Fremont can enforce employment provisions of a controversial immigration ordinance approved by its residents in 2010, but a federal judge said on Monday that the city cannot prevent those without legal immigration status from living there.
A 37-page summary judgment from U.S. District Court Judge Laurie Smith Camp is the latest development in an immigration dispute that began with proposed employment and housing sanctions and a city council defeat of those proposed sanctions in 2008.
As the Monday decision said, "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."
Attorneys representing the city as defendant and local landlords, tenants, the American Civil Liberties Union and other plaintiffs had requested in January that Smith Camp rule without a trial.
Both sides portrayed the outcome as more victory than defeat.
Kris Kobach, attorney for the city, said his clients prevailed on the employment issue and on parts of the housing issue.
Kobach noted that participation by local employers in a federal E-Verify system to electronically screen the legal status of job applicants now is compulsory in Fremont, even though it's voluntary elsewhere.
"The decision represents a victory for the citizens of Fremont and a vindication of the enactment of this ordinance," said Kobach, who was elected Secretary of State in Kansas during the ongoing court battle.
Kobach said the city can still require anyone seeking to rent property to apply for a $5 city permit and check their citizenship status. Kobach said the ruling simply prevents the city from revoking those permits.
Alan Peterson, a Lincoln attorney representing the American Civil Liberties Union, and Jennifer Chang Newell of the ACLU's Immigrants' Rights Project in San Francisco said much of what Smith Camp had to say was favorable to their case.
"She made it clear," Chang Newell said, "that it's not the business of cities like Fremont to decide who can live there based on their immigration status."
As lawyers from the plaintiff side had argued, that's federal turf.
If there's no appeal on the portions of the Fremont law Smith Camp upheld, they can take effect as soon as March 5, Kobach said.
Chang Newell said her legal team would have to review the decision and consult with clients before deciding about an appeal.
Fremont drew national attention as a core group supporting the defeated ordinance put it on the ballot and attracted majority support in 2010. It was quickly tied up in court before enforcement began.
Similar disputes are pending in other federal jurisdictions of attempted immigration crackdowns in Hazelton, Penn., and in Farmers Branch, Texas.
During the battle over immigration reform, Kobach has achieved national prominence as senior counsel for the Immigration Reform Law Institute and on behalf of clients who favor strict enforcement of immigration law.
He noted on Monday that Smith Camp had "emphatically rejected" an ACLU claim that Fremont had discriminated against anybody.
As Smith Camp put it: "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 the statute, ordinance, or initiative."
Peterson called the outcome "a split decision," and declined to comment in detail about what it said.
"I'm not surprised about the employment portion, E-Verify, because of the U.S. Supreme Court case," he said. "And because we won parts and lost parts of housing, I haven't really digested whether I'm surprised or not surprised."
Chang Newell said she had no regrets about not going to trial because the case was mostly about legal issues, as opposed to conflicting versions of facts.
"And often, many types of legal issues can be decided in this type of ruling."
As Kobach described it, "75 percent of the ordinance goes into effect. And I believe the ordinance will achieve the objective it was intended to achieve, regardless of whether that's 75 percent or 100 percent."
The objective is "discouraging illegal immigration in the jurisdiction of Fremont."
In meeting that objective, he said, the city protects its citizens from unlawful competition for jobs, reduces the financial burden that goes with residents living there illegally and combats the potential for crimes to be committed by those living there illegally.
"And I think all three of those will be served by being able to put three quarters of the ordinance in effect."
Employers must start using E-Verify by May 4.
In a prepared statement, Fremont City Attorney Paul Payne said the City Council will discuss the ramifications of the court ruling Feb. 28. Payne said there will be no decision on implementation until then.
In another prepared statement, Amy Miller of ACLU Nebraska also portrayed the outcome as a victory and said it "should be a signal to other communities that ‘show me your papers' is a phrase that belongs in our history books, not modern law."
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