fremont - opening brief

7/31/2019 Fremont - Opening Brief

1/145

Nos. 12-1702, 12-1705, 12-1708

________________________

IN THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

________________________

FREDH.KELLER,JR., ET AL.,Plaintiffs-Appellants

v.CITYOFFREMONT, ET AL.

Defendants-Appellees

_______________________

MARIOMARTINEZ,JR., ET AL.,Plaintiffs-Appellants

v.CITYOFFREMONT, ET AL.,

Defendants-Appellees

Caption continued on inside cover

________________________

On Appeal from the United States District CourtFor the District of Nebraska

________________________

PRINCIPAL BRIEF OF APPELLEES/CROSS-APPELLANTS

THE CITY OF FREMONT

_______________________

Kris W. Kobach Garrett R. RoeKobach Law, LLC Immigration Reform Law Institute4701 N. 130th St. 25 Massachusetts Ave., N.W.Kansas City, KS 66109 Suite 330-B(913)638-5567 Washington, DC 20001

(202)742-1830

Appellate Case: 12-1702 Page: 1 Date Filed: 07/10/2012 Entry ID: 3930232


2/145

ii

Caption continued from front cover_______________________

FREDH.KELLER,JR., ET AL.,Plaintiffs-Appellees

v.CITYOFFREMONT, ET AL.

Defendants-Appellants

_______________________

MARIOMARTINEZ,JR., ET AL.,Plaintiffs-Appellees

v.CITYOFFREMONT, ET AL.,

Defendants-Appellants

_______________________



3/145

iii

TABLE OF CONTENTS

Table of Authorities ................................................................................... vii

Statement of the Issues .................................................................................. 1

Statement of the Facts ................................................................................... 2

Summary of the Argument ............................................................................ 8

Argument .................................................................................................... 11

I. Keller Appellants Juana Doe 2 and Juan Doe Lack Standing ............ 11

A. Appellant Juana Doe 2 is Not a Tenant in a Dwelling Unitand Therefore Lacks Standing ................................................. 12

B. Appellant Juan Doe Will Never Be Required to Comply withthe Ordinance .......................................................................... 14

II. The Salerno Rule Disfavoring Facial Challenges Renders AppellantsArguments Unsustainable ................................................................. 18

III. The Harboring Provisions of the Ordinance are Not Preempted ........ 20

A. The District Court Correctly Applied the Presumption AgainstPreemption .............................................................................. 22

B. Appellants Rest their Preemption Claims on One VacatedOpinion and One Split Decision .............................................. 25

C. The District Court Correctly Held that the Ordinance is not aRegulation of Immigration .................................................. 28

D. The District Court Correctly Held that the Ordinance is notField Preempted ...................................................................... 33



4/145

iv

1. There is no Field Preemption on the General Field of

Immigration or the Sub-Field of Harboring IllegalAliens ........................................................................... 33

2. The Ordinance Has Nothing to Do with AlienRegistration................................................................... 36

E. The District Court Correctly Held that Requesting ImmigrationStatus Information from an Alien and Verifying an Aliens Statuswith the Federal Government are not Conflict Preempted ....... 41

1. Whiting andArizona Have Raised the Bar for ConflictPreemption Claims ........................................................ 44

2. Congress Has Encouraged Local Efforts to ReduceIllegal Immigration ....................................................... 47

3. Appellants Inquisitorial Practices Argument isNonsensical................................................................... 52

F. The District Court Erred in Holding that Revocation ofIllegal Aliens Occupancy Licenses Would be Conflict-Preempted ............................................................................... 56

1. Under the Doctrine of Concurrent Enforcement, theAnti-Harboring and License-Revocation Provisions ofthe Ordinance Are Not Conflict-Preempted .................. 56

2. The District Courts Erred in Distinguishing the Anti-Harboring and License-Revocation Provisions from theRemainder of the Ordinance ......................................... 62

IV. The Ordinance Does not Violate the Fair Housing Act ..................... 65

A. The District Court Properly Denied Martinez AppellantsRule 60(a) Motion Because Martinez Appellants did notPlead Disparate Impact ........................................................... 67



5/145

v

B. Unlawful Immigration Status is Not Protected by the FHA

and therefore a Disparate Treatment Analysis Based on thisClass is Erroneous ................................................................... 74

C. Keller Appellants Have Not Established a Prima Facie Case ofDisparate Impact Because they Have Not Presented a RelevantSubset that is Adversely Affected by the Ordinance ............... 77

D. The City has Legitimate, Non-Discriminator Reasons forEnforcing the Ordinance and No Less BurdensomeAlternatives Exist .................................................................... 82

V. The Ordinance Does Not Conflict with Section 1981........................ 86

A. No Appellant Possesses Standing to Raise this Claim ............. 86

B. Keller Appellants Alleged That the Ordinance Discriminatedagainst Latinos Because of their National Origin andCannot Change their Allegations Through Briefing ................ 87

C. Keller Appellants Failed to Make the Required Showing ofDiscriminatory Intent Below and Waived Their Right toAppeal the District Courts Holding ........................................ 89

D. Keller Appellants Cannot Show Discriminatory IntentAgainst Latinos ....................................................................... 90

E. Keller Appellants Cannot succeed on a Theory ofDiscrimination against Illegal Aliens ...................................... 91

1. Section 1981 Does Not Protect Illegal Aliens as aClass ............................................................................. 92

2. If Section 1981 Once Did Protect Illegal Aliens as aClass, Then 8 U.S.C. 1324(a)(1)(A) PartiallyRepealed It .................................................................... 94

VI. The Ordinance Does Not Exceed the Citys Municipal AuthorityUnder Nebraska State Law................................................................ 97



6/145

vi

A. The Ordinance is an Exercise of the Police Powers Authorized

by Neb. Rev. Stat. 16-246 .................................................... 98

B. The Ordinance is Not Inconsistent With the General Lawsof the State ............................................................................ 102

1. Nebraskas E-Verify Law ........................................... 102

2. Nebraskas Fair Housing Act ...................................... 107

C. Appellants Two-Mile Limit Argument Falls Short ........... 108

D. The Ordinance is Specifically Authorized by Two StateStatutes ................................................................................. 110

1. The Ordinance is Authorized by Nebraskas MunicipalLicensing Statute ........................................................ 110

2. The Ordinance is Authorized by Nebraskas StatuteRequiring Municipalities to Deny Benefits to Illegal

Aliens ......................................................................... 113

E. Appellants Manufactured Test Regarding Issues of NotPurely Local Concern is Irrelevant ...................................... 114

VII. The Provisions of the Ordinance are Severable ................................. 119

A. The Ordinance is Clearly Severable Under Sarpy ................. 120

B. The Ordinance is Severable underDuggan ........................... 121

Conclusion ................................................................................................ 124

Certificate of Compliance ......................................................................... 126

Certificate of Service ................................................................................ 127



7/145

vii

TABLE OF AUTHORITIES

Cases

Abbate v. United States, 359 U.S. 187 (1959) ....................................... 56, 60

Alpern v. UitliCorp United, 84 F.3d 1525 (8th Cir. 1996) ........................... 67

Altria Group, Inc., v. Good, 129 S. Ct. 538 (2008).......................... 22, 24, 25

Anderson v. Conboy, 156 F.3d 167 (2d Cir. 1998) ................................ 93, 94

Ariz. Contractors Assn v. Candelaria, 2007 U.S. Dist. LEXIS 96194(D. Ariz. 2007), affd sub nom. Chicanos Por La Causa v. Napolitano,544 F.3d 976 (9th Cir. 2008), affd sub nom. Chamber of Commercev. Whiting, 131 S. Ct. 1968 (2011) .................................................... 48

Arizona v. United States, Sup. Ct. No. 11-182 (2012) ..........................passim

Atkinson v. Inter-American Dev. Bank, 156 F.3d 1335 (D.C. Cir. 1998) ... 106

Axberg v. City of Lincoln, 141 Neb. 55 (1946) .......................................... 117

Babbitt v. United Farm Workers Nat. Union, 442 U.S. 289 (1979) ............. 16

Barron v. S.D. Bd. of Regents, 655 F.3d 787 (8th Cir. 2011) ....................... 11

Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2008) ........................................ 71

Bennett v. Nucor Corp., 656 F.3d 802 (8th Cir. 2010) ................................. 91

Busch v. Omaha Pub. Sch. Dist., 261 Neb. 484,

623 N.W.2d 672 (2001) .................................................................. 100

Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011) ..................passim

Charleston Hous. Auth. v. USDA, 419 F.3d 729 (8th Cir. 2005) ............. 1, 78



8/145

viii

Chicanos Por la Causa v. Napolitano, 558 F.3d 856, 867(9th Cir. 2009), affd sub nom.

Chamber of Commerce v. Whiting, 131 S. Ct. 1968 ........................ 103

City of L.A. v. Alameda Books, 535 U.S. 425 (2000) ................................... 84

City of Omaha Human Relations Dept. v. City Wide Rock &

Excavating Co., 201 Neb. 405 (Neb. 1978) ..................................... 118

City of Omaha v. Cutchall, 173 Neb. 452, 114 N.W.2d 6 (1962) .............. 100

Clifton Terrace Assocs. V. United Techs. Corp.,929 F.2d 714 (D.C. Cir. 1991) .......................................................... 87

Coleman v. Quaker Oats Co., 232 F.3d 1271, 1292 (9th Cir. 2000) ........ 1, 72

Davis v. Federal Election Commn, 128 S.Ct. 2759 (2008) ......................... 12

Dahl v. Rice County, 621 F.3d 740 (8th Cir. 2010) ..................................... 90

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332 (2006) ................................ 12

Darst-Webbe Tenant Assn Bd. v. St. Louis Hous. Auth.,417 F.3d 898 (8th Cir. 2005) ................................................. 78, 82, 86

De Canas v. Bica, 424 U.S. 351 (1976) ...............................................passim

Duggan v. Beerman, 249 Neb. 411 (1996) ......................................... 120-123

Elizabeth M. v. Montenez, 458 F.3d 779 (8th Cir. 2006) ......................... 1, 15

English v. General Electric Co., 496 U.S. 72 (1990) ................................... 24

Espinoza v. Farah Manufacturing Co., Inc.,414 U.S. 86 (1973) ............................................................. 74, 107-108

Florida Lime & Avocado Growers v. Paul,373 U.S. 132 (1963) ............................................................... 24, 56-57



9/145

ix

Gade v. National Solid Wastes Management Assn,

505 U.S. 88 (1992) ................................................................. 23-24, 44

Gallagher v. Magner, 619 F.3d 823 (8th Cir. 2010) .............................passim

Gambill v. Duke Energy Corp., 456 Fed.Appx. 578 (6th Cir. 2012) ............ 69

Gamma-10 Plastics v. American President Lines, Ltd.,32 F.3d 1244 (8th Cir. 1994) ............................................................. 73

Geier v. Amer. Honda Motor Co., Inc., 529 U.S. 861 (2000) ...................... 47

Gen. Bldg. Contractors Assn v. Pennsylvania, 458 U.S. 375 (1982) .......... 91

Gilbert v. Minnesota, 254 U.S. 325 (1920) ................................................. 57

Golden v. Zwickler, 394 U.S. 103 (1969) .................................................... 15

Gonzales v. Peoria, 722 F.2d 468 (9th Cir. 1983) ................................. 56, 58

Graham v. Richardson, 403 U.S. 365 (1971) .............................................. 93

Gray v. City of Valley Park, 2008 U.S. Dist. LEXIS 7238(E.D. Mo. 2008) affd Gray v. City of Valley Park,567 F.3d 976 (8th Cir. 2009) ................................................. 23, 58, 62

Green v. Dillards, Inc., 483 F.3d 533 (8th Cir. 2007) ................................ 91

Gregory v. Dillards, Inc., 565 F.3d 464 (8th Cir. 2009) ........ 1, 67, 69, 90-91

Guimaraes v. SuperValu, Inc., 674 F.3d 962 (8th Cir. 2012) ........................ 74

Hallmark Developers, Inc. v. Fulton County,466 F.3d 1276 (11th Cir. 2006) ............................................. 79, 80, 81

Halter v. Nebraska, 205 U.S. 34 (1907) ...................................................... 57

Hines v. Davidowitz, 312 U.S. 52 (1941) ......................................... 36-37, 43



10/145

x

Hispanic Interest Coalition of Ala. v. Bentley, 2011 U.S. Dist.LEXIS 137846 (D. Ala. 2011) .......................................................... 93

Hodak v. City of St. Peters, 535 F.3d 899 (8th Cir. 2008) ........................... 87

In re Jose C., 45 Cal. 4th 534 (2009) .................................................... 35, 61

Jacobberger v. Terry, 211 Neb. 878 (Neb. 1982) ...................................... 118

Jacobson v. Solid Waste Agency of Northwest Neb. (SWANN),

264 Neb. 961 (2003) ...................................................... 2, 99-100, 105

Jaksha v. State, 241 Neb. 106 (1992) ........................................................ 122

James v. City of Dallas, 254 F.3d 551 (5th Cir. 2001) ................................. 15

Jenkins v. Winter, 540 F.3d 742 (8th Cir. 2008) ............................... 82-83, 90

John Doe No. 1 v. Ga. Dep't of Pub.Safety,

147 F. Supp. 2d 1369 (D. Ga. 2001) ................................................. 85

Johnson v. Missouri, 142 F.3d 142 F.3d 1087

(8th Cir. 1998) ................................................................... 1, 13, 15-16

Jones v. Rath Packing Co., 430 U.S. 519 (1977) ......................................... 24

Jones v. Hydro Conduit Corp., 2012 U.S. Dist. LEXIS 44768(D.S.C. Jan. 10, 2012) ..................................................................... 107

Josey v. John R. Hollingsworth Corp., 996 F.2d 632 (3d Cir. 1993) ........... 72

Keller v. City of Fremont, 280 Neb. 788 (2010) .................................... 98-99

Landrum v. Moats, 576 F.2d 1320 (8th Cir. 1978) ...................................... 26

Lewis v. Casey, 518 U.S. 343 (1996) .......................................................... 11



11/145

xi

Lozano v. City of Hazleton, 620 F.3d 170 (3rd Cir. 2010),

vacated and remandedat 131 S. Ct. 2958 (2011) ........................ 26-27

Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992) ............................. 11, 16

Lynch v. Cannatella, 810 F.2d 1363 (5th Cir. 1987) ............................. 57, 64

L.Z. v. Parrish, 733 F.2d 585 (8th Cir. 1984) .............................................. 67

Massachusetts v. Mellon, 262 U.S. 447 (1923) ........................................... 15

Martinez v. Partch, 2008 U.S. Dist. LEXIS 4162 (D. Colo. 2008) .............. 76

Medtronic, Inc. v. Lohr, 518 U.S. 470 (1996) ................................. 22, 23, 47

Merrill Lynch, Pierce, Fenner & Smith v. Ware, 414 U.S. 117 (1973) ........ 62

Midwest Employers Council, Inc. v. City of Omaha,

177 Neb 877 (1964) ................................................................. 115-118

Mosby v. Williams, 2010 U.S. Dist. LEXIS 105536 (D. Ark. 2010) ............ 87

Niklaus v. Miller, 159 Neb. 301 (Neb. 1954) ............................................ 118

OShea v. Littleton, 414 U.S. 488 (1974) .................................................... 15

Oti Kaga, Inc. v. South Dakota Housing Dev. Auth.,342 F.3d 871 (8th Cir. 2003) ......................................................... 1, 78

Plyler v. Doe, 457 U.S. 202 (1982) ........................................... 33, 43, 75, 83

Powers v. Ohio, 499 U.S. 400 (1991) .......................................................... 85

Presidio Enterprises, Inc. v. Warner Bros. Distributing Corp.,

784 F.2d 674 (5th Cir. 1986) ........................................................... 106

Pulla v. Amoco Oil Co., 72 F.3d 648 (8th Cir. 1995) ........................ 1, 71, 73



12/145

xii

Rice v. Santa Fe Elevator Corp., 331 U.S. 218 (1947) .......................... 22, 24

Runyon v. McCrary, 427 U.S. 160 (1976) ................................................... 94

Saint Francis College v. Al-Khazraji, 481 U.S. 604 (1987)......................... 94

Sabri v. United States, 541 U.S. 600 (2004) ................................................ 19

Salitros v. Chrysler Corp., 306 F.3d 562 (8th Cir. 2002) ............................ 26

Sarpy v. City of Papillion, 277 Neb. 829 (2009)................................. 119-121

Schwarz v. City of Treasure Island, 544 F.3d 1201 (11th Cir. 2008) ........... 80

School Dist. v. McCook, 163 Neb. 817 (1957) ............................................ 99

Scottsbluff v. Winters Creek Canal Co., 155 Neb. 723 (1952) ................... 100

S.D. Farm Bureau, Inc. v. Hazeltine, 340 F.3d 583 (8th Cir. 2003) ............. 73

Stalley v. Catholic Health Initiatives, 509 F.3d 517 (8th Cir. 2007) ............ 67

State ex rel. Andruss v. North Platte, 120 Neb. 413 (1930) ......................... 99

State v. Belitz, 203 Neb. 375 (1975) .......................................................... 105

State v. Flores, 218 Ariz. 407 (Ariz. Ct. App. 2008) ........................ 57, 60-61

St. Francis Coll. v. Al-Khazraji, 481 U.S. 604 (1987) ............................. 2, 93

Storino v. Borough of Point Pleasant Beach,322 F.3d 293 (3rd Cir. 2003) ............................................................ 12

Summers v. Earth Island Inst., 129 S. Ct. 1142 (2009) ................................ 14

Takahashi v. Fish and Game Commission, 334 U.S. 410 (1948) ................. 92

Thomas v. Henry, 260 P.3d 1251 (Ok. 2011) .............................................. 84



13/145

xiii

Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2012) ............passim

Triad Elec. & Controls, Inc. v. Power Sys. Engg, Inc.,117 F.3d 180 (5th Cir. 1997) ............................................................. 73

Tsombanidis West Haven Fire Dept., 352 F.3d 565 (2d Cir. 2003) ............. 80

United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989) ................................ 60

United States v. Asalati, 615 F.3d 1001 (8th Cir. 2010) .............................. 75

United States v. Balderas, 91 Fed. Appx. 354 (5th Cir. 2004) ..................... 60

United States v. Gomez-Moreno, 479 F.3d 350 (5th Cir. 2007) ................... 60

United States v. Estate of Romani, 118 S. Ct. 1478 (1998) ........................ 106

United States v. Fort, 248 F.3d 475 (5th Cir. 2001) .................................... 85

United States v. Lemons, 697 F.2d 832 (8th Cir. 1983) ............................... 19

United States v. Loaiza-Sanchez, 622 F.3d 939 (8th Cir. 2010) ................... 75

United States v. Locke, 529 U.S. 89 (2000) ................................................. 24

United States v. Lopez-Salas, 266 F.3d 842 (8th Cir. 2001) ........................ 75

United States v. Ovellaner, 405 F.3d 360 (5th Cir. 2005) ............................ 16

United States v. Raines, 362 U.S. 17 (1960) ........................................ 19, 110

United States v. Rubio-Gonzalez, 674 F.2d 1067 (5th Cir. 1982) ................ 64

United States v. Salerno, 481 U.S. 739 (1987) ............................................ 18

United States v. Sanchez, 963 F.2d 152 (8th Cir. 1992) .............. 59, 84, 95, 96

United States v. Stephens, 594 F.3d 1033 (8th Cir. 2010) ..................... 19-20



14/145

xiv

United States v. Tipton, 518 F.3d 591 (8th Cir. 2008) ................ 59, 84, 95-96

United States v. Turkette, 452 U.S. 576 (1981) ........................................... 77

United States v. Varkonyi, 645 F.2d 453 (5th Cir. 1981) .............................. 60

United States v. Vasquez-Alvarez, 176 F.3d 1294 (10th Cir. 1999) ............. 47

United States v. Wilson, 503 U.S. 329 (1992) ............................................. 77

United States v. Zheng, 306 F.3d 1080 (11th Cir. 2002) .............................. 50

Village of Winside v. Jackson, 250 Neb. 851,

553 N.W.2d 476 (1996) .................................................................. 100

Villas at Parkside Partners v. Farmers Branch,675 F.3d 802 (5th Cir. 2012)petition for rehg pending ........ 26-28, 64

Washington State Grange v. Washington State Republican Party,128 S. Ct. 1184 (2008) ................................................... 18-19, 56, 110

Whitehead Oil Co. v. City of Lincoln, 245 Neb. 660,

515 N.W.2d 390 (1994) .................................................................. 110

Whitmore v. Arkansas, 495 U.S. 149 (1990) ............................................... 15

Wolf v. City of Omaha, 177 Neb. 545 (1964) ........................................ 98-99

Wyeth v. Levine, 129 S. Ct. 1187 (2009) .......................................... 22, 24-25

Zar v. S.D. Bd. of Examrs of Psychologists,976 F.2d 459 (8th Cir. 1992) ............................................................. 89

Federal Statutes and Rules

8 U.S.C. 1101 ................................................................................. 5, 29-30



15/145

xv

8 U.S.C. 1324a ............................................................................. 45, 58, 96

8 U.S.C. 1324(a)(1)(A)(ii) ................................................................. 60-61

8 U.S.C. 1324(a)(1)(A)(iii) ...............................................................passim

8 U.S.C. 1324(a)(1)(B)(1992) .................................................................. 96

8 U.S.C. 1324(a)(1)(C)(1992) .................................................................. 96

8 U.S.C. 1357(g) ............................................................................ 1, 46, 51

8 U.S.C. 1373 ...................................................................................passim

8 U.S.C. 1373(b) ................................................................................ 39, 48

8 U.S.C. 1373(c) ...............................................................................passim

8 U.S.C. 1621 ...................................................................................... 1, 77

8 U.S.C. 1621(a) ...................................................................... 1, 40, 49, 55

8 U.S.C. 1621(b) ...................................................................................... 55

8 U.S.C. 1621(c) ................................................................................ 40, 55

8 U.S.C. 1160(b)(7)(A)(i) ........................................................................ 96

8 U.S.C. 1160(b)(7)(A)(ii) ....................................................................... 96

18 U.S.C. 371 .......................................................................................... 96

42 U.S.C. 1981..................................................................................passim

42 U.S.C. 3601......................................................................................... 68

42 U.S.C. 3604..................................................................................... 1, 74

Fed. R. Civ. P. 60(a) ................................................................................... 67



16/145

xvi

Personal Responsibility and Work Opportunity Reconciliation Act(PRWORA), Pub. L. No. 104-193, 110 Stat. 2105 (1996)........... 39, 49

State Statutes

Comp. St. 1922, secs. 3986-4030precursor to current Neb. Rev. Stat. 16-246 ................................... 99

Neb. Rev. Stat. 4-108 ....................................................................... 40, 113

Neb. Rev. Stat. 4-109 ......................................................................... 2, 114

Neb. Rev. Stat. 4-111 ......................................................................... 2, 114

Neb. Rev. Stat. 4-112 ............................................................................. 114

Neb. Rev. Stat. 4-114 ......................................................................... 2, 103

Neb. Rev. Stat. 16-101 ............................................................................. 98

Neb. Rev. Stat. 16-205 ......................................................................passim

Neb. Rev. Stat. 16-229 ............................................................................. 98

Neb. Rev. Stat. 16-246 ......................................................................passim

Neb. Rev. Stat. 20-301 .......................................................................... 107

Neb. Rev. Stat. 20-318(5) ...................................................................... 107

City Ordinances

Fremont Municipal Code Ch. 4, Art. 3 ...................................................... 101






17/145

xvii

Fremont Municipal Code Ch 10 ................................................................ 101

Fremont Municipal Code 2-209 ............................................................. 101



Fremont Municipal Code 4-309 through 4-311 .................................... 112



Fremont Municipal Code 8-301 through 8-307 .................................... 112




Fremont Municipal Code 10-102 through 10-129 ................................ 112

Fremont Municipal Code 10-130 ........................................................... 112










18/145

xviii


Fremont Ordinance 3139, section 1, paragraph K ..................................... 112

Legislative History

S. Rep. No. 104-249, 104th Cong., 2d Sess. (1996) .................................... 39

Other Materials

http://www.uscis.gov/portal/site/uscis/menuitem.eb1d4c2a3e5b9ac89243c6a7543f6d1a/?vgnextoid=dc4f2363d8928310VgnVCM100000082ca60aRCRD&vgnextchannel=dc4f2363d8928310VgnVCM100000082ca60aRCRD (Last visited July 3, 2012) ................................................... 20

ICE Fact Sheet, available athttp://www.ice.gov/doclib/sevis/pdf/dmv_factsheet.pdf

(last visited July 4, 2012) .................................................................. 54

Dodge County Clerk Verifies Immigration Petition Signatures,Fremont Tribune (Mar. 25, 2009), available athttp://fremonttribune.com/news/local/article_32276c70-7c0e-5073-994b-de92bdc3821f.html ....................................................... 124



19/145

1

STATEMENT OF THE ISSUES

1. Whether Keller Appellants Juana Doe 2 and Juan Doe possess

standing. Johnson v. Missouri, 142 F.3d 1087 (8th Cir. 1998);Elizabeth M. v.

Montenez, 458 F.3d 779, 784 (8th Cir. 2006).

2. Whether any part of the harboring sections of Ordinance 5165,

1(2)-(4), is preempted by federal law, pursuant to the Supremacy Clause, U.S.

Const. art. VI, cl. 2. De Canas v. Bica, 424 U.S. 351 (1976); Chamber of

Commerce v. Whiting, 131 S. Ct. 1968 (2011);Arizona v. United States, Sup. Ct.

No. 11-182 (2012). 8 U.S.C 1324(a)(1)(A)(iii), 1324(c), 1357(g)(10), 1373,

1621, 1644.

3. Whether Martinez Appellants included a Fair Housing Act disparate

impact claim in their Third Amended Complaint. Gregory v. Dillards, Inc., 565

F.3d 464 (8th Cir. 2009); Pulla v. Amoco Oil Co., 72 F.3d 648, 658 (8th Cir.

1995); Coleman v. Quaker Oats Co., 232 F.3d 1271 (9th Cir. 2000).

4. Whether any part of the harboring sections of Ordinance 5165 violates

the federal Fair Housing Act under a disparate impact theory. Oti Kaga, Inc. v.

South Dakota Housing Dev. Auth., 342 F.3d 871, 883 (8th Cir. 2003); Gallagher v.

Magner, 619 F.3d 823 (8th Cir. 2010); Charleston Hous. Auth. v. USDA, 419 F.3d

729, (8th Cir. 2005). 42 U.S.C. 3604.



20/145

2

5. Whether any part of the harboring sections of Ordinance 5165 violates

42 U.S.C. 1981. St. Francis Coll. V. Al-Khazraji, 481 U.S. 604 (1987);

Torgerson v. City of Rochester, 643 F.3d 1031 (8th Cir. 2012).

6. Whether Ordinance 5165 is a valid exercise of the municipal powers

of a Nebraska city of the first class. Jacobson v. Solid Waste Agency of Northwest

Neb., 264 Neb. 961 (2003). Neb. Rev. Stat. 4-109; 4-114; 16-205; 16-246.

7. Whether any parts of the harboring sections of Ordinance 5165 are

severable. Sarpy v. City of Papillion, 277 Neb. 829 (2009).

STATEMENT OF THE FACTS

The City accepts the preponderance of Appellants statement of facts, but

disagrees on two points: the description of how Ordinance 5161 (the Ordinance)

operates, and the description of Fremont voters intentions in enacting the

Ordinance. A more accurate statement on those points follows.

Ordinance 5165 was carefully drafted to comply with controlling federal

precedents defining the authority of state and local governments to discourage

illegal immigration and otherwise reinforce federal immigration law. The

Ordinance requires each prospective adult tenant of a rented dwelling unit in the



21/145

3

City to obtain a residential occupancy license. 1(3.A-3.B).1 The Ordinance

applies only to future tenancies, commencing after the Ordinance goes into effect.

1(2.A(3)). To obtain a license, the prospective tenant must submit a one-page

form to the City and pay a $5 fee. 1(3.B). On this form, the applicant must

provide basic information such as name, address, date of birth, and country of

citizenship, along with the address of the proposed rental premises, the date of

lease or rental commencement, and the name and business address of the landlord.

1(3.E(1)-(9)). An applicant who is a United States citizen or national must so

declare. 1(3.E(9)(a)). An applicant who is not a United States citizen or national

must either provide an identification number that the applicant believes establishes

his or her lawful presence in the United States or declare that the applicant does not

know of any such number. 1(3.E(9)(b)).

Upon receipt of a completed application and fee, the Fremont Police

Department (hereinafter Department) immediately issues the license, without

scrutiny of the information provided. 1(3.B). In the case of an applicant who has

declared himself or herself a United States citizen or national, no further action is

taken. In the case of other applicants, the Department exercises the Citys

authority under 8 U.S.C. 1373(c) to verify the immigration status of the applicant

with the federal government. 1(4.A). If the federal governments response is

1 The Ordinance is at JA 133-40. All references will be to specific Ordinancesections, rather than to JA page numbers.



22/145

4

that the applicant is lawfully present, no further action is taken. If the response is

inconclusive or tentative, no further action is taken unless and until a final

verification is received. 1(4.C). The Department may use any process that the

federal government directs it to use, including the Systematic Alien Verification

for Entitlements (SAVE) program, direct telephonic inquiries to Immigration and

Customs Enforcement (ICE), or any other method of submitting inquiries to the

federal government. 1(4.A). Under no circumstances may the City attempt to

independently verify any aliens immigration status. 1(4.C).

If the federal government notifies the City that the applicant is not lawfully

present in the United States, the Department issues a deficiency notice. 1(4.B).

The notice affords the applicant a 60-day window in which to obtain a correction

of the federal governments records and to submit additional information to the

federal government. Id. After the 60 days, the Department again queries the

federal government pursuant to 8 U.S.C. 1373(c). 1(4.D). Only if the federal

government reports for a second time that the applicant is not lawfully present does

the Department send a notice of revocation of the residential occupancy license to

the applicant and to the landlord. Id. The Ordinance provides for pre-deprivation

and post-deprivation judicial review. 4(F).

Under Ordinance 5165, it is unlawful to, among other things, (1) lease or

rent a rental unit as a lessor without obtaining and retaining a copy of the license of



23/145

5

each known occupant; or (2) as a landlord, knowingly permit an occupant to

occupy a rental unit without a valid license. The Ordinance does not impose any

penalties upon occupants. 1(3).

Ordinance 5165 relies entirely upon the definitions of immigration status

provided by federal immigration law, 8 U.S.C. 1101, et seq. 1(1.A-1.B, 1.F).

The City must accept the federal governments determination of each aliens

status, pursuant to 8 U.S.C. 1373(c). 1(1.A-1.B). Federal immigration law

governs suits for judicial review of actions taken under the ordinance. 1(4.F(4)).

The employment provisions of the Ordinance require employers in Fremont

to utilize the E-Verify Program to verify the employment authorization of newly-

hired employees. Ord. 5165 5(E-F). City agencies are required to enroll in the

E-Verify Program, as are businesses that contract with the City. Id., 5(C-D).

The City Attorney may enforce the employment provisions by seeking cancellation

of any City contract or revocation of any City permit possessed by an employer

who violates the Ordinance in an adjudicative proceeding before the City Council,

with the protections of due process and the right of appeal to the District Court of

Dodge County. Id., 5(E). The City Attorney may also seek injunctive relief in

any court of competent jurisdiction in Dodge County. Id., 5(F).

The Ordinance contains a robust severability clause. 2. A flowchart

illustrating the operation of the Ordinance appears on the following page.



24/145

6

Yes

No

Yes

No

Yesor inconclusive

No

Yesor inconclusive

No

No

Application

rejected

License

issued

No further

action

No further

action

Application

complete &fee paid?

UScitizen or

national?

Query 2:Lawfully

present?

Query 1:Lawfully

present?

No further

action

License

revoked

Judicial

review

Notice + 60-

day deferral



25/145

7

On June 21, 2010, the voters of the City enacted the Ordinance by popular

initiative. The popular vote total was 3,906 in favor (57%) to 2,908 (43%)

opposed. With respect to the intentions of the Fremont voters who adopted the

Ordinance, Appellants make a variety of assertions that are inaccurate or attempt to

impute discriminatory motivations to the 3,906 Fremonters who voted for the

Ordinance, suggesting that they sought a reduction in the number of Hispanics

living in Fremont. Keller Br. 4. For example, Keller Appellants claim that Jerry

Hart, one of the co-petitioners, was concerned about the number of Hispanics who

received benefits and services. Keller Br. 5 n.3 (Appellants words). They

grossly mischaracterize Mr. Harts deposition testimony. Mr. Hart was emphatic

that he was concerned about illegal aliens who impose costs on Fremont

taxpayers, regardless of their ethnicity. JA 115-19.

Martinez Appellants are equally misleading. They claim that Bob Warner,

the sponsor of a virtually-identical ordinance when it was before the City Council,

intended to reduce the growing number of Latinos in Fremont. Martinez Br. 7

(Appellants words). On the contrary, Mr. Warner emphatically explained that

when he introduced his ordinance, it was not because of any animus toward

Latinos or Hispanics. JA 1036-37 (Warner Dep. 127:1-128:22)(I was referring to

illegals, because if I wouldnt have opposed Hispanics, why in the hell would I



26/145

8

oppose the Latinos? [Plaintiffs counsel] just said theyre the same.); see also JA

1180-82.

The district court forcefully rejected Appellants attempts to impute racist

motivations to Fremonters. The Plaintiffs have directed the Court to no case in

which such scant evidence and conjecture has been found sufficient to support a

conclusion that unlawful discrimination was a motivating factor in the enactment

of a statute, ordinance, or initiative. JA 112-13. Appellants do not appeal this

finding of the court. Nor do they appeal the courts rejection of their intentional

discrimination claims under the Equal Protection Clause, the FHA, and Section

1981. Thus, it is unclear why Appellants include these misleading accusations in

their statement of facts at all.

SUMMARY OF THE ARGUMENT

As a threshold matter, two Keller AppellantsJuana Doe 2 and Juan Doe

lack standing in this matter. Juana Doe 2 no longer lives in a rented apartment, as

she did when this case began; she lives in a trailer home that she owns. The

Ordinance does not affect her in any way. Juan Doe is also unaffected by the

Ordinance, because of his stated intention to remain at his current residence and his

stated intention to return to his home country if his lawful immigration status

expires. Because these two Appellants lack standing, no Appellant in this



27/145

9

litigation may raise the FHA and Section 1981 claims presented. This Court may

dismiss both claims for lack of jurisdiction.

The district court properly held that the vast majority of the Ordinance was

not preempted by federal law. The district court erred, however, in concluding that

the license-revocation and anti-harboring provisions were preempted under a

theory of implied conflict preemption. Neither the court, nor the Appellants, can

identify any federal statute that conflicts with these provisiona necessary part of

any conflict preemption claim. On the contrary, the Ordinance perfectly conforms

to federal statutes that specifically invite state and local efforts to discourage illegal

immigration. The district court correctly rejected Appellants regulation-of-

immigration and field preemption theories.

If any Appellant has standing to raise an FHA disparate impact claim, it

must nevertheless be rejected because the district court improperly extended the

protections of the FHA to illegal aliens. The court also erred by failing to compare

relevant groups to calculate any disparate impact. However, the court was correct

in rejecting Martinez Appellants effort to re-characterize their disparate treatment

claim in their Third Amended Complaint as a disparate impact claim.

If any Appellant has standing to raise a Section 1981 claim, it must be

rejected. The district court correctly denied Keller Appellants Section 1981 claim.



28/145

10

Section 1981 does not apply to illegal aliens. And if it were to be construed that

way, it would be implicitly repealed by relevant federal immigration laws.

With respect to the Citys authority under state law to enact the Ordinance,

the district court correctly held that the broad police powers afforded to Nebraska

cities of the first class encompass the Ordinance. In addition, the City possesses

separate and independent authority pursuant to the Nebraska municipal licensing

statute and the Nebraska statute requiring that public benefits and licenses be

denied to illegal aliens.

Finally, the District Court correctly held that the provisions of the Ordinance

are severable.



29/145

11

ARGUMENT

I. Keller Appellants Juana Doe 2 and Juan Doe Lack Standing.

The City concedes that Appellant Fred Keller, Jr., as a landlord, has standing

to raise most of the preemption claims asserted by Keller Appellants. However,

the two remaining Keller AppellantsJuana Doe 2 and Juan Doelack standing

to raise any claims in this case.

The case or controversy requirement of Article III, which is the irreducible

constitutional minimum of standing, contains three elements:

First, the plaintiff must have suffered an injury in factan invasionof a legally protected interest[,] which is (a) concrete andparticularized, and (b) actual or imminent, not conjectural or

hypothetical[.] Second, there must be a causal connection betweenthe injury and the conduct complained ofthe injury has to be fairly... trace[able] to the challenged action of the defendant, and not ...th[e] result [of] the independent action of some third party not beforethe court. Third, it must be likely, as opposed to merelyspeculative, that the injury will be redressed by a favorabledecision.

Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992) (internal citations

omitted);Barron v. S.D. Bd. of Regents, 655 F.3d 787, 794 (8th Cir. 2011).

The party invoking federal jurisdiction bears the burden of establishing standing.

Lujan, 504 U.S.at 561.

Importantly in the case at bar, [s]tanding is not dispensed in gross.Lewis

v. Casey, 518 U.S. 343, 358 n.6 (1996). A plaintiff must demonstrate standing



30/145

12

for each claim he seeks to press and for each form of relief that is sought.

Davis v. Federal Election Commn, 128 S.Ct. 2759, 2768-69 (2008) (quoting

DaimlerChrysler Corp. v. Cuno, 547 U.S. 332, 352 (2006)). Plaintiffs must

establish proper jurisdictional bases for each and every claim particularly when

courts are called upon to review a state or local legislative enactment. Storino v.

Borough of Point Pleasant Beach, 322 F.3d 293, 300 (3rd Cir. 2003).

As is explained below, there is no Keller Appellant who possesses standing

to bring the FHA disparate impact claim or the Section 1981 claim. The only

remaining Keller Appellanta United States citizen landlordobviously lacks

standing to bring either claim. There is no other party in this case who raised

either claim in his or her Complaint and who possesses standing to do so.2

Consequently, there is no jurisdiction to address those two claims.

A. Appellant Juana Doe 2 is Not a Tenant in a Dwelling Unit andTherefore Lacks Standing.

At the time Keller Appellants initially filed their First Amended Complaint,

Appellant Juana Doe 2 rented an apartment on a month-to-month basis in the City

of Fremont. JA 155. However, her living situation changed significantly while

this case was pending in the district court. During that time, she vacated her

2 The District Court correctly held that Martinez Appellants did not plead adisparate impact claim under the FHA in their Third Amended Complaint. JA148-50.



31/145

13

apartment, purchased a trailer home, and moved into that trailer home.

Consequently, Appellant Juana Doe 2 does not have standing to challenge

Ordinance 5165 because she owns her own trailer home. JSA 29 (Juana Doe 2

dep. 26:11-26:12). Moreover, she plans to continue living in her trailer home

[i]ndefinitely. Sealed Supplemental Appendix (Sealed SA) 2 (28:4-28:6). Keller

Appellants conceded in briefing below that she now owns her own trailer home.

JA 263. Although she rents the space in the trailer home park on which her trailer

home is located, that space is not a dwelling unit within the meaning of the

Ordinance. A dwelling unit is a single residential unit with living facilities for

one or more person, including space for living, sleeping, eating, cooking, bathing

and sanitation. 1(1.C). Therefore, it is abundantly clear that Juana Doe 2

lacks standing to raise any claims in this matter because she is not subject to

Ordinance 5165 and cannot demonstrate that she will ever be subject to Ordinance

5165. See Johnson v. Missouri, 142 F.3d 1087, 1089-90 (8th Cir. 1998).

Although the City raised this deficiency in the standing of Juana Doe 2

below, see Supplemental Appendix (SA) 5, the district court erroneously repeated

the description of Juana Doe 2 found in the Complaint, stating that she was

renting an apartment unit month-to-month. JA 96. This was evidently an

oversight on the part of the district court. It is, however, beyond dispute that Juana

Doe 2 now resides in a trailer home that she ownsnot in a rented dwelling



32/145

14

unitand is therefore not covered by the Ordinance. She stated in her deposition

that she has no plans to move out of her trailer home and rent an apartment again.

Sealed SA 2 (Juana Doe #2 Dep. 28:4-28:6)(Q. How long do you intend to

continue living in your trailer...? A. Indefinitely). She will never have to comply

with the Ordinance in any respect, is not currently covered by it in any respect, and

thus no longer has standing.

B. Appellant Juan Doe Will Never Be Required to Comply with the

Ordinance.

The standing of Appellant Juan Doe is equally deficient. Juan Doe has no

intention of leaving his current residence. Sealed SA 8 (Juan Doe dep. 38:12-

38:15). Specifically, when asked how long he intended to continue living at his

current apartment he responded, For a long time. I feel comfortable there. Id.

Consequently, the Ordinance will never affect him, since it only applies to new

tenancies that commence after it takes effect. 1(2.A(3)). Thus, Juan Doe has no

intention of taking steps that would bring him within the scope of Ordinance 5165.

It is unclear when, if ever, Juan Doe would even be required to apply for a

residential occupancy license. He did not allege, either in the Keller Amended

Complaint, or in his deposition, that he has any specific plans to move. Juan Does

lack of specific intention to commence a new tenancy after the Ordinance takes

effect falls far short of the firm intention that the Supreme Court demands.

Summers v. Earth Island Inst., 129 S. Ct. 1142, 1150 (2009). To have Article III



33/145

15

standing, Plaintiffs must show they are likely to suffer future injury that will be

remedied by the relief sought. Elizabeth M. v. Montenez, 458 F.3d 779, 784 (8th

Cir. 2006)(citing James v. City of Dallas, 254 F.3d 551, 563 (5th Cir.

2001))(emphasis added). Abstract injury is not enough. It must be alleged that

the plaintiff has sustained or is immediately in danger of sustaining some direct

injury as a result of the challenged [Ordinance]. OShea v. Littleton, 414 U.S.

488, 494 (1974)(quoting Massachusetts v. Mellon, 262 U.S. 447, 488 (1923)).

The injury or threat of injury must be both real and immediate, not conjectural

or hypothetical. OShea, 414 U.S. at 494 (quoting Golden v. Zwickler, 394 U.S.

103, 109-110 (1969)).

InJohnson, the plaintiffs wanted to challenge a statute which had never been

imposed on them. It was unclear when, if ever, the statute would affect them. This

court explained the numerous speculative steps that would be required to take

place before the statute could conceivably be applied against them. [A]bstract

injury was not enough to confer standing, 142 F.3d at 1089, because the injuries

were too speculative to invoke the jurisdiction of an Art. III court. Id. at 1090

(citations omitted). As this Court explained:

We reject appellants argument that they have standing becauseimposition of a statutory sanction is imminent. It is well-settled thatallegations ofpossible future injury do not satisfy the requirementsof Art. III. Whitmore v. Arkansas, 495 U.S. 149, 158 (1990).Instead, [a] threatened injury must be certainly impending to



34/145

16

constitute injury in fact. Id. (quotingBabbitt v. United FarmWorkers Nat. Union, 442 U.S. 289, 298 (1979)).

Id. at 1089.

As this Court noted, the Supreme Court cautioned against accepting standing

in these circumstances so as to reduce the possibility of deciding a case in which

no injury would have occurred at all.Id. at 1090 (quoting Lujan, 504 U.S. at 565

n.2)(internal punctuation omitted). Like theJohnson case, it is unclear when, if

ever, Juan Doe will be required to obtain an occupancy license under Ordinance

5165. He has not even expressed a remote intention (much less an immediate plan)

to commence a new tenancy. The Ordinance will therefore never affect him, since

it only affects tenancies commencing after it takes effect. 1(2.A(3)).

Consequently, there is no injury in fact with a high degree of immediacy.Id.

Indeed, there is no injury in fact at all.

Even if Juan Does standing could be based on a hypothetical possibility that

he himself does not expressthat he may someday move despite his current

statement to the contraryhe still would not have standing because he is an alien

under Temporary Protected Status (TPS). Sealed SA 4-5 (Juan Doe dep. 31:14-

32:7). This status means that Juan Doe is an alien who is lawfully present in the

United States. United States v. Ovellaner, 405 F.3d 360, 364-65 n.21 (5th Cir.

2005)(person granted TPS is in a lawful status). TPS is extended to all aliens from

a particular country, due to natural disasters or other factors that make a return to



35/145

17

the aliens country of origin dangerous. As an alien lawfully present in the United

States, Juan Doe is entitled to possess an occupancy license under Ordinance 5165.

When the federal government notifies the City that Juan Doe is an alien lawfully

present in the United States, no revocation of his occupancy license can occur.

1(4)(B)-(C)). Thus, he cannot possibly suffer any injury in fact sufficient to confer

standing upon him.

Finally, even if Juan Doe were to assert standing based on the speculation

that at some point his TPS might be terminated, he would nonetheless lack

standing because he stated in his deposition that, in that event, he would not remain

unlawfully in the United States. Rather, he would at that point leave the United

States. Sealed SA 6-7 (Juan Doe dep. 35:14- 36:6). He therefore cannot possess

standing to challenge Ordinance 5165 if he has no intention of being subject to its

terms. Thus, for multiple reasons Juan Doe lacks standing.

As with the standing of Juana Doe 2, it appears that the district court

mistakenly recited the description of Juan Doe in the Keller First Amended

Complaint, without considering the deposition testimony presented in the Citys

Summary Judgment Memorandum. JA 95 (describing Juan Doe as a City resident

who is presently pending immigration proceedings (paraphrasing Complaint at

JA154)). The court did not acknowledge either that he is a lawfully present alien

with TPS status who intends to leave the United States when his TPS status



36/145

18

expires, or that he has no present plans to move to a different apartment. Nor did

the court conduct any analysis as to why Juan Doe would still possess standing in

spite of those facts. JA 95-96. For all of these reasons, Juan Doe lacks standing.

II. The Salerno Rule Disfavoring Facial Challenges Renders Appellants

Arguments Unsustainable.

Appellants brought a highly-speculativefacial challenge to the validity of

the Ordinance before it had been implemented. Consequently, Appellants must

establish that the Ordinance would conflict with federal law under every

conceivable set of circumstances: A facial challenge to a legislative Act is, of

course, the most difficult challenge to mount successfully since the challenger

must establish that no set of circumstances exist under which the Act would be

valid. United States v. Salerno, 481 U.S. 739, 745 (1987)(emphasis added).

In 2008, the Supreme Court reaffirmed the Salerno standard and made clear

that its high hurdle applies in facial challenges. Washington State Grange v.

Washington State Republican Party, 128 S. Ct. 1184, 1190 (2008). The Court also

reiterated that to prevail in a facial challenge, a plaintiff must establish that the

law is unconstitutional in all of its applications. Id. (emphasis added). This is

because [t]he State has had no opportunity to implement [the law], and its courts

have had no occasion to construe the law in the context of actual disputes or to

accord the law a limiting construction to avoid constitutional questions. Id. The



37/145

19

Supreme Court cautioned: In determining whether a law is facially invalid, we

must be careful not to go beyond the statutes facial requirements and speculate

about hypothetical or imaginary cases. Id. (quoting United States v. Raines,

362 U.S. 17, 22 (1960)).

On June 25, 2012, the Supreme Court reiterated that facial challenges are

disfavored, this time in the specific context of a conflict preemption challenge to a

state law discouraging illegal immigration. There is basic uncertainty about what

the law means and how it will be enforced. At this stage, without the benefit of a

definitive interpretation from the state courts, it would be inappropriate to assume

[the law] will be construed in a way that creates a conflict with federal law.

Arizona v. United States, Sup. Ct. No. 11-182, slip op. at 24 (2012).

This Court has adhered to this high standard for facial challenges. The

Supreme Courts disdain for facial challenges is an expression of judicial self-

restraint. United States v. Stephens, 594 F.3d 1033, 1037 (8th Cir.

2010)(quotingUnited States v. Lemons, 697 F.2d 832, 835 (8th Cir. 1983)).

Facial challenges are especially to be discouraged when application of the

challenged statute to the case at hand would be constitutional when the facts are

eventually developed. Stephens, 594 F.3d at 1037 (quoting Sabri v. United States,

541 U.S. 600, 608-609 (2004)).



38/145

20

As this Court has explained, the defendant need only offer a fact pattern in

which the statute in question could be administered constitutionally, for the statute

to survive a facial challenge. Stephens, 594 F.3d at 1038. This the City does

easily (in addition to demonstrating that the Ordinance would be constitutional

under all applications). For example, it is probable that a United States citizen will

apply for an occupancy license, declare that he is a United States citizen as

required by the application, receive his license, and commence his tenancy without

event. Similarly, an alien who is a lawful permanent resident (green card holder)

applies for an occupancy license, records her green card number on the application,

and the City subsequently verifies her lawful immigration status with the federal

government, and her tenancy proceeds without event. Such cases demonstrate

sets of circumstances exist when the mandates of [the law] are constitutionally

valid. Id. Because Appellants rushed to the courthouse to file their Complaints

before the Ordinance was implemented, they now face the high hurdle for

disfavored facial challenges. They cannot clear that hurdle.

III. The Harboring Provisions of the Ordinance are Not Impliedly

Preempted.

Implied preemption in the immigration context is guided by the landmark

Supreme Court precedent ofDe Canas v. Bica, 424 U.S. 351 (1976). In that case,

the Court laid out a three-part test for determining whether a state or local



39/145

21

regulation affecting immigration is displaced through implied preemption. A state

regulation is only preempted (1) if it falls into the narrow category of a regulation

of immigration preempted by the Constitution itself, id. at 355, (2) if Congress

expressed the clear and manifest purpose of completely occupying the field and

displacing all state activity, id. at 357, or (3) if the state regulation conflicts with

federal laws, such that it stands as an obstacle to the accomplishment of the full

purposes and objectives of Congress. Id. at 363. Otherwise, a state or local

government is free to enact a law that discourages illegal immigration or deals

with aliens, without being preempted. Id. at 355.

Appellants asserted before the district court that the Ordinance fails all three

De Canas tests. The district court rejected virtually all of Appellants preemption

arguments, holding that the Ordinance is not a regulation of immigration, is not

field preempted, and that the vast majority of the Ordinances provisions do not

conflict with federal law. JA 101-109.3 Appellants now raise the same preemption

challenges again, but only with respect to the harboring provisions of the

Ordinance. Before addressing Appellants specific preemption challenges, we turn

first to the presumption against preemption.

3 The District Court found only that Sections 1(2), 1(3.L), and 1(4.D) of theOrdinance were conflict preempted, insofar as they provided for the revocation ofoccupancy licenses and prohibited the harboring of illegal aliens. JA 109.



40/145

22

A. The District Court Correctly Applied the Presumption AgainstPreemption.

The district court below correctly applied the presumption against

preemption. Courts begin with a presumption againstpreemption. JA 101

(emphasis in original). As the Supreme Court held in 2009, the presumption

against preemption applies in every preemption case. In all pre-emption cases,

and particularly in those in which Congress has legislated... in a field which the

States have traditionally occupied, ...we start with the assumption that the historic

police powers of the States were not to be superseded by the Federal Act unless

that was the clear and manifest purpose of Congress. Wyeth v. Levine, 129 S. Ct.

1187, 1194-95 (2009) (emphasis added)(quoting Medtronic, Inc. v. Lohr, 518 U.S.

470, 485 (1996) andRice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)).

InAltria Group, Inc. v. Good, 129 S. Ct. 538 (2008) as well, the Court

emphasized that the presumption against preemption applies in all preemption

cases. The Court then noted that in some cases the assumption is especially strong.

That assumption applies with particular force in cases that concern a field

traditionally occupied by the states. Id. at 543. Because the regulation of rental

accommodation remains within the states historic police powers, the assumption

of non-preemption must apply with particular force in the case at bar. Moreover,

Appellants must not only demonstrate congressional intent to preempt, they must

show that such congressional intent is unambiguous. [T]he historic police powers



41/145

23

of the States [a]re not to be superseded by the Federal Act unless that [is] the clear

and manifest purpose of Congress. Id. (internal citations omitted).

In 2008, the Eastern District of Missouri sustained a local ordinance dealing

with illegal immigration against a nearly-identical preemption challenge. That

court applied the presumption against preemption and concluded that the

presumption could only be set aside if the local ordinance actually attempted to

regulate who should or should not be admitted into the country, and the

conditions under which a legal entrant may remain. Gray v. City of Valley Park,

2008 U.S. Dist. LEXIS 7238 (E.D. Mo. 2008), at *24-*25, affd Gray v. City of

Valley Park, 567 F.3d 976 (8th Cir. 2009)(quoting De Canas, 424 U.S. at 355).

Because the ordinance did not do so, the court concluded, the Ordinance is a

regulation on business licenses, an area historically occupied by the states. The

rule articulated by the Supreme Court inMedtronic, Inc., is applicable, and the

Court will apply a presumption against preemption. Id. at *25. The same

analysis applies here. The regulation of business licenses and the regulation of

residential rental units are in areas historically occupied by the states, and the

Ordinance does not regulate who should or should not be admitted into the

country.

[W]e will not infer pre-emption of the States historic police powers absent

a clear statement of intent by Congress. Gade v. National Solid Wastes



42/145

24

Management Assn, 505 U.S. 88, 111-12 (1992) (Kennedy, J., concurring)(citing

Rice, 331 U.S. at 230;Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977); and

English v. General Electric Co., 496 U.S. 72, 79 (1990)). InDe Canas, the

Supreme Court applied this high standard:

[F]ederal regulation should not be deemed pre-emptive of stateregulatory power in the absence of persuasive reasons either that thenature of the regulated subject matter permits no other conclusion, orthat Congress has unmistakably so ordained.

424 U.S. at 356 (quoting Florida Lime & Avocado Growers v. Paul, 373 U.S. 132,

142 (1963))(emphasis added). Appellants have not offered any evidence of

congressional intent to preempt ordinances like Ordinance 5165, much less

unmistakable evidence thereof.

Appellants incorrectly claim that the presumption against preemption should

not apply. Martinez Br. 45; Keller Br. 11. Appellants error in this regard stems

from their reliance on a 2000 case that has now been superceded with respect to the

presumption against preemption: United States v. Locke, 529 U.S. 89, 108 (2000)

([A]n assumption of nonpre-emption is not triggered when the State regulates in

an area where there has been a history of significant federal presence.). The

relevant passage inLocke gave rise to considerable confusion on the issue

confusion that was finally resolved in 2008 and 2009 in the cases ofAltria,129 S.

Ct. at 543, and Wyeth, 129 S. Ct. at 1194-95, respectively.



43/145

25

InAltria and Wyeth, the Supreme Court removed any uncertainty about

when to apply the presumption against preemption, confirming that it applies [i]n

all pre-emption cases.Wyeth, 129 S. Ct. at 1194-95 (emphasis added)(internal

citations omitted). It applies with particular force in cases in which the

challenged law is in a field traditionally occupied by the states. Id.

Martinez Appellants also attempt to redefine the applicable field in order to

reduce the strength of the presumption against preemption, by calling the

applicable field the regulation of residence of noncitizens, Martinez Br. 45, or

the regulation of immigration. Keller Br. 11. However, underDe Canas, their

attempt at reframing is wrong: [T]he fact that aliens are the subject of a state

statute does not render it a regulation of immigration, which is essentially a

determination of who should or should not be admitted into the country, and the

conditions under which a legal entrant may remain. Id. at 355. Thus, it is clear

that the presumption against preemption applies in all cases; and in this case it

applies strongly.

B. Appellants Rest their Preemption Claims on One Vacated

Opinion and One Split Decision.

Appellants rest their preemption case almost entirely upon two flawed

decisions from other circuits. When Martinez Appellants declare that every other

federal court to consider preemption of [similar ordinances] has struck it down in



44/145

26

its entirety, Martinez Br. 23, they are actually referring to just two circuit cases:

Lozano v. City of Hazleton, 620 F.3d 170 (3rd Cir. 2010), vacated and remandedat

131 S. Ct. 2958 (2011); and Villas at Parkside Partners v. Farmers Branch, 675

F.3d 802 (5th Cir. 2012),petition for rehg pending. Martinez Appellants rely

particularly heavily on the Third Circuits decision inHazleton, citing it (or the

district court decision that it affirmed) a dozen times as the basis for their

preemption theories.4 However,Hazleton is a deeply flawed decision that has

already drawn an implicit rebuke from the Supreme Court. Shortly after handing

down Chamber of Commerce v. Whiting, 131 S. Ct. 1968 (2011), in which the

Supreme Court rejected implied preemption arguments similar to those adopted by

the Third Circuit, the high court vacated the Third Circuits decision inHazleton,

remanding the case for further consideration in light ofWhiting. 131 S.Ct. at 2958.

The Supreme Courts decision to vacateHazleton is immensely important

for two reasons. First, theHazleton preemption analysis, upon which Appellants

have built their argument, is unreliable and has been implicitly rejected by the

Supreme Court. Second, in this Court [a] vacated decision is deprived of its

precedential effect. Salitros v. Chrysler Corp., 306 F.3d 562, 575 (8th Cir. 2002)

(citing Landrum v. Moats, 576 F.2d 1320, 1324 (8th Cir. 1978)).

4Martinez Br. 3, 23-24, 26-27, 29, 33, 35, 38, 43, 45.



45/145

27

Aware that they are treading on thin ice, Martinez Appellants urge this Court

to rely on the vacatedHazleton opinion nonetheless, because the Hazleton

ordinance involved both the employment and harboring of illegal aliens, whereas

the Arizona law in Whiting involved only the employment of illegal aliens.

Martinez Br. 29. However, the Supreme Courts decision to vacateHazleton

cannot be avoided by arguing that Whiting rendered the employment portion of the

Hazleton decision invalid, but not the harboring portion. The Supreme Court

vacated and remanded the entire decision in light ofWhitingnot just the

employment portion. 131 S. Ct. at 2958. The implied preemption challenges to

the harboring provisions of the Hazleton ordinance were based on the same faulty

premises as were the implied preemption challenges to the employment provisions

of that ordinance. See Hazleton, 620 F. 3d at 202-225.

The other decision upon which Appellants rely, Farmers Branch, is equally

problematic.5 Farmers Branch is a split decision authored by Judge Thomas

Reavley that prompted a vigorous dissent by Judge Jennifer Walker Elrod. It is

Elrods opinion, not Reavleys, that is consistent with Supreme Court and Fifth

Circuit precedents. In crafting its conclusion, the majority conflates the distinct

doctrines of regulation of immigration and conflict preemption. [A]

straightforward application of Supreme Court and Fifth Circuit precedent yields a

5 Keller Appellants base their five-and-a-half pages of preemption argument almostentirely on Farmers Branch. See Keller Br. 13-17.



46/145

28

different result. Farmers Branch, 675 F.3d at 826-27 (Elrod, J., dissenting).

The majority opinion also supplanted the controlling Supreme Court definition of a

regulation of immigration with its own invented definition. [T]he majority

concedes that the Ordinance does not determine the entry or exit of anyone into or

out of the United States. This should be the end of the regulation of immigration

inquiry. Id. at 827. After a petition for rehearing en banc was filed, the Fifth

Circuit requested additional briefing. Case No. 10-10751, Doc. No. 00511841335

(May 1, 2012). The petition for rehearing en banc is still pending.

C. The District Court Correctly Held that the Ordinance is not a

Regulation of Immigration.

Appellants claim that the Ordinance is an attempt to regulate immigration.

Keller Br. 15; Martinez Br. 30. However, Appellants ignore the Supreme Courts

long-standing definition of what constitutes a forbidden state or local regulation

of immigration, which is preempted by the Constitution itself. A preempted

regulation of immigration is defined narrowly: [T]he fact that aliens are the

subject of a state statute does not render it a regulation of immigration, which is

essentially a determination of who should or should not be admitted into the

country, and the conditions under which a legal entrant may remain. De Canas,

424 U.S. at 355.



47/145

29

Recognizing that the Ordinance cannot be accurately construed as a

regulation of immigration, the district court rejected Appellants claim:

Because the Fremont Ordinance is not essentially a determination of who should

or should not be admitted into the country, and the conditions under which a legal

entrant may remain, it is not preempted by the United States Constitution. JA

105.

The correctness of the district courts conclusion is clear. The Ordinance in

no way determines who should or should not be admitted into the country. On the

contrary, the Ordinance defers to federal categories of immigration status and the

federal governments determination of any particular aliens immigration status.

Like the Arizona law at issue in Whiting, the Ordinance applies federal

immigration categories, classifications and definitions: Unlawfully present in the

United States means unlawfully present in the United States according to the terms

of United States Code Title 8, Section 1101 et seq. 1(1.B); see Whiting, 131 S.

Ct. at 1981 (The Arizona law begins by adopting the federal definitions.). All

determinations of an aliens immigration status are made by the federal

government pursuant to 8 U.S.C. 1373(c), which Congress enacted to ensure that

such local inquiries always receive a federal response. The City shall not

conclude that an alien is unlawfully present in the United States unless and until an

authorized representative of the City has verified with the federal government,



48/145

30

pursuant to Title 8, United States Code, Section 1373(c), such aliens immigration

status. 1(1.B)). The Department shall not attempt to make an independent

determination of any occupants immigration status. 1(4.C). The Whiting Court

spoke approvingly of the same language in the Arizona law: Not only that, the

Arizona law expressly provides that state investigators must verify the work

authorization of allegedly unauthorized aliens with the Federal Government, and

shall not attempt to independently make a final determination on whether an alien

is authorized to work in the United States. Whiting, 131 S. Ct. at 1981 (quoting

Ariz. Rev. Stat. Ann. 23-212(B)).

Nor does the Ordinance determine the conditions under which a legal

entrant may remain in the United States. The Ordinance does not establish any

new condition that an alien must satisfy to remain lawfully present in the United

States. That is entirely a question of federal law, defined under 8 U.S.C. 1101,

et seq. The Ordinance does establish conditions for any person (citizen or alien)

occupying a rental unit in the City of Fremont. As the Supreme Court has made

clear, a state or municipality is free to enact legislation discouraging illegal

immigration within its jurisdiction without being preempted:

In this case, California has sought to strengthen its economy byadopting federal standards in imposing criminal sanctions against stateemployers who knowingly employ aliens who have no federal right toemployment within the country; even if such local regulation hassome purely speculative and indirect impact on immigration, it does



49/145

31

not thereby become a constitutionally proscribed regulation of

immigration.

De Canas, 424 U.S. at 355-56 (emphasis added). Appellants assertion that the

Ordinance constitutes a preempted regulation of immigration cannot be squared

with the Supreme CourtsDe Canas holding.

Martinez Appellants nevertheless attempt to obfuscate the issue. They

assert, By imposing conditions on aliens presence in the United States, 1(3)

and 1(4) constitute an impermissible regulation of immigration. Martinez Br. 30.

The premise of this assertion is misleading in four respects. First, the Ordinance

does not impose a condition on aliens presence in the United States. Rather, it

imposes a condition on any personcitizen or alienoccupying a rental unit in

Fremont. Second, the Ordinance does not impose a condition uponpresence.

Rather, it imposes a condition upon retention of an occupancy license issued by the

City. Third, it does not impose a condition upon presence in the United States;

rather, it imposes a condition upon occupying a rental unit in the City of Fremont.

Fourth, Martinez Appellants misstate theDe Canas definition by omitting the

crucial phrase legal entrant and replacing it with aliens. Again, the correct

definition of a regulation of immigration is: a determination of who should or

should not be admitted into the country, and the conditions under which a legal

entrant may remain. De Canas, 424 U.S. at 355. In short, Appellants must resort



50/145

32

to misstating theDe Canas definition and misconstruing the Ordinance in order to

claim that it constitutes a regulation of immigration.

Keller Appellants offer an even weaker argument. They assert that because

eight of the ten whereas clauses in the Ordinance make statements that touch on

illegal immigration, the Ordinance is therefore an attempt to regulate immigration

in Fremont. Keller Br. 13. However, the concerns mentioned in the whereas

clauses are irrelevant to the determination of whether a law constitutes a forbidden

regulation of immigration. The Ordinance does not determine who should be

admitted into the country; nor does it impose conditions upon legal entrants

remaining in the country. See De Canas, 424 U.S. at 355. The analysis need go no

further. Keller Appellants are also mistaken in suggesting (without any support)

that a city is forbidden to exercise its traditional police powers in a manner that

serves to deter illegal immigration. See Keller Br. 13-14. As the Supreme Court

has explained:

[U]nchecked unlawful migration might impair the States economygenerally, or the States ability to provide some important service.Despite the exclusive federal control of this Nations borders, wecannot conclude that the States are without any power to deter theinflux of persons entering the United States against federal law, andwhose numbers might have a discernible impact on traditional stateconcerns.



51/145

33

Plyler v. Doe, 457 U.S. 202, 225 n.23 (1982). Accordingly, this Court should

affirm the holding of the district court below that the Ordinance is not a regulation

of immigration.

D. The District Court Correctly Held that the Ordinance is not Field

Preempted.

The district court also rejected Appellants claim that the Ordinance is field

preempted. While it may be inferred that Congress has preempted the field of

immigrationi.e. what, where, and how aliens or immigrants may enter and must

leave the countryit cannot be inferred that states and municipalities have no

authority to enact laws and ordinances that are in harmony with federal

objectives. JA 107. That holding is correct, as explained below.

1. There is no Field Preemption on the General Field of

Immigration or the Sub-Field of Harboring Illegal Aliens.

Appellants claim that the Ordinance is field preempted, asserting that certain

sections intrude in fields fully occupied by federal immigration law.

Martinez Br. 36. In making this claim, Appellants once again ignore the

controlling precedent ofDe Canas. InDe Canas, the Supreme Court emphatically

rejected the argument that the enactment of the Immigration and Nationality Act



52/145

34

(INA) constituted general field preemption and thereby displaced state and local

laws relating to aliens.

InDe Canas, the Supreme Court sustainedagainst a preemption challenge a

California law that imposed penalties on any employer who knowingly

employ[ed] an alien who is not entitled to lawful residence in the United States if

such employment would have an adverse effect on lawful resident workers. 424

U.S. at 352. TheDe Canas Court held that states and localities possessed wide

leeway to deal with aliens without being preempted. Id. at 355. Importantly, the

De Canas Court considered and expressly rejectedthe possibility that the

regulation of immigration by the federal government might be so comprehensive

that it leaves no room for state action on the field:

Only a demonstration that complete ouster of state power includingstate power to promulgate laws not in conflict with federal laws wasthe clear and manifest purpose of Congress would justify thatconclusion . Respondents have not made that demonstration. Theyfail to point out, and an independent review does not reveal, anyspecific indication in either the wording or the legislative history ofthe INA that Congress intended to preclude even harmonious stateregulation touching on aliens in general, or the employment of illegalaliens in particular.

De Canas, 424 U.S. at 357-58 (internal citations omitted)(emphasis added). The

Supreme Courts holding that field preemption has not occurred was unequivocal.

Thus, it is plain that there is no field preemption on the general field of regulations

relating to aliens.

fremont - opening brief

Documents