Federal judge strikes down Farmers Branch ordinance against renting to illegal immigrants
10:32 PM CDT on Wednesday, March 24, 2010
By DIANNE SOLÍS / The Dallas Morning News
For the second time, a federal judge has declared unconstitutional a Farmers Branch ordinance banning illegal immigrants from renting in the city.
U.S. District Judge Jane Boyle of Dallas ruled Wednesday that the ordinance was an attempt to enforce U.S. immigration laws – something the judge said only the federal government can do.
The judge also issued a permanent injunction to stop Farmers Branch from enforcing Ordinance 2952.
Mayor Tim O'Hare, the driving force behind the ordinances, said he wants to appeal.
"The American people are tired of judges legislating from the bench," he said. "This decision is not unexpected but welcomed, because it allows us to get closer to this ordinance becoming reality."
But O'Hare said the City Council would have to vote on whether to continue a fight that has cost the city nearly $3.2 million since September 2006. And the city may need to spend an additional $623,000 in legal fees in the year ahead, city finance director Charles Cox said Wednesday.
The council could discuss the issue as early as April 6.
Council member Ben Robinson said he wasn't sure whether he'd vote to appeal, but said he still supports the ordinance.
"Illegal activity of any type should not be ignored or accepted no matter whether in Dallas, Farmers Branch or other cities or states," he said.
The lead attorney for the plaintiffs, Bill Brewer, said his law firm's affiliate firm would continue the fight in any courtroom on behalf of the landlords led by the Villas at Parkside complex.
"We've been involved ... because of the broader implications of how we are all going to live together," Brewer said. "I not only owe that to my clients but I owe it to my children."
About one-quarter of the estimated 30,000 people who live in Farmers Branch were born outside the United States. About 47 percent of the city's population is Hispanic.
In the past four years, the city has proposed a series of ordinances that would make it illegal for landlords to rent to illegal immigrants. A version approved by the council in 2006 was repealed in early 2007 to make way for another ordinance.
That ordinance, No. 2903, was approved by two-thirds of voters in 2007 but later declared unconstitutional by U.S. District Judge Sam Lindsay. The city abandoned an appeal of that ordinance in favor of Ordinance 2952. No. 2952 added all rental units, including houses, to the ban on renting to illegal immigrants.
For and against
Reaction to the decision was swift. Illegal immigration continues to stir passions, pro and con. Earlier this month, the shell of a comprehensive overhaul of the nation's immigration laws was announced by Sen. Charles Schumer, D-N.Y., and Sen. Lindsey Graham, R-S.C.
Kris Kobach, an attorney for the city of Farmers Branch and a professor at the University of Missouri-Kansas City Law School, said the judge's ruling was expected.
"We are cautiously optimistically that the Farmers Branch ordinance will be upheld on appeal," Kobach said.
Nina Perales, one of the plaintiffs' lawyers on the case, praised the ruling.
"This is the third ordinance that has fallen," said Perales, of the Mexican American Legal Defense and Education Fund in San Antonio. "At some point, Farmers Branch has to realize it is not worth the financial drain or the cost to race relations in the city."
In Washington, D.C., Mike Hethmon, general counsel of the Immigration Reform Law Institute and a lawyer for Farmers Branch, called Boyle's decision "frustrating." He said he also supports an appeal. The law institute is the legal affiliate of the Federation for American Immigration Reform, which favors immigration restrictions.
Many are awaiting a decision in a Hazleton, Pa., case on a renters' ordinance that is similar to the one in Farmers Branch.
Oral arguments were heard in October 2008 before a federal appeals court in Philadelphia.
"It is pretty clear that the way these cases are moving through the appellate courts that this is an issue that ultimately the Supreme Court will have to decide," Hethmon said.
Whether local and state officials can regulate illegal immigration is a persistent concern, Hethmon said.
"It is an enormous issue and one affecting so many areas of modern life," Hethmon said.
In Ithaca, N.Y., Cornell Law School professor Stephen W. Yale-Loehr also said he was watching the Farmers Branch and Hazleton cases closely.
The likelihood of the high court taking up the issue increases with differing lower court decisions, including those made in support of the state of Arizona over its employer sanctions ordinance.
"If there is a conflict between different circuits, then the case could end up in the Supreme Court," Yale-Loehr said.
The rental ordinance is not the only legal fight being waged by Farmers Branch over immigration.
Discovery proceedings have begun for a related lawsuit involving alleged violations of the Texas Open Meetings Act and the manner in which the City Council crafted the rental ordinance.