) (“It is fundamental that foreign countries concerned about the status, safety, and security of their nationals in the United States must be able to confer and communicate on this subject with one national sovereign, not the 50 separate States.”).

The Ordinance at issue in this case and passed by the active citizens of the City of Farmers Branch (Farmers Branch) seeks to regulate non-citizens who reside in the United States contrary to law. Farmers Branch, Tex., Ordinance 2952 (Jan. 22, 2008), permanently enjoined by Villas at Parkside Partners v. City of Farmers Branch, Tex., 701 F.Supp.2d 835, 861 (N.D.Tex.2010). Farmers Branch classifies these non-citizens as persons “not lawfully present in the United States.” Id. at §§ 1(D)(2); 3(D)(2). Responding to an “aroused popular consciousness,” Baker v. Carr, 369 U.S. 186, 270, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962) (Frankfurter, J., dissenting), and frustration at the perceived lack of federal enforcement of immigration law, Farmers Branch sought to “prevent” such persons from renting housing in the city. The district court concluded, inter alia, that the Ordinance was conflict preempted under federal law. Villas at Parkside Partners, 701 F.Supp.2d at 861. Because we hold that the Ordinance's criminal offense and penalty provisions and its state judicial review process conflict with federal law, we AFFIRM the judgment of the district court.

I. Farmers Branch, Texas, Ordinance 2952

Ordinance 2952 sets forth licensing provisions and criminal sanctions. The Ordinance requires individuals to obtain a license before occupying a rented apartment or “single-family residence.” Ordinance 2952 at §§ 1(B)(1); 3(B)(1). For persons not declaring themselves citizens or nationals of the United States, Farmers Branch's building inspector must verify “with the federal government whether the occupant is an alien lawfully present in the United States.” Id. at §§ 1(D)(1); 3(D)(1). Upon such inquiry, if the federal government twice “reports” that the occupant is “not lawfully present in the United States,” then the building inspector must revoke the occupant's license after notifying both the occupant and the landlord. Id. at §§ 1(D)(1)-(4); 3(D)(1)-(4). The Ordinance provides that [a]ny landlord or occupant who has received a deficiency notice or a revocation notice may seek judicial review of the notice by filing suit against the building inspector in a court of competent jurisdiction in Dallas County, Texas.” Id. at §§ 1(E)(1); 3(E)(1).

The Ordinance's criminal provisions prohibit persons from occupying a rented apartment or single-family residence without first obtaining a valid license, id. at §§ 1(C)(1); 3(C)(1); 5, and making a false statement of fact on a license application, id. at §§ 1(C)(2); 3(C)(2); 5. Landlords, in turn, are prohibited from renting an apartment or single-family residence without obtaining licenses from the occupants, id. at §§ 1(C)(4); 3(C)(4); 5, failing to maintain copies of licenses from all known occupants, id. at §§ 1(C)(5); 3(C)(5); 5, failing to include a lease provision stating that occupancy by a person without a valid license constitutes default, id. at 1(C)(6); 3(C)(6); 5, and allowing an occupant to inhabit an apartment without a valid license, id. at 1(C)(7); 3(C)(7); 5. If a landlord commits the criminal offense of knowingly permitting an occupant to remain in an apartment or single-family residence without a valid license, id. at §§ 1(C)(7); 3(C)(7), then the building inspector shall suspend the landlord's rental license until the landlord submits a sworn affidavit stating that the occupancy has ended, id. at §§ (D)(5)-(7); (D)(5)-(7). A landlord may appeal the suspension of a rental license to the city council. Id. at §§ 1(D)(8); 3(D)(8). The Ordinance also criminalizes creating, possessing, selling or distributing a counterfeit license. Id. at §§ 1(C)(3), 3(C)(3), 5.

These seven offenses are Class C criminal misdemeanors punishable by a fine of $500 upon conviction, seeTex. Penal Code Ann. § 12.41(3) (West 2009); State v. Chacon, 273 S.W.3d 375, 377 n. 2 (Tex.App.2008); Ordinance 2952 at §§ 1(C); 3(C); 5, with a separate offense deemed committed each day that a violation occurs or continues, id. at § 5. In Texas, local police may make arrests for Class C misdemeanors. SeeTex.Code Crim. Proc. Ann. art. 14.01(b), 14.06(a)-(b) (West 2011).

II. Supremacy Clause Litigation and the Supreme Court's Intervening Decision in Arizona v. United States

Two groups of plaintiffs, 0 comprised of landlords and tenants, sued the City, seeking to enjoin the Ordinance. Villas at Parkside Partners v. City of Farmers Branch, 701 F.Supp.2d 835 (N.D.Tex.2010). The district court found the Ordinance to be preempted under the Supremacy Clause, both as an improper regulation of immigration because it “applies federal immigration classifications for purposes not authorized or contemplated by federal law,” id. at 860;see generally DeCanas v. Bica, 424 U.S. 351, 355, 96 S.Ct. 933, 47 L.Ed.2d 43 (1976), and also as an obstacle to the “comprehensive federal” scheme for “removing aliens or adjudicating their status for that purpose,” which the district court described as “structured, in part, to allow federal discretion and to permit in appropriate circumstances a legal adjustment in an alien's status,” id. at 860–61. The district court therefore granted summary judgment to the plaintiffs on their Supremacy Clause claim and permanently enjoined enforcement of the Ordinance. Id. at 860–61.

After a panel of our court affirmed the district court judgment, Villas at Parkside Partners v. City of Farmers Branch, 675 F.3d 802 (5th Cir.2012), the Supreme Court issued its decision in Arizona, 132 S.Ct. 2492, which comprehensively set forth the reasons why federal law preempted various provisions of Arizona law relating to non-citizens. That case concerned a Supremacy Clause challenge to various sections of an Arizona law known as S.B. 1070 that was enacted with the stated purpose of ‘discourag[ing] and deter[ring] the unlawful entry and presence of aliens' by “establish [ing] an official state policy of ‘attrition through enforcement.’ Arizona, 132 S.Ct. at 2497;cf. Arizona v. Inter Tribal Council of Arizona, Inc., ––– U.S. ––––, 133 S.Ct. 2247, 186 L.Ed.2d 239 (2013). The Court's Arizona decision instructs our decision today.

The Supremacy Clause provides that federal law “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. The Court in Arizona reiterated that in the absence of an express preemption provision, a state or local law may be required to “give way to federal law” under at least two circumstances: field and conflict preemption. Arizona, 132 S.Ct. at 2501.3 First, states and localities may not “regulat[e] conduct in a field that Congress, acting within its proper authority, has determined must be regulated by its exclusive governance.” Id. “The intent to displace state law altogether can be inferred from a framework of regulation ‘so pervasive ... that Congress left no room for the States to supplement it’ or where there is a ‘federal interest ... so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject.’ Id. (alterations in original) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230, 67 S.Ct. 1146, 91 L.Ed. 1447 (1947)).

Second, state and local laws are preempted “when they conflict with federal...

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