Keller v. City of Fremont

• Decision Date: 20 February 2012
• Docket Number: Case Nos. 8:10CV270,4:10CV3140.
• Citation: 853 F.Supp.2d 959
• Parties: Fred H. KELLER, Jr., Juan Doe, and Juana Doe # 2, Plaintiffs, v. CITY OF FREMONT, Dale Shotkoski, in his Official Capacity, and Timothy Mullen, in his Official Capacity, Defendants. Mario Martinez, Jr., Paula Mercado, Martin Mercado, Jane Doe, Maria Roe, Steven Dahl, ACLU Nebraska Foundation, United Food and Commercial Workers Union, Local 22, and Blake Harper, Plaintiffs, v. City of Fremont; Dale Shotkoski, in his Official Capacity as Fremont City Attorney; and Timothy Mullen, in his Official Capacity as Fremont Chief of Police, Defendants.
• Court: U.S. District Court — District of Nebraska

853 F.Supp.2d 959

Fred H. KELLER, Jr., Juan Doe, and Juana Doe # 2, Plaintiffs,

v.CITY OF FREMONT, Dale Shotkoski, in his Official Capacity, and Timothy Mullen, in his Official Capacity, Defendants.

Mario Martinez, Jr., Paula Mercado, Martin Mercado, Jane Doe, Maria Roe, Steven Dahl, ACLU Nebraska Foundation, United Food and Commercial Workers Union, Local 22, and Blake Harper, Plaintiffs,

v.City of Fremont; Dale Shotkoski, in his Official Capacity as Fremont City Attorney; and Timothy Mullen, in his Official Capacity as Fremont Chief of Police, Defendants.

Case Nos. 8:10CV270, 4:10CV3140.

United States District Court,

D. Nebraska.

Feb. 20, 2012.

Recognized as Repealed by Implication

42 U.S.C.A. § 1981

Aaron J. Siebert–Llera, Alonzo Rivas, Mexican American Legal Defense and Educational Fund, Chicago, IL, Nicholas D. Espiritu, Victor G. Viramontes, Mexican American Legal Defense & Educational Fund, Los Angeles, CA, Shirley A. Mora James, Mora James Law, Lincoln, NE, for Plaintiffs in Case No. 8:10CV270.

Jennifer Chang Newell, Kenneth J. Sugarman, Lucas E. Guttentag, American Civil Liberties Union Foundation, San Francisco, CA; Alan E. Peterson; Amy A. Miller, American Civil Liberties Union Foundation of Nebraska; Michelle L. Sitorius, Terry R. Wittler, Cline, Williams Law Firm, Lincoln, NE; Michael A. Nelsen, Marks, Clare Law Firm, Omaha, NE, for Plaintiffs in Case No. 4:10CV3140.

Garrett R. Roe, Immigration Reform Law Institute, Washington, DC, Kris W. Kobach, Immigration Reform Law Institute, Kansas City, KS, for Defendants.

MEMORANDUM AND ORDER ON MOTIONS FOR SUMMARY JUDGMENT

LAURIE SMITH CAMP, Chief Judge.

Before the Court are the Plaintiffs' Motions for Summary Judgment (Filing No. 151 in Case No. 4:10cv3140, and Filing No. 161 in Case No. 8:10cv270) and Defendants' Motions for Summary Judgment (Filing No. 157 in Case No. 4:10cv3140, and Filing No. 130 in Case No. 8:10cv270). The Plaintiffs ask the Court to declare invalid Ordinance No. 5165 (the “Ordinance”) amending the municipal code of the City of Fremont, Nebraska (the “City”), and to enjoin the City from enforcing the Ordinance. Defendants ask the Court to find that the Plaintiffs lack standing to raise equal protection claims, or claims under the Fair Housing Act, 42 U.S.C. § 1981, or the Commerce Clause; that the Ordinance is valid in all respects; and that the Plaintiffs' actions should be dismissed. For the reasons discussed below, all the Motions will be granted in part and denied in part, and the City will be enjoined from enforcing certain parts of the Ordinance that prohibit the harboring of illegal aliens and provide for the revocation of occupancy licenses.

I. THE ORDINANCE

The Ordinance was adopted by City voters on June 21, 2010, and was scheduled to take effect on July 29, 2010. Its stated purpose was “to prohibit the harboring of illegal aliens or hiring of unauthorized aliens.” The substantive provisions of the Ordinance are set out in “Section 1,” in five parts:

Part 1 defines the terms used in the remaining parts.

Part 2 provides, in essence, that: “It is unlawful for any 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, unless such harboring is otherwise expressly permitted by federal law.” Harboring includes both the owner's direct renting or leasing, as well as the owner's knowing or reckless permitting of such occupancy. An alien unlawfully present in the United States who enters into a lease after the effective date of the Ordinance is deemed to have breached a condition of the lease.

Part 3 provides that each person who is at least 18 years of age must obtain an occupancy license through the Fremont Police Department before occupying any leased or rented dwelling unit. Occupancy licenses cost $5.00, and applicants for the licenses must provide the following information: name; mailing address; address of dwelling unit; name and business address of the unit's owner or manager; date of lease commencement; date of birth of occupant; occupant's country or citizenship; name and date of birth of each minor dependent residing with occupant; and either a signed declaration that the applicant is a United States citizen or national or an identification number assigned by the federal government establishing lawful presence. If the applicant is not a United States citizen or national and knows of no identification number establishing lawful presence, then the applicant may make a declaration to that effect and obtain the occupancy license. Lessors may not rent or lease dwelling units without obtaining copies of occupancy licenses for each known occupant of the dwelling unit, and must not knowingly permit persons to occupy a dwelling unit without a license. Lease documents for dwelling units must provide that occupancy by persons 18 years of age and older who do not hold valid licenses is a default under the lease. Violation of any provision of Part 3 by any person can give rise to a fine of $100 per occupant per day, starting on the 46th day after a revocation notice has been issued under “Section 5,” which appears to intend a cross-reference to Part 4.D. of Section 1 of the Ordinance.

Part 4 requires the Fremont Police Department (“FPD”) to ask the federal government to verify the status of occupants who have not declared themselves to be United States citizens or nationals. If the federal government reports that the occupant is not lawfully present in the United States, FPD will send a deficiency notice to the occupant, notifying the occupant that, within 60 days, the occupant may seek a correction of the federal government's record or provide additional information through FPD or directly to the federal government. No earlier than the 61st day after the deficiency notice is issued, FPD will again contact the federal government to ascertain the occupant's immigration status, and, if the federal government reports that the occupant is an alien not lawfully in the United States, FPD will send a revocation notice to the occupant and the lessor, revoking the occupancy license effective 45 days after the date of the revocation notice. Occupants and landlords may seek judicial review of the notice of revocation, before or after its effective date, by filing suit against the City. The filing of any such action automatically stays the revocation until the final conclusion of judicial review.

Part 5 provides that employers seeking any license or permit from the City, any contract awarded by the City, or any grant or loan given by the City, must execute an affidavit to the effect that the business entity does not knowingly employ any person who is an unauthorized alien, and must provide documentation confirming that it has registered in the E–Verify Program. All agencies of the City also must register with E–Verify, and use the program to verify each employee's authorization for employment. Every business entity employing one or more employees and performing work within the City must register with E–Verify within 60 days after the effective date of the Ordinance and use E–Verify to confirm the lawful employment status of each employee hired after such registration. Other employers that begin performing work within the City later than 60 days after the effective date of the Ordinance must register with and use E–Verify to confirm the lawful status of employees hired after the registration, before the employees may begin work within the City. If the Fremont City Council, following notice and hearing, finds that an employer has violated this mandate, the Council may revoke the license, cancel the contract, recall the grant, or accelerate the loan and institute an action to collect sums due. Actions of the City Council are subject to appeal to the District Court of Dodge County, Nebraska. The City Attorney may bring civil actions against employers suspected of violating the Ordinance, seeking injunctive relief. Adverse actions by the City will be stayed pending judicial review initiated by an employer.

Section 2 of the Ordinance provides that its parts and provisions are severable in the event that any part or provision of the Ordinance is found to be invalid or unenforceabledue to conflict with state or federal law.

II. THE PARTIES

To establish standing, a plaintiff must have suffered an injury in fact that is (1)(a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) traceable to the defendant's challenged action; and (3) likely to be redressed by a favorable decision. South Dakota Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583, 591 (8th Cir.2003)(hereafter “Hazeltine II ”), citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). If a plaintiff does not show an injury that is concrete, particularized, and actual or imminent, the plaintiff lacks standing to assert a claim, and a court is without subject matter jurisdiction over such an action. Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir.2002). The Plaintiffs have met their burden of demonstrating standing with respect to the claims made by each.

The Keller Plaintiffs are Fred H. Keller, a landlord with residential rental property in the City; Juan Doe, a City resident who is “presently pending immigration proceedings”; and Juana Doe # 2, an undocumented City resident, renting an apartment unit month-to-month, without a lease.

The Martinez Plaintiffs are Mario Martinez, Jr., a United States citizen who resides in the City and rents his house on a monthly basis; Paula and Martin Mercado, United States citizens, who reside in the City and rent their house on a monthly basis; Jane Doe, a United States citizen and City resident who lives in leased rental property with her undocumented fiancé; Maria Roe,...