City of Gary v. Nicholson

• Decision Date: 10 December 2021
• Docket Number: Court of Appeals Case No. 20A-MI-2317
• Citation: 181 N.E.3d 390
• Parties: CITY OF GARY, Appellant-Defendant, v. Jeff NICHOLSON, Douglas Grimes, Greg Serbon, and Cheree Calabro, Appellees-Plaintiffs, and State of Indiana, Appellee-Intervenor.
• Court: Indiana Appellate Court

181 N.E.3d 390

CITY OF GARY, Appellant-Defendant,

v.Jeff NICHOLSON, Douglas Grimes, Greg Serbon, and Cheree Calabro, Appellees-Plaintiffs,andState of Indiana, Appellee-Intervenor.

Court of Appeals Case No. 20A-MI-2317

Court of Appeals of Indiana.

FILED December 10, 2021

Attorneys for Appellant: Rodney Pol, Jr., Corporation Counsel, Gary, Indiana, Joseph W. Mead, Senior Counsel, Institute for Constitutional Advocacy and Protection, Washington, DC, Amy L. Marshak, Mary B. McCord, Institute for Constitutional Advocacy & Protection, Georgetown University Law Center, Washington, DC

Attorneys for Appellees: Dale Lee Wilcox, Executive Director and General Counsel, Immigration Reform Law Institute, Washington, DC, James Bopp, Jr., Richard E. Coleson, Courtney Turner Milbank, Melena S. Siebert, The Bopp Law Firm, PC, Terre Haute, Indiana

Attorneys for Appellee-Intervenor: Theodore E. Rokita, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Aaron T. Craft, Section Chief, Civil Appeals, Benjamin M. L. Jones, Julia C. Payne, Abigail R. Recker, Deputy Attorneys General, Indianapolis, Indiana

Najam, Judge.

Statement of the Case

[1] In this appeal, we consider whether certain provisions of the City of Gary's "Welcoming City" ordinance violate Indiana Code Section 5-2-18.2-3, which prohibits governmental bodies from restricting the sharing of information of the citizenship or immigration status of a person, and Indiana Code Section 5-2-18.2-4, which prohibits governmental bodies from limiting or restricting the enforcement of federal immigration laws. Jeff Nicholson, Douglas Grimes, Greg Serbon, and Cheree Calabro (collectively "Nicholson") filed a complaint against the City of Gary ("Gary") seeking a declaratory judgment and an injunction after Gary passed Ordinance No. 9100 ("the Ordinance"). The parties filed cross-motions for summary judgment, and the State intervened. Following a hearing, the trial court granted Nicholson's summary judgment motion, denied Gary's summary judgment motion, and issued an injunction that purported to prohibit Gary from enforcing certain provisions of the Ordinance. Gary appeals and raises three issues for our review:

1. Whether the injunction order is unenforceable because it is not sufficiently definite and certain to bind Gary.

2. Whether the Ordinance violates Indiana Code Section 5-2-18.2-3.

3. Whether the Ordinance violates Indiana Code Section 5-2-18.2-4.

[2] We affirm in part, reverse in part, and remand with instructions.¹

Facts and Procedural History

[3] In 2017, Gary passed the Ordinance, which sought "to make everyone in the community feel welcome" and "to ensure that the immigration status of those who live, work, or pass through Gary will not affect how they are treated by Gary agencies and agents, including its police department and social services providers." Appellant's App. Vol. 2 at 63. In relevant part, the Ordinance generally prohibits local officials from requesting information or otherwise investigating or assisting in the investigation of the citizenship or immigration status of a person unless required by court order, or stopping, arresting, detaining, or continuing to detain a person "after that person becomes eligible for release from custody or is free to leave an encounter" with an official. Id. at 54. The Ordinance requires local officials to "consider the extreme potential negative consequences of an arrest in exercising discretion whether to" arrest an individual. Id. at 57. And the Ordinance states that "nothing ... prohibits any municipal agency from sending to, or receiving from, any local, state, [or] federal agency, information regarding an individual's citizenship or immigration status." Id.

[4] In passing the Ordinance, Gary did not intend "to hinder federal immigration enforcement." Id. at 64. To that end, Gary "signed a Declaration with the United States Department of Justice stating that the City will comply with 8 U.S.C. § 1373," which provides that a local government may not prohibit or restrict any government entity or official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status of any individual. Id.

[5] In December 2017, Nicholson filed a verified complaint² against Gary seeking a declaratory judgment and injunction.³ Nicholson alleged in relevant part that four provisions of the Ordinance violate Indiana Code Sections 5-2-18.2-3 and - 4, specifically:

Section 26-52. Requesting information prohibited.

No agent or agency shall request information about or otherwise investigate or assist in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by an order issued by a court of competent jurisdiction. Notwithstanding this provision, the Corporation Counsel may investigate and inquire about citizenship or immigration status when relevant to potential or actual litigation or an administrative proceeding in which the City is or may be a party.

Section 26-55. Immigration enforcement actions—Federal responsibility.

No agency or agent shall stop, arrest, detain, or continue to detain a person after that person becomes eligible for release from custody or is free to leave an encounter with an agent or agency, based on any of the following:

(a) an immigration detainer;

(b) an administrative warrant (including but not limited to entered into the Federal Bureau of Investigation's National Crime Information Center database); or

(c) any other basis that is based solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation.

(d) No agency or agent shall be permitted to accept requests by ICE or other agencies to support or assist in any capacity with immigration enforcement operations, including but not limited to requests to provide information on persons who may be the subject of immigration enforcement operations (except as may be required under section 11 of this ordinance), to establish traffic perimeters, or to otherwise be present to assist or support an operation. In the event an agent receives a request to support or assist in an immigration enforcement operation, he or she shall report the request to his or her supervisor, who shall decline the request and document the declination in an interoffice memorandum to the agency director through the chain of command.

(e) No agency or agent shall enter into an agreement under Section 1357(g) of Title 8 of the United States Code or any other federal law that permits state or local governmental entities to enforce federal civil immigration laws.

(f) Unless presented with a valid and properly issued criminal warrant, no agency or agent shall:

(1) permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;

(2) transfer any person into ICE custody;

(3) permit ICE agents use of agency facilities, information (except as may be required under Section 11 of this ordinance), or equipment, including any agency electronic databases, for investigative interviews or other investigative purpose or for purposes of executing an immigration enforcement operation; or

(4) expend the time of the agency or agent in responding to ICE inquiries or communicating with ICE regarding a person's custody status, release date, or contact information.

Section 26.58.^[4]Commitments.

* * *

(c) The City recognizes the arrest of an individual increases that individual's risk of deportation even in cases where the individual is found to be not guilty, creating a disproportionate impact from law enforcement operations. Therefore, for all individuals, the Gary Police Department will recognize and consider the extreme potential negative consequences of an arrest in exercising its discretion regarding whether to take such an action and will arrest an individual only after determining that less severe alternatives are unavailable or would be inadequate to effect a satisfactory resolution.

Section 26.59. Information regarding citizenship or immigration status.

Nothing in this chapter prohibits any municipal agency from sending to, or receiving from, any local, state, federal agency, information regarding an individual's citizenship or immigration status. All municipal agents shall be instructed that federal law does not allow any such prohibition. "Information regarding an individual's citizenship or immigration status," for purposes of this section, means a statement of the individual's country of citizenship or a statement of the individual's immigration status.

Id. at 53-57.

[6] Gary and Nicholson filed cross-motions for summary judgment, and the State intervened. Following a hearing, the trial court issued an order granting Nicholson's summary judgment motion and denying Gary's summary judgment motion. The order did not include findings and conclusions but simply held that:

[Nicholson's] Summary-Judgment Motion as filed on 12/27/2017 is GRANTED as to its claims against the sole remaining party-defendant, [Gary], such that [Gary] is hereby prohibited from enforcing those provisions of its City of Gary Ordinance 9100 Section 26-52, Section 26-55, Section 26.58(c) and Section 26.59[ ] that are violative of Indiana Code §§ 5-2-18.2-3, 5-2-18.2-4 and/or other applicable state or federal law.

Id. at 3. In its order the trial court did not enumerate which of "those provisions" contained within the challenged sections of the Ordinance identified violate the statutes, but the order appears to categorically prohibit the enforcement of those entire sections. This appeal ensued.

Discussion and Decision

Overview

[7] We are asked to interpret two Indiana statutes, Indiana Code Section 5-2-18.2-3 ("Section 3") and Indiana Code Section 5-2-18.2-4 ("Section 4"). In his verified complaint, Nicholson describes these statutes as the "Information-Cooperation Mandate" and the "Full-Extent-Enforcement-Cooperation...