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Media Alerts - Villas at Parkside Partners v. City of Farmers Branch, Texas - Fifth Circuit
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July 23, 2013
  Villas at Parkside Partners v. City of Farmers Branch, Texas - Fifth Circuit
Headline: Fifth Circuit Strikes Down Municipal Ordinance that Restricted Rental Housing Based on Immigration Status.

Area of Law: Immigration, preemption.

Issue Presented: Whether a local ordinance that prohibited occupancy in rental housing by persons without lawful immigration status is preempted by federal law.

Brief Summary: The City of Farmers Branch, Texas, enacted a municipal ordinance that requires persons who occupy rental housing within the city to obtain an occupancy license. License applicants must declare that they are U.S. citizens or nationals or, if they are not, provide an identification number that establishes their lawful presence in the United States. The city building inspector uses that information to attempt to verify with the U.S. government that the applicant is lawfully present. The ordinance provides criminal penalties for persons who occupy rental housing without obtaining a license and for landlords who rent to persons without a license. The U.S. District Court for the Northern District of Texas held that the ordinance was preempted by federal law and enjoined its enforcement. The U.S. Court of Appeals for the Fifth Circuit initially affirmed and, after rehearing en banc, has now affirmed once more.

Significance: A number of states and cities across the country have enacted, or are considering enacting, laws that indirectly regulate immigration in various ways.

Extended Summary: The City of Farmers Branch, located near Dallas, Texas, enacted a municipal ordinance that requires persons who occupy rental housing within the city to obtain an occupancy license. Applicants for the license must declare under penalty of perjury that they are U.S. citizens or nationals or, if they are not, provide an identification number that establishes their lawful presence in the United States. The occupancy license is issued upon submission of the application, but the city building inspector then uses the information on the application to attempt to "verify with the federal government whether the occupant is an alien lawfully present in the United States." If the federal government's response regarding the renter's immigration status indicates (as interpreted by the building inspector) that the renter is not lawfully present, the building inspector revokes the occupancy license. The ordinance provides misdemeanor criminal penalties for those who occupy rental housing without obtaining a license and for landlords who rent to those without a license. Aggrieved parties are directed to seek judicial review of the building inspector's determinations in state court.

A group of lessors and lessees of rental property in Farmers Branch challenged the ordinance in federal court. The U.S. District Court for the Northern District of Texas held that the ordinance was preempted by federal law and enjoined its enforcement. A divided panel of the U.S. Court of Appeals for the Fifth Circuit affirmed. The en banc court then voted to rehear the case.

The en banc Fifth Circuit ruled that the ordinance is preempted and thus affirmed the district court. There were several opinions. The lead opinion, authored by Judge Higginson and joined by four other judges, relied on principles of conflict preemption, according to which state and local law is invalid if it interferes with the accomplishment of federal objectives. Rejecting the city's argument that its ordinance would merely involve concurrent enforcement of existing federal laws, Judge Higginson's opinion found instead that the ordinance's criminal prohibitions upset the balance struck by Congress regarding how best to enforce immigration law. Further, the ordinance's judicial-review provision is preempted because it allows state judges to make immigration classifications. Stripped of the criminal penalties and judicial-review provision, the rest of the licensing scheme cannot operate in a coherent way, and so the entire ordinance is invalid.

Although a total of nine of the fifteen participating judges believed that the ordinance was invalid, they were split between the five judges represented by the lead opinion and four judges who concurred in separate opinions that relied on somewhat different and broader grounds. Judge Higginson, author of the lead opinion, also added his own separate opinion stating that the ordinance was not field preempted and noting that the ordinance might suffer from other constitutional defects that were not before the court. Six judges (in opinions by Judge Owen and a jointly authored opinion by Judges Jones and Elrod) would have upheld the ordinance against the preemption challenge except for small portions of the judicial review provision, which they would sever from the rest of the ordinance.

For the full opinion, please see: http://www.ca5.uscourts.gov/op...0/10-10751-CV1.wpd.pdf.

Panel: En banc

Argument Date: En banc argument on 9/19/2012

Date of Issued Opinion: 7/22/2013

Docket Number: No. 10-10751

Decided: Affirmed

Counsel: William A. Brewer III, Bickel & Brewer, for Plaintiff-Appellee Villas at Parkside Partners; Nina Perales, MALDEF, for Plaintiff-Appellee Valentin Reyes; Peter Michael Jung, Strasburger & Price, L.L.P., for Defendant-Appellee City of Farmers Branch.

Author of Opinion: Lead opinion by Judge Higginson (concurrence in the judgment by Judge Reavley, special concurrence by Judge Dennis, special concurrence by Judge Higginson, partial concurrence and partial dissent by Judge Owen, dissent by Judges Jones and Elrod).

Case Alert Circuit Supervisor: Aaron-Andrew P. Bruhl

    Posted By: Aaron Bruhl @ 07/23/2013 09:53 PM     5th Circuit  

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