Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 1 of 22

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

MEMORANDUM IN RESPONSE TO PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
INTRODUCTION AND PROCEDURAL BACKGROUND On September 22, 2006, the Plaintiffs in this action, along with other plaintiffs, filed suit against the Defendant city of Valley Park, seeking to enjoin two ordinances (Valley Park Ordinances 1708 and 1715) that concerned the same general subject matter as the two ordinance at issue in this action (Valley Park Ordinances 1721 and 1722)—illegal immigration. Reynolds v. Valley Park, No. 06-CC-3802. After removal of the Reynolds case to this court, Plaintiffs filed a motion to remand, which was granted by this court on November 15, 2006. Reynolds was subsequently decided solely on state law grounds by the Circuit Court of Saint Louis County. The (repealed) ordinances at issue in Reynolds were structured completely differently from the ordinances at issue in the present case, as is explained further below. On March 14, 2007, Plaintiff Jacqueline Gray filed the petition in this case. On April 12, 2007, Plaintiffs filed an Amended Petition adding Windhover, Inc., as a party Plaintiff. On May 1, 2007, Defendant removed the case to this Court; and on May 21, 2007, this Court denied Plaintiffs’ motion to remand. Defendant now responds to Plaintiffs’ motion for a preliminary injunction.
FACTUAL BACKGROUND The ordinances at issue in this matter, Valley Park Ordinance 1721 and Valley Park Ordinance 1722, are municipal measures carefully drafted to comply with controlling federal precedents defining the

1

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 2 of 22
authority of state and local governments to take actions that discourage illegal immigration within their jurisdiction. Ordinance 1721 concerns inspections and occupancy permits for rental dwelling units in Valley Park. It is intended to prohibit landlords from harboring illegal aliens—which has long been a federal crime under 8 U.S.C. § 1324(a)(1)(A). Specifically, Ordinance 1721 requires owners, agents, or managers of dwelling units to obtain licenses in the form of “occupancy permits” from the City. Such permits will be denied if a proposed occupant is an alien unlawfully present in the United States. Ordinance 1721 § 2(a). “The [Valley Park] Building Commissioner shall make no independent judgment of the legal status of any alien.” Id. Rather, the City defers entirely to the verification of an alien’s status by the federal government, which Congress authorized in 8 U.S.C. § 1373(c). Ordinance 1721 § 2(a).
Ordinance 1722 prohibits employers in Valley Park from knowingly employing unauthorized aliens—which has been a federal crime since 1986 under 8 U.S.C. § 1324a. Ordinance 1722 requires employers to sign an affidavit stating that they do not knowingly utilize the services of or hire any person who is an unlawful worker (including an unauthorized alien). Ordinance 1722 § 4.A. Employers who violate the ordinance risk the suspension of their business licenses under Section 4.B(4)—a sanction that Congress expressly allowed municipalities to impose on employers of unauthorized aliens. 8 U.S.C. § 1324a(h)(2). Both ordinances apply only prospectively. Ordinance 1721 applies only to new occupancies after the ordinance becomes effective. Ordinance 1721 § 2(c). And Ordinance 1722 applies only to employees hired after the ordinance becomes effective. Ordinance 1722 § 5.A.
ARGUMENT I. PLAINTIFFS FAIL TO MEET THE STANDARD OF IRREPARABLE HARM
To prevail on a motion for preliminary injunction the moving party must show 1) a probability of success on the merits, 2) that the absence of a preliminary injunction threatens irreparable harm, 3) that this harm is greater then the injury inflicted on other interested parties by granting the injunction, and 4) that an injunction is in the public interest. Lankford v. Sherman, 451 F.3d 496, 503 (8th Cir. 2006). Plaintiffs in this case have failed to meet the irreparable harm standard, for four reasons.
A. Time Spent Applying for a Permit Does not Constitute “Irreparable Harm”
2

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 3 of 22
First, Plaintiffs assert that they (Ms. Gray and her company, Windhover, Inc.) will suffer irreparable harm by having to comply with the occupancy permit provisions of Ordinance 1721. Plaintiffs state that compliance with what is characterized as an “onerous and time-consuming process” amounts to irreparable harm. Pl. Mtn. for Pre. Inj., 17. This assertion is utterly without basis in case law. Time consumed by filling out a form has never been recognized by any federal court as irreparable harm sufficient to justify a preliminary injunction. If and when she has a new tenant wishing to occupy her rental dwelling unit, Ms. Gray will need to obtain an occupancy permit on behalf of her tenant. Simply put, all she must do is collect the prospective occupant’s name, age, date of birth, citizenship, and a copy of the occupant’s photo identification. Beyond that, in the case of an alien, the City merely asks for any number that the alien believes establishes his lawful presence in the United States; or, in the case of a U.S. citizen, the City asks for a signed declaration of U.S. citizenship. Ordinance 1721 § 2(a); “Notice: Applying for a Valley Park Occupancy Permit,” attached as Exhibit A. This is little more than the basic information that a landlord routinely collects to determine the credit history of a prospective tenant. Its collection and presentation to the City certainly causes no “harm” to Plaintiffs, much less irreparable harm.
Plaintiffs do not present a shred of case law suggesting that the mere collection of basic identity information and filling out of a form to obtain a license constitutes judicially cognizable harm. No such case law exists. Indeed, Plaintiffs seem to be unaware that federal law already requires all states and local governments to collect basic identifying information to verify an alien’s lawful presence in the United States with the federal government, before providing any “public benefit” (including a “license”) to the alien. 8 U.S.C. §§ 1621, 1625. An occupancy permit is such a benefit.
B. Delay in Renting a Dwelling Unit Does not Constitute “Irreparable Harm” Second, Plaintiffs suggest that even if the application for an occupancy permit does not constitute irreparable harm, the delay that would result if a permit were denied would constitute irreparable harm— because Plaintiffs “must start all over again to locate another prospective tenant.” Pl. Mtn. for Pr. Inj. 18. Once again, Plaintiffs offer no case law indicating that such delay would constitute irreparable harm. However there is a much deeper flaw in this argument. A permit would only be denied if, after Valley Park
3

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 4 of 22
“verify[ies] with the federal government whether the alien is lawfully present in the United States, pursuant to 8 U.S.C. § 1373(c),” the federal government concludes that the individual is an “an alien unlawfully present in the United States.” Ordinance 1721 § 2(a). In other words, only if the federal government concluded that the proposed occupant was an illegal alien would any occupancy permit be denied. Plaintiffs assume that they have a right to proceed with the rental of the dwelling unit to an illegal alien. However, there is no such right. It is a federal crime under 8 U.S.C. § 1324(a)(1)(A) to harbor an illegal alien. The provision of an apartment to an illegal alien falls within the federal immigration crime of harboring, as the Courts of the United States have held. United States v. Aguilar, 883 F.2d 662, 669-670 (9th Cir., 1989); United States v. Lopez, 521 F.2d 437 (2nd Cir. 1975), cert. denied, 423 U.S. 995 (1975).
Plaintiffs cannot assert a judicially-cognizable harm stemming from their inability to commit a federal crime. No plaintiff has a cognizable interest in swiftly entering into a contract to harbor an alien unlawfully present in the United States. “[W]here the contract grows immediately out of, and is connected with, an illegal or immoral act, a Court of justice will not lend its aid to enforce it.” Armstrong v. Toler, 24 U.S. 258 (U.S. 1826).
C. Irreparable Harm Cannot be Speculative in Nature Third, irreparable harm in a motion for preliminary injunction cannot be based on rank speculation. Plaintiffs’ asserted harm under Ordinance 1721 will only occur if at some point in the future an illegal alien seeks to rent an apartment from Ms. Gray. She has not alleged that she has any reason to believe that this will occur. Plaintiffs’ asserted harm under Ordinance 1722 will only occur if at some point in the future, Ms. Gray seeks to hire someone to work for her, and that hypothetical person turns out to be an unauthorized alien. She does not allege that she has any plans to hire anyone at present. In other words, there is no concrete basis for concluding that any harm will ever befall Plaintiffs. A preliminary injunction requires “a concrete showing of irreparable injury...to justify preliminary injunctive relief barring enforcement of [a] challenged statute.” Reprod. Health Servs. of Planned Parenthood of the St. Louis Region, Inc. v. Nixon, 428 F.3d 1139, 1143-44 (8th Cir. 2005) (emphasis added). The Supreme Court has specifically rejected claims of irreparable harm due to their “speculative nature,” L.A. v. Lyons, 461 U.S.
4

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 5 of 22
95, 111 (1983). The Eighth Circuit “has repeatedly emphasized the importance of a showing of irreparable harm.” Caballo Coal Co. v. Ind. Mich. Power Co., 305 F.3d 796, 800 (8th Cir. 2002). The “failure to show irreparable harm is, by itself, a sufficient ground upon which to deny a preliminary injunction.” AdamMellang v. Apartment Search, 96 F.3d 297, 299 (8th Cir. 1996) (quoting Gelco Corp. v. Coniston Partners, 811 F.2d 414, 418 (8th Cir. 1987)). “The burden of demonstrating that a preliminary injunction is warranted is a heavy one where, as here, granting the preliminary injunction will give plaintiff substantially the same relief it would obtain after trial on the merits.” Dakota Industries, Inc. v. Ever Best Ltd., 944 F.2d 438, 440 (8th Cir. 1991). Plaintiffs have not met this heavy burden.
D. If Delay Did Constitute Harm, it Would be De Minimis Delay does not constitute not irreparable harm for the purposes of adjudicating a motion for preliminary injunction. However, even if it did, any delay that might result if Plaintiffs ever attempted to obtain an occupancy permit for an illegal alien would be negligible. Depending on which verification system Valley Park uses, the federal government can provide an answer in seconds or minutes. If Valley Park uses the Systematic Alien Verification for Entitlements (SAVE) program, which was created specifically to respond to state and local verification requests under 8 U.S.C. § 1621, the answer would come back within seconds. The local government official taps into the federal government’s Verification Information System (VIS) via the internet. As the Department of Homeland Security reported in February 2007, “Users log into the VIS system to enter query information and results are returned within 3 seconds.” DHS Exhibit 300 Public Release BY08, Feb. 12, 2007, at 2, attached as Exhibit B. If, on the other hand Valley Park uses the Law Enforcement Support Center (LESC), this telephone-based system provides a verification of an alien’s status in less than ten minutes in the majority of cases.1 It is hard to see how the delay of ten minutes or less in verifying a prospective occupant’s legal status will cost the Plaintiffs any money. However, even if it did, “[a]s a general rule, a party may not obtain injunctive relief where it claims a loss of profits.” Fleet Nat'l Bank v. Burke, 45 Conn. Supp. 566, 577 (Conn. App. Ct. 1998).
1 Remarks of Dept. of Homeland Security Gen. Counsel Joe Whitley to National College of District Attorneys, October 7, 2003, accessible athttp://www.dhs.gov/xnews/speeches/speech_0135.shtm.
5

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 6 of 22
II. PLAINTIFFS DISTORT THE PLAIN MEANING OF ORDINANCE 1721 BY RELYING ON AN ERRONEOUS AND WITHDRAWN DOCUMENT
Plaintiffs assert that “Valley Park has interpreted and implemented Ordinance 1721 to prohibit immigrants from living in Valley Park who are lawfully present in the United States.” Pl. Mtn. for Pre. Inj., 10. This statement is obviously incorrect. The text of the Ordinance is perfectly clear. Only an “alien unlawfully present in the United States” may be denied an occupancy permit. Ordinance 1721 § 2(a). Moreover, “The determination of whether an alien is lawfully present in the United States shall only be made by the federal government.” Ordinance 1721 § 2(e). If for some reason the federal government cannot provide a final confirmation that an alien is unlawfully present, then the City gives the alien the benefit of the doubt and issues the occupancy permit. Ordinance 1721 § 2(d). It is impermissible, under the plain meaning of the ordinance, for any alien who is lawfully present in the United States to be denied an occupancy permit.
Plaintiffs base their misleading statement on an erroneous document that was hastily produced by an administrative assistant at Valley Park City Hall, on March 13, 2007, in response to requests by a few landlords regarding what sort of identification an alien could use in applying for an occupancy permit. See Pl. Mtn. for Pre. Inj., Exhibit G. The administrative assistant consulted the website of the Missouri Department of Revenue to see what documents the state accepted when issuing drivers licenses to aliens. She downloaded the state document, made a few changes, and handed it to fewer than ten people.
Her document contained numerous errors. For example, on the front page it stated, “Documents required to apply for a Valley Park occupancy permit.” It should have stated “Documents recommended to apply for a Valley Park occupancy permit.” Neither of the systems utilized by the federal government to verify the lawful status of an alien at the request a local official requires the alien to have a document in his possession. Using either the SAVE program or the LESC, discussed further below, the local official need only submit an identification number provided by the alien, along with the alien’s name and date of birth. No physical document is necessary. It is also possible for the system to verify status without any identification number. The administrative assistant also neglected to make modifications to the Missouri
6

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 7 of 22
Department of Revenue document regarding categories of nonimmigrant aliens who are not eligible for a Missouri drivers license, but who are of course eligible to obtain a Valley Park Occupancy permit. See Pl. Mtn. for Pre. Inj., Exhibit G (“A-1… NO. Individuals with an ‘A’ status can only be issued a Drivers License from the U.S. State Department.”) Plaintiffs seize on this error to assert, implausibly, that aliens lawfully present in the United States may not obtain an occupancy permit under Ordinance 1721—the plain language of the ordinance notwithstanding.
Fortunately, the erroneous document was only handed to fewer than ten people during a three week period, until the first week of April 2007. It was never posted in any public place, nor was it made available on the table in City Hall where public notices may be picked up. The City never published the erroneous document on its website. Beginning in May 2007, the City made every effort to correct the mistakes in this erroneous document by publishing a correct notice on the City’s website and posting the correct notice in City Hall. The correct notice, which has been continuously available to the public on the appropriate table in City Hall, explains what information is necessary to obtain an occupancy permit and states clearly that, “All aliens lawfully present in the United States are eligible to obtain an occupancy permit.” “Notice: Applying for a Valley Park Occupancy Permit,” attached as Exhibit A. Regardless, the text of Ordinance 1721 speaks for itself. Plaintiffs’ attempt to misconstrue that text is unavailing. III. PLAINTIFFS CANNOT SUCCEED ON THE MERITS
A. The Ordinances Are Not Preempted by Federal Immigration Law The controlling Supreme Court precedent of De Canas v. Bica, 424 U.S. 351 (1976), laid out a three-part test for determining whether a state or local regulation affecting immigration is displaced through implied preemption. A state regulation is preempted (1) if it falls into the narrow category of a “regulation of immigration,” (2) if the federal government has completely occupied the field so as to complete displace state activity, or (3) if the state regulation “conflicts in any manner with any federal laws or treaties.” Id. at 358. Plaintiffs recite De Canas test, but then they fail to mention the controlling De Canas precedent again. The reason that this controlling case disappears from Plaintiffs’ memo is obvious: De Canas is filled with statements that clearly support Defendants, as is shown below. Plaintiffs also fail to mention
7

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 8 of 22
what De Canas was about. In De Canas, the U.S. Supreme Court sustained against 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.” Id. at 352. The similarities to Ordinance 1722 are obvious.
Plaintiffs also neglect to mention the presumption against any judicial finding of preemption. There is a heavy presumption against federal preemption of state law. “In all preemption cases…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 a clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485(1996).
1. The Ordinances are not a “Regulation of Immigration” Under De Canas Plaintiffs declare that the ordinances “attempt to regulate immigration.” Pl. Mtn. for Pre. Inj., 9. However, they decline to quote the controlling De Canas precedent, which explained quite clearly what the term “regulation of immigration” means: [S]tanding alone, the 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. 424 U.S. at 355 (emphasis added). The Supreme Court made it abundantly clear that states and localities possessed wide leeway to “deal with aliens” without being preempted: “[T]he Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.” Id. “In other words, it is the creation of standards for determining who is an is not in this country legally that constitutes a regulation of immigration in these circumstances, not whether a state’s determination in this regard results in the actual removal or inadmissibility of any particular alien.” Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004). Valley Park has not in any way attempted to define who should or should not be admitted into the country. Indeed Ordinances 1721 and 1722 repeatedly make express reference to federal immigration
8

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 9 of 22
classifications in defining which aliens may not be harbored and which aliens may not be employed. “‘Illegal Alien’ means an alien who is not lawfully present in the United States according to the terms of United States Code Title 8, section 1101 et seq.” Ordinance 1722 § 3.D. The ordinances defer entirely to the federal government in determining whether an alien is lawfully present in the United States. “The determination of whether an alien is lawfully present in the United States shall only be made by the federal government.” Ordinance 1721 § 2(e).
Plaintiffs compound their misunderstanding of what constitutes a “regulation of immigration” by citing irrelevant, outdated cases that do not involve illegal immigration in any way. Pl. Mtn. for Pre. Inj., 9. Without explanation, Plaintiffs cite Truax v. Raich, 239 U.S. 33 (1915), which involved a state law that denied employment to an alien who was lawfully admitted to the United States and entitled to work under federal law—a law that was struck down on 14th Amendment grounds, not preemption grounds. Id. at 4243. Then Plaintiffs cite Hines v. Davidowitz, 312 U.S. 52 (1941), an equally irrelevant case invalidating a state law that registered legal aliens because it conflicted with federal law. Id. at 73-74. Plaintiffs also attempt to use Graham v. Richardson, 403 U.S. 365 (1971) to their advantage. Like the others, that case involved a state law that discriminated against certain aliens who were lawfully present in the United States. Id. at 367, 378.
The state statutes in those pre-De Canas cases were preempted, but as the Supreme Court later synthesized in De Canas, it was because the statutes sought to “determine the conditions under which a legal entrant may remain” in the United States. 424 U.S. at 355 (emphasis added). The ordinances at issue in this case do not restrict the ability of aliens lawfully present in the United States to remain. Rather, Valley Park’s ordinances restrict the ability of illegal aliens to violate federal law by residing unlawfully in the United States. State laws that deny privileges and benefits to illegal aliens have been upheld by U.S. courts. See, e.g., Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004) (upholding state policy denying university admission to illegal aliens). In 1996, Congress took the unusual step of stating this objective explicitly in federal law: “It is a compelling government interest to remove the
9

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 10 of 22
incentive for illegal immigration provided by the availability of public benefits.” 8 U.S.C. § 1601(6). By taking away the public benefit of an occupancy permit, Valley Park achieves this congressional objective.
2. Congress Has Not Occupied the Field so as to Displace all Local Legislation Without any explanation or case support, Plaintiffs make the extraordinary claim that the field of immigration is a “field[] completely occupied by federal law.” Pl. Mtn. for Pre. Inj., 9. Once again, Plaintiffs completely ignore controlling precedent. The De Canas Court considered and rejected the possibility that the regulation of immigration by the federal government might be so comprehensive that it occupies the field and displaces state action: “Respondents … fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.” De Canas, 424 U.S. at 357-358 (internal citations omitted). “No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws.” Lynch v. Cannatella, 810 F.2d 1363, 1367 (5th Cir. 1987).
3. De Canas Permits Harmonious State Regulations Concerning Illegal Aliens The De Canas Court was unequivocal in its conclusion that a state is permitted to restrict the employment of unauthorized aliens and otherwise act in ways that have an impact on immigration: In this case, California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. 424 U.S. at 355-56 (emphasis added). While Plaintiffs would have this Court believe that virtually all state regulations affecting illegal aliens are displaced, to the contrary, the De Canas Court held that a state law imposing penalties on employers of illegal aliens was not preempted under any possible theory. Interestingly, Plaintiffs attempt in vain to find support in an irrelevant footnote from a concurring opinion in Plyler v. Doe, 457 U.S. 202 (1982). Pl. Mtn. for Pre. Inj., 12-13. However, Plaintiffs completely ignore what the Plyler majority had to say on the subject:
10

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 11 of 22
As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State’s program reflected Congress’ intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id. at 361. Plyler, 457 U.S. at 225. The Supreme Court has never departed from this holding, and Plaintiffs have not presented any case law that comes even close to suggesting otherwise.
4. Federal Law Expressly Permits Certain State Laws Restricting the Employment of Unauthorized Aliens.
With respect to Ordinance 1722, Congress has expressly permitted precisely the form of local regulation at issue in this case. In 1986, Congress passed the Immigration Reform and Control Act, which made the employment of unauthorized aliens a federal crime. In so doing, Congress expressly preempted some state restrictions on the employment of unauthorized aliens, but expressly permitted others. The relevant provision of federal law is found at 8 U.S.C. § 1324a(h)(2):
Preemption. The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2) (emphasis added). In this section of U.S. law, Congress utilized its power of express preemption to deny states and localities the authority to impose civil or criminal fines on the employment of unauthorized aliens. However, Congress explicitly left open a doorway for state and local legislation on the subject—in the form of “sanctions … through licensing and similar laws.” Valley Park has followed 8 U.S.C. § 1324a(h)(2) with exacting precision. Valley Park has eschewed the imposition of criminal or civil penalties and has instead taken the action expressly permitted by Congress. Section 4.B. of Ordinance 1722 calls for the suspension of the business license of a business entity that employs unauthorized aliens—a licensing restriction under 8 U.S.C. § 1324a(h)(2).
5. The Prohibition of Harboring Constitutes Concurrent Enforcement Activity and is Therefore not Preempted
Ordinance 1721 prohibits the harboring of an illegal alien in a dwelling unit. This prohibition of harboring is also in perfect alignment with congressional objectives. Enacting such a harboring provision is well within the authority of a municipality under the doctrine of “concurrent enforcement activity.” In
11

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 12 of 22
immigration law, states and localities are not preempted when they undertake concurrent enforcement activity with the federal government. “Where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized.” Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983) (citing Florida Avocado Growers v. Paul, 373 U.S. 132, 142 (1963)) (emphasis added).
In the case at bar, the harboring prohibition in Ordinance 1721 is perfectly consistent with the equivalent harboring provision of federal law, which imposes criminal penalties on:
Any person who … knowing or in reckless disregard of the fact that an alien has come to, entered, or remains in the United States in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor, or shield from detection, such alien in any place, including any building or any means of transportation. 8 U.S.C. § 1324(a)(1)(A)(iii). As noted above, the provision of housing to illegal aliens is a fundamental component of the federal crime of harboring, as the Courts of the United States have repeatedly held. Where “[f]ederal and local enforcement have identical purposes,” preemption does not occur. Gonzales v. Peoria, 722 F.2d at 474. In the words of Judge Learned Hand, “it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow.” Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928). It should also be noted that the illegal alien who proposes to occupy a dwelling unit is also committing a violation of federal law; the specific violation depends on whether he entered without inspection, overstayed his visa, or otherwise violated the immigration laws of the United States. See 8 U.S.C. § 1101, et seq. Valley Park reinforces federal law by discouraging the illegal alien from taking up residence in the United States.
6. Congress Expects States and Localities to ask for Federal Verifications of Aliens’ Legal Statuses
Desperate to find some possible conflict with federal immigration law, Plaintiffs resort to what can only be describe as a bizarre argument. Plaintiffs contend that “the federal government cannot answer, on demand, a local request, such as that dictated in Ordinance 1721, regarding whether a particular individual cannot reside lawfully with the United States.” Pl. Mtn. for Pre. Inj., 12. Evidently, Plaintiffs are unaware that there are now “over 190,000 Federal, state, and local government agency users” of the SAVE system,
12

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 13 of 22
which answers such requests daily. DHS Exhibit 300 Public Release BY08, Feb. 12, 2007, at 4, attached as Exhibit B. One wonders what those 190,000 users would think of Plaintiffs’ assertion.
Plaintiffs then reveal that they have not read 8 U.S.C. § 1373(c), when they claim (without any support) that “[t]he requirement in Ordinance 1721 that the federal government provide the City with information regarding a person’s immigration status is in conflict with the federal scheme.” Pl. Mtn. for Pre. Inj., 12. Actually, Valley Park follows the federal scheme precisely. In 1996 Congress, not Valley Park, created the scheme by enacting 8 U.S.C. § 1373(c), entitled “Obligation to respond to inquiries:”
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. One of the ways that the federal government met this obligation was by creating the SAVE system. “Congress in various statutes mandated that USCIS provide a system that verifies citizenship and immigration status of individuals seeking government benefits…. USCIS implemented this mandate through the Systematic Alien Verification for Entitlements (SAVE) program….” U.S. Department of Homeland Security, Privacy Impact Assessment for the Verification Information System Supporting Verification Programs, April 1, 2007, at 2, attached as Exhibit C. Federal courts have recognized that reliance on such federal verification through SAVE allows a state or local government to act without being preempted. “The benefits denial provisions of Proposition 187 may therefore by implemented without impermissibly regulating immigration if state agencies, in verifying for services and benefits, rely on federal determinations made by the INS and accessible through SAVE.” League of United Latin American Citizens v. Wilson, 908 F. Supp. 755, 770 (C.D. Cal. 1995). Faced with the undeniable legal reality that 8 U.S.C. § 1373(c) requires the federal government to provide an answer to any local government official who seeks “to verify or ascertain the citizenship or immigration status of any individual,” and that the federal government created the SAVE system to “verify” any alien’s status and satisfy this statutory mandate of 1996, Plaintiffs resort to an extremely tenuous argument. Plaintiffs claim that SAVE does not actually suffice to verify an alien’s legal status. In
13

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 14 of 22
making this claim, Plaintiffs cite a memorandum from the INS to other federal agencies that was published in the Federal Register in 2000. Pl. Mtn. for Pre. Inj., 13. However Plaintiffs either did not understand, or chose not to mention, the context of that memorandum. In Section 404 of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Congress required certain federal agencies to report four times a year any alien that the federal agency “knows is not lawfully present in the United States” (emphasis added). Faced with the ambiguity of the term “knows,” the relevant agencies consulted with one another and reached an agreement that, in 2000, the best way to interpret that reporting requirement would be to say that a federal agency “knows” after the formal process of administrative review in the INS was complete. 65 Fed. Reg. 58301. The memo had nothing to do with the provision of information on the legal status of aliens to state and local governments. Id.
More importantly, Plaintiffs neglect to inform this Court of the most recent DHS publication in the Federal Register on the subject, dated March 9, 2007, which clearly states that a SAVE verification is sufficient to inform a state whether or not an alien is lawfully present in the United States. Just a few quotations from the March 2007 publication illustrate the absurdity of Plaintiffs’ argument. A SAVE “check” serves “to confirm lawful status.” 72 Fed. Reg. 10820, 10832. “[A]ll fifty states have signed MOUs for access to SAVE and twenty State DMVs are currently querying SAVE to verify lawful status.” Id. at 10833 (emphasis added). “DHS also proposes that States conduct a lawful status check through SAVE to verify that the individual has lawful status in the United States.” Id. at 10840 (emphasis added). Plainly, DHS regards the SAVE program as sufficient to verify an individual’s lawful status, contrary to Plaintiffs’ assertion. Plaintiffs’ failure to mention this recent DHS publication is troubling, to say the least.
B. Plaintiffs’ Equal Protection Argument Cannot Succeed 1. The Ordinances Contain no Suspect Classifications and are Therefore Subject only to Minimal Scrutiny
Plaintiffs acknowledge that there are no suspect classifications in the Valley Park ordinances subject to facial challenge. Pl. Mtn. for Pre. Inj., 15. The only classification that exists in the ordinances is a classification based on immigration status. The Supreme Court has expressly rejected the notion that a
14

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 15 of 22
law that treats illegal aliens differently than U.S. citizens and aliens lawfully present in the United States amount to a suspect classification:
We reject the claim that “illegal aliens” are a “suspect class.” No case in which we have attempted to define a suspect class … has addressed the status of persons unlawfully in our country. Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime. In addition, it could hardly be suggested that undocumented status is a “constitutional irrelevancy.” Plyler, 457 U.S. at 219, n.19. Accordingly, the ordinances should only be subjected to minimal scrutiny. The City need only present a “sufficient rational basis” for its policy. Id. at 224. In addition, the City “must demonstrate that the classification is reasonably adapted to ‘the purposes for which the state desires to use it.’” Id. at 226. Clearly the ordinances pass minimal scrutiny. The objectives listed in Ordinance 1722, §§ 2.C., 2.E.—reducing crime, reducing the burden on public services, protecting the economic welfare of authorized workers—all constitute a rational basis for the ordinances. Indeed, these goals would even meet the substantial government interest test of intermediate scrutiny. “[R]educing crime is a substantial government interest….” City of L.A. v. Alameda Books, 535 U.S. 425 (2000). Finally, it is clear that the means chosen by the City to reduce these expenses and burdens caused by illegal immigration are “reasonably adapted to the purposes” of the City.
2. The Ordinances Were Not Driven by any Discriminatory Purpose Unable to bring a facial challenge on Equal Protection grounds, Plaintiffs resort to claiming that the ordinances have an ethnically discriminatory purpose and effect. To subject the ordinances to strict scrutiny, they must establish both discriminatory purpose and discriminatory impact. Rogers v. Lodge, 458 U.S. 613, 617 (U.S. 1982). This they cannot do. Plaintiffs rest their allegation of discriminatory purpose on a single tabloid article. The article, which may charitably be described as a vulgar “hit piece” on the Mayor of Valley Park, is misleading in numerous respects. However, Plaintiffs compound the misdirection of the article by flagrantly misquoting it. For example, Plaintiffs state that in the article, “the mayor invoked numerous racial stereotypes and epithets.” Pl. Mtn. for Pre. Inj., 16. However, in the article, the
15

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 16 of 22
Mayor denied having any racial animus, Pl. Mtn. for Pre. Inj., Exhibit A, at p. 3, and mentioned epithets only in explaining that he would not use them. Id. at pp. 4-5.
More importantly, the text of Ordinance 1722 expressly rejects private ethnic discrimination in the filing of complaints. The City took the extra precaution of including an anti-discrimination clause, going well beyond the requirements of the Fourteenth Amendment: “A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance 1722 § 4.B(2).2 This anti-discrimination clause requires that the City take no action on any complaint reflecting private discrimination, even if the individual subject to the complaint is guilty of violating the ordinance (and violating federal law) by knowingly hiring an unauthorized alien. This is an extraordinary anti-discrimination provision in Ordinance 1722, one that is even more protective than federal law, which allows private complaints but does not screen out those containing racial or ethnic bases. See 8 U.S.C. § 1324a(e)(1). The inclusion of this sweeping anti-discrimination clause demonstrates conclusively the absence of any discriminatory motive on the party of elected City leaders.
3. Plaintiffs Cannot Show Discriminatory Effect In order for their Equal Protection Clause claim to succeed, Plaintiffs would also have to show discriminatory effect. Unfortunately for Plaintiffs, this is impossible because the ordinances are not in effect at present, and were only in effect for a few weeks in March and April of 2007. On April 5, 2007, the Circuit Court of Saint Louis County, Missouri, issued a temporary restraining order suspending the ordinances in the parallel case of Reynolds v. Valley Park, 07CC-1420 (which asserts a combination of state law and federal law claims). That temporary restraining order was subsequently extended into September 2007. Thus, the discriminatory effect that Plaintiffs imagine is based entirely on conjecture, not on facts, because the ordinances are not in effect, and have not been in effect since April 5, 2007. For this reason, it is impossible for Plaintiffs to prevail on a discriminatory effect challenge. As a result, their Equal Protection claim can only rest on a facial challenge, which will not succeed. “[I]n a facial challenge, it is
16

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 17 of 22
the duty of the Court to interpret the language in a way that is Constitutional… [and] the challenger must establish that no set of circumstances exists under which the [challenged law] would be valid.” United States v. Salerno, 481 U.S. at 739, 745 (1987).
Moreover, consider what would happen if the ordinances went into effect. Plaintiffs simply assert, without any support, that “landlords will be incentivized [sic] to turn away rental applicants who appear to be Hispanic….” Pl. Mtn. for Pre. Inj., 16. This speculative claim does not follow logically. It is already a federal crime to harbor an illegal alien in an apartment. 8 U.S.C. § 1324(a)(1)(A)(iii). So if landlords are inclined to make assumptions about legal status on the basis of ethnicity, there is already sufficient incentive to do so under federal law. More importantly, the operation of Ordinance 1721 is likely to decrease such discriminatory decision making, not increase it. Because a SAVE check can occur in seconds and the landlord can receive assurance from the federal government that a prospective occupant is lawfully present in the United States, the landlord need not guess anymore. Ordinance 1721 provides her a failsafe mechanism for verifying the status of her tenants, removing the need for haphazard judgments influenced by ethnic prejudice.
Plaintiffs also assert without support that employers will discriminate against Hispanic workers when hiring new employees. Plaintiffs complain that employers “will be forced to try to investigate whether any such workers are ‘unlawful workers,’ even though such verification is not required under federal law….” Pl. Mtn. for Pre. Inj., 18. Plaintiffs are evidently unaware of a central feature of federal immigration law. Since 1986, employers have been obligated under federal law to refuse to hire unauthorized aliens, 8 U.S.C. § 1324a(a)(1), to scrutinize documents provided by prospective employees, 8 U.S.C. § 1324a(b)(1), and to retain employees’ I-9 forms. 8 U.S.C. § 1324a(b)(3). The Basic Pilot Program electronic verification system takes the uncertainty out of this process, providing employers with confirmation from the federal government that a prospective employee is authorized to work in the United States. Ordinance 1722 encourages (but does not require) employers to use the Basic Pilot Program, by
2 Plaintiffs in their Motion for Preliminary Injunction incorrectly append a draft of Ordinance 1722, not the final version that the Board of Aldermen enacted. In Plaintiffs’ incorrect version, the anti-discrimination clause exists in §
17

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 18 of 22
offering them safe harbor and immunity from loss of license if they verify employees through the Program. Ordinance 1722 § 4.B(5). Once the uncertainty is taken out of the hiring process, employers have less incentive to make discriminatory guesses about a person’s work authorization based on his ethnicity.
4. Plaintiffs’ Theory Lacks State Action Assuming arguendo Plaintiffs could somehow overcome all of the problems described above in their discriminatory effect claim, the claim still has a fatal flaw: there is no state action. The Fourteenth Amendment prohibits racial or ethnic discrimination by state actors, not by private individuals. U.S. CONST., Amend. XIV, Section 1. Plaintiffs’ theory of unconstitutional discrimination rests on the independent actions of private individuals. Under such circumstances, no state action exists. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195-96 (2003). Plaintiffs confuse renting and hiring decisions by private individuals with the enforcement actions by the City. City officials are not permitted to consider race, ethnicity, or national origin when they enforce the ordinances. They may only consider race/ethnicity/origin-neutral factors when deciding whether a complaint is a valid one that warrants further investigation. As Ordinance 1722 states, “A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.” Ordinance 1722 § 4.B(1). C. Preclusion Doctrines Do Not Apply Plaintiffs maintain that res judicata precludes Defendant from asserting any defenses in this case with respect to Ordinance 1722, because of the judgment of the Circuit Court of the County of Saint Louis in Reynolds v. Valley Park, 06-CC-3802 (Mar. 12, 2007). The three requirements for such preclusion to apply are: (1) whether the issue decided in the prior adjudication was identical to the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom preclusion is asserted was a party in the prior adjudication. Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 758 (8th Cir. 2003). Plaintiffs fail to meet the first requirement.
4.B(2), but is worded slightly differently.
18

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 19 of 22
The Reynolds Court did not address any of the federal claims raised by Plaintiffs in the present case. Rather, the Reynolds Court decided the case only on two narrow state law grounds, neither of which is relevant to the present case. See Reynolds, Pl. Exhibit D, slip op. at 6-7. Moreover, since none of the claims that Plaintiffs included in their Motion for Preliminary Injunction were even mentioned by the Reynolds Court, preclusion does not occur.
In addition, the ordinances at issue differ markedly from the ordinances at issue in Reynolds. As this Court recognized in its May 21, 2007, order, “Although the ordinances are similar, the cases are distinct….” Slip. op. at 1. Indeed, none of the various provisions in Section 5 of Ordinance 1722 were present in the earlier ordinance (Ordinance 1715). Among other things, Section 5 stipulates that the ordinance applies only prospectively, and describes various actions that an employer may take to correct a violation of the ordinance. Therefore, the factual scenario that is presented is materially different. Preclusion applies only when there has been “no change in controlling facts or legal principals since the state court action.” U.S. v. Stauffer Chemical Co., 464 U.S. 165, 169 (1984); Montana v. U.S., 440 U.S. 147, 159 (1979). Where an amended ordinance “is different in any presently material respect” from the original ordinance, res judicata does not apply to a subsequent facial challenge. JBK, Inc. v. Kansas City, 641 F. Supp. 893, 900 (D. Mo. 1986). IV. THE PUBLIC INTEREST OUTWEIGHS PLAINTIFFS’ CLAIM OF “INJURY”
In the context of this case, the third and fourth considerations in the issuance of a preliminary injunction essentially collapse into one—whether the public interest as expressed by the elected Board of Aldermen and Mayor outweighs any harm to Plaintiffs. Reflecting the paucity of legal support available to them, Plaintiffs resort to unsubstantiated opinion and pejorative description. Pl. Mtn. for Pre. Inj., 19. Plaintiffs protest that “shame and disrepute” has fallen on the City, and therefore it is in the public interest for a preliminary injunction to issue. Id.
The estimation of the Plaintiffs that “shame and disrepute” has befallen Valley Park is a curious one, to say the least. The elected representatives of the residents of Valley Park constitute the only body charged with determining the public interest of the City. They have expressed that public interest by
19

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 20 of 22
passing the ordinances in question. They are also quite capable of assessing any “disrepute” facing the City. Plaintiffs appear to be suggesting that this Court should save the City from its own disrepute and second-guess the judgment of the Board of Aldermen and Mayor. That is not the role of an Article III court in our constitutional system. And, for the record, Plaintiffs’ opinions regarding the “disrepute” of the City were evidently not shared by the majority of Valley Park voters on April 3, 2007. Alderman Steve Drake, an outspoken proponent of the ordinances, defeated by a 7% margin a challenger who campaigned as an opponent of ordinances.3
Plaintiffs fail to recognize that the declarations of purpose in the opening sections of Ordinance 1722 are more than mere conjecture. It is a fact that “crime committed by illegal aliens harms the health, safety and welfare of authorized U.S. workers and legal residents in the City….” Ordinance 1722, § 2.C. In the last 12 months, numerous illegal aliens have been arrested by Valley Park police for criminal activity (and in each case the alien’s illegal status was determined by the alien’s admission or by LESC verification). Those crimes might not have occurred if the ordinances had been in effect beforehand. It is also a fact that the city has a clear public interest in discouraging employers from hiring unauthorized aliens over U.S. citizens and authorized alien workers. It is plainly in the public interest to protect law abiding residents against the loss of their jobs and the depression of their wages caused by competing illegal labor.
CONCLUSION For all of the reasons explained above, Defendant respectfully requests that this Court deny Plaintiffs’ motion for a preliminary injunction. If Plaintiffs were to succeed in obtaining final injunctive relief, their interests would be fully and sufficiently protected. ORAL ARGUMENT REQUESTED.
3 St. Louis Co., ST. LOUIS POST-DISPATCH, April 4, 2007, B-4. The electoral contest between Alderman Steve Drake and challenger Martha Rodriguez was widely regarded as “partly … a test of how voters in this city of 6,500 feel about the series of ordinances aimed at illegal immigrants.” Stephen Deere, Candidate fights move against illegal immigrants, ST. LOUIS POST-DISPATCH, March 15, 2007, B-1.
20

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 21 of 22
/s/ Kris W. Kobach KRIS W. KOBACH, KS 17280, NE 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu /s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com Attorneys for Defendant
21

Case 4:07-cv-00881-ERW Document 29 Filed 06/01/2007 Page 22 of 22
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 1st day of June, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union
of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH
22

 
 Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 1 of 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs,
v. CITY OF VALLEY PARK, MO.
Defendant.

)

)

)

)

)

Cause No. 07-CV-881

)

)

)

)

)

)

MOTION FOR AN ORDER CONSOLIDATING TRIAL ON THE MERITS WITH HEARING ON PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Plaintiffs Windhover, Inc. and Jacqueline Gray (“Plaintiffs”), by and through their

attorneys, hereby move this Court pursuant to Fed. R. Civ. P. 65(a)(2) for an order

advancing and consolidating trial on the merits of this action with the hearing on

Plaintiffs’ Motion for a Preliminary Injunction and in support thereof state as follows.

I. BACKGROUND

Plaintiffs filed their original Petition in this matter in the Circuit Court of St.

Louis County (“Circuit Court”) on March 14, 2007. The Petition sought the invalidation

of two anti-immigrant ordinances that had been enacted by the Defendant, the City of

Valley Park, Missouri. The Petition challenged Ordinance No. 1721 (the Landlord Ordinance) and Ordinance No. 1722 (the Employer Ordinance).1

1 Ordinances Nos. 1721 and 1722 are the successors to City of Valley Park Ordinances Nos. 1708 and 1715. Ordinances Nos. 1708 and 1715 also restricted the ability of landlords and employers to rent to and employ certain individuals. On March 12, 2007, a Missouri court permanently enjoined Defendant from enacting Ordinances Nos. 1708 and 1715. Reynolds v. City of Valley Park, No. 06-CC-3802 (“Reynolds I”).

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 2 of 12
Meanwhile, on April 5, 2007, another group of plaintiffs filed a petition in the Circuit Court against the City of Valley Park. Reynolds v. City of Valley Park, No. 07CC-1420 (“Reynolds II”). The Reynolds II petition differs from the Petition in this case in that it challenges only the Landlord Ordinance (not the Employer Ordinance) and relies more heavily on state law. On April 5, 2007, the Reynolds II court entered a temporary restraining order as to the Landlord Ordinance. On April 25, 2007, the TRO was extended by agreement of the parties pending a final hearing on the merits scheduled for September 13, 2007.
On April 12, 2007, Plaintiffs filed an Amended Petition in the Circuit Court and on April 19, 2007, filed a Motion for a Preliminary Injunction. On May 1, 2007, the City filed a Notice of Removal from the Circuit Court and on May 4, 2007, Plaintiffs filed a Motion to Remand this cause to the Circuit Court. On May 21, 2007, after briefing of the matter, this Court denied Plaintiffs’ Motion to Remand. The Court later ordered the City to file a response to Plaintiffs’ Motion for a Preliminary Injunction. The City filed a response on June 1, 2007. Plaintiffs’ Reply is due June 14, 2007. II. ARGUMENT
Federal Rule of Civil Procedure 65(a)(2), entitled Consolidation of Hearing With Trial on Merits, states in part:
Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application. Consolidating a preliminary injunction hearing with the trial on the merits “can be exercised with particular profit when it appears that a substantial part of the evidence offered on the application will be relevant to the merits and will be presented in such
2

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 3 of 12
form as to qualify for admission” at trial and would avoid repetition of evidence. See Fed.R.Civ.P. 65(a)(2) advisory committee’s notes (1966 amendment). Not surprisingly, the Court of Appeals for the Eighth Circuit favors consolidation. See West Pub. Co. v. Mead Data Cent., Inc., 799 F.2d 1219, 1229 (8th Cir. 1986) (“[t]his [Rule 65(a)(2)] procedure is a good one, and we wish to encourage it”).2
Plaintiffs argue that the Landlord and Employer Ordinances are barred by principles of res judicata; improperly seek to regulate federal immigration law and are preempted by federal law; and because of their discriminatory purpose and effect, violate the Equal Protection Clause. Accordingly, much of the evidence that Plaintiffs will attempt to discover in support of their Motion for a Preliminary Injunction will also be central to the trial on the merits. Consolidation would permit this Court to reach a final conclusion while conserving judicial resources and would also facilitate a more rapid resolution of the issues in both the district and appellate courts.
A. Developing an Adequate Record for the Rulings In order for this Court to make an informed ruling on Plaintiff’s Motion for a
Preliminary Injunction, Plaintiffs will require discovery with respect to several issues. As set forth below, the issues that require inquiry will be relevant not only to the preliminary injunction hearing but will also be relevant to the trial on the merits.
2 In West Pub. Co., an appeal of an order granting a preliminary injunction, the Eighth Circuit panel noted that during oral argument the parties gave the Court the impression that most of the evidence was presented during the preliminary injunction hearing. 799 F.2d at 1229. Encouraging future courts to make better use of Rule 65(a)(2), the Court observed that “[i]f this is true, the case could have been tried with little additional effort, and the result could have been one appeal instead of two, with a final resolution of the case instead of a provisional one.” Id. at 1229-30.
3

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 4 of 12
1. Operative Valley Park Ordinances
In ruling on Plaintiffs’ Motion for a Preliminary Injunction, this Court must
consider which Ordinances, or versions of the Ordinances, are at issue. To date, the City
has presented at least three separate versions of Ordinance 1722. Without some
discovery regarding the City’s passage of, amendments to and distribution of the
Ordinances, this Court will be unable to reach an appropriate conclusion regarding the
need for a preliminary or permanent injunction.
Ordinances 1721 and 1722 both purport to have been passed by the City Council
on February 5, 2007 and to have been signed by the Mayor on February 14, 2007. (See
Exs. A and B, Pl.’s Pet. for Prelim. Injunc. Exs. D and E, respectively.) Notably, the
original Employer Ordinance contained the following language: “A complaint which
alleges a violation solely or primarily on the basis of national origin, ethnicity or race
shall be deemed invalid and shall not be enforced.” (Ex. B, Sec. Four B.(2), emphasis added.)3 However, the City now contends that the Valley Park Employer Ordinance
passed on February 5, 2007 did not contain the “solely or primarily” language.
3That statement mirrors language found in a similar anti-immigrant ordinance enacted by the City of Hazleton, PA, which was the subject of a recent federal trial in the Middle District of Pennsylvania. Lozano v. City of Hazelton, No. 06 CV 01586 (M.D. Pa 2006). The court in the Hazelton case entered a TRO on October 31, 2006 and then ordered that the trial be advanced and combined with a hearing on the plaintiffs’ motion for preliminary injunction pursuant to Fed R. Civ. P. 65(a)(2). Id., Docket No. 36 (Nov. 1, 2006). The Hazleton ordinance was challenged in part on equal protection grounds because, among other things, like the Employer Ordinance here, it expressly contemplated that national origin, ethnicity or race could be a factor in the lodging of a complaint regarding an alleged violation of the ordinance. In response to the equal protection challenge, in the middle of trial in March 2007, Hazleton amended its ordinance to remove the language “solely or primarily.” It should be noted that lead counsel for the City in this matter, Kris Kobach, is also lead counsel and trial counsel for the defendant in the Hazleton case.
4

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 5 of 12
On May 31, 2007 (approximately six weeks after Plaintiffs filed their petition for injunctive relief, attaching what they understood to be the enacted Employer Ordinance), City counsel Eric Martin sent Plaintiffs’ counsel Daniel Hurtado an email stating that the executed and attested to Ordinance 1722 that Plaintiffs had presented to the Court in their Motion for a Preliminary Injunction was merely a “draft” and that the “passed ordinance” did not contain the phrase “solely or primarily” in the relevant provision. (See Ex. C., Martin Corresp. 1) Mr. Martin subsequently faxed what purported to be the correct ordinance. (See Ex. D., Martin Corresp. 2) It was neither dated nor signed by the Mayor or the City Clerk. Later that day, upon Mr. Hurtado’s inquiry, Mr. Martin faxed what purported to be an executed version of the new Ordinance 1722. (See Ex. E., Martin Corresp. 3) The new version did bear the signature of the Mayor and the City Clerk, and indicates that the Mayor and City Clerk signed it on February 14, 2007, the same date they purport to have signed the version of Ordinance 1722 attached to the Plaintiffs’ court filings. The new version of Ordinance 1722 also differed from the one attached to Plaintiffs’ filings in that it was to become effective only upon the termination of any then existing injunction in Reynolds I. Accordingly, as of May 31, 2007, there were at least two extant versions of Ordinance 1722, both of which purported to have been passed on February 5, 2007, and both of which purported to have been signed by the Mayor and City Clerk on February 14, 2007.4
4 The original Ordinance 1722 was to become effective from its passage (February 5, 2007) and upon its approval by the Mayor (February 14, 2007). However, on February 11, 2007, the City Council amended Ordinance 1722 (via Ordinance 1724) to provide that it would not become effective until the termination of any injunction in Reynolds I. That amendment necessarily implies that the version of Ordinance 1722 submitted by the Plaintiffs in their Motion for a Preliminary Injunction is the ordinance actually passed on February 5. If the new version of Ordinance 1722 – which already contains the reference
5

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 6 of 12
In light of this confusing state of affairs, Plaintiffs filed a Motion to Complete the Record, submitting the exhibits to the Amended Petition that had been filed in state court. The City objected to Plaintiffs’ motion because those exhibits included the signed and attested to version of Ordinance 1722 that the City now contends is merely a draft. Attached to the City’s opposition brief was yet a third version of Ordinance 1722 that it contended was the correct one, and which bears the signature of the Mayor and the City Clerk. (See Ex. F., Def. Opp. to Pls.’ Mot. to Consol. Ex. A) The third version also deletes the words “solely and primarily” and appears substantively the same as version two; however, it is clearly a different document and, while it purports to have been passed on February 5, 2007, there is no date for the signature of the Mayor and the City Clerk. Yet a fourth version of Ordinance 1722 is posted on the City’s public website. (See Ex. G, City of Valley Park website, available at http://www.valleyparkmo.org/docs/ Ordinances/ordinance%201722.pdf, last visited June 14, 2007.) The website version embodies the February 11, 2007 amendment regarding when Ordinance 1722 would become effective, but it retains the “solely or primarily” language that the City now says was never enacted.
What appears to have happened here – and it seems that discovery will be required to get to the bottom of it – is that the City wants to change its ordinance in the same way that Hazleton changed its ordinance during the mid-March trial in the Middle District of Pennsylvania. The City is attempting to re-write the history of Ordinance 1722. Without discovery, Plaintiffs, and presumably the Court, have no way to determine which version of Ordinance 1722, if any, was properly enacted by the City.
to the termination of the injunction in Reynolds I – were the ordinance actually passed on February 5, then Ordinance 1724 would have been superfluous.
6

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 7 of 12
2. Purpose and/or Motivation Behind Passage of Ordinances This Court must also consider the City’s purpose in enacting the Ordinances, both with respect to whether the Ordinances attempt to regulate federal immigration law and whether they stemmed from racial animus toward Valley Park’s Mexican immigrant community. For example, the Ordinances were purportedly enacted to combat a host of ills imposed on the community of Valley Park by “illegal immigration.”5 One of the ills Valley Park cites is the fiscal hardship “our hospitals” are subjected to: yet there are no hospitals in Valley Park. Plaintiffs will therefore seek discovery regarding the basis of this and other as-of-yet unsubstantiated allegations.
3. Discriminatory Effect of Ordinances Plaintiffs will also seek to discover evidence regarding the discriminatory effect of the Ordinances, including evidence that Hispanics were deterred from living in Valley Park and that employers and landlords were compelled to discriminate against employees and tenants on the basis of their race and/or national origin. This evidence is relevant to Plaintiffs’ Motion for a Preliminary Injunction and will also assist this Court in arriving at a proper ruling at a trial on the merits.
4. Use of Federal Databases & Verification of Immigration Status Plaintiffs also anticipate that at both the hearing and at trial the parties will direct significant attention to programs that are part of the federal government’s current efforts
5 Ordinance No. 1722 proclaims: “[i]llegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing their costs and diminishing their availability to legal residents and diminishes our overall qualify [sic] of life and provides concerns to the safety and security of the homeland.”
(Ex. B, Sec. Two C.)
7

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 8 of 12
to enforce immigration laws. The City argues in its Response to Plaintiffs’ Motion for a Preliminary Injunction that it will be able to verify immigration status as required by the Ordinances using federal verification systems. (Def. Mem. in Resp. to Pl. Mot. for Prelim. Inj. at 12-14.) Plaintiffs intend to elicit and/or submit evidence regarding both the nature and reliability of the information contained in those systems, including evidence that they are not capable of revealing that a non-citizen is not lawfully in the United States and evidence that the City does not have access to these systems. More generally, Plaintiffs will also seek to introduce evidence regarding the process the City would implement in order to verify immigration status under both Ordinances.
B. The Need for an Expedited Determination Consolidation will not just conserve judicial resources but will allow for an
expedited final determination, which is crucial to the parties. Moreover, while there is a risk that the Ordinances subject to challenge in this matter may become enforceable against Plaintiffs, in light of the fact that Ordinance 1721 is subject to a temporary restraining order in the Reynolds II litigation (until September 13, 2007) and because Ordinance 1722 does not become effective under its own terms unless and until the injunction in Reynolds I is dissolved, the need to hold a hearing on Plaintiffs’ motion for a preliminary injunction is not as urgent.
Nevertheless, as long as the Ordinances stand, Plaintiffs risk lost business due to the delays imposed by the Ordinances, necessitating an expedited trial schedule. More significantly, because of the subject matter of the Ordinances and the animus that inspired their passage, Plaintiffs risk lower property values and a smaller pool of potential tenants, employees, contractors and others purportedly covered by the Ordinances. Plaintiffs are
8

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 9 of 12
also subject to potential enforcement action by the City, which could result in losing the ability to conduct business within Valley Park. Finally, an expedited trial would minimize Plaintiffs’ risk of violating federal and state anti-discrimination laws under the Ordinances. III. CONCLUSION
In sum, the parties will require discovery in order to permit the Court to make an informed ruling on Plaintiffs’ Motion for a Preliminary Injunction. There is a significant likelihood that the ordinances will become enforceable before a trial were conducted under a normal schedule; however, there is no immediate emergency as enforcement of the Landlord Ordinance is subject to the Temporary Restraining Order in Reynolds II, and under its own terms, the Employer Ordinance does not become effective unless the permanent injunction in Reynolds I is dissolved. It is in the parties’ and this Court’s best interests for the Court to make its ruling with a full record, while conserving resources that would otherwise be extended with two separate hearings.
WHEREFORE, Plaintiffs respectfully request that this Court advance and consolidate a trial on the merits with the hearing on Plaintiffs’ request for a preliminary injunction in early October 2007.6
6 Plaintiffs have proposed a discovery and trial schedule, attached as Exhibit H to this motion.
9

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 10 of 12
Respectfully submitted,
_/s/ Daniel J. Hurtado_____ Jenner & Block LLP Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
Anthony E. Rothert, #518779 American Civil Liberties Union
of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Fernando Bermudez, #39943 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation
Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620
(212) 549-2654 facsimile ojadwat@aclu.org
10

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 11 of 12
Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation
Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org Mexican American Legal Defense
and Educational Fund Ricardo Meza* Jennifer Nagda* rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile * Mr. Meza and Ms. Nagda are not admitted to practice before this Court but anticipate filing motions for leave to appear pro hac vice.
11

Case 4:07-cv-00881-ERW Document 38 Filed 06/14/2007 Page 12 of 12
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on June 14, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 Kris W. Kobach Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
_/s/Daniel J. Hurtado
12

 
 Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ) ) ) ) ) )

REPLY MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INUNCTION

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 2 of 23
INTRODUCTION Notwithstanding the City’s arguments to the contrary, there can be little doubt that the City’s anti-immigrant ordinances are preempted under the Supremacy Clause. The ordinances conflict with federal law in numerous ways; they attempt to regulate in fields plainly occupied by the federal government; and they purport to usurp the federal government’s exclusive authority to regulate immigration – indeed, the Mayor has repeatedly made statements to the effect that the purpose of the ordinances is to regulate illegal immigration because the federal government is not stepping up to the task. Each of these three types of Supremacy Clause violations requires invalidation of the ordinances. There also is a “probability of success on the merits” of Plaintiffs’ claim that the ordinances violate the Equal Protection Clause. Constitutional violations are per se irreparable harm.
FURTHER FACTUAL BACKGROUND Several significant events have occurred since the Plaintiffs filed the instant Motion in state court on April 19, 2007. The City has generated a confusing array of amendments to the Ordinances in its futile effort to stay one step ahead of the legal challenges to the ordinances.1 There now appear to be three separate versions of the Employer Ordinance (Ordinance 1722), all three of which were purportedly passed by the City Council on February 5, 2007, and all three of which purport to have been signed by the Mayor and attested to by the City Clerk on February 14, 2007. Yet a fourth version of the Employer Ordinance is posted on the City’s website. It is not clear which version of Ordinance 1722, if any, was properly enacted by the City. In addition, sometime in May 2007 the City posted on its website a notice retracting the procedure it had implemented for seeking an occupancy permit under the Landlord Ordinance.
1 See Motion for Order Consolidating Trial On the Merits with Hearing on Plaintiffs’ Motion for Preliminary Injunction, filed concurrently herewith under Fed. R. Civ. P. 65(a)(2), hereafter “Rule 65 Motion,” for a fuller discussion of the history of the ordinances.
1

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 3 of 23
(Def. Br. at 6-7 and Ex. A.) The Notice is an attempt to withdraw the City’s earlier requirement that landlords provide to the City an array of immigration-status documents with their application for an occupancy permit, and the implicit admission that certain noncitizens with legal status would be denied residency in Valley Park.
Ultimately, however, the City’s continuing amendments and changes cannot save the ordinances from preemption or from being deemed to violate the Equal Protection Clause.
ARGUMENT Plaintiffs satisfy each of the elements necessary for the issuance of a preliminary injunction. See Pl. Mot. at 6 (citing Eighth Circuit authorities); see also Heartland Acad. Cmty. Church v. Waddle, 335 F.3d 684, 690 (8th Cir. 2003) (affirming this court’s issuance of a preliminary injunction based upon satisfaction of all four Dataphase factors and noting that at preliminary injunction stage of litigation, the plaintiffs’ constitutional claims need not be “prove[n] [by] a mathematical (greater than fifty percent) probability of success on the merits.”). I. CONSTITUTIONAL INJURY IS PER SE IRREPARABLE HARM. The City’s Response largely ignores the question of constitutional injury. Indeed, it is well-established that an alleged constitutional infringement can alone constitute irreparable harm. See Wright & Miller, 11 Federal Practice and Procedure § 2948 at 440 (1973). Where the movant has demonstrated that an alleged deprivation of a constitutional right is involved, “most courts hold that no further showing of irreparable injury is necessary” to satisfy this requirement for issuance of a preliminary injunction. Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir.1984); Lexington-Fayette Urban County Gov't., 305 F.3d 566, 578 (6th Cir. 2002). In this case the Ordinances’ violation of the Equal Protection Clause and their preemption by federal law
2

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 4 of 23
demonstrate that injunctive relief is necessary to prevent the irreparable harm from the
Ordinances’ violation of the Constitution.
Instead of addressing the constitutional injury, the City tries to trivialize the additional
harms of delay and lost business. The City breaks the harm down into its separate ingredients
and then argues that each ingredient is insignificant. First, the City argues that the time required
to collect a prospective occupant’s name, age, date of birth, citizenship, and photo identification
is not irreparable harm. (Def. Br. at 2-3.) Nowhere do Plaintiffs assert that the collection of documents by itself is irreparable harm.2 Rather, as noted above, the irreparable harm comes
from being forced to do so in compliance with an unconstitutional and illegal law.
Second, the City argues that mere delay in renting a dwelling unit is not irreparable harm.
(Id. at 3-4.) Again, that mischaracterizes Plaintiffs’ position. Rather, Plaintiffs contend that the
delay, burden and uncertainty of the permit process will deter renters from seeking to live in
Valley Park at all, and that the anti-immigrant ordinances and their racist overtones will create an environment in which property values will be eroded.3
Third, the City argues that any harm to the Plaintiffs is “rank speculation” because any
harm under the Landlord Ordinance will occur only when an illegal alien seeks to rent an
apartment from Plaintiffs, and any harm under the Employer Ordinance will occur only when
Plaintiffs seek to hire someone who turns out to be an unauthorized alien. (Def. Br. at 4.) Yet
the City has claimed the exact opposite in seeking to remove this case to this Court: on May 16,
2 Nevertheless, the City distorts the law by asserting that 8 U.S.C. §§ 1621, 1625 already require states and local governments to collect information regarding an “alien’s lawful presence in the United States” before providing a “public benefit.” (Def. Br. at 3.) First, Sections 1621 and 1625 require verification that a non-citizen is authorized to receive benefits, not that he or she is lawfully in the United States. Second, the ability to live in Valley Park is not a public benefit within the meaning of those sections. 3 Even as to the delay component, the City makes the disingenuous argument that there can be no harm from a delay in renting to an illegal alien because harboring illegal aliens is a federal crime. (Def. Br. at 4.) But the antiharboring statute prohibits the knowing or reckless harboring of persons not lawfully in the United States. 8 U.S.C. § 1324(a)(1)(A)(iii). The mere rental of a dwelling unit to a non-citizen who may not be authorized to work or receive public benefits is not a crime of any kind.
3

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 5 of 23
2007, the City’s counsel represented to this Court that both ordinances were immediately enforceable against Plaintiffs. (Ex. I, Transcript of May 16, 2007 hearing, at 18-20, 31-32.) This Court ruled that it has subject-matter jurisdiction over this matter based in part on the City’s assertion that the ordinances are immediately enforceable. (Docket No. 27 at 7, 11.) The City therefore is judicially estopped from now asserting that the ordinances will not become enforceable against the Plaintiffs until some unknown future date. See New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (citing Pegram v. Herdrich, 530 U.S. 211 (2000)); Hossaini v. W. Mo. Med. Ctr., 140 F.3d 1140, 1142 (8th Cir. 1998); U.S. v. Grap, 368 F.3d 824, 831 (8th Cir. 2004).
In any event, the Landlord Ordinance will impose unavoidable obligations on Plaintiffs as soon as they have a vacancy (as the City argued to this Court), not merely in the event an illegal alien seeks to rent an apartment from them. And the Employer Ordinance will impose unavoidable obligations on Plaintiffs as soon as they seek to hire someone to perform maintenance on their rental property.4
Finally, the City argues that any delay in the occupancy-permit process is de minimis because the federal government can answer any inquiry regarding immigration-status in “seconds or minutes.” That statement is baseless for at least two reasons. First, the federal verification systems are not capable of revealing that a non-citizen may not continue to reside in the United States. (See Pl. Mot. at 12-13; see also infra.) Second, the City’s Building Commission currently does not have access to the federal verification systems, nor does it have any employee who is trained in their use. (Ex. J, April 26, 2007 Schaub Dep. at 37-38, 41, 4344, 49, 60; Ex. K, April 26, 2007 Whitteaer Dep. at 80; Ex. L, April 26, 2007 Ruppel Dep. at 38-
4 It should be noted, however, that neither ordinance is currently enforceable because the Landlord Ordinance is subject to a TRO in the Reynolds II case, [No. 07CC-001420], and the Employer Ordinance does not become effective by its own terms unless and until the injunction in the Reynolds I case, [No. 06 CC 3802], is terminated.
4

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 6 of 23
40, 42-43, 45-50, 52-55, 59-60.) Accordingly, the time-frame for the occupancy-permit process, far from being “seconds or minutes,” is completely indeterminate.5
II. PLAINTIFFS HAVE A PROBABLITY OF SUCCESS ON THE MERITS.
A. The Ordinances Are Preempted By Federal Law.
Plaintiffs showed in their Motion that Ordinances 1721 and 1722 are preempted under all
three types of preemption recognized in De Canas v. Bica, 424 U.S. 351, 358 (1976): (1)
constitutional preemption; (2) field preemption; and (3) conflict preemption. (Pl. Mot. at 8-15.)
Neither the City’s belated changes to the ordinances, nor the arguments in its Response, save the
Ordinances from preemption.
First, far from constituting “harmonious” concurrent activity, the Ordinances contain
numerous specific conflicts with federal law that the City is unable to dismiss. Second,
notwithstanding the City’s reliance on anachronistic aspects of the De Canas case, both
Ordinances are field preempted in light of Congress’s specific, comprehensive enactments in the fields of presence, employment and housing of noncitizens.6 Finally, the City’s attempts through
the Ordinances to “discourag[e] the illegal alien from taking up residence in the United States”
(Def. Br. at 12) unmistakably intrudes on the exclusive federal power to regulate immigration – a
5 The City takes Plaintiffs to task for including in their Motion papers a document entitled “Documents required to apply for a Valley Park Occupancy Permit[,]” which required an array of immigration-status documents and provided that certain categories of legally present non-citizens would be denied housing. (Pl. Mot. at 10-11 and Ex. G.) After receiving Plaintiffs’ Motion on April 19, 2007 pointing out that such an application of the Ordinance could not possibly withstand a preemption challenge, the City posted a notice on its website withdrawing the implementing documents as erroneous. (Def. Br. at 6-7 and Ex. A.) The City asserts, without any evidentiary support whatsoever, that the promulgation of the “erroneous” implementing documents and their continued availability resulted from a series of spectacular mistakes by City personnel, which is surprising given that litigation over the Ordinances was pending. The mistakes were “corrected” several weeks after Plaintiffs filed the instant Motion. Yet the City accuses Plaintiffs of having misleadingly relied on an “erroneous and withdrawn document.” (Def. Br. at 6-7.) Plaintiffs obviously could not have divined that the City would later claim that its own documents were a mistake or would withdraw them. Indeed, the City Clerk certified the document as recently as April 25, 2007. (Ex. M.) The City’s accusation is meritless. 6 As Plaintiffs explain, De Canas came down ten years before the federal government acted to outlaw the employment of noncitizens lacking work authorization and, further, in no way involved any attempt to regulate the residence or housing of noncitizens.
5

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 7 of 23
power which would be meaningless if, as the City suggests, it failed to include authority over
persons lacking lawful immigration status.
1. Ordinance 1721 Conflicts with Federal Law and Procedures to Determine Who May Live in the United States.
Any local law that “burdens or conflicts in any manner with any federal laws or treaties”
or “‘stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress’” is invalid under the Supremacy Clause. De Canas, 424 U.S. at 358, 363 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).7 The conflicts between Ordinance
1721 and federal law are direct and unavoidable, and demand invalidation of the Ordinance. (Pl.
Mot. at 10-14.)
The City does not deny that the federal government has established an elaborate set of
laws and procedures to determine whether a given individual may continue to live in the United
States. Nor does it deny that there are numerous persons who lack current legal immigration
status but, under these laws and procedures, may still be permitted to live in the United States.
(Pl. Mot. at 11-14.) Indeed, absent those procedures, it is impossible for even the federal
government to determine that someone should be denied the ability to live in the United States
based on their immigration status. (Pl. Mot. at 12-13, citing 65 Fed. Reg. 58301; Plyler v. Doe, 457 U.S. 202, 241 n.6 (1982) (Powell, J., concurring).8 Yet, Ordinance 1721 seeks to deny
abode to individuals in advance of any of these procedures taking place.
7 In De Canas, the Court declined to decide whether the California law at issue there actually conflicted with federal law and remanded for a determination of whether a conflict existed. Id. at 363-65. On remand, the plaintiffs, who were seeking enforcement of the statute, “dropped” the case, so the validity of the statute was never finally resolved and the statute was not enforced. Bevles Co., Inc. v. Teamsters Local 986, 791 F.2d 1391, 1394 (9th Cir. 1986). 8 The City objects to Plaintiffs’ citation of the Federal Register notice on the ground that “[t]he memo had nothing to do with the provision of information on the legal status of aliens to state and local governments.” Def. Br. at 14. But, of course, Plaintiffs have never claimed that the memo was on that subject. (Pl. Mot. at 12-14.) Rather, the fact that the federal government does not consider a SAVE determination to provide a basis to “know” that an individual is not lawfully present is in the United States is powerful evidence that Valley Park cannot properly draw that conclusion either.
6

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 8 of 23
The City fails to respond to the fact that Ordinance 1721 conflicts with federal housing
regulations, which permit persons who may lack lawful immigration status to live in federally subsidized housing with family members who are eligible for such benefits. (Pl. Mot. at 11-12.)9
Rather than address those conflicts, the City argues that the Landlord Ordinance is wholly
consistent with the federal government’s Systematic Alien Verification for Entitlements (SAVE)
program, a mechanism to verify immigration status in certain circumstances. (Def. Br. at 12-14.)
The City argues that the federal government thus can “answer, on demand, a local request …
regarding whether a particular individual cannot reside lawfully in the United States,”
notwithstanding the statutes and other authority to the contrary. (Def. Br. at 12, quoting Pl. Mot.
at 12). However, SAVE does no such thing.
As the word “entitlements” in the title of the program indicates, SAVE is designed to
confirm that an applicant for a government benefit is in an immigration status that qualifies him
or her to receive that benefit. The SAVE program, together with 8 U.S.C. § 1373(c), enables the
federal government to share certain information about a person’s current immigration status with
the states in order to implement certain federal laws relating to eligibility for public benefits and driver’s licenses.10 SAVE was never intended, nor is it equipped, to provide a decisive
9 Indeed, the federal government’s decision to allow mixed-immigration-status families to reside together in federally assisted housing reflects its recognition of the fundamental constitutional right to family integrity. The current regulations were adopted in response to a federal lawsuit challenging its former policy to the contrary. See Yolano-Donnelly Tenants’ Association v. Cisneros, No. S-86-846 MLS PAN, 1996 U.S. Dist. LEXIS 22778 (E.D. Cal. Mar. 8, 1996). 10 Federal welfare reform laws enacted in 1996 provide that only a subset of lawfully-present aliens may receive public benefits. See 8 U.S.C. §§ 1621, 1624. Similarly, the federal REAL ID Act of 2005 seeks to require states to obtain verification, under certain circumstances, that applicants for drivers’ licenses are in one of a list of eligible immigration statuses. See REAL ID Act of 2005 § 202(c)(2)(B), Pub. L. 109-13, Div. B, Title II, §§ 201-207, 119 Stat. 311 (2005) (codified at 49 U.S.C. § 30301 note).
The Federal Register publication that Valley Park references in its brief, (Def. Br. at 14), is the narrative accompanying a proposed rule regarding the implementation of the REAL ID Act’s driver’s license requirements. 72 Fed. Reg. 10820. The phrase “lawful status” is used there in the same way it is used in the Act itself – that is, to denote the list of statuses that allow a person to receive a REAL ID-compliant driver’s license. See Real ID Act § 202(c)(2)(B).
7

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 9 of 23
determination of whether an individual may reside in the United States. To cite just one example, SAVE would not properly account for persons who are subject to a deportation order and are not eligible for public benefits, but who are nonetheless permitted to live and work in the U.S. (See Pl. Mot. at 11.)
In this case, the City is neither administering a public benefit program, see 8 U.S.C. § 1621(c) (defining “public benefit”), nor issuing a driver’s license. Rather, Ordinance 1721 uses the federal government’s SAVE program to try to determine, on demand, that a person’s continued presence in the United States is improper, something for which the program was not designed. This mechanism conflicts with federal laws for determining who may stay and who must depart. Indeed, if a locality could banish every person whose presence is allegedly unlawful based upon running a person’s name through the SAVE program, the Immigrant and Naturalization Act’s careful, extensive process for determining removability, and federal jurisprudence relating to the due process rights of non-citizens, would be eviscerated.
2. The City Fails to Address Any of the Specific Conflicts Plaintiffs Identified Between Ordinance 1722 and Federal Employment Law.
Ordinance 1722 conflicts with federal employment law because it requires the verification of the work-authorization status of individuals who are exempt from such verification under federal law and because it does not contain anti-discrimination provisions like those in federal law. (Pl. Mot. at 14-15.) The City has not denied any of those conflicts.
Ordinance 1722 additionally conflicts with federal law by requiring that certain employers participate in the federal Basic Pilot Program, (see Ordinance 1722 §§ 4.B(6)(b), 4.D, 5.B(2)), and attempting to force other employers to use that Program by subjecting them to the risk of substantial penalties if they do not. (See Id. § 4.B(5).) Congress designated the Basic Pilot Program as a voluntary, experimental program to be implemented by the Secretary of
8

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 10 of 23
Homeland Security. (See Illegal Immigrant Reform and Immigrant Responsibility Act (“IIRIRA”), §§ 401, 402(a), Pub. L. No. 104-28, Div. C (Sept. 30, 1996), codified as amended at 8 U.S.C. § 1324a.) In so doing, Congress set forth a very limited list of employers required to participate in the Basic Pilot or a related program -- a list completely different from Valley Park’s. (IIRIRA § 402(e).) Congress also specifically provided that the government “may not require any person or other entity to participate in a pilot program.” (IIRIRA § 401(a) (emphasis added); see also id. § 404(h) (providing that government may not “utilize any information, data base, or other records assembled under this subtitle for any other purpose other than as provided for under a pilot program”).)
Several of the implementation and process provisions of Ordinance 1722 also conflict with federal law. Specifically, one method of “correcting” a violation is for the employer to obtain additional information from the worker and to reverify the workers’ status through the Basic Pilot Program. (See § 5.B(2).) Yet federal law prohibits reverification except under limited circumstances. (8 U.S.C. § 1324b(a)(6).) Federal law also prohibits using the federal I-9 form “and any information contained in or appended to such form” for purposes other than enforcing the federal employer-sanctions provisions and certain federal criminal laws, none of which are applicable here. (8 U.S.C. §1324a(b)(5).)
Finally, while Congress has chosen only to regulate employers who act with knowledge that a particular worker lacks work authorization, Ordinance 1722 imposes a strict liability scheme. Despite the City’s hasty and recent addition of the word “knowingly” to Ordinance 1722,11 its complaint and sanctions procedures turn entirely on whether a worker is found to be
11 The City states in its brief that Ordinance 1722 prohibits employers from “knowingly” employing unauthorized aliens. (Def. Br. at 2.) However, the City council did actually purport to amend Ordinance 1722 to add the work “knowingly” until June 4, 2007, after it filed its Response. It is not known whether that amendment was enacted in accordance with proper procedure.
9

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 11 of 23
an unlawful worker and make no provision for any inquiry regarding the employer’s knowledge or compliance with the federal documentation process. Ordinance 1722 thus conflicts with Congress’ decision in enacting a comprehensive federal employer sanctions-scheme to prohibit only the “knowing” employment of unauthorized workers and to protect an employer from liability if the employee “provides a document or combination of documents that reasonably appears on its face to be genuine” and is listed as acceptable by the federal government. (8 U.S.C. § 1324a(a)(1)(A),(b)(1)(A)(ii); see 8 U.S.C. § 1324a(a)(3).
3. Ordinances 1721 and 1722 are Field Preempted. Contrary to the City’s contention, the Ordinances are not laws that merely touch upon immigration. The Ordinances encroach on the very core of federal immigration law because they seek to regulate the presence of aliens within Valley Park. As the Supreme Court has explained, “where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation ... states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.” Hines v. Davidowitz, 312 U.S. 52, 67 (1941).12 The admission, continued presence, and removal of aliens in the United States is undeniably a field occupied by federal immigration law. See id. at 69 (recognizing as early as 1941 that federal immigration law is a “broad and comprehensive plan” (emphasis added)). Moreover, both Ordinances address particular subject matter that Congress has specifically regulated in the immigration code. Ordinance 1721 is, by the defendant’s own admission, aimed at the harboring of certain aliens in Valley Park. (Def. Br. at 12.) As the
12 Contrary to Defendant’s suggestion, Hines remains a vital precedent and a touchstone of the Supreme Court’s preemption jurisprudence. Indeed, the Court has cited Hines far more frequently than De Canas in the decades since De Canas was decided.
10

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 12 of 23
Garrett court stated in analyzing an Ordinance similar to Ordinance 1721, 8 U.S.C. § 1324 “specifically provide[s] for fines and criminal penalties for the harboring of illegal aliens… Accordingly, this Court finds serious concerns in regards to the field preemption of the Ordinance by existing federal statutes.” 465 F. Supp.2d at 1056. This Court should likewise recognize that Ordinance 1721 is field-preempted.13
Similarly, Ordinance 1722 attempts to create a local sanctions scheme to discourage and punish the hiring of unauthorized workers even though Congress created a comprehensive scheme to that effect in 1986. See 8 U.S.C. §§ 1324a-b.
The City cites language from De Canas v. Bica appearing to reject field-preemption challenges to state employer sanctions schemes (Def. Br. at 10), but that language no longer applies because it predates Congress’ creation of a federal employer sanctions scheme by ten years. At the time that De Canas was decided, federal law did not penalize employers who hired unauthorized workers. In fact, the limited federal law relating to employment of aliens actually invited state regulation, stating that it was “intended to supplement State action.” De Canas, 424 U.S. at 362 (emphasis added). Accordingly, in De Canas, the Supreme Court found that California’s employer-sanctions statute was not field preempted. 424 U.S. at 352, 352 n.1, 353 n.2.
Ten years later, through the enactment of the Immigration Reform and Control Act,14 Congress added employer sanctions and antidiscrimination provisions to the INA for the first
13 The City relies on two cases that approved state or local police enforcement of federal immigration law to conjure a new “doctrine” of “concurrent enforcement activity.” Def. Br. at 12 (citing Gonzales and Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928)). Apparently, in the City’s view, this “doctrine” establishes that field preemption no longer applies if a state or local government, in taking some action, wishes to assist the federal government by doing so. As an initial matter, these two cases approving police assistance in enforcing federal laws by no means imply that states’ efforts to create and enforce their own laws on the same subject area would receive the same approval. Moreover, a basic feature of field preemption is that it does not turn on whether federal and state efforts are compatible or complementary; where the field is occupied, states and localities simply have no power to act. 14 See 8 U.S.C. §§ 1324a-b; H.R. Rep. 30- 99-682(I), at 53-56 (recounting history of legislation).
11

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 13 of 23
time, removing its earlier permission for state regulation of employment and enacting instead an express bar on such regulation. (8 U.S.C. § 1324a(h)(2).) De Canas’ conclusions regarding field preemption, which were reached at a time when federal law “at best evidence[d] … a peripheral concern with employment of illegal entrants,” 424 U.S. at 360, clearly do not survive this enactment.
The City also claims that a parenthetical exception to the express preemption provision for “licensing and similar laws” defeats the field preemption claim with respect to Ordinance 1722. (Def. Br. at 11.) However, the mere fact that a local employer sanctions scheme imposes penalties by revoking licenses does not make it a “licensing law.” That would lead to the absurd conclusion that Congress intended that any civil or criminal sanction scheme, no matter how slight the penalties, would be preempted in favor of the uniform federal scheme, but that a scheme imposing the enormous penalty of entirely shuttering a business would be permitted simply because it does so through the revocation of a license.
Rather, the statute’s reference to “licensing” encompasses “lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this [federal] legislation” — a finding that can only be made after extensive federal proceedings, see 8 U.S.C. § 1324a(e) — or “licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis added). Ordinance 1722 does not fall within either of those categories.
In any event, even if Ordinance 1722 did fall within the exception in § 1324a(h)(2), the section would still be invalid because it stands as an obstacle to federal law and policy, as
12

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 14 of 23
explained above. See Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002) (“Congress’ inclusion of an express pre-emption clause does not bar the ordinary working of conflict preemption principles” (punctuation and citation omitted)); see also Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000) (finding conflict preemption even where state action fell outside express preemption clause).
4. The Ordinances Attempt to Regulate Immigration. The Ordinances impermissibly encroach on the exclusive federal power to regulate immigration because they attempt to regulate the presence of aliens in Valley Park. Unlike the state statute at issue in De Canas – which had only a “speculative and indirect impact on immigration” – these Ordinances are specifically designed to regulate immigration. The deposition transcripts from Reynolds I and statements made in the media show overwhelmingly that the Ordinances are intended and are understood to be an attempt to regulate immigration. (Ex. N, November 7, 200 Whitteaker Dep. at 65-72, 99-100, 141-143; Ex. O, November 7, 2006 White Dep. at 41-42, 46-47; Ex. P, November 7, 2006 Helton Dep. at 12-14; Ex. Q, November 7, 2006 Walker Dep. at 12-17; Group Ex. R. at 6-8, 17, 22, 30, 32-33, 48, 50-52, 54, 63, 65.) Taken together, the Ordinances set forth a broad and integrated scheme that combines multiple provisions addressing different areas – tenant registration/harboring and employment – to single out certain individuals on the basis of their immigration status and remove them from the city limits by making it impossible for them to live or work in Valley Park. The Supreme Court has never allowed states or municipalities to regulate aliens in this manner; making rules about who may stay and who may depart, and effectuating that departure, is the very core of immigration regulation.
13

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 15 of 23
The City nonetheless argues that because the Ordinances purport to regulate only “illegal” aliens they should not be considered a regulation of immigration. (Def. Br. at 9.) The City is mistaken. As a logical matter, the power to regulate immigration would be hollow if it did not include the power to decide who may and who may not enter the country.15 Otherwise, each city and town in the United States could, on its own, detain and actually deport any individual who was not in a lawful immigration status. Such measures, like the Ordinances here, clearly are not consistent with the constitutional reservation of immigration power to the federal government.
B. Plaintiffs’ Equal Protection Claim Is Meritorious. Plaintiffs’ equal protection claim is based on the ordinances’ discriminatory purpose and impact with regard persons of Hispanic heritage (not with regard to “illegal aliens”). There is ample evidence to demonstrate a probability of success that both the Landlord Ordinance and the Employer Ordinance have a discriminatory purpose and a discriminatory effect with respect to persons of Hispanic origin.
1. The Ordinances Were Motivated by the Purpose of Deterring Hispanics from Living or Working in Valley Park.
The City acknowledges that an ordinance violates the Equal Protection Clause where it has a discriminatory purpose and discriminatory effect. (Def. Br. at 15.) Though discovery has not yet commenced in this matter with respect to discriminatory purpose, the City’s Mayor has already inculpated himself in the media. (Pl. Mot. at 15-16 and Ex. A.) The City tries to explain
15 See also In re Alien Children Education Litigation, 501 F. Supp. 544, 578 (S.D. Texas 1980) (“Measures intended to increase or decrease immigration, whether legal or illegal, are the province of the federal government.”), aff’d sub nom. Plyler v. Doe, 457 U.S. 202 (1982); Brief for the Secretary of Health and Human Services in Opposition to Petition for Writ of Certiorari, City of Chicago v. Shalala, No. 99-898 (Feb. 2000) at 13 n.7 (“De Canas stands only for the proposition that courts will not automatically strike down every state statute that adversely affects some group of aliens, if there is no conflict between the state and federal law. De Canas does not suggest that the federal government’s extensive power over aliens is limited to the power to make decisions about who should be permitted to immigrate.”) (emphasis added).
14

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 16 of 23
away the racial epithets used by the Mayor by asserting that he was merely explaining that he would not use words such as “wetback” and “beaner.” (Def. Br. at 15-16.) Space does not permit lengthy quotations here, but the news article speaks for itself. The Mayor clearly was not explaining what he would not say when he referred to Hispanics moving into the neighborhood as “Cousin Puerto Rico” and “Taco Whoever.” (Pl. Mot. Ex. A at 1.) Nor was he explaining what he would not say when he said his lawyers were afraid he would say words like “wetback” and “beaner” in an interview. (Id. at 4-5.) But more important than the epithets themselves is the overall picture of a Mayor who objected to people of Mexican origin moving into Valley Park and who saw an illegal-immigration ordinance as a way of weeding them out. (Id. at 9.)
The City argues that bias against Hispanics could not have been a motive because the Employer Ordinance contains a “sweeping anti-discrimination clause” providing that a complaint will not be enforced if it is based on “national origin, ethnicity or race[.]” (Def. Br. at 16.) First, assuming the version of the Employer Ordinance actually in force at this time contains that language, it can do nothing to change the inevitability that complaints under the Ordinance will be based on perceived national origin, ethnicity or race. As the state court judge in Reynolds I is reported to have asked the City counsel, “What would have to be alleged in a complaint that would not be related to national origin or race?” (Group. Ex. R at 41.) The City counsel could not answer. (Id.)
Second, the City is simply incorrect in asserting that the Employer Ordinance affords more protection against discrimination than federal law. There is no Valley Park ordinance comparable to 8 U.S.C. § 1324b, which affirmatively prohibits discrimination by employers. More fundamentally, unlike the complaint process under the Employer Ordinance, a complaint filed under 8 U.S.C. § 1324a(e)(1) does not trigger a non-discretionary enforcement process.
15

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 17 of 23
2. The Ordinances Will Have a Discriminatory Effect. The City argues that because the Ordinances are subject to a TRO in state court, Plaintiffs’ claim that that they will have a discriminatory effect is “based entirely on conjecture.” (Def. Br. at 16.)16 While Ordinances 1721 and 1722 have not yet been enforced, and discovery has not yet been conducted in this matter, there is ample basis from which to infer that the Ordinances would have a discriminatory effect. That basis includes: (1) reaction to the original Valley Park anti-immigrant ordinances, including by residents, landlords and the police (Group Ex. R, at 9, 19, 25, 26, 28, 52, 55-56); and (2) trial testimony by Prof. Marc Rosenblum (Ex. S), an expert witness in Lozano v. Hazleton, No. 06 CV 1586, M.D. Pa. Those sources demonstrate a high probability that, as a result of the existence of the anti-immigrant Ordinances, persons of Hispanic heritage will be deterred from living or working in Valley Park, that landlords will be incentivized to avoid renting to persons of Hispanic heritage, that employers will be incentivized to avoid hiring persons of Hispanic heritage, and that residents of Valley Park will be incentivized to file complaints against other residents or workers based on their apparent Hispanic heritage. The City argues that those conclusions are illogical. With respect to the Landlord Ordinance, the City contends that it is already a federal crime to harbor illegal aliens, and so there should be no added incentive to discriminate. (Def. Br. at 17.) But, once again, the City elides the fact that the federal anti-harboring statute, 8 U.S.C. § 1324(a)(1)(A)(iii), imposes criminal liability only for knowingly or recklessly harboring an illegal alien. If the Landlord Ordinance were extrapolated nationwide, requiring all landlords to seek a permit from the federal government for each and every prospective tenant, it can hardly be gainsaid that it would create a
16 As a point of fact, the TRO in Reynolds II covers only Ordinance 1721. Ordinance 1722 is not even at issue in that matter. It is therefore puzzling that the City would state that both Ordinances have been enjoined.
16

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 18 of 23
much more profound incentive to discriminate than currently exists under the federal antiharboring statute.17
With regard to the Employer Ordinance, the City similarly argues that federal law already requires employers to refuse to hire unauthorized aliens. (Def. Br. at 17.) The City contends that the Basic Pilot Program takes the uncertainty out of the process, thus lessening the incentive to discriminate. (Id. at 17-18.) But a complaint does not trigger automatic enforcement action under federal law. Consider the effect of making the Employer Ordinance federal law. Every employer in the country would be exposed to the risk of a complaint from a neighbor or competitor automatically triggering a federal enforcement action requiring the employer to provide identifying information about its employees within three-days, on pain of having its business shut down. If the government notifies the employer that there is a violation, then the employer will have three days to “correct” the violation, again on pain of being shut down. It cannot reasonably be disputed that such a system would incentivize employers to avoid that kind of disruption, expense and risk to their business by taking the defensive measure of not hiring anyone that appears to be Hispanic. (E.g., Ex. S at 21, 48, 52, 60-62, 101-102, 113.)
3. There is a Sufficient Nexus Between the City’s Actions and the Actions of Landlords and Employers to Constitute State Action.
The City argues that anticipated discrimination by landlords and employers cannot be attributed to the City government and therefore there is no “state action” within the meaning of the Fourteenth Amendment. (Def. Br. at 18.) First, the deterrent effect the Ordinances are likely to have on potential tenants and workers who are Hispanic is directly attributable to the existence
17 The City further argues that landlords have a “safe harbor” under the Landlord Ordinance because a prospective tenant’s immigration status can be checked in a matter of seconds with the SAVE system. As noted above, however, the SAVE system cannot reliably determine who may lawfully reside in the United States, and, in any event, the City does not currently have access to SAVE or have anyone trained in its use. Accordingly, the mechanism under the Landlord Ordinance for verifying whether a prospective tenant is lawfully in the United States is non-existent, not “failsafe.”
17

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 19 of 23
of the Ordinances, and thus unquestionably is a result of state action. As to discrimination by landlords and employers, there is a sufficient nexus between the City Ordinances and the discrimination so that it may be deemed state action. Where there is a sufficient nexus between the state and both the private party and the alleged deprivation, the conduct at issue may fairly be attributable to the state. Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007). Furthermore, if an ordinance is the basis for a private party’s discriminatory conduct, the state cannot be shielded from responsibility. See Peterson v. City of Greenville, S.C., 373 U.S. 244, 248 (1963) (finding the city responsible despite the fact that the private individual would have discriminated against its Black customers of his own accord); Adickes v. S.H. Kress & Co., 398 U.S. 144, 169-171 (1970) (going so far as to indicate that state-enforced “custom” compelling segregation was actionable, even though it was the decision of the owners themselves to discriminate on the basis of race).18
The City cannot fairly contend that there is no nexus between the City Ordinances and the employers and landlords of Valley Park in their attempts to comply with the Ordinances. First, as discussed above, the Ordinances were implemented by the City with the purpose of deterring persons of Hispanic origin from living and working in Valley Park. The City, by way of its Ordinances, has transferred the task of actually sifting through its residents in search of illegal immigrants to the employers and landlords of Valley Park, effectively coercing them to serve this public function lest they face prohibitions in operating their businesses. The involvement of state officials in the continued enforcement of the Ordinances provides an
18 The City’s reliance on City of Cuyahoga Falls v. Buckley Community Hope Found., 538 U.S. 188 (2003) is misplaced. That case involved a “citizen-driven petition drive” which resulted in a referendum created by private individuals with clearly private motives, which could only be attributable to the individual citizens and provided no nexus to state motives. Id. at 197.
18

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 20 of 23
additional link between the state and the private actor sufficient to deem the conduct “state action.” III. THE BALANCE OF PARTY AND PUBLIC INTERESTS WEIGHS IN FAVOR
OF INJUNCTIVE RELIEF. The violation of a fundamental constitutional right constitutes irreparable injury and it “is always in the public interest to prevent the violation of a party's constitutional rights.” G & V Lounge, Inc. v. Michigan Liquor Control Commission, 23 F.3d 1071, 1079 (6th Cir.1994) (citing Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 383 (1979)). “In the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights.” Council of Alternative Political Parties v. Hooks, 121 F.3d 8676, 883-84 (3d Cir. 1997). The City has provided no evidence of any public harm that would outweigh the interest in protecting fundamental rights. The City contends that the mere fact that the Ordinances were enacted is evidence of public harm. (Def. Br. at 19-20.) But if the mere enactment of a law constituted the only determinant of whether it serves the public interest, then no statute or ordinance could ever be subject to challenge in court. That is not the law. See e.g., Garrett v. City of Escondido, 465 F. Supp. 2d 1043, 1053-54 (S.D. Cal. 2006) (balance of harms tipped in movant’s favor where defendant failed to offer proof of any countervailing public benefit in the form of reduced urban blight and other purported harms associated with ordinance’s enactment that would result from enforcement of ordinance concerning the harboring of illegal aliens). The City further asserts that the Ordinances’ declarations of purpose are “more than mere conjecture.” The City contends, with no evidentiary support, that several crimes have been committed over the last 12 months in Valley Park by illegal aliens. Even if true, the possibility that a few “illegal aliens” may have been arrested for criminal activity does not show that undocumented aliens are more prone to criminal activity than the general population, or that the
19

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 21 of 23

presence of undocumented aliens in a community increases the crime rate. The City has

provided no evidence of an increase in crime in Valley Park, nor has it provided any evidence

that employers in Valley Park have been hiring unauthorized aliens “over” citizens or authorized

workers. An injunction will cause no harm to Valley Park.

CONCLUSION

For the foregoing reasons, and the reasons stated in Plaintiffs’ Motion, Plaintiffs

respectfully request that this Court issue a preliminary injunction enjoining the enforcement of

Valley Park Ordinances 1721 and 1722.

June 14, 2007

Respectfully submitted,

/s/ Daniel J. Hurtado

Jenner & Block LLP Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com

Anthony E. Rothert, #518779 American Civil Liberties Union
of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org

Fernando Bermudez, #39943 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com

20

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 22 of 23
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation
Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation
Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org Mexican American Legal Defense
and Educational Fund Ricardo Meza* Jennifer Nagda* rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
* Mr. Meza and Ms. Nagda are not admitted to practice before this Court but anticipate filing motions for leave to appear pro hac vice.
21

Case 4:07-cv-00881-ERW Document 40-1 Filed 06/14/2007 Page 23 of 23
CERTIFICATE OF SERVICE The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on June 14, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 Kris W. Kobach Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
_/s/Daniel J. Hurtado ________
22

 
 Case 4:07-cv-00881-ERW Document 49 Filed 08/08/2007 Page 1 of 3

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JACQUELINE GRAY, et al.,

)

)

Plaintiff(s),

)

)

vs.

)

)

CITY OF VALLEY PARK, MISSOURI,

)

)

Defendant(s).

)

Case No. 4:07CV00881-ERW

MEMORANDUM AND ORDER This matter comes before the Court on Plaintiffs’ Motion to Consolidate Trial on the Merits with Hearing on Plaintiffs’ Motion for a Preliminary Injunction [doc. #38]. I. BACKGROUND Plaintiffs’ filed suit on April 12, 2007, against the City of Valley Park (the “city”) in St. Louis County Circuit Court, challenging two City Ordinances that were intended to eliminate the housing and hiring of illegal immigrants within the City. Specifically, the lawsuit challenges Ordinance Number 1721 (“the Landlord ordinance”) and Ordinance Number 1722 (“the Employer Ordinance”).1 The case was removed from state court on May 1, 2007, and this Court subsequently denied a motion to remand filed by Plaintiffs. Before the case was removed from state court, Plaintiffs filed a Motion for Preliminary Injunction, which is currently pending before this Court. On June 14, 2007, Plaintiffs filed a motion to consolidate the hearing on Plaintiffs’ Motion for Preliminary Injunction with the trial on the merits, and submitted a proposed time line

1The Court was advised by Counsel for Defendant that the City had repealed the Landlord Ordinance, leaving only the Employer Ordinance. The parties shall advise the Court within five (5) days of the date of this Order as to the status of the ordinances in question.
1

Case 4:07-cv-00881-ERW Document 49 Filed 08/08/2007 Page 2 of 3
for discovery, dispositive motions, and hearing. The Court will now address Plaintiffs’ Motion to Consolidate. II. LEGAL STANDARD
Federal Rule of Civil Procedure 65(a)(2) provides: “Before or after the commencement of the hearing of an application for a preliminary injunction, the court may order the trial of the action on the merits to be advanced and consolidated with the hearing of the application.” Fed. R. Civ. P. 65(a)(2). The Eighth Circuit stated in West Publishing Co. v. Mead Data Central Inc., that “the attention of the district courts in this Circuit is called to Fed. R. Civ. P. 65(a)(2), under which, in appropriate cases, those courts have discretion to combine the hearing on a motion for preliminary injunction with the trial on the merits. This procedure is a good one, and we wish to encourage it.” 799 F.2d 1219, 1229 (8th Cir. 1986). III. DISCUSSION
Plaintiffs request that this Court set the matter for a hearing in October, 2007. Plaintiffs argue that this will give enough time for discovery on issues that will be key to this Court making an informed decision on Plaintiffs’ motion for a preliminary injunction, but will also serve to effect a speedy resolution of the case. Specifically, Plaintiffs assert that discovery is needed on four questions: 1) the exact wording of the operative City Ordinances; 2) purpose and motivation behind the passage of the Ordinances; 3) discriminatory effect of the Ordinances; and 4) the City’s use of federal databases for verification of immigration status. Defendant does not object to a consolidation of the preliminary injunction hearing with the trial on the merits, however, it states that both could be accomplished in August, 2007, or early September, 2007.
The Court agrees that the preliminary injunction hearing should be combined with the trial on the merits. However, due to the discovery issues raised by Plaintiffs, as well as the work that
2

Case 4:07-cv-00881-ERW Document 49 Filed 08/08/2007 Page 3 of 3 needs to be done to prepare for trial on the merits, the Court does not believe a date earlier than October is feasible, and the Defendant has failed to articulate how it would be harmed by this date. Therefore, the Court orders that the trial on the merits be consolidated with the preliminary injunction hearing, and that the parties shall appear before this Court on Friday, August 10, 2007, at 2:00 p.m., to discuss discovery deadlines and a date for the preliminary injunction hearing. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Motion to Consolidate Trial on the Merits with Hearing on Motion for Preliminary Injunction [doc. #38] is GRANTED.
IT IS FURTHER ORDERED that the parties shall appear before this Court on August 10, 2007, at 2:00 p.m. for status conference.
IT IS FURTHER ORDERED that Defendant City of Valley Park will notify the Court within five (5) days of the date of this order of the status of the Valley Park Ordinances at issue in this suit.
Dated this 8th Day of August, 2007.
____________________________________ E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE
3

 
 Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 1 of 11

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

PLAINTIFFS’ MOTION AND SUPPORTING MEMORANDUM FOR A DECLARATION THAT VALLEY PARK ORDINANCE NO. 1722 IS INOPERATIVE
Plaintiffs Windhover, Inc. and Jacqueline Gray respectfully move this Court for a declaration that Valley Park Ordinance No. 1722 (the “Employer Ordinance”) is, under its own terms, not effective unless and until the permanent injunction in force in Reynolds v. City of Valley Park, St. Louis County Case No. 06CC-3802 (“Reynolds I”) is terminated (i.e., vacated by the Missouri Court of Appeals). In the wake of Valley Park’s repeal of the relevant provisions of Ordinance No. 1721 (the “Landlord Ordinance”), a declaration that the Employer Ordinance is currently ineffective will provide the basis for a stay of this matter pending the result of the appeal in Reynolds I.
On August 8, 2007, this Court issued an Order granting the Plaintiffs’ motion to advance and consolidate trial with the preliminary-injunction hearing in this matter, and scheduling a status conference for August 10, 2007. Subsequent to the briefing on the motion to consolidate the hearings, Plaintiffs learned that certain portions of the Landlord Ordinance had been repealed. On August 3, 2007, the court in Reynolds v. City of Valley Park, Missouri, Case No.

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 2 of 11
07CC-1420 (“Reynolds II”), entered an order of dismissal, holding that there was no longer a case or controversy. Accordingly, it is expected that the parties in this matter will presently file a stipulation of dismissal without prejudice of the causes of action in the Amended Petition for Declaratory and Injunctive Relief (the “Amended Petition”) relating to the Landlord Ordinance. If the Court grants this Motion, Plaintiffs will seek a stay of their remaining causes of action relating to the Employer Ordinance pending the outcome of the City’s appeal of the trial court’s judgment in Reynolds I.
BACKGROUND On July 17, 2006, the City passed Ordinance No. 1708 (“Ordinance 1708”), entitled “An Ordinance Relating to Illegal Immigration Within the City of Valley Park, Mo.” Ordinance 1708 purported to penalize any landlord or business who leased property to or employed an “illegal alien.” On September 22, 2006, Plaintiff Gray and others filed the Reynolds I suit1 in the Circuit Court for the County of St. Louis alleging that Ordinance 1708 violated Missouri state law as well as federal law. On September 25, 2006, Circuit Court Judge Barbara W. Wallace entered a Temporary Restraining Order enjoining enforcement of Ordinance 1708. On September 26, 2006, the City enacted Ordinance No. 1715 (“Ordinance 1715”), entitled “An Ordinance Repealing Sections One, Two, Three and Four of Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of and Harboring of Illegal Aliens Within the City of Valley Park, MO.” Like Ordinance 1708, Ordinance 1715 purported to penalize any landlord or business who leased property to or employed an “illegal alien.” On
1 In addition to Plaintiff Gray, Stephanie Reynolds, Florence Streeter and the Metropolitan St. Louis Equal Housing Opportunity Council were named plaintiffs in Reynolds I.
2

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 3 of 11
September 27, 2006, Judge Wallace entered an Amended Temporary Restraining Order enjoining the enforcement of Ordinance 1715.
On February 14, 2007, during the pendency of Reynolds I, the City’s Mayor signed Ordinance No. 1721 entitled “An Ordinance Repealing Section 510.020 Subsection 103.6.1 Of The Property Maintenance Code Relating To Inspections And Occupancy Permits And Enacting A New Ordinance In Lieu Thereof Relating To The Same Subject Matter” (the “Landlord Ordinance”). In general terms, the Landlord Ordinance: (1) provided that it would be unlawful for a property owner to allow any person to occupy the owner’s property without an occupancy permit: (2) required landlords to apply for an occupancy permit prior to renting a dwelling unit to any new tenants: and (3) provided that no occupancy permit would be issued if it were determined that “any alien unlawfully present in the United States is a proposed occupant[.]”
Also on February 14, 2007, the City’s Mayor signed Ordinance No. 1722, entitled “An Ordinance Repealing Ordinance No. 1715 and Sections One, Two, Three and Four of Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of Aliens Within the City of Valley Park, Mo” (the “Employer Ordinance”). (See Ex. 1 hereto, Def’s Amended Answer to Plfs’ Amended Pet. for Declaratory and Injunctive Relief and Exhibits Thereto, Ex. D.)2 The Employer Ordinance purports to make it “unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part in the City.” (Id., Ex. D, Section Four, A.)
2 There are at least four extant versions of Ordinance No. 1722 that purport to have been passed by the City Council and signed by the Mayor on February 14, 2007. (See Docket No. 38, Mot. for Order Consolidating Trial on the Merits with Hearing on Plfs’ Mot. for Prelim. Inj. at 4-6.) Though it is far from clear which, if any, version of Ordinance No. 1722 was properly enacted by the City, the City clearly contends that the version attached as Exhibit D to its Amended Answer is the version it actually enacted.
3

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 4 of 11
Section Seven of the Employer Ordinance provides: “This Ordinance shall become effective from and after its passage and upon approval by the Mayor and upon the termination of any restraining orders or injunctions now in force in Cause No. 06CC-3802 now pending in St. Louis County, MO in Division 13.” (Id., Ex. D, Section Seven.)
On March 12, 2007, Judge Wallace entered her Findings of Fact, Conclusions of Law, Order and Judgment in the Reynolds I case, ordering that the temporary restraining orders enjoining enforcement of Ordinance 1708 and Ordinance 1715 “are hereby made permanent.” (See Ex. 2, at 8.) Accordingly, the injunctions in Reynolds I have been made permanent and currently remain in force. The City subsequently filed a Notice of Appeal in the Missouri Court of Appeals. That appeal remains pending and briefing has not yet begun.
On March 14, 2007, Plaintiff Gray initiated this action in the Circuit Court for the County of St. Louis by filing a Petition for Declaratory and Injunctive Relief seeking an order enjoining the enforcement of the newly enacted Ordinance No. 1721 and Ordinance No. 1722. On April 12, 2007, Plaintiffs filed their Amended Petition to join Windhover, Inc. as a Plaintiff and add additional causes of action.3 On May 1, 2007, the City removed this action to this Court.
Meanwhile, on April 4, 2007, certain of the plaintiffs in the Reynolds I matter separately filed suit in the Circuit Court for the County of St. Louis challenging only the newly enacted Landlord Ordinance (No. 1721). Reynolds v. City of Valley Park, Missouri, Case No. 07CC1420 (“Reynolds II”). On April 5, 2007 the Reynolds II court issued a temporary restraining
3 It has been the Plaintiffs’ position that Ordinance No. 1722 is by its own terms not effective unless and until the permanent injunction in Reynolds I is terminated either by the court of appeals or by the trial court after remand. However, the City has consistently refused to state its position in that regard, and so Plaintiffs included a challenge to Ordinance No. 1722 in their Petition and Amended Petition.
4

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 5 of 11
order as to the Landlord Ordinance, and on April 25 2007, extended the temporary restraining order pending a resolution on the merits, which was scheduled for September 13, 2007.
On June 14, 2007, Plaintiffs filed a Motion to Consolidate Trial On The Merits With Hearing On Motion for Preliminary Injunction. Briefing on that Motion was completed on July 5, 2007.
On July 19, 2007, while this Court’s decision on the Motion to Consolidate was pending, the City filed a motion to dismiss the Reynolds II action on the ground that it had amended the Landlord Ordinance to delete “all of the controversial provisions pertaining to citizenship, illegal immigration, and aliens.” (Ex. 3, Mot. of Def’s to Dismiss Plfs' Petition, ¶ 2.) Attached to the City’s motion is Valley Park Ordinance No. 1735, titled “An Ordinance Amending Section 510.020, Subsection 103.6.1 (Ordinance 1721, As Amended), by Deleting Certain Provisions Pertaining to Citizenship and Illegal Aliens Contained Within the Valley Park Property Maintenance Code.” (Id., Ex. A.) Ordinance No. 1735 essentially repeals the Landlord Ordinance as it relates to the rental of dwelling units to “illegal aliens.” The City contended in its motion to dismiss that “from the effective date of Ordinance 1735, July 16, 2007, all matters before this Court are now mooted, and there remain no issues for this Court to enter a Judgment of Declaratory Relief as there is no longer a case or controversy or justiciable issue before the Court.” (Id. ¶ 3.) On August 3, 2007, the Reynolds II court entered a judgment granting the City’s motion to dismiss the case. (Ex. 4.) 4 It is expected that the parties in this matter will
4 The Reynolds II plaintiffs opposed dismissal on the ground that, absent a declaration of the Landlord Ordinance’s invalidity, nothing will prevent the City from enacting the same or a similar ordinance in the future. While there is force to that argument, particularly in light of the City’s history of repeatedly repealing and re-enacting immigration ordinances over the past year, Plaintiffs believe the preferred course in these particular circumstances is dismissal without prejudice to reinstate the claim in the event the City does re-enact the ordinance.
5

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 6 of 11
presently be filing a stipulation of dismissal as to the Amended Petition’s causes of actions relating to the Landlord Ordinance.
In light of the repeal of the Landlord Ordinance, Plaintiffs in this matter have sought to clarify what, if anything, remains at issue in this case. On July 24, 2007, Plaintiffs’ counsel emailed the City’s counsel stating the Plaintiffs’ understanding that “Ordinance No. 1722 is not currently effective, and would become effective only upon the termination of the injunction currently in force in connection with Cause No. 06CC-3802 in the St. Louis County Court[,]” and requesting the City’s position in that regard. (Ex. 5.) The City’s counsel responded only that “the City's position is that the repeal of ordinance 1721 has nothing to do with the enactment or enforcement of ordinance 1722.” (Ex. 6.) Plaintiffs’ counsel again sought to clarify the City’s position: “The repeal of Ordinance No. 1721 raises the question of what remains at issue in the federal proceeding. In any event, it is a fair question whether the City agrees with the position that Ordinance No. 1722 becomes effective only upon the termination of the permanent injunction issued in Cause No. 06CC-3802. I would appreciate a good-faith response.” (Ex. 7.) There was no response. As recently as August 8, 2007, after this Court ordered the parties to notify the Court of the status of the ordinances at issue in this case, the City has declined to take a position regarding the status of the Employer Ordinance.
ARGUMENT Plaintiffs seek to conserve party and judicial resources by having dismissed their claim regarding the now-repealed Landlord Ordinance, and by seeking a declaration that the Employer Ordinance is currently inoperative, thus clearing the way for a stay of this action pending the outcome of the appeal in Reynolds I.
6

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 7 of 11
Declaratory relief is appropriate where there is a live dispute between parties having adverse legal interests, “of sufficient immediacy and reality to warrant the issuance of a declaratory judgment.” Caldwell v. Gurley Refining Co., 755 F.2d 645, 649-50 (8th Cir. 1985). Here, there appears to be a live dispute regarding the proper interpretation of Section Seven of the Employer Ordinance, and thus whether Plaintiffs are currently subject to the Ordinance’s requirements. If the Court agrees that the Employer Ordinance is currently inoperative and becomes effective only upon the termination of the permanent injunction issued in Reynolds I, an event that may never occur, then this case may be stayed pending the result of the appeal in Reynolds I.5
Section Seven of the Employer Ordinance provides: This Ordinance shall become effective from and after its passage and upon approval by the Mayor and upon the termination of any restraining orders or injunctions now in force in Cause No. 06CC-3802 now pending in St. Louis County, MO in Division 13. (Ex. 1. Ex. A, Section Seven. emphasis added.) At the time the Employer Ordinance was enacted, there were two temporary restraining orders in force in Reynolds I, one pertaining to Ordinance 1708 and one pertaining to Ordinance 1715. Neither of those temporary restraining orders has been terminated. To the contrary, they were “made permanent” by the Reynolds I court’s March 12, 2007 final judgment. (Ex. 2 at 8.) Accordingly, the Employer Ordinance will not become effective unless and until the permanent injunction in Reynolds I is vacated by the Missouri Court of Appeals, or by the state trial court after a reversal and remand by the Court of Appeals. If the Reynolds I judgment is affirmed after all available appeals, the Employer
5 Plaintiffs seek a stay, as opposed to dismissal, with respect to the Employer Ordinance so that they may have ready access to this Court in the event the Employer Ordinance becomes effective or the City takes some other action, despite the City Council’s June 18, 2007 resolution, regarding an ordinance purporting to address illegal immigration. In the alternative, the Plaintiffs would seek voluntary dismissal of this action without prejudice.
7

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 8 of 11
Ordinance will never become effective and will be a dead letter. Briefing on the appeal has not yet begun, and so a decision by the Court of Appeals is not expected to be issued during at least the next year.
The City has nevertheless refused to formally acknowledge that the Employer Ordinance is not currently in effect (and may never take effect). (See Exs. 4-6.) Indeed, in opposing remand of this matter, the City’s counsel argued to this Court that the Employer Ordinance was immediately enforceable. (Ex. 8, May 16, 2007 Transcript of Mot. Hearing at 32-34.) And, even in arguing against a preliminary injunction, the City argued only that the Employer Ordinance would not be enforceable against the Plaintiffs until they sought to hire a worker who turned out to be an unauthorized alien, not that the Employer Ordinance is currently inoperative. (Docket No. 29-1 at 4.)
Accordingly, there appears to be a dispute between the parties regarding whether the Employer Ordinance is currently in force. That dispute is ripe for adjudication because the resolution will determine whether Plaintiffs are currently subject to the Employer Ordinance’s requirements and whether the continued expenditure of party and judicial resources on litigating the matter is warranted.
8

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 9 of 11
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that the Court enter an order
declaring that Valley Park Ordinance No. 1722 is currently inoperative and becomes effective
only upon the termination of the permanent injunction now in force in Cause No. 06CC-3802
now pending in St. Louis County, MO in Division 13. Plaintiffs respectfully suggest that the
setting of a trial date and a discovery schedule should be deferred pending resolution of this
Motion.
Respectfully submitted,
/s/ Daniel J. Hurtado
Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
9

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 10 of 11
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
10

Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 11 of 11
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system or by UPS delivery as indicated, on August 9, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 (by ECF/CM system)
Kris W. Kobach Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 (by ECF/CM system)
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009 (by UPS)
/s/Daniel J. Hurtado

 
 _._--, ~ -' ...-. ~ ....

...

P.eJ2

Case 4:07-cv-00881-ERW Document 51 Filed 08/09/2007 Page 1 of 2

IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE QRA.Y,
Plaintiffs)
v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) )
) Cause No. 07~cv-881 ERW )
) ) ) ) )

STIPULATION OF PARTIAL VOLUNTARY DISMISSAL
UNDER FEDERAL RULE OF CIVIL PROCEDURE 41(a)(1)
WHEREAS, on July 16, 2007, Defendant City of Valley Park enacted Ordinance No.
1735, which removes oertain disputed provisions from Vaney Park Ordinance No. 1721 (the
"Landlord Ordinance");
Pursuant to Rule 41(a)(l)(ii) of the Federal Rules of Civil Procedure, the parties to this
action hereby stipulate to tIle dismissal without prejudice of the causes of action directed to the
Landlord Ordinance asserted in Paragraph 28 of the Amended Petition for Declaratory and
Injunctive Relief, with eaeh party to bear its own costs. The causes of action directed to Valley
Park Ordinance No. 1722 (the "Employer Ordinance'') in Paragraph 29 of the Amended Petition
remain at issue.
Dated: AUgu$t~ 2007
WINDHOVER., INC.;
JACQUELINE ORAY
By: lsi QanicDbHurtado DANIELJ. HURTADO Attorney for Plaintiffs

P.P.l3
Case 4:07-cv-00881-ERW Document 51 Filed 08/09/2007 Page 2 of 2
IT IS SO ORDERED:
UNITED STATES DISTRICT JUDGE

2of2

TOTAL P.03

 
 Case 4:07-cv-00881-ERW Document 53 Filed 08/10/2007 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

MOTION FOR SUMMARY JUDGMENT

Defendant, by and through its attorneys, moves this Court pursuant to Rule 56(b) of the Federal

Rules of Civil Procedure for an Order granting summary judgment for the Defendant and against the

Plaintiffs and declaring that Valley Park Ordinance No. 1722 is constitutional under the United States

Constitution and is consistent with Missouri state law. In support of this motion, Defendant avers as

follows:

I.

Defendant incorporates herein by reference Defendant’s Statement of Uncontroverted Facts in

Support of its Motion for Summary Judgment.

II. Defendant also incorporates herein by reference the legal arguments contained in the

Memorandum in Support of Defendant’s Motion for Summary Judgment, which is being filed

contemporaneously herewith.

III. Pursuant to Federal Rule of Civil Procedure 56(c), summary judgment shall be rendered if the

pleadings and other evidence “show that there is no genuine issue as to any material fact and that the

moving party is entitled to a judgment as a matter of law.”

IV. Summary judgment is appropriate in favor of the Defendant because as a matter of law:

A. Ordinance No. 1722 does not violate the Supremacy Clause of the U.S. Constitution;

Case 4:07-cv-00881-ERW Document 53 Filed 08/10/2007 Page 2 of 4
B. Ordinance No. 1722 does not violate the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution;
C. Ordinance No. 1722 does not violate the Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution, and Plaintiffs do not have standing to raise their Equal Protection Clause challenge;
D. Ordinance 1722 does not contravene Missouri law regarding imprisonment and fines; E. Preclusion doctrines do not preclude Defendant from raising defenses. V. Today, Defendant delivered electronically to counsel for Plaintiffs, via the Court’s electronic case filing system, a copy of this Motion, Defendant’s Statement of Uncontroverted Material Facts, and the Memorandum in Support of Defendant’s Motion for Summary Judgment. WHEREFORE, Defendant respectfully requests that this Court issue an order granting summary judgment in favor of Defendant, declaring that Ordinance No. 1722 is constitutional and consistent with Missouri law, and denying the injunctive relief sought by Plaintiffs.
Respectfully submitted by
/s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu
/s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com

Case 4:07-cv-00881-ERW Document 53 Filed 08/10/2007 Page 3 of 4
/s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org
Attorneys for Defendant

Case 4:07-cv-00881-ERW Document 53 Filed 08/10/2007 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 10th day of August, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union
of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 1 of 42

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
INTRODUCTION AND PROCEDURAL BACKGROUND On September 22, 2006, the Plaintiffs in this action, along with other plaintiffs, filed suit against the Defendant city of Valley Park, Missouri, seeking to enjoin two ordinances (Ordinances 1708 and 1715) that concerned the same general subject matter as the two ordinances challenged in this action (Ordinances 1721 and 1722)—illegal immigration. Reynolds v. Valley Park, No. 06-CC-3802. After removal of the Reynolds case to this court, Plaintiffs filed a motion to remand the case back to the Circuit Court of Saint Louis County, which was granted by this court on November 15, 2006. The Reynolds case was subsequently decided solely on state law grounds by the Circuit Court of Saint Louis County on March 12, 2007. The Reynolds decision only addressed ordinances that were by that time repealed (Ordinances 1708 and 1715). It did not address the new ordinances (Ordinances 1721 and 1722) that were in effect at that time and that are the subject of the complaint in this action. On March 14, 2007, Plaintiff Jacqueline Gray filed the petition in this case in the Circuit Court of Saint Louis County. On April 12, 2007, Plaintiffs filed an Amended Petition adding Windhover, Inc., as a party Plaintiff. On May 1, 2007, Defendant removed the case to this Court; and on May 21, 2007, this Court denied Plaintiffs’ motion to remand. On July 17, 2007, the Valley Park Board of Aldermen passed, and on July 18, 2007, the Mayor of Valley Park approved, Ordinance 1735, repealing Ordinance 1721

1

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 2 of 42
(which restricted the rental of housing units to illegal aliens). Ordinance 1722 (which restricts the employment of unauthorized aliens) remains in place. On August 9, 2007, both parties stipulated to the voluntary dismissal of Plaintiffs’ causes of action relating to Ordinance 1721. Accordingly, this memorandum of law focuses on Ordinance 1722 and explains why Plaintiffs cannot prevail under the legal theories that they advance.
Finally, on August 9, 2007, the Valley Park Board of Aldermen passed, and the Mayor signed, an amendment to the effective date of Ordinance 1722 which clarifies that the Ordinance takes effect immediately (on August 9, 2007), but that no complaints will be received and no enforcement actions will occur until December 1, 2007, thereby allowing this Court time to address the legal issues presented in this case. This amendment occurred via Ordinance 1736, attached as Exhibit A. In addition, Ordinance 1736 amended Ordinance 1722 by restating the text of Ordinance 1722, thereby addressing any dispute raised by Plaintiffs concerning the true and correct wording of the text of Ordinance 1722.
FACTUAL BACKGROUND The remaining ordinance at issue in this matter, Ordinance 1722, was carefully drafted to comply with controlling federal precedents defining the authority of state and local governments to restrict the unlawful employment of unauthorized aliens. Plaintiffs have not alleged any set of facts under which they could prevail on their claims relating to Ordinance 1722. Ordinance 1722 prohibits employers in Valley Park from knowingly employing unauthorized aliens—which has been a federal crime since 1986 under 8 U.S.C. § 1324a. Ordinance 1722 requires employers to sign an affidavit stating that they do not knowingly utilize the services of or hire any person who is an unlawful worker (including an unauthorized alien). Ordinance 1722 § 4.A. Employers who violate the ordinance risk the suspension of their business licenses under Section 4.B(4)—a sanction that Congress expressly allowed municipalities to impose on employers of unauthorized aliens. 8 U.S.C. § 1324a(h)(2). Ordinance 1722 applies only prospectively—to employees hired after the ordinance becomes effective. Ordinance 1722 § 5.A.
2

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 3 of 42
ARGUMENT I. PLAINTIFFS LEGAL CLAIMS AGAINST ORDINANCE 1722 ARE WITHOUT MERIT
A. Ordinance 1722 is Not Preempted by Federal Immigration Law Plaintiffs contend that Ordinance 1722 is preempted by federal law. Plaintiffs appear to be somewhat confused, referring to their three preemption claims as “(1) constitutional preemption; (2) field preemption; and (3) conflict preemption.” Pl. Reply Memo. Supp. Mtn. Prelim. Inj., 5. Plaintiffs evidently do not realize that all preemption claims are constitutional preemption claims, under the Supremacy Clause of the U.S. Constitution. To clarify for Plaintiffs’ sake, there are two broad categories of preemption—express preemption and implied preemption. Gade v. National Solid Wastes Mgmt. Ass’n, 505 U.S. 88, 98 (1992) (plurality opinion). Plaintiffs’ do not, and cannot, make a claim of express preemption (which occurs when Congress passes a law expressly barring the state or local regulation at issue). Rather, their claims are that implied preemption has occurred. The controlling Supreme Court precedent of De Canas v. Bica, 424 U.S. 351 (1976), laid out the three-part test for determining whether a state or local regulation affecting immigration is displaced through implied preemption. A state regulation is preempted (1) if it falls into the narrow category of a “regulation of immigration,” (2) if the federal government has completely occupied the field so as to complete displace state activity, or (3) if the state regulation “conflicts in any manner with any federal laws or treaties.” Id. at 358. Plaintiffs briefly mention the De Canas test, but then they fail to mention the controlling De Canas precedent again in their Memo Supporting their Motion for Preliminary Injunction. The reason that this controlling case disappears from Plaintiffs’ memo is obvious: De Canas is filled with statements that clearly support Defendants, as quoted below. Plaintiffs also fail to mention what the De Canas case was about. In De Canas, the U.S. Supreme Court sustained against 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
3

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 4 of 42
workers.” Id. at 352. The similarities to Ordinance 1722 are obvious; both involve state or local efforts to impose sanctions on the employers of unauthorized aliens. Consequently, controlling Supreme Court precedent weighs strongly in Defendants’ favor.
In addition, Plaintiffs neglect to mention the presumption against any judicial finding of preemption. There must always be a heavy presumption against federal preemption of state law. “In all preemption cases…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 a clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996). “[I]n the absence of compelling congressional direction,” courts will not infer that “Congress ha[s] deprived the States of the power to act.” New York Tel. Co. v. New York State Dep’t of Labor, 440 U.S. 519, 540 (1979).
Finally, and most glaringly, Plaintiffs neglect to mention that Congress expressly allowed states and localities to deny business licenses to employers who hire unauthorized aliens when it passed the Immigration Reform and Control Act (IRCA) of 1986. This express congressional permission for state and local action is found at 8 U.S.C. § 1324a(h)(2), described below.
1. Federal Law Expressly Permits State and Local Laws Denying Business Licenses to the Employers of Unauthorized Aliens.
Ordinance 1722 fits exactly within the window of local action created by Congress. As noted above, federal law permits precisely the form of local regulation the Ordinance 1722 represents. With the enactment of IRCA in 1986, Congress made the employment of unauthorized aliens a federal crime. In so doing, Congress expressly preempted some state restrictions on the employment of unauthorized aliens, but expressly permitted others. The relevant provision of federal law is found at 8 U.S.C. § 1324a(h)(2):
Preemption. The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2) (emphasis added). In this section of U.S. law, Congress utilized its power of express preemption to deny states and localities the authority to impose civil or criminal fines on the
4

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 5 of 42
employment of unauthorized aliens. However, Congress explicitly left open a doorway for state and local legislation on the subject—in the form of “sanctions … through licensing and similar laws.”
Valley Park has followed 8 U.S.C. § 1324a(h)(2) with precision. Valley Park has eschewed the imposition of criminal or civil penalties and has instead taken the action expressly permitted by Congress. Section 4.B. of Ordinance 1722 calls for the suspension of the business license of a business entity that employs unauthorized aliens—a licensing restriction under 8 U.S.C. § 1324a(h)(2).
Plaintiffs will undoubtedly urge this Court to follow the recent decision of Judge James Munley in the U.S. District Court for the Middle District of Pennsylvania, regarding the employment provisions of a similarly-worded ordinance enacted by City of Hazleton, Pennsylvania. Lozano v. City of Hazleton, 2007 U.S. Dist. LEXIS 54320 (M.D. Pa. 2007). In that decision, Judge Munley disregarded the plain language of 8 U.S.C. § 1324a(h)(2) because, in his opinion, “It would not make sense for Congress in limiting the state’s authority to allow states and municipalities the opportunity provide the ultimate sanction, but no lesser penalty.” Id. at *120. In Judge Munley’s view, the temporary suspension of a business license is a greater sanction than criminal punishment, such as imprisonment. Id. at *119-20. Certainly, reasonable minds may disagree as to which sanction is greater. However, one thing is certain. Judge Munley erred by disregarding the plain language of federal law simply because he thought that Congress’s approach “would not make sense.” There is no ambiguity in Congress’s reservation of “licensing” sanctions to states and local governments. In the absence of ambiguity, the plain language of a statute is decisive in any proper judicial interpretation. “[T]he plain language of the Act controls if it is unambiguous.” Trs. of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 (8th Cir. 2006) (citing United States v. Mickelson, 433 F.3d 1050, 1052 (8th Cir. 2006)). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (U.S. 1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). See also Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (U.S. 2002). The fact that Judge Munley disagreed as a policy
5

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 6 of 42
matter with Congress’s decision to allow states and localities to impose licensing sanctions on the employers of unauthorized aliens did not constitute “ambiguity.” Consequently, his decision to disregard the plain meaning of 8 U.S.C. § 1324a(h)(2) was erroneous.
2. Plaintiffs’ Overbroad Preemption Theory Creates Surplusage It is a long-standing principle of statutory interpretation that courts must not interpret statutes in a fashion that renders any provision redundant or unnecessary—“mere surplusage” in the words of Chief Justice Marshall in Marbury v. Madison, 5 U.S. 137, 174 (1803). “It is our duty to give effect, if possible, to every clause and word of a statute. We are thus reluctant to treat statutory terms as surplusage in any setting.” Duncan v. Walker, 533 U.S. 167, 174 (2001). Plaintiffs urge this Court to adopt a sweeping implied preemption theory, asserting (incorrectly) that Ordinance 1722 is preempted because it operates in “a field that is entirely occupied by federal law.” Pl. Mtn. for Prelim. Inj., 8. “Therefore Valley Park lacks any authority to enact or enforce Ordinances of this type.” Id., 9. Plaintiffs offer no case law supporting these implied preemption claims. When considering implied preemption arguments, courts must never act so as to render express preemption provisions mere surplusage. In other words, in the presence of an express preemption provision, it is inappropriate for a court to infer the existence of implied preemption from the wider statute in which the provision is located. The U.S. Supreme Court made this clear in Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597, 612-13 (1991): “[F]ield preemption cannot be inferred. In the first place, § 136v itself undercuts such an inference. …This [express preemption] language would be pure surplusage if Congress had intended to occupy the entire field of pesticide regulation.” Plaintiffs commit precisely this error, advancing a theory that renders 8 U.S.C. § 1324a(h)(2) surplusage. Plaintiffs’ broad implied preemption theory asserts that any state or local law penalizing the employers of unauthorized aliens is preempted. However, 8 U.S.C. § 1324a(h)(2) expressly preempts state laws imposing criminal and civil penalties on employers of unauthorized aliens. If Plaintiffs’ sweeping theory were correct, then 8 U.S.C. § 1324a(h)(2) would be mere surplusage, because as Plaintiffs assert, Congress had already occupied the field and implicitly preempted all state and local laws on the subject. If
6

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 7 of 42
this theory were correct, Congress did not need to expressly preempt in U.S.C. § 1324a(h)(2), because it would have already displaced such state laws from the field through implied preemption.
In enacting 8 U.S.C. § 1324a(h)(2) as part of IRCA in 1986, Congress eschewed the imprecise blanket approach of judicial field preemption and took up the task of express preemption—carving out only one area in which it did not welcome state assistance. Only those few state regulations would be preempted; the remainder would be permitted, provided that they were consistent with congressional objectives. This can be seen in the text of 8 U.S.C. § 1324a(h)(2) itself. State criminal and civil penalties on employers are rejected, but state licensing sanctions and similar sanctions on such employers are invited. Moreover, the text of the provision makes clear that Congress did not intend to preempt in other sections of the INA: “The provisions of this section preempt any state or local law….” 8 U.S.C. § 1324a(h)(2). The provisions of other sections do not. If this Court were to adopt Plaintiffs’ sweeping theory of preemption, it would render 8 U.S.C. § 1324a(h)(2) a nullity and would defeat Congress’s intent. Congress knows very well how to preempt state laws in the field of immigration. If Congress chooses not to preempt, the judicial branch must respect that decision. As the Supreme Court has consistently reiterated, “‘the purpose of Congress is the ultimate touchstone’” of preemption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504 (1978) (quoting Retail Clerks v. Schermerhorn, 375 U.S. 96, 103 (1963)).
3. Ordinance 1722 is not a “Regulation of Immigration” Under De Canas Plaintiffs declare that Ordinance 1722 “attempt[s] to regulate immigration.” Pl. Mtn. for Pre. Inj., 9. However, they decline to quote the controlling De Canas precedent, which explained quite clearly what the term “regulation of immigration” means: [S]tanding alone, the 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. 424 U.S. at 355 (emphasis added). The Supreme Court made it abundantly clear that states and localities possessed wide leeway to “deal with aliens” without being preempted: “[T]he Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se pre-
7

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 8 of 42
empted by this constitutional power, whether latent or exercised.” Id. “In other words, it is the creation of standards for determining who is an is not in this country legally that constitutes a regulation of immigration in these circumstances, not whether a state’s determination in this regard results in the actual removal or inadmissibility of any particular alien.” Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004).
Valley Park has not in any way attempted to define who should or should not be admitted into the country. Indeed Ordinance 1722 repeatedly makes express reference to federal immigration classifications in defining which aliens may not be employed. “‘Illegal Alien’ means an alien who is not lawfully present in the United States according to the terms of United States Code Title 8, section 1101 et seq.” Ordinance 1722 § 3.D. The definition of “unauthorized alien” expressly refers to the federal term “as defined by United States Code Title 8, subsection 1324a(h)(3).” Ordinance 1722 § 3.E. The ordinance defers entirely to the federal government in determining whether an alien is authorized to work in the United States. “The determination of whether an individual is an unauthorized alien shall be made by the federal government, pursuant to United States Code Title 8, Subsection 1373(c).” Ordinance 1722 § 5.E. No local official is permitted to even attempt an independent determination of status. “At no point shall any city official attempt to make an independent determination of any alien’s legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c).” Ordinance 1722 § 5.C.
Plaintiffs compound their misunderstanding of what constitutes a “regulation of immigration” by citing irrelevant, outdated cases that do not involve illegal immigration in any way. Pl. Mtn. for Pre. Inj., 9. Without explanation, Plaintiffs cite Truax v. Raich, 239 U.S. 33 (1915), which involved a state law that denied employment to an alien who was lawfully admitted to the United States and entitled to work under federal law—a law that was struck down on 14th Amendment grounds, not preemption grounds. Id. at 4243. Then Plaintiffs cite Hines v. Davidowitz, 312 U.S. 52 (1941), an equally irrelevant case invalidating a state law that registered legal aliens because it conflicted with federal law. Id. at 73-74. Plaintiffs also attempt to use Graham v. Richardson, 403 U.S. 365 (1971) to their advantage. Like the others, that case
8

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 9 of 42
involved a state law that discriminated against certain aliens who were lawfully present in the United States. Id. at 367, 378.
The state statutes in those pre-De Canas cases were preempted, but as the Supreme Court later synthesized in De Canas, it was because the statutes sought to “determine the conditions under which a legal entrant may remain” in the United States. 424 U.S. at 355 (emphasis added). The ordinance at issue in this case does not restrict the ability of aliens lawfully present in the United States to remain. Rather, Ordinance 1722 restrict the ability of unauthorized aliens to violate federal law by working unlawfully in the United States. State laws that deny privileges and benefits to illegal aliens have been upheld by U.S. courts. See, e.g., Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004) (upholding state policy denying university admission to illegal aliens).
4. Congress Has Not Occupied the Field so as to Displace all Local Legislation Without any explanation or case support, Plaintiffs make the extraordinary claim that the field of immigration is a “field[] completely occupied by federal law.” Pl. Mtn. for Pre. Inj., 9. Once again, Plaintiffs completely ignore controlling precedent. The De Canas Court considered and rejected the possibility that the regulation of immigration by the federal government might be so comprehensive that it occupies the field and displaces state action: “Respondents … fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.” De Canas, 424 U.S. at 357-358 (internal citations omitted). “No statute precludes other federal, state, or local law enforcement agencies from taking other action to enforce this nation’s immigration laws.” Lynch v. Cannatella, 810 F.2d 1363, 1367 (5th Cir. 1987). The De Canas Court was unequivocal in its conclusion that a state is permitted to restrict the employment of unauthorized aliens and otherwise act in ways that have an impact on immigration: In this case, California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a
9

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 10 of 42
constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. 424 U.S. at 355-56 (emphasis added). While Plaintiffs would have this Court believe that virtually all state regulations affecting illegal aliens are displaced, to the contrary, the De Canas Court held that a state law imposing penalties on employers of illegal aliens was not preempted under any possible theory. Interestingly, Plaintiffs attempt in vain to find support in an irrelevant footnote from a concurring opinion in Plyler v. Doe, 457 U.S. 202 (1982). Pl. Mtn. for Pre. Inj., 12-13. However, Plaintiffs completely ignore what the Plyler majority had to say on the subject: As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State’s program reflected Congress’ intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id. at 361. Plyler, 457 U.S. at 225. The Supreme Court has never departed from this holding, and Plaintiffs have not presented any case law that comes even close to suggesting otherwise. In their Reply Memo, Plaintiffs attempt to offer an answer to the unequivocal holding in De Canas that Congress has not completely occupied the field of immigration law. Plaintiffs suggest, without an iota of case support, that the enactment of IRCA in 1986 constituted occupation of the field. Pl. Reply Memo. Supp. Mtn. for Prelim Inj., 12. In other words, Plaintiffs would have this Court ignore controlling Supreme Court precedent, based on Plaintiffs’ flimsy theory that IRCA constituted occupation of the field. There are three important reasons why this Court should reject Plaintiffs’ suggestion that the controlling precedent of the U.S. Supreme Court is no longer good law. First, and most obviously, the very Act of Congress that Plaintiffs contend occupied the field— IRCA—itself contains an express invitation for states and localities to enter the field. Congress plainly delineated a zone of state and local action in the field: imposing “sanctions (… through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). As the De Canas Court observed before IRCA, “Congress sanctioned concurrent state legislation on the subject covered by the challenged state law.” 424 U.S. at 363. The same
10

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 11 of 42
observation applies post-IRCA, as Congress once again expressly sanctioned concurrent state and local legislation. “Congress’s intent to preempt state law may be implied where it has designed a pervasive scheme of regulation that leaves no room for the state to supplement….” Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 240 (2d Cir. 2006) (emphasis added). However, in passing IRCA, Congress expressly carved out a portion of the field for the state to supplement federal sanctions—through the imposition of licensing sanctions. Thus, it is logically impossible to conclude that Congress has left “no room for the state to supplement” federal law in this case.
Second, the U.S. Court of Appeals for the Second Circuit in 2006 reviewed a preemption challenge under IRCA, and held that IRCA did not result in field preemption. Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219. The Court reviewed an IRCA preemption challenge to a state labor law allowing injured workers to seek compensatory damages where the worker is an unauthorized alien. The Court concluded that IRCA did not result in field preemption. Id. at 240-41.
Third, Plaintiffs fail to recognize that field preemption requires more than a mere Act of Congress in a particular field. Field preemption requires a demonstration by Congress of “a clear and manifest intent to supersede.” Id. at 240. “‘Where … the field which Congress is said to have pre-empted’ includes areas that have ‘been traditionally occupied by the States,’ congressional intent to supersede state laws must be ‘clear and manifest.’” English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). In the case at bar, the licensing of businesses and the regulation of employment practices are certainly areas traditionally occupied by the states and municipalities. There is no indication in text or legislative history of IRCA that Congress intended to displace states and localities from the field entirely. On the contrary, both the text of 8 U.S.C. 1324a(h)(2) and the Report of the House Committee on the Judiciary prior to IRCA’s enactment expressly contemplate state and local action in the field. See H.R. No. 99-682(1) at 5662.
Here too, Plaintiffs will doubtless urge this Court to follow the recent decision of Judge Munley in Lozano. In that case, Judge Munley took the extraordinary step of setting aside the De Canas precedent of the U.S. Supreme Court, based on the theory that the enactment of IRCA in 1986 constituted congressional
11

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 12 of 42
occupation of the field. Therefore, he concluded that the De Canas holding that Congress had not occupied the field was no longer good law. Lozano, 2007 U.S. Dist. LEXIS 54320 at *135. In addition to the fact that a federal district court should not unilaterally set aside a binding precedent of the Supreme Court, there are three additional problems with Judge Munley’s holding. First, in addressing the issue of field preemption he did not even consider the fact that IRCA expressly invited states and localities on to the field by including the language of 8 U.S.C. § 1324a(h)(2). See Lozano, 2007 U.S. Dist. LEXIS 54320 at *12438. Consequently, he arrives at the incongruous conclusion that Congress fully occupied the field while simultaneously inviting states and localities on to the field. Defendants are aware of no preemption precedent that even comes close to supporting such an incongruous holding. Second, a court must not find implied preemption (of which field preemption is one variety) in the presence of express preemption. Doing so renders the express preemption provision mere surplusage. Wisc. Pub. Intervenor v. Mortier, 501 U.S. at 612-13. Third, Judge Munley failed to apply the correct standard of requiring a congressional demonstration of “a clear and manifest intent to supersede.” Affordable Hous. Found., Inc. v. Silva, 469 F.3d at 240. He simply described the scope of IRCA and concluded without any analysis of congressional intent that the field was occupied. ). See Lozano, 2007 U.S. Dist. LEXIS 54320 at *124-35.
5. The Prohibition of Employing Unauthorized Aliens Constitutes Concurrent Enforcement Activity and is Therefore not Preempted
It is well established that in immigration law, states and localities are not preempted when they undertake concurrent enforcement activity with the federal government. “Where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized.” Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983) (citing Florida Avocado Growers v. Paul, 373 U.S. 132, 142 (1963)) (emphasis added). Where “[f]ederal and local enforcement have identical purposes,” preemption does not occur. Gonzales v. Peoria, 722 F.2d at 474. In the words of Judge Learned Hand, “it would be unreasonable to suppose that [the federal government’s] purpose was to deny itself any help that the states may allow.” Marsh v. United States, 29 F.2d 172, 174 (2d Cir. 1928).
12

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 13 of 42
Ordinance 1722 prohibits precisely the same activity that is prohibited under federal immigration law: the knowing employment of unauthorized aliens. Under federal law, “It is unlawful for a person or other entity … to hire, or recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section… .” 8 U.S.C. § 1324a(a)(1). It is also a crime to continue to employ an unauthorized alien once one becomes aware of the employee’s status. “It is unlawful for a person or other entity, after hiring an alien for employment … to continue to employ the alien in the United States knowing the alien is (or has become) an unauthorized alien with respect to such employment.” 8 U.S.C. § 1324a(a)(2). Similarly, Ordinance 1722 states that “[i]t is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City.” Ordinance 1722, § 4.A. “Unlawful worker” is expressly defined to encompass “an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).” Ordinance 1722, § 3.E. (The term also encompasses any worker who is disqualified by nonage or any other provision of Missouri state law.) It is important to recognize that Valley Park has painstakingly drafted its ordinance to confirm to the exact terms of federal law. As a result, both federal and local law proscribe the employment of an unauthorized alien with express reference to the definition of that term in 8 U.S.C. § 1324a(h)(3). It is difficult to conceive of a better example of concurrent enforcement.
It must be noted that concurrent enforcement has been found to exist where the state statute in question is much less consistent with the terms of federal immigration law than in the case at bar. For example, the Arizona Human Smuggling Statute of 2005, A.R.S. §13-2319, created a state crime prohibiting the smuggling of illegal aliens. That state crime was parallel to the federal crime of alien smuggling; but the terms of the state and federal statutes differed considerably. Nevertheless, the state statute was recently upheld against a preemption challenge because it represented concurrent enforcement against substantially the same activity prohibited by federal immigration law.
[C]oncurrent state and federal enforcement of illegal alien smuggling and conspiracy to smuggle illegal alien laws serves both federal and state law enforcement purposes and is highly compatible. In fact, concurrent enforcement enhances rather than impairs federal
13

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 14 of 42
enforcement objectives. Thus, because federal and State enforcement have compatible purposes, and Congress has not expressly preempted state prosecution of such conduct, preemption does not exist. Gonzales v. City of Peoria, 722 F 2nd at 474. Arizona v. Salazar, CR2006-005932-003DT, Slip Op. at 9 (Ariz. Super. Ct., June 9, 2006) (emphasis added) (opinion attached as Exhibit B). Ordinance 1722 not only is compatible with the purposes of Congress, it also adopts federal definitions and employs federal standards, deferring entirely to federal officials’ judgments about the legal status of aliens in question.
6. Ordinance 1722 is Consistent with Congressional Objectives As noted above, congressional intent is the cornerstone of any preemption analysis. Malone v. White Motor Corp., 435 U.S. 497, 504 (1978); English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990); Retail Clerks Int’l Assoc. v. Schermerhorn, 375 U.S. 96, 103 (1963). Moreover, “[t]he conflict standard of preemption is strict.” Affordable Hous. Found., Inc., 469 F.3d at 238. A “clear demonstration of conflict … must exist before the mere existence of a federal law may be said to pre-empt state law operating in the same field.” Jones v. Rath Packing Co., 430 U.S. at 544 (Rehnquist, J., concurring in part and dissenting in part). Federal preemption cannot be based on “unwarranted speculations” about Congress’s intent. Id. What Plaintiffs fail to acknowledge is that in the past 21 years, Congress has repeatedly taken steps to encourage precisely the form of local action embodied in Ordinance 1722. As the Tenth Circuit has held, “in the months following the enactment of § 1252c, Congress passed a series of provisions designed to encourage cooperation between the federal government and the states in the enforcement of federal immigration laws.” United States v. Vasquez-Alvarez, 176 F.3d 1294, 1300 (10th Cir. 1999) (citing 8 U.S.C. §§ 1103(a)(9) and (c), and 8 U.S.C. § 1357(g)(1)). In order to come to the conclusion that a state or local statute is preempted through implied preemption, a court must find that Congress intended such preemption to occur. Such a finding is impossible in this case for six reasons. First, Congress plainly expected that state and local governments would determine which employers were illegally employing unauthorized aliens (with verification by the federal government), and would deny business licenses to those employers doing so. There is no other way to coherently interpret 8 U.S.C. § 1324a(h)(2). Congress explicitly left this window of regulation open to state and local
14

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 15 of 42
governments. Plaintiffs’ broad theory of implied preemption renders this provision of federal law nonsensical.
Second, Ordinance 1722 is consistent with the broader purpose of IRCA (of which 8 U.S.C. § 1324a(h)(2) is part). The Ninth Circuit recently described purpose of the employment provisions of IRCA as follows:
In passing IRCA, Congress wished to stop payments of wages to unauthorized workers, which act as a “magnet … attract[ing] aliens here illegally,” and to prevent those workers from taking jobs that would otherwise go to citizens. P.L. 99-603, IMMIGRATION REFORM AND CONTROL ACT OF 1986 H.R. REP. 99-682(I), at 46, as reprinted in 1986 U.S.C.C.A.N. at 5650. Incalza v. Fendi, 479 F.3d 1005, 1011 (9th Cir. 2007). This purpose is entirely consistent with the employment provisions of Ordinance 1722, which seek to discourage employers from hiring unauthorized aliens. If Ordinance 1722 prevents unauthorized workers from taking jobs in the future that would otherwise go to U.S. citizens or to authorized alien workers, then Congress’s objective are met. By giving an employer notice that an employee is unauthorized and allowing the employer an opportunity to correct the situation (or seek re-verification of the employee’s status), Ordinance 1722 effectuates the purpose of IRCA. “Given that IRCA makes it illegal to hire undocumented aliens … and mandates criminal penalties for those who knowingly employ such workers … termination is effectively required once an employer learns of an employee’s undocumented status.” Affordable Hous. Found., Inc., 469 F.3d at 236. Far from conflicting with the objectives of Congress expressed in IRCA, Ordinance 1722 operates to promote them. Third, Congress expected state and local governments to ask about the legal status of particular aliens, and expected the federal government to answer. Plaintiffs reveal their unfamiliarity with federal immigration law when they assert without support that “to permit local governments to place such demands for information regarding an individual’s immigration status would place an undue burden on the federal government.” Pl. Mtn. for Pre. Inj., 13. Plaintiffs evidently are not acquainted with 8 U.S.C. § 1373(c), which Congress enacted in 1996. This provision of federal law requires the federal government to answer any such request from a state or local government: (c) Obligation to respond to inquiries
15

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 16 of 42
The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. For Plaintiffs to claim that such requests pose an “undue burden” on the federal government and are therefore preempted is nonsensical, given the fact that the federal government imposed the burden upon itself. Congress expected states and localities to be making inquiries concerning aliens in their jurisdiction and submitting requests for verification of status to the federal government. No other conclusion can logically be drawn from this statutory text. Fourth, Congress also enacted 8 U.S.C. § 1373(a), which requires states and local governments to maintain unrestricted communications with federal immigration officers concerning the legal status of aliens in the United States. States and localities may not restrict any “official from sending to, or receiving from, the Immigration and Naturalization Service information regarding the citizenship or immigration status, lawful or unlawful, of any individual.” 8 U.S.C. § 1373(a) (emphasis added). Importantly, Congress wanted states to be able to send information—not just receive it—about an alien’s legal status. This is definitive proof that Congress expected state and local government officers to make inquiries about the legal status of aliens in order to further the congressional objective of enforcing federal immigration laws. In the Senate report accompanying this legislation, Congress once again made clear its intent to encourage states to make their own efforts to assist in immigration enforcement: Effective immigration law enforcement requires a cooperative effort between all levels of government. The acquisition, maintenance, and exchange of immigration-related information by State and local agencies is consistent with, and potentially of considerable assistance to, the Federal regulation of immigration and the achieving of the purposes and objectives of the Immigration and Nationality Act. Sen. Rep. No. 104-249, 104th Cong., 2d Sess. at 19-20 (1996) (emphasis added). It could not be clearer: Ordinance 1722 does not in any way impede the “purposes and objectives of Congress.” De Canas at 363. On the contrary, according to the Senate, it helps fulfill them. Fifth, Congress created the Basic Pilot Program as part of the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA) of 1996, P.L. 104-208, Division C, Section 403(a), 8 U.S.C. §
16

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 17 of 42
1324a. Despite its name, the Basic Pilot Program is no longer basic; nor is it a pilot program. (It has recently been renamed the “Employment Eligibility Verification System.”) It is an internet-based system that any employer in the United States may utilize to verify whether an individual seeking employment is authorized to work in the United States. Congress reauthorized the Basic Pilot Program and expanded it to all fifty states in 2004. As a representative of the U.S. Department of Homeland Security recently testified before Congress, the system is extremely easy to use and fast; in approximately 92 percent of cases, the federal government provides an answer verifying an individual’s work authorization electronically within a few seconds. See DHS Statement to Congress Regarding the Employment Eligibility Verification System, attached as Exhibit C. The Program is now used by more than 16,000 employers across the country. Id. Although Congress has not yet required all employers in the United States to utilize the Program to verify worker authorization, states and localities may require employers to participate in the Program. “Any jurisdiction is free to take advantage of the Basic Pilot Program in order to prevent the illegal employment of aliens not authorized to work here.”1 No provision of federal law bars a jurisdiction from requiring employers to register with and participate in the Basic Pilot Program. Plaintiffs have not, and cannot, identify such a bar in federal law. In any event, Ordinance 1722 does not require any private employer to participate in the Basic Pilot Program. Instead, Valley Park encourages employers within its jurisdiction to do so, by offering them safe harbor under Section 4.B(5) of the ordinance if they verify their new hires with the federal government through the Basic Pilot Program.
Sixth, Congress enacted the Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA) of 1996, relevant provisions of which are codified at 8 U.S.C. §§ 1601-1622. In so doing, Congress required states and localities to begin determining the legal status of aliens seeking public benefits, by verifying the status such aliens with the federal government. Congress declared that an alien who is “not qualified” (i.e., is unlawfully present in the United States) “is not eligible for any State or local public benefits.” 8 U.S.C. § 1621(a). Unqualified aliens, defined at 8 U.S.C. § 1641, are aliens who are
1 Testimony of Jessica M. Vaughan before the State, Veterans & Military Affairs Committee of the Colorado General Assembly, February 21, 2006.
17

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 18 of 42
not lawfully present in the United States (with exceptions made for victims of spousal or parental abuse). Henceforth, all state and local governments were required by federal law to deny public benefits to illegal aliens. Congress defined “public benefit” broadly:
[T]he term “State or local public benefit” means— (A) any grant, contract, loan, professional license, or commercial license provided by
an agency of a State or local government or by appropriated funds of a State or local government; and
(B) any retirement, welfare, health, disability, public or assisted housing, postsecondary education, food assistance, unemployment benefit, or any other similar benefit for which payments or assistance are provided to an individual, household, or family eligibility unit by an agency of a State or local government or by appropriated funds of a State or local government.
8 U.S.C. § 1621(c). Thus, states and localities are not only encouraged to determine the status of aliens seeking such benefits, they are required to do so. Plainly, Congress expected that the federal government would receive millions of inquiries every year from state and local government regarding the legal status of particular aliens. Indeed, Congress effectively demanded that state and local governments make these inquiries, in the process of denying such benefits to unqualified aliens. In light of this federal statutory reality, Plaintiffs’ claim that such inquiries are preempted because “demands … for information regarding an individual’s immigration status would place an undue burden on the federal government” is untenable. Pl. Mtn. for Prelim. Inj., 13. Plaintiffs’ strained theory simply cannot be squared with federal law.
In order to implement these PRWORA provisions, the federal government expanded the Systematic Alien Verification for Entitlements (SAVE) Program, which was originally established in 1987 pursuant to IRCA. The SAVE Program utilizes a massive automated database, allowing state and local government agencies to contact the federal government via internet to determine whether an aliens is lawfully present in the United States. Federal courts have recognized that reliance on such federal verification through SAVE allows a state or local government to act without being preempted. “The benefits denial provisions of Proposition 187 may therefore by implemented without impermissibly regulating immigration if state agencies, in verifying for services and benefits, rely on federal determinations made by the INS and accessible through SAVE.” League of United Latin American
18

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 19 of 42
Citizens v. Wilson, 908 F. Supp. 755, 770 (C.D. Cal. 1995). There are at least 205 participating government agencies across the country that are currently using the SAVE program to verify individuals’ immigration status. DHS Privacy Impact Statement for SAVE, Def. Memo. Resp. to Mtn. for Pre. Inj., Exh. C, at 18.
It is also important to note that among the public benefits denied to unqualified (illegal) aliens in 8 U.S.C. § 1621 is “any … professional license, or commercial license provided by an agency of a State or local government.” Congress expressly required all cities and states to deny business licenses to the unqualified aliens themselves. Congress intended cities and states to prevent unauthorized aliens from owning and operating businesses of their own. This is entirely consistent with a city’s suspension of the business licenses of those businesses entities that are found to have knowingly employing unauthorized aliens and refuse to take action to correct this violation of federal immigration law. Here again, Ordinance 1722 is entirely consistent with congressional objectives.
Seventh, when enacting IIRIRA in 1996 Congress expressly put to rest any notion that it did not welcome state and local efforts to assist with the problem of illegal immigration. In passing 8 U.S.C. § 1357(g), a provision allowing states enter into agreements to deputize specially-trained state officers to exercise the full “function[s] of an immigration officer” of the United States, Congress affirmed that no such agreement was necessary for states to act. States and localities retain unpreempted authority to otherwise assist in immigration enforcement: “Nothing in this subsection shall be construed to require an agreement under this subsection in order for any officer or employee of a State or political subdivision … otherwise to cooperate with the Attorney General in the identification, apprehension, detention, or removal of aliens not lawfully present in the United States.” 8 U.S.C. § 1357(g)(10). Plaintiffs’ broad claim of field preemption cannot be reconciled with this Congressional affirmation that states and cities may identify unauthorized aliens employed in the United States. In sum, these six Congressional actions, along with the undeniable window for local action created by 8 U.S.C. § 1324a(h)(2), constitute overwhelming evidence of congressional intent to facilitate state and local efforts to penalize the employment of unauthorized aliens and otherwise to cooperate with the federal government in the enforcement of immigration laws.
19

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 20 of 42
7. Plaintiffs Have Failed to Show Impossibility of Simultaneous Compliance On March 7, 2007, the Ninth Circuit handed down a decision of significant relevance to this case. In Incalza v. Fendi, the Ninth Circuit held that a California state employment law was preempted by federal immigration law (specifically, the employment provision of 8 U.S.C. § 1324a(a)(2)). Incalza v. Fendi, 479 F.3d 1005. The Court addressed the question of whether a state statute that prohibited employers from firing employees without good cause conflicted with 8 U.S.C. § 1324a(a)(2), which prohibits an employer from continuing to employ a person who has become an unauthorized alien. 479 F. 3d at 1009. The Ninth Circuit explained how high the hurdle is for conflict preemption to occur. “Conflict preemption occurs when either 1) it is not ‘possible to comply with the state law without triggering federal enforcement action,’ or 2) state law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress,’” Id. at 1009-10 (internal citations omitted) (emphasis added). This is a very difficult test for a party bringing a preemption claim to pass. The Incalza Court explained that the existence of potential conflict between the state and federal laws is not enough. Inevitable and unavoidable conflict is required for preemption to occur: Tension between federal and state law is not enough to establish conflict preemption. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984). We find preemption only in “those situations where conflicts will necessarily arise.” Goldstein v. California, 412 U.S. 546, 554 (1973). A “hypothetical conflict is not a sufficient basis for preemption.” Total TV v. Palmer Communications, Inc., 69 F.3d 298, 304 (9th Cir. 1995).
479 F. 3d at 1010. Applying this standard, the Court held that because there was a way to comply with both federal and state law, the preemption claim failed. “It was possible for Fendi to obey federal law in this case without creating a conflict with state law because there were remedies short of discharge that were permissible under federal law.” Id. at 1010. Determining that conflict between the state employment law and federal immigration law concerning the employment of aliens was possible, but not inevitable, the Court concluded: “[I]n this case, California law does not conflict with federal law; it was possible to comply with and satisfy the purposes of both.” Id. at 1013.
20

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 21 of 42
The impossibility-of-simultaneous-compliance standard, set forth by the Supreme Court in Goldstein, 412 U.S. at 554, and Silkwood, 464 U.S. 238, has also been applied recently by the Second Circuit, which would not find preemption unless “compliance with both [the state law] and IRCA is physically impossible.” Affordable Hous. Found., Inc. v. Silva, 469 F.3d at 241 (emphasis added). Only if compliance with both is physically impossible would the “irreconcilable conflict between IRCA and [state law]” exist. Id. at 242. The Court found no such conflict.
The same question must be asked in the case at bar: is it physically possible for the Plaintiffs to comply with both federal law and Ordinance 1722? The answer is plainly yes. By declining to hire unauthorized aliens in the future, Plaintiffs may comply with all of the requirements of 8 U.S.C. § 1324a while also complying with Ordinance 1722. Plaintiffs have not explained how they, specifically, could be placed in a position in which compliance with both federal and local law would be impossible. In addition, Plaintiffs would then have to demonstrate that arriving at that position was inevitable. Indeed, it is difficult to imagine a situation in which a Plaintiff could not possibly comply with both federal law and local law in the case at bar.
8. Plaintiffs Misconstrue Federal Law in Attempting to Find a Conflict with Ordinance 1722
In their Reply Memo, Plaintiffs attempt in vain to find inconsistencies between federal law and Ordinance 1722. In several respects, Plaintiffs have grievously misrepresented federal law. Before explaining these misrepresentations, however, it must be remembered that preemption doctrine does not require a state or locality to mirror federal law in every respect in order to avoid implied preemption. Rather, the test is simply whether the state or local statute “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363. That said, it is worth noting that none of the inconsistencies asserted by Plaintiffs actually exist.
For example, Plaintiffs attempt to find an inconsistency when they claim, with reference to Ordinance 1722’s mechanism “to reverify the worker’s status through the Basic Pilot Program,” that
21

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 22 of 42
“federal law prohibits reverification except under limited circumstances. (8 U.S.C. § 1324b(a)(6).)” Pl. Reply Memo. Supp. Mtn. for Prelim. Inj., 9. Plaintiffs neglect to mention that the statutory section they cite—8 U.S.C. § 1324b(a)(6)—has nothing to do with the Basic Pilot Program. Rather, it is concerned with the documents collected by employers in filling out I-9 forms. “Reverification”—a term referring to subsequent verification by the federal government itself—appears nowhere in the cited section. The text of the federal statute reveals just how brazenly Plaintiffs have distorted the law:
(6) Treatment of certain documentary practices as employment practices A person’s or other entity’s request, for purposes of satisfying the requirements of
section 1324a(b) of this title, for more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine shall be treated as an unfair immigration-related employment practice if made for the purpose or with the intent of discriminating against an individual in violation of paragraph (1). 8 U.S.C. § 1324b(a)(6) (emphasis added). Plainly, this has absolutely nothing to do with the electronic verification process of the Basic Pilot Program. This refers instead to the process established in 1986 by which employers collected and scrutinized documents from prospective employees. In addition, the italicized phrases of the section above illustrate two other respects in which this law is utterly inapplicable to the Basic Pilot Program and Ordinance 1722. First, the section refers to documents that employers might attempt to require employees to offer, above and beyond the documents required by federal law. Ordinance 1722 and the Basic Pilot Program do not require employees to provide any documents whatsoever. Second, the section refers to documentary demands made by employers with the intent to discriminate against employees in the hiring process. That is a far cry from allowing the employee to seek reverification in his own defense. Plaintiffs’ misrepresentation of this section of federal law is disturbing, to say the least. Plaintiffs then offer an argument that is less deceptive, but equally weak. They claim that Ordinance 1722 conflicts with federal law because 8 U.S.C. § 1324a(b)(5) prohibits using the federal I-9 form and information contained in it for purposes other than enforcing certain federal laws. Pl. Reply Memo. Supp. Mtn. for Prelim. Inj., 9. It is certainly true that I-9 forms “may not be used for purposes other than for enforcement of this chapter and [other sections of federal criminal law].” 8 U.S.C. § 1324a(b)(5). But that is entirely irrelevant to the case at bar. Ordinance 1722 does not make any reference to the federal
22

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 23 of 42
I-9 form or use it in any way. Rather, Ordinance 1722 relies entirely on federal verifications using the Basic Pilot Program and the SAVE Program. Those verifications can occur with as little information as simply the employee’s name and date of birth. Presumably, Plaintiffs are not claiming that 8 U.S.C. § 1324a(b)(5) prohibits states and localities from using any employee’s name and date of birth in any enforcement action, simply because that information is also included on the federal I-9 form. If they were, all state and local law enforcement in the country would be preempted under Plaintiffs’ theory.
Finally, Plaintiffs attempt to invent a federal prohibition against a locality requiring the use of the Basic Pilot Program. As noted above, there is no provision of federal law that bars a state or local entity from requiring its own agencies, or private businesses within its jurisdiction, to use the Basic Pilot program. However, Plaintiffs offer the following quotation from an uncodified section of the IIRIRA passed by Congress in 1996: “may not require any person or other entity to participate in a pilot program.” IIRIRA § 401(a), quoted in Pl. Reply Memo. Supp. Mtn. for Prelim Inj., 9. Plaintiffs have taken these words out of context. The smoking gun is in the missing subject. The full sentence reads: “[T]he Secretary of Homeland Security may not require any person or other entity to participate in a pilot program.” IIRIRA § 401(a). This was a federalism-preserving provision inserted in 1996 when the Basic Pilot Program was first created. In the interest of comity, Congress did not allow the Secretary of Homeland Security (in the original text it was “the Attorney General”) to impose such requirements. But state and local authorities were left free to do so.
In any event, it must be reiterated that Ordinance 1722 does not require all business entities to participate in the Basic Pilot Program. Rather, Ordinance 1722 merely encourages business entities to do so, by offering them safe harbor under Section 4.B(5). The only circumstance under which a business entity would be required to participate in the Basic Pilot Program is if the business entity were found to have violated the ordinance by hiring of two or more unauthorized aliens. Participation in the Basic Pilot Program is a condition that would have to be satisfied before the suspension of the business entity’s business permit could be ended. Ordinance 1722, § 4.B(6)(b). This framework perfectly mirrors federal law, which provides that a business entity can be compelled to participate in the Basic Pilot Program as a
23

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 24 of 42
consequence of violating 8 U.S.C. § 1324a. “Application to certain violators. An order under 8 U.S.C. § 1324a(e)(4) or § 1324b(g) may require the subject of the order to participate in, and comply with the terms of, a pilot program with respect to the subject's hiring (or recruitment or referral) of individuals….” IIRIRA § 401(e)(2). In sum, all three attempts by Plaintiffs to manufacture some inconsistency between Ordinance 1722 and federal law fail. And they certainly fall short of establishing that Ordinance 1722 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363. On the contrary, Ordinance 1722 advances the objective of IRCA—namely to “to stop payments of wages to unauthorized workers, which act as a ‘magnet … attract[ing] aliens here illegally,’ and to prevent those workers from taking jobs that would otherwise go to citizens.” Incalza, 479 F.3d at 1011.
B. Plaintiffs’ Equal Protection Argument is Fatally Flawed Plaintiffs Equal Protection Clause challenge is simply a speculative assertion that Ordinance 1722 will cause employers to discriminate against Hispanic workers when hiring new employees. Plaintiffs argue that Ordinance 1722, though facially neutral, will have an unconstitutionally discriminatory impact on such workers in the private hiring process. Pl. Mtn. for Pre. Inj., 15. This challenge is fatally flawed for several reasons, the most important being: Plaintiffs do not have standing to raise this particular claim and their theory lacks state action. These flaws are sufficient to render Plaintiffs’ Equal Protection claim invalid, even if all of Plaintiffs’ factual assertions were true.
1. Plaintiffs Lack Standing to Raise Their Equal Protection Claim To begin with, it must not be forgotten that the Plaintiffs are employers; they are not workers who have been denied a job. Assuming for the sake of argument that private discrimination by other employers in the hiring process were to arise in Valley Park in the future, Plaintiffs would not have standing to challenge this discrimination. Plaintiffs lack standing to challenge an allegedly unconstitutional hiring decision by another employer in which that employer declines to hire a particular worker. The injured party in such a scenario would be the worker—a third party not present in this action. Plaintiff employers
24

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 25 of 42
would not be involved in any way in this hypothetical hiring discrimination by other employers, and they would suffer no injury whatsoever. Plaintiffs are asserting that the Equal Protection rights of the hypothetical workers have been violated—not their own rights. Establishing a judicially cognizable injury to the plaintiff is a core requirement of Article III standing. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “[T]he plaintiff must have suffered an ‘injury in fact’” for standing to exist. Id. at 734. “[T]he ‘injury in fact’ test requires more than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972). Consequently, “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, (1975). See Thompson v. Adams, 268 F.3d 609, 613 (8th Cir. 2001).
Plaintiffs must establish their standing with respect to each and every claim that they bring. “There is much at stake in the task of ensuring 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 (3d Cir. 2003). Although Plaintiffs do have standing to bring their preemption, due process, and state law challenges—because Plaintiffs, as employers, would suffer injury if their claims were valid—they do not have standing to assert an Equal Protection claim on behalf of hypothetical workers whom they speculate might not be hired by other employers.
2. Ordinance 1722 Contains no Suspect Classification and Plainly Survives Minimal Scrutiny
Plaintiffs acknowledge that there are no suspect classifications in Ordinance 1722 that are subject to facial challenge. Pl. Mtn. for Pre. Inj., 15. However, in the event that Plaintiffs attempt to recharacterize their Equal Protection challenge as a facial one, they would fail to establish a constitutional violation. The only classification that exists in the ordinance is a classification based on immigration status. The Supreme Court has expressly rejected the notion that a law that treats illegal aliens differently than U.S. citizens and aliens lawfully present in the United States amounts to a suspect classification:
We reject the claim that “illegal aliens” are a “suspect class.” No case in which we have attempted to define a suspect class … has addressed the status of persons unlawfully in our
25

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 26 of 42
country. Unlike most of the classifications that we have recognized as suspect, entry into this class, by virtue of entry into this country, is the product of voluntary action. Indeed, entry into the class is itself a crime. In addition, it could hardly be suggested that undocumented status is a “constitutional irrelevancy.” Plyler, 457 U.S. at 219, n.19. Thus, Ordinance 1722 need only survive minimal scrutiny. The City must present a “sufficient rational basis” for its policy. Id. at 224. In addition, the City “must demonstrate that the classification is reasonably adapted to ‘the purposes for which the state desires to use it.’” Id. at 226. Clearly, Ordinance 1722 survives minimal scrutiny. The objectives listed in Ordinance 1722, §§ 2.C., 2.E.—reducing crime, reducing the burden on public services, protecting the economic welfare of authorized workers—all constitute a rational basis for the ordinance. Indeed, these goals would even meet the substantial government interest test of intermediate scrutiny. “[R]educing crime is a substantial government interest….” City of L.A. v. Alameda Books, 535 U.S. 425 (2000). Protecting the wages and employment of U.S. citizens and authorized alien workers against unfair competition from unauthorized alien workers is also a legitimate government interest. In addition, it is clear that the means chosen by the City to address the consequences of the unlawful employment of unauthorized aliens in the City are “reasonably adapted to the purposes” of the City. It is plain that deterring employers from hiring unauthorized aliens protects law abiding citizen and authorized alien workers against the loss of their jobs and the depression of their wages caused by competing illegal labor. It is also clear that “crime committed by illegal aliens harms the health, safety and welfare of authorized U.S. workers and legal residents in the City….” Ordinance 1722, § 2.C. Thus, the ordinance is rationally related to the legitimate government objectives that it seeks to promote.
3. The Ordinance Was Not Driven by any Discriminatory Purpose Unable to bring a facial challenge on Equal Protection grounds, Plaintiffs must resort to claiming that Ordinance 1722 has an ethnically discriminatory purpose and impact. However, in order to subject the ordinance to strict scrutiny, they must establish both discriminatory purpose and discriminatory impact. Rogers v. Lodge, 458 U.S. 613, 617 (U.S. 1982). Assuming arguendo that they could show a discriminatory impact at some point in the future, Plaintiffs’ allegation of discriminatory purpose is
26

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 27 of 42
unsustainable. Plaintiffs rest their allegation of discriminatory purpose on a single tabloid article. The article, which may charitably be described as a vulgar “hit piece” on the Mayor of Valley Park, is misleading in numerous respects. However, Plaintiffs compound the misdirection of the article by flagrantly misquoting it. For example, Plaintiffs state that in the article, “the mayor invoked numerous racial stereotypes and epithets.” Pl. Mtn. for Pre. Inj., 16. However, in the article, the Mayor denied having any racial animus, Pl. Mtn. for Pre. Inj., Exh. A, at p. 3, and mentioned epithets only in explaining that he would not use them. Id. at pp. 4-5.
More importantly, Plaintiffs also ignore the fact that the Board of Aldermen must enact any Ordinance in the City of Valley Park. The Mayor is empowered only to sign or veto legislation. However, Plaintiffs do not even allege any discriminatory purpose on the part of the Aldermen who enacted the Ordinance. Thus, because Plaintiffs have not alleged that the legislative body that passed the Ordinance did so with discriminatory intent, their Equal Protection claim contains yet another gaping hole.
Also of significance is the fact that the text of Ordinance 1722 expressly rejects private ethnic discrimination in the filing of complaints. The City took the extra precaution of including an antidiscrimination clause, going well beyond the requirements of the Fourteenth Amendment: “A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance 1722 § 4.B(2). This anti-discrimination clause requires that the City take no action on any complaint reflecting private discrimination, even if the individual subject to the complaint is guilty of violating the ordinance (and violating federal law) by knowingly hiring an unauthorized alien. This is an extraordinary anti-discrimination provision in Ordinance 1722, one that is even more protective than federal law, which allows private complaints but does not screen out those containing racial or ethnic bases. See 8 U.S.C. § 1324a(e)(1). If the Board of Aldermen were intending to encourage ethnic discrimination by private individuals, then they certainly would not have inserted this anti-discrimination provision in the ordinance. No provision of federal or state law required the City to include this provision in the ordinance. The Board of Aldermen did so in order to discourage private discrimination. Thus, the
27

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 28 of 42
inclusion of this anti-discrimination clause demonstrates the absence of any discriminatory motive on the party of elected City leaders.
4. Plaintiffs Cannot Show Discriminatory Impact In order for their Equal Protection Clause claim to be elevated to strict scrutiny, Plaintiffs would not only have to show discriminatory purpose, they would also have to show discriminatory impact. This is difficult because Ordinance 1722 has not yet been enforced against any business entity. And it will not be enforced until December 1, 2007. No complaints have been filed, no investigations have occurred, no verifications of employees’ status with the federal government have taken place, and no penalty has been imposed. Thus, the discriminatory impact that Plaintiffs imagine is based entirely on conjecture— speculation that the enforcement of the Ordinance will somehow cause private employers to engage in antiHispanic discrimination in their mental processes of making hiring decisions. For this reason, it is virtually impossible for Plaintiffs to prevail on a discriminatory impact challenge. Because Plaintiffs rushed to file this lawsuit prior to Ordinance 1722 being enforced against any business entity, they cannot bring a coherent discriminatory impact challenge, because the ordinance has yet to be enforced against anyone. Alternatively, Plaintiffs might simply assert that employers will discriminate against Hispanic individuals when hiring new employees merely because the obligation imposed by Ordinance 1722 is now in effect. In other words, Plaintiffs might claim that such discrimination will soon occur because Ordinance 1722 makes it “unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ” an unauthorized alien. Ordinance 1722 § 4.A. Plaintiffs have already stated that employers “will be forced to try to investigate whether any such workers are ‘unlawful workers,’ even though such verification is not required under federal law….” Pl. Mtn. for Pre. Inj., 18. The problem with this claim is that the legal obligation of Ordinance 1722 is the same as the legal obligation that been in existence for more that two decades under federal law. Since 1986, employers have been prohibited under federal law from hiring unauthorized aliens, 8 U.S.C. § 1324a(a)(1), employers have been compelled to scrutinize documents provided by prospective employees, 8 U.S.C. § 1324a(b)(1), and employers have been forced to retain employees’ I-9 forms. 8 U.S.C. § 1324a(b)(3). Employers face federal criminal
28

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 29 of 42
penalties for knowingly hiring unauthorized aliens, including imprisonment for up to 6 months where a pattern or practice of violations occurs, 8 U.S.C. § 1324a(f)(2), as well as civil fines ranging from $250 to $10,000 per alien, 8 U.S.C. § 1324a(e)(4)(A). If the legal obligation not to hire unauthorized aliens is the catalyst that drives employers to discriminate, under Plaintiffs’ theory, then the catalyst is already in effect.
Plaintiffs also fail to recognize that Ordinance 1722 reduces any private discrimination that may exist in the workplace. As noted above, Ordinance 1722 encourages (but does not require) employers in the City to utilize the Basic Pilot Program. The Basic Pilot Program electronic verification system takes the uncertainty out of the hiring process, providing employers with confirmation from the federal government that a prospective employee is authorized to work in the United States. Once the uncertainty is taken out of the hiring process, employers have less incentive to make discriminatory guesses about a person’s work authorization based on his ethnicity. In other words, such discriminatory “defensive hiring” practices can only exist in a situation of uncertainty. If the employer is given certainty that the federal government verifies the work authorization of the employee, and the employer is further granted safe harbor under Section 4.B(5) of Ordinance 1722, he has every incentive to hire the employee.
Plaintiffs also claim that Ordinance 1722 will promote private discrimination because Section 4.B(1) allows any Valley Park resident or business entity to submit a complaint to the City. Plaintiffs assert that the complaint process will prompt employers to engage in discriminatory hiring practices. Pl. Reply Memo Supp. Mtn. for Prelim. Inj., 16-17. There are two problems with this argument. First, Plaintiffs have not read Ordinance 1722 carefully. Contrary to Plaintiffs’ assertion, the mere submission of a complaint does not mandate City enforcement action. Only if the City determines that the complaint is “valid” does any enforcement action occur. Ordinance 1722 § 4.B(3). In order to be considered valid, a complaint must credibly describe specific, observed or corroborated actions taken by a business entity which constitute a violation of the ordinance. Moreover, the complaint must specify the exact time and date of the actions allegedly constituting a violation of the ordinance. Mere allegation that a business entity is employing unauthorized aliens is not enough. Ordinance 1722 § 4.B(1). Finally, as noted above, Ordinance 1722 contains a blanket anti-discrimination clause: “Any complaint which alleges a violation on
29

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 30 of 42
the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance 1722 § 4.B(2). This is an extraordinary provision. Even if the business entity that is the subject of the complaint is in violation of the ordinance, the City will take no action on such a complaint.2
The second problem with Plaintiffs’ argument is that they are evidently unaware that federal law already contains a complaint process whereby members of the public may report employers who are alleged to be employing unauthorized aliens. Federal immigration law allows “individuals and entities to file written, signed complaints respecting potential violations of subsection (a) or (g)(1) of [8 U.S.C. § 1324a].” 8 U.S.C. § 1324a(e)(1)(A). Like Valley Park’s ordinance, federal immigration law requires “the investigation of those complaints which, on their face, have a substantial probability of validity.” 8 U.S.C. § 1324a(e)(1)(B). And unlike Valley Park’s ordinance, federal law does not contain an anti-discrimination provision that renders complaints invalid if they are based on national origin, ethnicity, or race. Consequently, federal law already contains a public complaint process that is more permissive than that of Ordinance 1722. If the existence of a public complaint process somehow engenders private discrimination by employers, then such discrimination would already exist as a product of federal law.
An additional problem with Plaintiffs’ Equal Protection claim is that there are already adequate provisions in federal immigration law that penalize the kind of discriminatory private hiring decisions that Plaintiffs speculate about. Federal law prohibits any employer from “discriminat[ing] against any individual (other than an unauthorized alien…) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment … because of the individual’s national origin.” 8 U.S.C. § 1324b(a)(1). The same section of federal immigration law created the office of the Special Counsel for
2 In their Reply Memo, Plaintiffs assert an “inevitability that complaints under the Ordinance will be based on perceived national origin, ethnicity, or race.” Pl. Memo Supp. Mtn. for Prelim. Inj., 15. Apparently, Plaintiffs’ hold a rather distorted view of the world—in which racism lies behind every action intended to discourage the employment of unauthorized aliens. Plaintiffs then go so far as to suggest that it would be impossible to conceive of a complaint that was not based on national origin, ethnicity or race. Id. Since Plaintiffs cannot think of one, Defendants are willing to suggest a few. For example, a complaint might come from a customer overhearing a hiring discussion in which the prospective employee states that he does not have the documentation required for filling out an I-9 form, and the employer responds by giving him the name of a person who will furnish a “green card” for $100. Or, to offer another example, a complaint might come from a discharged employee who learns from a former co-worker that the employer knowingly replaced him with an unauthorized alien, based on the co-
30

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 31 of 42
Immigration-Related Unfair Employment Practices within the Department of Justice. The sole responsibility of that office is to investigate complaints of hiring discrimination and related unfair employment practices. 8 U.S.C. §1324b(c). Any person in the United States who believes that he has been the subject of such discrimination may file a charge with the office. 8 U.S.C. § 1324b(b)(1). And even if the office declines to file a complaint in response to the private charge, the individual may himself file a complaint directly with an administrative law judge. 8 U.S.C. § 1324b(d)(2). Any person seeking employment in the City of Valley Park who is subject to the hypothetical discrimination described by Plaintiffs may avail himself of these remedies under federal law.
5. Plaintiffs’ Theory Lacks State Action Assuming that Plaintiffs could somehow overcome all of the problems described above in their discriminatory impact claim, the claim still has a fatal flaw: there is no state action. The Fourteenth Amendment prohibits racial or ethnic discrimination by state actors, not by private individuals. U.S. CONST., Amend. XIV, Section 1. Plaintiffs’ theory of unconstitutional discrimination rests on the independent actions of private individuals. Under such circumstances, no state action exists. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195-96 (2003). Plaintiffs confuse hiring decisions by private individuals with the enforcement actions by the City. City officials are not permitted to consider race, ethnicity, or national origin when they enforce Ordinance 1722. City officials may only consider race/ethnicity/origin-neutral factors when deciding whether a complaint is a valid one that warrants further investigation. As Ordinance 1722 states, “A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.” Ordinance 1722 § 4.B(1). In their Reply Memo, Plaintiffs attempt to resuscitate their Equal Protection claim by suggesting that the hypothetical private discrimination by employers in Valley Park would be “a result of state action.” Pl. Memo. Supp. Mtn. for Prelim. Inj., 18. Although Plaintiffs do not identify it as such, their argument is
worker’s discussion with the alien. If either of these complaints contained sufficient information to render them credible and meet the requirements of Ordinance 1722 §4.B(1), they could be considered valid.
31

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 32 of 42
an attempt to fit within the “state entanglement” exception to the state action requirement. Plaintiffs assert that there is a sufficient nexus between the state, the private actor, and the alleged deprivation to constitute state action. In support of their theory, Plaintiffs only offer a passing reference to Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. 2007). Pl. Memo. Supp. Mtn. for Prelim. Inj., 18. However Plaintiffs decline to offer any quotations from Wickersham. A reading of Wickersham reveals why Plaintiffs decline to discuss it; the case does not support Plaintiffs’ claim. The claim in that case involved First Amendment expressive conduct at an annual air show jointly held by a private organization in cooperation with the City of Columbia on public property. Id. at 593-94. The Court held that the restrictions on expression at the air show were attributable to state action because City officials knew of the restrictions, had an ongoing arrangement with the private organization to maintain the restrictions year after year, and used City police officers to enforce the restrictions. According to the Court, “the city not only provided critical assistance in planning and operating the show, but also played an active role in enforcing the particular speech restrictions challenged in this action.” Id. at 598. As a result, the private organization “and the city were knowingly and pervasively entangled in the enforcement of the challenged speech restrictions.” Id. at 599. Plainly, such pervasive entanglement in which the City cooperates in unconstitutional conduct and uses City resources to enforce the unconstitutional conduct does not exist in the case at bar—even under the most far-fetched hypothetical scenario offered by Plaintiffs. Moreover, it must be remembered that Plaintiffs do not even allege a single, concrete, identifiable incident in which such discrimination has occurred. Defendants are aware of no case law in federal constitutional jurisprudence in which state action was held to exist without any documented instance of the unconstitutional conduct occurring.
Plaintiffs fail to apply relevant the “state entanglement” test of state action case law. The Wickersham Court applied the correct standard:
To ascertain whether there is state action in a case, we examine the record to determine “whether the conduct at issue is ‘fairly attributable’ to the state.” Montano v. Hedgepeth, 120 F.3d 844, 848-849 (8th Cir. 1997) (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, (1982)). We are guided in this inquiry by two additional queries: whether the claimed deprivation “resulted from the exercise of a right or privilege having its source in state authority” and whether the party engaging in the deprivation “may be appropriately
32

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 33 of 42
characterized as [a] state actor[].” See Lugar, 457 U.S. at 939 (internal quotations omitted). 481 F.3d at 597. The second Lugar query was described in full by the Supreme Court as follows: whether the person may characterized as a state actor “because he is a state official, because he has acted together with or has obtained significant aid from state officials, or because his conduct is otherwise chargeable to the state.” 457 U.S. at 937. The two Lugar queries yield very a different answer in the case at bar than they did in Wickersham. No City authority gives employers in Valley Park the right or privilege to discriminate on the basis of race, national origin, or ethnicity. Nothing in Ordinance 1722 can even be remotely characterized as authorizing private discrimination. And private employers cannot be characterized as state officials. There is no cooperative, joint decision making between the City and the private employer when an employee is hired. And City officers do not enforce the employers’ decisions to hire or not to hire. Moreover, Plaintiffs’ state action theory is contradicted by their own arguments. Elsewhere in their memos, Plaintiffs do not paint such a collusive and cooperative picture between the City and employers. According to the Plaintiffs, the provisions of Ordinance 1722 constitute onerous “burdens imposed by the City” on them and other employers. Pl. Mtn. for Prelim. Inj., 18. Plaintiffs contend that they suffer irreparable harm because they “will be forced to try to investigate whether any such workers are ‘unlawful workers.’” Id. Accordingly, Plaintiffs wish to avoid the “expense, vexation and annoyance” caused by Ordinance 1722. That doesn’t sound like the cooperative entanglement and “critical assistance” provided by the City in Wickersham. Without such collaboration between state actors and private actors, Plaintiffs Equal Protection claim lacks the necessary component of state action.
C. Plaintiffs’ Due Process Claim is Meritless In their Amended Petition, Plaintiffs set forth a brief due process claim that is weak on its face. In full, Plaintiffs claim is: “[Ordinance 1722] violates Plaintiffs’ due process rights … in that it subjects the Plaintiffs to being deprived of their business without providing any standards or guidance for compliance.
33

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 34 of 42
Plaintiffs have no way of determining the immigration status of a prospective employee or contractor, and are at risk of violating other laws by attempting to do so.” Pl. Amended Pet. ¶ 29.e.
Three misstatements are immediately apparent in Plaintiffs’ claim. First, Ordinance 1722 provides extensive standards for compliance. The various provisions of Section 4.B provide lengthy guidance to business entities in the event that they are the subject of a complaint. In addition, the provisions of Section 5.B describe options available to a business entity seeking to correct a violation; and Section 5.D. describes judicial remedies available to any business entity that wishes to challenge the enforcement of the ordinance. Second, Plaintiffs again fail to note that current federal law already requires them to determine the immigration status of an employee. 8 U.S.C. §§ 1324a(a), 1324a(b). Third, Plaintiffs do have a way of determining the work authorization of prospective employees. They may scrutinize documents presented by the employee, as they are already required to do by federal law, id.; and they may utilize the Basic Pilot Program, along with more than 18,000 other employers across the country, to verify the work authorization of employees with the federal government over the internet.
The more fundamental problem with Plaintiffs’ due process claim is that Plaintiffs apparently do not recognize what due process requires in the context of an administrative action regarding the potential suspension of a business permit. The fundamental requirement of due process is a meaningful opportunity to be heard that is appropriate to the circumstances. Matthews v. Eldridge, 424 U.S. 319, 333 (U.S. 1976). There is no rigid set of procedural requirements that must be satisfied. Indeed, “[t]he judicial model of an evidentiary hearing is neither required, nor even the most effective, method of decision-making in all circumstances.” Id. at 348. As long as the party subject to the revocation of a license has notice and a meaningful opportunity to be heard, due process is satisfied. Artman v. State Bd. of Registration for the Healing Arts, 918 S.W.2d 247, 251 (Mo. 1996); see also Goldberg v. Kelly, 397 U.S. 254, 268-69, (1970). Ordinance 1722 provides multiple meaningful opportunities to be heard, including judicial evidentiary hearings. In so doing, it goes well beyond the minimum requirements of due process.
First, all business entities within the City of Valley Park are placed on notice at the time of applying for a business permit when they must sign an affidavit stating that they do not knowingly utilize
34

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 35 of 42
the services of or hire any unlawful worker. Ordinance 1722 § 4.A. Any business entity in the City can fully immunize itself against violations of the ordinance by verifying the work authorization of its future employees through the federal government’s Basic Pilot Program. Ordinance 1722 § 4.B(5). This safe harbor provision allows a business owner to ascertain the legal status of any employee through the chosen mechanism established by the federal government. Thus, business entities are given adequate notice of the requirements of the ordinance and are provided an administrative mechanism for ensuring and confirming that they are not violating the ordinance in the future. Ordinance 1722 operates prospectively only, so employment contracts entered into prior to the effective date of the Ordinance cannot provide the basis for enforcement against an employer. Ordinance 1722 § 5.A.
Second, prior to taking any action concerning a possible violation of Ordinance 1722, officials in Valley Park must follow the substantial procedural requirements outlined by the Ordinance. An enforcement action must be initiated by a written, signed, and valid complaint, which must describe the alleged violator, the actions constituting the violation, and the date and location on which the alleged violation occurred. Ordinance 1722 § 4.B(1). A complaint that alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced. Ordinance 1722 § 4.B(2). Upon the determination by the City that a complaint is valid, the business entity is given three business days simply to collect information concerning the employee(s) in question. Ordinance 1722 § 4.B(3). In providing this information to the City, the employer is given an additional opportunity to be heard—by affording him an opportunity to present any information that he relied on when hiring the employee. The City then submits that information to the federal government pursuant to 8 U.S.C. § 1373(c).
Third, upon receipt of a final confirmation from the federal government that an individual is an unauthorized alien, City officials must provide the business entity with written confirmation of the alien’s status. Upon receipt of the document indicating an alien’s unlawful status, the business entity has three business days to correct the violation. Ordinance 1722 § 4.B(4). At this point, the business entity is provided yet another opportunity to be heard. One of the ways that the business entity may correct the violation is by acquiring additional information from the employee, presenting that information to the City,
35

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 36 of 42
and requesting a second or additional verification of the employee’s status with the federal government. Ordinance 1722 § 5.B(2). The employer may present any information he wishes in order to show that he did not knowingly hire an unauthorized alien. During this process of providing additional information to the City and seeking verification by the federal government, the three day period is tolled.
In addition to this due process in the administrative context, Ordinance 1722 provides for extensive judicial process as well. Either a business entity or an employee may challenge the enforcement of the ordinance at any time—including before any penalties are imposed and before any termination of employment takes place—before the Board of Adjustment of the City of Valley Park, Missouri, with all of the procedural protections of that forum, as well as the right of appeal to the St. Louis County Circuit Court. Ordinance 1722 § 7.D. The business entity may seek injunctive relief to prevent the City from enforcing the ordinance against him if he believes that the City has acted in error. If the business entity seeks clarification of the federal government’s determination of his employee’s work authorization status through the Basic Pilot Program, the federal government can provide witness testimony. The Board of Adjustment may also request such testimony. Ordinance 1722 § 5.E.
Finally, it must be noted that Ordinance 1722 provides considerably more process than is due. With respect to business licenses, due process does not require pre-deprivation hearing. A business owner need only be given an opportunity to be heard at a meaningful time and in a meaningful manner following revocation of his business license. Tanasse v. City of St. George, 1999 U.S. App. LEXIS 2389 (10th Cir., February 17, 1999). Thus, Ordinance 1722 goes well beyond the requirements of due process, offering the business entity multiple opportunities to be heard, both pre-deprivation and post-deprivation.
D. Ordinance 1722 Does Not Contravene Missouri Law Regarding Imprisonment and Fines Plaintiffs’ state law claim is expressed in a single sentence in their Amended Petition: “[Ordinance 1722’s] penalty provision exceeds that authorized by Mo.R.Stat. § 79.479.” Pl. Am. Petit. ¶ 29.a. Plaintiffs offer no explanation of this claim in their Amended Petition. Nor did they mention it in their Motion for a
36

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 37 of 42
Preliminary Injunction. Regardless, there is no plausible way to construe R.S.Mo. § 79.479 as a law that bars the enactment of Ordinance 1722.
1. Plaintiffs Misapply R.S.Mo. § 79.479 The first and most obvious problem with Plaintiffs’ claim is that the statute they cite is simply a limit on the amount of fines and the terms of imprisonment that Missouri cities of the fourth class may impose on those who commit offenses. It is not a restriction on what conditions such cities may impose upon the retention of business permits. The text of the statute simply reads: For all ordinance violations the board of aldermen may impose penalties not exceeding a fine of five hundred dollars and costs, or ninety days’ imprisonment, or both the fine and imprisonment. Where the city and state have a penalty for the same offense, the board shall set the same penalty by ordinance as is set by statute, except that imprisonments, when made under city ordinances, may be in the city prison or workhouse instead of the county jail. R.S.Mo. § 79.479. The limitations on penalties and offenses has no bearing upon the authority of cities of the fourth class to issue, suspend, or revoke business permits. Plaintiffs do not offer any case law suggesting that R.S.Mo. § 79.479 may somehow restrict the issuance and suspension of business permits. Nor are Defendants aware of any case law that extends the reach of R.S.Mo. § 79.479 to business permit suspensions. Because Ordinance 1722 does not impose any fines or prison sentences whatsoever, R.S.Mo. § 79.479 is irrelevant to its operation.
2. Ordinance 1722 Falls Within the City’s Licensing Authority Missouri cities of the fourth class have long possessed the authority to issue business licenses to business entities in their jurisdiction, and to use that licensing authority to regulate such business entities. This authority is statutorily recognized in R.S.Mo. § 94.270: “The mayor and board of aldermen shall have power and authority to regulate and to license … merchants of all kinds, grocers, confectioners, restaurants, butchers, taverns, hotels, public boardinghouses … manufacturing and other corporations or institutions … and all other business, trades and avocations whatsoever.” R.S.Mo.§ 94.270. The power to issue such licenses necessarily includes the power to suspend, revoke, or decline to issue such licenses. As the Supreme Court of Missouri recognized long ago:
37

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 38 of 42
[T]he same body which may be vested with the power to grant, or refuse to grant, a license, may also be vested with the power to revoke. The statutes of all the states are full of enactments giving the power to revoke licenses … to the same bodies, boards, or officers who are authorized to issue them…. The constitutionality of such laws, as a valid exercise of the police power, has often been sustained and indeed rarely questioned. Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927). The courts of Missouri continue to adhere to the fundamental principle that a city has the power to revoke a license that it has issued. Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140 (Mo. Ct. App. 2003). Unlawful action by a business entity is a well-established basis for the revocation of a municipal business permit. The courts of Missouri have accordingly recognized a city’s “power to suspend or revoke licenses on final adjudication of violation of city ordinances.” State ex rel. Jimmy's Western Bar-B-Q, Inc. v. Independence, 1975 Mo. App. LEXIS 1800 (Mo. Ct. App. 1975). Thus Valley Park is well within its authority under state law. If Plaintiff’s novel theory were correct, a Missouri city would have the power to issue a license, but not to suspend that license for any period of time once it is issued—because doing so would constitute a punishment not authorized by R.S.Mo. § 79.479. This is plainly an unsupportable theory, because it renders meaningless the city’s express power to license and regulate (and its corollary power to suspend or revoke a license, once issued). A city must possess the authority to stipulate the terms upon which a license is issued, as well as the authority to suspend or revoke the license if those terms are breached. In addition to the express statutory authority for the issuance of business licenses found in R.S.Mo.§ 94.270, Ordinance 1722 also draws authority from the inherent police powers possessed by cities in Missouri. A Missouri city may act within it police powers to protect the general health, safety, or welfare of the public. Businesses may be “reasonably regulated in the interest of the public welfare” by a city using its police powers. McLellan v. Kansas City, 379 S.W.2d 500, 504 (Mo. 1964) Conditions imposed on licensing are also a manifestation of the police powers of a Missouri city. Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927). “[I]n the exercise of its police power, the city could regulate the conduct of the business here involved and could employ licensing as a means for such regulation.” McLellan v. Kansas City, 379 S.W.2d at 505. An ordinance is presumed to be a valid exercise of the police power and the party challenging the ordinance has the burden of showing that it is unreasonable, see Miller v. City of
38

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 39 of 42
Town & Country, 62 SW3d 431, 437 (Mo.App. E.D. 2001), citing Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959). As the Missouri Supreme Court has explained:
[T]he municipal power to regulate by legislation pursuant to the police power is equivalent to State power. The determination of what considerations properly call for the exercise of the police power is primarily a legislative, not a judicial question. [Courts] do not second-guess the judgment of the legislative body as to the wisdom, adequacy, propriety, expediency or policy of the legislative act in question. St. Louis v. Liberman, 547 S.W.2d 452, 457 (Mo. 1977) (citing McClellan v. Kansas City, 379 S.W.2d at 504-05). Plainly, protecting the jobs of U.S. citizens and authorized alien workers against loss to unauthorized aliens, and protecting their wages against depression resulting from the presence of illegal labor are measures that serve the welfare of the public. However, if reasonable minds differ as to whether a particular ordinance bears a substantial relationship to the protection of the general health, safety, or welfare of the public, then the issue must be decided in favor of the ordinance. Lewis v. City of University City, 2004 Mo .App. Lexis 1119. Conditioning the retention of a business permit upon compliance with federal immigration laws governing the employment of unauthorized aliens serves the welfare of legal workers in Valley Park and the interest of all Valley Park residents in preserving the rule of law.
E. Preclusion Doctrines Do Not Apply in this Case Plaintiffs maintain that res judicata precludes Defendant from asserting any defenses in this case with respect to Ordinance 1722, because of the judgment of the Circuit Court of the County of Saint Louis in Reynolds v. Valley Park, 06-CC-3802 (Mar. 12, 2007). The three requirements for such preclusion to apply are: (1) whether the issue decided in the prior adjudication was identical to the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; and (3) whether the party against whom preclusion is asserted was a party in the prior adjudication. Liberty Mut. Ins. Co. v. FAG Bearings Corp., 335 F.3d 752, 758 (8th Cir. 2003). Plaintiffs fail to meet the first requirement. The Reynolds Court did not address any of the federal claims raised by Plaintiffs in the present case. Rather, the Reynolds Court decided the case only on two narrow state law grounds, neither of which is relevant to the present case. See Reynolds, Pl. Memo Supp. Mtn. for Prel. Inj., Exh. D, slip op. at 6-7.
39

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 40 of 42
Moreover, since none of the claims that Plaintiffs included in their Amended Petition were even mentioned by the Reynolds Court, preclusion does not occur.
In addition, Ordinance 1722 differs markedly from the ordinances at issue in Reynolds. As this Court recognized in its May 21, 2007, order, “Although the ordinances are similar, the cases are distinct….” Slip. op. at 1. Indeed, none of the numerous provisions in Section 5 of Ordinance 1722 were present in the earlier ordinances (Ordinance 1708 and 1715). Among other things, Section 5 stipulates that the ordinance applies only prospectively, and describes various actions that an employer may take to correct a violation of the ordinance. Perhaps most importantly, none of the specific provisions in Ordinances 1708 and 1715 that the Reynolds Court found fault with are present in Ordinance 1722. Reynolds, Pl. Memo Supp. Mtn. for Pre. Inj., Exh. D, slip op. at 6-7. Therefore, the factual and statutory scenario is now materially different. Preclusion applies only when there has been “no change in controlling facts or legal principals since the state court action.” U.S. v. Stauffer Chemical Co., 464 U.S. 165, 169 (1984); Montana v. U.S., 440 U.S. 147, 159 (1979). Where an amended ordinance “is different in any presently material respect” from the original ordinance, res judicata does not apply to a subsequent facial challenge. JBK, Inc. v. Kansas City, 641 F. Supp. 893, 900 (D. Mo. 1986).
CONCLUSION For all of the reasons presented above, and because Plaintiffs have not alleged any facts that would cure the defects in Plaintiffs’ legal arguments, Defendant respectfully requests that this Court grant Defendant’s Motion for Summary Judgment, declaring that Ordinance No. 1722 is constitutional and consistent with Missouri law, and denying the injunctive relief sought by Plaintiffs. Due to the complex nature of the federal preemption arguments at issue in this case, ORAL ARGUMENT is REQUESTED.
40

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 41 of 42
Respectfully submitted by /s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu
/s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
/s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org
Attorneys for Defendant
41

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 42 of 42
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 10th day of August, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH
42

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 1 of 7

BILL NO. 1885

ORDINANCE NO. 1736

***************

AN ORDINANCE AMENDING ORDINANCE 1722 AS AMENDED BY ORDINANCES 1724 AND 1732 BY MAKING THE ORDINANCE EFFECTIVE IMMEDIATELY
BUT STAYING THE ENFORCEMENT OF SECTIONS 2, 3, 4, 5 AND 6 AND NOT ACCEPTING COMPLAINTS THEREUNDER UNTIL DECEMBER 1, 2007

***************

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:

Section One

Ordinance 1722, as amended by Ordinance 1724 and Ordinance 1732, is hereby amended by deleting Section Seven therefrom and, in lieu thereof, inserting a new Section Seven so that Ordinance 1722, as amended by Ordinances 1724 and 1732, shall read as follows:

"Section One

Ordinance No. 1715 and sections one, two, three and four of Ordinance No. 1708 are hereby repealed and the following is enacted in lieu thereof:

Section Two

FINDINGS AND DECLARATION OF PURPOSE.

The people of the City of Valley Park find and declare:

A. That state and federal law require that certain conditions be met before a person may be authorized to work in this country.

B. That unlawful workers and illegal aliens, as defined by this Ordinance and state and federal law, do not normally meet such conditions as a matter of law when present in the City of Valley Park.

C. That the unlawful employment of, harboring of, and crimes committed by, illegal aliens harm the health, safety, and welfare of residents of the City of Valley Park. Illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and our residents to substandard quality of care, contributes to other burdens on public services, increasing their costs and diminishing their availability, diminishes our overall qualify of life, and
1

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 2 of 7
endangers the security and safety of the homeland. Employment of unauthorized aliens reduces the wages of, and may result in the unemployment of, U.S. citizens and aliens who are authorized to work in the United States.
D. That the City of Valley Park is authorized to enact ordinances to promote the health, safety, and welfare of its residents and to abate public nuisances, including the nuisance of illegal immigration, by diligently prohibiting the acts and practices that facilitate illegal immigration, in a manner consistent with federal law and the objectives of Congress.
E. This Ordinance seeks to secure to those lawfully present in the United States and this City, whether or not they are citizens of the United States, the right to live in peace free of the threat of crime, to enjoy the public services provided by this City without being burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens, to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the State of Missouri.
F. The City shall not construe this Ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance to any person.
Section Three
DEFINITIONS.
When used in this chapter, the following words, terms and phrases shall have the meanings ascribed to them herein, and shall be construed so as to be consistent with state and federal law, including federal immigration law:
A. “Business entity” means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.
(1) The term business entity shall include, but not be limited to, self-employed individuals, partnerships, corporations, contractors, and subcontractors.
(2) The term business entity shall include any business entity that possesses a business license, any business entity that is exempt by law from obtaining such a business license, and any business entity that is operating unlawfully without such a business license.
2

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 3 of 7
B. “City” means the City of Valley Park, Missouri.
C. “Contractor” means a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include, but not be limited to, a subcontractor, contract employee, or a recruiting or staffing entity.
D. “Illegal Alien” means an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq. The City shall not conclude that a person is an illegal alien unless and until an authorized representative of the City has verified with the federal government, pursuant to United States Code Title 8, subsection 1373(c), that the person is an alien who is not lawfully present in the United States.
E. “Unlawful worker” means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including, but not limited to, a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).
F. “Work” means any job, talk, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including, but not limited to, all activities conducted by business entities.
G. “Basic Pilot Program” means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and operated by the United States Department of Homeland Security (or a successor program established by the federal government.)
Section Four
BUSINESS PERMITS, CONTRACTS, OR GRANTS.
A. It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City. Every business entity that applies for a business license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.
3

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 4 of 7
B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Valley Park Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.
(3) Upon receipt of a valid complaint, the Valley Park Code Enforcement Office shall, within three (3) business days, request identify information from the business entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which fails, within three (3) business days after receipt of the request, to provide such information.
(4) The Valley Park Code Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.
(5) In any case in which the alleged unlawful worker is alleged to be an unauthorized alien, the Valley Park Code Enforcement Office shall not suspend the business license of the business entity if prior to the date of the violation, the business entity had verified the work authorization of the alleged unlawful worker using the Basic Pilot Program.
(6) The suspension shall terminate one (1) business day after a legal representative of the business entity submits, at a City office designated by the City Attorney, a sworn affidavit stating that the business entity has corrected the violation, as described in Section 5.B.
(a) The affidavit shall include a description of the specific measures and actions taken by the business entity to correct the violation, and shall include the name, address and other adequate identifying information of the unlawful workers related to the complaint.
4

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 5 of 7
(b) Where two or more of the unlawful workers are verified by the federal government to be unauthorized aliens, the legal representative of the business entity shall submit to the Valley Park Code Enforcement Office, in addition to the prescribed affidavit, documentation acceptable to the City Attorney which confirms that the business entity has enrolled in and will participate in the Basic Pilot Program for the duration of the validity of the business permit granted to the business entity.
(7) For a second or subsequent violation, the Valley Park Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty (20) days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Valley Park Code Enforcement Office shall reinstate the business permit. The Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. In the case of an unlawful worker disqualified by state law not related to immigration, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.
C. All agencies of the City shall enroll and participate in the Basic Pilot Program.
D. As a condition for the award of any City contract or grant to a business entity for which the value of employment, labor or, personal services shall exceed $10,000, the business entity shall provide documentation confirming its enrollment and participation in the Basic Pilot Program.
Section Five
IMPLEMENTATION AND PROCESS
A. Prospective Application Only. The default presumption with respect to Ordinances of the City of Valley Park – that such Ordinances apply only prospectively – shall pertain to the provisions of this Ordinance, which shall apply only to employment contracts, agreements to perform service or work, and agreements to provide a certain product in exchange for valuable consideration that are entered into or renewed after the date that this Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed.
B. Correction of Violations–Employment of Unlawful Workers. The correction of a violation with respect to the employment of an unlawful worker shall include any of the following actions:
5

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 6 of 7
(1) The business entity terminates the unlawful worker's employment.
(2) The business entity, after acquiring additional information from the worker, requests a secondary or additional verification by the federal government of the worker's authorization, pursuant to the procedures of the Basic Pilot Program. While this verification is pending, the three business day period described in Section 4.B.(4) shall be tolled.
(3) The business entity attempts to terminate the unlawful worker's employment and such termination is challenged in a Court of the State of Missouri. While the business entity pursues the termination of the unlawful worker's employment in such forum, the three business day period described in Section 4.B(4) shall be tolled.
C. Procedure if Verification is Delayed. If the federal government notifies the City of Valley Park that it is unable to verify whether an individual is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any city official attempt to make an independent determination of any alien's legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c).
D. Venue for Judicial Process. Any business entity subject to a complaint and subsequent enforcement under this Ordinance, or any individual employed by or seeking employment with such a business entity who is alleged to be an unlawful worker, may challenge the enforcement of this Ordinance with respect to such entity or individual before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right of appeal to the St. Louis County Circuit Court.
E. Deference to Federal Determinations of Status. The determination of whether an individual is an unauthorized alien shall be made by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). The Board of Adjustment of the City of Valley Park, Missouri, may take judicial notice of any verification of the individual previously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to United States Code Title 8, Subsection 1373(c).
6

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 7 of 7
Section Six
CONSTRUCTION AND SEVERABILITY
A. The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens and aliens.
B. If any parts of or any provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part or such provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.
Section Seven
This Ordinance shall become effective from and after its passage and approval by the Mayor in repealing Ordinances 1708 and 1715, provided that the enforcement of the provisions contained within Sections Two, Three, Four, Five and Six shall be stayed and no complaints thereunder shall be accepted by the City of Valley Park until December 1, 2007."
Section Two
This Ordinance shall become effective from and after its passage and approval by the Mayor.
PASSED this ______ day of _______________, 2007.
APPROVED this ______ day of _______________, 2007.

ATTEST:
MARGUERITE WILBURN City Clerk

JEFFERY J. WHITTEAKER, MAYOR

7

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 1 of 9

CR2006-005932-003 DT

06/09/2006

HONORABLE THOMAS W. O'TOOLE
STATE OF ARIZONA v. CUPERTINO H SALAZAR (003)

CLERK OF THE COURT G. Nevitt Deputy
FILED:_____________________
VICKI L KRATOVIL SETH W PETERSON SALLY WOLFGANG WELLS
TIMOTHY J AGAN
VICTIM SERVICES DIV-CA-CCC PETER SCHEY CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 S OCCIDENTAL BLVD LOS ANGELES CA 90057 CARLOS HOLQUIN CENTER FOR HUMAN RIGHTS AND CONSTITUTIONAL LAW 256 S OCCIDENTAL BLVD LOS ANGELES CA 90057

RULING
The following Motions have been under advisement following oral argument on 05/23/2006:
Defendant Evangelina Espinoza’s Motion to Dismiss for Lack of Jurisdiction and Motion to Dismiss For Lack Of Venue;
Defendant Cupertino H. Salazar’s Motion to Remand/Dismiss, Motion to Dismiss and Motion to Dismiss (Federal Preemption)

Docket Code 019

Form R000A

Page 1

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 2 of 9

CR2006-005932-003 DT

06/09/2006

Defendant Jose Carreto’s Motion to Sever and Motion to Dismiss for Incurable and Ongoing Violations of Constitutional Rights1
BACKGROUND

The Defendants seek dismissal of Count 1 of the Indictment, which charges 48 of the 49 defendants with Conspiracy To Commit Smuggling, in violation of A.R.S. §13-1003 and §13-2319.2 In essence, they claim that the conspiracy charge must be dismissed because 1) this Court lacks jurisdiction and venue; 2) based on Wharton’s Rule and Arizona case law, it is legally impossible to conspire to commit human smuggling or be an accomplice thereto when the objective of the conspiracy is to smuggle themselves; 3) legislative history concerning the human smuggling statute, A.R.S. §13-2319, shows that it was intended to prosecute only the smuggler, not the illegal aliens being smuggled; and 4) state prosecution of conspiracy to commit human smuggling is preempted by the federal constitution, statutes and case law. For reasons outlined below,
IT IS ORDERED denying all of these claims. 3
JURISDICTION AND VENUE CLAIMS
The Court finds that the indictment properly alleges jurisdiction and venue in Maricopa County, Arizona. A reading of Count 1 and the statutes cited therein shows that probable cause has been found that the Defendants are illegal aliens who conspired to engage in the crime of human smuggling amongst themselves and with others, that they crossed the Mexican-American border into Arizona, that they were transported by another smuggler, and committed at least part of the

1 This motion to dismiss is moot because defense counsel has talked to her client. 2 In Count 1, the State alleges that on or between February 27, 2006 and March 2, 2006, with the intent to promote or aid in the commission of the offense of human smuggling, a violation of A.R.S. §13-2319, the 48 named defendants agreed with one or more persons that at least one of them or another would engage in conduct that constituted the offense of human smuggling, in violation of A.R.S. §13-2319, and that one or more persons committed the following overt act(s); each named defendant individually crossed the United States-Mexican border and was physically present in Maricopa County, Arizona on March 2, 2006, in violation of A.R.S. §13-1003 (conspiracy), A.R.S. §13-2319 (human smuggling), and other cited statutes. In Count 2, the State alleges that Javier Ruiz, Defendant 49, smuggled the 48 illegal aliens named as defendants in Count 1. 3 Defendants in other similar cases have joined in these motions to dismiss. Separate minute orders will be issued as to these defendants.

Docket Code 019

Form R000A

Page 2

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 3 of 9

CR2006-005932-003 DT

06/09/2006

conspiracy and one overt act in Maricopa County. Assuming arguendo that a substantial part of the conspiracy occurred in Mexico, the ongoing nature of the conspiratorial conduct, including the commission of the overt act(s) in Arizona and in Maricopa County is sufficient to confer jurisdiction and venue in Maricopa County, as defined by the controlling jurisdiction and venue statutes, A.R.S. §13108(A)(1) & (2) and A.R.S. §13-109. See State v. Willoughby, 181 Ariz. 530, 535540 (1995) and State v. Flores, 195 Ariz. 199, 205-206 (App. 1999) where on similar facts the court of appeals held that because essential elements of the conspiratorial and criminal conduct occurred in both Mexico and Arizona, as well as in different counties, jurisdiction and venue in Arizona and in counties where the criminal conduct occurred was proper. However, should jurisdiction become a fact issue at trial, the State will be required to prove jurisdiction beyond a reasonable doubt to a jury. State v. Willoughby, 181 Ariz. at 539-540.
DISMISSAL CLAIMS
The Court finds that the Defendants may be prosecuted for conspiracy to smuggle themselves, a violation of the conspiracy and human smuggling statutes, A.R.S. §13-1003(A) and §13-2319. To prove this conspiracy the state must prove that one or more of the Defendants, with the intent to promote or aid in the commission of human smuggling, agreed with one or more other persons that at least one of them or another person would engage in the smuggling of illegal aliens for profit or commercial purpose by providing them transportation or procuring transportation knowing or having reason to know that the persons are illegal aliens not lawfully in Arizona. Given the circumstances alleged, the State will also be required to prove that the Defendant and other illegal alien co-defendants supplied themselves as human cargo to be smuggled.4
Wharton’s Rule, relied on by the defendants as grounds to dismiss the conspiracy charge, is a long recognized rule of statutory construction that bars prosecution for conspiracy and the underlying substantive offense. It applies only in very limited fact situations where there is a necessary congruence of the agreement and the completed substantive offense, e.g., adultery, incest, bigamy and dueling. See U.S. v. Iannelli, 420 U.S. 770, 779-782(1975), where, after a

4 The sufficiency of the evidence to prove this highly unusual conspiracy allegation is not an issue before the Court

at this time.

Docket Code 019

Form R000A

Page 3

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 4 of 9

CR2006-005932-003 DT

06/09/2006

detailed discussion of the rule, the U.S. Supreme Court held that the defendants were properly convicted of conspiracy to violate the federal anti-gambling statute and of violating the statute, as they were separate offenses and that this rule of merger did not apply.

In State v. Chitwood, 73 Ariz. 161, 166(1952) the Arizona Supreme Court applied the rule and described it as follows:

“The law is that where the agreement is to commit an offense which can only be committed by the concerted action of the two persons to the agreement, such agreement does not amount to a conspiracy.” (Emphasis added).

The Court explained that this constitutes a merger of offenses, which precludes conviction for both conspiracy and the substantive offense. The Court explained, however, that the rule does not apply when the conspiracy involves more than two people:

“Likewise, if the alleged conspiracy is not between the immediate participants in the offense, but between one or more such participants and a third party or parties, the theory of the rule would render it inapplicable, even though the substantive offense is one which requires concerted action.” 73 Ariz. at 166.

As in Chitwood, the rule does not apply to the facts of this case. Here each of the 48 defendants could be found guilty of a conspiracy to commit human smuggling, while not being exposed to criminal liability for the substantive offense of human smuggling, even though they are the illegal aliens being smuggled.

In Iannelli, 420 U.S. at 780-782, the Court discussed the application of the rule in its earlier decision, U.S. v. Holte, 236 U.S. 140(1915). In Holte, the Defendant was charged with conspiracy to violate the Mann Act, which criminalized the interstate transportation of a female for purposes of prostitution. In rejecting the Defendant’s claim that Wharton’s Rule prevented charging and convicting her with conspiracy to violate the Mann Act when she was the person being transported in interstate commerce, the Court held that rule applied only

Docket Code 019

Form R000A

Page 4

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 5 of 9

CR2006-005932-003 DT

06/09/2006

when it was impossible for the transported woman to be guilty of conspiracy regardless of the facts of the case. The Court cited many factual scenarios, including conspiring with a third person to commit the crime, where the transported woman could also be prosecuted and found guilty of conspiracy to violate the Mann Act. Id. at 144-145. Here, as in Holte, Wharton’s Rule doesn’t apply. Proof that the defendants committed the crime of conspiracy to commit human smuggling, including smuggling themselves, does not necessarily require proof that the same defendants committed the substantive offense of human smuggling for profit or commercial purpose and vice versa.

The Defendant’s claim that the conspiracy charge must be also dismissed because it is factually analogous to State v. Cota, 191 Ariz. 380 (1998), which held that a person cannot sell or transfer drugs to himself or be an accomplice in a sale to himself, also fails. Unlike the facts in Cota and cases cited therein, here a Defendant can supply himself and others as cargo for the human smuggling venture while at the same time conspiring to engage in such activity for profit or commercial purpose. Again, neither Cota nor Wharton’s Rule applies when the charged conspiracy involves more conspirators than are required to commit the underlying offense of human smuggling. Iannelli, 420 U.S. at 782, n. 15.

The Defendant’s related claim that he cannot be subjected to criminal liability as an accomplice pursuant to A.R.S. §13-301 et seq., must also fail. Conspiracy and accomplice liability are separate and distinct rules of criminal liability. See A.R.S §13-1003(A) and (B), which provides for conspiracy liability for a wide variety of conduct, including the unknown acts of third party coconspirators. Here the defendants are only charged with conspiracy, not the underlying substantive offense of human smuggling, so accomplice liability is not relevant. Although a person charged with both conspiracy and the substantive offense can be found guilty of the underlying substantive offense either as a principle or an accomplice, he cannot be found guilty as an accomplice to the conspiracy. State ex rel. Woods v. Cohen, 173 Ariz. 497, 498-501(1993).

The Defendants are also incorrect in claiming that the plain language of A.R.S. §13-2319 and its legislative history do not allow the smuggled aliens to also be held liable for conspiracy to commit alien smuggling. The purpose of A.R.S. §13-2319 is clear and unambiguous, and there is no evidence from the legislative

Docket Code 019

Form R000A

Page 5

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 6 of 9

CR2006-005932-003 DT

06/09/2006

history that the legislature intended to exclude any prosecution for conspiracy to commit human smuggling. A fair reading of the conspiracy statute and other statutes of the Arizona criminal code establishes that the legislature has authorized prosecution for the crime of conspiracy to commit various substantive offenses. See State v. Rodriguez, 205 Ariz. 392, 396(App. 2003) (In statutory interpretation the Court will employ a common sense approach, interpreting the statute by reference to its stated purpose and the system of related statutes of which it forms a part.) Pursuant to A.R.S. §13-1003, a person may be guilty of conspiracy if, with the intent to promote or aid in the commission of another offense, the person agrees with one or more persons that at least one of them or another person will engage in conduct constituting that offense and then one of them commits an overt act in furtherance of that offense. Thus, unless it explicitly foreclosed such prosecution, the Court must presume that when the legislature enacted A.R.S. §132319, it knew and intended that a person could be prosecuted for both conspiracy to commit human smuggling and human smuggling. Iannelli, 420 U.S. at 789.

FEDERAL PREEMPTION

IT IS ORDERED denying the claim that Count 1 must be dismissed because the Arizona human smuggling statute, A.R.S. §13-2319, as applied herein or on its face violates the Supremacy Clause of the U.S. Constitution and is preempted by federal law. In particular, citing De Canas v. Bica, 424 U.S. 351(1956), Hines v. Davidowitz, 312 U.S. 52(1941) and other preemption cases, the Defendants claim that preemption exists because 1) this prosecution is an invasion of the exclusive power of the federal government to regulate immigration; 2) it injects the State into a field fully occupied by federal immigration laws; and 3) it irreconcilably conflicts with and is an obstacle to the full and proper enforcement of federal immigration laws. De Canas, 424 U.S. at 354-363. These issues are addressed below.

BURDEN OF PROOF

There is a strong presumption against federal preemption of state law. “In

all preemption cases…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 a clear

and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470,

485(1996) (citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). In

Docket Code 019

Form R000A

Page 6

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 7 of 9

CR2006-005932-003 DT

06/09/2006

addition, for this Court to declare A.R.S. §13-2319 or any other statute unconstitutional, the Defendant must establish beyond a reasonable doubt that the statute is in conflict with the federal or state constitutions. State ex rel. Thomas v. Foreman, 211 Ariz. 153, 156 (App. 2005). In other words, “Congress’ intent to supercede or exclude state action is not lightly inferred. The intent to do so must definitely and clearly appear.” State v. McMurry, 184 Ariz. 447, 449 (App. 1995) (Citations omitted) (State prosecution and conviction for forgery based on possession of counterfeit U.S. currency is not preempted by comparable federal counterfeiting statutes).
PREEMPTION CLAIMS
Factually similar cases have rejected the claim that comparable federal law preempts laws like A.R.S. §13-2319. In 1976, in De Canas v. Bica, supra, the Supreme Court held that a California statute and regulations penalizing employers for employing illegal aliens was not preempted by the exclusive federal power to regulate immigration and comparable federal immigration laws. In explaining the interrelationship between the exclusive federal power to regulate immigration and the exercise of concurrent state power over certain immigration matters, the Court said that it “…has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power, whether latent or exercised.” 424 U.S. at 355. In rejecting the claim that comparable federal immigration laws preempted California from exercising its power to penalize state employers who knowingly employ illegal aliens, the Court stated,
“Only a demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was “‘the clear and manifest purpose of Congress’” would justify that conclusion.” Id. at 357 (citations omitted). 5
The Court also reiterated that States have broad authority under their power to enact statutes and regulations concerning illegal immigration as long

5 Subsequently, in reaction to the De Canas decision, Congress amended 8 U.S.C. § 1324a(h)(2), to expressly

preempt state civil and criminal sanctioning of employers who hire illegal aliens.

Docket Code 019

Form R000A

Page 7

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 8 of 9

CR2006-005932-003 DT

06/09/2006

there is no manifest intent of Congress to “occupy the field” and they do not burden or conflict in any matter with federal laws and treaties. Id. at 358.

Applying De Canas and other relevant preemption cases, it is clear that Arizona has not been preempted from enacting and enforcing the human smuggling statute, ARS §13-2319. As is evident from the legislative history leading up to its passage and signing by the Governor in 2005, it was determined that the problem of smuggling and transporting illegal aliens for profit in Arizona directly impacted the safety and welfare of the citizens of the state. Thus, the statute was enacted.6

Subsequent to De Canas, other courts have rejected claims that federal immigration smuggling laws preempt state authority to regulate immigration. In Gonzales v. City of Peoria, 722 F. 2nd 468 (9th Cir. 1983), the Ninth Circuit determined that the criminal provisions of the Federal Immigration and Naturalization Act (INA), 8 U.S.C. 1324, 1325 and 1326, were not so pervasive as to preempt state action whereby local police arrested illegal aliens for violating federal immigration laws. The Court noted that the federal laws regulating criminal activity by illegal aliens was limited in nature and insufficient to support the inference that the federal government had fully occupied the field of criminal immigration enforcement. Id. at 475.7 More recently, other federal circuits have reached this same conclusion. See discussion and cases cited in U.S. v. SantanaGarcia, 264 F 3rd 1188, 1194(10th Cir. 2001). Also, in an analogous circumstance, in State v. McMurry, supra, the Court said that while the federal government has primary jurisdiction over prosecution of crimes related to counterfeiting, the federal statutes do not wholly occupy the field and the state has concurrent jurisdiction to prosecute counterfeiting crimes to protect its citizens from fraud. Id. at 449-450.

The Defendant has also failed to show that A.R.S. §13-2319 stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress’ exclusive authority over immigration and is therefore preempted by federal legislation. Instead, a fair reading of the legislative history, as well as the

6 The debate recognized that both the federal and state governments have a mutual interest in addressing the

smuggling and transportation of illegal aliens at the border and within the state. 7 In 1983, Arizona had not yet criminalized the smuggling of illegal aliens so no state prosecution could follow the

arrests.

Docket Code 019

Form R000A

Page 8

Case 43:076-cv-00185816-EJMRWM Document 6514 Filed 1028/0110/20067
SUPERIOR COURT OF ARIZONA MARICOPA COUNTY

Page 9 of 9

CR2006-005932-003 DT

06/09/2006

interaction of A.R.S. §13-2319 and equivalent provisions of the federal criminal code, 8 U.S.C. §1324 et seq., shows that concurrent state and federal enforcement of illegal alien smuggling and conspiracy to smuggle illegal alien laws serves both federal and state law enforcement purposes and is highly compatible. In fact, concurrent enforcement enhances rather than impairs federal enforcement objectives. Thus, because federal and State enforcement have compatible purposes, and Congress has not expressly preempted state prosecution of such conduct, preemption does not exist. Gonzales v. City of Peoria, 722 F 2nd at 474.
In conclusion, the defendants have failed to carry their heavy burden of showing that the U.S. Constitution and federal immigration laws have preempted Arizona and other states from passing and enforcing laws such as A.R.S. §132319. In addition, the claim that this conspiracy to commit human smuggling prosecution violates the intent of the legislature is incorrect and cannot be resolved judicially. Legislative action, either federal or state, or both, is the proper way to address the issues raised by the Defendants.
SEVERANCE
IT IS ORDERED denying Defendant Carretto’s Motion to Sever. At the direction of the court, the State has severed the trial of the 49 co-defendants into small group trials of no more than five defendants each. A joint trial of the defendants is now proper and likely free of any prejudice. In addition, as it does in any conspiracy trial, the court will carefully instruct the jury on what the law requires proving a conspiracy and membership therein, and that they are to consider the evidence against each defendant separately. However, if during any of the small joint trials a defendant suffers unfair prejudice due to such factors as a gross disparity in the evidence, the “rub-off effect” from evidence introduced only against another co-defendant, presentation of antagonistic defenses, significant disparity in evidence presented against various defendants, the court will address the prejudice by giving limiting or curative jury instructions. State v. Grannis, 183 Ariz. 52, 58(1995)(citations omitted). Finally, the court will sever the defendant’s trial from that of some or all co-defendants if it becomes evident that such is “necessary to promote a fair determination of guilt or innocence of any defendant…” Rule 13.4(a), Rules of Criminal Procedure.

Docket Code 019

Form R000A

Page 9

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 1 of 7
STATEMENT OF
JOCK SCHARFEN
DEPUTY DIRECTOR
U.S. CITIZENSHIP AND IMMIGRATION SERVICES U.S. DEPARTMENT OF HOMELAND SECURITY REGARDING A HEARING ON “Problems in the Current Employment Verification and Worksite Enforcement System”
BEFORE THE
HOUSE JUDICIARY SUBCOMMITTEE ON IMMIGRATION
April 24, 2007 11:00 AM
2226 Rayburn House Office Building

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 2 of 7
I. Introduction
I am grateful for this opportunity before the Subcommittee to discuss the Employment Eligibility Verification (EEV) Program administered by United States Citizenship and Immigration Services (USCIS). Previously known as the Basic Pilot Program, this unique program provides employment eligibility information on newly hired employees to more than 16,000 participating American employers.
Any company anywhere in America can try the Employment Eligibility Verification System (EEVS) and use it for free over an easy-to-use government website. Currently, over 92% of queries from employers receive an instantaneous employment authorized response within three seconds. EEVS is a valuable tool that helps employers comply with immigration law while also strengthening worksite enforcement. In FY 2007, USCIS has been making progress to further improve and expand the program.
In his speech at the U.S.-Mexico border in Yuma, Arizona, President Bush laid out five elements of a comprehensive immigration policy. One of these elements is the need to hold employers accountable for the workers they hire. The President emphasized that an accurate and secure Employment Eligibility Verification Program is a critical component of efforts to comprehensively reform our immigration laws. Today, USCIS is actively taking steps to improve the overall performance of the system, add new capabilities, and continuing to simplify the process for employers.
II. The Current Employment Eligibility Verification Program
USCIS received $114 million in FY2007 for the expansion and improvement of EEVS to better support an increasing amount of employers who are choosing to electronically verify the employment eligibility of workers.
In FY2007, USCIS continues to improve the Employment Eligibility Verification Program by:
 Improving our ability to help identify instances of document fraud and identity theft by pilot-testing a photo screening tool.
 Reducing the percentage rate of Department of Homeland Security (DHS) and Social Security Administration (SSA) mismatches by incorporating additional data sources on immigrants and nonimmigrants into the program and implementing a new capability to query by DHS card number.
 Streamlining the enrollment process for employers by making it completely electronic.
 Beginning to monitor EEVS data for patterns to detect identification fraud, verification-related discrimination, and employer misuse of the program.
1

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 3 of 7
 Conducting outreach with effective force multipliers such as human resource and employer associations to educate employers about the program.
USCIS is also improving the program in many other ways, including updating training materials, creating more user-friendly web pages, providing better customer support, and exploring additional query access methods that could be used by employers who do not have web access. We are also continuing to conduct independent evaluations to provide additional input for improving the program.
Additionally, USCIS and ICE are working collaboratively on worksite enforcement and all employers enrolled in the ICE Mutual Agreement between Government and Employers (IMAGE) are required to participate in the EEV Program. IMAGE is a joint government and private sector voluntary initiative designed to build cooperative relationships that strengthen overall hiring practices.
III. History of the Basic Pilot Program
With that brief overview of the accomplishments we’ve made so far in FY2007, I’d like to take this opportunity to outline the history of the Basic Pilot, how it works, and how USCIS plans to expand and improve the program.
Congress established the Basic Pilot as part of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), creating a program for verifying the employment eligibility, at no charge to the employer, of both U.S. citizens and noncitizens. The Basic Pilot program began in 1997 as a voluntary program for employers in the five states with the largest immigrant populations -- California, Florida, Illinois, New York, and Texas. In 1999, based on the needs of the meat-packing industry as identified through a cooperative program called Operation Vanguard, Nebraska was added to the list. Basic Pilot was originally set to sunset in 2001, but Congress has twice extended it, most recently in 2003, extending its duration to 2008 and also ordering that it be made available in all 50 States. Although only a small percentage of U.S. employers participate, we have seen a large increase in users over the last two years. In 2006, the number of employers doubled. This year the program is growing by over 1,000 employers every month. We project that the 16,000 participating employers will verify over 3 million new hires this fiscal year at more than 71,000 work sites. Chairwoman Lofgren, California has 2,104 participating employers in the program, representing 12,174 sites. In the state of Iowa, Ranking Member King, there are 148 participating employers, representing 659 sites.
IV. How the Employment Eligibility Verification Program Works
After hiring a new employee, an employer takes information from the Form I-9 (Employment Eligibility Verification form) and submits a query, including the employee’s name, date of birth, Social Security number (SSN), and whether the person claims to be a U.S. citizen, lawful permanent resident, or other work-authorized noncitizen. For noncitizens, a DHS issued identifying number is also submitted. Within seconds, the employer receives an initial verification response.
2

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 4 of 7
For an employee claiming to be a U.S. citizen, the system transmits the new hire’s SSN, name, and date of birth to SSA to match that data, and SSA will confirm citizenship status on the basis of its NUMIDENT database. For those employees whose status can be immediately verified electronically, the process terminates here; in the remaining minority of cases, the system issues a tentative nonconfirmation to the employer.
The employer must notify the employee of the tentative nonconfirmation and give the employee the opportunity to contest that finding. If the employee contests the tentative nonconfirmation, he or she has eight business days to visit an SSA office with the required documents to correct the SSA record. The employee must be allowed to keep working while the case is being resolved with SSA and cannot be fired or have any other employment-related action taken because of the tentative nonconfirmation.
When a noncitizen’s SSN information does not match in the NUMIDENT database, the individual is referred to a local SSA field office to resolve the mismatch. If information does match with SSA or the issue is resolved, then a noncitizen employee’s name, date of birth, DHS ID number, and work authorization is matched against a USCIS database. If the system cannot electronically verify the information, the system automatically forwards the information to a USCIS Immigration Status Verifier who researches the case and usually provides an electronic response within one business day, either verifying work authorization or issuing a DHS tentative nonconfirmation.
If the employer receives a tentative nonconfirmation, the employer must notify the employee and provide an opportunity to contest that finding. An employee has eight business days to call a toll-free number to contest the finding and cannot be fired or have any other adverse employment-related action taken during that time because of the tentative nonconfirmation. Once the necessary information from the employee has been received, usually by phone or fax, USCIS generally resolves the case within three business days, by issuing either a verification of the employee’s work authorization status or a DHS final nonconfirmation.
V. Program Improvements
As previously noted, in FY2007, the program received $114 million in appropriations which is being used to expand and improve the EEV through the incorporation of improved data sources into the program, launching initiatives to help combat identity fraud, streamlining employer registration, working with SSA to address mismatch issues, and beginning to monitor system usage. A recent independent evaluation revealed that in 2006, nearly 92% of initial queries were found to be employment-authorized instantaneously.
A June 2006 study by the Government Accountability Office (GAO) stated that Basic Pilot, “shows promise to enhance the current employment verification process, help reduce document fraud, and assist ICE in better targeting its worksite enforcement efforts.” However, the GAO report also identified a number of weaknesses including Basic Pilot’s inability to detect identity fraud and delays within DHS to timely update
3

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 5 of 7
information. This report, along with feedback from employers, has been helpful in targeting our improvements to EEVS. We are directly addressing these issues and others as part of our effort to improve the performance of EEVS.
Photo Tool Incorporation
In March 2007, USCIS began testing a pilot program to enhance the EEV system by allowing an employer to make a query using the new hire’s USCIS-issued card number, when that worker uses a secure I-551 (“green card”) or secure Employment Authorization Document, both of which include photographs of card recipients. When available, the system displays the photo that DHS has on file for the given card number, allowing the employer to make a visual match of identical photos. This prevents employees from successfully using a fraudulent or photo-substituted document for verification purposes. The initiative is currently being tested by 40 participating employers in the program and is expected to be expanded to all EEV employers this summer. To date, over 200 queries have been processed using this new tool.
The current EEV system is not fraud-proof and was not designed to detect identity fraud. However, the photo tool functionality helps detect identity fraud from a fraudulent document or photo-substituted card because the system-issued photo should be the identical photo shown on the document presented to the employer. Employers noticing any variation between the photo in the system to the photo on the card presented to them are instructed by the system to issue a DHS tentative nonconfirmation and send the case to DHS for further review. In this test phase, we have already encountered a case where an employer detected a fraudulent green card presented by a new hire.
Additional Data Sources
USCIS has also been working to decrease DHS and SSA data mismatches (for example, changes in immigration status or name changes that are not reflected in SSA’s database) in the program by incorporating additional data sources into the EEV program. Evaluation of the program reveals that less than one percent of initial system nonconfirmation responses are a result of data mismatches in DHS systems. Earlier this year, the Verification Division incorporated two important data sources into the system: the Custom and Border Protection’s real-time arrival and departure information for nonimmigrants, and USCIS information about immigrants who have had their status adjusted or extended. Although these data sources have been available for only a short time, they appear to be increasing the number of cases verified instantaneously.
As mentioned earlier, data mismatches found to exist within the SSA’s NUMIDENT database require a contesting employee to visit an SSA office with the required documents to correct their SSA record. Many of the individuals receiving SSA tentative nonconfirmations include naturalized citizens whose citizenship data have not been updated in the NUMIDENT database. To address these issues, DHS and SSA are working to develop a streamlined, automated process to reduce the need for individuals to visit SSA offices.
4

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 6 of 7
Automated Registration
Earlier this year, USCIS simplified and completely automated the EEV registration process for interested employers voluntarily choosing to sign up to use the program. This significant programmatic improvement decreases the time burden on employers desiring to participate in EEV and positions the program well for timely registration of all seven million U.S. employers if the program becomes mandatory.
Monitoring & Compliance
No electronic verification system is foolproof or can fully eliminate document fraud, identity theft, or intentional violation of the required procedures. Likewise, no system can fully prevent employers from intentionally circumventing the law by hiring or continuing to employ unauthorized persons. USCIS is developing a monitoring and compliance unit to help detect unauthorized employment, to prevent verification-related discrimination or employer misuse of the program, and to detect identity and document fraud.
The new USCIS unit will monitor employers’ use of the system and conduct trend analysis to detect potential fraud and discrimination. Findings that are not likely to lead to enforcement action (e.g., a user has not completed training) will be referred to USCIS compliance officers for follow-up. Findings concerning potential fraud (e.g., SSNs being run multiple times in improbable patterns; employers not indicating what action they took after receiving a final nonconfirmation) may be referred to ICE worksite enforcement investigators. A memorandum of understanding (MOU) with ICE will be developed to implement this process.
With the ability to of the Employment Eligibility Verification Program to help identity fraud and system misuse, it is also important that the system contain security and other protections to guard personal information from inappropriate disclosure or use and to discourage use of the system to discriminate unlawfully or otherwise violate the civil rights of U.S. citizens or work-authorized noncitizens.
VI. Conclusion – The Future of an EEV
An accurate and secure Employment Eligibility Verification Program is a critical component of efforts to improve worksite enforcement. Better worksite enforcement is a key component of any proposal to create a Temporary Worker Program (TWP). The success of a TWP will be essential in reducing the pressure on our border. A secure border will allow us to free up much needed resources, enforce our laws, and protect our homeland against foreign threats. It’s all connected. Each link in this chain is critical to its overall integrity. This is why we must take a comprehensive approach to reforming our immigration laws.
Legislative proposals phasing in an EEV program recognize the challenges of implementing a mandatory national system and seek to minimize the burdens placed on employers. A gradual approach to mandatory verification could be based either on
5

Case 4:07-cv-00881-ERW Document 54 Filed 08/10/2007 Page 7 of 7
employer size or by industry, starting with the most vulnerable critical infrastructure sectors, to first help ensure homeland security. We favor having the discretion to phase in certain industry employers ahead of others, as a phased-in implementation schedule on a carefully drawn timeframe will allow employers to begin using the system in an orderly and efficient way. USCIS is also committed to constructing a system that responds quickly and accurately. In order for this system to work, it must be carefully implemented and cannot be burdened with extensive administrative and judicial review provisions that could effectively tie up the system, and DHS, in litigation for years. Our ultimate success with future implementation of an Electronic Employment Eligibility Verification program will rely on public-private cooperation and active employer participation in government partnerships to secure our workforce. With a bipartisan, cooperative effort we can set a positive tone. Our work is critically important to the future of our Nation and directly impacts national security, our economy, and individual lives. We all share in the responsibility to make our Nation greater, and I look forward to working with you to advance our mutual interests and assist those who come here seeking freedom, prosperity, and the hope for a better future. Thank you; I look forward to answering your questions.
6

Case 4:07-cv-00881-ERW Document 55 Filed 08/10/2007 Page 1 of 4

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

DEFENDANT’S STATEMENT OF UNCONTROVERTED MATERIAL FACTS Defendant City of Valley Park, Missouri, hereby avers that the following uncontroverted material facts are true and sufficient to support Defendant’s Motion for Summary Judgment, as described in the attached Memorandum in Support of Defendant’s Motion for Summary Judgment. 1. The City of Valley Park is a City of the fourth class located in St. Louis County, Missouri. 2. On February 14, 2007, Valley Park Ordinances No. 1721 and No. 1722 were enacted, after passage by the Board of Aldermen and approval by the Mayor. See Ordinance No. 1722, Def. Amended Answer to Pl. Amended Petit., Exhibit 1. See Ordinance No. 1721, Pl. Mtn. for Pre. Inj., Exhibit E. 3. On Feb. 14, 2007, Valley Park Ordinance No. 1724 was enacted, amending the effective date of Ordinance No. 1722. See Ordinance No. 1724, Pl. Mtn. for Pre. Inj., Exhibit F. 4. On March 12, 2007, the Circuit Court of Saint Louis County issued its decision in Reynolds v. Valley Park, No. 06-CC-3802. That case was decided solely on state law grounds. The Reynolds Court did not address any of the federal claims at issue in this action. In addition, the Reynolds decision solely addressed ordinances that were by that time repealed (Valley Park Ordinances No. 1708 and No. 1715). It did not address Valley Park Ordinances No. 1721 and Ordinance No. 1722. Reynolds, Pl. Memo Supp. Mtn. for Pre. Inj., Exhibit D, slip op. at 6-7.

Case 4:07-cv-00881-ERW Document 55 Filed 08/10/2007 Page 2 of 4
5. On April 12, 2007, Plaintiffs Windhover, Inc., and Jacqueline Gray filed their Amended Petition for Declaratory and Injunctive Relief.
6. In June 2007, Section 4 of Ordinance 1722 was amended by Ordinance 1732. 7. On July 16, 2007, Valley Park Ordinances No. 1735 was enacted, after passage by the Board of Aldermen and approval by the Mayor. Ordinance No. 1735 amended the occupancy code of Valley Park so as to eliminate the challenged provisions of Ordinance No. 1721. 8. On August 9, 2007, Valley Park Ordinance No. 1736 was enacted, after passage by the Board of Aldermen and approval by the Mayor. Ordinance No. 1736 amended Ordinance No. 1722 so as to make it effective immediately upon passage and approval, and provided that the enforcement provisions shall not be implemented and complaints shall not be accepted until December 1, 2007. Ordinance No. 1736, Memo. Supp. Def. Mtn. for Summ. Judgment, Exh. A. 9. Ordinance No. 1736 amended Ordinance No. 1722 by restating Ordinance No. 1722 in its entirety (with modifications to its effective date provision) thereby removing all doubt or dispute as to the true and correct wording of Ordinance No. 1722. Ordinance No. 1736, Memo. Supp. Def. Mtn. for Summ. Judgment, Exh. A. 10. Plaintiff Windhover, Inc., is a corporation that owns rental units in Valley Park, Missouri. Pl. Amended Petit., ¶ 3. 11. Plaintiff Jacqueline Gray is the sole owner and principal of Windhover, Inc., Pl. Amended Petit., ¶ 4. 12. Plaintiff Windhover, Inc., is an employer that hires individuals to work on its properties and is accordingly subject to Ordinance 1722. 13. The Basic Pilot Program (recently renamed the “Employment Eligibility Verification System.”) is a system that any employer in the United States may utilize to verify whether an individual seeking employment is authorized to work in the United States. Under the internet-based system, the federal government verifies whether the individual is authorized to work in the United States. DHS

Case 4:07-cv-00881-ERW Document 55 Filed 08/10/2007 Page 3 of 4
Statement to Congress Regarding the Employment Eligibility Verification System, Memo. Supp. Def.
Mtn. for Summ. Judgment, Exh. C.
14. The Basic Pilot Program is now used by more than 16,000 employers in the United States.
DHS Statement to Congress Regarding the Employment Eligibility Verification System, Memo. Supp.
Def. Mtn. for Summ. Judgment, Exh. C.
15. The Systematic Alien Verification for Entitlements (SAVE) program allows local
government officials to verify individuals’ immigration status with the federal government. There are at
least 205 participating local, state, and federal government agencies across the country that are already
using the SAVE program. DHS Privacy Impact Statement for SAVE, Def. Memo. Resp. to Mtn. for Pre.
Inj., Exh. C, at 18.
Respectfully submitted by
/s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu
/s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
/s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org
Attorneys for Defendant

Case 4:07-cv-00881-ERW Document 55 Filed 08/10/2007 Page 4 of 4
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 10th day of August, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH

 
 _ _ _ _ _ _ _ _ _ ' _,H"

,

Case 4:07-cv-00881-ERW Document 58 Filed 08/09/2007 Page 1 of 2

Case 407-cv-00881~ERv'/ -D-;~~menl 51 Filed 08/09/2007 Page 1 of 2

P.1ilii:

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI JtASTERN DMBION

WINDHOVER. INC. AND JACQUELlNE ORAY,
Plaintiffs,
v.
CITY OF VALLHY PARK, MISSOURI.
Defendant.

) ) )
) ClluseNo, 07-cv-881 ERW
) ) )
) ) )

STIPULATION OF PARTIAL VOLUNTARY DlSMlSSAL UNDER. FEDERAL RULE OF CML PROCEDURE 41(a)(1)

,

l

WHEREAS, on July 16, 2007, Defendant City of VaUey Paric enacted Ordinance No.

I

I
1735. wruch removes oertein disputed provisions from Valley Parte Ordinance No.: 1721 (the

I

"Landlord Orttinance");

I

Pursuant to R"le 41 (a)(1 Xii) of the Federal Rules of Civil Procedure, the ~es to this
I
action hereby stipul3te to the dismi.al without prejudice of the causes of action dlrebted to the
,I,
Landlord Ordinance asserted in Paragraph 28 of the Amended Petition for DecJ~l}' and
I
lnjun~ve Relief, With each party to bear its I1Wl'l costs, The causes of action directed to Valley
I
Parle Ordinance No. 1722 (the "Employer Ordinance'? In Paragraph 29 of the AmClldlld Petition

remain at isS'U(>.

\

rt Dated: August 2007

WINDHOVER, INC.;
JACQUELINE ORAY
By! Is! Dame) J. Hdtig
DANIEL 1. HURTADO Attorney for Plaintiftll

Case 4:07-cv-00881-ERW Document 58 Filed 08/09/2007 Page 2 of 2 Case 4:07-cv-00881-ERW Document 51 Filed 08/09/2007 Page 2 of 2

~~~ ClTYOFVALU!YPA~~
By.

W:KOBACH

.

AHorney rof Oefendmt

UN

TATES DISTRICT JUDGE.

~9,(jl.'P7

laf2

TOTAL p.e:>

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

PLAINTIFFS’ REPLY MEMORANDUM IN SUPPORT OF MOTION FOR DECLARATION THAT VALLEY PARK ORDINANCE NO. 1722 IS INOPERATIVE
Plaintiffs submit this memorandum as their reply in support of their motion for a declaration that Ordinance No. 1722 is inoperative. (Doc. # 50.) Defendant has not filed a written response to the Motion. Instead, Defendant’s counsel advised this Court at the August 10, 2007 status hearing, “I'll deliver our response orally right now.” (Transcript of August 10,
2007 Status Hearing, attached as Ex. A, at 20.) Counsel further indicated, “We don't anticipate
submitting a written answer unless we find that there is more information that we need to submit, but I can't imagine what that would be.” Id. at 29. Plaintiffs’ Motion was filed on August 9, 2007, so Defendant’s response was due no later than the end of the day on August 16, 2007. (E.D.Mo. L.R. 4.01.)
Meanwhile, this Court authorized Plaintiffs to take discovery limited to the issue of whether a putative amendment of Ordinance No. 1722 -- Ordinance No. 1736 -- was lawfully enacted. (Doc. # 56.) That discovery has now been completed in the form of limited document production and a deposition of the City of Valley Park pursuant to Fed. R. Civ. P. 30(b)(6).

After having completed that discovery, it is Plaintiffs’ position that their Motion for Declaration
should be granted because: (1) Defendant has not placed a cognizable response to the Motion in
the record; and (2) Ordinance No. 1736 was not lawfully enacted, and therefore Ordinance No.
1722 has not been amended to make it immediately effective.
I. Plaintiffs’ Motion Should be Considered On Its Merits Without Consideration Of Defendant’s Arguments.
Counsel for Defendant announced to this Court that he would not file a written response
to Plaintiffs’ motion for declaration that Ordinance No. 1722 is inoperative. (Ex. A at 20.) The
local rules require, however, that an opposition be filed in writing:
[E]ach party opposing a motion shall file, within five (5) days after being served with the motion, a memorandum containing any relevant argument and citations to authorities on which the party relies. If any memorandum in opposition requires consideration of facts not appearing in the record, the party shall file with its memorandum all documentary evidence relied upon.
(E.D.Mo. L.R. 4.01(B).) Defendant has not filed a memorandum in opposition to Plaintiffs’
Motion and the time for doing so has expired.
To the extent this Court is willing to consider Defendant’s oral response to the Motion in
lieu of the memorandum mandated by the Rule, there is no documentary evidence on file to
support Defendant’s opposition. Defendant’s response to the motion was as follows:
[N]umber one, ... the plaintiffs’ motion is moot, and our one exhibit is the exhibit we have presented to the Court this morning, which is a signed, certified, sealed copy of the ordinance which was passed, and if the plaintiffs continue to struggle to come up with some rationale as to why this ordinance is not what it says it is, then we will -- I'll indicate here that the Board of Aldermen will be advised to consider passing the ordinance again at the regularlyscheduled meeting on Monday, the 20th of August, if there is really any question as to the veracity of this ordinance.
2

(Ex. A at 20-21.) It appears that Defendant does not deny that Plaintiffs’ Motion was meritorious when filed, i.e., that Ordinance No. 1722 is not by its own terms effective until and unless the permanent injunction in the Reynolds I matter is lifted. But Defendant contends that the Motion is now moot because of Defendant’s subsequent action purporting to amend Ordinance No. 1722, or that it might become moot because Defendant might consider further action on August 20, 2007 to amend Ordinance No. 1722. Neither point supports denial of the pending Motion.
First of all, there is no documentary evidence in the record that supports Defendant’s contention that Ordinance No. 1722 has been amended. Documentary evidence relied upon in opposition to a motion must appear in the record. (E.D.Mo. L.R. 4.01(B).) Ordinance No. 1736, which Defendant alleges moots Plaintiffs’ Motion, was purportedly passed and signed prior to 7:30 p.m. on August 9, 2007. (Transcript of Rule 30(b)(6) Deposition of City Clerk, attached as Ex. B, at _____.)1 At that time, the City Clerk had also prepared a certification. (Id. at __.) Inexplicably, Defendant attached only an unsigned, uncertified copy of what purports to be Ordinance No. 1736 to the motion for summary judgment it filed in the wee hours of August 10, 2007. (Def’s Memorandum in Supp. of Mot. for Summary Judgment, Doc. # 54, Ex. A thereto.) The unsigned, uncertified copy of the alleged ordinance remains the only copy of the purported ordinance in the record. Reliance on such an unofficial document is particularly inappropriate here, where Defendant has over the past few months presented several different versions of what purported to be Ordinance No. 1722, yet which claimed on their face to have
1 Plaintiffs have not yet received a copy of the deposition transcript from the court reporter, despite having requested it on an expedited basis. Plaintiffs will seek leave to supplement this filing with the deposition transcript when it is received, along with the appropriate page citations.
3

been passed and signed by the Mayor on the same date. (See, generally, Mot. to Consolidate, Doc. # 38; Ex. B at __.)
Counsel’s representation that he will “advise” Defendant’s Board of Alderman “to consider passing the ordinance again” (emphasis supplied) is far too attenuated to serve as a basis for denying Plaintiffs’ Motion. Plaintiffs’ Motion is not rendered moot by a claim that counsel will give certain advice, which might or might not be heeded, that an amendment to Ordinance No. 1722 be considered. Further, even if the amendment is considered again, it is not a foregone conclusion that it will pass if this time it is considered in compliance with the Missouri Sunshine Law. That is particularly true in this case. The immigration ordinances at issue here have been a source of great controversy among the residents of Valley Park as well among the aldermen themselves. Accordingly, a public discussion of proposed Ordinance No. 1736, an ordinance that will simply perpetuate the controversy rather than allowing the matter to take its course in the Missouri Court of Appeals, could very well result in the ordinance not being passed.
Despite all of those considerations, the purported passage of Ordinance No. 1736 on August 9, 2007 occurred with less than 24-hour notice (in violation of the Sunshine Law), with no members of the public present (other than a single reporter), and with no debate or discussion. (Ex. B at __.) Since that time, a motion has been filed by certain plaintiffs in the Reynolds I matter against the Board of Aldermen seeking to have them held in contempt for purportedly passing Ordinance No. 1736. (Motion for Contempt, Ex. C.) It is reasonable to assume that a
4

pending contempt action, along with potential public opposition, would at least give the Board occasion to consider the wisdom of passing the Ordinance No. 1736.2
In any event, Defendant has failed to properly mount any opposition to Plaintiff’s Motion
in the manner prescribed by the Rules. This Court should not indulge Defendant’s efforts to
deny Plaintiffs relief while circumventing the Rules. If this Court grants Plaintiffs the relief their
Motion seeks and Defendant subsequently validly amends the ordinance and properly puts the amended ordinance in the record, then this action can proceed at that time.3 The only “harm”
that Defendant would incur by the granting of Plaintiffs’ Motion is a consequence of its refusal
to play by the rules. In contrast, if the Motion is denied, Plaintiffs may be forced to litigate the
validity of an ordinance that was never lawfully enacted.
II. Purported Ordinance No. 1736 Was Not Lawfully Enacted And Is Subject To Being Declared Void.
As explained above, the only opposition to the granting of Plaintiffs’ Motion is
Defendant’s claim that the Motion is rendered moot by a new ordinance that purports to amend
Ordinance No. 1722 to become immediately effective. Because the ordinance upon which
Defendant relies was not lawfully enacted and, thus, has not effectively amended Ordinance No.
1722, this Court should grant Plaintiffs’ Motion.
2 Valley Park’s Rule 30(b)(6) witness, who was the City Clerk, could not explain the existence of several versions of Ordinance No. 1722, several of which purport to have been signed by the Mayor on the same day (February 14, 2007), and one of which purports to have been signed by the Mayor on February 20, 2007. (Ex. B at ___.) Thus the question remains open as to whether Ordinance No. 1722 was ever lawfully enacted in the first place. If not, then there would be no existing ordinance that Ordinance No. 1736 could purport to amend. Valley Park would have to try to enact an entirely new ordinance. 3 If the Defendant successfully and lawfully amends Ordinance No. 1722 or enacts a new ordinance, an additional question will arise as to whether Defendant’s Motion for Summary Judgment should be stricken because it is directed to an ordinance that is not the same ordinance that is the subject of the Plaintiffs’ Amended Petition. It may be appropriate at that point for the Plaintiffs to seek leave to amend their complaint to address the new ordinance.
5

A. Missouri’s Sunshine Law Authorizes Invalidation of an Ordinance for Failure to Comply with the Law’s Requirements.
In Missouri, “The Sunshine Law declares it is the public policy of this state to make actions of public governmental bodies open, and to achieve that end the law must be liberally construed, whereas exceptions to it are to be strictly construed.” Kansas City Star v. Shields, 771 S.W.2d 101, 104 (Mo.App. 1989)(citing Mo.R.S. § 610.011.1). The voiding of legislation is an appropriate – and statutorily provided for – remedy for non-compliance with the Sunshine Law.
Initially, the Sunshine Law (which was adopted in 1973) had no teeth. … [While] [t]he lack of public notice of a special meeting would undoubtedly deprive the public of an opportunity to seek injunctive relief against holding such a meeting without proper notice[,] … injunctive relief [was] the only remedy [that] ha[d] been provided by the General Assembly to implement the Sunshine Law. Id. at 104. The legislature later gave the Sunshine Law some bite, “add[ing] to § 610.027 the remedies of civil fines and the voiding of legislation. These remedies were added to beef up and to deter violation of the already stated public policy of the law, as spoken loudly and clearly in the General Assembly, to open the business of government to the people.” Id. (citing Cohen v. Poelker, 520 S.W.2d 50, 52-53 (Mo. banc 1975)). Accordingly, Missouri law specifically authorizes the voiding of an ordinance for failure to comply with the Sunshine Law. B. Defendant Did Not Provide Sufficient Notice Under the Sunshine Law
Given That There Was No Emergency. In ordinary course, notice must be provided “at least twenty-four hours, exclusive of weekends and holidays when the facility is closed, prior to the commencement of any meeting of a governmental body…” (Mo.R.S. § 610.020.2.) There is an exception: “When it is necessary to hold a meeting on less than twenty-four hours’ notice …, the nature of the good cause justifying
6

that departure from the normal requirements shall be stated in the minutes.” (Mo.R.S. §
610.020.4.)
Defendant has asserted that Ordinance No. 1736, which it claims renders Plaintiffs’
Motion moot, was passed at an August 9, 2007 special meeting of the Board of Alderman and
signed by the Mayor that evening. (Ex. B at __.) It is undisputed that there was not 24-hours’
notice of the meeting. The notice of the 6:30 p.m. meeting was prepared by the City Clerk at
about 11 a.m. the same day. (Id. at __.) It was sent to only one reporter and not posted on the
Internet or elsewhere. (Id. at __.)
The City Clerk prepared the minutes of the meeting from her notes and with the
assistance of counsel. (Id. at __.) According to the minutes, the following explanation for the
emergency meeting was provided:
The City Attorney stated that this meeting was called to order by the Mayor in order to change the effective date of Ordinance 1722[,] which was called into question through a motion filed in Federal Court on Thursday, August 9, 2007 by attorneys representing Jacqueline Gray. Due to a pending hearing on Friday[,] August 10, 2007[,] it was the suggestion of Counsel for the City to consider amending Section 7 or [sic] Ordinance 1722 to clarify the effective date for the pending litigation.
(August 9, 2007 Meeting Minutes, Ex. D hereto.) No other reason for an emergency meeting is provided in the minutes.4
The purported Ordinance No. 1736 should be declared void because there was no
emergency justifying the invocation of the Sunshine Law’s emergency procedures. The policy
underlying the Sunshine Law (i.e., public notice and public input) outweighs any interest
Defendant had in adopting the ordinance without the required 24-hours public notice.

4

The minutes also fail to reflect the location of the meeting, which is required to be

included. (Mo.R.S. § 610.020.1.)

7

In essence, the Defendant’s argument is that the filing of Plaintiffs’ Motion on August 9, 2007 seeking a declaration that Ordinance No. 1722 is inoperative created an emergency requiring Defendant to pass Ordinance No. 1736 immediately and in a manner depriving the public of notice and the opportunity to be heard. That argument borders on being frivolous for at least two reasons: (a) under local rules, Defendant had seven calendar days to respond to the Motion; and (b) Defendant had long been on notice that Plaintiffs asserted that Ordinance No. 1722 was inoperative under its own terms. Each of those facts is independently sufficient to void Ordinance No. 1736.
As discussed above, Defendant’s response to the Motion was not due until the close of business on August 16, 2007. Although there was a hearing scheduled for August 10, 2007, the purpose of the hearing was scheduling, not consideration of Plaintiffs’ Motion. (Doc. # 49.)5
Plaintiffs’ filing also did not create an emergency because Defendant had long known of Plaintiffs’ position that Ordinance No. 1722 is inoperative. Plaintiffs asserted the same in their Amended Petition filed in state court on April 12, 2007, prior to this case being removed. (Amended Petition, Doc. # 36, ¶ 23, n. 2.)6 Plaintiffs again notified Defendant of their position on April 19, 2007 in their Motion for Preliminary Injunction. (Mot. for Prelim. Inj., Doc. #1-2, at 3 n. 2.) Finally, and most importantly, counsel for Plaintiffs communicated directly with Defendant’s counsel on July 24, 2007 regarding Plaintiffs’ position that Ordinance No. 1722 is

5

It is impossible to reconcile Defendant’s apparent claim that the passage of Ordinance

No. 1736 was somehow necessary in advance of the August 10, 2007 hearing with Defendant’s

failure to provide this Court or opposing counsel with a certified and signed copy of the

purported ordinance in advance of the hearing, or its failure to even notify opposing counsel that

a meeting was being held, that a meeting was held, or that the ordinance was putatively passed

and signed, until the 2:00 p.m. court hearing the next day.

6

Indeed, Defendants admitted the allegations in the paragraph that included Plaintiffs’

assertion that Ordinance No. 1722 is inoperative.

8

not currently effective and asked Defendant’s counsel to state its position on the matter. (See Mot. for Declaration, Doc. # 50,at 6 and Exs. 5-7.)
Moreover, even if Defendant had lacked notice of the Plaintiffs’ position, and even if the Board of Aldermen did not have time to try to pass Ordinance No. 1736 in advance of the Court’s consideration of this Motion, that would not create an emergency. To our knowledge, the City has never attempted to enforce any of its immigration ordinances, and Ordinance No. 1736 would not make Ordinance No. 1722 enforceable until at least December 1, 2007. The City would be in precisely the same substantive position if it considered and enacted Ordinance No. 1736 in accordance with the ordinary procedures set forth in the Sunshine Law rather than using the emergency procedures. Defendant’s counsel’s desire to avoid this Court ruling on a meritorious motion does not constitute “good cause” for departing from the Sunshine Law’s requirement of public input and public deliberation.
Accordingly, there were no exigent circumstances that justified undermining the democratic process that the Sunshine Law is designed to protect.
CONCLUSION Plaintiffs, as Missouri citizens, have standing to enforce the state’s Sunshine Law. See, State ex rel Missouri Local Gov. Retirement Sys. v. Bill, 935 SW 2d 659 (Mo. App. 1996). The Sunshine Law is designed to promote open meetings. Kansas City Star v. Shields, 771 S.W.2d at 105. Where, as here, the public was deprived of statutorily required notice and the opportunity to be heard, and the “emergency” used to justify departure from the notice requirements was a sham, Ordinance No. 1736 is subject to being declared void. Accordingly, Plaintiffs respectfully submit that this Court should grant Plaintiffs’ Motion for a declaration that Ordinance No. 1722 is currently not effective.
9

Dated: August 20, 2007

Respectfully submitted,
/s/ Daniel J. Hurtado
Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org

10

Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
11

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below by operation of the Court’s ECF/CM system on August 20, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

PLAINTIFFS’ AMENDED REPLY MEMORANDUM IN SUPPORT OF MOTION FOR DECLARATION THAT VALLEY PARK ORDINANCE NO. 1722 IS INOPERATIVE Plaintiffs submit this amended memorandum as their reply in support of their motion for
a declaration that Ordinance No. 1722 is inoperative. (Doc. # 50.)1 Defendant has not filed a written response to the Motion. Instead, Defendant’s counsel advised this Court at the August 10, 2007 status hearing, “I'll deliver our response orally right now.” (Transcript of August 10,
2007 Status Hearing, attached as Ex. A, at 20.) Counsel further indicated, “We don't anticipate
submitting a written answer unless we find that there is more information that we need to submit, but I can't imagine what that would be.” Id. at 29. Plaintiffs’ Motion was filed on August 9, 2007, so Defendant’s response was due no later than the end of the day on August 16, 2007. (E.D.Mo. L.R. 4.01.)
Meanwhile, this Court authorized Plaintiffs to take discovery limited to the issue of whether a putative amendment of Ordinance No. 1722 -- Ordinance No. 1736 -- was lawfully

1 Plaintiffs submit this amended reply to include citations to the transcript of the Rule 30(b)(6) deposition of the City of Valley Park, and to also include as an exhibit a copy of the deposition transcript, which was not available at the time the original reply was filed.

enacted. (Doc. # 56.) That discovery has now been completed in the form of limited document
production and a deposition of the City of Valley Park pursuant to Fed. R. Civ. P. 30(b)(6).
After having completed that discovery, it is Plaintiffs’ position that their Motion for Declaration
should be granted because: (1) Defendant has not placed a cognizable response to the Motion in
the record; and (2) Ordinance No. 1736 was not lawfully enacted, and therefore Ordinance No.
1722 has not been amended to make it immediately effective.
I. Plaintiffs’ Motion Should Be Considered On Its Merits Without Consideration Of Defendant’s Arguments.
Counsel for Defendant announced to this Court that he would not file a written response
to Plaintiffs’ motion for declaration that Ordinance No. 1722 is inoperative. (Ex. A at 20.) The
local rules require, however, that an opposition be filed in writing:
[E]ach party opposing a motion shall file, within five (5) days after being served with the motion, a memorandum containing any relevant argument and citations to authorities on which the party relies. If any memorandum in opposition requires consideration of facts not appearing in the record, the party shall file with its memorandum all documentary evidence relied upon.
(E.D.Mo. L.R. 4.01(B).) Defendant has not filed a memorandum in opposition to Plaintiffs’
Motion and the time for doing so has expired.
To the extent this Court is willing to consider Defendant’s oral response to the Motion in
lieu of the memorandum mandated by the Rule, there is no documentary evidence on file to
support Defendant’s opposition. Defendant’s response to the motion was as follows:
[N]umber one, ... the plaintiffs’ motion is moot, and our one exhibit is the exhibit we have presented to the Court this morning, which is a signed, certified, sealed copy of the ordinance which was passed, and if the plaintiffs continue to struggle to come up with some rationale as to why this ordinance is not what it says it is, then we will -- I'll indicate here that the Board of Aldermen will be advised to consider passing the ordinance again at the regularly-
2

scheduled meeting on Monday, the 20th of August, if there is really any question as to the veracity of this ordinance. (Ex. A at 20-21.) It appears that Defendant does not deny that Plaintiffs’ Motion was meritorious when filed, i.e., that Ordinance No. 1722 is not by its own terms effective until and unless the permanent injunction in the Reynolds I matter is lifted. But Defendant contends that the Motion is now moot because of Defendant’s subsequent action purporting to amend Ordinance No. 1722, or that it might become moot because Defendant might consider further action on August 20, 2007 to amend Ordinance No. 1722. Neither point supports denial of the pending Motion. First of all, there is no documentary evidence in the record that supports Defendant’s contention that Ordinance No. 1722 has been amended. Documentary evidence relied upon in opposition to a motion must appear in the record. (E.D.Mo. L.R. 4.01(B).) Ordinance No. 1736, which Defendant alleges moots Plaintiffs’ Motion, was purportedly passed and signed prior to 7:30 p.m. on August 9, 2007. (Transcript of Rule 30(b)(6) Deposition of City Clerk, attached as Ex. B, at 12-15, 19-24, 26.) At that time, the City Clerk had also prepared a certification. (Id. at 24-26.) Inexplicably, Defendant attached only an unsigned, uncertified copy of what purports to be Ordinance No. 1736 to the motion for summary judgment it filed in the wee hours of August 10, 2007. (Def’s Memorandum in Supp. of Mot. for Summary Judgment, Doc. # 54, Ex. A thereto.) The unsigned, uncertified copy of the alleged ordinance remains the only copy of the purported ordinance in the record. Reliance on such an unofficial document is particularly inappropriate here, where Defendant has over the past few months presented several different versions of what purported to be Ordinance No. 1722, yet which claimed on their face to have been passed and signed by the Mayor on the same date. (See, generally, Mot. to Consolidate, Doc. # 38; Ex. B at 28-37.)
3

Counsel’s representation that he will “advise” Defendant’s Board of Alderman “to consider passing the ordinance again” (emphasis supplied) is far too attenuated to serve as a basis for denying Plaintiffs’ Motion. Plaintiffs’ Motion is not rendered moot by a claim that counsel will give certain advice, which might or might not be heeded, that an amendment to Ordinance No. 1722 be considered. Further, even if the amendment is considered again, it is not a foregone conclusion that it will pass if this time it is considered in compliance with the Missouri Sunshine Law. That is particularly true in this case. The immigration ordinances at issue here have been a source of great controversy among the residents of Valley Park as well among the aldermen themselves. Accordingly, a public discussion of proposed Ordinance No. 1736, an ordinance that will simply perpetuate the controversy rather than allowing the matter to take its course in the Missouri Court of Appeals, could very well result in the ordinance not being passed.
Despite all of those considerations, the purported passage of Ordinance No. 1736 on August 9, 2007 occurred with less than 24-hour notice (in violation of the Sunshine Law), with no members of the public present (other than a single reporter), and with no debate or discussion. (Ex. B at 14, 22.) Since that time, a motion has been filed by certain plaintiffs in the Reynolds I matter against the Board of Aldermen seeking to have them held in contempt for purportedly passing Ordinance No. 1736. (Motion for Contempt, Ex. C.) It is reasonable to assume that a pending contempt action, along with potential public opposition, would at least give the Board occasion to consider the wisdom of passing the Ordinance No. 1736.2
2 Valley Park’s Rule 30(b)(6) witness, who was the City Clerk, could not explain the existence of several versions of Ordinance No. 1722, several of which purport to have been signed by the Mayor on the same day (February 14, 2007), and one of which purports to have been signed by the Mayor on February 20, 2007. (Ex. B at 28-37.) Thus the question remains open as to whether Ordinance No. 1722 was ever lawfully enacted in the first place. If not, then there
4

In any event, Defendant has failed to properly mount any opposition to Plaintiff’s Motion in the manner prescribed by the Rules. This Court should not indulge Defendant’s efforts to deny Plaintiffs relief while circumventing the Rules. If this Court grants Plaintiffs the relief their Motion seeks and Defendant subsequently validly amends the ordinance and properly puts the amended ordinance in the record, then this action can proceed at that time.3 The only “harm” that Defendant would incur by the granting of Plaintiffs’ Motion is a consequence of its refusal to play by the rules. In contrast, if the Motion is denied, Plaintiffs may be forced to litigate the validity of an ordinance that was never lawfully enacted.
II. Purported Ordinance No. 1736 Was Not Lawfully Enacted And Is Subject To Being Declared Void.
As explained above, the only opposition to the granting of Plaintiffs’ Motion is Defendant’s claim that the Motion is rendered moot by a new ordinance that purports to amend Ordinance No. 1722 to become immediately effective. Because the ordinance upon which Defendant relies was not lawfully enacted and, thus, has not effectively amended Ordinance No. 1722, this Court should grant Plaintiffs’ Motion.
A. Missouri’s Sunshine Law Authorizes Invalidation of an Ordinance for Failure to Comply with the Law’s Requirements.
In Missouri, “The Sunshine Law declares it is the public policy of this state to make actions of public governmental bodies open, and to achieve that end the law must be liberally construed, whereas exceptions to it are to be strictly construed.” Kansas City Star v. Shields, 771
would be no existing ordinance that Ordinance No. 1736 could purport to amend. Valley Park would have to try to enact an entirely new ordinance. 3 If the Defendant successfully and lawfully amends Ordinance No. 1722 or enacts a new ordinance, an additional question will arise as to whether Defendant’s Motion for Summary Judgment should be stricken because it is directed to an ordinance that is not the same ordinance that is the subject of the Plaintiffs’ Amended Petition. It may be appropriate at that point for the Plaintiffs to seek leave to amend their complaint to address the new ordinance.
5

S.W.2d 101, 104 (Mo.App. 1989)(citing Mo.R.S. § 610.011.1). The voiding of legislation is an appropriate – and statutorily provided for – remedy for non-compliance with the Sunshine Law.
Initially, the Sunshine Law (which was adopted in 1973) had no teeth. … [While] [t]he lack of public notice of a special meeting would undoubtedly deprive the public of an opportunity to seek injunctive relief against holding such a meeting without proper notice[,] … injunctive relief [was] the only remedy [that] ha[d] been provided by the General Assembly to implement the Sunshine Law. Id. at 104. The legislature later gave the Sunshine Law some bite, “add[ing] to § 610.027 the remedies of civil fines and the voiding of legislation. These remedies were added to beef up and to deter violation of the already stated public policy of the law, as spoken loudly and clearly in the General Assembly, to open the business of government to the people.” Id. (citing Cohen v. Poelker, 520 S.W.2d 50, 52-53 (Mo. banc 1975)). Accordingly, Missouri law specifically authorizes the voiding of an ordinance for failure to comply with the Sunshine Law. B. Defendant Did Not Provide Sufficient Notice Under the Sunshine Law
Given That There Was No Emergency. In ordinary course, notice must be provided “at least twenty-four hours, exclusive of weekends and holidays when the facility is closed, prior to the commencement of any meeting of a governmental body…” (Mo.R.S. § 610.020.2.) There is an exception: “When it is necessary to hold a meeting on less than twenty-four hours’ notice …, the nature of the good cause justifying that departure from the normal requirements shall be stated in the minutes.” (Mo.R.S. § 610.020.4.) Defendant has asserted that Ordinance No. 1736, which it claims renders Plaintiffs’ Motion moot, was passed at an August 9, 2007 special meeting of the Board of Alderman and signed by the Mayor that evening. (Ex. B at 12-15, 19-24, 26.) It is undisputed that there was not 24-hours’ notice of the meeting. The notice of the 6:30 p.m. meeting was prepared by the
6

City Clerk at about 11 a.m. the same day. (Id. at 10.) It was sent to only one reporter and not
posted on the Internet or elsewhere. (Id. at 11.)
The City Clerk prepared the minutes of the meeting from her notes and with the
assistance of counsel. (Id. at 12-13.) According to the minutes, the following explanation for the
emergency meeting was provided:
The City Attorney stated that this meeting was called to order by the Mayor in order to change the effective date of Ordinance 1722[,] which was called into question through a motion filed in Federal Court on Thursday, August 9, 2007 by attorneys representing Jacqueline Gray. Due to a pending hearing on Friday[,] August 10, 2007[,] it was the suggestion of Counsel for the City to consider amending Section 7 or [sic] Ordinance 1722 to clarify the effective date for the pending litigation.
(August 9, 2007 Meeting Minutes, Ex. D hereto.) No other reason for an emergency meeting is provided in the minutes.4
The purported Ordinance No. 1736 should be declared void because there was no
emergency justifying the invocation of the Sunshine Law’s emergency procedures. The policy
underlying the Sunshine Law (i.e., public notice and public input) outweighs any interest
Defendant had in adopting the ordinance without the required 24-hours public notice.
In essence, the Defendant’s argument is that the filing of Plaintiffs’ Motion on August 9,
2007 seeking a declaration that Ordinance No. 1722 is inoperative created an emergency
requiring Defendant to pass Ordinance No. 1736 immediately and in a manner depriving the
public of notice and the opportunity to be heard. That argument borders on being frivolous for at
least two reasons: (a) under local rules, Defendant had seven calendar days to respond to the
Motion; and (b) Defendant had long been on notice that Plaintiffs asserted that Ordinance No.

4

The minutes also fail to reflect the location of the meeting, which is required to be

included. (Mo.R.S. § 610.020.1.)

7

1722 was inoperative under its own terms. Each of those facts is independently sufficient to void Ordinance No. 1736.
As discussed above, Defendant’s response to the Motion was not due until the close of business on August 16, 2007. Although there was a hearing scheduled for August 10, 2007, the purpose of the hearing was scheduling, not consideration of Plaintiffs’ Motion. (Doc. # 49.)5
Plaintiffs’ filing also did not create an emergency because Defendant had long known of Plaintiffs’ position that Ordinance No. 1722 is inoperative. Plaintiffs asserted the same in their Amended Petition filed in state court on April 12, 2007, prior to this case being removed. (Amended Petition, Doc. # 36, ¶ 23, n. 2.)6 Plaintiffs again notified Defendant of their position on April 19, 2007 in their Motion for Preliminary Injunction. (Mot. for Prelim. Inj., Doc. #1-2, at 3 n. 2.) Finally, and most importantly, counsel for Plaintiffs communicated directly with Defendant’s counsel on July 24, 2007 regarding Plaintiffs’ position that Ordinance No. 1722 is not currently effective and asked Defendant’s counsel to state its position on the matter. (See Mot. for Declaration, Doc. # 50,at 6 and Exs. 5-7.)
Moreover, even if Defendant had lacked notice of the Plaintiffs’ position, and even if the Board of Aldermen did not have time to try to pass Ordinance No. 1736 in advance of the Court’s consideration of this Motion, that would not create an emergency. To our knowledge, the City has never attempted to enforce any of its immigration ordinances, and Ordinance No. 1736 would not make Ordinance No. 1722 enforceable until at least December 1, 2007. The

5

It is impossible to reconcile Defendant’s apparent claim that the passage of Ordinance

No. 1736 was somehow necessary in advance of the August 10, 2007 hearing with Defendant’s

failure to provide this Court or opposing counsel with a certified and signed copy of the

purported ordinance in advance of the hearing, or its failure to even notify opposing counsel that

a meeting was being held, that a meeting was held, or that the ordinance was putatively passed

and signed, until the 2:00 p.m. court hearing the next day.

6

Indeed, Defendants admitted the allegations in the paragraph that included Plaintiffs’

assertion that Ordinance No. 1722 is inoperative.

8

City would be in precisely the same substantive position if it considered and enacted Ordinance No. 1736 in accordance with the ordinary procedures set forth in the Sunshine Law rather than using the emergency procedures. Defendant’s counsel’s desire to avoid this Court ruling on a meritorious motion does not constitute “good cause” for departing from the Sunshine Law’s requirement of public input and public deliberation.
Accordingly, there were no exigent circumstances that justified undermining the democratic process that the Sunshine Law is designed to protect.
CONCLUSION Plaintiffs, as Missouri citizens, have standing to enforce the state’s Sunshine Law. See, State ex rel Missouri Local Gov. Retirement Sys. v. Bill, 935 SW 2d 659 (Mo. App. 1996). The Sunshine Law is designed to promote open meetings. Kansas City Star v. Shields, 771 S.W.2d at 105. Where, as here, the public was deprived of statutorily required notice and the opportunity to be heard, and the “emergency” used to justify departure from the notice requirements was a sham, Ordinance No. 1736 is subject to being declared void. Accordingly, Plaintiffs respectfully submit that this Court should grant Plaintiffs’ Motion for a declaration that Ordinance No. 1722 is currently not effective. Dated: August 21, 2007
Respectfully submitted, /s/ Daniel J. Hurtado Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
9

Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org
Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org
Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
10

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below by operation of the Court’s ECF/CM system on August 21, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

PLAINTIFFS’ MEMORANDUM IN SUPPORT OF MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT Plaintiffs Windhover, Inc. and Jacqueline Gray respectfully submit this memorandum in support of their Motion for Leave to File Second Amended Complaint. Plaintiffs seek leave to amend their Amended Petition initially filed in state court to: (1) conform it to federal pleading standards; (2) conform it to the fact that Plaintiffs have voluntarily dismissed their causes of action relating to Valley Park Ordinance No. 1721, which has been effectively repealed; (3) conform it to the fact that Valley Park Ordinance No. 1722 has purportedly been replaced by Valley Park Ordinance No. 1736; and (4) assert a claim under the Missouri Sunshine Law. The grant of leave to amend should not in any way delay these proceedings or prejudice the Defendant.
BACKGROUND On March 14, 2007, Plaintiff Jacqueline Gray initiated this action by filing a Petition for Declaratory and Injunctive Relief in the Circuit Court for St. Louis County seeking an order enjoining the enforcement Valley Park Ordinance No. 1721 and Valley Park Ordinance No.

1722. Those Ordinances were successors to Ordinance No. 1708 and Ordinance No. 1715, which, on March 12, 2007, were permanently enjoined by Circuit Court Judge Barbara W. Wallace in the case captioned Reynolds, et al., v. City of Valley Park, et al., Cause No. 06-CC3802.
Ordinance No. 1721 and Ordinance No. 1722 had been enacted on February 14, 2007, and they purported to repeal and replace Ordinance No. 1708 and Ordinance No. 1715. Ordinance No. 1721 sought to regulate immigration by prohibiting the rental of dwellings to aliens unlawfully present in the United States.
Ordinance No. 1722, entitled “An Ordinance Repealing Ordinance No. 1715 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of Illegal Aliens Within the City of Valley Park, Mo.[,]” seeks to regulate immigration matters, and provides that “[i]t is unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part in the City.” (Ord. No. 1722, Docket No. 31-7, Section Four, A.)
On February 14, 2007, the City of Valley Park further enacted Ordinance No. 1724, entitled “An Ordinance Amending Bill 1867, Proposed Ordinance 1722, Pertaining to the Employment of Illegal Aliens by Adding Language to Section Seven Thereof Clarifying the Effective Date,” which purported to amend Ordinance No. 1722 so that it would not become effective until “the termination of any restraining orders or injunctions which [were then] in force in Cause No. 06-CC-3802[.]” (Docket No. 31-9.)
On March 14, 2007, following issuance of the permanent injunction in Cause No. 06-CC3802, Windhover and Gray filed their Petition for Declaratory and Injunctive Relief in the
2

Circuit Court for St. Louis County, seeking to enjoin the enforcement of Ordinance No. 1721 and Ordinance No. 1722. Though it was Plaintiffs’ position that Ordinance No. 1722 was not effective under its own terms unless and until the permanent injunction in Cause No. 06-CC3802 was terminated, they included claims relating to Ordinance No. 1722 in their Petition for the contingency that Defendant might disagree with that position or the injunction in Cause No. 06-CC-3802 was somehow terminated while this case was pending. On April 12, 2007, Plaintiffs filed an Amended Petition for Declaratory and Injunctive Relief to join Windhover as a Plaintiff and add additional causes of action.
On May 1, 2007, Defendant removed the case to this Court. Plaintiffs’ motion for remand was denied. Subsequent to removal, the parties completed briefing on Plaintiffs’ Motion for Preliminary Injunction, and, on August 8, 2007, the Court granted Plaintiffs’ motion to consolidate the preliminary injunction hearing with a trial on the merits, which the Plaintiffs suggested should occur in October 2007.
On July 16, 2007, prior to the Court’s August 8, 2007 Order granting Plaintiffs’ motion to consolidate the hearings, Defendant had enacted Ordinance No. 1735, which repealed certain disputed provisions from Ordinance No. 1721. On August 9, 2007, this Court granted the parties’ stipulation for voluntary dismissal of Plaintiffs’ claims relating to Ordinance No. 1721.
The removal of Ordinance No. 1721 from the case raised the question of whether there remained a case or controversy. The only remaining ordinance, Ordinance No. 1722, was, in Plaintiffs’ view, not currently effective and may never have become effective unless and until the permanent injunction in Cause No. 06-CC-3802 was reversed by the Missouri Court of Appeals or Missouri Supreme Court. Accordingly, Plaintiffs sought once and for all to resolve the matter so that the resources of the Court and the parties would not be wasted litigating the validity of an
3

ordinance that was not currently effective and may never become effective. On August 9, 2007, Plaintiffs filed their Motion for Declaration That Valley Park Ordinance No. 1722 Is Inoperative.
Though Plaintiffs had three weeks earlier raised with the Defendant the issue of whether Ordinance No. 1722 was currently ineffective and this case therefore moot, the Defendant responded to Plaintiffs’ Motion for Declaration by convening an emergency meeting of the Valley Park Board of Aldermen on that same day, August 9, 2007, and ostensibly enacting Ordinance No. 1736, which purported to amend Ordinance No. 1722 to make it effective immediately. Ordinance No. 1736 also “restated” Ordinance No. 1722 to try to resolve the confusion the Defendant had created by circulating at least three different versions of Ordinance No. 1722 that appeared on their face to have been signed by the Mayor on the same day. On August 20, 2007, Defendant purportedly re-enacted Ordinance No. 1736.
Meanwhile, on August 16, 2007, certain plaintiffs in Cause No. 06-CC-3802 filed a Motion for Order to Show Cause and Contempt on the premise that Ordinance No. 1722, putatively made immediately effective by Ordinance No. 1736, falls within the scope of the permanent injunction in that case. The Motion for Order to Show Cause seeks an order specifically enjoining the enforcement of Ordinance No. 1722 as purportedly amended by Ordinance No. 1736. On August 20, 2007, Plaintiffs Windhover and Gray joined that Motion. A hearing before Judge Wallace is scheduled for September 20, 2007.1
1 The Defendant has repeatedly accused the Plaintiffs of trying to “delay” this case. Defendant is absolutely correct. If Ordinance No. 1722 is not currently effective, or is permanently enjoined by the Missouri state court, then Plaintiffs see no reason to waste this Court’s or their own resources by plunging ahead with this case in federal court. Indeed, that would not be responsible. Nevertheless, it is the Plaintiffs who pushed the discovery schedule forward, and Plaintiffs have done nothing to retard the schedule they proposed in their Motion to Consolidate or the schedule that this Court adopted in its August 15, 2007 Order. (Docket No. 62.) This case is moving forward according to the prescribed schedule. But that schedule should not preclude the Court or the Plaintiffs from holding the Defendant’s feet to the fire regarding the legitimacy
4

Plaintiffs now seek to amend their Amended Petition to conform to and address the events that have occurred subsequent to the filing of their Amended Petition in state court on April 12, 2007.
ARGUMENT Amendments to pleadings are governed by Rule 15(a) of the Federal Rules of Civil Procedure, which provides: A party may amend the party’s pleading once as a matter of course at any time before a responsive pleading is served . . . . Otherwise, a party may amend the party’s pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires. Fed. R. Civ. P. 15(a). The Rule has been liberally interpreted, and leave to amend pleadings should be liberally granted. Foman v. Davis, 371 U.S. 178, 182 (1962)); Buder v. Merrill Lynch, Pierce, Finner & Smith, Inc., 644 F.2d 690, 694 (8th Cir. 1981). The following four factors are commonly used to determine the propriety of a motion for leave to amend under Rule 15(a): bad faith, undue delay, prejudice, and futility. Becker v. Univ. of Nebraska, 191 F.3d 904, 907-08 (8th Cir. 1999); Foman, 371 U.S. at 182. The Eighth Circuit has noted that, in most cases, delay alone is not sufficient to deny leave to amend, but prejudice to the non-movant must also be shown. Bell v. Allstate Life Ins. Co., 160 F.3d 452, 454 (8th Cir. 1998). The Plaintiffs’ Motion for Leave to File Second Amended Complaint should be granted because it will not have been filed with undue delay or in bad faith, will not prejudice the Defendant and will not be futile. First, there is no undue delay or bad faith. Plaintiffs are seeking to amend their First Amended Petition promptly after learning of Defendant’s August 9, 2007 attempt to enact
of its actions, or from pursuing avenues to dispose of this matter under state law if that will ultimately conserve party and judicial resources.
5

Ordinance No. 1736, which purports to amend Ordinance No. 1722, and promptly after receiving confirmation that the Defendant purported to properly enact Ordinance No. 1736 on August 20, 2007.
Second, the Defendant will not be prejudiced because: (1) discovery in this matter has only recently commenced, with responses to written discovery requests due on September 14, 2007, and fact-discovery to be closed by October 12, 2007; (2) the Second Amended Complaint will not alter either the scope or timing of discovery; and (3) the Second Amended Complaint will not in any way delay resolution of this matter.
Finally, amending the Amended Petition will not be futile. The only substantive new claim in the Second Amended Complaint is the Sunshine Law claim. That claim would be futile only if it did not satisfy the standards of Fed. R. Civ. P. 12(b)(6). Under that standard, the claim would be futile only if “it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Ricciuti v. New York City Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
Count VI of the Second Amended Complaint alleges facts that are sufficient to state a claim under the Missouri Sunshine Law. It alleges that the special meeting of the Valley Park Board of Alderman held on August 9, 2007 was not preceded by at least 24-hours notice, as is presumptively required under Mo. R. Stat. § 610.020(2). (Second Amended Complaint ¶ 45.) It further alleges that there was no good cause for failing to provide the required notice. (Id.) It alleges, therefore, that, pursuant to Mo. R. Stat. § 610.027(5), this Court is authorized to void any action taken by the Valley Park Board of Aldermen on August 9, 2007. (Id.)
The Second Amended Complaint further alleges that the Board of Aldermen’s violation of section 610.020(2) was knowing and purposeful, and therefore that this Court is authorized
6

under Mo. R. Stat. § 610.027(3) and (4) to impose a civil penalty of up to $5,000 plus costs and
reasonable attorneys fees. (Second Amended Complaint ¶ 46.) Those allegations are more than
sufficient to state a claim under the Missouri Sunshine Law.
CONCLUSION
For the foregoing reasons, Plaintiffs respectfully request that this Court enter an order
granting Plaintiffs leave to file their Second Amended Complaint.
Respectfully submitted,
/s/ Daniel J. Hurtado
Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
7

Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
8

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on August 27, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

SECOND AMENDED COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Windhover, Inc. and Jacqueline Gray, for their second amended complaint against Defendant City of Valley Park, Missouri, state as follows:
INTRODUCTION 1. This action seeks a declaration of Plaintiffs’ rights with respect to Valley Park Ordinance No. 1722, as purportedly amended and restated by Valley Park Ordinance No. 1736 (“Ordinance No. 1722”). The challenged ordinance purports to regulate immigration within the City of Valley Park. Plaintiffs seek a preliminary and permanent injunction restraining enforcement the ordinance.
2. Ordinance 1722 is an attempt to circumvent the judgment of the Circuit Court for St. Louis County entered March 12, 2007 in Reynolds v. City of Valley Park, No. 06-CC-3802. In that case, the state court entered a permanent injunction restraining the enforcement of antiimmigrant Ordinance No. 1708 and Ordinance No. 1715. Like the permanently enjoined ordinances, Ordinance 1722 is aimed at usurping the federal government’s exclusive power to

regulate immigration and is aimed in particular at immigrants of Hispanic origin. Ordinance 1722 purports to penalize businesses who employ “illegal aliens.” Public comments by the mayor of Valley Park strongly suggest that those ordinances are motivated by racial animus toward Mexican immigrants in particular. The ordinance and its predecessors have caused, or threaten to cause, businesses to engage in racial profiling and violate federal anti-discrimination laws. The ordinances threaten to subject the Plaintiffs to enforcement actions by the City without due process and to impose a penalty not authorized by Missouri law.
JURISDICTION AND VENUE 3. This Court has original jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343 over Plaintiffs’ cause of action arising under the Constitution of the United States, 42 U.S.C. § 1983, and pursuant to the Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202. This Court has supplemental jurisdiction over plaintiffs’ causes of action arising under the Missouri state law pursuant to 28 U.S.C. § 1367. 4. Venue lies in the United States District Court for the Eastern District of Missouri because Defendant resides in this district. 28 U.S.C. § 1391(b)(1). Venue also lies in this district because a substantial part of the events or omissions giving rise to the claim occurred in this district. 28 U.S.C. § 1391(b)(2). 5. Divisional venue is in the Eastern Division because Defendant is a resident of St. Louis County. E.D.Mo. L.R. 2.07(A)(1), (B)(1).
PARTIES 6. Plaintiff Windhover, Inc. (“Windhover”) is a Missouri corporation with its principal place of business in Valley Park, Missouri. Windhover owns rental units in the City of Valley Park.
2

7.

Plaintiff Jacqueline Gray is an adult citizen and resident of the City of Valley Park

in the State of Missouri. Jacqueline Gray is the sole owner and principal of Windhover, Inc.

8. Defendant, City of Valley Park, is a City of the fourth class located in St. Louis

County, Missouri.

BACKGROUND

9. Windhover owned rental units in Valley Park at the time Valley Park Ordinance

1722 was enacted.

10. Windhover is a “business entity” as that term is defined in Valley Park Ordinance

1722. Ordinance 1722 would require the Plaintiffs to investigate and determine the immigration

status of any person it hires or contracts to perform work on its properties, and, because Plaintiffs

do not know how to determine a person’s immigration status, would subject them to the

enforcement provisions of Ordinance 1722.

11. Plaintiffs have legally protected interests that are threatened or violated by the

unconstitutional acts of the City of Valley Park.

12. On July 17, 2006, the City of Valley Park, Missouri passed Ordinance No. 1708

(“Ordinance 1708”), entitled “An Ordinance Relating to Illegal Immigration Within the City of

Valley Park, Mo.,” which ordinance sought to regulate federal immigration matters. See Exhibit

A. In particular, Ordinance 1708 purported to penalize any landlord or business who leased

property to or employed an “illegal alien.”

3

13. On September 22, 2006, Plaintiff Gray and others1 filed suit in the Circuit Court for the County of St. Louis alleging that Ordinance No. 1708 violated Missouri state law as well as federal law.
14. On September 25, 2006, Circuit Court Judge Barbara W. Wallace entered a Temporary Restraining Order enjoining enforcement of Ordinance 1708.
15. On September 26, 2006, the City of Valley Park, Missouri enacted Ordinance No. 1715 (“Ordinance 1715”), entitled “An Ordinance Repealing Sections One, Two, Three and Four of Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of and Harboring of Illegal Aliens Within the City of Valley Park, MO.” See Exhibit B. Among other things, Ordinance 1715 removed an “English-only” provision that was included in Ordinance 1708, but still purported to penalize any landlord or business who leased property to or employed an “illegal alien.”
16. On September 27, 2006, Judge Wallace entered an Amended Temporary Restraining Order enjoining the enforcement of Ordinance 1715.
17. On February 14, 2007, during the pendency of the action before Judge Wallace, the City of Valley Park, Missouri enacted Ordinance 1721 entitled “An Ordinance Repealing Section 510.020 Subsection 103.6.1 Of The Property Maintenance Code Relating To Inspections And Occupancy Permits And Enacting A New Ordinance In Lieu Thereof Relating To The Same Subject Matter,” which, like Ordinance 1715, seeks to regulate immigration matters, specifically, the rental of dwellings to aliens unlawfully in the United States. See Exhibit C. Ordinance 1721
1 In addition to Plaintiff Gray, Stephanie Reynolds, Florence Streeter and the Metropolitan St. Louis Equal Housing Opportunity Council were named plaintiffs in the September 22, 2006 suit. The case was captioned Reynolds, et al., v. City of Valley Park, et al., and docketed in this Court as Cause No. 06-CC-3802 in Division No. 13.
4

requires landlords to obtain from each prospective tenant information regarding the “names, ages, citizenships, and relationships for each proposed occupant, together with such identifying information that shall be required by the City.” Exhibit C, Section Two. The landlord then must apply for an occupancy permit. Id. The Building Commissioner shall not issue an occupancy permit if it is determined that “any alien unlawfully present in the United States is a proposed occupant[.]” Id. Thus, under no circumstances will an occupancy permit be issued unless and until the City either determines that no proposed occupant is an “alien unlawfully in the United States” or concludes that it is unable to make that determination. Id. Ordinance 1721 initially provided that it would become effective upon, among other things, “the termination of any restraining order or injunction which [was then] in force in Cause No. 06-CC-3802[.]” Id. at 2, Section Three.
18. On February 14, 2007, the City of Valley Park, Missouri also enacted Ordinance 1722, entitled “An Ordinance Repealing Ordinance No. 1715 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of Illegal Aliens Within the City of Valley Park, Mo.[,]” which seeks to regulate immigration matters, specifically, the employment of illegal aliens. See Exhibit D. Ordinance 1722 provides that “[i]t is unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part in the City.” Id. at 3, Section Four, A. It provides that an enforcement action may be initiated against a business entity by means of a complaint submitted by any resident of Valley Park alleging that the business entity is in violation of the Ordinance. Id. at 4. The business entity will then have 3 days in which to provide “identity information . . . regarding any persons alleged to be unlawful workers.” Id.
5

Any business entity that does not provide the information requested by the City with 3 days or who does not correct a violation of the Ordinance within 3 days of being notified of a violation, shall have its business license suspended. Id.
19. On February 14, 2007, the City of Valley Park, Missouri further enacted Ordinance No. 1723, entitled “An Ordinance Amending Bill 1866, Proposed Ordinance 1721, Pertaining to the Property Maintenance Code Relating to Inspections and Occupancy Permits by Clarifying Section Two and Section Three Thereof.” See Exhibit E. Ordinance No. 1723 amended Ordinance 1721 to expressly reference Ordinance 1722 with respect to the requirement that the Valley Park Building Commission not issue an occupancy permit if “any alien unlawfully present in the United States is a proposed occupant[.]” Ex. E, Section One.
20. On February 14, 2007, the City of Valley Park, Missouri further enacted Ordinance No. 1724, entitled “An Ordinance Amending Bill 1867, Proposed Ordinance 1722, Pertaining to the Employment of Illegal Aliens by Adding Language to Section Seven Thereof Clarifying the Effective Date,” which Ordinance amended Ordinance 1722 so that it would not become effective until “the termination of any restraining orders or injunctions which [were then] in force in Cause No. 06-CC-3802[.]” See Exhibit F.
21. On February 27, 2007, the City of Valley Park, Missouri enacted ordinance No. 1725, entitled “An Ordinance Amending Ordinance 1723 Pertaining to the Effective Dates of the Property Maintenance Code Providing that the Enforcement of Ordinance 1721 Shall Become Effective Immediately,” which ordinance amended Ordinance 1723, which in turn had amended Ordinance 1721, to make Ordinance 1721 effective and enforceable immediately. See Exhibit G.
6

22. On March 12, 2007, Circuit Court Judge Barbara W. Wallace ordered that the temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance No. 1715 be made permanent. See Exhibit H.
23. On March 14, 2007, Plaintiff Gray initiated this action by filing a Petition for Declaratory and Injunctive Relief seeking an order enjoining the enforcement of the newly enacted Ordinance 1721 and Ordinance 1722 in the Circuit Court for St. Louis County.2 Plaintiffs thereafter filed in the state court an Amended Petition to join Windhover as a Plaintiff and add additional causes of action.
24. On May 1, 2007, Defendant removed this case to this Court. Plaintiffs’ motion for remand was denied.
25. On July 16, 2007, Defendant enacted Ordinance No. 1735, which repealed certain disputed provisions from Ordinance No. 1721. See Exhibit I. On August 9, 2007, this Court granted the parties’ stipulation for voluntary dismissal of Plaintiffs’ claims related to Ordinance No. 1721. (Doc. # 58).
26. On August 9, 2007, Defendant purportedly enacted Ordinance No. 1736, which amended Ordinance No. 1722 to make it effective immediately. On August 20, 2007, Defendant purportedly re-enacted Ordinance No. 1736 to make Ordinance No. 1722 effective immediately. FEDERAL REGULATION OF IMMIGRATION
27. The power to regulate immigration is an exclusively Federal power that derives from the Constitution's grant to the Federal government of the power to “establish a uniform 2 As noted above, Ordinance No. 1722 did not become effective under its own terms until “the termination of any restraining orders or injunctions now in force [as of February 14, 2007] in Cause No. 06-CC-3802[.]” Plaintiffs originally challenged Ordinance No. 1722 in this case to the extent that: (1) Ordinance 1724 was construed as making 1722 effective upon the termination of the preliminary injunction in Cause No. 06-CC-3802; and/or (2) the permanent injunction in Cause No. 06-CC-3802 is vacated on appeal or on remand. Defendants have now purported to make Ordinance No. 1722 effective immediately.
7

Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4., and to “regulate Commerce with foreign Nations.” Id., cl. 3.
28. Pursuant to its exclusive power over matters of immigration, the Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States.
29. In addition to provisions that directly regulate immigrants’ entry and conduct, the Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. Thus, the comprehensive Federal immigration scheme includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States.
30. The laws, procedures, and policies created by the Federal government regulate immigration and confer rights in a careful balance reflecting the national interest.
COUNT I Violation of Supremacy Clause – Preemption 31. Plaintiffs re-allege and incorporate by reference ¶¶ 1-30. 32. Ordinance No. 1722 violates the Supremacy Clause of the Constitution of the United States, U.S. Const. art. VI, cl. 2, and conflicts with, violates, and is preempted by the Immigration Reform and Control Act of 1986. The power to regulate immigration vests exclusively in the federal government. Ordinance No. 1722 encroaches on the federal government’s exclusive power to regulate immigration, legislates in a field that is completely
8

occupied by the federal government, and conflicts with federal laws, regulations, policies, and objectives.
COUNT II Violation of Fourteenth Amendment – Due Process Clause 33. Plaintiffs re-allege and incorporate by reference ¶¶ 1-30. 34. Ordinance No. 1722 violates Plaintiffs’ due process rights under the Fourteenth Amendment to the Constitution of the United States, in that it subjects the Plaintiffs to being deprived of their business or otherwise punished without providing any standards or guidance for compliance. Plaintiffs have no way of determining the immigration status of a prospective employee or contractor, and are at risk of violating other laws by attempting to do so. 35. Ordinance No. 1722 provides for no pre-sanction hearing, as is required under state law, and no meaningful process or procedure by which Plaintiffs might challenge Defendant’s determination that Plaintiffs have violated the ordinance.
COUNT III Violation of Fourteenth Amendment – Equal Protection Clause 36. Plaintiffs re-allege and incorporate by reference ¶¶ 1-30. 37. Ordinance No. 1722 violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. On information and belief, its enactment was motivated by racial animus toward persons of Hispanic heritage and with the purpose of deterring persons of Hispanic heritage from working or living in Valley Park. It has or will have a discriminatory impact on persons of Hispanic heritage by inducing employers to refrain from employing persons who are, or are perceived to be, of Hispanic heritage, and by inducing City officials, Valley Park business entities or Valley Park residents to file complaints against
9

business entities based on those business entities’ employment of persons of Hispanic heritage. Further, Ordinance No. 1722 embodies an impermissible alienage classification that bears no rational relationship to the stated purposes of the ordinance.
COUNT IV Preclusion – Enforcement Barred by Full Faith and Credit Clause 38. Plaintiffs re-allege and incorporate by reference ¶¶ 1-30. 39. The Full Faith and Credit Act, 28 U.S.C. § 1738, requires this Court to give the same preclusive effect to a state-court judgment as another court of that state would give. 40. Defendant is precluded from asserting the validity of Ordinance No. 1722 by principles of claim preclusion and/or issue preclusion as a result of the March 12, 2007 judgment of the Missouri state court in Reynolds v. City of Valley Park, Cause No. 06 CC 3802. There was a final judgment on the merits in Reynolds, there is an identity of the cause of action under Mo.R.Stat. § 79.470 in both the Reynolds suit and this suit; and there is an identity of parties in the two suits.
COUNT V Supplemental Jurisdiction – Violation of Mo.R.Stat.. § 79.470 41. Plaintiffs re-allege and incorporate by reference ¶¶ 1-30. 42. Ordinance No. 1722 is void and unenforceable because its penalty provision exceeds that authorized by Mo.R.Stat. § 79.470.
COUNT VI Supplemental Jurisdiction – Violation of Missouri Sunshine Law 43. Plaintiffs re-allege and incorporate by reference ¶¶ 1-30.
10

44. On August 9, 2007 Defendant purportedly enacted Ordinance No. 1736, which purported to amend Ordinance No. 1722 to make it immediately effective, rather than it becoming effective only upon the termination of the injunction in Reynolds v. City of Valley Park, Cause No. 06 CC 3802.
45. Defendant’s actions in purportedly enacting Ordinance No. 1736 on August 9, 2007 were taken in violation of, and served to defeat the purposes of, the Missouri Sunshine Law, Mo. R. Stat. § 610.010 et seq. The action was taken at a “special” Board of Aldermen’s meeting for which there was less than the 24-hours advance notice required under Mo. R. Stat. § 610.020(2). There was no good cause justifying that departure from the normal requirements under Mo. R. Stat. § 610.020(2). The Court is authorized under Mo. R. Stat. § 610.027(5) to “void any action taken in violation of sections 610.010 to 610.026,” which includes section 610.020(2). Accordingly, this Court is authorized to void the action taken by the Valley Park Board of Aldermen on August 9, 2007.
46. Defendant knowingly and purposely violated Mo. R. Stat. § 610.020(2). Section 610.027(3) authorizes the imposition of a civil penalty of up to one thousand dollars, plus costs and reasonable attorneys fees, for a knowing violation of section 610.020(2). Section 610.027(4) authorizes the imposition of a civil penalty of up to five thousand dollars, plus costs and reasonable attorneys fees, for a purposeful violation of section 610.020(2). Accordingly, this Court is authorized to impose on Defendant a civil penalty of up to $5,000, plus costs and reasonable attorneys fees.
COUNT VII Declaratory Judgment Act 47. Plaintiffs re-allege and incorporate by reference ¶¶ 1-46.
11

48. Because Defendants’ actions are unconstitutional and violate state law, plaintiffs are entitled to a declaratory judgment to that effect pursuant to 28 U.S.C. § 2201.
PRAYER FOR RELIEF WHEREFORE, Plaintiffs respectfully request this Court:
A. Enter judgment in favor of Plaintiffs and against Defendant; B. Enter an order declaring Ordinance No. 1722 to be invalid, void, and unenforceable; C. Award Plaintiffs’ counsel reasonable attorneys’ fees and costs pursuant to 42 U.S.C. § 1988 and any other applicable provisions of law; D. Assess against Defendant and award to Plaintiffs any civil penalties and costs and reasonable attorney fees as permitted by the Missouri Sunshine Law; and E. Grant to Plaintiffs such other and further relief as may be just and proper under the circumstances, including but not limited to appropriate injunctive relief. Dated: August 27, 2007
Respectfully submitted, /s/ Daniel J. Hurtado Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
12

Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org
Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org
Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
13

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on August 27, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Pursuant to Federal Rules of Civil Procedure 56(a) and for the reasons set forth in the Memorandum in Support of this Motion and Statement of Uncontroverted Material Facts, which are filed herewith, Plaintiffs Windhover, Inc. and Jacqueline Gray respectfully move this Court for entry of summary judgment against Defendant City of Valley Park. As fully set forth in the accompanying Memorandum in Support, Plaintiffs are entitled to judgment on their behalf as a matter of law with respect to their claim that Valley Park Municipal Ordinance No. 1722, as amended, is invalid unenforceable because there is a prior state-court judgment that the same penalty provision that appears in Ordinance No. 1722 is invalid under Mo.R.Stat. § 79.470. The invalidation of the penalty provision renders the entire Ordinance invalid under state law. Summary judgment on this issue will obviate litigation regarding the validity of Ordinance No. 1722 under federal law. Plaintiffs request oral argument on this motion, and respectfully request that it be consolidated with any oral argument on Defendant’s Motion for Summary Judgment.

WHEREFORE, Plaintiffs respectfully request that the Court issue an order granting
summary judgment in favor of Plaintiffs declaring Ordinance No. 1722 to be void and invalid,
and permanently enjoining Defendant from enforcing Ordinance No. 1722, as amended, or any
ordinance that is substantially the same and that suffers from the same flaws under state law.
Dated: August 29, 2007
Respectfully submitted,
/s/ Daniel J. Hurtado
Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
2

Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
3

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on August 29, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

 
 IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND

)

JACQUELINE GRAY,

)

)

Plaintiffs,

) Cause No. 07-cv-881 ERW

)

v.

)

)

CITY OF VALLEY PARK, MISSOURI, )

)

Defendant.

)

PLAINTIFFS’ STATEMENT OF UNCONTROVERTED MATERIAL FACTS Pursuant to L.R. 7-4.01(E), Plaintiffs Windhover, Inc. and Jacqueline Gray hereby submit the following statement of uncontroverted material facts in support of their motion for summary judgment. 1. The City of Valley Park is a City of the fourth class located in St. Louis County, Missouri. (Def’s Statement of Uncontroverted Material Facts (Doc. No. 55) at 1.) 2. On July 17, 2006, the City enacted Ordinance No. 1708, entitled, “AN ORDINANCE RELATING TO ILLEGAL IMMIGRATION WITHIN THE CITY OF VALLEY PARK, MO.” (Ex. A.) 3. Ordinance No. 1708 imposed penalties on any business that “aids or abets illegal aliens or illegal immigration” and on any person who “allows an illegal alien to use, rent or lease their property.” (Id. at Section Two.)

4. As to any business that violated the ordinance, Ordinance No. 1708 purported to deny it “approval of a business permit, the renewal of a business permit, [and] city contracts or grants for a period not less that five (5) years from its last offense.” (Id.)
5. On September 22, 2006, Plaintiff Gray and others filed a Petition for Declaratory and Injunctive Relief in the Circuit Court of Saint Louis County, Reynolds v. City of Valley Park, No. 06-CC-3802, alleging that Ordinance No. 1708 violated state and federal law. (Ex. B.)
6. The Reynolds petition alleged that Ordinance No. 1708 violated Missouri statute Mo.R.S. § 79.470. (Id.)
7. On September 25, 2006, the Missouri state court entered a temporary restraining order enjoining the enforcement of Ordinance No. 1708. (Reynolds v. City of Valley Park, No. 06-CC-3802, Temporary Restraining Order (Sept. 25, 2006), Ex. C.)
8. On September 26, 2006, the City enacted Ordinance No. 1715, which was entitled, “AN ORDINANCE REPEALING SECTIONS ONE, TWO, THREE[,] AND FOUR OF ORDINANCE NO. 1708 RELATING TO ILLEGAL IMMIGRATION WITHIN THE CITY OF VALLEY PARK, MO, AND ENACTING A NEW ORDINANCE IN LIEU THEREOF RELATING TO THE EMPLOYMENT OF AND HARBORING OF ILLEGAL ALIENS WITHIN THE CITY OF VALLEY PARK, MO.” (Ord. No. 1715, Ex. D.)
9. Ordinance No. 1715 purported to repeal Ordinance No. 1708 and enact in its place new regulations that prohibited the provision of employment or housing to an “illegal alien” or “unlawful worker.” (Id.)
10. Ordinance No. 1715 purported to penalize any landlord who leased property to an “illegal” immigrant or any business that employed an “unlawful worker.” (Id. at Section Four, Subsection A, Section Five, Subsection A.)
2

11. With respect to businesses, Ordinance No. 1715 purported to make it “unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City.” (Id. at Section Four, Subsection A.)
12. Ordinance No. 1715 provided that enforcement actions would be initiated by a written complaint to the Valley Park Code Enforcement Office, which would then within three days demand from the business entity “identity information” regarding any person alleged to be an unlawful worker. The business would have three days to provide the information or its business license would be suspended. (Id. at Section Four, Subsection B.)
13. Ordinance No. 1715 provided that “[t]he Valley Park Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Enforcement Office.” (Id. at Section Four, Subsection B.(4).)
14. The suspension would last until one day after a legal representative of the business entity submits a sworn affidavit attesting that the violation has ended. (Id. at Section Four, Subsection B.(6).)
15. On September 27, 2006, Gray and the other plaintiffs filed an Amended Petition challenging Ordinance No. 1715. (Ex. E.)
16. An Amended Temporary Restraining order was entered on September 27, 2006, enjoining the enforcement of both Ordinance Nos. 1708 and 1715. (Reynolds v. City of Valley Park, No. 06-CC-3802, Amended Temporary Restraining Order (Sept. 27, 2006), Ex. F.)
17. On February 14, 2007, the City enacted Ordinance No. 1721. (Ex. G.)
3

18. Ordinance No. 1721 was directed to landlords and to the rental of dwellings to persons “unlawfully present in the United States.” (Id. at Section Two.)
19. On February 14, 2007, the City enacted Ordinance No. 1722. (Ex. H.) 20. Ordinance No. 1722 was directed to business entities. (Id. at Section Four.) 21. The content of Sections Two, Three and Four of Ordinance No. 1722 is the same as the content of Sections Two, Three and Four of Ordinance No. 1715, respectively, except that: (1) Ordinance No, 1722 removes subsection E. from Section Two, which addresses the “harboring of illegal aliens”; (2) Ordinance No. 1722 (at least as amended) adds the word “knowingly” to the first line of Section Four, Subsection A; and (3) Ordinance No. 1722 (at least as amended) removes the words “solely or primarily” from the first line of Section Four, Subsection B.(2). (Ex. D; Ex. H.) 22. Section Four, Subsection B.(4) of Ordinance No. 1722 provides as follows: “The Valley Park Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Enforcement Office.” (Ex. H at Section Four, Subsection B.(4).) 23. The content of Section Four, Subsection B.(4) of Ordinance No. 1722 is identical to the content of Section Four, Subsection B.(4) of Ordinance No. 1715. (Ex. D; Ex. H.) 24. Prior to the enactment of Ordinance No. 1736, Section Seven of Ordinance No. 1722 provided: “This Ordinance shall become effective from and after its passage and upon approval by the Mayor and upon “the termination of any restraining orders or injunctions now in force in Cause 06CC-3802, now pending in St. Louis County, Missouri, in Division 13.” (Ex. H, at Section Seven.) 25. On March 1, 2007, the Judge Wallace held a hearing in Cause 06CC-3802. (Ex. I.)
4

26. During the March 1, 2007 hearing in Cause 06CC-3802, the court received oral argument and testimony regarding: (1) whether the issue regarding the validity Ordinance No. 1708 and Ordinance No. 1715 had been rendered moot by the enactment of Ordinance No. 1721 and/or Ordinance No. 1722; and (2) the plaintiffs’ motion for judgment on the pleadings. (Ex. I at 5.)
27. The transcript of the March 1, 2007 hearing in Cause 06CC-3802 reflects that Ordinance No. 1722 was expressly discussed during the hearing. (Id. at 35, 37, 41, 44-47, 49, 50, 51, 56, 58, 84, 87, 90.)
28. A copy of Ordinance No. 1722 was submitted to the court during the March 1, 2007 hearing in Cause 06CC-3802 as a hearing exhibit. (Id. at 35.)
29. At the March 1, 2007 hearing Cause 06CC-3802, the counsel for the City, Eric Martin, testified as follows: Q: “I want to make sure you’re in agreement, that 1722 dealing with employment is virtually identical to 1715 in terms of regarding employment?” A: “There were some amendments made and the amendments included making prospective only in its application, and I believe an appellate process was set forth.” Q: “But the substance is virtually identical?” A: “yes, sir.” (Id. at 49.)
30. In oral argument at the March 1, 2007 hearing in Cause 06CC-3802, counsel for the City stated: “So what we have to do is determine if there’s a similarity between the new ordinance 1721 and the landlord tenant provisions in 1708 and 1715. The employment provisions have not been changed in any of the statutes and I would not represent to the Court that there is a substantial change in the employment provisions.” (Id. at 14.)
31. On March 12, 2007, the Circuit Court in Cause 06CC-3802 issued its Findings of Fact, Conclusions of Law, Order and Judgment (“Judgment”). (Ex. J.)
5

32. In its March 12, 2007 Judgment, the Circuit Court in Cause 06CC-3802 ruled that
“the temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance
No. 1715 are hereby made permanent.” (Id. at 8.)
33. In its March 12, 2007 Judgment, the Circuit Court in Cause 06CC-3802 held:
Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, . . . the Court finds the new ordinances [Ordinance No. 1721 and Ordinance No. 1722] are “sufficiently similar” to the old ordinances in that they are aimed at the same people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue.
((Id. at 5, ¶ 2.)
34. In its March 12, 2007 Judgment, the Circuit Court in Cause 06CC-3802
further held:
Ordinance No. 1715 conflicts with Mo.R. Stat. § 79.470 . . . by forcing a business to forego a business permit, or renewal of a business permit, for a period of “not less than five (5) years.” These types of penalties are not authorized by the governing statute. In addition, the monetary value of such penalties exceeds the $500 maximum fine authorized by Missouri law for an ordinance violation under Mo.R. Stat. § 79.470.
(Id. at 6-7, ¶10.)
35. In its March 12, 2007 Judgment, the Circuit Court in Cause 06CC-3802
further held:
This Court finds and concludes the penalty provisions of Ordinance No. 1709 and Ordinance No. 1715 are invalid due to conflicts with Missouri state law, leaving the remaining provisions ineffectual due to lack of any means of redress. Accordingly, the Ordinances are void in their entirety.
(Id. at 7, ¶13.)
36. Jacqueline Gray and Windhover, Inc., were plaintiffs in Reynolds v. City of Valley
Park, No. 06-CC-3802.
6

37. The City of Valley Park was a defendant in Reynolds v. City of Valley Park, No. 06-CC-3802.
38. On March 14, 2007, Jacqueline Gray instituted this action in state court by filing a Petition for Declaratory and Injunctive Relief (“Petition”). (Ex. K.)
39. Among other things, the Petition in this matter asserted that the penalty provisions of Ordinance No. 1722 exceeded that authorized by Mo.R.S. § 79.740. (Id. at ¶ 27.a.)
40. The Petition in this matter also asserted that the City was estopped from enforcing Ordinance No. 1722 under principles of res judicata and collateral estoppel. (Id. at ¶ 27.b.)
41. On April 12, 2007, Plaintiff in this matter filed an Amended Petition of Declaratory and Injunctive Relief (“Amended Petition”) in this matter in state court, joining Windhover, Inc. as Plaintiff. (Ex. L.)
42. Among other things, the Amended Petition asserts that the penalty provisions of Ordinance No. 1722 exceeded that authorized by Mo.R.S. § 79.740. (Id. at ¶ 29.a.)
43. The Amended Petition in this matter also asserted that the City was estopped from enforcing Ordinance No. 1722 under principles of res judicata and collateral estoppel. (Id. at ¶ 29.b.) .
44. On April 20, 2007, the City filed a notice of appeal with respect Cause 06CC3802 in the Missouri Court of Appeals. (Ex. M.)
45. In the August 10, 2007 status conference before this Court, counsel for the City stated:
The Reynolds I case, . . . the one that’s on appeal in state court, is an issue that was ordered by the St. Louis County Court, and that order that was adjudicated by the St. Louis County Court does not in any way concern Ordinance 1722. It does not mention 1722.
* * *
7

[Plaintiffs] chose to go to the Judge and ask for a ruling on the now repealed, and we thought moot, ordinance. The Judge nevertheless agreed to rule on the repealed ordinance, and so the appeal that’s currently in the Missouri State Courts in an appeal that focuses on the question of mootness and whether the Judge properly ruled.
* * * Nothing in the Judge’s order in the state court refers to 1722, . . . nor could it be construed to refer to 1722.
* * * [T]he appeal centers on the mootness of the Trial Court’s ruling, not about any of the substantive issues before this Court[.]
(Ex. N at 8-9.)
46. The City has represented that on August 20, 2007, it enacted Ordinance No. 1736,
which purports to make Ordinance No. 1722 immediately effective. (Ex. O.)
Dated: August 29, 2007
Respectfully submitted,
/s/ Daniel J. Hurtado
Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
8

Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org
Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org
Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
9

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on August 29, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

1569699.1

1

 
 Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

MEMORANDUM IN SUPPORT OF PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT Plaintiffs Windhover, Inc. (“Windhover”) and Jacqueline Gray (“Gray”) submit this memorandum of law in support of their motion for summary judgment that Valley Park Ordinance No. 1722, as amended (hereafter “Ordinance No. 1722”), is invalid and unenforceable because Defendant City of Valley Park (the “City”) is precluded by a prior state-court judgment from asserting its validity under Mo.R.Stat. § 79.470.
INTRODUCTION The complexion of this case has entirely changed. The Landlord Ordinance (No. 1721) is now gone, having been repealed in response to the plaintiffs’ lawsuits. The Employer Ordinance (No. 1722) has been inoperative and was written so that it would not become operative unless the permanent injunction in State Cause No. 06-CC-3802 (“Reynolds”) is reversed by a higher court. The City made the Employer Ordinance contingent on the outcome of any appeals because it recognized that the Ordinance fell within the scope of the Reynolds judgment. With the Landlord Ordinance gone, and the Employer Ordinance inoperative, there was no case or

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 2 of 15
controversy. The City then tried to resurrect the controversy by amending the Employer Ordinance to make it immediately effective. But the fundamental issue remains: the Reynolds court has already held that the penalty provision of the Employer Ordinance violates Missouri law. The City is thus precluded from asserting in this Court that the Ordinance does not violate Missouri law. Plaintiffs seek to end this matter by moving for summary judgment on that basis.1
BACKGROUND On July 17, 2006, the City enacted Ordinance No. 1708, which purported to penalize any landlord who permitted an “illegal” immigrant to occupy a dwelling unit and to penalize any business that employed or contracted an “illegal” immigrant to work. (Statement of Uncontroverted Material Facts (“SOUMF”) ¶¶ 2-4.) On September 22, 2006, Plaintiff Gray and others filed a Petition for Declaratory and Injunctive Relief in the Circuit Court of Saint Louis County, alleging that Ordinance No. 1708 violated state and federal law. Reynolds v. City of Valley Park, (hereafter “Reynolds”), Cause No. 06-CC-3802. (SOUMF ¶ 5.) In particular, the Petition alleged that Ordinance No. 1708 violated Missouri statute Mo.R.S. § 79.470. (Id. ¶ 6.) On September 26, 2006, the City enacted Ordinance No. 1715, which, among other things, removed an “English-only” provision that was part of Ordinance No. 1708, but nevertheless purported to penalize any landlord who leased property to an “illegal” immigrant or any business that employed an “unlawful worker.” (SOUMF ¶¶ 8-12.) As to the penalty for employing an “unlawful worker,” Ordinance No. 1715 provided that “[t]he Valley Park
1 Plaintiffs do not hereby abandon their federal claims, and indeed believe they would be entitled to judgment that Ordinance No. 1722 is invalid under federal law. However, Plaintiffs believe that full discovery would be required before the Court would have an adequate record upon which to rule on the federal issues. Such discovery may be obviated if the Court grants the present Motion, which can be decided purely as a matter of law.
2

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 3 of 15
Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Enforcement Office.” (Id. ¶ 13.)
On September 27, 2006, Gray and the other plaintiffs filed an Amended Petition to challenge Ordinance No. 1715, and the Circuit Court entered a Temporary Restraining Order temporarily enjoining the enforcement of Ordinance No. 1715. (Id. ¶ 15.) Windhover was subsequently added as a plaintiff in Reynolds. (Id. ¶ 36.)
On February 14, 2007, during the pendency of Reynolds, the City enacted Ordinance No. 1721 and Ordinance No. 1722. (Id. ¶¶ 17, 19.) Ordinance No. 1721 was directed to landlords. (Id. ¶ 18.) It apparently was intended to replace those provisions of Ordinance No. 1715 addressed to landlords, and was in the form of what the City would call a “permit model” rather than a “penalty model.” (Id. ¶ 20.) Ordinance No. 1722 was directed separately to business entities and remained in the form of a “penalty model.” (Id. ¶ 20.) Sections Two, Three and Four of Ordinance No. 1722 were virtually identical to Sections Two, Three and Four of Ordinance No. 1715. (Id. ¶ 21.) Ordinance No. 1722 contained a penalty provision identical to that of Ordinance No. 1715: “The Valley Park Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Enforcement Office.” (Id. ¶¶ 22, 23.)
The substantive terms of Ordinance No. 1722, as amended by Ordinance No. 1724, would not become effective until “the termination of any restraining orders or injunctions now in force in Cause 06CC-3802, now pending in St. Louis County, Missouri, in Division 13.” (Id. ¶ 24.)
3

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 4 of 15
After Reynolds was removed to this Court and then remanded, and after discovery was completed, the Circuit Court held a hearing on March 1, 2007. (Id. ¶ 25.) The purpose of the hearing was: (1) to determine whether the validity of Ordinance No. 1708 and Ordinance No. 1715 was still a live issue before the court, given the enactment of Ordinance No. 1721 and Ordinance No. 1722; and (2) to take argument and testimony on the plaintiffs’ motion for judgment on the pleadings. (Id. ¶ 26.) Ordinance No. 1721 and Ordinance No. 1722 were expressly the subject of oral argument, testimony and consideration by the court. (Id. ¶ 27.) Ordinance No. 1722 was submitted to the court as an exhibit. (Id. ¶ 28.)
On March 12, 2007, the temporary restraining orders in Reynolds were made permanent. (Id. ¶ 32.) The Circuit Court issued its Findings of Fact, Conclusions of Law, Order and Judgment, permanently enjoining the enforcement of Ordinance No. 1708 and Ordinance No. 1715. (Id.) The court held:
Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, . . . the Court finds the new ordinances [Ordinance No. 1721 and Ordinance No. 1722] are “sufficiently similar” to the old ordinances in that they are aimed at the same people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue. (Id. ¶ 33.) The court further held that Ordinance No. 1715 conflicted with Mo.R.S. § 79.740 because it penalized a violation of its provisions by forcing a business to forego a business permit. (Id. ¶¶ 34, 35.) The Court held that type of penalty to be unauthorized under the governing law. (Id. ¶ 34.) On March 14, 2007, Windhover and Gray initiated this action, asserting, among other things, that the penalty provision of Ordinance No. 1722 exceeded that authorized by Mo.R.S.
4

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 5 of 15
§ 79.740, and that the City was estopped from enforcing Ordinance No. 1722 under principles of res judicata and collateral estoppel. (Id. ¶¶ 38-40.)
On April 20, 2007, the City filed a notice of appeal with respect to Reynolds in the Missouri Court of Appeals. (Id. ¶ 44.) However, counsel for the City has suggested to this Court that the City will not challenge the Reynolds court’s ruling that the penalty provision for businesses under Ordinance No. 1715 -- which is identical to the penalty provision of Ordinance No. 1722 -- conflicts with and is unauthorized by Mo.R.S. § 79.740, but will focus only on its argument that the state court matter was moot at the time the Reynolds court ruled. (Id. ¶ 45.)
Nevertheless, on August 20, 2007, the City enacted Ordinance No. 1736, which purports to make Ordinance No. 1722 immediately effective. (Id. ¶ 46.)2 Because the state court has already ruled that the same penalty provision that is contained in Ordinance No. 1722 violates state law, Plaintiffs seek summary judgment that the City is precluded from attempting to enforce Ordinance No. 1722.3
ARGUMENT Under Fed.R.Civ.P. 56(c), summary judgment is warranted if the Court finds that, viewing the evidence in the light most favorable to the nonmoving party, there is no genuine issue of material fact and movants are entitled to judgment as a matter of law. Grey v. City of Oak Grove, 396 F.3d 1021, 1034 (8th Cir. 2005). “Where the unresolved issues are primarily
2 Plaintiffs have filed a Motion for Leave to File a Second Amended Complaint to conform to federal pleading conventions (the matter was removed from state court on May 1, 2007), to address the most recent version of Ordinance No. 1722, and to add a claim under the Missouri Open Meetings Act (“Sunshine Law”). (Doc. No. 71.) The proposed Second Amended Complaint retains the claim at issue in the present Motion for Summary Judgment. 3 As a result of the City’s attempt to activate Ordinance No. 1722, the plaintiffs in Reynolds, including Windhover and Gray, have moved the Reynolds court for an order to show cause and for contempt, based on their position that Ordinance No. 1722 falls within the scope of the permanent injunction issued by the Reynolds court. (Doc. No. 66-4.) A hearing on the order to show cause is scheduled for September 20, 2007.
5

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 6 of 15
legal rather than factual, summary judgment is particularly appropriate.” Uhl v. Swanstrom, 79 F.3d 751, 754 (8th Cir. 1996). Under the right circumstances, summary judgment “can be a tool of great utility in removing factually insubstantial cases from crowded dockets, freeing courts’ time for those that really do raise genuine issues of material fact.” Mt. Pleasant v. Associated Elec. Coop. Inc., 838 F.2d 268, 273 (8th Cir. 1988).
Here, though Plaintiffs believe there are many material fact issues relating to their federal claims, the preclusion claim raises straightforward legal issues that should dispose of this matter without further burdening the Court’s docket. Below, we first clarify what ordinance is actually at issue. We then demonstrate that Plaintiffs are entitled to a permanent injunction based on summary judgment that the enforcement of Ordinance No. 1722 is barred by a prior state-court judgment. I. All Versions Of Ordinance No. 1722 Contain The Same Penalty Provision.
As Plaintiffs have discussed elsewhere, the City has created much confusion as to which version of Ordinance No. 1722, if any, has been properly enacted and is currently in effect. (See, e.g., Plfs’ Motion to Consolidate, Docket No. 38, at 4-6; Def’s Amended Answer, Docket No. 43, Ex. D.) For the purpose of the narrow issues raised in Plaintiffs’ Motion for Summary Judgment, however, resolution of that confusion is not required because, in all respects relevant to the present Motion, all versions of Ordinance No. 1722 are the same. Each version contains the same penalty provision as that contained in Ordinance No. 1715. (SOUMF ¶¶ 13, 22, 23, 46.) Accordingly, for present purposes, Plaintiffs will base the present Motion on Ordinance No. 1722 as amended by Ordinance No. 1736.
6

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 7 of 15
II. Plaintiffs are Entitled to Summary Judgment and a Permanent Injunction. A permanent injunction is warranted where the plaintiff can show: (1) actual success on
the merits; (2) that the plaintiff faces irreparable harm; (3) that the harm to the plaintiff outweighs any harm to others; and (4) that an injunction serves the public interest. Bank One, Utah v. Guttau, 190 F.3d 844, 847 (8th Cir. 1999) (“The standard for granting a permanent injunction is essentially the same as for a preliminary injunction, except that to obtain a permanent injunction the movant must attain success on the merits.”); Dataphase Sys., Inc. v. C.L. Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981) (preliminary injunction standards). Plaintiffs here meet those standards.
A. Plaintiffs Can Show Actual Success On the Merits Because They Are Entitled to Summary Judgment Under Preclusion Principles.
The underlying purpose of issue preclusion is to “promote judicial economy and finality of litigation.” Liberty Mutual Ins. Co. v. FAG Bearings Crop., 335 F.3d 752, 758 (8th Cir. 2003). “When an issue of fact or law is actually litigated and determined by a valid and final judgment, and the determination is essential to the judgment, the determination is conclusive in a subsequent action between the same parties, whether on the same or a different claim.” Id. This Court should give the same preclusive effect to a prior judgment that would be required under Missouri law. “The Full Faith and Credit Act, 28 U.S.C. § 1738, originally enacted in 1790, ch. 11, 1 Stat. 122, requires the federal court to ‘give the same preclusive effect to a state-court judgment as another court of that state would give.’” Exxon Mobil Corp. v. Saudi Basic Industries Corp., 544 U.S. 280, 293 (2005)(quoting Parsons Steel Inc. v. First Alabama Bank, 474 U.S. 518, 523 (1986)).
Under Missouri law, the doctrine of issue preclusion bars a party from raising an issue in a subsequent proceeding if: (1) the issue decided in the prior action was identical to the issue
7

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 8 of 15
raised in the current action; (2) the prior adjudication resulted in a judgment on the merits; (3) the party against whom issue preclusion is asserted was a party in the prior action; and (4) the party against whom issue preclusion is asserted had a full and fair opportunity to litigate the issue in the prior action. State ex rel. Johns v. Kays, 181 S.W.3d 565, 566 (Mo. 2006); Woods v. Mehlville Chrysler-Plymouth, Inc., 198 S.W.3d 165, 168 (Mo.App. E.D. 2006). All four of those factors exist in this case.
First, it cannot be disputed that Plaintiffs and the City were both parties in Reynolds, St. Louis County Circuit Court Cause No. 06-CC-3801. (SOUMF (Id. ¶¶ 36, 37.)
Second, it cannot be disputed that the Reynolds court’s ruling that the penalty provision in Ordinance No. 1715 relating to business entities was invalid under Missouri law resulted in and was essential to a final judgment on the merits. (Id. ¶¶ 31, 35.) The court entered its final judgment on the merits of that issue, finding, among other things, that the imposition of the loss of a business permit as a penalty for violation of an ordinance in a fourth-class city is not authorized by the governing state statute. (Id. ¶¶ 34, 35.) In addition, the court held “[t]he monetary value of such penalties exceeds the $500 maximum fine authorized by Missouri law for an ordinance violation under Mo.R.Stat. § 79.470.” (Id. ¶ 34.). The court further held that because the penalty provisions were thus invalid, the remaining provisions were “ineffectual” and, accordingly, “void in their entirety.” (Id. ¶ 35.)
Third, it cannot be disputed that the City had a full and fair opportunity to litigate the issue. The issue of whether Missouri law authorized the City to impose the indefinite suspension of a business license for a violation of the ordinance was fully briefed and argued before the Reynolds court.
8

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 9 of 15
The only conceivable dispute, one that would be without merit, is whether the issue ruled on by the Reynolds court and the issue presented here are identical. The penalty provision in Ordinance No. 1722 is identical to the penalty provision in Ordinance No. 1715, and therefore the issue of whether it violates Mo.R.Stat. § 79.470 is identical. (SOUMF at ¶¶ 13, 22, 23.) In each of its permutations, Ordinance No. 1722 has the same penalty provision that the court found rendered Ordinance No. 1715 invalid. (Id.) In other words, precisely the same flaw that was fatal to Ordinance No. 1715 is present in Ordinance No. 1722. Indeed, Ordinance No. 1722 incorporates wholesale the substantive provisions of the business-entity section of Ordinance No. 1715. (Id. ¶¶ 21, 29, 30.) Surely, the City cannot circumvent a court judgment by adopting the same ordinance, containing the same unlawful penalty provision, and assigning it a new ordinance number. See JBK, Inc. v. City of Kansas City, Mo., 641 F. Supp. 893, 899 (W.D. Mo. 1986) (subsequent constitutional challenges to newly enacted ordinance barred by res judicata in the absence of material changes in the ordinance previously adjudicated). None of the changes to (or versions of) Ordinance No. 1722 effectuated a material change to the employer provisions of Ordinance No. 1715 in a way that addresses the fatal flaws identified by the Missouri court.
In fact, the issue of whether Ordinance No. 1722 and Ordinance No. 1715 are the same was squarely before the Reynolds court, and it found that they were the same. The City had argued vigorously that the enactment of Ordinance No. 1721 and Ordinance No. 1722 mooted the case with respect to Ordinance No. 1708 and Ordinance No. 1715. The court held otherwise, finding that Ordinance No. 1722 was “ ‘sufficiently similar’ to the old ordinances in that [it is] directed at the same class of people and conduct and include[s] some of the same penalties.”
9

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 10 of 15
(SOUMF ¶ 33.) The court further held that, “[g]iven that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue.” (Id.)4
Indeed, at the March 1, 2007 hearing in Reynolds, the City’s attorneys admitted that, as Plaintiffs assert here, Ordinance No. 1722’s penalty provisions are identical to the penalty provisions of Ordinances No. 1708 and 1715 that the state court held rendered the ordinance unlawful. The City Attorney, testifying under oath about the drafting process for the ordinance he helped author, agreed that the “substance” of Ordinance No. 1722 was “virtually identical” to the substance of Ordinance No. 1715. (SOUMF ¶ 29.) Counsel for City argued that the new housing ordinance at issue in Reynolds (Ordinance No. 1721) was substantially different than its predecessor provisions in Ordinance No. 1715. (Id.) In contrast, in describing the identity of the employment provisions of Ordinance Nos. 1708 and 1715 with Ordinance No. 1722, counsel admitted, “The employment provisions have not been changed in any of the statutes[,] and I would not represent to the court that there is a substantial change in the employment provisions.” (Id. ¶ 30.)
Accordingly, there is no good faith argument that the issue giving rise to the invalidation of Ordinance No. 1715 in Reynolds is not identical to the issue raised here.
In its own summary judgment papers, the City nevertheless argues that Ordinance No. 1715 and Ordinance No. 1722 are different because the latter adds a Section Five dealing with “Implementation and Process.” (Doc. No. 54 at 40.) But the addition of those provisions is not material to the issue of whether the penalty provisions violate Missouri law. Ordinance No. 1722 adopts wholesale the business provisions of Ordinance No. 1715, which the Reynolds court
4 It is that ruling that the City’s counsel has said will be the primary focus of its appeal in the Missouri Court of Appeals. (SOUMF. ¶ 45.)
10

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 11 of 15
held invalid in its entirety based on the invalid penalty provision. The additional implementation procedures did nothing to cure the infirmities that the Reynolds court identified.
The City further asserts that “none of the numerous provisions in Ordinances 1708 and 1715 that the Reynolds Court found fault with are present in Ordinance 1722.” Id. (emphasis in original). It is difficult to fathom how the City could make that statement. As shown above, the penalty provision that the Reynolds court found fault with appears verbatim in both Ordinance No. 1715 and Ordinance No. 1722.5
In any event, the crux of the City’s argument is that it disagrees with the Reynolds court that Ordinance No. 1715 and Ordinance No. 1722 are substantively the same. The place to lodge that disagreement is not in this Court, but in the Missouri Court of Appeals.
The City further argues that it can avoid preclusion where there has been “a change in controlling facts or legal princip[les.]” (Doc. No. 54 at 40.) But that potential exception to the preclusion doctrine is not applicable here. The two Supreme Court decisions that the City relies on -- United States v. Stauffer Chem. Co., 464 U.S. 165 (1984) and Montana v. United States, 440 U.S. 147 (1979) -- found that issue preclusion did apply in the cases before the Court because any changes in facts were not material to the prior judgment. Indeed, in another case cited by the City, Liberty Mutual, the Eight Circuit rejected an argument that preclusion did not apply because of changed circumstances, holding that, at minimum, the change must have occurred between the first and second actions. 335 F.3d at 761. Here, there has been no change in the governing law, and the language that was added by Ordinance No. 1722 -- even if it were
5 The Reynolds court’s March 12, 2007 Order does reference language from Ordinance No. 1708 that the aiding or abetting of “illegal aliens” or “illegal immigration” would result in the suspension of a business permit for “not less than five (5) years.” (SOUMF ¶ 34.) However, that language does not appear in Ordinance No. 1715 and thus was not material to the court’s holding that the suspension of a business permit by a Class 4 municipality under these circumstances is not authorized under Missouri law.
11

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 12 of 15
material to the Reynolds court judgment (and it is not) -- was added with the enactment of Ordinance No. 1722 on February 14, 2007. The new language was therefore before the Reynolds court when it heard the case and decided that Ordinance No. 1722 and the prior ordinances were substantively the same, and that the penalty provision that was included in both ordinances violated Missouri law.
B. Plaintiffs Satisfy the Remaining Preliminary Injunction Considerations. Plaintiffs will face irreparable harm if Ordinance No. 1722 is not enjoined for the reasons set forth in Plaintiffs’ Motion for Preliminary Injunction, which is incorporated herein by reference. (Doc. No. 1-2, at 17-19.) The harm to Plaintiffs in the absence of an injunction outweighs any harm to others if an injunction is entered for the reasons set forth in Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 1-2, at 19) and Plaintiffs’ Reply Memorandum in Support of Preliminary Injunction (Doc. No. 42, at 19-22) which are incorporated herein by reference. Issuance of an injunction serves the public interest for the reason explained in Plaintiffs’ Motion for Preliminary Injunction (Doc. No. 1-2, at 19-20) and Plaintiffs’ Reply Memorandum in Support of Preliminary Injunction (Doc. No. 42, at 19-20), which are incorporated herein by reference.
CONCLUSION As this Court observed in remanding the Reynolds case to state court, “[i]t is state courts which have the first and the last word as to the meaning of state statutes, . . . we have disapproved anticipatory declarations as to state regulatory statutes . . . .” Reynolds v. City of Valley Park, Case No. 06 C 01487, 2006 U.S. Dist. LEXIS 83210 *27 (E.D. Mo. Nov. 15, 2006) (quoting Pubic Service Comm’n of Utah v. Wycoff Co., 344 U.S. 237, 247 (1952)). This Court
12

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 13 of 15

further observed “[i]t would not be the place of this Court, through original or removal jurisdiction, to declare a state statute unconstitutional or in violation of federal law, before the statute had been enforced against any individual, and before the state court had had the opportunity to address the legality of the statute.” Id. Here, the Missouri trial court has already ruled that the municipal ordinance in question, or at least the relevant parts of it, are illegal under state law. That ruling is conclusive in this Court. It is for the Missouri Court of Appeals to determine whether that ruling is correct.
For the foregoing reasons, Plaintiffs respectfully request that this Court enter an order granting summary judgment that the Defendant is estopped from asserting in this Court that Ordinance No. 1722, as amended by Ordinance No. 1736, is valid under state law.

Dated: August 29, 2007

Respectfully submitted,
/s/ Daniel J. Hurtado
Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org

13

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 14 of 15
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org
Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org
Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile rmeza@maldef.org
14

Case 4:07-cv-00881-ERW Document 74 Filed 08/29/2007 Page 15 of 15
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on August 29, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

 
 Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 1 of 17

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT FACTUAL BACKGROUND
1. On July 17, 2006, Ordinance 1708 was enacted by the City of Valley Park. 2. On September 22, 2006, four plaintiffs filed the lawsuit of Reynolds v. Valley Park, 06-CC3802, in the Circuit Court of the County of St. Louis, seeking invalidation of Ordinance 1708. Plaintiff Jacqueline Gray in the case at bar was among the four plaintiffs in Reynolds. 3. On September 26, 2006, Ordinance 1715 was enacted by the City of Valley Park. Ordinance 1715 repealed and replaced Ordinance 1708. 4. On September 27, 2006, the plaintiffs in Reynolds amended their petition to seek a declaration that Ordinance 1715 was void and an injunction restraining the enforcement of Ordinance 1715. 5. On February 5, 2007, the Board of Aldermen passed, and on February 14, 2007, the Mayor approved, Ordinance 1722, the ordinance at issue in this litigation. 6. After February 5, 2007, counsel for Defendant contacted counsel for plaintiffs in Reynolds and offered to stipulate that plaintiffs could amend their petition to challenge Ordinance 1722 (as well as Ordinance 1721). Defendant sought to allow plaintiffs in Reynolds to address the many new aspects of Ordinance 1722 and give them the opportunity to challenge the current ordinance.

1

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 2 of 17
7. After February 5, 2007, counsel for plaintiffs in Reynolds declined to challenge the validity Ordinance 1722 and declined to amend their petition to include Ordinance 1722.
8. On March 1, 2007, the Circuit Court of the County of St. Louis (J. Wallace) held a hearing on the questions of whether Ordinances 1708 and 1715 were moot, and whether the Court could issue a declaratory judgment regarding particular challenges to those repealed ordinances under state law.
9. At the March 1, 2007, hearing counsel for plaintiffs in Reynolds reiterated that they were challenging only the (repealed) Ordinances 1708 and 1715.
10. On March 12, 2007, the Circuit Court of the County of St. Louis issued its decision in Reynolds, holding that “Ordinance No. 1708 and Ordinance No. 1715 are declared void.” Reynolds v. Valley Park, No. 06-CC-3802, slip op. at 8. The Reynolds Court did not evaluate the validity of Ordinance 1722 at any point in its eight-page decision and did not enjoin the enforcement of Ordinance 1722. Id.
11. The Defendant in Reynolds had not yet submitted any briefs to that court concerning the merits of the claim that the employment provisions of the repealed ordinances were in violation of state law, at the time of the March 12, 2007, decision by Circuit Court of the County of St. Louis in Reynolds.
ARGUMENT I. THE JUDICIAL STANDARD FOR FINDING PRECLUSION
Plaintiffs maintain that the doctrine of collateral estoppel precludes Defendant from asserting any defenses in this case with respect to Ordinance 1722. The four requirements for such non-mutual issue preclusion to apply under Missouri law are:
(1) whether the issue decided in the prior adjudication was identical to the issue presented in the present action; (2) whether the prior adjudication resulted in a judgment on the merits; (3) whether the party against whom estoppel is asserted was a party or was in privity with a party to the prior adjudication; and (4) whether the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit. Allstate Ins. Co. v. Blount, 491 F.3d 903, at *13 (8th Cir. 2007). See also State ex rel. Johns v. Kays 181 S.W.3d 565, 566 (Mo. 2006). Plaintiffs fail to meet the first and fourth requirements. II. THE ISSUE IN THE PRIOR ADJUDICATION WAS NOT “IDENTICAL TO THE ISSUE PRESENTED IN THE PRESENT ACTION”
2

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 3 of 17
A. The Plaintiffs have misrepresented two crucial facts. Plaintiffs have significantly misstated the facts surrounding the enactment of Ordinance 1722 and the decision of the state Circuit Court of the County of Saint Louis Reynolds. Defendants assume that this is the result of unintentional error on Plaintiffs’ part. Nevertheless, Plaintiffs’ errors are not inconsequential. There are two particularly salient misstatements in their Memorandum in Support of Plaintiffs’ Motion for Summary Judgment: (1) Plaintiffs erroneous claim that 1722 was drafted to reflect the Reynolds judgment, and (2) Plaintiffs’ erroneous claim that the Reynolds court reviewed the “penalty” provision in Ordinance 1722. These two misstatements are explained below. First, Plaintiffs make the following claim regarding Ordinance 1722 on the front page of their Memorandum: “The City made the Employer Ordinance contingent on the outcome of any appeals because it recognized that the Ordinance fell within the scope of the Reynolds judgment.” Memo. Supp. Pl. Mtn. Summ. J., 1. This claim is obviously erroneous, because the Reynolds judgment had not yet been rendered when the City enacted Ordinance 1722. The Valley Park Board of Aldermen passed Ordinance 1722 on February 5, 2007. On February 14, 2007, Ordinance 1722 was approved by the Mayor. On the same day, Valley Park Ordinance No. 1724 was also enacted, amending the effective date of Ordinance No. 1722. However, the Reynolds Court did not rule until March 12, 2007, nearly a month after Ordinance 1722 was enacted. Thus, it would have been impossible for the City to “recognize[] that the Ordinance fell within the scope of the Reynolds judgment,” because the Reynolds judgment did not yet exist. The actual reason that the effective date of Ordinance 1722 was drafted the way that it was, is that the City expected (incorrectly) that the plaintiffs in Reynolds would amend their Petition to include Ordinance 1722 and remove the references to the (repealed) Ordinances 1708 and 1715. The City did not anticipate that the Reynolds plaintiffs would instead ask the Circuit Court of the County of Saint Louis to adjudicate the validity of the two repealed ordinances and to refrain from adjudicating the validity of Ordinance 1722. But that is exactly what the Reynolds plaintiffs did. And to the City’s surprise, Judge Wallace of the Circuit Court of the County of Saint Louis agreed to the Reynolds plaintiffs’ request to review two moot ordinances while declining to rule on the current ordinances. The resulting ambiguity in
3

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 4 of 17
the wording of Ordinance 1722’s effective date stemmed from the City’s incorrect expectation that Ordinance 1722 would be reviewed by the court prior to any final ruling being issued.
Plaintiffs’ second misstatement concerns the scope of Judge Wallace’s decision in Reynolds. Plaintiffs brazenly claim that “the Reynolds court has already held that the penalty provision of the Employer Ordinance [1722] violates Missouri law.” Memo. Supp. Pl. Mtn. Summ. J., 2.1 Revealingly, Plaintiffs do not offer any citation to the Reynolds opinion in support of this assertion. In fact, the Reynolds court confined itself to the issues of (1) whether Ordinances 1708 and 1715 were moot, (2) whether specific provisions of those ordinances were inconsistent with state law. The only provision concerning business permits that Judge Wallace ruled upon was the original provision found in Ordinance 1708, which contained a provision denying approval or renewal of a business permit “for a period of not less than five (5) years from its last offense.” Ordinance 1708 § 2. It was this five-year-minimum denial of a business permit that Judge Wallace found excessive. In her order, she stated it clearly: “Ordinance No. 1715 conflicts with Mo.R.Stat. § 79.470 in that it penalizes a violation of its provisions by … forcing a business to forego a business permit, or renewal of a business permit, for a period of ‘not less than five (5) years.’” Reynolds v. Valley Park, No. 06-CC-3802, slip op. at 6-7 (¶10). (Judge Wallace mistakenly indicated that the five-year provision was located in Ordinance 1715, when it was actually located in Ordinance 1708).2 The Reynolds decision is quite clear in this regard. The only provision of Ordinance 1708 or 1715 concerning business permits that the Reynolds court held to be unauthorized by state law was the five-year-minimum denial of a business permit found in Ordinance 1708. No such provision exists in Ordinance 1722. Accordingly, the court only enjoined the enforcement of the repealed ordinances.
1 Plaintiffs have repeatedly used the phrase “penalty provision” to describe the mechanism by which Section 4.B of Ordinance 1722 operates to temporarily suspend a business entity’s business permit if the business entity fails to correct a violation of Ordinance 1722 within the required period of time. Defendants disagree with this characterization of Section 4.B. The suspension of a business entity’s business permit while the business entity is engaged in a violation of law is not a “penalty” in the normal sense of the word. Rather, it is a condition governing the retention of a business permit. The City suspends the business permit as long as the knowing violation of federal immigration law persists, under Sections 4.B(3-6). 2 Judge Wallace also mentioned the same provision of Ordinance 1708 in the preceding paragraph of her decision: “Ordinance No. 1708 conflicts with Mo.R.Stat. § 79.470 in that it provides for a fine of ‘not less than Five Hundred Dollars ($500.00),’ and the loss of a business permit (or its renewal) for a violation of its provisions.” Reynolds v. Valley Park, No. 06-CC-3802, slip op. at 6 (¶9).
4

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 5 of 17
B. The Reynolds plaintiffs repeatedly declined to seek a ruling on Ordinance 1722. During the period between the passage of Ordinance 1722 by the Valley Park Board of Aldermen on February 5, 2007, and the hearing before the Circuit Court of the County of Saint Louis, counsel for Defendant repeatedly offered to consent to the Reynolds plaintiffs amending their petition to address Ordinance 1722 (and its companion Ordinance 1721, concerning harboring in rental units). Defendants assumed that Plaintiffs would not wish to seek a ruling on a repealed ordinance when a new and different ordinance was in place. Strangely, the Reynolds plaintiffs repeatedly declined this invitation and instead pushed forward to seek a ruling on the more vulnerable repealed ordinances. At the March 1, 2007, hearing before the Circuit Court of the County of Saint Louis, counsel for Defendant reiterated under oath that such an offer had been made to the Reynolds plaintiffs. Q: …[D]id the City of Valley Park and the Defendants offer to substitute Ordinance 1721 and 1722 in place of 1708 and 1715 and have the Court’s preliminary injunction apply to it? A: Yes Sir … Q: And that offer was not accepted? A: That’s correct. Transcript of Court Proceedings, Circuit Court of the County of Saint Louis, March 1, 2007 (Plaintiffs’ Exh. I attached to Pl. Statement of Uncont. Mat. Facts) (hereinafter “Transcript of March 1, 2007, hearing”), at 47-48. During that interchange, Judge Wallace specifically acknowledged that she was aware that the offer had been made by Defendant: “But the Court does know that you all made that offer.” Id. Counsel for the Reynolds plaintiffs also made clear at the March 1, 2007, hearing that only Ordinances 1708 and 1715 were before the court: “But the law is clear that this court can and should decide the validity of the entirety of both Ordinances 1708 and No. 1715 on any ground that this court believes that it should be voided.” Id. at 18. And that is precisely what the court did, limiting its adjudication only to those ordinances. Plaintiffs cannot have it both ways. As one of the Reynolds plaintiffs, Jacqueline Gray expressly and repeatedly declined to seek adjudication of Ordinance 1722, well aware of the fact that Ordinance 1722 is not vulnerable to the challenges raised against Ordinance 1708 and Ordinance 1715. The Reynolds court
5

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 6 of 17
so limited its review. Now Plaintiffs seek to expand the Reynolds holding to encompass Ordinance 1722. Plaintiffs’ bait-and-switch game is clever, but it is not sufficient to preclude an Article III Court of the United States from adjudicating an issue that was never presented to a state court.
C. The Reynolds Court expressly limited its review to Ordinances 1708 and 1715. During the March 1, 2007, hearing, the Circuit Court of the County of Saint Louis was quite clear that it was limiting its inquiry to Ordinances 1708 and 1715. The court stated that it was so limiting itself at the commencement of the hearing: “We’re going [to] today have a brief argument on whether or not the Court can consider if 1708 and 1715 are void or that the repeal of those two ordinances takes that issue out [of] the Court’s hands as being moot, and then we’re going move to Plaintiffs’ motion for judgment….” Transcript of March 1, 2007, hearing, 5. Ordinance 1722 was involved only with respect to mootness. Specifically, Defendant had argued that the repeal of Ordinances 1708 and 1715, coupled with their replacement by Ordinances 1721 and 1722, rendered moot any challenge to the validity of the former ordinances. The Reynolds plaintiffs responded that under the precedent of Northeastern Florida Chapter of the Assoc. Gen. Contractors of America v. City of Jacksonville, 508 U.S. 656 (1993), the court could nonetheless review the repealed ordinances as long as they were “sufficiently similar” to the new ordinances, and the “challenged conduct” might therefore continue. Id. at 662-63, n.3. Transcript of March 1, 2007, hearing, 19-20. Accordingly, there was some discussion at the March 1, 2007, hearing concerning the scope and nature of Ordinances 1721 and 1722. See id. at 14-25, 48-55. It is in this respect that Plaintiffs in the case at bar misleadingly quote from the decision of the Circuit Court of the County of Saint Louis in Reynolds. Attempting to convince this Court that “Ordinance No. 1721 and Ordinance No. 1722 were expressly the subject of oral argument, testimony and consideration by the [Reynolds] court,” Memo. Supp. Pl. Mtn. for Summ. J., 4, Plaintiffs omit important words from their quotation of the Reynolds opinion. Plaintiffs offer the following deceptively-altered quotation to suggest that the Reynolds court reviewed the validity of Ordinances 1721 and 1722:
6

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 7 of 17
Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, … the Court finds the new ordinances [Ordinance No. 1721 and Ordinance No. 1722] are “sufficiently similar” to the old ordinances in that they are aimed at the same people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue.
Memo Supp. Pl. Mtn. for Summ. J., 4 (quoting Reynolds, slip op. at 5) (bracketed text inserted by
Plaintiffs). The smoking ellipsis conceals what the Reynolds court was actually concerned about—
mootness under the City of Jacksonville precedent. The full text in the Reynolds opinion reads as follows:
Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, the Court finds and concludes under R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo. banc. 2004), and Northeastern Florida Chapter of the Assoc. General Contractors of America v. City of Jacksonville, 508 U.S. 656, 661-62 (1993), this case is not moot. When a party files suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing the ordinance. Id. Furthermore, the Court finds the new ordinances are “sufficiently similar” to the old ordinances in that they are aimed at the same people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue. City of Jacksonville, supra, 508 U.S. at 662-63 and n. 3.
Reynolds, slip op. at 5) (emphasis added). The italicized words were removed by Plaintiffs. They illustrate
exactly what the Reynolds court was determining—similarity for the purpose of determining mootness
under the City of Jacksonville test. The court did not, as Plaintiffs claim, “consider[]” the validity of
Ordinance 1722 in any other respect.
Moreover, Plaintiffs pointedly fail to quote the following statement of fact from the Reynolds
opinion: “Defendant has represented to this Court that it recently repealed Ordinance No. 1715, and
admitted into evidence the new ordinances only for the purpose of its argument on mootness. Plaintiffs
have not amended their pleadings to put the issue of the validity of the new ordinances before the Court.”
Reynolds, slip op. at 3 (¶10) (emphasis added). That simple fact—that the validity of the new ordinances
under state law was never before the Reynolds court—is one that Plaintiffs cannot avoid.
D. The Court in Reynolds did not adjudicate any issue applicable to Ordinance 1722.
Plaintiffs acknowledge that the Reynolds court was aware of Ordinance 1722’s enactment, yet it
did not enjoin Ordinance 1722. Rather, the Reynolds court concluded that repealed Ordinances 1708 and
7

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 8 of 17
1715 were not moot and reached the merits of challenges only to the repealed ordinances on three narrow state law grounds: (1) that the fine of not less than five hundred dollars for knowingly leasing a rental unit to an illegal alien in Ordinance 1708 was excessive; (2) that the provisions of Ordinance 1715 were in conflict with Missouri law requiring 30 days’ notice and judicial process before a landlord may evict a tenant; and (3) that certain other provisions in Ordinances 1708 and 1715 (including the minimum-fiveyear denial of a business permit in Ordinance 1708) exceeded the authority of the City under state law. Reynolds, slip op. at 6-7 (¶¶ 9-11).3
Plaintiffs would have this Court believe that the Reynolds court “consider[ed]” and ruled upon the broad question of whether a municipality may suspend a municipal business permit while the permit holder is in violation of federal immigration law by knowingly employing an unauthorized alien. As noted above, the only employment provision that the Reynolds court found to be impermissible under state law was the five-year-minimum denial of a business permit, found in Ordinance 1708 § 2. As the Reynolds court stated, the repealed ordinance conflicted with Missouri law because it “penalizes a violation of its provisions … by forcing a business to forego a business permit, or renewal of a business permit, for a period of ‘not less than five (5) years.’” Reynolds, slip op. at 6-7 (¶ 10). It is important to note that the Reynolds Court specifically quoted the five-year-minimum denial of a business permit found in Ordinance 1708 § 2. In the preceding paragraph, the Reynolds court equated this five-year-minimum denial to a “loss” of the permit, not merely a suspension of the permit. Reynolds, slip op. at 6 (¶ 9). The Court did not in any way consider or adjudicate a challenge to the temporary suspension of a business permit only while the business entity is in violation of federal law, as Ordinance 1722 § 4.B(4-6) stipulates. Nor did the Court consider the twenty-day suspension for second or subsequent violations under Ordinance 1722 § 4.B(7).4
3 Defendant’s Memo in Support of Defendant’s Motion for Summary Judgment of August 10, 2007, mistakenly states that there were two (not three) narrow state law grounds at issue in Reynolds. 4 If this Court were to regard the 20-day suspension for second or subsequent violations as so punitive as to somehow fall within the Reynolds decision and therefore be precluded (even though the Reynolds decision was specifically concerned only with the five-year-minimum denial of a business permit in Ordinance 1708), then the appropriate action would be to sever Section 4.B(7) from Ordinance 1722 and adjudicate the remainder of Ordinance 1722 on its merits. However, Defendant strongly disagrees with the notion that a 20-day suspension under the complex process and protections of Ordinance 1722 can be considered “identical” to the five-year-minimum denial of Ordinance 1708 and therefore be precluded by a judgment on the latter.
8

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 9 of 17
Indeed, only at the very end of the March 1, 2007, hearing did the issue of the denial of business permits even come up. In the closing minutes of the hearing, the Court reiterated that it was only considering the merits of challenges to two aspects of the harboring sections of Ordinances 1708 and 1715:
THE COURT: All right. So to be clear then, the Court did let everyone know that I was concerned about the excessive fines part in 1708 and the more than 30 day—or less than 30 day notice to tenants contained in the 1715, or vice-versa, I’m not sure which. Your position is the Court can sever those out? MR. LEONATTI: Yes. Transcript of March 1, 2007, hearing, 87-88. This, along with the mootness question, was all that counsel for Defendant had been notified would be considered at the March 1, 2007, hearing. Then counsel for the Reynolds plaintiffs interjected and urged the Court to also consider adjudicating the five-year-minimum employer provision of Ordinance 1708: MS. WISNIEWSKI: Well, Your Honor, first of all, our position is that there’s excessive fines for both the employment provision and the housing provision. I mean, again, you know, you come down to what has the State authorized as a punishment that a municipality can dish out. They haven’t authorized a municipality to revoke a business license with no notice and then say, We’re never going to give you one for five years. That is not an acceptable penalty. Transcript of March 1, 2007, hearing, 88 (emphasis in original). It is important to note that counsel for Plaintiffs made this request to the court only to specifically adjudicate the five-year-minimum denial of business permits in Ordinance 1708. See also id. at 82. Counsel’s reference to the revocation “with no notice” (which is a plausible reading of Ordinance 1708, but not of Ordinance 1715) also indicates that she was referring to Ordinance 1708. Eleven days later, the Reynolds court followed the prompting of counsel for the Reynolds plaintiffs and expanded the scope of the court’s review specifically to include the five-year business permit denial provision of Ordinance 1708. Reynolds, slip op. at 6-7. The court did not review the validity of the more complex business permit provisions in Ordinance 1715. Id. In their Memorandum, Plaintiffs repeatedly mischaracterize the decision of the Reynolds court, claiming that the Reynolds court declared the business permit suspension provisions of Ordinance 1715 were inconsistent with state law. See Memo. Supp. Pl. Mtn. for Summ. J., 10. However, one need only read the Reynolds opinion to see that that court did no such thing. In paragraph 9 of the court’s conclusions
9

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 10 of 17
of law, the Court states that “Ordinance No. 1708 conflicts … in that it provides for a fine of ‘not less than Five Hundred Dollars ($500.00),’ and the loss of a business permit (or its renewal) for a violation of its provisions.” Reynolds, slip op. at 6. Plainly, in this paragraph the court was referring to Ordinance 1708. Then, in paragraph 10 of the court’s conclusions of law, the court begins by referring to Ordinance 1715 and its harboring sections, but then plainly refers to the business permit section of Ordinance 1708, saying that it “forc[es] a business to forego a business permit, or renewal of a business permit, for a period of ‘not less than five (5) years.’” Reynolds, slip op. at 6-7. Thus, the court ruled on the rental provisions of both Ordinance 1708 and Ordinance 1715, but on the employment provision of Ordinance 1708 only—just as counsel for the Reynolds plaintiffs requested. Nowhere does the Reynolds decision state that the temporary suspension of a business permit during the period that the business entity is violating federal immigration law by knowingly employing an unauthorized alien is inconsistent with state law.
No matter how Plaintiffs spin the Reynolds decision, they cannot meet the “identical” issues requirement for collateral estopel. They also fail to establish that the issue was “unambiguously decided.” State ex rel. Johns v. Kays 181 S.W.3d at 566. “For declaratory actions … there is preclusive effect only for the matters actually declared.” SDDS, Inc. v. State of South Dakota, 994 F.2d 486, 492 (8th Cir. 1993) (emphasis added). The “identical” issues requirement is just not as flexible as Plaintiffs would like it to be.
While Missouri courts must find that all four elements exist before collateral estoppel may be properly applied, the first element—that the issue decided in the prior adjudication is identical with the issue presented in the present action—is paramount because it represents the very crux of the doctrine. Inasmuch as the issues before the Pension Board and the Commission were not identical, the elements of collateral estoppel were not satisfied. Point II is denied. Shelton v. City of Springfield, 130 S.W.3d 30, 36 (Mo. App. S.D. 2004). When it comes to collateral estoppel, close is not good enough. Exactly the same issue must be adjudicated. E. Ordinance 1722 Differs Significantly from Ordinances 1708 and 1715. Issue preclusion can only occur where “the issue in the present case [is] identical to the issue decided in the prior adjudication.” State ex rel. Johns v. Kays 181 S.W.3d at 566 (emphasis added). In addition, “[t]he doctrine applies only to those issues that were necessarily and unambiguously decided.” Id.
10

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 11 of 17
(emphasis added). Plaintiffs cannot come close to meeting the “identical” standard that is necessary for issue preclusion to occur. As noted above, the Reynolds court only mentioned the five-year denial of business permits found in Ordinance 1708 § 2. There is no identical provision to be found in Ordinance 1722. It is beyond any doubt that the Reynolds court did not rule on any specific provision in 1708 or 1715 that is identical to a provision found in Ordinance 1722.
Preclusion applies only when there has been “no change in controlling facts or legal principals since the state court action.” U.S. v. Stauffer Chemical Co., 464 U.S. 165, 169 (1984); Montana v. U.S., 440 U.S. 147, 159 (1979). Where an amended ordinance “is different in any presently material respect” from the original ordinance, res judicata does not apply to a subsequent facial challenge. JBK, Inc. v. Kansas City, 641 F. Supp. 893, 900 (D. Mo. 1986) (emphasis added). 5 Ordinance 1722 differs markedly from the ordinances at issue in Reynolds. As this Court recognized in its May 21, 2007, Order, “Although the ordinances are similar, the cases are distinct….” Slip. op. at 1.
The specific distinctions are numerous. Nothing in the text of Ordinance 1708 is repeated in the text of Ordinance 1722. One of the most significant changes between Ordinance 1715 and 1722 (as amended by Ordinance 1732 on June 4, 2007) is the addition of the word “knowingly” in Section 4.A: “It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part within the City.” Ordinance 1722 § 4.A. Clearly, the addition of a scienter requirement is a material one.
Moreover, none of the many provisions in Section 5 of Ordinance 1722 are found in either of the earlier ordinances (Ordinance 1708 and 1715). Section 5.A stipulates that the ordinance applies only prospectively to hires after the effective date of the ordinance. Section 5.B describes in detail three actions that a business entity may take to correct a violation of the ordinance once the business entity is notified of
5 Plaintiffs attempt to twist this long-standing principle by claiming that since Ordinance 1722 was in existence at the time the Reynolds court ruled, there was no “change in controlling facts or legal principles.” Memo. Supp. Pl. Mtn. Summ. J., 12. This argument is transparently incorrect. The inquiry concerns what is before the court, not the facts outside of the court’s scope of review. As this Court has put it, the question is whether “the ordinance before this court—either in the three sections mentioned or as a whole—is different in any presently material respect than the one before the state court.” JBK, 641 F. Supp. at 899 (emphasis added). The Reynolds court expressly declined to review the legal issue of the validity of Ordinance 1722; so the issue was plainly not “before the state court.”
11

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 12 of 17
a violation. Section 5.C provides that no enforcement occurs if federal verification of an individual’s work authorization is delayed for any reason. Section 5.D offers business entities and employees an opportunity to challenge any enforcement action before Board of Adjustment of Valley Park, subject to appeal to the Circuit Court of the County of St. Louis. And Section 5.E requires that all city officials, including the Board of Adjustment, must defer to the federal government’s determinations of any alien’s work authorization status. Ordinance 1722 §§ 5.A-E. Most importantly, none of the specific provisions in Ordinances 1708 and 1715 that the Reynolds Court found fault with are present in Ordinance 1722. Reynolds, slip op. at 6-7. Therefore, the factual and statutory scenario is now materially different.
In their Memorandum, Plaintiffs attempt to minimize these distinctions between Ordinance 1715 and 1722, asserting that “the addition of those provisions is not material to the issue of whether the penalty provisions violate Missouri law.” Memo. Supp. Pl. Mtn. for Summ. J., 10. However, Plaintiffs offer no explanation for their assertion. If they attempted one, it would be difficult. The knowledge requirement of Section 4.A reduces the scope of potential violations considerably. The addition of the provisions of Section 5 significantly affects the duration of any business permit suspension that might occur. If the business entity believes that a mistake has been made regarding the work authorization of an employee, the business entity may seek second and successive verifications of work authorization by the federal government, providing any additional information that the employee offers. During this reverification period, the business entity’s permit cannot be suspended. Ordinance 1722 § 5.B.2. This reduces the duration of any suspension of a business permit that might occur. A business permit can only be suspended after the business entity has had the opportunity to pursue reverification of the work authorization of the employee in question.
Section 5 of Ordinance 1722 also reduces the scope of possible employees whose employment might lead to the suspension of a business permit. The prospective application restriction of Section 5.A is more than it might appear at first glance. The obligations of Ordinance 1722 only apply to the hiring of future employees. This ensures that no employer is caught unawares and faces the suspension of a business permit for the hiring of an unauthorized alien in the past. This drastically reduces the scope of the
12

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 13 of 17
suspension of business permits that might occur under Ordinance 1722. It is simply implausible to say that these changes do not materially affect the suspension of business permits.6 III. DEFENDANT DID NOT HAVE “A FULL AND FAIR OPPORTUNITY TO LITIGATE THE ISSUE”
The fourth necessary condition for a court to find issue preclusion under Missouri law is that “the party against whom collateral estoppel is asserted had a full and fair opportunity to litigate the issue in the prior suit.” Allstate Ins. Co. v. Blount, 491 F.3d 903, at *13 (8th Cir. 2007). State ex rel. Johns v. Kays 181 S.W.3d at 566. Plaintiffs have not met this condition. Here again, Plaintiffs misstate the facts. Plaintiffs claim without any reference to any filings in Reynolds that, “The issue of whether Missouri law authorize the City to impose the indefinite suspension of a business license for a violation of the ordinance was fully briefed and argued before the Reynolds court.” Pl. Memo Supp. Mtn. for Summ. J., at 8. Plaintiffs make this false assertion without any reference to any briefs and without any reference to the hearings transcripts.
This assertion is particularly strange, since Plaintiffs presumably have access to all of the pleadings and memoranda that were submitted in the Reynolds case. The question of whether the five-year-minimum denial of a business permit under Ordinance 1708 was consistent with Missouri state law was never briefed by Defendant at any point during the Reynolds case. Nor did Defendant brief the issue of whether the employment provisions of Ordinance 1715 were consistent with Missouri state law. And Defendant obviously did not brief the issue of whether Ordinance 1722 was consistent with Missouri state law before the Reynolds court issued its decision on March 12, 2007.
That is because the Reynolds court had not yet scheduled any briefing or hearing on the merits of these questions. According to Judge Wallace, herself, at the time of the March 1, 2007, hearing she was not intending to reach any issues other than the mootness of Ordinances 1708 and 1715, as well as the merits of two specific state law challenges to the rental provisions therein (whether the minimum $500 fine
6 Plaintiffs also assert that the City Attorney at the March 1, 2007, hearing agreed with Plaintiffs that the “substance” of Ordinance 1722 was virtually identical to the substance of Ordinance 1715. Once again, Plaintiffs take the quotation out of context. The City Attorney had stated immediately beforehand that Ordinance 1722 included “amendments” to the employment provisions of Ordinance 1715, including “making it prospective only in its application” and the addition of “an appellate process.” The City Attorney’s reference to the “substance” of Ordinance 1715 was obviously
13

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 14 of 17
for violation of the rental provisions of Ordinance 1708 was excessive, and whether the eviction procedures of Ordinance 1715 failed to provide 30 days’ notice to tenants). In the closing minutes of the hearing, Judge Wallace reiterated that she was only intending to consider the merits of the challenge to two aspects of the harboring sections of Ordinances 1708 and 1715:
THE COURT: All right. So to be clear then, the Court did let everyone know that I was concerned about the excessive fines part in 1708 and the more than 30 day—or less than 30 day notice to tenants contained in the 1715, or vice-versa, I’m not sure which. Your position is the Court can sever those out? MR. LEONATTI: Yes. Transcript of March 1, 2007, hearing, 87-88. This, along with the mootness question, was all that counsel for Defendant had been notified would be considered at the March 1, 2007, hearing. It was after this statement by Judge Wallace that counsel for the Reynolds plaintiffs interjected and urged the court to also consider adjudicating the five-year-minimum employer provision of Ordinance 1708. Transcript of March 1, 2007, hearing, 88. The court did not indicate in response whether it would adjudicate that issue. Id., 8893. A few minutes later, the hearing ended. During the hearing, the Reynolds court did not request any supplemental briefing on the issue of whether any of the employment provisions of Ordinances 1708 and 1715 exceeded the City’s authority under state law. Id., passim. Nor did the Reynolds court request any briefing on the subject after the hearing ended. Then, eleven days later, the Court ruled that the five-yearminimum denial of a business permit in Ordinance 1708 was not permitted under Missouri law. Reynolds, slip op. at 6-7. As noted above, Plaintiffs do not, and cannot, point to any document in which the issue was “fully briefed,” as they claim. For the record, Defendants have attached as exhibits the only pre-hearing memoranda that Defendant submitted to the Circuit Court of the County of St. Louis prior to the March 1, 2007, hearing. Exhibit A is the Defendants’ Trial Brief of February 22, 2007. This 11-page brief was limited solely to the questions of whether Ordinances 1708 and 1715 were moot, whether a Sunshine Act violation had occurred (a claim which was as baseless then as it is now), and whether it was possible for the
a reference only to those provisions of 1715 that were carried over into Ordinance 1722, not a reference to Ordinance 1722 as a whole. Transcript of March 1, 2007, hearing, 49. In any event, the ordinances speak for themselves.
14

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 15 of 17
Reynolds plaintiffs to recover attorneys’ fees. The issue of whether the employment provisions of Ordinances 1708 and 1715 were consistent with state law appeared nowhere in the trial brief. Exhibit B is the Defendants’ list of Citations for Defendants’ Trial Brief of February 22, 2007. Again, none of the citations concern the validity of the employment provisions under state law. Exhibit C is the Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Judgment on the Pleadings, also submitted on February 22, 2007. This four-page memorandum addressed the mootness issue. Id., 1-2. Defendants also defended the authority of the City to enact the rental provisions of Ordinance 1708 and 1715 on pages 3-4 of the memorandum—because that was the only issue on the merits of the Reynolds plaintiffs’ petition that Defendants expected the court to cover. There is only a passing mention of the employment provisions at the bottom of page 2 (offered as an example of how they, like the rental provisions, “also mirror the State’s law”). This brief reference to the employment provisions and similar provisions of state law was only three sentences long. The three sentences did not attempt to explain why the suspension of a business permit is authorized under Missouri law and did not present the extensive case law supporting Defendant’s position in the case at bar—case law that required more that three pages of briefing in Defendant’s August 10, 2007, Memorandum for this Court. The Defendants did not attempt defend the employment provisions of Ordinances 1708 and 1715 against the Reynolds plaintiffs’ state-law claims, because the Defendants understood that the Court would not address those claims at the March 1, 2007, hearing.
Finally, imagine for the sake of argument that the Reynolds court had requested briefing on the question of whether Ordinance 1708’s five-year-minimum denial of a business permit was consistent with state law. That would have been a very different question than whether the longer and multifaceted employment provisions of Ordinance 1722 are consistent with state law. In sum, the issue simply cannot be described as “fully and fairly briefed” in the prior decision. There was no briefing on it whatsoever.
CONCLUSION Because Plaintiffs have failed to meet the first and fourth requirements for collateral estoppel to occur, Defendant requests that this Court reject Plaintiffs’ Motion for Summary Judgment and proceed to a mid-September hearing on Defendants Motion for Summary Judgment on the merits of Plaintiffs’ case.
15

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 16 of 17
Respectfully submitted by /s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu
/s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
/s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org
Attorneys for Defendant
16

Case 4:07-cv-00881-ERW Document 79-1 Filed 09/06/2007 Page 17 of 17
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 6th day of September, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH
17

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 1 of 12

IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI

STEPHANIE REYNOLDS, et al. )

Plaintiffs,

)

)

AND

)

)

JAMES ZHANG,

)

)

INTERVENOR,

)

)

V.

)

CITY OF VALLEY PARK, MO., )

et al.,

)

Defendants

)

CAUSE NO. 06-CC-3802 DIVISION NO. 13

DEFENDANTS’ TRIAL BRIEF

Defendants have elected not to brief the issues of the constitutionality and whether the City of Valley Park has statutory authority to enact Ordinances No. 1708 and 1715. This is because both ordinances have been repealed by the Board of Aldermen and new ordinances adopted. These ordinances are “moot” for the reasons set forth below. The Plaintiffs have alleged a violation of the Open Meetings Law concerning Ordinance No. 1715. If the Court determines that the statutory authority and constitutionality issues should be addressed, Defendants will file a supplemental brief.
Defendants will brief the issues of:
1

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 2 of 12
• The questions remaining to be decided by the Trial Court as a result of Ordinance No. 1715 being repealed;
• The passage of Ordinance No. 1708 and 1715 and whether a violation of the Missouri Open Meetings Law occurred;
• Whether attorney’s fees may be recovered from the City of Valley Park under the Missouri Declaratory Judgment Act
• Whether attorney’s fees may be recovered from the individual members of the Board of Aldermen under the Missouri Open Meetings Law.
Issues to be decided by the Trial Court as a result of the Repeal of Ordinance No. 1715
The question of the validity/constitutionality of Ordinances No. 1708 and 1715 is moot due to their repeal. There is no actual controversy before the Court with regard to the two prior ordinances except for the allegations concerning the Sunshine Law.
Defendants informed the Court a little over two weeks ago that the Board of Aldermen was going to consider revisions to Ordinance No. 1715. This ordinance was the subject of a restraining order issued by this court and has never been enforced. The restraining order was issued the day after No. 1715 was approved by the Board
2

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 3 of 12
of Aldermen. The Board of Aldermen passed Ordinances No. 1721 and 1723, which repealed No. 1715. Plaintiffs’ lawyer took the position, in a letter to this Court, that No. 1715 was not repealed. As a result, the Board met again to adopt language to make it clear that No. 1715 was repealed.
A storm of protest ensued from Plaintiffs’ lawyers based on the Missouri Supreme Court’s decision in R.E.J. INC. v. City of Sikeston, 142 SW3d 744 (Mo. 2004). This case involved a petition to declare a zoning ordinance void and unenforceable. An adjoining landowner intervened in the case. The City repealed the Ordinance before the case went to trial and the Circuit Court dismissed the lawsuit. Plaintiff sought attorney’s fees and a declaration that the passage of the zoning ordinance violated the Open Meetings Law. The Supreme Court held that the repeal of the zoning ordinance could not abolish Plaintiff’s right to pursue a violation of the Open Meetings Law and to have the question of whether the Law was “purposely” violated determined. This was the only issue before the Supreme Court. Obviously, the Court held that you could not make a violation of the Open Meetings Law go away by repealing the ordinance which was the subject of the violation. This is consistent with an earlier decision
3

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 4 of 12
involving the City of St. Ann, where it was held that even though an ordinance was repealed which appointed the Mayor to another paid municipal position, plaintiff had standing as a taxpayer to recover the funds paid as salaries under the repealed ordinance. Even though the ordinance creating the new paid position for the Mayor had been repealed, the entire proceeding was not moot. The court needed to decide the salary issue, see Matthew v. St. Ann, 457 SW2d 765 (Mo. Div. II, 1970).
With regard to Ordinance No. 1715, the trial court has to determine if the Sunshine Law was violated when the ordinance was approved by the Board of Aldermen and signed by the Mayor.
At trial, the evidence will be clear that there was no violation of the Sunshine Law.
The City of Valley Park posted the required notice, within the required time, in the usual location. Section 610.020 RSMo. describes the procedure which must be followed in providing notice to the public. This includes posting the Notice on a bulletin board or other prominent place at least twenty-four (24) hours before the meeting, exclusive of weekends and holidays.
4

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 5 of 12
Subparagraph Seven (7) of Section 610.020, requires a journal or record to be kept which shall include any votes taken.
The City of Valley Park is a City of the Fourth Class under Missouri law. Section 79.130 RSMo. sets forth the procedure required to pass an ordinance. The proposed bill may be read by “title only” twice and approved at the meeting where it is first read, if the bill is available for public inspection prior to consideration by the Board of Aldermen. Most municipalities satisfy this requirement by posting the text of the bill with the Agenda for the Board’s meeting.
The evidence will verify that the City Clerk kept a record of the proceedings and recorded the vote of the Aldermen in the required journal.
The actual facts supporting Plaintiffs’ claimed violation are vague but it is assumed that it deals with the procedure used in approving the ordinance.
The Ordinance was posted with the notice of the meeting. Thus, state law permitted the proposed ordinance to be read by “Title Only”, without reading the text of the proposed ordinance, and passage to occur after two readings by “Title Only.”
5

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 6 of 12
The remaining issues in Plaintiffs’ Second Amended Petition are moot. In Central Moloney Inc., Transformer Div. v. St. Louis, 527 SW2d 39 (Mo.App.E.D. 1975) the appellate court discussed the meaning of the word “moot”:
A question is Moot when the question presented for decision seeks a judgment upon some matter which if judgment were rendered could not have any practical effect on any than existing controversy. If the matter is moot, there is no actual controversy for the court to decide. A clear example is found in C.C. Dillon Co. v. City of Eureka, 12 SW3d 322 (Mo. 2000). This case involved a Declaratory Judgment action concerning legislation regulating billboards. The law was repealed and replaced by new legislation. The Declaratory Judgment action concerning the old billboard law was moot. There was not an actual controversy. Another example of the lack of an actual controversy caused by the repeal of a statute is Bank of Washington v. McAuliffe, 676 SW2d 483 (Mo. 1984). What is the practical effect of a ruling on Ordinance No. 1715 on any issue other than the Sunshine Law? There is no existing controversy, and the Court should focus its attention on the new Ordinance.
6

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 7 of 12
Defendants have offered to substitute the new ordinances in place of No. 1715 for the Court’s consideration and to continue the restraining order. This effort to focus the Court’s attention on the real issue was not acceptable to the Plaintiffs. Rather, the armada of Plaintiffs’ lawyers are more interested in recovering attorney’s fees for their “pro bono” work. The Passage of Ordinance No. 1708 & 1715 did not violate the Open Meetings Law.
Assuming Plaintiffs are granted leave to amend their Second Amended Petition by interlineations, the allegations concerning the Open Meetings law are found in Paragraph Twenty-Six (26) (d). It alleges that the defendants discussed and deliberated the enactment of Ordinance No. 1715 without notice to the public, without allowing for public access, and without recording or journaling the events.
This paragraph does not set forth any facts on which these allegations are based. It should also be noted that these allegations are made as to Ordinance No. 1715, only, and not No. 1708.
The deliberation and passage of No. 1715 could not have been a surprise to the Plaintiffs; they obtained a restraining order from this Court the day after the ordinance was passed.
7

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 8 of 12
Section 79.130 RSMo. permits a Fourth Class City to post the ordinance, and then read by “title only” at the same meeting before passage. There are no facts which support a claim that this did not occur in a proper manner. The Plaintiffs have also been provided with the minutes recording the vote on the ordinance.
Section 610.020 RSMo. sets forth the requirements for posting notice of a public meeting. It must be given twenty four (24) hours in advance, exclusive of weekends and holidays, unless good cause permits a shorter notice period. The Notice/Agenda should be posted on a bulletin board or other prominent place which is easily accessible to the public. These requirements were met by the City of Valley Park. Attorney’s Fees cannot be recovered against the City of Valley Park pursuant to the Missouri Declaratory Judgment Act because it is a political subdivision of the State of Missouri
Defendants have previously filed with the Court a Memorandum in support of their Motion to Dismiss Plaintiffs Claim for Attorney’s Fees. The Court has carefully reviewed this issue and Defendants will not occupy space with a redundant argument.
Suffice it to say that Baumli v. Howard County, 660 SW2d 702 (Mo. 1983) and Tillis v. City of Branson, 975 SW2d 949, note (1),
8

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 9 of 12
(Mo.App.S.D. 1998) are the controlling precedent. The City of Valley Park is a political subdivision of the state of Missouri. The Board of Aldermen, since they were sued in their official capacity, have already been dismissed as Defendants with regard to the Declaratory Judgment action. Attorney’s Fees cannot be recovered from the City of Valley Park or the Board of Aldermen because there was not violation of the Missouri Open Meetings Law.
Paragraph 26(d) of Plaintiffs’ proposed amendment by interlineations alleges that the Board of Aldermen committed a “knowing” violation in the passage of Ordinance No. 1715, only.
The “knowing” language comes from Section 610.027.3 RSMo. This permits the Court to consider an award of attorney’s fees if a member of the governmental body or the governmental body knowingly violated the Open Meetings Law. The leading case in this area is Spradlin v. City of Fulton, 982 SW2d 255 (Mo. 1998). It requires more than mere intent to engage in conduct which violates the law. The Plaintiff has to demonstrate conscious design, intent, or plan to violate the law and to do so with awareness of the public consequences, id. at P. 262.
9

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 10 of 12
At the time of the decision in Spradlin, the statute used the word “purposely” and the Supreme Court defined “purposely” to mean “intentionally; designedly; consciously; knowingly.” Id. at P. 262 quoting Black’s Law Dictionary 1236 (6th ed. 1990).
In 2004, the General Assembly enacted Senate Bill 1020. This changed “purposely” to “knowingly” as the standard for awarding attorney’s fees, and then used “purposely” as the standard to determine if a fine should be imposed under Section 610.027 RSMo.
For purposes of the case at bar, these different words are inconsequential because no violations occurred. CONCLUSION
The only issue before the Court is whether attorney’s fees should be awarded to “pro bono” lawyers.
Ordinances No. 1708 and 1715 are moot. There was no violation of the Open Meetings Law. Attorney’s fees cannot be awarded and collected under the Declaratory Judgment Act against a political subdivision.
10

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 11 of 12
Respectfully Submitted,

_________________________ LOUIS J. LEONATTI(#24011) LEONATTI & BAKER, P.C. P.O. BOX 758 MEXICO, MISSOURI 65265 Phone (573) 581-2211 Fax (573) 581-6577 Attorney for Defendants
Proof of Service
The undersigned certifies that a copy of the foregoing instrument was served by facsimile or e-mail upon the attorneys of record of all parties to the above cause on the 22nd day of February, 2007.

Mr. John Ammann St. Louis University Legal Clinic Fax: 314-977-3334
Mr. Alan J. Baker Leyhe ML & L Fax: 314-647-5314
Ms. Karen Tokarz Washington University School of Law Fax: 314-935-5356
Ms. Kathy Wisniewski Bryan Cave L.L.P. Fax: 314-259-2020
Via E-mail Only:
Mr. Kris Kobach Mr. Eric Martin

___________________________ Louis J. Leonatti

11

Case 4:07-cv-00881-ERW Document 79-2 Filed 09/06/2007 Page 12 of 12

LIST OF CITATIONS FOR DEFENDANTS’ TRIAL BRIEF REYNOLDS, et al. V. CITY OF VALLEY PARK, et al. CAUSE NO. 06-CC-3802

Document Page No. P. 3 P. 4
P. 6
P. 6
P. 6
P. 8 P. 8
P. 9

Citation
R.E.J. Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo., 2004)
Matthew v. City of St. Ann, 457 S.W.2d 765 (Mo. Div. II, 1970)
Central Moloney, Inc., Transformer Div. v. St. Louis, 527 S.W.2d 39 (Mo.App.E.D., 1975)
C.C. Dillon Co., v. City of Eureka, 12 S.W.3d 322 (Mo., 2000
Bank of Washington v. McAuliffe, 676 S.W.2d 483 (Mo., 1984)
Baumli v. Howard County, 660 S.W.2d 702 (Mo., 1983)
Tillis v. City of Branson, 975 S.W.2d 949, note one, (Mo.App.S.D., 1998)
Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo., 1998)

12

Case 4:07-cv-00881-ERW Document 79-3 Filed 09/06/2007 Page 1 of 1

LIST OF CITATIONS FOR DEFENDANTS’ TRIAL BRIEF REYNOLDS, et al. V. CITY OF VALLEY PARK, et al. CAUSE NO. 06-CC-3802

Document Page No. P. 3 P. 4
P. 6
P. 6
P. 6
P. 8 P. 8
P. 9

Citation
R.E.J. Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo., 2004)
Matthew v. City of St. Ann, 457 S.W.2d 765 (Mo. Div. II, 1970)
Central Moloney, Inc., Transformer Div. v. St. Louis, 527 S.W.2d 39 (Mo.App.E.D., 1975)
C.C. Dillon Co., v. City of Eureka, 12 S.W.3d 322 (Mo., 2000
Bank of Washington v. McAuliffe, 676 S.W.2d 483 (Mo., 1984)
Baumli v. Howard County, 660 S.W.2d 702 (Mo., 1983)
Tillis v. City of Branson, 975 S.W.2d 949, note one, (Mo.App.S.D., 1998)
Spradlin v. City of Fulton, 982 S.W.2d 255, 262 (Mo., 1998)

1

Case 4:07-cv-00881-ERW Document 79-4 Filed 09/06/2007 Page 1 of 5

IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS, STATE OF MISSOURI

STEPHANIE REYNOLDS, et al. )

Plaintiffs,

)

)

AND

)

)

JAMES ZHANG,

)

)

INTERVENOR,

)

)

V.

)

CITY OF VALLEY PARK, MO., )

et al.,

)

Defendants

)

CAUSE NO. 06-CC-3802 DIVISION NO. 13

DEFENDANT’S MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR JUDGMENT ON THE PLEADINGS
Plaintiffs armada of attorneys have filed another Motion. They seek a judgment on the pleadings based on the theory that Ordinances No. 1708 and 1715 conflict with Section 79.470; Section 441.060 and 441.233 R.S.Mo., and Missouri’s Landlord Tenant Law.
The Motion ignores the fact that Ordinance No. 1715 revised and repealed Ordinance No. 1708.
Plaintiffs’ Motion ignores the fact that Ordinance No. 1715 has been repealed and replaced by Ordinances No. 1721 and 1722.
The Plaintiffs are asking the Court to rule on an issue which is moot. The only issue which is before the Court is whether or not the passage of Ordinance No. 1715 violated the Missouri Open Meetings Law.
In reviewing a Motion for Judgment on the Pleadings, the Court has to review the pleaded facts and determine if they are sufficient as a matter of

1

Case 4:07-cv-00881-ERW Document 79-4 Filed 09/06/2007 Page 2 of 5
law to grant judgment. The movant admits for purposes of the motion, the truth of all well pleaded facts in the opposing party’s pleadings. It is similar to ruling on a Motion to Dismiss. See Kraus v. Hy-vee, Inc. 147 S.W.3d 907 (Mo.App. W.D., 2004) citing State ex rel. Nixon, v. the American Tobacco Company, 34 S.W.3d 122, 134 (Mo., 2000). Defendants’ Amended Answer sets forth the repeal of the Ordinance and that the controversies concerning Ordinance No. 1715 are moot.
The decisions in Central Moloney, Inc., Transformer Division v. St. Louis, 527 S.W.2d 39 (Mo.App. E.D., 1975) and C.C. Dillon Co. v. City of Eureka, 12 S.W.3d 322 (Mo., 2000) are controlling.
There is not an actual controversy before the Court other than the Sunshine Law allegations. Ordinances No. 1708 and 1715 have been repealed. The issue before the Court with regard to 1715 is whether or not the Open Meetings Law was violated. Curiously, in their Motion for Judgment on the Pleadings, Plaintiffs have abandoned this theory for invalidating the Ordinance.
The Motion ignores the fact that the Ordinances also mirror the State’s law with regard to employment. Section 8.283 R.S.Mo. prohibits a state agency from contracting with any individual employer who hires illegal aliens. Section 288.040 R.S.Mo. prohibits illegal aliens from collecting unemployment benefits.
8 U.S.C.S. Section 1324a (H-2) permits a state or local government to enforce a ban on hiring illegal immigrants through licensing or similar laws. In De Canas, v. Bica, 424 U.S. 351 (1976), the United States Supreme Court upheld the constitutionality of a California statute which forbade the employment of illegal immigrants in the State of California.
2

Case 4:07-cv-00881-ERW Document 79-4 Filed 09/06/2007 Page 3 of 5
If the Court wishes to go beyond the Sunshine Law issue concerning Ordinance No. 1715 and No. 1708, it need look no further than the valid exercise of the police power by a Fourth Class City under Section 79.110 R.S.Mo.. The police power bestows broad authority upon cities to pass ordinances for the health and safety of its citizens. See Miller v. City of Town & Country, 62 S.W.3d 431, 437 (Mo.App., 2001).
In the case of Western District Charles Ashworth v. City of Moberly, 53 S.W.3d 564 (Mo.App. 2001), the Kansas City Court of Appeals considered the issue of whether a Third Class City could enact an ordinance requiring a landlord to obtain a rental permit. The issuance of the permit was conditioned on inspection of the rental unit and the payment of a fee. One of the theories used in the unsuccessful challenge of the ordinance was the absence of statutory authority.
This argument was soundly rejected based on the Third Class City’s proper exercise of its police power under Sections 77.260 and 77.590 R.S.Mo. to establish minimum housing standards. id at P.578.
In the case of Lewis v. City of University City, 143 S.W.3d 25, corrected at 2004 Mo.App. Lexis 1119, the Court upheld the exercise of an implied power under the police power to order a home not to be occupied if it was used for the sale of illicit drugs. The Court of Appeals in reaching its decision held that;
• Ordinances are presumed to be a valid exercise of police power, and the party challenging the Ordinance carries the burden of showing that it is unreasonable;
• A municipal ordinance will be deemed a legitimate exercise of police power if the express requirements of the ordinance bear a substantial and rational relationship to the health, safety, peace
3

Case 4:07-cv-00881-ERW Document 79-4 Filed 09/06/2007 Page 4 of 5
and general welfare of the citizenry; if reasonable minds could differ whether a specific ordinance has a substantial relationship with the public health, safety, peace, comfort and general welfare, the issue must be decided in favor of the ordinance.
Motions for Judgment on the Pleadings are rarely granted. The ordinances cited in the Motion are moot. If the Court decides it wants to move forward and consider an issue besides the Sunshine Law, it need look no further than the police power to determine that the City of Valley Park has sufficient authority to enact the ordinance.
Respectfully Submitted,
_________________________ LOUIS J. LEONATTI(#24011) LEONATTI & BAKER, P.C. P.O. BOX 758 MEXICO, MISSOURI 65265 Phone (573) 581-2211 Fax (573) 581-6577 Attorney for Defendants Proof of Service The undersigned certifies that a copy of the foregoing instrument was served by facsimile or e-mail upon the attorneys of record of all parties to the above cause on the 22nd day of February, 2007.
___________________________ Louis J. Leonatti
4

Case 4:07-cv-00881-ERW Document 79-4 Filed 09/06/2007 Page 5 of 5
Mr. John Ammann St. Louis University Legal Clinic Fax: 314-977-3334 Mr. Alan J. Baker Leyhe ML & L Fax: 314-647-5314 Ms. Karen Tokarz Washington University School of Law Fax: 314-935-5356 Ms. Kathy Wisniewski Bryan Cave L.L.P. Fax: 314-259-2020 Via E-mail Only: Mr. Kris Kobach Mr. Eric Martin
5

 
 Case 4:07-cv-00881-ERW Document 80 Filed 09/06/2007 Page 1 of 7

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

DEFENDANT’S STATEMENT OF CONTROVERTED MATERIAL FACTS On August 29, 2007, Plaintiffs filed a Statement of Uncontroverted Material Facts along with Plaintiffs’ Motion for Summary Judgment based on issue preclusion. Defendant City of Valley Park, Missouri, regards Plaintiffs’ Statement of Uncontroverted Material Facts to be misleading with respect to several references to the Transcript of the March 1, 2007, hearing before the Circuit Court of the County of St. Louis in the case of Reynolds v. Valley Park, 06-CC-3802. Defendant also regards Plaintiffs’ Statement of Uncontroverted Material Facts to be misleading with respect to references to the decision of the Circuit Court of the County of St. Louis in Reynolds. Specifically, Defendants consider paragraphs 27 and 33 of the Plaintiffs’ Statement of Uncontroverted Material Facts to be misleading. In addition, Defendant would like to present a number of additional facts that will assist the Court in resolving Plaintiffs’ Motion for Summary Judgment. Accordingly, Defendant hereby avers that the following material facts are true. 1. At the beginning of the March 1, 2007, hearing before the Circuit Court of the County of St. Louis in the case of Reynolds v. Valley Park, 06-CC-3802, the court stated that it was limiting its inquiry to Ordinances 1708 and 1715: “We’re going [to] today have a brief argument on whether or not the Court can consider if 1708 and 1715 are void or that the repeal of those two ordinances takes that issue out [of] the Court’s hands as being moot, and then we’re going move to Plaintiffs’ motion for judgment….”

1

Case 4:07-cv-00881-ERW Document 80 Filed 09/06/2007 Page 2 of 7
Transcript of March 1, 2007, hearing (Plaintiffs’ Exh. I attached to Pl. Statement of Uncont. Mat. Facts),
at 5.
2. At the end of the March 1, 2007, hearing the court stated that it had informed counsel that it
was only considering two substantive challenges to Ordinances 1708 and 1715: “All right. So to be clear
then, the Court did let everyone know that I was concerned about the excessive fines part in 1708 and the
more than 30 day—or less than 30 day notice to tenants contained in the 1715, or vice-versa, I’m not sure
which. Your position is the Court can sever those out?” Id. at 87.
3. Counsel for Reynolds plaintiffs stated at the March 1, 2007, hearing: “But the law is clear that
this court can and should decide the validity of the entirety of both Ordinances 1708 and No. 1715 on any
ground that this court believes that it should be voided.” Id. at 18.
4. Contrary to the implication paragraph 27 of Plaintiffs’ Statement of Uncontroverted Material
Facts, the only discussion of Ordinance 1722 at the March 1, 2007, hearing was in the context of:
(a) formally presenting Ordinance 1722 to the court, Transcript of March 1, 2007, hearing, at 35, 37, 41, 44-46, 90, (b) stating that the City offered the Reynolds plaintiffs the opportunity to substitute Ordinance 1722 for Ordinances 1708 and 1715 and amend their petition accordingly, id. at 47, (c) describing the drafting and passage of the ordinance, id. at 50-51, 56-58, (d) noting its similarity to various state statutes, id. at 84, and (e) the City expressing the hope that the Court would review Ordinance 1722 at a future hearing, id. at 87.
5. At the March 1, 2007, hearing counsel for Defendant stated under oath the following:
Q: …[D]id the City of Valley Park and the Defendants offer to substitute Ordinance 1721 and 1722 in place of 1708 and 1715 and have the Court’s preliminary injunction apply to it? A: Yes Sir. … Q: And that offer was not accepted? A: That’s correct.
Transcript of March 1, 2007, hearing, at 47-48.
6. At the end of the March 1, 2007, hearing, counsel for the City stated the following: “We
frankly look forward to hopefully the Court having to deal with 1721, 1722. Plaintiff[s] said we can’t
2

Case 4:07-cv-00881-ERW Document 80 Filed 09/06/2007 Page 3 of 7
force them to take those ordinances on, but there’s obviously a reason why they don’t want to take them on.” Id. at 87.
6. The Reynolds decision stated that the validity of Ordinance 1721 and Ordinance 1722 was not before the court. In the words of the court, “Defendant has represented to this Court that it recently repealed Ordinance No. 1715, and admitted into evidence the new ordinances only for the purpose of its argument on mootness. Plaintiffs have not amended their pleadings to put the issue of the validity of the new ordinances before the Court.” Reynolds v. Valley Park, No. 06-CC-3802, slip op. at 3 (¶10) (emphasis added) (Reynolds opinion may be found in Plaintiffs’ Exh. J attached to Pl. Statement of Uncont. Mat. Facts).
7. The Reynolds decision stated that the following specific employment provision conflicted with state law: “Ordinance No. 17151 conflicts with Mo.R.Stat. § 79.470 in that it penalizes a violation of its provisions by … forcing a business to forego a business permit, or renewal of a business permit, for a period of ‘not less than five (5) years.’” Reynolds v. Valley Park, No. 06-CC-3802, slip op. at 6-7 (¶10).
8. There is no provision that includes the denial of a business permit for a period of “not less than five (5) years” in Ordinance 1722. Ordinance 1722 (Exhibit H attached to Pl. Statement of Uncont. Mat. Facts).
9. The Reynolds decision did not conclude that any provision of Ordinance 1722 was in violation of state law. Reynolds v. Valley Park, No. 06-CC-3802, passim.
10. The Reynolds decision did not enjoin Ordinance 1722 or declare it void in any respect. Reynolds v. Valley Park, No. 06-CC-3802, passim.
11. In contrast to the partial quotation offered by Plaintiffs in paragraph 33 of Plaintiffs’ Statement of Uncontroverted Material Facts, the full text in the Reynolds opinion reads as follows:
Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, the Court finds and concludes under R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo. banc. 2004), and Northeastern Florida Chapter of the Assoc. General Contractors of America v. City of Jacksonville, 1 The Reynolds court mistakenly indicated that the five-year provision was located in Ordinance 1715, when it was actually located in Ordinance 1708, section 2.
3

Case 4:07-cv-00881-ERW Document 80 Filed 09/06/2007 Page 4 of 7
508 U.S. 656, 661-62 (1993), this case is not moot. When a party files suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing the ordinance. Id. Furthermore, the Court finds the new ordinances are “sufficiently similar” to the old ordinances in that they are aimed at the same people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue. City of Jacksonville, supra, 508 U.S. at 662-63 and n. 3.
Reynolds, slip op. at 5 (emphasis indicates text omitted by Plaintiffs).
12. Ordinance 1722 contains the word “knowingly” in Section 4.A: “It is unlawful for any
business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch,
or instruct any person who is an unlawful worker to perform work in whole or in part within the City.”
The equivalent provision in Ordinance 1715 does not contain the word “knowingly.” Ordinance 1722 §
4.A; Ordinance 1715 § 4.A (Exhibit D attached to Pl. Statement of Uncont. Mat. Facts).
13. The text of Section 5 of Ordinance 1722, which is not found in Ordinance 1715, provides as
follows:
A. Prospective Application Only. The default presumption with respect to Ordinances of the City of Valley Park – that such Ordinances apply only prospectively – shall pertain to the provisions of this Ordinance, which shall apply only to employment contracts, agreements to perform service or work, and agreements to provide a certain product in exchange for valuable consideration that are entered into or renewed after the date that this Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed.
B. Correction of Violations–Employment of Unlawful Workers. The correction of a violation with respect to the employment of an unlawful worker shall include any of the following actions:
(1) The business entity terminates the unlawful worker's employment.
(2) The business entity, after acquiring additional information from the worker, requests a secondary or additional verification by the federal government of the worker's authorization, pursuant to the procedures of the Basic Pilot Program. While this verification is pending, the three business day period described in Section 4.B.(4) shall be tolled.
(3) The business entity attempts to terminate the unlawful worker's employment and such termination is challenged in a Court of the State of Missouri. While the business entity pursues the termination of the unlawful worker's employment in such forum, the three business day period described in Section 4.B(4) shall be tolled.
4

Case 4:07-cv-00881-ERW Document 80 Filed 09/06/2007 Page 5 of 7
C. Procedure if Verification is Delayed. If the federal government notifies the City of Valley Park that it is unable to verify whether an employee is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any city official attempt to make an independent determination of any alien's legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c).
D. Deference to Federal Determinations of Status. The determina-tion of whether a tenant of a dwelling is lawfully present in the United States, and the termination of whether a worker is an unauthorized alien shall be made by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). A determination of such status of an individual by the federal government shall create a rebuttal presumption as to that individual's status in any judicial proceedings brought pursuant to this Ordinance. The Court may take judicial notice of any verification of the individual previously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to United States Code Title 8, Subsection 1373(c).
E. Venue for Judicial Process. Any business entity subject to a complaint and subsequent enforcement under this Ordinance, or any employee of such a business entity, may challenge the enforcement of this Ordinance with respect to such entity or individual before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right of appeal to the St. Louis County Circuit Court. Such an entity or individual may alternatively challenge the enforcement of this Ordinance with respect to such entity or individual in any other Court of competent jurisdiction in accordance with applicable law, subject to all rights of appeal.
Ordinance 1722 § 5.
14. The Defendants’ Trial Brief of February 22, 2007, in the Reynolds litigation did not address
the issue of whether the employment provisions of Ordinances 1708 and 1715 were consistent with state
law. See Exhibit A attached to Def. Memo. in Opposition to Pl. Mtn. for Summ. J.
15. The Defendants’ list of Citations for Defendants’ Trial Brief of February 22, 2007, did not
concern the validity of the employment provisions of Ordinances 1708 and 1715 under state law. See
Exhibit B attached to Def. Memo. in Opposition to Pl. Mtn. for Summ. J.
16. The Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Judgment on the
Pleadings, of February 22, 2007, contains only a brief reference to the employment provisions of
5

Case 4:07-cv-00881-ERW Document 80 Filed 09/06/2007 Page 6 of 7
Ordinances 1708 and 1715 at the bottom of page 2. See Exhibit C attached to Def. Memo. in Opposition to Pl. Mtn. for Summ. J.
Respectfully submitted by /s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu /s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com /s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org Attorneys for Defendant
6

Case 4:07-cv-00881-ERW Document 80 Filed 09/06/2007 Page 7 of 7
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 6th day of September, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH
7

 
 Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 1 of 52

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 2 of 52
TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv-viii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. ORDINANCE 1722 IS NOT PREEMPTED BY FEDERAL IMMIGRATION LAW . . . 2
A. The Heavy Presumption Against Preemption Must be Applied . . . . . . . . . . . . . . . . . . 2 B. Plaintiffs Cannot Avoid the Express Language of 8 U.S.C. 1324a(h)(2) . . . . . . . . . . . 4 C. Plaintiffs Misconstrue the Committee Report by Inserting a Requirement of
Prior Federal Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. A Committee Report Cannot Trump the Language of a Statute in Any Case . . . . . . 9 E. Ordinance 1722 is a Licensing Law Within the Meaning of 8 U.S.C. § 1324a(h)(2) . .9 F. Plaintiffs Ask this Court to Second-Guess a Policy Decision of Congress . . . . . . . . . 11 G. Ordinance 1722 Does Not Conflict with the Basic Pilot (E-Verify) Program
in Any Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 H. Re-Verification of Employees is Permitted Under Federal Law . . . . . . . . . . . . . . . . . 17 I. Plaintiffs’ Assertions Regarding Casual Domestic Workers and Independent
Contractors are Incorrect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 J. Preemption Principles Do Not Require a Locality to Replicate an Office
Within the U.S. Department of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 K. Plaintiffs’ Reliance on Hines v. Davidowitz to Assert Field Preemption is
Misplaced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 L. Implied Preemption Does Not Usually Exist in the Presence of Express
Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 II. PLAINTIFFS’ EQUAL PROTECTION ARGUMENT CANNOT SURVIVE . . . . . . . . .29
A. Plaintiffs Lack Standing to Raise Their Equal Protection Claim . . . . . . . . . . . . . 29 B. Plaintiffs’ Theory Lacks State Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 C. Plaintiffs’ New Equal Protection Theory is Equally Flawed . . . . . . . . . . . . . . . . . 35 III. PLAINTIFFS’ DUE PROCESS CLAIM IS MERITLESS . . . . . . . . . . . . . . . . . . . . . . . . .37 IV. ORDINANCE 1722 DOES NOT CONTRAVENE MISSOURI LAW REGARDING IMPRISONMENT AND FINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 3 of 52
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
iii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 4 of 52
TABLE OF AUTHORITIES
Federal Cases Adickes v. S.H. Kress and Co., 398 U.S. 144, 150-52 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 236 (2d Cir. 2006) . . . . . . . . . . . . . 23, 30, 33 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (U.S. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 BP Am. Prod. Co. v. Burton, 127 S. Ct. 638, 649 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001) . . 41 California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 (1987) . . . . . . . . . . . . . . 34 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 34 City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195-96 (2003) . . . . . . . . . 39 Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 (1992) . . . . . . . . . . . . . . . . . . . . 11 Craig v. Boren, 429 U.S. 190 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 De Canas v. Bica, 424 U.S. 351 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim EEOC v. Commercial Office Products Co., 286 U.S. 107, 120 (1988) . . . . . . . . . . . . . . . . . . . . . . 21 Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004) . . . . . . . . . . . . . . . . 31 Exxon Mobil Corp. v. Allapattah Services, Inc. 545 U.S. 546, 568 (2005) . . . . . . . . . . . . . . . . . . . 14 Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 111-12 (1992) . . . . . . . . . . . 10, 21 Garcia v. United States, 469 U.S. 70, 75 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Geier v. Am. Honda Motor Co., 529 U.S. 861, 907 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 33 Goldberg v. Kelly, 397 U.S. 254, 268-69, (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Hines v. Davidowitz, 312 U.S. 52 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 n. 4 . . . . . . . . . . . . . . . . . . . . . . . .14
iv

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 5 of 52
Incalza v. Fendi, 479 F.3d 1005, 1011 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 40, 43 Jenkins v. Immigration and Naturalization Services, 108 F.3d 195 (9th Cir. 1997) . . . . . . . . . . . . 26 King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Kowalski v. Tesmer, 543 U.S. 125 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37, 38 Lozano v. City of Hazleton, 496 F.Supp. 2d 477 (M.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . .17 Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) . . . . . . . . . . . . . . . . . . . . . . 37, 41, 42 Lyons v. City of Los Angeles, 461 U.S. 95,105-106 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Matthews v. Eldridge, 424 U.S. 319, 333 (U.S. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 McGowan v. Maryland, 366 U.S. 420, 429-430 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 38 Medtronic, Inc. v. Lohr, 518 U.S. 470, 485(1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Mester Mfg. Co. v. INS, 879 F.2d 561, 567 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Nat'l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999) . . . . . . . . . . . . . . . 7 Nat'l College Athletic Assoc. v. Tarkanian, 488 U.S. 179, 191 (1988) . . . . . . . . . . . . . . . . . . . . . . 40 New El Ray Sausage Co. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . .14 Noe v. Henderson, 456 F.3d 868, 870 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Plyler v. Doe, 457 U.S. 202, 225 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Powers v. Ohio, 499 U.S. 400, 411 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 34 Robinson v. Shell Oil Co., 519 U.S. 337, 340 (U.S. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Sprietsma v. Mercury Marine, 537 U.S. 51, 69 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 33 Thompson v. Adams, 268 F.3d 609, 613 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Toll v. Moreno, 458 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
v

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 6 of 52
Trs. of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 454 (1993) . . . . . . . . .11 United States v. Gonzales, 520 U.S. 1, 6 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Locke, 529 U.S. 89, 108 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States v. Raines, 362 U.S. 17, 22 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 United States v. Smith, 35 F.3d 344 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Wang v. Immigration & Naturalization Service, 622 F.2d 1341 (9th Cir. 1980) . . . . . . . . . . . . . . .16 Warth v. Seldin, 422 U.S. 490, (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Wickersham v. City of Columbia, 481 F.3d 591, 597-99 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . . . .40 Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597, 612-13 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
State Cases Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 McLellan v. Kansas City, 379 S.W.2d 500, 504 (Mo. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Miller v. City of Town & Country, 62 SW3d 431, 437 (Mo.App. E.D. 2001) . . . . . . . . . . . . . . . . 48 Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140 (Mo. Ct. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Safeharbor Employer Servs. I, Inc. v. Cinto Velazquez, 860 So. 2d 984, 986 (Fl. Ct. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 St. Louis v. Liberman, 547 S.W.2d 452, 457 (Mo. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
Federal Statutes 110 Stat. §§3009-655 through 3009-666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 115 Stat. § 2407. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 117 Stat. §§ 1944-46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1986 U.S.C.C.A.N. § 5649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16, 23 42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
vi

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 7 of 52
8 U.S.C. § 1324a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 19, 21, 29 8 U.S.C. § 1324a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 8 U.S.C. § 1324a(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 8 U.S.C. § 1324a(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 8 U.S.C. § 1324a(e)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 8 U.S.C. § 1324a(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 8 U.S.C. § 1324a(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 8 U.S.C. § 1324b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 8 U.S.C. § 1324b(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 8 U.S.C. § 1324b(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 39 8 U.S.C. § 1373(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23, 28, 44 8 U.S.C. §§ 1324a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 8 U.S.C. §1324(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 8 U.S.C. §1324a(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 8 U.S.C. §1324b(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 H.R. Rep. 99-682(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16, 23 8 U.S.C. § 1324a(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 8 U.S.C. 1324a(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 15 Pub. L. 104-208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 25 Pub. L. 107-128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Pub. L. 108-156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 United States Code Title 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 State Statutes K.S.A § 17-280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Nebraska 23356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
vii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 8 of 52
R.S.Mo. § 79.479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47 R.S.Mo. § 94.270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Federal Rules 9th Cir. 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 16 Federal Regulations 8 C.F.R. § 274a.1(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 8 C.F.R. § 274a.1(l)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 8 C.F.R. §274a.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 8 C.F.R. §274a.1(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Other Authorities Form I-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24, 25, 26, 27
viii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 9 of 52
ARGUMENT In their Amended Response Memorandum, Plaintiffs concede that there are no genuine issues of material fact that must be resolved before this Court can adjudicate Plaintiffs’ preemption claim and state law claim. Pl. Amd. Resp. Memo. 4. However, Plaintiffs still seem rather uncertain in this regard. Plaintiffs make a fleeting attempt to present an issue of material fact regarding preemption in their September 18, 2007, Memorandum, claiming implausibly that “whether the nature or enforcement of Ordinance 1722 brings it within the ‘licensing law’ exception” of 8 U.S.C. § 1324a(h)(2) can be construed as a “factual issue.” Pl. Memo. Supp. Mtn. for Contin. 7. However, this matter of express preemption under 8 U.S.C. § 1324a(h)(2) is obviously a question of statutory interpretation—not one of fact. Then, in their September 26, 2007, Memorandum, Plaintiffs change course once again and concede that there are no controverted issues of material fact regarding their express preemption claim, but state that there might be issues of material fact that could be discovered regarding their conflict preemption claim. Pl. Reply Supp. Rule 56(f) Mtn. and Stay 4. Plaintiffs do not explain how a conflict preemption claim could possibly turn on a factual question, much less what the particular factual question is in this case. Id. It is well established in constitutional jurisprudence that “[p]reemption is a question of law….” Nat'l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999)); Noe v. Henderson, 456 F.3d 868, 870 (8th Cir. 2006). It is not, and never has been, an issue of fact. It is a legal inquiry into the question of whether a state or local statute conflicts with federal law, either expressly or impliedly. Thus, there is certainly no impediment to this Court ruling on Defendant’s Motion for Summary Judgment with respect to Plaintiffs’ preemption claim and Plaintiffs’ state law claim. With regard to Plaintiffs’ remaining two claims—due process and equal protection—Plaintiffs assert that there are genuine issues of material fact that must be resolved. However, Plaintiffs have failed to explain how the discovery of any additional information would advance this Court’s adjudication of the issues. With respect to Plaintiffs’ due process claim, it is difficult to see how there could be any material facts discovered in this regard, since Ordinance 1722 has yet to be enforced against any business entity; and
1

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 10 of 52
the process that is established by Ordinance 1722 has never commenced. With respect to Plaintiffs’ due process claim, it is a facial challenge based simply on the text of the ordinance. Any discovery would merely involve the asking of hypothetical questions about hypothetical cases of future enforcement. It is difficult to see how there could be any material facts discovered in this fashion. It is undisputable that this Court may consider a facial due process claim, without additional fact finding, in adjudicating Defendant’s Motion for Summary Judgment.
The only claim left is the equal protection claim. But as Defendant has pointed out, Plaintiffs lack standing to bring this claim on behalf of unidentified third parties and Plaintiffs also lack the necessary state action behind their hypothetical discriminatory impact. Standing is a jurisdictional issue. Moreover, neither party is seeking discovery that has any relevance to Plaintiffs’ attempt to raise the claim of unidentified third parties. With respect to Defendant’s argument that Plaintiffs lack state action, neither party is seeking discovery that has any relevance to that inquiry either. As is explained below, Plaintiffs’ attempts to plug these two holes in their equal protection argument are unavailing. (If, however, this Court disagrees with Defendant’s contentions that Plaintiffs lack the necessary standing and state action to bring their equal protection claim, then discovery would be appropriate at that point.) Therefore, all four substantive claims in Plaintiffs’ complaint may be disposed of immediately in this Court’s adjudication of Defendant’s Motion for Summary Judgment.
I. ORDINANCE 1722 IS NOT PREEMPTED BY FEDERAL IMMIGRATION LAW A. The Heavy Presumption Against Preemption Must be Applied Plaintiffs begin their argument on the preemption issue by attempting to displace one of the most
fundamental presumptions in constitutional law: the presumption that state laws are not preempted, unless congressional intent to preempt is clear and manifest. “In all preemption cases…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 a clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485(1996)
2

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 11 of 52
(citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). See also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
The presumption against preemption is not simply a canon of statutory interpretation, it is a bulwark in our constitutional structure. As Justice Stevens has observed:
Our presumption against pre-emption is rooted in the concept of federalism. ....The signal virtues of this presumption are its placement of the power of pre-emption squarely in the hands of Congress, which is far more suited than the Judiciary to strike the appropriate state/federal balance … In addition, the presumption serves as a limiting principle that prevents federal judges from running amok with our potentially boundless (and perhaps inadequately considered) doctrine of implied conflict pre-emption based on frustration of purposes. Geier v. Am. Honda Motor Co., 529 U.S. 861, 907 (2000) (Stevens, J., dissenting). Accordingly, it is not a presumption to be set aside lightly. Nevertheless, Plaintiffs attempt to persuade this Court to set this presumption aside, citing United States v. Locke, 529 U.S. 89, 108 (2000), for their claim that the presumption against preemption does not apply in areas where there has been significant federal involvement in the past (such as immigration). Pl. Amd. Resp. Memo. 6. However, Plaintiffs fail to note that Locke has since been distinguished and narrowed by the Supreme Court. The passage that Plaintiffs cite from Locke is part of a section of the Locke opinion dissecting the earlier holding of Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). The Supreme Court would come back two years later and clarify that “As we explained in United States v. Locke, … the analysis in Ray was governed by field-pre-emption rules because the rules at issue were in a ‘field reserved for federal regulation’ and ‘Congress had left no room for state regulation of these matters.’ Sprietsma v. Mercury Marine, 537 U.S. 51, 69 (2002) (emphasis added). In contrast, the case at bar concerns an area in which such field preemption has not occurred. As the U.S. Supreme Court stated unequivocally in De Canas v. Bica, 424 U.S. 351 (1976)—the controlling precedent in all preemption cases involving immigration law—the regulation of immigration by the federal government is not so comprehensive that it occupies the field and displaces state action: “Respondents … fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens
3

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 12 of 52
in general, or the employment of illegal aliens in particular.” De Canas, 424 U.S. at 357-358 (internal citations omitted).
Moreover, Plaintiffs fail to address the rule that regardless of the presumption that an Article III Court brings to preemption, the Court must not find preemption absent clear and manifest congressional intent to preempt. “[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 Management Ass'n, 505 U.S. 88, 111-12 (1992) (Kennedy, J., concurring) (citing Rice v. Santa Fe Elevator Corp., 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)). Article III Courts are bound by an “obligation to infer pre-emption only where Congress’ intent is clear and manifest” Cipollone v. Liggett Group, 505 U.S. 504, 524 (1992) (Blackmun, J., dissenting). Indeed, as Justice Rehnquist would remember with regard to the controlling precedent in the case at bar—De Canas v. Bica: “The statute in De Canas discriminated against aliens, yet the Court found no strong evidence that Congress intended to pre-empt it.” Toll v. Moreno, 458 U.S. 1 (1982) (Rehnquist, J., concurring). Plaintiffs have not produced any evidence of congressional intent to preempt Ordinance 1722, much less evidence of clear and manifest congressional intent to preempt.
B. Plaintiffs Cannot Avoid the Express Language of 8 U.S.C. 1324a(h)(2) In what can only be described as an Orwellian twist of language, Plaintiffs assert that when Congress expressly permitted the imposition of licensing sanctions on the employers of unauthorized aliens in 1986, Congress actually intended to prohibit such sanctions. The relevant provision of federal law is found at 8 U.S.C. § 1324a(h)(2): Preemption. The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2) (emphasis added). Clearly, Congress utilized its power of express preemption to deny states and localities the authority to impose civil or criminal fines on the employment of unauthorized aliens. However, Congress clearly allowed for state and local legislation on the subject—in the form of
4

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 13 of 52
“sanctions … through licensing and similar laws.” The text states unambiguously upon whom states and localities may impose such sanctions: “upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Thus, the plain meaning of the statute is that states and localities may deny or suspend licenses sought or held by those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
It is axiomatic that the plain meaning controls the interpretation of statutes. “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: the judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 (1992) (citations and internal quotation marks omitted). “A statute’s plain meaning must be enforced… .” United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 454 (1993). “[T]he plain language of the Act controls if it is unambiguous.” Trs. of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 (8th Cir. 2006) (citing United States v. Mickelson, 433 F.3d 1050, 1052 (8th Cir. 2006)). “We adhere to the general principle that ‘[when] the plain language of a statute is clear in its context, it is controlling.’” King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994) (quoting Blue Cross Ass'n v. Harris, 622 F.2d 972, 977 (8th Cir. 1980)). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (U.S. 1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). See also Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (U.S. 2002). An Article III Court must have a truly extraordinary reason to set aside the plain meaning of the statutory text. See BP Am. Prod. Co. v. Burton, 127 S. Ct. 638, 649 (2006).
Nevertheless, Plaintiffs would have this Court set aside the plain meaning of the statutory text of 8 U.S.C. §1324a(h)(2) and replace it with Plaintiffs’ implausible interpretation of a stray statement in a committee report. Plaintiffs disregard the longstanding principle of statutory interpretation that when presented with a “straightforward statutory command, there is no reason to resort to legislative history.”
5

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 14 of 52
United States v. Gonzales, 520 U.S. 1, 6 (1997). “While we now turn to the legislative history as an additional tool of analysis, we do so with the recognition that only the most extraordinary showing of contrary intentions from those data would justify a limitation on the ‘plain meaning’ of the statutory language.” Garcia v. United States, 469 U.S. 70, 75 (1984). Plaintiffs’ spin of the committee report not only fails to meet the standard of “extraordinary showing,” it fails to meet the standard of common English usage.
C. Plaintiffs Misconstrue the Committee Report by Inserting a Requirement of Prior Federal Prosecution
What, precisely, is the statement from a committee report that Plaintiffs rely upon? Far from being an “extraordinary showing” in support of Plaintiffs’ argument, it is statement that actually supports the Defendant in this case. Plaintiffs point to a statement from the House Committee Report on the Immigration Reform and Control Act (IRCA) of 1986; however, Plaintiffs do not provide the full paragraph, which reads:
They [the penalties in this section] are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or “fitness to do business laws,” such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens. H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662. Plaintiffs offer only a fragment of the first sentence in their memo. They focus on the words “who has been found to have violated the sanctions provisions in this legislation.” Pl. Amd. Resp. Memo. 8. They claim, without any support, that “has been found” means “has been found in federal proceedings.” Id. Therefore, they reason, local governments are only permitted to impose licensing sanctions on a person after that person has been prosecuted and convicted in federal proceedings for employing unauthorized aliens. There are three fatal flaws in Plaintiffs’ reading of this committee report text.
6

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 15 of 52
First, and most importantly, Plaintiffs conveniently ignore the first half of the sentence, which specifically refers to “state or local processes.” The actor who “finds” the person to have violated the law by employing an unauthorized alien is not a federal official, but the state or local official who makes the determination in the “state or local process.” The whole sentence from the committee report reads: “They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis added). Admittedly, the sentence is somewhat ambiguous. But the most reasonable interpretation of who the actor is that “finds” a person to have employed unauthorized aliens is derived by looking to the first half of the sentence, which refers to state or local processes. The federal government is mentioned nowhere in the paragraph. A fundamental rule of grammar and statutory interpretation requires that the subject of a passive verb construction (“has been found”) be identified in an adjacent sentence. But no such mention of the federal government is to be found. Plaintiffs manufacture their assumption (that the federal government must be the actor) out of thin air.
Second, assuming arguendo that Plaintiffs’ assumption about the meaning of the committee report were true—that the federal government must first “find” that the employer is employing an unauthorized alien before a state or city could suspend or deny a business license—Ordinance 1722 would still pass muster. Ordinance 1722 specifically requires that the federal government must first find that the alien in question is unauthorized to work in the United States before the City may reach the same conclusion:
If the federal government notifies the City of Valley Park that it is unable to verify whether an individual is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any city official attempt to make an independent determination of any alien’s legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c). Ordinance 1722 § 5.C. Only after a conclusive verification is received from the federal government can the City move forward and notify a business entity that the employee in question is believed to be unauthorized to work in the United States, Ordinance 1722 § 4.B(4), and that the employer
7

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 16 of 52
has three days to take one of several possible actions to correct the violation after being so notified, Ordinance 1722 § 5.B.(1)-(3). At that point, the employer has constructive knowledge that he is employing an unauthorized alien in violation of 8 U.S.C. § 1324a. 8 C.F.R. § 274a.1(l)(1) (situations in which employer may have “constructive knowledge that an employee is an unauthorized alien include, but are not limited to, situations where the employer: … (iii) Fails to take reasonable steps after receiving information indicating that the employee may be an alien who is not employment authorized….”); Mester Mfg. Co. v. INS, 879 F.2d 561, 567 (9th Cir. 1989); New El Ray Sausage Co. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991). The committee report’s phrase “has been found” is ambiguous as to what constitutes a “finding.” Plaintiffs, without a shred of support, insist that “has been found” means “has been prosecuted and convicted in by the federal government.” That is quite a stretch. If such hurdles had to be met before a local government could exercise its authority to apply licensing sanctions as allowed by federal law, Congress certainly could have (and would have) listed those requirements in the statutory text.
The third problems with Plaintiffs’ implausible interpretation of this Committee Report is that it conflicts with the plain language of the statutory text. The plain language of 8 U.S.C. § 1324a(h)(2) indicates that licensing sanctions may be imposed by localities “upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” If Congress had shared Plaintiffs’ view, Congress would have enacted a statute containing the words “upon those who have been prosecuted and convicted by the federal government for employing, or recruiting, or referring for a fee for employment, unauthorized aliens.” Of course, Congress did not choose that phrasing, or anything close to it. Rather, we have the statutory text as it is, which plainly indicates that localities may impose such sanctions upon those who employ unauthorized aliens. Nothing in the statutory language requires any prior federal action against the employer before a locality may suspend the license of an entity that employs unauthorized aliens. The language of the statute that Congress approved, not language from the House Report, controls. Exxon Mobil Corp. v. Allapattah Services, Inc. 545 U.S. 546, 568 (2005) (the “authoritative statement is the statutory text, not the legislative history”); see also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.
8

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 17 of 52
137, 150 n. 4 (describing House Report No. 99-682 as a “single Committee Report from one House of a politically divided Congress” and noting that dissent’s reliance on the report “is a rather slender reed”).
D. A Committee Report Cannot Trump the Language of a Statute in Any Case Plaintiffs are evidently unaware of the rule that in preemption cases, an Article III Court must preempt only when congressional intent is “clear and manifest.” As the Supreme Court has emphasized, when interpreting “an express pre-emption clause, our ‘task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.’” Sprietsma, 537 U.S. at 62-63 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)). In Sprietsma, the Supreme Court was similarly urged to override the plain language of a federal statute by finding broader preemptive intent in a committee report. Importantly, the Court held that such preemptive intent could not be based on a committee report: “Nor is a clear and manifest intent to sweep away state common law established by an unembellished statement in a House Report….” 537 U.S. at 69-70. A statement in a committee report is not enough to constitute the “clear and manifest” intent of Congress. Only the text of a statute can establish such intent. As noted above, the plain statutory language permits a broad window for states and localities to act in the field, by imposing licensing sanctions. The text of the statute does not include any condition requiring prior federal enforcement to occur before a state or locality may act. Such a requirement would dramatically narrow the scope of the permitted state and local activity. An Article III Court cannot infer such a preemptive requirement absent a clear and manifest statement of congressional intent.
E. Ordinance 1722 is a Licensing Law Within the Meaning of 8 U.S.C. § 1324a(h)(2) Plaintiffs’ next argument is one that borders on the frivolous. Plaintiffs contend that even though the only “sanction” imposed by Ordinance 1722 is the temporary suspension of a business license, and Ordinance 1722 requires employers to sign an affidavit at the time they apply for a business license, nevertheless “Ordinance 1722 is not a ‘licensing or similar law.’” Pl. Amd. Resp. Memo. 7. According to
9

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 18 of 52
Plaintiffs, the term “licensing [] law” in 8 U.S.C. 1324a(h)(2) only includes fitness to do business laws. Therefore Plaintiffs assert, “Neither IRCA nor Ordinance 1722 are concerned with an employee’s fitness to do business, and thus Ordinance 1722 is not a ‘licensing law’ within the statute.” Pl. Amd. Resp. Memo. 8. In order to reach this cramped and narrow definition of “licensing law,” Plaintiffs refer to the following sentence in the committee report: “Further, the Committee does not intend to preempt licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis added). Plaintiffs then conclude that this sentence means that licensing laws and fitness to do business laws are the same thing. Pl. Amd. Resp. Memo. 7. There are two problems with Plaintiffs’ argument.
First, Plaintiffs ignore the word “or” in the sentence quoted. The committee report does not define licensing laws as fitness to do business laws. Rather the committee reports states: “the Committee does not intend to preempt licensing or ‘fitness to do business laws….’” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662. The use of the word “or” indicates that the two types of laws are alternatives. “The ordinary usage of the word ‘or’ is disjunctive, indicating an alternative. Construing the word ‘or’ to mean ‘and’ is conjunctive, and is clearly in contravention of its ordinary usage.” United States v. Smith, 35 F.3d 344 (8th Cir. 1994). “The usual meaning of the word ‘or’ is that it ‘indicates alternatives.’” Wang v. Immigration & Naturalization Service, 622 F.2d 1341 (9th Cir. 1980) (quoting Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975) (reversed on other grounds in Immigration & Naturalization Service v. Jong Ha Wang, 450 U.S. 139 (1981)).
Second, in making this argument, Plaintiffs conveniently ignore the preceding sentence in the committee report: “They [the penalties in this section] are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.” H.R. Rep. 99-682(I), 1986
10

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 19 of 52
U.S.C.C.A.N. 5649, 5662 (emphasis added).1 The italicized words explain what the committee report deemed a “licensing law” to be. And they describe Ordinance 1722 precisely: a local process concerning the suspension of a license where a business entity is informed that it is employing an unauthorized alien but nevertheless continues to do so. Plaintiffs can only come to their implausible conclusion that Ordinance 1722 is not a licensing law within the meaning of 8 U.S.C. § 1324a(h)(2) by ignoring this sentence, while also ignoring the word “or” in the next sentence of the committee report. The language of the committee report simply cannot bear the meaning that Plaintiffs ascribe to it. In any event, Defendant contends that it is not even necessary to parse this legislative history, because the text of the statute is unambiguous.
F. Plaintiffs Ask this Court to Second-Guess a Policy Decision of Congress Perhaps recognizing the weakness of their claim that Ordinance 1722 is not a “licensing law,” Plaintiffs in the alternative argue that even if Ordinance 1722 is a licensing law, as that term was used by Congress, it shouldn’t be. Pl. Amd. Resp. Memo. 7-8. Plaintiffs complain that it would be a bad policy for Congress to reserve for the federal government the penalties of civil fines and criminal punishment while allowing states and localities “to impose the enormous penalty of entirely shuttering a business.” Id. at 8. In seeking to correct this congressional policy error, Plaintiffs urge this Court to follow the lead of Judge James Munley in the U.S. District Court for the Middle District of Pennsylvania in Lozano v. City of Hazleton, 496 F.Supp. 2d 477 (M.D. Pa. 2007). In that decision, Judge Munley disregarded the plain language of 8 U.S.C. § 1324a(h)(2) because, in his opinion, “It would not make sense for Congress in limiting the state’s authority to allow states and municipalities the opportunity provide the ultimate sanction, but no lesser penalty.” Id. at 519 (emphasis added). In Judge Munley’s view, “to force the employer out of business by suspending its business permit [is] what we could call the ‘ultimate sanction.’” He concluded that the suspension of a business license is a
1 This is the very same sentence that Plaintiffs place so much emphasis on when making their spurious claim that the committee report allows states and localities only to impose licensing sanctions after a federal conviction has been
11

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 20 of 52
greater sanction than criminal punishment in the form of imprisonment. Id.2 Certainly, reasonable minds may disagree as to which sanction is greater.3 However, one thing is certain. Although Judge Munley cloaked his inquiry as one into the meaning of the “plain language” of federal law, in the very next sentence he disregarded the plain language of under 8 U.S.C. § 1324a(h)(2) simply because he thought that Congress’s approach “would not make sense.” Id. He substituted his own policy judgment for that of Congress, deciding that Congress should not have given states and localities what he described as the “ultimate sanction.” In so doing, he stepped outside of his judicial role. Plaintiffs would have this Court make the same mistake. There is no ambiguity in Congress’s reservation of sanctions “through licensing … laws” to states and local governments. 8 U.S.C. § 1324a(h)(2). The fact that Judge Munley disagreed as a policy matter with Congress’s decision to do so (and that Plaintiffs share the same dissatisfaction with Congress’s decision) is not an appropriate basis for this Court to find that Congress has expressly preempted Ordinance 1722.
G. Ordinance 1722 Does Not Conflict with the Basic Pilot (E-Verify) Program in Any Way Plaintiffs also argue that federal law preempts Ordinance 1722 because, under federal law, participation in the Basic Pilot Program (recently renamed “E-Verify”) is discretionary. Plaintiffs style this argument as one of conflict preemption. Amd. Resp. Memo. 11. At the outset, Plaintiffs intentionally gloss over the fact that Ordinance 1722 does not establish any general requirement that business entities in Valley Park enroll in the E-Verify Program. A business entity that is never found to violate Ordinance 1722 by employing two or more unauthorized aliens would never be required to participate in the E-Verify Program under the terms of Ordinance 1722. See Ordinance 1722 § 4. The only business entity that would ever be required to participate in the E-Verify Program is one that is confirmed by the federal government
secured. 2 Judge Munley also incorrectly characterized the operation of the Hazleton ordinance, which did not force an employer “out of business,” but simply imposed a temporary suspension of a business license, similar to Ordinance 1722. 496 F.Supp. 2d at 519, 535-36.
12

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 21 of 52
to be employing two or more unauthorized aliens, fails to correct the violation within the allotted time, has its license suspended, and as a condition of terminating the suspension enrolls in the E-Verify Program as stipulated in Ordinance 1722 § 4.B(6)(b). Beyond that, enrollment in the E-Verify Program is a prerequisite to receiving a City contract or grant exceeding $10,000. Ordinance 1722 § 4.D. And Valley Park encourages business entities in the City to enroll in the E-Verify Program, by offering them safe harbor under Section 4.B(5) of Ordinance 1722 if they verify their new hires with the federal government through E-Verify.
This framework of requiring enrollment only in limited instances where a business entity has been found to employ unauthorized aliens perfectly conforms to federal law, which provides that a business entity can be compelled to participate in the E-Verify Program as a consequence of violating 8 U.S.C. § 1324a. “Application to certain violators. An order under 8 U.S.C. § 1324a(e)(4) or § 1324b(g) may require the subject of the order to participate in, and comply with the terms of, a pilot program with respect to the subject's hiring (or recruitment or referral) of individuals….” IIRIRA § 401(e)(2).
Ordinance 1722’s requirement that business entities must enroll in the E-Verify Program to receive government contracts also mirrors federal practice. The Secretary of Homeland Security recently announced that the federal government will be requiring federal contractors to participate in E-Verify:
[W]e will want to encourage as many companies as possible to use E-Verify, and we’re going to start with the federal government. We want to lead by example. For this reason, today we are announcing that the administration has initiated a rulemaking process to require new federal contractors to enroll in E-Verify. In order to do this, we’re going to amend the federal acquisition regulations, which are the rules that basically govern federal contracting, and we’re going to require that federal contractors who receive new federal contracts use the E-Verify system to check the employment eligibility of the contractor work force that will work on those contracts. Remarks by Homeland Security Secretary Michael Chertoff and Commerce Secretary Gutierrez, August 10, 2007, attached as Exhibit A. In this respect as well, Ordinance 1722 and federal practices are mirror
3 Defendants respectfully disagree with Judge Munley in this regard; in Defendant’s opinion, spending up to six months in a federal prison—a penalty under 8 U.S.C. § 1324a(f)(1)—is a greater penalty that the suspension of a business license for as brief a period as one day.
13

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 22 of 52
images of one another. It is well established that in immigration law, states and localities are not preempted when they undertake concurrent enforcement activity with the federal government. “Where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized.” Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983) (citing Florida Avocado Growers v. Paul, 373 U.S. 132, 142 (1963)) (emphasis added). Where “[f]ederal and local enforcement have identical purposes,” preemption does not occur. Gonzales v. Peoria, 722 F.2d at 474.
Moreover, assuming arguendo that Ordinance 1722 could somehow be construed as requiring participation in the E-Verify Program, it still would not be impliedly preempted through conflict preemption. Nothing in federal law suggests that a locality cannot require employers within its jurisdiction who have been found to employ unauthorized aliens to participate in the federal program as a condition of having a suspended business license reinstated. Plaintiffs have yet to identify any such barrier in federal law. They cannot do so because, as noted above, federal law expressly provides for mandatory participation in the E-Verify Program where the business entity has been found to employ unauthorized aliens in the past. The history of successive Acts of Congress expanding the E-Verify Program, described below, coupled with the instances in which the federal government mandates participation in the program, described above, indicates that Congress has consistently encouraged the widest possible use of the EVerify Program. The encouragement that Ordinance 1722 gives to Valley Park business entities to enroll in the Program in no way undermines this congressional objective. On the contrary, it promotes the objective.
Determined to fabricate some sort of “conflict” with federal law, Plaintiffs next resort to speculating that perhaps the E-Verify Program will disappear in the future. Pl. Amd. Resp. Memo. 11. They must know something that the Secretary of Homeland Security doesn’t. As Secretary Chertoff announced in August:
More than 19,000 employers across the country rely on [E-Verify], it has no charge, and it’s available in all the states. And what it simply does is tell you whether the particular document matches the Social Security number and whether both of those are genuine when compared to these databases.
14

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 23 of 52
Because of the success of this system and its ability to take the guesswork, or some of the guesswork out of employment document review, we’re going to be strengthening and expanding the system…. Remarks by Homeland Security Secretary Michael Chertoff and Commerce Secretary Gutierrez, August 10, 2007 (emphasis added), attached as Exhibit A. What Plaintiffs fail to inform the Court is that the Basic Pilot Program was created by Act of Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) of 1996. IIRIRA §§ 401-405. Pub. L. 104-208, Div. C., Title IV, Subtitle A, 110 Stat. 3009-655 through 3009-666, codified as note to 8 U.S.C. § 1324a; see specifically IIRIRA § 403(a). In 2001, Congress extended its authorization of the Program to six years from the date of its initial authorization. Basic Pilot Extension Act of 2001, Pub. L. 107-128, 115 Stat. 2407. In 2003, Congress extended authorization of the Program again to eleven years from its initial implementation date and mandated its expansion to all fifty states by December 1, 2004. Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. 108-156, 117 Stat. 1944-46. This series of successive expansions and reauthorizations of the E-Verify Program, coupled with the Secretary of Homeland Security’s August 2007 announcement that it will continue to be expanded, indicates that Plaintiffs’ speculation that the Program might theoretically be discontinued is well off the mark. In any case, it does not represent a “clear statement of intent by Congress,” which is necessary for implied preemption to occur. Gade, 505 U.S. at 111-12. Moreover, if the E-Verify Program ever did cease to exist, then those subsections of Ordinance 1722 requiring enrollment in the E-Verify Program would cease to operate as a practical matter because employers obviously cannot participate in a non-existent program. See, e.g., EEOC v. Commercial Office Products Co., 286 U.S. 107, 120 (1988) (statutes should not be construed to lead to futile results). The remainder of Ordinance 1722 would continue to operate, including the communication between the City and the federal government about any alien’s work authorization status, because the federal government will continue to be obliged to answer any state or local inquiry about any alien’s status, under 8 U.S.C. § 1373(c). In any event, Plaintiffs’ speculation about the future of the E-Verify Program is in no way indicative of a clear and manifest congressional intent to preempt.
15

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 24 of 52
In another ill-fated attempt to find a conflict between Ordinance 1722 and the E-Verify Program, Plaintiffs suggest in a footnote that Congress “refused” to give state and local governments any role in the E-Verify Program. They base this claim not on any provision of federal law or regulation but on comments by two U.S. Representatives in 2003. Pl. Amd. Resp. Memo. 14-15, n.11. There is no such provision denying local government access to the Program anywhere in federal law. Indeed, the City of Valley Park has been a registered user of the E-Verify Program since March 8, 2007. See DHS Basic Pilot Confirmation, Attached as Exhibit B. Plaintiffs are evidently also unaware that there are two systems that provide internet-based access to the same federal databases: the E-Verify Program and the Systematic Alien Verification for Entitlements (SAVE) Program. The SAVE Program was developed specifically for state and local governments seeking to verify the immigration status of aliens. There are at least 205 participating government agencies across the country that are currently using the SAVE program to verify individuals’ immigration status. DHS Privacy Impact Statement for SAVE, Def. Memo. Resp. to Mtn. for Pre. Inj., Exh. C, at 18. The City of Valley Park is also a user of the SAVE Program. See SAVE Memorandum of Understanding, Attached as Exhibit C.
Finally, Plaintiffs contend that Ordinance 1722 is conflict-preempted because the regulations governing the E-Verify Program allow an employee eight days to contest a tentative non-confirmation. Pl. Amd. Resp. Memo. 10-11. Here, Plaintiffs are correct in their reading of the relevant federal regulations. However, they are incorrect in their reading of Ordinance 1722. When the Department of Homeland Security (DHS) issues a “tentative non-confirmation” response to an inquiry through the E-Verify Program, the employee whose work authorization is at issue has eight days to contest that finding, and the federal government has ten days to respond. 62 C.F.R. 48309(IV)(B)(2)(a). Ordinance 1722 was carefully drafted to allow for this process to occur before the City would take any action. The receipt of a “tentative nonconfirmation” response from DHS triggers Section 5.C, which was drafted specifically to accommodate this federal process when DHS is only able to offer tentative answer: “If the federal government notifies the City of Valley Park that it is unable to verify whether an individual is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the
16

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 25 of 52
federal government concerning the status of the individual is received.” Ordinance 1722 § 5.C. (emphasis added). A tentative non-confirmation, which currently occurs in under eight percent of E-Verify cases, is by definition tentative. See DHS Statement to Congress, Def. Memo. Supp. Mtn. for Summ. J., Exhibit C. DHS has not verified an alien’s work authorization status until it issues a final non-confirmation of work authorization or a final confirmation of work authorization. Until that point, the City “shall take no further action on the complaint.” Ordinance 1722 § 5.C. Only after a final answer is received from DHS concerning an alien’s work authorization (in which the alien is found to be unauthorized) does the City notify the business entity of a violation under Section 4.B(4) and start the three-day clock running. Ordinance 1722 § 4.B(4). Only at that point is the business entity under an obligation to correct a violation under the terms of Section 5.B. Id.
Once DHS has issued a final verification that an alien employee is unauthorized, the business entity in question is not only obligated under Ordinance 1722 to take action, it is also obligated under federal law. “Given that IRCA makes it illegal to hire undocumented aliens … and mandates criminal penalties for those who knowingly employ such workers … termination is effectively required once an employer learns of an employee’s undocumented status.” Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 236 (2d Cir. 2006).
In summary, Plaintiffs’ argument (in addition to being based on a misreading of Ordinance 1722) falls well short of establishing that Ordinance 1722 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363. On the contrary, Ordinance 1722 advances the objective of IRCA—namely to “to stop payments of wages to unauthorized workers, which act as a ‘magnet … attract[ing] aliens here illegally,’ and to prevent those workers from taking jobs that would otherwise go to citizens.” Incalza v. Fendi, 479 F.3d 1005, 1011 (9th Cir. 2007). There is no actual conflict with federal law and Ordinance 1722 does not stand as an obstacle to the execution of the federal verification system. Therefore, it is not preempted.
H. Re-Verification of Employees is Permitted Under Federal Law
17

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 26 of 52
In their memorandum, Plaintiffs make the rather astonishing claim that “Congress intend[ed] that employers not seek to reverify workers once they have satisfied the initial verification requirements set forth in IRCA.” Pl. Amd. Resp. Memo. 12. For this novel assertion, Plaintiffs offer only this statement from the same committee report that they repeatedly distort: “The Committee does not intend to impose a continuing verification obligation on employers.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5661; see Pl. Amd. Resp. Memo. 12. Once again, Plaintiffs ignore an important word in the sentence—the word “continuing.” A continuing obligation is one that is present continuously, every day that the employee works for the employer. The absence of a continuing obligation cannot be logically or grammatically equated with a flat prohibition on any re-verification of an employee’s authorization to work lawfully in the United States.
Plaintiffs would do well to acquaint themselves with the terms of federal immigration law and regulations, rather than simply fishing in a committee report for stray quotes. One need not look in a committee report to see if re-verification is permitted. The answer is found in the text of federal law and regulations. In fact, federal immigration law not only allows re-verification of an employee’s work authorization, it requires it in certain situations.
Under 8 C.F.R. § 274a.2(b)(1)(vii), “[r]everification on the Form I-9 must occur not later than the date work authorization expires.” Form I-9 Instructions (Rev. 5/31/05Y) for Section 3 clearly state for the benefit of the Plaintiffs and all other employers that “[e]mployers must reverify employment eligibility of their employees on or before the expiration date recorded in Section 1 [of the Form I-9]. The Special Counsel for Immigration-Related Unfair Employment Practices confirmed as long ago as 1994 that “(INS) regulations and procedures permit reverification prior to the expiration date of the employee’s work authorization” and thus reverification does not constitute document abuse. Fragomen & Bell, Immigration Employment Compliance Handbook, §10.19 (2006) (reproducing April 18, 1994, opinion letter from Special Counsel William Ho-Gonzalez). In 1996, Congress amended Section 1324b(a)(6) to clarify that requiring reverification could not be treated as an unfair immigration-related employment practice unless, upon the filing of a charge, and after notice and hearing, it has been proven that the reverification request
18

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 27 of 52
was made with discriminatory intent. P.L. 104-208 §421(IIRAIRA)(1996). “The 1996 amendment provides that an employer’s request for more documents is not unlawful unless made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status.” Fragomen & Bell, supra, at §3.5.
In addition to these long-standing provisions of federal regulations, recent amendments to federal regulations also allow re-verification of an employee’s work authorization. Whenever an employer receives information from the Department of Homeland Security indicating that an employee may not be authorized to work in the United States, the employer is expected to re-verify the employee’s work authorization at least once, and possibly twice: “If the employer is unable to verify with the Department of Homeland Security within ninety days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee's employment authorization and identity within an additional 3 days… .” 8 CFR 274a.1(l)(2)(iii)(B) The employer may bring himself into the “safe harbor” under the regulations by reverifying the work authorization of the employee concerned. See 72 Fed. Regist. 45611 (Aug. 15, 2007).
I. Plaintiffs’ Assertions Regarding Casual Domestic Workers and Independent Contractors are Incorrect
Plaintiffs attempt to fabricate a similar inconsistency between Ordinance 1722 and federal law with respect to independent contractors and casual domestic workers. Specifically, Plaintiffs contend that these categories of individuals are not subject to verification of work authorization under federal law, but are subject to verification under Ordinance 1722. Pl. Amd. Resp. Memo. 10. Plaintiffs do not explain how they reach this conclusion. See id. Upon closer inspection, it collapses completely, because they are incorrect about several aspects of federal immigration law, as well as the scope of Ordinance 1722.
Under federal law, it is illegal for a person or other entity to hire an individual for employment in the United States without complying with certain universal employment eligibility verification
19

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 28 of 52
requirements involving the filling out of I-9 Forms. 8 U.S.C. 1324a(a)(1)(B)(i).4 Hire is defined as “the actual commencement of employment of an employee for wages or other remuneration.” 8 C.F.R. §274a.1(c). There is a narrow exception for casual domestic workers under 8 C.F.R. § 274a.1(h). What Plaintiffs fail to explain is that this regulatory exception only extends to “casual employment by individuals” where the workers “provide domestic service in a private home that is sporadic, irregular or intermittent.” 8 C.F.R. § 274a.1(h) (emphasis added). The leading case construing 8 C.F.R. §274a.1(h) is Jenkins v. Immigration and Naturalization Services, 108 F.3d 195 (9th Cir. 1997) . In Jenkins, the Ninth Circuit upheld civil penalties imposed on a private individual who picked up day laborers at a day labor site in San Rafael, California. The Court held that the plain statutory language of 8 U.S.C. §1324(a)(1)(B) extended the requirement for compliance with the Form I-9 process to all employers who “hire for employment in the United States.” Id. at 200. The Ninth Circuit construed “domestic” employment exemption restrictively. The Court determined that “domestic” work exemption from I-9 requirements included solely household tasks that would normally be completed by a resident of the household, and expressly included “cleanup, moving or gardening” work. Id at 197. In addition, “domestic” work only referred to solely household tasks completed only within one’s private abode. Id.
What Plaintiffs fail to recognize is that Ordinance 1722 extends only to employment relationships involving a “business entity.” Ordinance 1722 states that “[i]t is unlawful for any business entity to knowingly recruit, hire for employment….” Ordinance 1722, § 4.A (emphasis added). “Business entity” is limited in Section 3 of the ordinance to business entities that require a business license, unless expressly exempted by law. “The term business entity shall include any business entity that possesses a business license, any business entity that is exempt by law from obtaining such a business license, and any business entity that is operating unlawfully without such a business license.” Ordinance 1722 § 3.A(2). Therefore,
4 An important distinction must be made at the outset. These regulatory requirements concern the process of filling out I-9 Forms, which was instituted by IRCA. As already noted in Defendant’s Memorandum in Support of Motion for Summary Judgment, this type of I-9 Form documentary verification by the employer has nothing to do with whose employment may or may not be verified electronically by the federal government itself through E-Verify. This form of verification by employers scrutinizing documents is subject to errors and flaws that do not occur when the federal government itself verifies an individual’s work authorization using federal electronic databases.
20

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 29 of 52
any business entity under Ordinance 1722 could not fit within the casual domestic worker exception to verification under federal law. Because the casual domestic worker exception is defined so narrowly by federal regulation and federal case law to include only employment by individuals for work inside one’s private abode, there is no overlap with Ordinance 1722, which only concerns employment by business entities. Stated differently, the casual domestic worker exception, by definition, does not extend to business entities covered by Ordinance 1722. There is no possible conflict with federal law. The ordinance further states, “The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration….” Ordinance 1722 § 6.A.5
Plaintiffs’ argument regarding independent contractors is also unexplained in Plaintiffs’ Memorandum. Pl. Amd. Resp. Memo. 10. They make no reference to the controlling provisions of federal law. Had they consulted these provisions, the error in their argument would have become apparent. While it is true that employers have no duty under federal law to undertake the Form I-9 process to determine the employment eligibility of bona fide independent contractors, the IRCA provisions of federal law expressly prohibit any employer from using “a contract, subcontract, or exchange … to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien….” 8 U.S.C. § 1324a(a)(4). If an employer is made aware that such an alien is unauthorized, then federal law effectively transforms that business-independent contractor relationship to an employer-employee relationship for the purposes of IRCA. The business entity that engages in such prohibited contractual activity “shall be considered to have hired the alien for employment in the United States in violation of paragraph 1(A).” Id. Further, it is a separate and additional violation of federal law for either of the Plaintiffs to continue to “employ” an independent contractor once the person or entity has learned that the person “is (or has become) an unauthorized alien….” 8 U.S.C. § 1324a(a)(2). Business entities are not required to follow the Form I-9
5 In any event, even if this argument had any merit, Plaintiffs do not possess standing to assert it. Plaintiffs’ complaint states that Windover Inc. and Jacqueline Gray are, respectively, a business entity and the entity’s owner. Windover Inc. cannot, by definition, recruit or hire an exempt domestic casual worker because it is not a private individual with a private abode. Similarly, Ms. Gray cannot recruit or hire domestic casual labor in the capacity under which she filed her complaint, as a business owner. If Gray were to hire domestic casual labor to babysit or
21

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 30 of 52
process with a bona fide independent contractor under 8 U.S.C. § 1324a(b), but once they become aware the such contractor is an unauthorized alien, that relationship is treated as an employer-employee relationship (subject to verification), and they do have a statutory duty to terminate the services of such a contractor once they become aware the contractor is an unauthorized alien.
There is one additional problem with Plaintiffs’ arguments concerning verification of casual domestic workers and independent contractors. There is absolutely no restriction anywhere in federal law or federal regulations on a municipality’s verification of an alien’s immigration status according to 8 U.S.C. § 1373(c). That provision of federal law requires the federal government to answer any such request from a local government, concerning any alien:
(c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. 8 U.S.C. § 1373(c). Under Ordinance 1722, when a complaint is filed, it is the City that does the verifying, not the employer. The two situations that Plaintiffs identify concern employers who need not verify independent contractors and casual domestic workers. Those provisions in no way restrict a municipality’s verify of immigration status pursuant to 8 U.S.C. § 1373(c).
J. Preemption Principles Do Not Require a Locality to Replicate an Office Within the U.S. Department of Justice
Plaintiffs illustrate just how expansive their concept of implied conflict preemption is when they claim that Ordinance 1722 is preempted because it does not establish an office to receive complaints of racial discrimination by employers. Pl. Amd. Resp. Memo. 10. Plaintiffs’ novel theory appears to be this: a state or locality is conflict preempted when it takes any action as permitted under 8 U.S.C. § 1324a(h)(2) unless it also establishes an office to investigate discriminatory employment practices. Plaintiffs theory does not meet the standard of conflict preemption in immigration—that the state or local action “stands as
wash up the dishes after a dinner party in her home, she would not be doing so as a business entity, and would not in
22

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 31 of 52
an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363. There is no conflict preemption standard supporting Plaintiffs’ theory.
Federal law prohibits any employer from “discriminat[ing] against any individual (other than an unauthorized alien…) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment … because of the individual’s national origin.” 8 U.S.C. § 1324b(a)(1). The same section of federal immigration law created the Office of the Special Counsel for Immigration-Related Unfair Employment Practices within the Department of Justice. The sole responsibility of that office is to investigate complaints of hiring discrimination and related unfair employment practices. 8 U.S.C. §1324b(c). Any person in the United States who believes that he has been the subject of such discrimination may file a charge with the office. 8 U.S.C. § 1324b(b)(1). Any person seeking employment in the City of Valley Park who is subject to the hypothetical discrimination described by Plaintiffs may avail himself of these remedies under federal law. Those federal protections are fully in force in Valley Park. For Valley Park to duplicate those provisions on a local level would serve no purpose whatsoever. Employees in Valley Park remain protected by the all of the prohibitions against discrimination that are included in federal civil rights laws. See 8 U.S.C. § 1324b; 42 U.S.C. 2000e-2 (prohibiting discrimination based on “race, color, religion, sex, or national origin”).
Later in their memorandum, Plaintiffs put a slightly different spin on this same argument. They claim that when Congress enacted IRCA, it “carefully balanced” the imposition of criminal penalties for the employment of unauthorized aliens with federal protections against employment discrimination. Pl. Amd. Resp. Memo. 14. They then suggest that Ordinance 1722 is preempted because its enforcement provisions are not balanced by a similar set of employment discrimination provisions at the local level. Id. at 15. This argument is blind to two crucial facts. First, the existing federal statutory protections against employment discrimination provide “balance” to the enforcement of Ordinance 1722 in the same manner that they provide balance to the federal government’s enforcement of 8 U.S.C. § 1324a. Second, Ordinance 1722 provides an additional layer of anti-discrimination protection that does not exist under federal law.
any conceivable circumstance be subject to Ordinance 1722. 23

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 32 of 52
Ordinance 1722 renders invalid any “complaint which alleges a violation on the basis of national origin, ethnicity, or race.” Ordinance 1722 § 4.B(2). Like Ordinance 1722, federal immigration law allows “individuals and entities to file written, signed complaints respecting potential violations of subsection (a) or (g)(1) of [8 U.S.C. § 1324a].” 8 U.S.C. § 1324a(e)(1)(A). However, unlike Ordinance 1722, federal law does not contain an anti-discrimination provision that renders complaints invalid if they are based on national origin, ethnicity, or race. If the theoretical “balance” is any different under Ordinance 1722, it is weighted more heavily toward preventing discrimination, not toward enforcement. In any event, Plaintiffs’ balance theory finds no support in the controlling precedent of De Canas v. Bica, 424 U.S. 351, passim.
What Plaintiffs continually gloss over in their repeated attempts to find “conflict” between federal law and Ordinance 1722 is that “[t]he conflict standard of preemption is strict.” Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 238 (2d Cir. 2006). Even if Plaintiffs could identify any slight differences between the provisions of federal law and the provisions of Ordinance 1722, such differences would not be sufficient to create implied conflict preemption. “Tension between federal and state law is not enough to establish conflict preemption. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984).” Incalza, 479 F. 3d at 1010. A “clear demonstration of conflict … must exist before the mere existence of a federal law may be said to pre-empt state law operating in the same field.” Jones v. Rath Packing Co., 430 U.S. at 544 (Rehnquist, J., concurring in part and dissenting in part). Federal preemption cannot be based on “unwarranted speculations” about Congress’s intent. Id.
K. Plaintiffs’ Reliance on Hines v. Davidowitz to Assert Field Preemption is Misplaced Plaintiffs rely in particular on a 66-year old case that is largely irrelevant to the case at bar. Plaintiffs cite Hines v. Davidowitz, 312 U.S. 52 (1941), in which the Supreme Court found that Pennsylvania’s Alien Registration Act of 1939 was preempted by the Alien Registration Act that Congress established in 1940. Plaintiffs cite this case in support of their theory that once the federal government enters a field, all state laws are preempted because allowing them to remain in effect would disrupt the federal government’s “careful balance of policy choices.” Pl. Amd. Resp. Memo. 14. Although Plaintiffs
24

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 33 of 52
are unclear as to what type of preemption they are asserting, it appears that they are trying to formulate a field preemption argument. In any event, they fail to recognize two important limitations on the scope of the Hines precedent—limitations that were imposed by the Supreme Court itself.
First, the state law at issue in Hines was on constitutionally weak footing because the state attempted to register legal aliens. 312 U.S. at 73-74. As the Supreme Court later explained in the nowcontrolling precedent of De Canas v. Bica, 424 U.S. 351, the state statute in Hines trenched upon Congress’s authority to regulate immigration because the statute sought to “determine the conditions under which a legal entrant may remain” in the United States. Id. at 355 (emphasis added). The Supreme Court went on to distinguish Hines from the state law at issue in De Canas, which prohibited the employment of unauthorized aliens, because “the Pennsylvania statute[] in Hines … imposed burdens on aliens lawfully within the country that created conflicts with various federal laws.” Id. at 363. The ordinance at issue in case at bar does not restrict the ability of aliens lawfully present in the United States to remain either. Rather, Ordinance 1722 restricts the ability of unauthorized aliens to violate federal law by working unlawfully in the United States. In De Canas, the Court was unequivocal in its conclusion that a state is permitted to restrict the employment of unauthorized aliens:
In this case, California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. 424 U.S. at 355-56 (emphasis added). Six years later, the Supreme Court would reiterate that states and localities possess the authority to discourage the employment of illegal aliens: As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State’s program reflected Congress’ intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id. at 361. Plyler v. Doe, 457 U.S. 202, 225 (1982). The Supreme Court has never departed from this holding. Plaintiffs offer no response in their memorandum to these two unequivocal statements from the U.S.
25

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 34 of 52
Supreme Court. In addition, state laws that deny privileges and benefits to illegal aliens have been upheld in the wake of De Canas by inferior U.S. courts. See, e.g., Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004) (upholding state policy denying university admission to illegal aliens).
The second reason that the 66-year-old decision in Hines is inapposite is because the federal alien registration statute in Hines did not explicitly reserve authority for the states and localities to act. In De Canas, the Supreme Court expressly distinguished the Hines holding in this regard and limited it accordingly:
Moreover, in neither Hines nor Nelson was there affirmative evidence, as here, that Congress sanctioned concurrent state legislation on the subject covered by the challenged state law. Furthermore, to the extent those cases were based on the predominance of federal interest in the fields of immigration and foreign affairs, there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country. 424 U.S. at 363 (emphasis added). In contrast to the federal law involved in Hines, with IRCA Congress expressly reserved authority for states and localities to enact “licensing and similar laws” that impose sanctions “upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Finally, Plaintiffs fail to recognize that the Supreme Court has expressly rejected the conclusion that they attempt to extract from Hines—that field preemption has occurred. The De Canas Court considered and rejected the hypothetical possibility that the regulation of immigration by the federal government might be so comprehensive that it occupies the field and leaves not room for state action: Only a demonstration that complete ouster of state power—including state power to promulgate laws not in conflict with federal laws—was “‘the clear and manifest purpose of Congress’” would justify that conclusion…. Respondents have not made that demonstration. They fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.
26

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 35 of 52
424 U.S. at 357-358 (internal citations omitted). “Nor can such intent [to occupy the field] be derived from the scope and detail of the INA. The central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully within the country.” Id. at 359.
The passage of IRCA in 1986 did not constitute subsequent occupation of the field (even if the field is defined narrowly to cover only the employment of unauthorized aliens), because IRCA itself contains an express invitation for states and localities to enter the field. 8 U.S.C. § 1324a(h)(2). As the De Canas Court observed before IRCA, “Congress sanctioned concurrent state legislation on the subject covered by the challenged state law.” 424 U.S. at 363. The same observation applies post-IRCA. As the Second Circuit observed in 2006, in adjudicating a preemption challenge under IRCA: “Congress’s intent to preempt state law may be implied where it has designed a pervasive scheme of regulation that leaves no room for the state to supplement….” Affordable Hous. Found., Inc. v. Silva, 469 F.3d at 240 (emphasis added). The Second Circuit concluded that IRCA did not result in field preemption. Id. at 240-41. State courts have reached the same conclusion. “IRCA does not … so thoroughly occupy the field as to require a reasonable inference that Congress left no room for states to act.” Safeharbor Employer Servs. I, Inc. v. Cinto Velazquez, 860 So. 2d 984, 986 (Fl. Ct. App. 2003).
L. Implied Preemption Does Not Usually Exist in the Presence of Express Preemption One final observation is necessary on the subject of implied preemption (be it implied field preemption or implied conflict preemption): finding implied preemption in the presence of an express federal provision defining the exact scope of preemption contradicts basic rules of statutory construction. As Defendant has previously observed, this creates the problem of surplusage—in that the express preemption language becomes unnecessary if broad implied preemption is also being inferred from the same statute. The Supreme Court has recognized this problem and discouraged Article III Courts from finding implied preemption where Congress has inserted express preemptive language. “This [express preemption] language would be pure surplusage if Congress had intended to occupy the entire field… .” Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597, 612-13 (1991). Plaintiffs commit precisely this error,
27

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 36 of 52
asserting various implied preemption arguments stemming from the enactment of IRCA, even though accepting such arguments would render 8 U.S.C. § 1324a(h)(2) mere surplusage.
In their Memorandum, Plaintiffs respond that it is possible to find implied preemption in the same statute that includes an express preemption clause. Pl. Amd. Resp. Memo. 9. In support of this statement, they cite the cases of Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002), and Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000), two instances in which the Court considered an express preemption claim as well as an implied field preemption claim in the same case. Plaintiffs apparently misunderstand Defendant’s argument. Defendant does not contend that it is impossible to consider both an express preemption claim and an implied preemption claim stemming from the same federal statute. Rather Defendant points out that the Supreme Court has repeatedly cautioned against finding implied preemption in the presence of express preemption language. Doing so runs the risk of violating two fundamental canons of statutory interpretation: violating the principle that judicial interpretations must not render statutory text mere surplusage, and violating the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). As the Supreme Court has explained with respect to the latter:
When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a “reliable indicium of congressional intent with respect to state authority,” Malone v. White Motor Corp., 435 U.S., at 505, “there is no need to infer congressional intent to pre-empt state laws from the substantive provisions” of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 (1987) (opinion of Marshall, J.). Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992). These interpretive canons make any claim of implied preemption particularly weak in the presence of an express congressional statement on the subject. It is quite clear that Congress in enacting IRCA sought to limit its preemptive effect, by carving out an area for continuing state action in 8 U.S.C. § 1324a(h)(2). Plaintiffs would have this Court ignore the express limitation on preemption that Congress enacted.
28

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 37 of 52
II. Plaintiffs’ Equal Protection Argument Cannot Survive Plaintiffs Equal Protection Clause challenge, as expressed in their Motion for Preliminary
Injunction, was simply a speculative assertion that Ordinance 1722 will cause employers to discriminate against Hispanic individuals when hiring new employees. Plaintiffs argue that Ordinance 1722, though facially neutral, will have an unconstitutionally discriminatory impact on such workers in the private hiring process. Pl. Mtn. for Pre. Inj., 15. In their Second Amended Complaint and in their Amended Response Memorandum, Plaintiffs belatedly recharacterize their equal protection argument by adding another theory: that a discriminatory effect will occur “by inducing City officials or Valley Park residents to file complaints ... against business entities based on their employment of Hispanics.” Pl. Amd. Resp. Memo. 17. However, this new claim is subject to the same fatal flaws that require summary judgment against Plaintiffs: (1) Plaintiffs do not have standing to raise this particular claim and (2) their theory lacks state action. These flaws are sufficient to render Plaintiffs’ Equal Protection claim invalid, even if all of Plaintiffs’ factual assertions were true.
A. Plaintiffs Lack Standing to Raise Their Equal Protection Claim At the outset, it must be reiterated that Plaintiffs are employers; they are not workers who have been denied a job. The hypothetical future hiring discrimination that they predict will occur is private discrimination against the employees of other employers. Plaintiffs do not have standing to challenge such discrimination because they, as unrelated employers, suffer no judicially cognizable injury. The injured party in such a scenario is a third party not present in this action. Establishing a judicially cognizable injury to the plaintiff is a core requirement of Article III standing. “[T]he ‘injury in fact’ test requires more
29

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 38 of 52
than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972). Consequently, “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, (1975). See Thompson v. Adams, 268 F.3d 609, 613 (8th Cir. 2001). It is a well-established general rule that “a litigant may only assert his own constitutional rights or immunities.” United States v. Raines, 362 U.S. 17, 22 (1960). Exceptions to this rule are very narrow.6
Recognizing that their standing to raise this hypothetical equal discrimination claim is fatally flawed, Plaintiffs make a last-ditch attempt to resuscitate their standing in their Amended Response Memorandum. They assert that their equal protection claim falls within the narrow exception allowing third parties to possess standing to assert the rights of others. Pl. Amd. Resp. Memo. 18-20. Tellingly, Plaintiffs neglect to state what the requirements for asserting standing as a third party are.
The elements needed to assert third party constitutional rights are (1) the litigant himself still must have suffered an “injury in fact” therefore giving him a “sufficiently concrete interest” in the outcome, (2) the litigant has a “close relationship to the third party,” and (3) there must be something hindering the third party’s ability to protect its own interests. Powers v. Ohio, 499 U.S. 400, 411 (1990). Plaintiffs fail to meet all three elements of the test.
First, Plaintiffs have not shown that they themselves would suffer actual injury as was present in Craig v. Boren, 429 U.S. 190 (1974) on which the plaintiffs rely on heavily. In Craig, the vendor suffered a “direct economic injury through the constriction of her buyer’s market.” Id. at 194. Besides the obvious distinction that Craig involved a vendor asserting the rights of vendees (whereas in this case Plaintiff is an employer attempting to assert the rights of another employer’s hypothetical future employees), there is no plausible way in which such discrimination by another employer would cause a direct injury to be suffered by Plaintiffs. Furthermore, because the plaintiffs assert only a hypothetical injury from hypothetical
6 The exceptions include an association asserting the rights of its members (with rules); a law firm asserting the rights of clients; corporate shareholders asserting corporation's rights; a physician or hospital asserting a patient’s
30

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 39 of 52
employees, a more applicable case than Craig would be Kowalski v. Tesmer, 543 U.S. 125 (2004). In that case, attorneys attempted to assert the rights of hypothetical indigent clients (their own hypothetical indigent clients, not the clients of other attorneys). The Court rejected their assertion of third-party standing.7 The Court held that establishing an “injury in fact” under Lujan was still necessary. Even in a third-party standing case, the plaintiff “must demonstrate an ‘injury in fact;’ a causal connection between the injury and the conduct of which the party complains; and that it is ‘likely’ a favorable decision will provide redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).” Kowalski, 543 U.S. at 129 n.2. It is important to note that the Court made clear that the plaintiff himself must suffer all three Constitutional requirements of standing: injury, a causal connection between the injury and the challenged conduct, and redressability.
Plaintiffs recognize that they have a problem here. In an effort to gloss over this requirement, Plaintiffs make the passing statement that they meet the injury in fact requirement “because they are subject to sanctions for violation of the Ordinance.” Pl. Amd. Resp. Memo. 18. What Plaintiffs neglect to mention is that they must demonstrate “a causal connection between the injury and the conduct of which the party complains.” Kowalski, 543 U.S. at 129 n.2. There is no causal connection whatsoever between Plaintiffs “injury” (the possibility that they themselves might be subject to a complaint) and the discriminatory conduct of another employer in refusing to hire an employee because of his ethnicity. The unequal treatment of others must in turn cause the Plaintiffs direct injury. They have not, and cannot, explain how they as an employer are injured by the discriminatory employment decision of another employer. Merely being subject to sanctions in the abstract is not enough. In McGowan v. Maryland, 366 U.S. 420, 429-430 (1960), a case that involved an employee-employer relationship, the Court found that the employees could not assert the third-party standing to assert the constitutional rights of their own employer despite the fact that the employees themselves were subject to sanctions.
rights; vendor asserting vendees rights - almost all of these have cases going both ways). 7 The Court assumed for the sake of argument that the plaintiff attorneys could establish the first requirement— injury to themselves—but found that they could not establish the second and third requirements of third-party standing. 543 U.S. at 129-34.
31

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 40 of 52
Second, Plaintiffs show no close relationship to the third party victims of hypothetical discriminatory hiring practices by other employers. To even have a chance of satisfying the third party standing requirement, Plaintiffs would have to assert a close relationship to their own hypothetical employees. However, the Supreme Court has been reluctant to recognize third party standing even when there is a direct employer-employee relationship. Id. Moreover, as the Kowalski Court clearly stated, there is a huge distinction between known third-parties and hypothetical third-parties. “[An] existing attorneyclient relationship is, of course, quite distinct from the hypothetical attorney-client relationship posited here.” Kowalski, 543 U.S. at 131 (emphasis added). As the Court explained, “The attorneys before us do not have a ‘close relationship’ with their alleged ‘clients’; indeed, they have no relationship at all.” Kowalski, 543 U.S. at 131. The same failure is present in the case at bar. Plaintiffs would not be able to establish a sufficiently close relationship to the potential employees of another employer, even if Plaintiffs could identify actual potential employees. Much less when Plaintiffs are asserting the interests of hypothetical future employees. Plaintiffs provide no case law that even comes close to indicating that they meet this requirement to establish third-party standing. All they can do is cite an irrelevant case from the civil rights era in which close companions were discriminated against because of the race of one of the companions. From the statement that “a State must not discriminate against a person because of his race or the race of his companions,” Plaintiffs extrapolate that they therefore have a sufficiently close relationship with hypothetical potential employees of another employer to satisfy the third-party standing requirements. Pl. Amd. Response Memo. 19 (quoting Adickes v. S.H. Kress and Co., 398 U.S. 144, 150-52 (1970)). Standing was not even at issue in the case they cite. See id., passim. Clearly, the Plaintiffs have not satisfied the second element required to assert third-party standing.
Third, Plaintiffs must establish that the third parties they hope to represent are hindered in their ability to protect their interests on their own. Here Plaintiffs say absolutely nothing. Plaintiffs are either unaware of this requirement or they do not wish to talk about it. It is potential employee could bring his own Equal Protection Clause challenge. Even if the would-be employee were an illegal alien, he would
32

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 41 of 52
have standing to assert his own rights under the Equal Protection Clause. See Lozano, 496 F.Supp. at 49899. In addition, the potential employee, not Plaintiffs, would have access to the Office of the Special Counsel for Immigration-Related Unfair Employment Practices within the Department of Justice. Only a person who believes that he has been the subject of such discrimination may file a charge with that office. 8 U.S.C. § 1324b(b)(1). Moreover, Plaintiffs are in no position to effectively assert the rights of that individual when such future discrimination occurs. Plaintiffs would not be witness to the discrimination, Plaintiffs would not be able to effectively argue the facts of the discrimination because they would be ignorant of the circumstances, Plaintiffs would have no relationship to the victim of the discrimination in order to establish the trust necessary to effectively represent him. Indeed, plaintiffs would probably not even be aware that such discrimination had occurred. Thus, the Plaintiffs clearly fail to meet the third requirement of third-party standing. Having failed to meet any of the three requirements, Plaintiffs’ equal protection claim must be rejected because Plaintiffs lack standing to raise it.
B. Plaintiffs’ Theory Lacks State Action Plaintiffs second basic flaw in their equal protection theory is that it lacks state action. The Fourteenth Amendment prohibits racial or ethnic discrimination by state actors, not by private individuals. U.S. CONST., Amend. XIV, Section 1. Plaintiffs’ theory of unconstitutional discrimination rests on the independent actions of private individuals. Under such circumstances, no state action exists. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195-96 (2003).8 In their Amended Response Memorandum, Plaintiffs attempt to explain how the requisite state action exists. However, their explanation reveals a basic misunderstanding about state action: “Plaintiffs are suing the City of Valley Park… . Plaintiffs are not suing any private businesses or private persons.
8 Plaintiffs make an unpersuasive attempt to distinguish Cuyahoga Falls, stating that because it involved a referendum by private individuals that preceded any action by city officials, that distinguishes it from the present case, where the action by city officials came first, and the racially-motivated private discrimination came second. Pl. Amd. Resp. Memo. 23-24. Plaintiffs offer a distinction without a difference. The order of events is entirely beside the point. The question is whether the discriminatory actions of private individuals can be said to be attributable to the City. The answer is no, in both Cuyahoga Falls and in the case at bar.
33

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 42 of 52
Therefore, Plaintiffs’ claim is squarely based on state action.” Pl. Amd. Resp. Memo. 20. Plaintiffs’
argument is essentially: because we are suing a city, there is state action. To be sure, Plaintiffs are suing a
city. But the problem with their argument is that in order to make a discrimination claim under the Equal
Protection Clause, Plaintiffs must demonstrate that the state actor has caused or has participated in the
unconstitutional conduct. Merely suing a city does not establish the requisite state entanglement. The
question that the court must answer is whether the allegedly unconstitutional discrimination is attributable to a state actor. Wickersham v. City of Columbia, 481 F.3d 591, 597-99 (8th Cir. 2007). In the Wickersham
case, the Eighth Circuit asked and answered this question, holding that the private organization “and the
city were knowingly and pervasively entangled in the enforcement of the challenged speech restrictions.”
Id. at 599.
Plaintiffs fail to apply relevant the “state entanglement” test of state action case law. Under Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937, (1982), a court must ask whether the claimed deprivation
“resulted from the exercise of a right or privilege having its source in state authority” and whether the party
engaging in the deprivation “may be appropriately characterized as [a] state actor[].” See Lugar, 457 U.S.
at 939. See also Wickersham, 481 F.3d at 597. The second Lugar query was described in full by the
Supreme Court as follows: whether the person may characterized as a state actor “because he is a state
official, because he has acted together with or has obtained significant aid from state officials, or because
his conduct is otherwise chargeable to the state.” 457 U.S. at 937. The Supreme Court has explained the
operation of the state action requirement in such cases more fully as follows:
Our cases try to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not. Nat’l College Athletic Assoc. v. Tarkanian, 488 U.S. 179, 191 (1988); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974). The judicial obligation is not only to “ ‘preserv[e] an area of individual freedom by limiting the reach of federal law’ and avoi[d] the imposition of responsibility on a State for conduct it could not control,” Tarkanian, supra, at 191(quoting Lugar, supra, at 936-937), but also to assure that constitutional standards are invoked “when it can be said that the State is responsible for the specific conduct of which the plaintiff complains,” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in original). If the Fourteenth Amendment is not to be displaced, therefore, its ambit cannot be a simple line between States and people operating outside formally governmental organizations, and the deed of an ostensibly private organization or individual is to be treated sometimes as if a State had caused it to be performed. Thus, we say that state
34

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 43 of 52
action may be found if, though only if, there is such a “close nexus between the State and the challenged action” that seemingly private behavior “may be fairly treated as that of the State itself.” Jackson, supra, at 351.
Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001) (emphasis added). Clearly, the behavior that Plaintiffs predict private individuals will engage in the future (whether they by private employers or private individuals submitting complaints) cannot “be fairly treated as that of the [City] itself. No City authority gives employers in Valley Park the right or privilege to discriminate on the basis of race, national origin, or ethnicity. Nothing in Ordinance 1722 can even be remotely characterized as authorizing or encouraging such private discrimination. Indeed, Ordinance 1722 expressly prohibits private discrimination in the filing of complaints. Ordinance 1722 § 4.B(2). Without such close and deliberate collaboration between state actors and private actors, Plaintiffs’ equal protection claim lacks the necessary component of state action.
C. Plaintiffs’ New Equal Protection Theory is Equally Flawed Plaintiffs new version of their equal protection argument suffers from the same standing and state action problems, as well as others. They speculate that Ordinance 1722 will promote private discrimination in the form of Valley Park residents submitting complaints to the City because the employers in question employ Hispanics. Pl. Amd. Resp. Memo. 17. Once again, Plaintiffs assert an Equal Protection argument that lacks both standing and state action. Indeed, the problems are worse with this claim. In addition to suffering from the same third party standing problems described above, due to the fact that this claim alleges discrimination against a hypothetical future employee, not against the Plaintiff employer, this claim suffers from additional standing problems: it is entirely speculative and causation rests upon the intervening action of unknown third parties. A speculative injury does not meet the requirements of standing. An injury in fact for the purpose of establishing Article III standing must be “actual or imminent, not ‘conjectural’ or ‘hypothetical[.]’” Lujan v. Defenders of Wildlife, 504 U.S. 555,
35

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 44 of 52
560-61 (1992). “The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. III standing requirements,” not rely on speculation and conjecture to do so. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). In addition, “the 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 before the court.” Lujan, 504 U.S. at 560-61 (internal citations omitted). Plaintiffs hypothetical future injury falls short on both counts.
Plaintiffs’ assertion that Plaintiff herself will suffer such “injury” in the future is entirely based on conjecture. Plaintiffs do not allege that they are presently employing any Hispanic employees. As a result, their standing to assert this claim rests on all six events occurring in the following speculative chain of events: (1) Plaintiffs will hire an employee in the future, (2) an Hispanic employment applicant will come forward and seek the job, (3) Plaintiffs will elect to hire that applicant, (4) some resident of Valley Park will learn about the employee’s employment with Plaintiff, (5) that resident will be motivated by racial animus to file a complaint against Plaintiff under Ordinance 1722, and (6) that complaint will not be rejected outright by the City as one based on ethnicity. This chain of events is exactly the sort of speculative injury that the Supreme Court rejected in the landmark case of Lujan. Speculation cannot establish an Article III injury for standing purposes. Lyons v. City of Los Angeles, 461 U.S. 95,105-106 (1983). In addition, for this speculative injury to occur, unidentified third parties must take actions (2), (4), and (5). An unidentified Hispanic worker must come forward and seek employment with Plaintiff, and an unidentified resident of the City must file a complaint driven by racial animus. The Supreme Court has repeatedly made clear that for standing to exist, the injury may not be “‘the result [of] the independent action of some third party not before the court.’” Lujan, 504 U.S. at 560-61 (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)). Plaintiffs rely on the independent action of not one, but two, third parties not before the court.
Plaintiffs’ state action deficiency is even worse on this new claim because the City has expressly discouraged and disqualified the ethnicity-based complaints that Plaintiffs speculate may occur. Ordinance 1722 contains a blanket anti-discrimination clause: “Any complaint which alleges a violation on the basis
36

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 45 of 52
of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance 1722 § 4.B(2). This is an extraordinary provision. Even if the business entity that is the subject of the complaint is in violation of the ordinance, the City will take no action on such a complaint. In addition, City officials are not permitted to consider race, ethnicity, or national origin when they enforce Ordinance 1722. City officials may only consider race/ethnicity/origin-neutral factors when deciding whether a complaint is a valid one that warrants further investigation. Ordinance 1722 § 4.B(1). With this blanket policy rejecting such discriminatory complaints, Plaintiffs’ claim lacks the “close nexus between the State and the challenged action” which is necessary if seemingly private behavior “may be fairly treated as that of the State itself.” Jackson, 419 U.S. at 351
III. Plaintiffs’ Due Process Claim is Meritless The fundamental requirement of due process is a meaningful opportunity to be heard that is
appropriate to the circumstances. Matthews v. Eldridge, 424 U.S. 319, 333 (U.S. 1976). There is no rigid set of procedural requirements that must be satisfied. Indeed, “[t]he judicial model of an evidentiary hearing is neither required, nor even the most effective, method of decision-making in all circumstances.” Id. at 348. As long as the party subject to the revocation of a license has notice and a meaningful opportunity to be heard, due process is satisfied. Goldberg v. Kelly, 397 U.S. 254, 268-69, (1970). Plaintiffs’ Amended Response Memorandum asserts that both notice and a meaning opportunity to be heard are missing from Ordinance 1722. However Plaintiffs assertions are plainly incorrect. Their claims are facially invalid because they cannot be squared with the plain text of Ordinance 1722. Indeed, the plain text of Ordinance 1722 provides notice as well as multiple meaningful opportunities to be heard, including judicial evidentiary hearings. In so doing, it goes well beyond the minimum requirements of due process.
Plaintiffs’ claim that Ordinance 1722 fails to provide notice is nothing more than a simple assertion in one sentence, without any supporting case law or any explanation. Pl. Amd. Resp. Memo. 31. In fact, there are multiple instances of notice in Ordinance 1722. First, all business entities within the City of Valley Park are placed on notice at the time of applying for a business permit when they must sign an
37

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 46 of 52
affidavit stating that they do not knowingly utilize the services of or hire any unlawful worker. Ordinance 1722 § 4.A. Ordinance 1722 operates prospectively only, so employment contracts entered into prior to the effective date of the Ordinance cannot provide the basis for enforcement against an employer. Ordinance 1722 § 5.A. Any business entity in the City can fully immunize itself against violations of the ordinance by verifying the work authorization of its future employees through the E-Verify Program. Ordinance 1722 § 4.B(5). This safe harbor provision allows a business owner to ascertain the legal status of any employee through the chosen mechanism established by the federal government. Thus, business entities are given adequate notice of the requirements of the ordinance and are provided an administrative mechanism for ensuring and confirming that they are not violating the ordinance in the future. Second, the ordinance provides notice to the business entity after the City determines that a complaint is valid. At that point, the City notifies the business entity of the complaint and requests information concerning the employee(s) in question. At that point, the business entity can provide any information that it wishes to provide to the City. Ordinance 1722 § 4.B(3). Third, after the federal government issues a final verification regarding the employees’ work authorization, the City notifies the business of that verification. Ordinance 1722 § 4.B(4). Clearly, these three junctures of notice meet the requirements of due process.
Ordinance 1722 provides multiple meaningful opportunities to be heard, including judicial evidentiary hearings. In so doing, it goes well beyond the minimum requirements of due process. Plaintiffs’ most significant error in their Amended Response Memorandum is that they fail to recognize that, in addition to the many opportunities to be heard that occur at specific points in the enforcement process under Section 4 of Ordinance 1722,9 the judicial evidentiary hearings of Section 5.D. alone are sufficient to meet the “meaningful opportunity to be heard” requirement of due process. Section 5.D. provides as follows.
Venue for Judicial Process. Any business entity subject to a complaint and subsequent enforcement under this Ordinance, or any employee of such a business entity, may challenge the enforcement of this Ordinance with respect to such entity or individual before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right 9 These multiple opportunities to be heard are described in detail in Defendant’s Memorandum Supporting Defendant’s Motion for Summary Judgment 35-36.
38

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 47 of 52
of appeal to the St. Louis County Circuit Court. Such an entity or individual may alternatively challenge the enforcement of this Ordinance with respect to such entity or individual in any other Court of competent jurisdiction in accordance with applicable law, subject to all rights of appeal. Ordinance 1722 § 5.D. What Plaintiffs fail to recognize is that this judicial process may be utilized by a business entity or employee at any time once the enforcement mechanisms of Section 4 begin. Once a complaint is filed and the City begins determination of whether the complaint is valid, enforcement has begun (even though no suspension of a business license is possible yet), and the business entity or employee may seek an injunction before the Board of Adjustment with full panoply of procedural protections that apply in a judicial hearing. Plaintiffs erroneously assume that this process only occurs post-deprivation. Pl. Amd. Resp. Memo. 35. Plaintiffs also make the empty argument that the ordinance fails to lay out the judicial standards for reviewing a challenge. Id. at 35-36. The judicial standards in evaluating a challenge to the enforcement of Ordinance 1722 are the same standards that apply in any Missouri state court in which a challenge is made to the enforcement of a municipal ordinance. It is not necessary for an ordinance to recite such standards for the requirements of due process to be met. If it were, then virtually every ordinance of every municipality in the state of Missouri would be unconstitutional. Not surprisingly, Plaintiffs offer no case law directly on point. Finally, it must be reiterated that Ordinance 1722 provides considerably more process than is due. With respect to business licenses, due process does not require pre-deprivation hearing. A business owner need only be given an opportunity to be heard at a meaningful time and in a meaningful manner following revocation of his business license. Tanasse v. City of St. George, 1999 U.S. App. LEXIS 2389 (10th Cir., February 17, 1999). Thus, Ordinance 1722 goes well beyond the requirements of due process, offering the business entity multiple opportunities to be heard, both pre-deprivation and post-deprivation. Plaintiffs also make the claim that Ordinance 1722 fails to provide adequate guidance to business entities. Pl. Amd. Resp. Memo. 30. Here again, the answer if evident on the face of the Ordinance. The various provisions of Section 4.B provide lengthy guidance to business entities in the event that they are the subject of a complaint. In addition, the provisions of Section 5.B describe options available to a business
39

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 48 of 52
entity seeking to correct a violation; and Section 5.D. describes judicial remedies available to any business entity that wishes to challenge the enforcement of the ordinance. Plaintiffs also fail to note that current federal law already requires them to determine the immigration status of an employee. 8 U.S.C. §§ 1324a(a), 1324a(b). And Plaintiffs do have a way of determining the work authorization of prospective employees. They may scrutinize documents presented by the employee, as they are already required to do by federal law, id.; and they may utilize the E-Verify Program, along with more than 19,000 other employers across the country, to verify the work authorization of employees with the federal government over the internet. There are multiple avenues for a business to ensure that it meets the requirements of Ordinance 1722.
Plaintiffs also assert that the suspension of a license when a business entity refuses to provide identity information about an employee in question after three days constitutes a deprivation of the license without any prior due process. Plaintiffs incorrectly refer to this as an “automatic suspension procedure.” Pl. Amd. Resp. Memo. 31-32. There are two errors in Plaintiffs’ argument. First, as noted above, the full judicial process of Section 5.D. is available before any suspension occurs. A business entity may go straight to the Board of Adjustment and seek a temporary restraining order prohibiting the City from proceeding any further in acting upon the complaint. Second, assuming for the sake of argument that Section 5.D. did not exist, it is permissible for a license to be suspended when the subject of a complaint refuses to provide information to the state. This has been well established in the context of driving under the influence statutes, where a driver’s license may be suspended if the driver refuses to consent to a “breathalyzer” test. As the Supreme Court has explained:
The District Court, in holding that the Due Process Clause mandates that an opportunity for a further hearing before the Registrar precede a driver’s suspension, overstated the risk of error inherent in the statute's initial reliance on the corroborated affidavit of a law enforcement officer. The officer whose report of refusal triggers a driver’s suspension is a trained observer and investigator. He is, by reason of his training and experience, well suited for the role the statute accords him in the presuspension process.
40

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 49 of 52
Mackey v. Montrym, 443 U.S. 1 (1979). Similarly, the City officials who investigate complaints to determine if they are valid are suited to reduce the risk of error in this process. In any case, full judicial process is available if the business entity wishes to trigger the protections of Section 5.D.
IV. Ordinance 1722 Does Not Contravene Missouri Law Regarding Imprisonment and Fines Plaintiffs fail to overcome the first and most obvious problem their state law claim: the statute they
cite is simply a limit on the amount of fines and the terms of imprisonment that Missouri cities of the fourth class may impose on those who commit offenses. It is not a restriction on what conditions such cities may impose upon the retention of business permits. The text of the statute simply reads:
For all ordinance violations the board of aldermen may impose penalties not exceeding a fine of five hundred dollars and costs, or ninety days’ imprisonment, or both the fine and imprisonment. Where the city and state have a penalty for the same offense, the board shall set the same penalty by ordinance as is set by statute, except that imprisonments, when made under city ordinances, may be in the city prison or workhouse instead of the county jail. R.S.Mo. § 79.479. The limitations on penalties and offenses has no bearing upon the authority of cities of the fourth class to issue, suspend, or revoke business permits. Plaintiffs again fail to offer any case law suggesting that R.S.Mo. § 79.479 may somehow restrict the issuance and suspension of business permits. Missouri cities of the fourth class have long possessed the authority to issue business licenses to business entities in their jurisdiction, and to use that licensing authority to regulate such business entities. This authority is statutorily recognized in R.S.Mo. § 94.270: “The mayor and board of aldermen shall have power and authority to regulate and to license … merchants of all kinds, grocers, confectioners, restaurants, butchers, taverns, hotels, public boardinghouses … manufacturing and other corporations or institutions … and all other business, trades and avocations whatsoever.” R.S.Mo.§ 94.270. The power to issue such licenses necessarily includes the power to suspend, revoke, or decline to issue such licenses. Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927). The courts of Missouri continue to adhere to the fundamental principle that a city has the power to revoke a license that it has issued. Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140 (Mo. Ct. App. 2003). Unlawful action by a business entity is
41

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 50 of 52
a well-established basis for the revocation of a municipal business permit. The courts of Missouri have accordingly recognized a city’s “power to suspend or revoke licenses on final adjudication of violation of city ordinances.” State ex rel. Jimmy's Western Bar-B-Q, Inc. v. Independence, 1975 Mo. App. LEXIS 1800 (Mo. Ct. App. 1975). Thus Valley Park is well within its authority under state law.
Plaintiffs also fail to address the fact that a Missouri city may act within it police powers to protect the general health, safety, or welfare of the public. Businesses may be “reasonably regulated in the interest of the public welfare” by a city using its police powers. McLellan v. Kansas City, 379 S.W.2d 500, 504 (Mo. 1964) Conditions imposed on licensing are also a manifestation of the police powers of a Missouri city. Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927). “[I]n the exercise of its police power, the city could regulate the conduct of the business here involved and could employ licensing as a means for such regulation.” McLellan v. Kansas City, 379 S.W.2d at 505. An ordinance is presumed to be a valid exercise of the police power and the party challenging the ordinance has the burden of showing that it is unreasonable, see Miller v. City of Town & Country, 62 SW3d 431, 437 (Mo.App. E.D. 2001), citing Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959); St. Louis v. Liberman, 547 S.W.2d 452, 457 (Mo. 1977); McClellan v. Kansas City, 379 S.W.2d at 504-05. Plainly, protecting the jobs of U.S. citizens and authorized alien workers against loss to unauthorized aliens, and protecting their wages against depression resulting from the presence of illegal labor are measures that serve the welfare of the public.
Plaintiffs contend that any doubt about the City’s power under state law should be resolved against the City. However, if reasonable minds differ as to whether a particular ordinance bears a substantial relationship to the protection of the general health, safety, or welfare of the public, then the issue must be decided in favor of the ordinance. Lewis v. City of University City, 2004 Mo .App. Lexis 1119. Conditioning the retention of a business permit upon compliance with federal immigration laws governing the employment of unauthorized aliens serves the welfare of legal workers in Valley Park and the interest of all Valley Park residents in preserving the rule of law.
42

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 51 of 52
CONCLUSION For all of the reasons presented above, and because Plaintiffs have not alleged any facts that would cure the defects in Plaintiffs’ legal arguments, Defendant respectfully requests that this Court grant summary judgment in favor of Defendant, declaring that Ordinance No. 1722 is constitutional and consistent with Missouri law, and denying the injunctive relief sought by Plaintiffs.
Respectfully submitted by /s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu
/s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
/s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org
Attorneys for Defendant
43

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 52 of 52
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 27th day of September, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH
44

 
 Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 1 of 47

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

PLAINTIFFS’ RESPONSE MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 2 of 47
TABLE OF CONTENTS TABLE OF AUTHORITIES ..................................................................................................i, ii, iii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 ARGUMENT.................................................................................................................................. 4 I. Ordinance 1722 Is Preempted Under The Supremacy Clause................................................ 5
A. The Ordinance is Expressly Preempted by Federal Law. ................................................... 7 B. The Ordinance is Preempted Because It Conflicts with Federal Law. ............................... 9
1. The Ordinance Conflicts With Individual Provisions Of Federal Law. ....................... 10 2. The Ordinance Interferes With The Federal Government’s Regulatory Scheme......... 13 3. Defendant’s Citation to Unrelated Statutory Provisions Fails to Ameliorate the
Conflicts Posed by Ordinance 1722.............................................................................. 16 II. Plaintiffs’ Equal Protection Claim Is Legally Sound And There Are Material Fact Issues
Regarding Whether Ordinance 1722 Has A Discriminatory Purpose and Discriminatory Effect..................................................................................................................................... 17 A. Plaintiffs Have Standing to Sue On Behalf of Third Parties or On Behalf of
Themselves for Injury Suffered on Account of Their Association With Persons of Hispanic Origin................................................................................................................. 17 B. The Plaintiffs’ Equal Protection Claim Is Based On State Action. .................................. 20 C. Ordinance 1722 Was Motivated by the Purpose, and Will Have the Effect of, Discriminating Against Hispanics And Those Who Hire Them. ..................................... 24 1. There is a genuine issue of material fact as to whether Ordinance 1722 is motivated
by a discriminatory purpose.......................................................................................... 24 2. There is a genuine issue of material fact as to whether Ordinance 1722 will have a
discriminatory effect. .................................................................................................... 27 III. Ordinance 1722 Violates The Due Process Clause............................................................... 29
A. Ordinance 1722 Fails to Provide Notice of How to Comply............................................ 30 B. Plaintiffs have No Meaningful Opportunity to Be Heard Before or After They Are
Deprived of Their Ability to Do Business in Valley Park. ............................................... 31 1. The Ordinance’s automatic suspension procedures deny business entities a pre-
deprivation hearing. ...................................................................................................... 31
i

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 3 of 47 2. The Ordinance provides no meaningful opportunity to be heard when “correcting”
violations....................................................................................................................... 33 3. The post-deprivation procedures are similarly inadequate. .......................................... 35 IV. This Court Should Give Preclusive Effect To The State Court’s Judgment That The Penalty Provision That Appears In Ordinance 1722 Is Invalid Under State Law. ............... 36 V. On The Merits, Ordinance 1722 Is Invalid Under State Law. .............................................. 36 CONCLUSION............................................................................................................................. 39
ii

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 4 of 47
TABLE OF AUTHORITIES FEDERAL CASES
Adickes v. S.H. Kress and Co., 398 U.S. 144 (1970)...................................................18, 20 Bevles Co., Inc. v. Teamsters Local 986, 791 F.2d 1391 (9th Cir. 1986)..........................10 Bills v. Hodges, 628 F.2d 844 (4th Cir. 1980) ...................................................................19 City of Cuyahoga Falls v. Buckley Community Hope Foundation, 538 U.S. 188
(2003).....................................................................................................................23, 25 Craig v. Boren, 429 U.S. 190 (1976).................................................................................17 Crosby v. National Foreign Trade Council, 530 U.S. 363 (2000) ....................................14 Cutting v. Muzzey, 724 F.2d 259 (1st Cir. 1984) ...............................................................19 De Canas v. Bica, 424 U.S. 351 (1976)...................................................................6, 10, 13 Doe v. Hennepin County, 858 F.2d 1325 (8th Cir. 1988), cert. denied, 490 U.S.
1108 (1989)..................................................................................................................35 Faraca v. Clements, 506 F.2d 956 (5th Cir.), cert. denied, Clements v. Faraca,
422 U.S. 1006 (1975)...................................................................................................19 Fuentes v. Shevin, 407 U.S. 67 (1972).........................................................................29, 31 Geier v. American Honda Motor Co., 529 U.S. 861 (2000)..............................................10 Gen'l Electric Co. v. EPA, 290 F.3d 377 (D.C. Cir. 2002)................................................11 Goldberg v. Kelly, 397 U.S. 254 (1970) ......................................................................29, 33 Graham v. Richardson, 403 U.S. 365 (1971) ......................................................................7 Hines v. Davidowitz, 312 U.S. 52 (1941) ....................................................................13, 14 Incalza v. Fendi North America, Inc., 479 F.3d 1005 (9th Cir. 2007)...............................10 Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 2007 WL. 2163093 (M.D. Pa.
July 26, 2007)....................................................................................................... passim Martinez v. Ibarra, 759 F. Supp. 664 (D. Colo. 1991) ......................................................35 Matthews v. Eldridge, 424 U.S. 319 (1976) ......................................................................31 Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir. 1994) ..............................................19

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 5 of 47
Parr v. Woodmen of the World Life Insurance Co., 791 F.2d 888 (11th Cir. 1986) .........19 Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992).............................................................19 Pennsylvania v. Nelson, 350 U.S. 497 (1956) ...................................................................13 Peterson v. City of Greenville, S.C., 373 U.S. 245 (1963) ................................................20 RK Ventures v. City of Seattle, 307 F.3d 1045 (9th Cir. 2002)..........................................18 Reitman v. Mulkey, 387 U.S. 369 (1967)...............................................................21, 22, 27 Robinson v. State of Florida, 378 U.S. 153 (1964)............................................................21 Rogers v. Larson, 563 F.2d 617 (V.I. 1977) .....................................................................14 Rogers v. Lodge, 458 U.S. 613 (1982)...............................................................................24 Scott v. Greenville County, 716 F.2d 1409 (4th Cir. 1983) ...............................................19 Sprietsma v. Mercury Marine, 537 U.S. 51 (2002) ...........................................................10 Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969) ...............................................19 United States v. Hayward, 6 F.3d 1241 (7th Cir. 1993) ....................................................19 United States v. Locke, 529 U.S. 89 (2000) .........................................................................6 Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. 2007) .......................................22 Wilson v. Little Rock, 801 F.2d 316 (8th Cir. 1986) ..........................................................17 Winegar v. Des Moines Independent Community Sch. District, 20 F.3d 895 (8th
Cir. 1994) .....................................................................................................................33 Wis. Department of Industrial v. Gould, 475 U.S. 282 (1986) ..........................................14 Zadvydas v. Davis, 533 U.S. 678 (2001) .............................................................................7 Zinermon v. Burch, 494 U.S. 113 (1990)...........................................................................31
STATE CASES Davis v. City of Kinloch, 752 S.W.2d 420 (Mo.App. 1988)..............................................37 Division of Family Services v. Cade, 939 S.W.2d 546 (Mo. App. W.D. 1997) ................33
ii

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 6 of 47
Jamison v. State, Department of Social Services, Division of Family Services, 218 S.W.3d 399 (Mo. 2007) ...............................................................................................32
Jimmy's Western Bar-B-Q, Inc. v. Independence, 1975 Mo. App. LEXIS 1800 (Mo. Ct. App. 1975).....................................................................................................37
McClellan v. Kansas City, 379 S.W.2d 500 (Mo. 1964) ...................................................37 Miller v. City of Town & Country, 62 S.W.3d 431 (Mo. App. E.D. 2001) .......................37 Premium Standard Farms, Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d
234 (Mo. en banc 1997) ...............................................................................................36 St. Louis v. Lieberman, 547 S.W.2d 452 (Mo. 1977) ........................................................37 State ex rel. Curators of University of MO v. McReynolds, 193 S.W.2d 611 (Mo.
en banc 1946)...............................................................................................................36
FEDERAL STATUTES AND REGULATIONS 8 C.F.R. § 274a.1(c)-(f) .....................................................................................................10 8 U.S.C. § 1229a(a)(3).................................................................................................30, 35 8 U.S.C. § 1242a ................................................................................................................10 8 U.S.C. 1324(a) ................................................................................................................10 8 U.S.C. § 1324a(h)(2)...................................................................................7, 9, 11, 12, 30 8 U.S.C. § 1324b(a)(6)...........................................................................................12, 14, 26 8 U.S.C. § 1357(g) .............................................................................................................15 8 U.S.C. § 1373(a) .............................................................................................................15 62 C.F.R. 48309(IV)(a)......................................................................................................11 42 U.S.C. § 1983..........................................................................................................18, 19 Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-156
(Dec. 3, 2003) ..............................................................................................................11 Illegal Immigrant Reform and Immigrant Responsibility Act, §§ 401, 402(a),
Pub. L. NO. 104-28, Div. C (Sept. 30, 1996), codified as amended at 8 U.S.C. § 1324a...................................................................................................................11, 35
iii

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 7 of 47
INTRODUCTION Plaintiffs initiated this action in March 2007 challenging two anti-immigrant ordinances (Ordinances 1721 and 1722) that had been enacted by the Defendant City of Valley Park (“City”). Those ordinances replaced two predecessor ordinances that purported to penalize landlords for renting to “illegal aliens” and to penalize businesses for employing “unlawful workers.” The predecessor ordinances had been permanently enjoined by the Missouri state court. Ordinance 1721 replaced and amended the portions of the predecessor ordinances directed to landlords. Ordinance 1722 incorporated wholesale the portion of the predecessor ordinances that was directed to businesses and that had been held invalid. Because Ordinance 1722 contained the same provisions that had been enjoined, it would not by its own terms become effective unless and until the existing state-court injunction was terminated. In July 2007, the City effectively repealed Ordinance 1721, leaving only Ordinance 1722 in place, which Plaintiffs believed was inoperative under its own terms. Plaintiffs endeavored to clarify the status of Ordinance 1722 by moving this Court for a declaration that it was inoperative. The City responded by purporting to amend Ordinance 1722 to make it immediately effective, and by filing the current motion for summary judgment, asserting that the Court should determine as a matter of law that Ordinance 1722 is not invalid under the Supremacy Clause, the Equal Protection Clause, the Due Process Clause or state law. Plaintiffs have cross-moved for summary judgment that the earlier state-court judgment invalidating the penalty provision that appears in Ordinance 1722 is preclusive in this proceeding and supports summary judgment for the Plaintiffs. It is Plaintiffs’ position that this Court should defer to the state court by first considering whether the state court’s ruling is preclusive in this proceeding.1 In the event the Court considers
1 In addition, as noted elsewhere, plaintiffs in the state-court action, including the Plaintiffs in this action, have filed motions in state court for an order to show cause why the recent activation of Ordinance 1722

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 8 of 47
the City’s motion for summary judgment, the motion should be denied because Ordinance 1722 is preempted under the Supremacy Clause, and because, at minimum, there are genuine issues of material fact precluding summary judgment regarding the validity of Ordinance 1722 under the Equal Protection and Due Process Clauses.
BACKGROUND On July 17, 2006, the City enacted Ordinance No. 1708 (“Ordinance 1708”), which purported to penalize any landlord who permitted an “illegal alien” to occupy a dwelling unit and to penalize any business that employed or contracted an “illegal alien” to work. (Ex. D.)2 On September 22, 2006, Plaintiff Jacqueline Gray and other plaintiffs filed suit in the Missouri Circuit Court, County of St. Louis, alleging that Ordinance 1708 violated state and federal law.3 On September 26, 2006, after the court entered a Temporary Restraining Order enjoining enforcement of Ordinance 1708, the City enacted Ordinance No. 1715 (“Ordinance 1715”) (Ex. E), which amended Ordinance 1708 in certain respects, but nevertheless purported to penalize any landlord who leased property to an “illegal alien” or any business that employed an “unlawful worker.” On September 27, 2006, the Circuit Court entered an Amended Temporary Restraining Order enjoining the enforcement of Ordinance 1715. On March 12, 2007, the Circuit Court entered an order permanently enjoining the enforcement of Ordinance 1708 and Ordinance 1715. (Ex. A.) Among other things, the Circuit Court held that the penalty provision in the employer portion of Ordinance 1715 was invalid under state law. (Id. at 6-7.) Meanwhile, on February 14, 2007, the City enacted Ordinance 1721 and Ordinance 1722. Those Ordinances essentially separated Ordinance 1715 into two ordinances. Ordinance 1721
does not violate the existing permanent injunction. A hearing on that motion is scheduled for September 20, 2007. 2 Unless otherwise indicated, all exhibits cited herein are attached to the accompanying Statement of Material Facts. 3 The case was captioned Reynolds, et al., v. City of Valley Park, et al., (hereafter Reynolds I), Cause No. 06-CC-3802 in Division No. 13.
2

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 9 of 47
sought to regulate immigration by prohibiting the rental of dwellings to aliens unlawfully present in the United States. Ordinance 1722, as passed by the City Board of Aldermen on February 5, 2007, and signed by the Mayor on February 14, 2007, sought to regulate immigration by making it “unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part in the City.” (Ex. F § 4A.)
On February 11, 2007, the City passed Ordinance No. 1724 (Ex. G), which amended Ordinance 1722 so that it would not become effective until “the termination of any restraining orders or injunctions which [were then] in force in Cause No. 06-CC-3802[.]” (Id.)
On March 14, 2007, the Plaintiffs initiated this action challenging Ordinances 1721 and 1722 by filing a Petition for Declaratory and Injunctive Relief in the Missouri Circuit Court.4 Plaintiffs included a challenge to Ordinance 1722 just in case the City tried to enforce it despite the injunction in Reynolds I. Plaintiffs filed an Amended Petition on April 12, 2007, and a Motion for Preliminary Injunction on April 19, 2007. The City removed the matter to this Court on May 1, 2007, and the Court denied Plaintiffs’ motion to remand.
On July 16, 2007, the City enacted Ordinance No. 1735, which repealed certain disputed provisions from Ordinance 1721. On August 9, 2007, this Court granted the parties’ stipulation for voluntary dismissal of Plaintiffs’ claims related to Ordinance 1721. (Doc. No. 58.)
At that point it appeared to the Plaintiffs that this matter may be moot, or at least should be stayed pending the outcome of the appeals in Reynolds I. Only Ordinance 1722 was still at issue, and it was by its own terms not effective unless and until the permanent injunction in Reynolds I is terminated by a state appellate court. To confirm that Ordinance 1722 was not
4 On April 4, 2007, Stephanie Reynolds and other plaintiffs from the Reynolds I case also filed a second lawsuit, Reynolds et al. v. City of Valley Park, 07-CC-1420 (Reynolds II), which challenged only Ordinance 1721.
3

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 10 of 47
operative, Plaintiffs filed a Motion for a Declaration that Valley Park Ordinance No. 1722 is Inoperative. (Doc. No. 50-1.)
On August 10, 2007, City responded to the Motion for Declaration (or, more precisely, to Plaintiffs’ having raised the issue many weeks earlier), by filing the current Motion for Summary Judgment, with which it contended that it had the night before amended Ordinance 1722 to make it immediately effective. Plaintiffs questioned whether Ordinance 1722 had been amended in accordance with the Missouri Open Meetings Act (see Doc. Nos. 64, 65), and on August 20, 2007, the City purported to re-enact Ordinance No. 1736 (“Ordinance 1736”), which “restated” Ordinance 1722 and purported to make it effective immediately, although not enforceable until after December 1, 2007. (Ex. H.)
On August 27, 2007, Plaintiffs moved this Court for leave to file a Second Amended Complaint (Doc. No. 71) based on Ordinance 1722 as amended by Ordinance 1736, which this Court granted on September 4, 2007. On August 29, 2007, Plaintiffs filed a cross-motion for summary judgment that Ordinance 1722 is invalid under state law, based on the preclusive effect of the court’s ruling in Reynolds I. (Doc. Nos. 73, 74, 75.)
ARGUMENT Plaintiffs submit that this Court should first address Plaintiffs’ Motion for Summary Judgment and determine whether the Missouri state court has already ruled on the validity of the penalty provision that appears in Ordinance 1722. In the event the Court considers the City’s Motion, it should be denied because: (1) Ordinance 1722 is preempted under the Supremacy Clause; (2) there are genuine issues of material fact supporting an inference that the enactment of Ordinance 1722 was motivated by racial bias toward persons of Hispanic origin and will have a discriminatory effect, rendering it invalid under the Equal Protection Clause; (3) there are genuine issues of material fact supporting a finding that Ordinance 1722 violates the Due Process Clause; (4) the Missouri state court has already held that the penalty provision that appears in
4

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 11 of 47
Ordinance 1722 violates state law, and that ruling is preclusive in this Court; and (5), even if this Court were to revisit the state-law issue, the state court’s ruling is correct as a matter of law and should be followed. I. Ordinance 1722 Is Preempted Under The Supremacy Clause.
The City argues that Ordinance 1722 does not violate the Supremacy Clause of the United States Constitution, but rather constitutes permissible concurrent regulation of immigration. (Def.’s Mem. at 12-14.) The City’s position was recently rejected by the District Court of the Middle District of Pennsylvania. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 2007 WL 2163093 (M.D. Pa. July 26, 2007) (copy attached for the Court’s convenience as Exhibit 1). The Hazleton ordinance, like Ordinance 1722, sought to impose a sanction of business permit revocation for employment of unauthorized workers and to mandate participation by certain employers in the otherwise voluntary federal Basic Pilot Program. The Hazleton court correctly concluded that such an ordinance was preempted by federal law. See id. at 42-56. Plaintiffs respectfully submit that this Court should follow the sound reasoning of the Hazleton court.
As the City acknowledges, the Supreme Court has recognized three types of preemption in the immigration context: (1) constitutional preemption, under which the attempt to regulate immigration, which is “unquestionably exclusively a federal power,” is preempted by the Constitution even in the absence of federal legislation; (2) field preemption, under which state or local laws are preempted because they attempt to legislate in a field occupied by the federal government, either expressly or impliedly; and (3) conflict preemption, in which state or local laws are preempted because they “burden[] or conflict[] in any manner with any federal laws or treaties,” or “[stand] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” See De Canas v. Bica, 424 U.S. 351, 354, 362, 358 (1976) (describing
5

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 12 of 47
the three types of preemption).5 Although Ordinance 1722 is flawed in each of those respects, in this Memorandum Plaintiffs address only the second two forms of preemption identified in the De Canas case: express field preemption and conflict preemption.6
Plaintiffs note at the outset that the City’s assertion that a “presumption against preemption” applies in this case is incorrect because it fails to take account of the exceptionally strong federal interests in the area of immigration and the history of federal legislation directly addressing the same topic as Ordinance 1722. See United States v. Locke, 529 U.S. 89, 108 (2000) (“an ‘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 power over immigration matters is federal both as a matter of tradition and of constitutional mandate. The federal power over immigration is necessarily exclusive because of the special need for nationwide consistency in matters affecting foreign nationals, given the “explicit constitutional requirement of uniformity[,]” Graham v. Richardson, 403 U.S. 365, 382 (1971), in immigration matters and the myriad problems that would result for citizens and non-citizens alike if each of the 50 states -- or, as in this case, each of the thousands of localities like Valley Park across the 50 states -- adopted its own rules for the treatment of aliens. See Graham, 403 U.S. at 382; see also Zadvydas v. Davis, 533 U.S. 678, 700 (2001) (recognizing “the Nation’s need ‘to speak with one voice’ in immigration matters”).
5 The City chastises Plaintiffs for using the term “constitutional” preemption to refer to the first type of preemption set forth in De Canas because “all preemption claims are constitutional preemption claims.” (Def.’s Mem. at 3, emphasis in original.) Of course, all preemption claims are “constitutional” in the sense that they are rooted in the Constitution’s Supremacy Clause. But the term “constitutional preemption” is commonly used as short-hand because under that type of preemption the state or local law is directly preempted by the Constitution even in the absence of federal legislation in the field. The other types of preemption exist only where there is relevant federal legislation. 6 Plaintiffs nevertheless reserve the right to assert the other bases of preemption, including constitutional preemption, as set forth in their memoranda in support of their motion for a preliminary injunction. (Doc. Nos. 1-2 and 42.)
6

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 13 of 47
In any event, any such presumption would readily be overcome in this case, where
Ordinance 1722 is expressly preempted under federal law, and impliedly preempted for the
additional reason that it affirmatively conflicts with federal law.
A. The Ordinance is Expressly Preempted by Federal Law. Ordinance 1722 is expressly preempted by the Immigration Reform and Control Act
(“IRCA”):
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2). See Hazleton, 2007 WL 2163093, at 44-45.
Raising an argument that was wholly rejected in Hazleton, the City asserts that Ordinance
1722 falls within the parenthetical exception to IRCA’s express preemption provision. The City
argues that because the Ordinance penalizes businesses by denying, suspending, or revoking
their business licenses, it is a “licensing [or] similar law,” and therefore not preempted.
The City is wrong because: (1) Ordinance 1722 is not a “licensing or similar law”; and
(2) even if it were, the exception refers only to suspension of a license to a person who has been
found to violate IRCA.
As the Hazleton court properly recognized, the City’s reading does violence to the
language of the statute and effectively negates Congress’ intent in enacting IRCA:
Under [Defendant’s] interpretation of the provision, a state or local municipality properly can impose any rule they choose on employers with regard to hiring illegal aliens as long as the sanction imposed is to force the employer out of business by suspending its business permit-what we could call the “ultimate sanction.” This interpretation is at odds with the plain language of the express pre-emption provision, which is concerned with state and local municipalities creating civil and criminal sanctions against employers. It would not make sense for Congress in limiting the state’s authority to allow states and municipalities the opportunity to provide the ultimate sanction, but no lesser penalty. Such an interpretation renders the express preemption clause nearly meaningless.
Hazleton, 2007 WL 2163093, at 44.
7

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 14 of 47
In the City’s view, by means of a parenthetical clause Congress exempted schemes like Ordinance 1722 that impose the enormous penalty of entirely shuttering a business on the basis of a finding that the business has violated a state or local immigration statute, even though the thrust of Section 1324a(h)(2) is to preempt any civil or criminal employer sanctions scheme, no matter how slight the penalties. Thus, that cannot be the meaning of “licensing law.”
The City’s interpretation is also contrary to the legislative history. The statute’s reference to “licensing and similar laws” encompasses “lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation[,]” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis added) -- a finding that can only be made after extensive federal proceedings. See 8 U.S.C. § 1324a(e). Thus, “[t]he ‘licensing’ that the statute discusses refers to revoking a local license for a violation of the federal IRCA sanction provisions, as opposed to . . . for a violation of local laws.” Hazleton, 2007 WL 2163093, at 44. Ordinance 1722 imposes the sanction of suspending a license for violations of the Ordinance, not for violations of federal law. Moreover, a violation under the Ordinance does not involve a finding of a violation of IRCA, because such a finding can only be made in federal proceedings.
The legislative history further indicates that “licensing laws” refers to “licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.” H.R. Rep. 99-682 (I), 1986 U.S.C.C.A.N. 5649, 5662. Fitness to do business laws deal with a person’s character as it relates to the business to be engaged in. Hazleton, 2007 WL 2163093, at 45. Neither IRCA nor Ordinance 1722 are concerned with an employee’s fitness to do business, and thus Ordinance 1722 is not a “licensing law” within the meaning of the statute.
8

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 15 of 47
Defendant incorrectly contends that Plaintiffs present a theory that would render Section 1324a(h)(2) surplusage. Section 1324a(h)(2) establishes a sweeping preemption provision with a very narrow exception. The fact that Section 1324a(h)(2)’s parenthetical clause does not control this case does not make it meaningless.
B. The Ordinance is Preempted Because It Conflicts with Federal Law. Even if Ordinance 1722 somehow came within the exception to the express preemption provision in 8 U.S.C. 1324(a)(h)(2), it would nevertheless be preempted because it conflicts with federal law. See Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002) (“Congress’ inclusion of an express pre-emption clause does not bar the ordinary working of conflict pre-emption principles” (punctuation and citation omitted)); see also Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000) (finding conflict preemption even where state action fell outside express preemption clause). Ordinance 1722 is invalid because it affirmatively conflicts with multiple provisions of federal law and because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363 (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)).7 In addressing the issue of conflict-preemption, Plaintiffs need not demonstrate, as the City contends, “[i]mpossibility of [s]imultaneous [c]ompliance” to show that a local law is conflict preempted. Rather, as the very case relied upon by Defendant expressly indicates, “Conflict preemption occurs when . . . [local] law ‘stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Incalza v. Fendi North America, Inc., 479 F.3d 1005, 1009-10 (9th Cir. 2007) (emphasis added) (relying on
7 Notably, the De Canas case never decided whether the statute in that case was conflict preempted, 424 U.S. at 363-64, but instead expressly reserved that question and remanded the case for a determination of that issue. Id. On remand, the plaintiffs, who were seeking enforcement of the statute, “dropped” the case, so the validity of the statute was never finally resolved and the statute was not enforced. Bevles Co., Inc. v. Teamsters Local 986, 791 F.2d 1391, 1394 (9th Cir. 1986).
9

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 16 of 47
the Hines standard); see also Def.’s Mem. at 20 (quoting same). Applying the proper standard, the Ordinance cannot stand.
1. The Ordinance Conflicts With Individual Provisions Of Federal Law. The City is unable to explain away the numerous conflicts between Ordinance 1722 and federal law. As an initial matter, the City has entirely ignored several very significant conflicts. Indeed, the Ordinance’s requirement that certain individuals who are exempt from verification under federal law, such as independent contractors and casual domestic workers, be subject to verification of work authorization presents a direct conflict with IRCA. (See Pl. Mot. for PI (Doc. No. 1-2) at 14; Pl. Reply Mem. In Support of PI (Doc. No. 42) at 8; see also 8 U.S.C. § 1242a; 8 C.F.R. § 274a.1(c)-(f); H.R. Rep. 99-682(I), at 57 (stating that “[i]t is not the intent of this Committee that sanctions would apply in the case of casual hires” and noting an exception for unions and similar entities); Hazleton, 2007 WL 2163093, at 50 (concluding that the Hazleton ordinance “conflicts with federal law in that under federal law, employers need not verify the immigrant status of certain categories of workers. For example, casual domestic workers and independent contractors are not covered by the federal requirements”). Another conflict the City has failed to address involves the Ordinance’s failure to prohibit, as Congress chose to do in IRCA, discrimination by employers based on national origin or alienage. (Pl. Mot. for PI at 15; Pl. Reply Mem. In Support of PI at 8); Hazleton, 2007 WL 2163093, at 52 (“IRCA . . . seeks to prevent discrimination against legally admitted immigrants. . . . [Hazleton’s ordinance] has no anti-discriminatory provisions, and this omission represents another conflict.”). The City likewise fails to address the obvious conflict between the process laid out in Ordinance 1722 and the process required by the federal government under IRCA. Under the federal system, an employee who receives an initial adverse finding under Basic Pilot is given eight days during which to contest that finding, and the federal government is then given ten
10

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 17 of 47
business days to respond. See 62 C.F.R. 48309(IV)(B)(2)(a). During this period, the employer may not terminate the employee or take other adverse action relating to his work authorization status. Id. In direct contrast, under Ordinance 1722, the employer faces suspension of a business license if it “fails to correct a violation . . . within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.” (Ex. H § 4.B.(4).) While the Ordinance authorizes termination of the worker in question within three days as one method of “correction,” id. § 5.B.(1), the federal government would prohibit such termination. Faced with an identical incompatibility, the Hazleton court concluded that such a local law was conflict preempted. See 2007 WL 2163093, at 52.
The Ordinance further conflicts with federal law in that it requires certain employers to enroll in the Basic Pilot Program, while the Program is voluntary under federal law. The City attempts to reconcile that conflict by arguing, incorrectly, that under federal law, it is only the federal government who is prohibited from mandating participation in Basic Pilot, and that “state and local authorities were left free to do so.” (Def.’s Mem. at 23.) Yet Congress made a considered decision not to require all employers to participate in Basic Pilot, and specified a limited list of employers required to participate in the Basic Pilot or a related program—a list completely different from Valley Park’s. See Illegal Immigrant Reform and Immigrant Responsibility Act (“IIRIRA”), § 402(e), Pub. L. No. 104-28, Div. C (Sept. 30, 1996), codified as amended at 8 U.S.C. § 1324a note.8 If every locality across the country could mandate participation in Basic Pilot, then Congress’ choice would be completely undone. Moreover, Congress has created Basic Pilot as a temporary program that is currently scheduled to expire in November 2008. Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. No. 108-
8IIRIRA § 402(e) requires certain Federal entities to participate in a pilot verification program and provides that a federal administrative law judge may require an employer to participate in a pilot program as part of a cease and desist order issued under 8 U.S.C. § 1324a.
11

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 18 of 47
156 (Dec. 3, 2003). Ordinance 1722 undermines the voluntary and temporary character of the Basic Pilot program as established by Congress, and therefore is incompatible with congressional objectives. Accordingly, the Hazleton court concluded that a requirement identical to Valley Park’s (that all public employers and businesses contracting with the city enroll in Basic Pilot) was conflict preempted. See Hazleton, 2007 WL 2163093, at 56.
The City also argues that Ordinance 1722 does not require all businesses to participate in Basic Pilot, but merely “encourages” businesses to enroll in the program by offering them a “safe harbor.” (Def.’s Mem. at 23.) However, federal courts have construed government pronouncements as “binding as a practical matter” “if the language of the document is such that private parties can rely on it as a norm or safe harbor by which to shape their actions.” Gen’l Electric Co. v. EPA, 290 F.3d 377, 383 (D.C. Cir. 2002) (internal punctuation and citation omitted).
The City’s arguments that Ordinance 1722’s reverification requirements do not conflict with federal law are likewise unavailing. The City contends that the Ordinance does not require employers to request any additional documents and therefore does not contravene IRCA’s prohibition on document abuse at 8 U.S.C. § 1324b(a)(6). (Def.’s Mem. at 21-22.) But the Ordinance expressly requires employers to “acquir[e] additional information from the worker.” That requirement is incompatible with Congress’s intent that employers not seek to reverify workers once they have satisfied the initial verification requirements set forth in IRCA. See, e.g., H. Rep. 99-682(I) at 57, 1986 USCCAN at 5661 (indicating that Congress does “not intend to impose a continuing verification obligation on employers”). Moreover, and fully consistent with this intent of Congress, the Memorandum of Understanding that all Basic Pilot participants must sign expressly provides that “[t]he Employer agrees not to use Basic Pilot procedures for
12

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 19 of 47
reverification.” (See Exhibit I, at 4.)9 Thus, the federal government affirmatively prohibits what
the Ordinance requires.
The City’s argument that the Ordinance does not violate IRCA’s confidentiality provision
also misses the mark. The confidentiality provision, 8 U.S.C. § 1324a(b)(5), specifically
prohibits using the federal I-9 form “and any information contained in or appended to such form”
for purposes other than enforcing the federal employer-sanctions provisions and certain federal
criminal laws. The Ordinance conflicts with this provision by requiring employers to turn over
identity information relating to employee work authorization status -- identity information
reported to the employer on an I-9 form and in “appended” documents -- to the City of Valley
Park. (See Ex. H § 4 B.(3).)
2. The Ordinance Interferes With The Federal Government’s Regulatory Scheme.
Even if the Ordinance did not explicitly conflict with specific provisions of federal law,
the Ordinance’s attempt to supplement federal immigration law nonetheless undermines the
legislative scheme enacted by Congress, and therefore violates the Supremacy Clause.
The City avoids discussion of the controlling precedent of Hines v. Davidowitz, 312 U.S.
52 (1941) , in which the Supreme Court ruled that where the federal government had passed an alien registration scheme, Pennsylvania could not enforce its own state alien-registration law.10
The Court explained that:
9 Indeed, a further conflict exists because, while employers enrolled in Basic Pilot are prohibited from using Basic Pilot to verify employees hired before the date of enrollment in Basic Pilot (see Exhibit I at 4), Ordinance 1722 applies to all employment relationships entered into after the date of enactment. (See Ex. H § 5.A.) 10 Plaintiffs note that the Supreme Court has cited Hines far more frequently than De Canas in the decades since De Canas was decided. De Canas itself reinforces the importance of Hines. De Canas specifically cited Hines in remanding the conflict-preemption issue to the California Supreme Court. 424 U.S. at 363-64. Moreover, De Canas emphasized that both Hines and Pennsylvania v. Nelson, 350 U.S. 497 (1956) (addressing the same statute as Hines) turned on the fact that “the federal statutes [at issue in those cases] were in the specific field which the States were attempting to regulate.” See 424 U.S. at 362. Here, IRCA is precisely “in the specific field” which Defendant is attempting to regulate.
13

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 20 of 47
where the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation and has therein provided a standard for the registration of aliens, states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. Hines, 312 U.S. at 66-67. The Court further noted that the federal system attempted “to steer a middle path,” creating a “single integrated and all-embracing system … in such a way as to protect the personal liberties of law-abiding aliens through one uniform national registration system, and to leave them free from the possibility of inquisitorial practices and police surveillance” while also obtaining the information sought under the statute. Id. at 73-74. Accord Rogers v. Larson, 563 F.2d 617, 626 (V.I. 1977) (invalidating Virgin Islands employer sanctions scheme and stating that “[b]ecause of the different emphasis the [Virgin Islands and federal employment] schemes place on the purposes of job protection and an adequate labor force, we conclude that [the Virgin Islands statute] stands as an obstacle to the accomplishment and execution of the full purposes and objectives of the INA”). Similarly here, Congress has created an integrated scheme of regulation that includes provisions specifically directed at employer sanctions and represents a careful balance of policy choices. See Hazleton, 2007 WL 2163093, at 52. (“[As] [i]n Hines[,]. . . Congress passed legislation aimed at the very issue addressed by the State or local law. Specifically, in this case, the federal government . . . has enacted a complete scheme of regulation on the subject o[f] the employment of unauthorized aliens.”). In IRCA, Congress carefully balanced the important goals of reducing employment of individuals who lack work authorization; creating a workable system for employers and employees; and avoiding harassment of or discrimination against employees. See H.R. Rep. 99-682(I),at 56-62.11
11 Congress has repeatedly refused to give states and local governments any role in this system, for example, by deciding not to include a provision that would have given state and local governments access to the Basic Pilot program. See 149 Cong. Rec. H 11582-01 (Nov. 19, 2003) (statement of Rep. JacksonLee) (“I am pleased to note that the Senate removed a provision that would give State and local
14

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 21 of 47
The effect of Ordinance 1722 is clearly to upset the balance struck by Congress in the
employment verification law and in immigration law generally by implementing Valley Park’s
own enforcement mechanism, penalties, and interpretations in place of the federal system. For
example, Congress viewed IRCA’s provisions prohibiting discrimination by employers as a
critical complement to the Act’s enforcement provisions. See H.R. Conf. Rep. No. 99-1000
(1986), reprinted in U.S.C.C.A.N. 5840, 5842 (“[t]he antidiscrimination provisions of this bill
are a complement to the sanctions provisions, and must be considered in this context”); H.R.
Rep. No. 99-682(II) (1986), pt. 2, at 12, reprinted in 1986 U.S.C.C.A.N. 5757, 5761 (expressing
view of the House Committee on Education and Labor that “if there is to be sanctions
enforcement and liability, there must be an equally strong and readily available remedy if resulting employment discrimination occurs”).12 Yet by enacting an enforcement-only scheme
that contains no countervailing prohibition on discrimination by employers, Valley Park has
undermined the balance Congress sought to achieve.
The teaching of Hines is clear: local ordinances that address the same subject area as
federal statutes and “conflict or interfere with, curtail or complement, the federal law, or enforce
additional or auxiliary regulations” cannot stand. Hines, 312 U.S. at 66-67. See also Hazleton, 2007 WL 2163093, at 52 (same).13
governments access to the information collected with this program …. [I]n fact, we have provided safeguard provisions to make this legislation work, to provide the information that is necessary to ensure the protection of the workplace, and also to provide due process rights for all who are involved”); id. (Statement of Rep. Berman) (noting support of proposal and that he had opposed previous version “in part because I had concerns about what was in section 3 of the bill allowing data to be shared with State and local governments”). 12 Indeed, Congress explicitly linked the employer verification provisions to the antidiscrimination provisions by forcing the latter to expire if the employer sanction provisions were repealed pursuant to 8 U.S.C. § 1324b(k). 13 Accord Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379-380 (2000) (state statute touching on foreign relations not saved by the fact that state and federal statute “share the same goals and … some companies may comply with both sets of restrictions,” because “the inconsistency of sanctions … undermines the congressional calibration of force”); Wis. Dep’t of Indus. v. Gould, 475 U.S. 282, 286, 288-89 (1986) (state statute touching on area governed by a “complex and interrelated federal scheme of law, remedy and administration” preempted because “conflict is imminent whenever two separate
15

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 22 of 47
3. Defendant’s Citation to Unrelated Statutory Provisions Fails to Ameliorate the Conflicts Posed by Ordinance 1722.
The City attempts to downplay the significance of some of the foregoing conflicts by invoking a number of unrelated statutory provisions as supposed evidence of congressional intent to facilitate local action to address illegal immigration. (Def.’s Mem. at 14, 15-16, 17-19.) The City misconstrues the import of the various initiatives and programs it references. Rather than encouraging unbounded participation in immigration matters by state and local authorities, Congress has carefully authorized certain specific initiatives and programs and defined the limitations of those programs where it has determined that the state or local authorities may play a complimentary role. For example, Congress’s enactment of a provision relating to communications between government entities and the Immigration and Naturalization Service regarding “citizenship or immigration status,” 8 U.S.C. § 1373(a) (cited in Def.’s Mem. at 16), says nothing about the propriety of a local government creating from whole cloth an entire scheme for verifying work authorization status. Likewise, Congress’s determination in the Personal Responsibility and Work Opportunity Reconciliation Act (cited at Def.’s Mem. at 1718) that states and localities should verify immigration status to determine eligibility for public benefits, says nothing about the independent creation of a system of verification of work authorization status.
Significantly, and as the City acknowledges (Def.’s Mem. at 19), Congress has created a program to allow states and localities to enter into agreements with the federal government to engage in certain immigration-enforcement functions, pursuant to training and other requirements. See 8 U.S.C. § 1357(g). The City has provided no evidence that it has entered into such an agreement or that it intends to enter into such an agreement. Instead, Valley Park
remedies are brought to bear on the same activity” and “[e]ach additional [state] statute incrementally diminishes the [agency’s] control over enforcement of the [federal law] and thus further detracts from the integrated scheme of regulation created by Congress”) (citations omitted).
16

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 23 of 47
has chosen to invent a wholly different, unauthorized, and conflicting system of local immigration regulation. II. Plaintiffs’ Equal Protection Claim Is Legally Sound And There Are Material Fact
Issues Regarding Whether Ordinance 1722 Has A Discriminatory Purpose and Discriminatory Effect. The City contends that Plaintiffs’ Equal Protection claim is “fatally flawed” because Plaintiffs lack standing to bring a claim under the Equal Protection Clause and because Plaintiffs’ “theory lacks state action.” (Def.’s Mem. at 24-25, 31-33.) The City further contends that, even if Plaintiffs’ Equal Protection claim is legally sound, Plaintiffs cannot show as a factual matter that Ordinance 1722 is motivated by a discriminatory purpose or will have a discriminatory effect. (Id. at 26-31.) As explained below, the City’s legal challenge to Plaintiffs’ Equal Protection claim is based on a misunderstanding of Plaintiffs’ equal protection theories. As to Plaintiffs’ factual allegations of discriminatory purpose and discriminatory effect, even without formal discovery in this matter, there is sufficient evidence to raise genuine issues of material fact. A. Plaintiffs Have Standing to Sue On Behalf of Third Parties or On Behalf of
Themselves for Injury Suffered on Account of Their Association With Persons of Hispanic Origin. There are at least two ways in which Plaintiffs allege Ordinance 1722 will have a discriminatory effect: (1) by inducing employers to refrain from employing Hispanics; and (2) by inducing City officials or Valley Park residents to file complaints under the Ordinance against business entities based on their employment of Hispanics. (Sec. Amend. Compl., Doc. No. 78, ¶ 2.) The City focuses on only the first form of discriminatory effect and argues that Plaintiffs do not have standing to assert an Equal Protection claim on behalf of Hispanic employees or prospective employees. However, Plaintiffs can demonstrate standing under either theory of discriminatory impact.
17

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 24 of 47
First, it is well-settled that a party may rely upon the unequal treatment of third parties as a premise for an equal protection challenge where the party alleges “injury in fact” sufficient to establish Article III standing, and prudential considerations favor the party representing the interests of third parties who are direct victims of the discrimination. For example, in Craig v. Boren, 429 U.S. 190, 192-197 (1976), the Supreme Court held that a party may have jus tertii standing (standing to represent the interests of third parties) where the party has Article III standing in his or her own right, and the interests of third parties who cannot adequately represent themselves will be affected by the litigation. In Craig, a beer vendor challenged a gender-based law that set the minimum drinking age for males at 21 years and for females at 18 years. The Court concluded that the vendor had Article III standing because she was subject to sanctions for violating the gender-based law, and was entitled to assert the concomitant equal protection rights of males 18-20 years old, stating that “[a]s a vendor with [Article III] standing to challenge the lawfulness of [the statute], appellant [] is entitled to assert those concomitant rights of third parties that would be ‘diluted or adversely affected’ should her constitutional challenge fail and the statutes remain in force.” Id. at 195 (citing Griswold v. Connecticut, 381 U.S. 479, 481 (1965)). See also Wilson v. Little Rock, 801 F.2d 316, 322 n.2 (8th Cir. 1986) (finding error in the trial court’s dismissal of § 1983 action against police officers whose conduct dissuaded minority clientele from frequenting white person’s roller rink, and stating “[t]here is no question that [the plaintiff] has standing to assert a claim bottomed on alleged racial discrimination suffered by his black clientele”) (citing Craig, 429 U.S. at 195).
Here, Plaintiffs have Article III standing to challenge Ordinance 1722 because they are subject to sanctions for violations of the Ordinance. Plaintiffs are thus entitled to assert the equal protection rights of third party employees or prospective employees, particularly where the Plaintiffs are in a better position than the employees or prospective employees to assert those rights.
18

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 25 of 47
Second, Federal courts have universally held that the Equal Protection Clause and civil rights statutes do not require that a claimant be a member of the group disfavored by the discriminator where the claimant is being targeted because of his or her association with the disfavored group. In Adickes v. S.H. Kress and Co., 398 U.S. 144 (1970), the Supreme Court held that the petitioner, who was a white woman, could make out a claim under 42 U.S.C. § 1983 and the Equal Protection Clause where she was refused service in a restaurant because she was in the company of black persons. The Court remarked, “[f]ew principles of law are more firmly stitched into our constitutional fabric than the proposition that a State must not discriminate against a person because of his race or the race of his companions . . . .” Id. at 150-52 (emphasis added). The Court held that the petitioner could make out a claim under the Fourteenth Amendment and Section 1983 if she could show that the defendant restaurant and a city policeman had reached an understanding to deny her service “because she was a white person in the company of Negroes.” Id. at 152.
Other federal courts have followed that principle, holding that both the Equal Protection Clause and civil rights statutes apply where “non-minority” plaintiffs are injured because of their relationship with “minority” persons. In RK Ventures v. City of Seattle, 307 F.3d 1045 (9th Cir. 2002), for example, the City of Seattle had enacted a public nuisance ordinance that the plaintiff nightclub owners, who were white, alleged was being selectively enforced upon them because their nightclub attracted a predominantly African-American clientele. The court held that the nightclub owners could assert an Equal Protection claim based on the allegation that the city discriminated against them based on the race of their clientele. Id. at 1056. The court stated that there was “no bar to standing under the Equal Protection Clause where an individual alleges a personal injury stemming from his or her association with members of a protected class.” Id. at 1055.
19

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 26 of 47
The protected relationship may be social, as where the victim is interracially married or socializes with members of another race,14 ideological, as where a member of one group is victimized for defending or advocating the rights another group,15 or commercial, as where a person is victimized for doing business with members of another group.16
Here, Plaintiffs allege that they will be subject to complaints by residents and resulting enforcement action by the City based on their commercial relationship with Hispanics, that is, their hiring or contracting of Hispanics to work or perform services. Plaintiffs clearly have standing to assert an Equal Protection claim in their own right on that basis.
B. The Plaintiffs’ Equal Protection Claim Is Based On State Action. The City further argues that Plaintiffs’ Equal Protection claim is not legally sustainable because it is not based on state action. That is simply incorrect. Plaintiffs are suing the City of Valley Park for the enactment and enforcement of an Ordinance that was motivated by a discriminatory purpose and will have a discriminatory effect. Plaintiffs are not suing any private businesses or private persons. Therefore, Plaintiffs’ claim is squarely based on state action. The City has mistakenly relied on cases in which the defendant is a private party and the question is whether there is a sufficient nexus between the private party and a government actor so that the private party nevertheless may be sued under the Constitution and/or 42 U.S.C. § 1983. The Supreme Court has recognized that theory of state action. See, e.g., Adickes, 398 U.S. at 173-74 (holding that plaintiff could sue restaurant under the Fourteenth Amendment and Section 1983 based on an allegation that the restaurant acted in concert with a city police officer
14 See, e.g., United States v. Hayward, 6 F.3d 1241 (7th Cir. 1993), overruled on other grounds by U.S. v. Colvin, 353 F.3d 569 (7th Cir. 2003); Parr v. Woodmen of the World Life Ins. Co., 791 F.2d 888 (11th Cir. 1986); Bills v. Hodges, 628 F.2d 844 (4th Cir. 1980); Faraca v. Clements, 506 F.2d 956 (5th Cir.), cert. denied, Clements v. Faraca, 422 U.S. 1006 (1975). 15 See, e.g., Maynard v. City of San Jose, 37 F.3d 1396 (9th Cir. 1994); Patrick v. Miller, 953 F.2d 1240 (10th Cir. 1992). 16 See, e.g., Sullivan v. Little Hunting Park, Inc., 396 U.S. 229 (1969); Cutting v. Muzzey, 724 F.2d 259 (1st Cir. 1984); Scott v. Greenville County, 716 F.2d 1409 (4th Cir. 1983).
20

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 27 of 47
to deny service based on racial bias). But that is not the basis for alleging state action here. Rather, it is Plaintiffs’ theory that the intended and inevitable result of the enactment and enforcement of Ordinance 1722 -- clearly state action -- is that it will induce businesses to discriminate against employees and contractors, and will induce businesses and city residents to file complaints based on race or national origin. There is ample authority that there is state action where a state or local law induces private actors to deprive persons of their constitutional rights, notwithstanding that the actual deprivation may have been perpetrated by the private actors.
For example, in Peterson v. City of Greenville, S.C., 373 U.S. 245 (1963), the Court found a violation of the Equal Protection Clause where a city ordinance requiring segregated restaurants caused a restaurant manager to remove a group of young black persons from his restaurant. The Court acknowledged that purely private conduct abridging individual rights “does no violence to the Equal Protection Clause[,]” id. at 247, but held that “[w]hen a state agency passes a law compelling persons to discriminate against other persons because of race, . . . such a palpable violation of the Fourteenth Amendment cannot be saved by attempting to separate the mental urges of the discriminators.” Id. at 248. The Court found a violation “even assuming, . . . that the manager would have acted as he did independently of the existence of the ordinance.” Id.
While Ordinance 1722 does not expressly compel private actors to discriminate, the principle of the Greenville case has been extended to circumstances where state or local law encourages constitutional deprivations by private actors. In Robinson v. State of Florida, 378 U.S. 153 (1964), for example, the Court held that a state regulation requiring separate bathroom facilities for each race, while not expressly forbidding restaurants from serving black and white people together, “certainly embod[ied] a state policy putting burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together.” Id. at 156.
21

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 28 of 47
The Court held, therefore, that the restaurant’s action in having black patrons arrested for trespass was attributable to state policy and therefore violated the Fourteenth Amendment. Id. at 156-57.
In Reitman v. Mulkey, 387 U.S. 369 (1967), the Court considered whether an article of the California Constitution violated the Fourteenth Amendment. The article in question provided that no state or local governmental body could deny the right of any person “to decline to sell, lease or rent [real property] to such person or persons as he, in his absolute discretion, chooses.” Id. at 371 and n.2. The article clearly was not discriminatory on its face, nor could it remotely be construed as compelling owners of real property to discriminate in the sale of their property. Yet the Court affirmed the California Supreme Court’s holding that the article violated the Fourteenth Amendment because it “unconstitutionally involves the State in racial discriminations[.]” Id. at 375-76. The article “announced the constitutional right of any person to decline to sell or lease his real property to anyone[,]” including persons of another race, and thus, in context, encouraged private discrimination. Id. at 377. The Court cited with approval the California Supreme Court’s conclusion based on U.S. Supreme Court precedent that “a prohibited state involvement could be found ‘even where the state can be charged with only encouraging, rather than commanding discrimination.’” Id. at 375.
Here, Plaintiffs allege that Ordinance 1722 is intended and likely to have the impact of encouraging employers, City officials and Valley Park residents to discriminate against persons of Hispanic heritage. Significantly, the Reitman Court observed that the Court had not developed an “infallible test for determining whether the State . . . has become significantly involved in private discriminations. Only by sifting facts and weighing circumstances on a caseby-case basis can a nonobvious involvement of the State in private conduct be attributed its true significance.” Id. at 378 (internal citation omitted). At minimum, Plaintiffs are entitled to discovery on this issue and to present the issue to a trier of fact.
22

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 29 of 47
The City’s reliance on Wickersham v. City of Columbia, 481 F.3d 591 (8th Cir. 2007), (Def.’s Mem. at 32-33), is misplaced because the issue in Wickersham was whether a private nonprofit corporation could be deemed a “state actor” and thus be sued under Section 1983 for a violation of the First Amendment. Even if Wickersham were applicable,17 it would not advance the City’s position because the Wickersham court in fact found that there was a sufficient nexus between the challenged conduct by the private corporation and the exercise of state authority. Wickersham, 481 F.3d at 598. The City labors to distinguish Wickersham from this case by pointing out that in Wickersham the city officials knew of the restriction on speech, had an ongoing arrangement with the private corporation, and used city police officers to enforce the restrictions. (Def.’s Mem. at 32.) But that does not meaningfully distinguish Wickersham from this case. Plaintiffs here similarly allege that the City not only knows of, but intends that Ordinance 1722 will have the result of causing persons of Hispanic heritage to be deterred from working in Valley Park, that employers and residents who discriminate will be acting in conjunction with and because of Ordinance 1722, and that City officials will enforce the discrimination by acting on complaints filed by the discriminators.
The City’s reliance on City of Cuyahoga Falls v. Buckley Community Hope Found., 538 U.S. 188 (2003) (Def.’s Mem. at 31), is also misplaced. That case involved a “citizen-driven petition drive” that resulted in a referendum to repeal a housing ordinance authorizing construction of a low-income housing project. Id. at 191-196. The plaintiffs alleged that the referendum was motivated by racial bias and violated the Equal Protection Clause. The issue before the Court was whether there was sufficient evidence of discriminatory intent on the part
17 Plaintiffs cited Wickersham in their Reply Memorandum in Support of Motion for Preliminary Injunction because it shows that there can be state action even where the constitutional deprivation is carried out by a private actor. However, Wickersham’s analysis of the “circumstances in which a private party may be characterized as a state actor,” Wickersham, 481 F.3d at 597, is not squarely applicable here because there is no question that the sued party here is a state actor, and that the challenged action, the enactment and enforcement of a City Ordinance, is state action.
23

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 30 of 47
of the city and its officials to survive summary judgment. Id. at 194. The Court held that there was not evidence of discriminatory intent because the referendum was instigated by a “citizendriven” petition, not the City, which was required by its charter to place the referendum on the ballot, and because any statements by private individuals evidencing “discriminatory voter sentiment” could not fairly be attributed to the city or its officials. Id. at 195-96.
Here, in contrast, Ordinance 1722 was enacted by the City’s Board of Aldermen at the instance of the Mayor. The City was not merely reacting to some citizen-initiative that it was bound by a City charter to follow. As shown below, even in advance of discovery, there is evidence of discriminatory intent on the part of the Mayor himself. There is nothing in the Cuyahoga decision that would preclude a finding here that there was discriminatory intent on the part of City or that the enactment of Ordinance 1722 constituted state action.
C. Ordinance 1722 Was Motivated by the Purpose, and Will Have the Effect of, Discriminating Against Hispanics And Those Who Hire Them.
The City acknowledges that an ordinance violates the Equal Protection Clause where it has a discriminatory purpose and discriminatory effect. (Def.’s Mem. at 26, citing Rogers v. Lodge, 458 U.S. 613, 617 (1982).) Plaintiffs are entitled to discovery regarding whether Ordinance 1722 suffers those infirmities.
1. There is a genuine issue of material fact as to whether Ordinance 1722 is motivated by a discriminatory purpose.
Even prior to discovery in this matter, there is evidence that the enactment of Ordinance 1722 had a discriminatory purpose: The City’s Mayor first formed the idea of enlisting the City’s residents to enforce federal immigration laws when a Mexican family (legal residents) moved into his neighborhood. (Ex. J, at 9.) The mayor is reported to have later said, “You got one guy and his wife that settle down here, have a couple kids, and before long you have Cousin Puerto Rico and Taco Whoever moving in.” (Id. at 1.) He acknowledged that his lawyers did not want him to talk to the media because they were concerned that he would use words like
24

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 31 of 47
“wetbacks” and “beaners” to refer to persons of Mexican descent. (Id. at 4-5.) The Mayor did not like the idea of Hispanic families and workers moving into Valley Park, and, after learning of the anti-immigrant ordinances in Hazleton, Pennsylvania, saw the enactment of a similar ordinance in Valley Park as a means of weeding them out. (Id. at 9.) The Mayor did not have the slightest idea whether the Mexican family that moved into his neighborhood were lawful residents. (Id.) He simply saw an anti-“illegal alien” ordinance as a means of purging persons of Mexican heritage from Valley Park. (Id.) That is invidious discrimination.
The City tries to explain away the racial epithets used by the Mayor by asserting that he was merely explaining that he would not use words such as “wetback” and “beaner.” (Def.’s Mem. at 27.) Space does not permit lengthy quotations here, but the news article speaks for itself. The Mayor clearly was not explaining what he would not say when he referred to Hispanics moving into the neighborhood as “Cousin Puerto Rico” and “Taco Whoever.” (Ex. J at 1.) Nor was he explaining what he would not say when he said his lawyers were afraid he would say words like “wetback” and “beaner” in an interview. (Id. at 4-5.) But more important than the epithets themselves is the overall picture the Mayor painted of himself as a person who objected to people of Mexican origin moving into Valley Park and who saw an illegalimmigration ordinance as a way of weeding them out. (Id. at 1, 3-5, 9.) Indeed, the Mayor confirmed in an April 26, 2007 deposition in the Reynolds I case that there was nothing in the Riverfront Times article that he believed was falsely attributed to him. (Ex. K at 97.)
The City counters that it is the Board of Aldermen that enacted Ordinance 1722, and that Plaintiffs have not alleged that the Board of Aldermen acted with discriminatory purpose. (Def.’s Mem. at 27.) But Plaintiffs allege that the City acted with discriminatory purpose. That allegation is based, in part, on public statements by the Mayor. Plaintiffs are entitled to discovery as to both the Mayor’s motivations and the motivations of the Board of Aldermen. That said, the City cites no authority for the proposition that discriminatory purpose on the part
25

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 32 of 47
of the Mayor would not be enough. There is no question that Ordinance 1722 was the Mayor’s brainchild, that he is the one who pushed it through the Board of Aldermen, and that he is the one who appeared in the national media to take credit for Valley Park’s anti-immigrant ordinances. (See Group Ex. L at 6.)
The City next argues that bias against Hispanics could not have been a motive because Ordinance 1722 contains an “anti-discrimination clause” providing that a complaint will not be enforced if it is based on “national origin, ethnicity or race[.]” (Def.’s Mem. at 27-28.) First, that language was inserted into the Ordinance after it was first enacted and in response to litigation both here and in the Hazleton matter. It says nothing about the Mayor’s or the Board of Aldermen’s initial motivations.
Second, that language can do nothing to change the inevitability that complaints under the Ordinance will be based on perceived national origin, ethnicity or race. As the state court judge in Reynolds I is reported to have asked the City counsel, “What would have to be alleged in a complaint that would not be related to national origin or race?” (Group. Ex. L at 41.) The City counsel could not answer. (Id.)18
Third, the City is simply incorrect in asserting that the modified language in Ordinance 1722 affords more protection against discrimination than federal law. There is no Valley Park ordinance comparable to 8 U.S.C. § 1324b, which affirmatively prohibits discrimination by employers. Without a provision that actually imposes sanctions for discrimination, the “antidiscrimination clause” will be toothless. There will be no way of actually identifying complaints
18 The City’s belated response to that query simply proves the point. The City now posits that a complaint might be based on a customer having overheard a conversation between an employer and a job applicant in which the applicant tells the employer that he does have the appropriate papers and the employer tells the applicant where to go to get a fraudulent “green card.” (Def.’s Mem at 30 n.2.) Or, posits the City, “a complaint might come from a discharged employee who learns from a former co-worker that the employer knowingly replaced him with an unauthorized alien, based on the co-worker’s discussion with the alien.” (Id.) Those scenarios are so highly improbable, particularly in a smaller community like Valley Park, that they simply underscore the improbability of a complaint that is not precipitated by the race or national origin of an employer’s workers.
26

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 33 of 47
that are precipitated by racial bias, except in the rare instance in which a complainant is sufficiently unwitting to actually say so on the face of the complaint.
2. There is a genuine issue of material fact as to whether Ordinance 1722 will have a discriminatory effect.
The City argues that because Ordinance 1722 has not been enforced and will not be enforceable until December 1, 2007, Plaintiffs’ claim that the Ordinance will have a discriminatory effect is “based entirely on conjecture.” (Def.’s Mem. at 28.) But clearly courts are not required to wait until an unconstitutional law actually causes injury to enjoin its enforcement. See Reitman, 387 U.S. at 380 (stating that prior cases “do exemplify the necessity for a court to assess the potential impact of official action in determining whether the State has significantly involved itself with invidious discriminations”) (emphasis added). Indeed, the City acknowledges that the very existence of the Ordinance might cause employers and residents to discriminate. (Def.’s Mem. at 28.)
Even prior to discovery in this matter, there is ample basis from which to infer that the Ordinance would have a discriminatory effect: (1) reaction to the original Valley Park antiimmigrant ordinances, including by residents, landlords and the police (Group Ex. L at 6, 9, 19, 28, 52, 55-56; Ex. J at 3); and (2) trial testimony by Prof. Marc Rosenblum (Ex. C at 21-3, 40-42, 44-52, 54-58, 61-62, 102-104), an expert witness in Hazleton. Those sources demonstrate a high probability that, as a result of the existence of the anti-immigrant Ordinances, persons of Hispanic heritage will be deterred from living or working in Valley Park, that employers will be incentivized to avoid hiring persons of Hispanic heritage, and that City officials and residents of Valley Park will be incentivized to file complaints against businesses or employers based on the apparent Hispanic heritage of their workers.
The City argues nevertheless that no such discrimination can be expected because: (1) federal law already sanctions employers for hiring unauthorized workers and permits private
27

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 34 of 47
persons to file charges (Def.’s Mem. at 28-29, 30); (2) the availability of the Basic Pilot Program diminishes the incentive to discriminate (id. at 29); (3) the Ordinance’s requirement that any complaint by a resident be “valid” mitigates any incentive to discriminate (id. at 29-30); and (4) there are already provisions in federal immigration law that penalize discriminatory hiring. (Id. at 30-31.) None of those arguments has merit.
First, the City argues that if the legal obligation not to hire unauthorized workers and a system of private complaints are “catalysts” for discrimination, then the catalysts already exist under federal law. It may in fact be the case that there are incentives to discriminate under federal law. But local ordinances like Ordinance 1722 compound and amplify the incentive to discriminate for a number of reasons: (a) unlike federal law, Ordinance 1722 does not contain a countervailing provision that penalizes discrimination; (b) Ordinance 1722 adds to the sanctions that may be imposed under federal law the very severe sanction of potentially losing the ability to conduct business for an indefinite period of time; and (c) a local ordinance is much more visible to the community, and a greater number of residents are likely to be aware of the invitation to file complaints.
Second, as to the availability of the Basic Pilot Program, there is nothing in the Ordinance that instructs a business entity as to how it may enroll in the Basic Pilot Program, nor is there any evidence that anyone within the City government has any expertise that could assist a business entity to enroll in the Basic Pilot Program. (Ex. M at 46-47; Ex. N at 37, 43-44.)
Third, the City’s description of what constitutes a “valid” complaint under the Ordinance is misleading. The Ordinance describes a valid complaint as one that “include[s] an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.” (Ex. H at § 4B.(1).) In its memorandum, the City writes some additional language into the Ordinance: “In order to be considered valid, a complaint must credibly describe specific, observed or corroborated actions taken by a business
28

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 35 of 47
entity which constitute a violation of the ordinance. Moreover, the complaint must specify the exact time and date of the actions allegedly constituting a violation[.]” (Def.’s Mem. at 29, emphasis added.) In any event, as explained below in Section III, the Ordinance sets forth no procedures or standards for determining whether a complaint is “credible” or valid. Rather it is at the sole discretion of the City’s Code Enforcement Office. Under those circumstances, an employer has every reason to fear that complaints will be lodged against it and enforcement actions instituted in the event it employs persons of Hispanic heritage. And residents will have no disincentive to file complaints based on racial bias because there is no penalty for doing so.
Finally, the City argues that the federal anti-discrimination remedies should be sufficient to ameliorate the discriminatory effect of the Ordinance. (Def.’s Mem. at 30-31.) The City cites no evidence for the proposition that the existence of federal anti-discrimination laws will negate the incentive to discriminate under the Ordinance. Indeed, it is an odd argument that an ordinance that has the purpose and effect of causing discrimination should be allowed to stand because there are federal laws that prohibit such discrimination. III. Ordinance 1722 Violates The Due Process Clause.
The Fourteenth Amendment guarantees persons subject to civil sanctions by states or localities the right to due process before being deprived of a protected interest. Goldberg v. Kelly, 397 U.S. 254, 267-68 (1970). The hallmarks of due process are notice and a meaningful opportunity to be heard. See, e.g., Fuentes v. Shevin, 407 U.S. 67, 80 (1972) (citations omitted). Plaintiffs allege that Ordinance 1722 violates the Due Process Clause because it “subjects the Plaintiffs to being deprived of their business or otherwise punished without providing any standards or guidance for compliance” (Sec. Amended Compl. ¶ 39), and “provides for no presanction hearing, . . . and no meaningful process or procedure by which Plaintiffs might challenge Defendant’s determination that Plaintiffs have violated the ordinance.” (Id. ¶ 40.) The City argues that Ordinance 1722 gives businesses ample notice of how they may comply because
29

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 36 of 47
it requires only that they follow federal law, and that the Ordinance’s post-sanction procedures provide an adequate opportunity to be heard. (Def.’s Mem. at 33-36.) As demonstrated below, the Ordinance fails to provide adequate notice or a meaningful opportunity for businesses to be heard before (or after) their licenses to conduct business in the City are summarily suspended.
A. Ordinance 1722 Fails to Provide Notice of How to Comply. The City contends that the Ordinance provides sufficient notice to employers as to how to comply because: (1) employers may determine the work authorization of prospective employees by “scrutiniz[ing] documents presented by the employee, as they are already required to do by federal law,” (Def.’s Mem. at 34); (2) employers must sign an affidavit upon applying for a business permit that they do not knowingly employ any unlawful worker (id. at 34-35); and (3) employers may “immunize” themselves against violations by utilizing the federal government’s Basic Pilot Program to verify the work authorization of its future employees. (Id. at 35.) None of those arguments has merit. First, nowhere does the Ordinance spell out that employers may comply by scrutinizing documents presented by the employee to determine his or her immigration status. More importantly, the Ordinance does not provide any guidance as to how to use the documents to determine immigration status. Under federal law, employers are required to review certain documents before hiring an individual. 8 U.S.C. § 1324a(b). However, review of those documents does not constitute a “determination” of the workers’ status, nor could it: only an immigration judge can make a final determination with regard to the lawful status of any alien. See 8 U.S.C. § 1229a(a)(3). Second, only businesses newly applying for a business permit are required to submit the affidavit referenced by the City. (Ex. H § 4A.) In any event, the business’s submission of an affidavit that it does not knowingly employ unlawful workers in no way advises the business as to how it can screen out unlawful workers. Third, nowhere does the Ordinance explain how a
30

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 37 of 47
business entity can obtain access to the Basic Pilot Program. Moreover, as noted above, a requirement that business entities enroll in the Basic Pilot Program to avoid a violation is inconsistent with federal law, under which enrollment in the Basic Pilot Program is purely voluntary. (See supra at Section I.B.1.)
B. Plaintiffs have No Meaningful Opportunity to Be Heard Before or After They Are Deprived of Their Ability to Do Business in Valley Park.
“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” Matthews v. Eldridge, 424 U.S. 319, 333 (1976) (citation omitted). Three factors determine whether procedures satisfy the due process clause, including the “private interest . . . affected by the official action;” the “risk of an erroneous deprivation” of those interests and the value of additional procedural safeguards; and the government’s interest, including the burden of additional procedures. Matthews, 424 U.S. at 335. Ordinance 1722 provides no meaningful procedural protection and creates a high risk of an erroneous deprivation of Plaintiffs’ interests because it: (1) employs a complaint-initiated system that provides no notice to an accused business of the basis for the allegation that it employs unlawful workers and affords no hearing prior to suspending the business’s license; (2) provides no meaningful opportunity to be heard with regard to “correcting” a violation; and (3) provides an inadequate post-deprivation remedy.
1. The Ordinance’s automatic suspension procedures deny business entities a pre-deprivation hearing.
Generally speaking, governmental entities must provide a hearing before depriving an individual or business of a protected interest to minimize “substantively unfair or mistaken deprivations.” Fuentes, 407 U.S. at 97. The City may be excused from providing a predeprivation hearing only if such a hearing would be “unduly burdensome in proportion to the liberty interest at stake;” if the City could not anticipate the deprivation; or if there were an emergency requiring immediate action. Zinermon v. Burch, 494 U.S. 113, 132 (1990). The City
31

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 38 of 47
has not asserted that any of these situations are at play: the very nature of the Ordinance excludes the latter two circumstances and the City cannot, in good faith, suggest that the first situation applies when the interest at stake is a business entity’s ability to conduct business in Valley Park.19
The Ordinance’s enforcement mechanism is triggered by a complaint from any Valley Park resident or City official. (Ex. H § 4B.(1).) As discussed earlier, after receiving a “valid” complaint, the Code Enforcement Office must request “identity information” from an accused business. ( Id. § 4B.(3).) Any business that fails to provide this undefined information within 3 days of receiving the City’s request will have its permit suspended. (Id.)
Once the City begins an Enforcement Action, the accused business has no opportunity, let alone a meaningful one, to challenge the allegations. After the City requests “identity information,” the business has no right to view the original Complaint or to learn the identity of its accuser. The business also has no right to appear before any entity to challenge the basis of the charges. Rather, it must collect and turn over information that it is arguably not required to possess under federal or state law. Failure to produce this information results in an automatic, mandatory suspension of the license even though there has been no finding that the business hired an unlawful worker. The business is assumed to be guilty of a violation based solely on a complaint filed by someone whose identity (and motive) is unknown to the business. 20
19 The City relies on an unpublished case from the Court of Appeals for the Tenth Circuit to argue that no pre-deprivation hearing is required (Def. Mot. at 36), notwithstanding Stauch v. City of Columbia Heights, which found that a city was “required to provide [plaintiffs] with some form of notice and opportunity for a hearing before determining they were no longer licensed.” 212 F.3d 425, 431 (8th Cir. 2000) (emphasis added). See also Jamison v. State, Dept. of Social Servs., Div. of Family Servs., 218 S.W.3d 399, 408-09 (Mo. 2007) (“if the State feasibly can provide a hearing before deprivation of a protected interest, it generally must do so”). 20 The City argues that only “valid” complaints will trigger the City’s enforcement provisions: yet the Ordinance contains no mechanism to ensure that the complaints bear the indicia of validity, such as truthfulness or a reasonable basis. Moreover, the Ordinance contains no consequences for the filing of false complaints (it prohibits only complaints alleging violations on the basis of national origin, ethnicity
32

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 39 of 47
Under no circumstances do these procedures provide the notice or hearing contemplated by the Fourteenth Amendment. Due process requires pre-deprivation notice that provides “enough information to be able to defend the allegations and to present conflicting evidence in a timely manner.” Div. of Family Servs. v. Cade, 939 S.W.2d 546, 554 (Mo. App. W.D. 1997). See also Goldberg, 397 U.S. at 268 (notice sufficient when welfare recipients are informed of the “legal and factual bases” for the City’s doubts about their eligibility). In this case, the Ordinance requires only that the complaint list the “actions constituting the [alleged] violation,” (§ 4B.(1)), yet it fails to indicate what actions would constitute a violation. In fact, it is unclear what actions any Valley Park citizen could observe—excluding observations based on national origin, ethnicity or race, which are prohibited—that would constitute evidence of unlawful employment. Without knowing how an individual would identify an “action constituting the violation,” no business entity could possibly have notice that it might be subject to a complaint and face the automatic reporting requirement. Moreover, “[n]o matter how elaborate, an investigation does not replace a hearing.” Winegar v. Des Moines Indep. Cmty. Sch. Dist., 20 F.3d 895, 901 (8th Cir. 1994). The Ordinance’s alleged opportunity for business entities to be heard is nothing more than a reporting requirement: a response to an investigation in which the business must proffer unidentified “identity information” without the benefit of a hearing where it could challenge the basis of the accusations leveled against it.21
2. The Ordinance provides no meaningful opportunity to be heard when “correcting” violations.
The City also denies business entities a meaningful opportunity to be heard once a business is found to have violated the Ordinance. The City is directed to suspend the business
or race.) Anyone with an axe to grind—or simply an aggressive business competitor—takes little risk in filing a false complaint in order to trigger an enforcement action. 21 The Ordinance’s failure to specify what “identity data” a business entity must produce to avoid suspension of its license (§ 4B.(3)) also violates due process. Without notice of what documents it must produce, an accused business entity has no hope of a meaningful opportunity to avoid having its license suspended.
33

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 40 of 47
license of any entity that fails to correct a violation within 3 days after notification of a violation by the City’s Code Enforcement Office. (Ex. H § 4B.(4).)22 Second or subsequent violations of
the Ordinance result in a mandatory suspension of the business permit for 20 days. (Id. §4B.(7).)
A business has only three ways to correct “violations,” none of which involve an opportunity to
contest the finding. A business must terminate the unlawful worker’s employment; request a
secondary or additional verification by the federal government of the worker’s authorization
under the Basic Pilot Program; or attempt to terminate the unlawful worker’s employment, which
termination is challenged in state court. (Id. § 5B.) The latter two “corrections” toll the 3-day “correction” period of § 4B.(4).23
This procedure denies a business any opportunity to contest the finding that it employs an
unlawful worker. Nevertheless, the City argues that the Ordinance satisfies due process because
“upon receipt of a final confirmation from the federal government that an individual is an
unauthorized alien, City officials must provide the business entity with written confirmation of
the alien’s status.” (Def.’s Mem. at 35.) While this may provide a form of notice to a business
entity, it does not provide a meaningful opportunity to be heard. More significantly, neither the
City’s brief nor the Ordinance indicates what constitutes a “final confirmation” from the federal
government. Plaintiffs assert that this is because the only source of a final determination of an
22 The only exception to the mandatory suspension of a business license required by Ordinance § 4B.(4) is a showing by the business entity that it “verified the work authorization of the alleged unlawful worker(s) using the Basic Pilot Program.” (Ex. H § 4B.(5).) 23 In its motion, the City suggests that a business may correct a violation by presenting additional information from the employee to the city and by requesting additional verification of the employee’s status from the federal government. (Def.’s Mem. at 35-36.) The city argues, without pointing to any language in the Ordinance to support this argument, that the employer “may present any information he wishes in order to show that he did not knowingly hire an unauthorized alien.” (Id. at 36.) To the contrary, the “correction” section of the Ordinance (§ 5B) does not instruct the business to provide information to the City, but to acquire additional information from the worker and request a secondary or additional verification by the federal government. The City cannot mandate what information the employer presents to the federal government; and, by its own terms, the City cannot make an independent determination of an employee’s status (§ 5D). Therefore, any “opportunity to be heard” by presenting this information to the City is meaningless.
34

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 41 of 47
individual’s lawful status is a final ruling from an immigration judge. See 8 U.S.C. 1229a(a)(3). The procedures outlined in Sections 4 and 5 of the Ordinance cannot comport with due process to the extent that they are based on a misreading of the mechanisms available under federal law for verifying employment status.24
In sum, the City’s claim of “extensive standards for compliance” (Def.’s Mem. at 34) is a red herring: the Ordinance’s many procedures may provide notice of what punishment the City will impose under its regime, but they fail to provide business entities with a meaningful opportunity to contest the basis for the initial allegations levied against it or to avoid suspension of their licenses without taking action that could violate federal law. Moreover, the City’s provision of a “safe harbor,” in which business entities that “verif[y] the work authorization of the alleged unlawful worker(s) using the Basic Pilot Program” (Ex. H § 4B.(5)) does not save an otherwise constitutionally deficient process. The City cannot mandate participation in an otherwise voluntary federal program25 as a condition for avoiding an unconstitutional procedure.
3. The post-deprivation procedures are similarly inadequate. Because the Ordinance fails to provide for meaningful review subsequent to suspending the accused’s license, the post-deprivation remedy is also constitutionally infirm. A postdeprivation hearing must provide a meaningful opportunity to challenge the basis of the state’s action. See, e.g., Doe v. Hennepin County, 858 F.2d 1325, 1329 (8th Cir. 1988), cert. denied, 490 U.S. 1108 (1989) (post-deprivation hearing included the opportunity to be represented by counsel, the opportunity to testify and the ability to call witnesses). Although the Ordinance permits a challenge to the City’s Board of Adjustment (§ 5E), it fails to identify what procedures
24 Additionally, as discussed earlier, the Ordinance conflicts with federal law to the extent it requires businesses to provide information from employees’ I-9 forms and to re-verify employees’ status. (See supra at I.B.1.) Procedural requirements that conflict with federal law cannot provide an accused business with the due process to which it is entitled. 25 See Illegal Immigrant Reform and Immigrant Responsibility Act, §§ 401, 402(a), Pub. L. NO. 104-28, Div. C (Sept. 30, 1996), codified as amended at 8 U.S.C. § 1324a.
35

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 42 of 47
will be afforded as part of a challenge, the standards for reviewing a challenge and the criteria for sustaining or rejecting a challenge. Such standard-less procedures do not comport with due process. See, e.g., Martinez v. Ibarra, 759 F. Supp. 664, 668 (D. Colo. 1991) (no due process when appeals procedure was “never articulated in clear, written standards”).
Moreover, the City’s attempt to cloak the Ordinance under the aura of constitutionality by providing a “right of appeal to the St. Louis County Circuit Court” (§ 5E) is an empty gesture. Any appeal to a state court would necessarily impose upon that court an obligation to determine an allegedly unlawful worker’s immigration status. Yet federal law contains no provision permitting state courts to make such determinations, which are reserved instead to immigration judges. Lozano v. City of Hazleton, 496 F. Supp. 2d 477, 2007 WL 2163093, at 59 (M.D. Pa July 26, 2007) (citing 8 U.S.C. § 1229a(a)(1) (“An immigration judge shall conduct proceedings for deciding the inadmissibility or deportability of an alien.”)). IV. This Court Should Give Preclusive Effect To The State Court’s Judgment That The
Penalty Provision That Appears In Ordinance 1722 Is Invalid Under State Law. The Plaintiffs incorporate herein by reference their Motion for Summary Judgment and supporting papers (Doc. Nos. 73, 74, 75). It is Plaintiffs’ position that they are entitled to summary judgment that the state court’s judgment that the penalty provision that appears in Ordinance 1722 is invalid is entitled to preclusive effect in this Court. V. On The Merits, Ordinance 1722 Is Invalid Under State Law. Ordinance 1722 is invalid because the penalty it imposes for a violation -- revocation of a business license -- exceeds what a fourth-class city is permitted to impose under Missouri law. Though a city is certainly authorized to regulate businesses and to require them to be licensed, Missouri law does not permit a fourth-class city to revoke a license as a penalty for violating an ordinance other than the licensing ordinance, and does not permit the revocation of a license in any event without due process. Ordinance 1722 violates Missouri law because: (1) it is not a
36

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 43 of 47
licensing law, and yet imposes revocation of a business license as a sanction, and (2) it does not provide for due process prior to the revocation of a license.
In Missouri, a city can only regulate their citizens through legislation where (a) the power to do so is “granted in express words” by the State, (b) the power is “necessarily or fairly implied in or incident to” such an express power, or (c) the power is “essential to the declared objects and purposes” of municipal government. State ex rel. Curators of Univ. of MO v. McReynolds, 193 S.W.2d 611, 612 (Mo. en banc 1946)(internal citation omitted); see also Premium Std. Farms, Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234, 238 (Mo. en banc 1997). “Any fair, reasonable doubt concerning the existence of a power is resolved by the courts against the corporation and the power is denied.” Id.26
Under Missouri law, Valley Park is a fourth-class city. (Def.'s Stmt. of Material Facts, Doc. No. 55, ¶ 1.) Fourth-class cities can enact and enforce ordinances only if they are “not repugnant to the constitution and laws of [Missouri]” and are necessary “for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce[,] and the health of the inhabitants thereof.” Mo.R.S. § 79.110. Section 79.740, which sets forth the penalties that may be imposed by fourth-class cities, provides that a fourthclass city may penalize a person for an ordinance violation only by imposition of a fine not exceeding $500.00, a sentence of not to exceed 90 days in jail, or some combination of fine and sentence within those limits. Mo.R.S. § 79.470.
Ordinance 1722 violates Section 79.470 because it is enforced by the mandatory suspension of “the business license of any business entity [that] fails to correct a violation …
26 The City cites Miller v. City of Town & Country, 62 S.W.3d 431 (Mo. App. E.D. 2001), and St. Louis v. Lieberman, 547 S.W.2d 452 (Mo. 1977), for the proposition that a court should defer to municipal legislative power and that any doubt about whether an ordinance is a wise or reasonable exercise of a city’s police power should be resolved in favor of the ordinance. (Def.’s Mem. at 38-39.) But the question of whether an ordinance is a reasonable exercise of the police power or is reasonably related to protecting the public welfare is different than the question presented here: whether the penalty provision of Ordinance 1722 is specifically prohibited by state law.
37

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 44 of 47
within three (3) business days after notification of the violation…” (Ex. H § 4B.(4). Once a suspension is imposed, it appears to be indefinite, lasting until “one business day after a legal representative of the business entity submits … a sworn affidavit stating that the business entity has corrected the violation…” (Id. §4B.(6). A fourth-class city therefore cannot penalize a violation of an ordinance by forcing a business to forego a business permit. See Reynolds v. City of Valley Park, No. 06 CC 3802, at 6-7 (March 12, 2007) (holding that Mo.R.S. § 79.470 does not authorize the suspension of a business license for a violation of a municipal ordinance). Moreover, the monetary value of the suspension of a business license exceeds the $500 maximum fine that may be imposed under Section 79.470. Reynolds, at 7. That is so because the revenue lost from not being able to conduct business will very quickly exceed $500.
Although with adequate safeguards for due process (safeguards not present in Ordinance 1722) a municipality may deny business licenses for reasons set forth in the licensing ordinance itself, suspension of a license that has already been issued is prohibited without allowing for a hearing. Davis v. City of Kinloch, 752 S.W.2d 420, 423-24 (Mo.App. 1988). Absent exigent circumstances, a post-deprivation hearing does not satisfy due process. Id. at 424. Ordinance 1722 provides neither a pre-deprivation nor a post-deprivation hearing to either the employer (whose license will be forfeited) or to the employee (who must be terminated in order for the license to be reinstated).
The City relies on several cases that acknowledge a city’s power to revoke a license for violation of the licensing ordinance itself (not the scenario we have here). (Def.’s Mem. at 3839.) But the City misses the point. Even in those circumstances where a city may suspend or revoke a license, it may not do so absent a hearing and final adjudication of a violation of the licensing ordinance. Davis, 752 S.W.2d at 423-24. As shown above, Ordinance 1722 authorizes the suspension of a business license with no hearing or adjudication whatsoever.
38

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 45 of 47

Finally, the City’s reliance on Jimmy’s Western Bar-B-Q, Inc. v. Independence, 1975 Mo.

App. LEXIS 1800 (Mo. Ct. App. 1975) and McClellan v. Kansas City, 379 S.W.2d 500 (Mo.

1964), also is misplaced. Neither case addressed whether a city could revoke a license for

violation of an ordinance other than the licensing ordinance. Indeed, in Jimmy’s, the court held

that the city could not deny a business license for reasons not set forth in the licensing ordinance

itself and not related to the business for which the plaintiff sought a license. In McLellan, the

issue was whether the City could validly require television and radio servicemen to obtain a

license, not whether a license could be suspended for violation of a different ordinance and

without due process.

CONCLUSION

For the foregoing reasons, Plaintiffs respectfully request that Defendant’s Motion for

Summary Judgment be denied in all respects.

Dated: September 13, 2007

Respectfully submitted,

/s/ Daniel J. Hurtado

Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com
Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org

39

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 46 of 47
Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org
Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org
Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund rmeza@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
40

Case 4:07-cv-00881-ERW Document 83 Filed 09/13/2007 Page 47 of 47
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s
counsel of record, listed below, by operation of the Court’s ECF/CM system on September 13,
2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
/s/Daniel J. Hurtado

 
 Case 4:07-cv-00881-ERW Document 110 Filed 10/05/2007 Page 1 of 3
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JACQUELINE GRAY, et al.,

)

)

Plaintiff(s),

)

)

vs.

)

)

CITY OF VALLEY PARK, MISSOURI,

)

)

Defendant(s).

)

Case No. 4:07CV00881 ERW

MEMORANDUM AND ORDER This matter comes before the Court on Plaintiffs’ Motion for Leave to Take More Than Ten Depositions [doc. #88], Plaintiffs’ Motion for Continuance Pursuant to Rule 56(f) [doc. #90], Plaintiffs’ Motion to Stay and for Expedited Briefing and Decision [doc. #95], and Defendant’s Motion to Quash Notice and Subpoena of City Attorney [doc. #107]. The Court held a hearing on the above matters on this date, and issues the following ruling. Plaintiffs’ Motion for Leave to Take More than Ten Depositions is granted. Plaintiffs may depose the board of alderman and the mayor, in addition to the two depositions already completed. Each of these depositions is to last no more than three hours. The Plaintiffs will have two hours to depose, and the Defendant will have one hour in response for each deponent. Plaintiffs are not permitted to depose the City Attorney Eric Martin, who is also counsel of record in this case; Defendant’s Motion to Quash Notice and Subpoena of Eric Martin is therefore granted. In the alternative, Plaintiffs shall prepare no more than ten interrogatories to be served on Defendant no later than 2:00 p.m. on this date. Defendant shall respond to these interrogatories no later than 5:00 p.m. on Tuesday, October 9, 2007. If there are any issues

1

Case 4:07-cv-00881-ERW Document 110 Filed 10/05/2007 Page 2 of 3
remaining, following the completion of the interrogatories, either party may file a request for a status conference with this Court, no later than 5:00 p.m. on Tuesday, October 9, 2007, and the Court will schedule a status conference for Wednesday, October 10, 2007.
Plaintiffs’ Motion for a Continuance Pursuant to Rule 56(f) is granted. The Court will allow the completion of fact discovery, as provided herein, and supplemental briefing, and will then set the pending motions for summary judgment for a hearing. The Court notes that the previous order, requiring all expert discovery to be completed by November 2, 2007, is vacated. Expert discovery will not go forward until this Court has ruled on the pending Summary Judgment Motions. The Parties shall complete the depositions of the Board of Alderman and Mayor, no later than Monday October 22, 2007. The Parties are to work cooperatively to complete the remaining depositions in a cooperative manner. The Court further orders that any supplemental briefing shall be submitted no later than October 26, 2007. No responses to the supplemental briefing shall be permitted. The Court shall set the matter for a hearing, within three weeks of the completion of all briefing. The parties may advise the Court of any dates, within that three week period, which they are unavailable. The Court further notes that all subsequent deadlines established by this Court are to be strictly followed.
Plaintiffs’ Motion to Stay is denied. The Court will not further delay the proceeding of this case pending the outcome of the state court matter.
Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Leave to Take More Than Ten Depositions [doc. #88] is GRANTED in part and DENIED in part. Plaintiffs may take the nine additional depositions requested before this Court. These depositions are to be completed no
2

Case 4:07-cv-00881-ERW Document 110 Filed 10/05/2007 Page 3 of 3 later than October 22, 2007, in accordance with the terms of this order. Plaintiffs may not take the deposition of City Attorney Eric Martin.
IT IS FURTHER ORDERED that any supplemental briefing on the pending motions for summary judgment is due no later than October 26, 2007. No responsive briefs shall be permitted.
IT IS FURTHER ORDERED that Plaintiffs’ Motion for Continuance Pursuant to Rule 56(f) [doc. #90] is GRANTED. The Court will reserve ruling on Defendants’ Motion for Summary Judgment [doc. #53] and Plaintiffs’ Motion for Summary Judgment [doc. #73], pending the completion of fact discovery as provided in this order.
IT IS FURTHER ORDERED that Plaintiffs’ Motion to Stay and for Expedited Briefing and Decision [doc. #95] is DENIED.
IT IS FURTHER ORDERED that Defendant’s Motion to Quash Notice and Subpoena of City Attorney [doc. #107] is GRANTED.
IT IS FURTHER ORDERED that this Court’s August 15, 2007 order is VACATED. Dated this 5th Day of October, 2007.
____________________________________ E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE
3

 
 Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 1 of 52

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

REPLY MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 2 of 52
TABLE OF CONTENTS TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv-viii INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 I. ORDINANCE 1722 IS NOT PREEMPTED BY FEDERAL IMMIGRATION LAW . . . 2
A. The Heavy Presumption Against Preemption Must be Applied . . . . . . . . . . . . . . . . . . 2 B. Plaintiffs Cannot Avoid the Express Language of 8 U.S.C. 1324a(h)(2) . . . . . . . . . . . 4 C. Plaintiffs Misconstrue the Committee Report by Inserting a Requirement of
Prior Federal Prosecution . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6 D. A Committee Report Cannot Trump the Language of a Statute in Any Case . . . . . . 9 E. Ordinance 1722 is a Licensing Law Within the Meaning of 8 U.S.C. § 1324a(h)(2) . .9 F. Plaintiffs Ask this Court to Second-Guess a Policy Decision of Congress . . . . . . . . . 11 G. Ordinance 1722 Does Not Conflict with the Basic Pilot (E-Verify) Program
in Any Way . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .12 H. Re-Verification of Employees is Permitted Under Federal Law . . . . . . . . . . . . . . . . . 17 I. Plaintiffs’ Assertions Regarding Casual Domestic Workers and Independent
Contractors are Incorrect . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19 J. Preemption Principles Do Not Require a Locality to Replicate an Office
Within the U.S. Department of Justice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .22 K. Plaintiffs’ Reliance on Hines v. Davidowitz to Assert Field Preemption is
Misplaced . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24 L. Implied Preemption Does Not Usually Exist in the Presence of Express
Preemption . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 II. PLAINTIFFS’ EQUAL PROTECTION ARGUMENT CANNOT SURVIVE . . . . . . . . .29
A. Plaintiffs Lack Standing to Raise Their Equal Protection Claim . . . . . . . . . . . . . 29 B. Plaintiffs’ Theory Lacks State Action . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 C. Plaintiffs’ New Equal Protection Theory is Equally Flawed . . . . . . . . . . . . . . . . . 35 III. PLAINTIFFS’ DUE PROCESS CLAIM IS MERITLESS . . . . . . . . . . . . . . . . . . . . . . . . .37 IV. ORDINANCE 1722 DOES NOT CONTRAVENE MISSOURI LAW REGARDING IMPRISONMENT AND FINES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
ii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 3 of 52
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
iii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 4 of 52
TABLE OF AUTHORITIES
Federal Cases Adickes v. S.H. Kress and Co., 398 U.S. 144, 150-52 (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 236 (2d Cir. 2006) . . . . . . . . . . . . . 23, 30, 33 Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (U.S. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 BP Am. Prod. Co. v. Burton, 127 S. Ct. 638, 649 (2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001) . . 41 California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 (1987) . . . . . . . . . . . . . . 34 Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 10, 34 City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195-96 (2003) . . . . . . . . . 39 Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 (1992) . . . . . . . . . . . . . . . . . . . . 11 Craig v. Boren, 429 U.S. 190 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 De Canas v. Bica, 424 U.S. 351 (1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim EEOC v. Commercial Office Products Co., 286 U.S. 107, 120 (1988) . . . . . . . . . . . . . . . . . . . . . . 21 Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004) . . . . . . . . . . . . . . . . 31 Exxon Mobil Corp. v. Allapattah Services, Inc. 545 U.S. 546, 568 (2005) . . . . . . . . . . . . . . . . . . . 14 Gade v. National Solid Wastes Management Ass'n, 505 U.S. 88, 111-12 (1992) . . . . . . . . . . . 10, 21 Garcia v. United States, 469 U.S. 70, 75 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12 Geier v. Am. Honda Motor Co., 529 U.S. 861, 907 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 33 Goldberg v. Kelly, 397 U.S. 254, 268-69, (1970) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .43 Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20 Hines v. Davidowitz, 312 U.S. 52 (1941) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S. 137, 150 n. 4 . . . . . . . . . . . . . . . . . . . . . . . .14
iv

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 5 of 52
Incalza v. Fendi, 479 F.3d 1005, 1011 (9th Cir. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 30 Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974) . . . . . . . . . . . . . . . . . . . . . . . . 40, 43 Jenkins v. Immigration and Naturalization Services, 108 F.3d 195 (9th Cir. 1997) . . . . . . . . . . . . 26 King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 Kowalski v. Tesmer, 543 U.S. 125 (2004) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36, 37, 38 Lozano v. City of Hazleton, 496 F.Supp. 2d 477 (M.D. Pa. 2007) . . . . . . . . . . . . . . . . . . . . . . . . . .17 Lugar v. Edmondson Oil Co., 457 U.S. 922, 937, (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) . . . . . . . . . . . . . . . . . . . . . . 37, 41, 42 Lyons v. City of Los Angeles, 461 U.S. 95,105-106 (1983) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42 Matthews v. Eldridge, 424 U.S. 319, 333 (U.S. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43 McGowan v. Maryland, 366 U.S. 420, 429-430 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .37, 38 Medtronic, Inc. v. Lohr, 518 U.S. 470, 485(1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8 Mester Mfg. Co. v. INS, 879 F.2d 561, 567 (9th Cir. 1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 Nat'l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999) . . . . . . . . . . . . . . . 7 Nat'l College Athletic Assoc. v. Tarkanian, 488 U.S. 179, 191 (1988) . . . . . . . . . . . . . . . . . . . . . . 40 New El Ray Sausage Co. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991) . . . . . . . . . . . . . . . . . . . . . .14 Noe v. Henderson, 456 F.3d 868, 870 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 Plyler v. Doe, 457 U.S. 202, 225 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31 Powers v. Ohio, 499 U.S. 400, 411 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36 Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 34 Robinson v. Shell Oil Co., 519 U.S. 337, 340 (U.S. 1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .11 Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30 Sprietsma v. Mercury Marine, 537 U.S. 51, 69 (2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 15, 33 Thompson v. Adams, 268 F.3d 609, 613 (8th Cir. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35 Toll v. Moreno, 458 U.S. 1 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .10
v

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 6 of 52
Trs. of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 (8th Cir. 2006) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 454 (1993) . . . . . . . . .11 United States v. Gonzales, 520 U.S. 1, 6 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 United States v. Locke, 529 U.S. 89, 108 (2000) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9 United States v. Raines, 362 U.S. 17, 22 (1960) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 United States v. Smith, 35 F.3d 344 (8th Cir. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .16 Wang v. Immigration & Naturalization Service, 622 F.2d 1341 (9th Cir. 1980) . . . . . . . . . . . . . . .16 Warth v. Seldin, 422 U.S. 490, (1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .35 Whitmore v. Arkansas, 495 U.S. 149, 155 (1990) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 Wickersham v. City of Columbia, 481 F.3d 591, 597-99 (8th Cir. 2007) . . . . . . . . . . . . . . . . . . . . .40 Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597, 612-13 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
State Cases Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47, 48 McLellan v. Kansas City, 379 S.W.2d 500, 504 (Mo. 1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48 Miller v. City of Town & Country, 62 SW3d 431, 437 (Mo.App. E.D. 2001) . . . . . . . . . . . . . . . . 48 Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140 (Mo. Ct. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Safeharbor Employer Servs. I, Inc. v. Cinto Velazquez, 860 So. 2d 984, 986 (Fl. Ct. App. 2003) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33 St. Louis v. Liberman, 547 S.W.2d 452, 457 (Mo. 1977) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .48
Federal Statutes 110 Stat. §§3009-655 through 3009-666 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 115 Stat. § 2407. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21 117 Stat. §§ 1944-46 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 1986 U.S.C.C.A.N. § 5649 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16, 23 42 U.S.C. § 2000e-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
vi

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 7 of 52
8 U.S.C. § 1324a . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13, 19, 21, 29 8 U.S.C. § 1324a(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 8 U.S.C. § 1324a(a)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .27 8 U.S.C. § 1324a(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 8 U.S.C. § 1324a(e)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 8 U.S.C. § 1324a(e)(4) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19 8 U.S.C. § 1324a(f)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18 8 U.S.C. § 1324b . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 8 U.S.C. § 1324b(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28 8 U.S.C. § 1324b(b)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 39 8 U.S.C. § 1373(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 23, 28, 44 8 U.S.C. §§ 1324a(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45 8 U.S.C. §1324(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 8 U.S.C. §1324a(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 8 U.S.C. §1324b(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 H.R. Rep. 99-682(I) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13, 16, 23 8 U.S.C. § 1324a(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim 8 U.S.C. 1324a(h)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 10, 15 Pub. L. 104-208 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24, 25 Pub. L. 107-128 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 Pub. L. 108-156 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 United States Code Title 8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .13 State Statutes K.S.A § 17-280 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .49 Nebraska 23356 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
vii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 8 of 52
R.S.Mo. § 79.479 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46, 47 R.S.Mo. § 94.270 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47 Federal Rules 9th Cir. 1975 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .. . . . . . . 16 Federal Regulations 8 C.F.R. § 274a.1(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 26 8 C.F.R. § 274a.1(l)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 8 C.F.R. §274a.1(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25 8 C.F.R. §274a.1(h) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 Other Authorities Form I-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24, 25, 26, 27
viii

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 9 of 52
ARGUMENT In their Amended Response Memorandum, Plaintiffs concede that there are no genuine issues of material fact that must be resolved before this Court can adjudicate Plaintiffs’ preemption claim and state law claim. Pl. Amd. Resp. Memo. 4. However, Plaintiffs still seem rather uncertain in this regard. Plaintiffs make a fleeting attempt to present an issue of material fact regarding preemption in their September 18, 2007, Memorandum, claiming implausibly that “whether the nature or enforcement of Ordinance 1722 brings it within the ‘licensing law’ exception” of 8 U.S.C. § 1324a(h)(2) can be construed as a “factual issue.” Pl. Memo. Supp. Mtn. for Contin. 7. However, this matter of express preemption under 8 U.S.C. § 1324a(h)(2) is obviously a question of statutory interpretation—not one of fact. Then, in their September 26, 2007, Memorandum, Plaintiffs change course once again and concede that there are no controverted issues of material fact regarding their express preemption claim, but state that there might be issues of material fact that could be discovered regarding their conflict preemption claim. Pl. Reply Supp. Rule 56(f) Mtn. and Stay 4. Plaintiffs do not explain how a conflict preemption claim could possibly turn on a factual question, much less what the particular factual question is in this case. Id. It is well established in constitutional jurisprudence that “[p]reemption is a question of law….” Nat'l Bank of Commerce v. Dow Chem. Co., 165 F.3d 602, 607 (8th Cir. 1999)); Noe v. Henderson, 456 F.3d 868, 870 (8th Cir. 2006). It is not, and never has been, an issue of fact. It is a legal inquiry into the question of whether a state or local statute conflicts with federal law, either expressly or impliedly. Thus, there is certainly no impediment to this Court ruling on Defendant’s Motion for Summary Judgment with respect to Plaintiffs’ preemption claim and Plaintiffs’ state law claim. With regard to Plaintiffs’ remaining two claims—due process and equal protection—Plaintiffs assert that there are genuine issues of material fact that must be resolved. However, Plaintiffs have failed to explain how the discovery of any additional information would advance this Court’s adjudication of the issues. With respect to Plaintiffs’ due process claim, it is difficult to see how there could be any material facts discovered in this regard, since Ordinance 1722 has yet to be enforced against any business entity; and
1

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 10 of 52
the process that is established by Ordinance 1722 has never commenced. With respect to Plaintiffs’ due process claim, it is a facial challenge based simply on the text of the ordinance. Any discovery would merely involve the asking of hypothetical questions about hypothetical cases of future enforcement. It is difficult to see how there could be any material facts discovered in this fashion. It is undisputable that this Court may consider a facial due process claim, without additional fact finding, in adjudicating Defendant’s Motion for Summary Judgment.
The only claim left is the equal protection claim. But as Defendant has pointed out, Plaintiffs lack standing to bring this claim on behalf of unidentified third parties and Plaintiffs also lack the necessary state action behind their hypothetical discriminatory impact. Standing is a jurisdictional issue. Moreover, neither party is seeking discovery that has any relevance to Plaintiffs’ attempt to raise the claim of unidentified third parties. With respect to Defendant’s argument that Plaintiffs lack state action, neither party is seeking discovery that has any relevance to that inquiry either. As is explained below, Plaintiffs’ attempts to plug these two holes in their equal protection argument are unavailing. (If, however, this Court disagrees with Defendant’s contentions that Plaintiffs lack the necessary standing and state action to bring their equal protection claim, then discovery would be appropriate at that point.) Therefore, all four substantive claims in Plaintiffs’ complaint may be disposed of immediately in this Court’s adjudication of Defendant’s Motion for Summary Judgment.
I. ORDINANCE 1722 IS NOT PREEMPTED BY FEDERAL IMMIGRATION LAW A. The Heavy Presumption Against Preemption Must be Applied Plaintiffs begin their argument on the preemption issue by attempting to displace one of the most
fundamental presumptions in constitutional law: the presumption that state laws are not preempted, unless congressional intent to preempt is clear and manifest. “In all preemption cases…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 a clear and manifest purpose of Congress.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485(1996)
2

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 11 of 52
(citing Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947)). See also Cipollone v. Liggett Group, Inc., 505 U.S. 504, 516 (1992).
The presumption against preemption is not simply a canon of statutory interpretation, it is a bulwark in our constitutional structure. As Justice Stevens has observed:
Our presumption against pre-emption is rooted in the concept of federalism. ....The signal virtues of this presumption are its placement of the power of pre-emption squarely in the hands of Congress, which is far more suited than the Judiciary to strike the appropriate state/federal balance … In addition, the presumption serves as a limiting principle that prevents federal judges from running amok with our potentially boundless (and perhaps inadequately considered) doctrine of implied conflict pre-emption based on frustration of purposes. Geier v. Am. Honda Motor Co., 529 U.S. 861, 907 (2000) (Stevens, J., dissenting). Accordingly, it is not a presumption to be set aside lightly. Nevertheless, Plaintiffs attempt to persuade this Court to set this presumption aside, citing United States v. Locke, 529 U.S. 89, 108 (2000), for their claim that the presumption against preemption does not apply in areas where there has been significant federal involvement in the past (such as immigration). Pl. Amd. Resp. Memo. 6. However, Plaintiffs fail to note that Locke has since been distinguished and narrowed by the Supreme Court. The passage that Plaintiffs cite from Locke is part of a section of the Locke opinion dissecting the earlier holding of Ray v. Atlantic Richfield Co., 435 U.S. 151 (1978). The Supreme Court would come back two years later and clarify that “As we explained in United States v. Locke, … the analysis in Ray was governed by field-pre-emption rules because the rules at issue were in a ‘field reserved for federal regulation’ and ‘Congress had left no room for state regulation of these matters.’ Sprietsma v. Mercury Marine, 537 U.S. 51, 69 (2002) (emphasis added). In contrast, the case at bar concerns an area in which such field preemption has not occurred. As the U.S. Supreme Court stated unequivocally in De Canas v. Bica, 424 U.S. 351 (1976)—the controlling precedent in all preemption cases involving immigration law—the regulation of immigration by the federal government is not so comprehensive that it occupies the field and displaces state action: “Respondents … fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens
3

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 12 of 52
in general, or the employment of illegal aliens in particular.” De Canas, 424 U.S. at 357-358 (internal citations omitted).
Moreover, Plaintiffs fail to address the rule that regardless of the presumption that an Article III Court brings to preemption, the Court must not find preemption absent clear and manifest congressional intent to preempt. “[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 Management Ass'n, 505 U.S. 88, 111-12 (1992) (Kennedy, J., concurring) (citing Rice v. Santa Fe Elevator Corp., 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)). Article III Courts are bound by an “obligation to infer pre-emption only where Congress’ intent is clear and manifest” Cipollone v. Liggett Group, 505 U.S. 504, 524 (1992) (Blackmun, J., dissenting). Indeed, as Justice Rehnquist would remember with regard to the controlling precedent in the case at bar—De Canas v. Bica: “The statute in De Canas discriminated against aliens, yet the Court found no strong evidence that Congress intended to pre-empt it.” Toll v. Moreno, 458 U.S. 1 (1982) (Rehnquist, J., concurring). Plaintiffs have not produced any evidence of congressional intent to preempt Ordinance 1722, much less evidence of clear and manifest congressional intent to preempt.
B. Plaintiffs Cannot Avoid the Express Language of 8 U.S.C. 1324a(h)(2) In what can only be described as an Orwellian twist of language, Plaintiffs assert that when Congress expressly permitted the imposition of licensing sanctions on the employers of unauthorized aliens in 1986, Congress actually intended to prohibit such sanctions. The relevant provision of federal law is found at 8 U.S.C. § 1324a(h)(2): Preemption. The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. 8 U.S.C. § 1324a(h)(2) (emphasis added). Clearly, Congress utilized its power of express preemption to deny states and localities the authority to impose civil or criminal fines on the employment of unauthorized aliens. However, Congress clearly allowed for state and local legislation on the subject—in the form of
4

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 13 of 52
“sanctions … through licensing and similar laws.” The text states unambiguously upon whom states and localities may impose such sanctions: “upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Thus, the plain meaning of the statute is that states and localities may deny or suspend licenses sought or held by those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
It is axiomatic that the plain meaning controls the interpretation of statutes. “We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: the judicial inquiry is complete.” Connecticut Nat. Bank v. Germain, 503 U.S. 249, 253-254, 112 (1992) (citations and internal quotation marks omitted). “A statute’s plain meaning must be enforced… .” United States Nat'l Bank v. Independent Ins. Agents of Am., 508 U.S. 439, 454 (1993). “[T]he plain language of the Act controls if it is unambiguous.” Trs. of the Twin City Bricklayers Fringe Benefit Funds v. Superior Waterproofing, Inc., 450 F.3d 324, 329 (8th Cir. 2006) (citing United States v. Mickelson, 433 F.3d 1050, 1052 (8th Cir. 2006)). “We adhere to the general principle that ‘[when] the plain language of a statute is clear in its context, it is controlling.’” King v. Ahrens, 16 F.3d 265, 271 (8th Cir. 1994) (quoting Blue Cross Ass'n v. Harris, 622 F.2d 972, 977 (8th Cir. 1980)). “Our first step in interpreting a statute is to determine whether the language at issue has a plain and unambiguous meaning with regard to the particular dispute in the case. Our inquiry must cease if the statutory language is unambiguous and ‘the statutory scheme is coherent and consistent.’” Robinson v. Shell Oil Co., 519 U.S. 337, 340 (U.S. 1997) (quoting United States v. Ron Pair Enterprises, Inc., 489 U.S. 235, 240 (1989)). See also Barnhart v. Sigmon Coal Co., 534 U.S. 438, 450 (U.S. 2002). An Article III Court must have a truly extraordinary reason to set aside the plain meaning of the statutory text. See BP Am. Prod. Co. v. Burton, 127 S. Ct. 638, 649 (2006).
Nevertheless, Plaintiffs would have this Court set aside the plain meaning of the statutory text of 8 U.S.C. §1324a(h)(2) and replace it with Plaintiffs’ implausible interpretation of a stray statement in a committee report. Plaintiffs disregard the longstanding principle of statutory interpretation that when presented with a “straightforward statutory command, there is no reason to resort to legislative history.”
5

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 14 of 52
United States v. Gonzales, 520 U.S. 1, 6 (1997). “While we now turn to the legislative history as an additional tool of analysis, we do so with the recognition that only the most extraordinary showing of contrary intentions from those data would justify a limitation on the ‘plain meaning’ of the statutory language.” Garcia v. United States, 469 U.S. 70, 75 (1984). Plaintiffs’ spin of the committee report not only fails to meet the standard of “extraordinary showing,” it fails to meet the standard of common English usage.
C. Plaintiffs Misconstrue the Committee Report by Inserting a Requirement of Prior Federal Prosecution
What, precisely, is the statement from a committee report that Plaintiffs rely upon? Far from being an “extraordinary showing” in support of Plaintiffs’ argument, it is statement that actually supports the Defendant in this case. Plaintiffs point to a statement from the House Committee Report on the Immigration Reform and Control Act (IRCA) of 1986; however, Plaintiffs do not provide the full paragraph, which reads:
They [the penalties in this section] are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or “fitness to do business laws,” such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens. H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662. Plaintiffs offer only a fragment of the first sentence in their memo. They focus on the words “who has been found to have violated the sanctions provisions in this legislation.” Pl. Amd. Resp. Memo. 8. They claim, without any support, that “has been found” means “has been found in federal proceedings.” Id. Therefore, they reason, local governments are only permitted to impose licensing sanctions on a person after that person has been prosecuted and convicted in federal proceedings for employing unauthorized aliens. There are three fatal flaws in Plaintiffs’ reading of this committee report text.
6

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 15 of 52
First, and most importantly, Plaintiffs conveniently ignore the first half of the sentence, which specifically refers to “state or local processes.” The actor who “finds” the person to have violated the law by employing an unauthorized alien is not a federal official, but the state or local official who makes the determination in the “state or local process.” The whole sentence from the committee report reads: “They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis added). Admittedly, the sentence is somewhat ambiguous. But the most reasonable interpretation of who the actor is that “finds” a person to have employed unauthorized aliens is derived by looking to the first half of the sentence, which refers to state or local processes. The federal government is mentioned nowhere in the paragraph. A fundamental rule of grammar and statutory interpretation requires that the subject of a passive verb construction (“has been found”) be identified in an adjacent sentence. But no such mention of the federal government is to be found. Plaintiffs manufacture their assumption (that the federal government must be the actor) out of thin air.
Second, assuming arguendo that Plaintiffs’ assumption about the meaning of the committee report were true—that the federal government must first “find” that the employer is employing an unauthorized alien before a state or city could suspend or deny a business license—Ordinance 1722 would still pass muster. Ordinance 1722 specifically requires that the federal government must first find that the alien in question is unauthorized to work in the United States before the City may reach the same conclusion:
If the federal government notifies the City of Valley Park that it is unable to verify whether an individual is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any city official attempt to make an independent determination of any alien’s legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c). Ordinance 1722 § 5.C. Only after a conclusive verification is received from the federal government can the City move forward and notify a business entity that the employee in question is believed to be unauthorized to work in the United States, Ordinance 1722 § 4.B(4), and that the employer
7

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 16 of 52
has three days to take one of several possible actions to correct the violation after being so notified, Ordinance 1722 § 5.B.(1)-(3). At that point, the employer has constructive knowledge that he is employing an unauthorized alien in violation of 8 U.S.C. § 1324a. 8 C.F.R. § 274a.1(l)(1) (situations in which employer may have “constructive knowledge that an employee is an unauthorized alien include, but are not limited to, situations where the employer: … (iii) Fails to take reasonable steps after receiving information indicating that the employee may be an alien who is not employment authorized….”); Mester Mfg. Co. v. INS, 879 F.2d 561, 567 (9th Cir. 1989); New El Ray Sausage Co. v. INS, 925 F.2d 1153, 1158 (9th Cir. 1991). The committee report’s phrase “has been found” is ambiguous as to what constitutes a “finding.” Plaintiffs, without a shred of support, insist that “has been found” means “has been prosecuted and convicted in by the federal government.” That is quite a stretch. If such hurdles had to be met before a local government could exercise its authority to apply licensing sanctions as allowed by federal law, Congress certainly could have (and would have) listed those requirements in the statutory text.
The third problems with Plaintiffs’ implausible interpretation of this Committee Report is that it conflicts with the plain language of the statutory text. The plain language of 8 U.S.C. § 1324a(h)(2) indicates that licensing sanctions may be imposed by localities “upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” If Congress had shared Plaintiffs’ view, Congress would have enacted a statute containing the words “upon those who have been prosecuted and convicted by the federal government for employing, or recruiting, or referring for a fee for employment, unauthorized aliens.” Of course, Congress did not choose that phrasing, or anything close to it. Rather, we have the statutory text as it is, which plainly indicates that localities may impose such sanctions upon those who employ unauthorized aliens. Nothing in the statutory language requires any prior federal action against the employer before a locality may suspend the license of an entity that employs unauthorized aliens. The language of the statute that Congress approved, not language from the House Report, controls. Exxon Mobil Corp. v. Allapattah Services, Inc. 545 U.S. 546, 568 (2005) (the “authoritative statement is the statutory text, not the legislative history”); see also Hoffman Plastic Compounds, Inc. v. NLRB, 535 U.S.
8

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 17 of 52
137, 150 n. 4 (describing House Report No. 99-682 as a “single Committee Report from one House of a politically divided Congress” and noting that dissent’s reliance on the report “is a rather slender reed”).
D. A Committee Report Cannot Trump the Language of a Statute in Any Case Plaintiffs are evidently unaware of the rule that in preemption cases, an Article III Court must preempt only when congressional intent is “clear and manifest.” As the Supreme Court has emphasized, when interpreting “an express pre-emption clause, our ‘task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ pre-emptive intent.’” Sprietsma, 537 U.S. at 62-63 (quoting CSX Transp., Inc. v. Easterwood, 507 U.S. 658, 664 (1993)). In Sprietsma, the Supreme Court was similarly urged to override the plain language of a federal statute by finding broader preemptive intent in a committee report. Importantly, the Court held that such preemptive intent could not be based on a committee report: “Nor is a clear and manifest intent to sweep away state common law established by an unembellished statement in a House Report….” 537 U.S. at 69-70. A statement in a committee report is not enough to constitute the “clear and manifest” intent of Congress. Only the text of a statute can establish such intent. As noted above, the plain statutory language permits a broad window for states and localities to act in the field, by imposing licensing sanctions. The text of the statute does not include any condition requiring prior federal enforcement to occur before a state or locality may act. Such a requirement would dramatically narrow the scope of the permitted state and local activity. An Article III Court cannot infer such a preemptive requirement absent a clear and manifest statement of congressional intent.
E. Ordinance 1722 is a Licensing Law Within the Meaning of 8 U.S.C. § 1324a(h)(2) Plaintiffs’ next argument is one that borders on the frivolous. Plaintiffs contend that even though the only “sanction” imposed by Ordinance 1722 is the temporary suspension of a business license, and Ordinance 1722 requires employers to sign an affidavit at the time they apply for a business license, nevertheless “Ordinance 1722 is not a ‘licensing or similar law.’” Pl. Amd. Resp. Memo. 7. According to
9

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 18 of 52
Plaintiffs, the term “licensing [] law” in 8 U.S.C. 1324a(h)(2) only includes fitness to do business laws. Therefore Plaintiffs assert, “Neither IRCA nor Ordinance 1722 are concerned with an employee’s fitness to do business, and thus Ordinance 1722 is not a ‘licensing law’ within the statute.” Pl. Amd. Resp. Memo. 8. In order to reach this cramped and narrow definition of “licensing law,” Plaintiffs refer to the following sentence in the committee report: “Further, the Committee does not intend to preempt licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662 (emphasis added). Plaintiffs then conclude that this sentence means that licensing laws and fitness to do business laws are the same thing. Pl. Amd. Resp. Memo. 7. There are two problems with Plaintiffs’ argument.
First, Plaintiffs ignore the word “or” in the sentence quoted. The committee report does not define licensing laws as fitness to do business laws. Rather the committee reports states: “the Committee does not intend to preempt licensing or ‘fitness to do business laws….’” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5662. The use of the word “or” indicates that the two types of laws are alternatives. “The ordinary usage of the word ‘or’ is disjunctive, indicating an alternative. Construing the word ‘or’ to mean ‘and’ is conjunctive, and is clearly in contravention of its ordinary usage.” United States v. Smith, 35 F.3d 344 (8th Cir. 1994). “The usual meaning of the word ‘or’ is that it ‘indicates alternatives.’” Wang v. Immigration & Naturalization Service, 622 F.2d 1341 (9th Cir. 1980) (quoting Azure v. Morton, 514 F.2d 897, 900 (9th Cir. 1975) (reversed on other grounds in Immigration & Naturalization Service v. Jong Ha Wang, 450 U.S. 139 (1981)).
Second, in making this argument, Plaintiffs conveniently ignore the preceding sentence in the committee report: “They [the penalties in this section] are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation.” H.R. Rep. 99-682(I), 1986
10

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 19 of 52
U.S.C.C.A.N. 5649, 5662 (emphasis added).1 The italicized words explain what the committee report deemed a “licensing law” to be. And they describe Ordinance 1722 precisely: a local process concerning the suspension of a license where a business entity is informed that it is employing an unauthorized alien but nevertheless continues to do so. Plaintiffs can only come to their implausible conclusion that Ordinance 1722 is not a licensing law within the meaning of 8 U.S.C. § 1324a(h)(2) by ignoring this sentence, while also ignoring the word “or” in the next sentence of the committee report. The language of the committee report simply cannot bear the meaning that Plaintiffs ascribe to it. In any event, Defendant contends that it is not even necessary to parse this legislative history, because the text of the statute is unambiguous.
F. Plaintiffs Ask this Court to Second-Guess a Policy Decision of Congress Perhaps recognizing the weakness of their claim that Ordinance 1722 is not a “licensing law,” Plaintiffs in the alternative argue that even if Ordinance 1722 is a licensing law, as that term was used by Congress, it shouldn’t be. Pl. Amd. Resp. Memo. 7-8. Plaintiffs complain that it would be a bad policy for Congress to reserve for the federal government the penalties of civil fines and criminal punishment while allowing states and localities “to impose the enormous penalty of entirely shuttering a business.” Id. at 8. In seeking to correct this congressional policy error, Plaintiffs urge this Court to follow the lead of Judge James Munley in the U.S. District Court for the Middle District of Pennsylvania in Lozano v. City of Hazleton, 496 F.Supp. 2d 477 (M.D. Pa. 2007). In that decision, Judge Munley disregarded the plain language of 8 U.S.C. § 1324a(h)(2) because, in his opinion, “It would not make sense for Congress in limiting the state’s authority to allow states and municipalities the opportunity provide the ultimate sanction, but no lesser penalty.” Id. at 519 (emphasis added). In Judge Munley’s view, “to force the employer out of business by suspending its business permit [is] what we could call the ‘ultimate sanction.’” He concluded that the suspension of a business license is a
1 This is the very same sentence that Plaintiffs place so much emphasis on when making their spurious claim that the committee report allows states and localities only to impose licensing sanctions after a federal conviction has been
11

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 20 of 52
greater sanction than criminal punishment in the form of imprisonment. Id.2 Certainly, reasonable minds may disagree as to which sanction is greater.3 However, one thing is certain. Although Judge Munley cloaked his inquiry as one into the meaning of the “plain language” of federal law, in the very next sentence he disregarded the plain language of under 8 U.S.C. § 1324a(h)(2) simply because he thought that Congress’s approach “would not make sense.” Id. He substituted his own policy judgment for that of Congress, deciding that Congress should not have given states and localities what he described as the “ultimate sanction.” In so doing, he stepped outside of his judicial role. Plaintiffs would have this Court make the same mistake. There is no ambiguity in Congress’s reservation of sanctions “through licensing … laws” to states and local governments. 8 U.S.C. § 1324a(h)(2). The fact that Judge Munley disagreed as a policy matter with Congress’s decision to do so (and that Plaintiffs share the same dissatisfaction with Congress’s decision) is not an appropriate basis for this Court to find that Congress has expressly preempted Ordinance 1722.
G. Ordinance 1722 Does Not Conflict with the Basic Pilot (E-Verify) Program in Any Way Plaintiffs also argue that federal law preempts Ordinance 1722 because, under federal law, participation in the Basic Pilot Program (recently renamed “E-Verify”) is discretionary. Plaintiffs style this argument as one of conflict preemption. Amd. Resp. Memo. 11. At the outset, Plaintiffs intentionally gloss over the fact that Ordinance 1722 does not establish any general requirement that business entities in Valley Park enroll in the E-Verify Program. A business entity that is never found to violate Ordinance 1722 by employing two or more unauthorized aliens would never be required to participate in the E-Verify Program under the terms of Ordinance 1722. See Ordinance 1722 § 4. The only business entity that would ever be required to participate in the E-Verify Program is one that is confirmed by the federal government
secured. 2 Judge Munley also incorrectly characterized the operation of the Hazleton ordinance, which did not force an employer “out of business,” but simply imposed a temporary suspension of a business license, similar to Ordinance 1722. 496 F.Supp. 2d at 519, 535-36.
12

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 21 of 52
to be employing two or more unauthorized aliens, fails to correct the violation within the allotted time, has its license suspended, and as a condition of terminating the suspension enrolls in the E-Verify Program as stipulated in Ordinance 1722 § 4.B(6)(b). Beyond that, enrollment in the E-Verify Program is a prerequisite to receiving a City contract or grant exceeding $10,000. Ordinance 1722 § 4.D. And Valley Park encourages business entities in the City to enroll in the E-Verify Program, by offering them safe harbor under Section 4.B(5) of Ordinance 1722 if they verify their new hires with the federal government through E-Verify.
This framework of requiring enrollment only in limited instances where a business entity has been found to employ unauthorized aliens perfectly conforms to federal law, which provides that a business entity can be compelled to participate in the E-Verify Program as a consequence of violating 8 U.S.C. § 1324a. “Application to certain violators. An order under 8 U.S.C. § 1324a(e)(4) or § 1324b(g) may require the subject of the order to participate in, and comply with the terms of, a pilot program with respect to the subject's hiring (or recruitment or referral) of individuals….” IIRIRA § 401(e)(2).
Ordinance 1722’s requirement that business entities must enroll in the E-Verify Program to receive government contracts also mirrors federal practice. The Secretary of Homeland Security recently announced that the federal government will be requiring federal contractors to participate in E-Verify:
[W]e will want to encourage as many companies as possible to use E-Verify, and we’re going to start with the federal government. We want to lead by example. For this reason, today we are announcing that the administration has initiated a rulemaking process to require new federal contractors to enroll in E-Verify. In order to do this, we’re going to amend the federal acquisition regulations, which are the rules that basically govern federal contracting, and we’re going to require that federal contractors who receive new federal contracts use the E-Verify system to check the employment eligibility of the contractor work force that will work on those contracts. Remarks by Homeland Security Secretary Michael Chertoff and Commerce Secretary Gutierrez, August 10, 2007, attached as Exhibit A. In this respect as well, Ordinance 1722 and federal practices are mirror
3 Defendants respectfully disagree with Judge Munley in this regard; in Defendant’s opinion, spending up to six months in a federal prison—a penalty under 8 U.S.C. § 1324a(f)(1)—is a greater penalty that the suspension of a business license for as brief a period as one day.
13

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 22 of 52
images of one another. It is well established that in immigration law, states and localities are not preempted when they undertake concurrent enforcement activity with the federal government. “Where state enforcement activities do not impair federal regulatory interests concurrent enforcement activity is authorized.” Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983) (citing Florida Avocado Growers v. Paul, 373 U.S. 132, 142 (1963)) (emphasis added). Where “[f]ederal and local enforcement have identical purposes,” preemption does not occur. Gonzales v. Peoria, 722 F.2d at 474.
Moreover, assuming arguendo that Ordinance 1722 could somehow be construed as requiring participation in the E-Verify Program, it still would not be impliedly preempted through conflict preemption. Nothing in federal law suggests that a locality cannot require employers within its jurisdiction who have been found to employ unauthorized aliens to participate in the federal program as a condition of having a suspended business license reinstated. Plaintiffs have yet to identify any such barrier in federal law. They cannot do so because, as noted above, federal law expressly provides for mandatory participation in the E-Verify Program where the business entity has been found to employ unauthorized aliens in the past. The history of successive Acts of Congress expanding the E-Verify Program, described below, coupled with the instances in which the federal government mandates participation in the program, described above, indicates that Congress has consistently encouraged the widest possible use of the EVerify Program. The encouragement that Ordinance 1722 gives to Valley Park business entities to enroll in the Program in no way undermines this congressional objective. On the contrary, it promotes the objective.
Determined to fabricate some sort of “conflict” with federal law, Plaintiffs next resort to speculating that perhaps the E-Verify Program will disappear in the future. Pl. Amd. Resp. Memo. 11. They must know something that the Secretary of Homeland Security doesn’t. As Secretary Chertoff announced in August:
More than 19,000 employers across the country rely on [E-Verify], it has no charge, and it’s available in all the states. And what it simply does is tell you whether the particular document matches the Social Security number and whether both of those are genuine when compared to these databases.
14

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 23 of 52
Because of the success of this system and its ability to take the guesswork, or some of the guesswork out of employment document review, we’re going to be strengthening and expanding the system…. Remarks by Homeland Security Secretary Michael Chertoff and Commerce Secretary Gutierrez, August 10, 2007 (emphasis added), attached as Exhibit A. What Plaintiffs fail to inform the Court is that the Basic Pilot Program was created by Act of Congress as part of the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) of 1996. IIRIRA §§ 401-405. Pub. L. 104-208, Div. C., Title IV, Subtitle A, 110 Stat. 3009-655 through 3009-666, codified as note to 8 U.S.C. § 1324a; see specifically IIRIRA § 403(a). In 2001, Congress extended its authorization of the Program to six years from the date of its initial authorization. Basic Pilot Extension Act of 2001, Pub. L. 107-128, 115 Stat. 2407. In 2003, Congress extended authorization of the Program again to eleven years from its initial implementation date and mandated its expansion to all fifty states by December 1, 2004. Basic Pilot Program Extension and Expansion Act of 2003, Pub. L. 108-156, 117 Stat. 1944-46. This series of successive expansions and reauthorizations of the E-Verify Program, coupled with the Secretary of Homeland Security’s August 2007 announcement that it will continue to be expanded, indicates that Plaintiffs’ speculation that the Program might theoretically be discontinued is well off the mark. In any case, it does not represent a “clear statement of intent by Congress,” which is necessary for implied preemption to occur. Gade, 505 U.S. at 111-12. Moreover, if the E-Verify Program ever did cease to exist, then those subsections of Ordinance 1722 requiring enrollment in the E-Verify Program would cease to operate as a practical matter because employers obviously cannot participate in a non-existent program. See, e.g., EEOC v. Commercial Office Products Co., 286 U.S. 107, 120 (1988) (statutes should not be construed to lead to futile results). The remainder of Ordinance 1722 would continue to operate, including the communication between the City and the federal government about any alien’s work authorization status, because the federal government will continue to be obliged to answer any state or local inquiry about any alien’s status, under 8 U.S.C. § 1373(c). In any event, Plaintiffs’ speculation about the future of the E-Verify Program is in no way indicative of a clear and manifest congressional intent to preempt.
15

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 24 of 52
In another ill-fated attempt to find a conflict between Ordinance 1722 and the E-Verify Program, Plaintiffs suggest in a footnote that Congress “refused” to give state and local governments any role in the E-Verify Program. They base this claim not on any provision of federal law or regulation but on comments by two U.S. Representatives in 2003. Pl. Amd. Resp. Memo. 14-15, n.11. There is no such provision denying local government access to the Program anywhere in federal law. Indeed, the City of Valley Park has been a registered user of the E-Verify Program since March 8, 2007. See DHS Basic Pilot Confirmation, Attached as Exhibit B. Plaintiffs are evidently also unaware that there are two systems that provide internet-based access to the same federal databases: the E-Verify Program and the Systematic Alien Verification for Entitlements (SAVE) Program. The SAVE Program was developed specifically for state and local governments seeking to verify the immigration status of aliens. There are at least 205 participating government agencies across the country that are currently using the SAVE program to verify individuals’ immigration status. DHS Privacy Impact Statement for SAVE, Def. Memo. Resp. to Mtn. for Pre. Inj., Exh. C, at 18. The City of Valley Park is also a user of the SAVE Program. See SAVE Memorandum of Understanding, Attached as Exhibit C.
Finally, Plaintiffs contend that Ordinance 1722 is conflict-preempted because the regulations governing the E-Verify Program allow an employee eight days to contest a tentative non-confirmation. Pl. Amd. Resp. Memo. 10-11. Here, Plaintiffs are correct in their reading of the relevant federal regulations. However, they are incorrect in their reading of Ordinance 1722. When the Department of Homeland Security (DHS) issues a “tentative non-confirmation” response to an inquiry through the E-Verify Program, the employee whose work authorization is at issue has eight days to contest that finding, and the federal government has ten days to respond. 62 C.F.R. 48309(IV)(B)(2)(a). Ordinance 1722 was carefully drafted to allow for this process to occur before the City would take any action. The receipt of a “tentative nonconfirmation” response from DHS triggers Section 5.C, which was drafted specifically to accommodate this federal process when DHS is only able to offer tentative answer: “If the federal government notifies the City of Valley Park that it is unable to verify whether an individual is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the
16

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 25 of 52
federal government concerning the status of the individual is received.” Ordinance 1722 § 5.C. (emphasis added). A tentative non-confirmation, which currently occurs in under eight percent of E-Verify cases, is by definition tentative. See DHS Statement to Congress, Def. Memo. Supp. Mtn. for Summ. J., Exhibit C. DHS has not verified an alien’s work authorization status until it issues a final non-confirmation of work authorization or a final confirmation of work authorization. Until that point, the City “shall take no further action on the complaint.” Ordinance 1722 § 5.C. Only after a final answer is received from DHS concerning an alien’s work authorization (in which the alien is found to be unauthorized) does the City notify the business entity of a violation under Section 4.B(4) and start the three-day clock running. Ordinance 1722 § 4.B(4). Only at that point is the business entity under an obligation to correct a violation under the terms of Section 5.B. Id.
Once DHS has issued a final verification that an alien employee is unauthorized, the business entity in question is not only obligated under Ordinance 1722 to take action, it is also obligated under federal law. “Given that IRCA makes it illegal to hire undocumented aliens … and mandates criminal penalties for those who knowingly employ such workers … termination is effectively required once an employer learns of an employee’s undocumented status.” Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 236 (2d Cir. 2006).
In summary, Plaintiffs’ argument (in addition to being based on a misreading of Ordinance 1722) falls well short of establishing that Ordinance 1722 “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363. On the contrary, Ordinance 1722 advances the objective of IRCA—namely to “to stop payments of wages to unauthorized workers, which act as a ‘magnet … attract[ing] aliens here illegally,’ and to prevent those workers from taking jobs that would otherwise go to citizens.” Incalza v. Fendi, 479 F.3d 1005, 1011 (9th Cir. 2007). There is no actual conflict with federal law and Ordinance 1722 does not stand as an obstacle to the execution of the federal verification system. Therefore, it is not preempted.
H. Re-Verification of Employees is Permitted Under Federal Law
17

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 26 of 52
In their memorandum, Plaintiffs make the rather astonishing claim that “Congress intend[ed] that employers not seek to reverify workers once they have satisfied the initial verification requirements set forth in IRCA.” Pl. Amd. Resp. Memo. 12. For this novel assertion, Plaintiffs offer only this statement from the same committee report that they repeatedly distort: “The Committee does not intend to impose a continuing verification obligation on employers.” H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. 5649, 5661; see Pl. Amd. Resp. Memo. 12. Once again, Plaintiffs ignore an important word in the sentence—the word “continuing.” A continuing obligation is one that is present continuously, every day that the employee works for the employer. The absence of a continuing obligation cannot be logically or grammatically equated with a flat prohibition on any re-verification of an employee’s authorization to work lawfully in the United States.
Plaintiffs would do well to acquaint themselves with the terms of federal immigration law and regulations, rather than simply fishing in a committee report for stray quotes. One need not look in a committee report to see if re-verification is permitted. The answer is found in the text of federal law and regulations. In fact, federal immigration law not only allows re-verification of an employee’s work authorization, it requires it in certain situations.
Under 8 C.F.R. § 274a.2(b)(1)(vii), “[r]everification on the Form I-9 must occur not later than the date work authorization expires.” Form I-9 Instructions (Rev. 5/31/05Y) for Section 3 clearly state for the benefit of the Plaintiffs and all other employers that “[e]mployers must reverify employment eligibility of their employees on or before the expiration date recorded in Section 1 [of the Form I-9]. The Special Counsel for Immigration-Related Unfair Employment Practices confirmed as long ago as 1994 that “(INS) regulations and procedures permit reverification prior to the expiration date of the employee’s work authorization” and thus reverification does not constitute document abuse. Fragomen & Bell, Immigration Employment Compliance Handbook, §10.19 (2006) (reproducing April 18, 1994, opinion letter from Special Counsel William Ho-Gonzalez). In 1996, Congress amended Section 1324b(a)(6) to clarify that requiring reverification could not be treated as an unfair immigration-related employment practice unless, upon the filing of a charge, and after notice and hearing, it has been proven that the reverification request
18

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 27 of 52
was made with discriminatory intent. P.L. 104-208 §421(IIRAIRA)(1996). “The 1996 amendment provides that an employer’s request for more documents is not unlawful unless made for the purpose or with the intent of discriminating against an individual on the basis of national origin or citizenship status.” Fragomen & Bell, supra, at §3.5.
In addition to these long-standing provisions of federal regulations, recent amendments to federal regulations also allow re-verification of an employee’s work authorization. Whenever an employer receives information from the Department of Homeland Security indicating that an employee may not be authorized to work in the United States, the employer is expected to re-verify the employee’s work authorization at least once, and possibly twice: “If the employer is unable to verify with the Department of Homeland Security within ninety days of receiving the written notice that the immigration status document or employment authorization document is assigned to the employee, the employer must again verify the employee's employment authorization and identity within an additional 3 days… .” 8 CFR 274a.1(l)(2)(iii)(B) The employer may bring himself into the “safe harbor” under the regulations by reverifying the work authorization of the employee concerned. See 72 Fed. Regist. 45611 (Aug. 15, 2007).
I. Plaintiffs’ Assertions Regarding Casual Domestic Workers and Independent Contractors are Incorrect
Plaintiffs attempt to fabricate a similar inconsistency between Ordinance 1722 and federal law with respect to independent contractors and casual domestic workers. Specifically, Plaintiffs contend that these categories of individuals are not subject to verification of work authorization under federal law, but are subject to verification under Ordinance 1722. Pl. Amd. Resp. Memo. 10. Plaintiffs do not explain how they reach this conclusion. See id. Upon closer inspection, it collapses completely, because they are incorrect about several aspects of federal immigration law, as well as the scope of Ordinance 1722.
Under federal law, it is illegal for a person or other entity to hire an individual for employment in the United States without complying with certain universal employment eligibility verification
19

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 28 of 52
requirements involving the filling out of I-9 Forms. 8 U.S.C. 1324a(a)(1)(B)(i).4 Hire is defined as “the actual commencement of employment of an employee for wages or other remuneration.” 8 C.F.R. §274a.1(c). There is a narrow exception for casual domestic workers under 8 C.F.R. § 274a.1(h). What Plaintiffs fail to explain is that this regulatory exception only extends to “casual employment by individuals” where the workers “provide domestic service in a private home that is sporadic, irregular or intermittent.” 8 C.F.R. § 274a.1(h) (emphasis added). The leading case construing 8 C.F.R. §274a.1(h) is Jenkins v. Immigration and Naturalization Services, 108 F.3d 195 (9th Cir. 1997) . In Jenkins, the Ninth Circuit upheld civil penalties imposed on a private individual who picked up day laborers at a day labor site in San Rafael, California. The Court held that the plain statutory language of 8 U.S.C. §1324(a)(1)(B) extended the requirement for compliance with the Form I-9 process to all employers who “hire for employment in the United States.” Id. at 200. The Ninth Circuit construed “domestic” employment exemption restrictively. The Court determined that “domestic” work exemption from I-9 requirements included solely household tasks that would normally be completed by a resident of the household, and expressly included “cleanup, moving or gardening” work. Id at 197. In addition, “domestic” work only referred to solely household tasks completed only within one’s private abode. Id.
What Plaintiffs fail to recognize is that Ordinance 1722 extends only to employment relationships involving a “business entity.” Ordinance 1722 states that “[i]t is unlawful for any business entity to knowingly recruit, hire for employment….” Ordinance 1722, § 4.A (emphasis added). “Business entity” is limited in Section 3 of the ordinance to business entities that require a business license, unless expressly exempted by law. “The term business entity shall include any business entity that possesses a business license, any business entity that is exempt by law from obtaining such a business license, and any business entity that is operating unlawfully without such a business license.” Ordinance 1722 § 3.A(2). Therefore,
4 An important distinction must be made at the outset. These regulatory requirements concern the process of filling out I-9 Forms, which was instituted by IRCA. As already noted in Defendant’s Memorandum in Support of Motion for Summary Judgment, this type of I-9 Form documentary verification by the employer has nothing to do with whose employment may or may not be verified electronically by the federal government itself through E-Verify. This form of verification by employers scrutinizing documents is subject to errors and flaws that do not occur when the federal government itself verifies an individual’s work authorization using federal electronic databases.
20

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 29 of 52
any business entity under Ordinance 1722 could not fit within the casual domestic worker exception to verification under federal law. Because the casual domestic worker exception is defined so narrowly by federal regulation and federal case law to include only employment by individuals for work inside one’s private abode, there is no overlap with Ordinance 1722, which only concerns employment by business entities. Stated differently, the casual domestic worker exception, by definition, does not extend to business entities covered by Ordinance 1722. There is no possible conflict with federal law. The ordinance further states, “The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration….” Ordinance 1722 § 6.A.5
Plaintiffs’ argument regarding independent contractors is also unexplained in Plaintiffs’ Memorandum. Pl. Amd. Resp. Memo. 10. They make no reference to the controlling provisions of federal law. Had they consulted these provisions, the error in their argument would have become apparent. While it is true that employers have no duty under federal law to undertake the Form I-9 process to determine the employment eligibility of bona fide independent contractors, the IRCA provisions of federal law expressly prohibit any employer from using “a contract, subcontract, or exchange … to obtain the labor of an alien in the United States knowing that the alien is an unauthorized alien….” 8 U.S.C. § 1324a(a)(4). If an employer is made aware that such an alien is unauthorized, then federal law effectively transforms that business-independent contractor relationship to an employer-employee relationship for the purposes of IRCA. The business entity that engages in such prohibited contractual activity “shall be considered to have hired the alien for employment in the United States in violation of paragraph 1(A).” Id. Further, it is a separate and additional violation of federal law for either of the Plaintiffs to continue to “employ” an independent contractor once the person or entity has learned that the person “is (or has become) an unauthorized alien….” 8 U.S.C. § 1324a(a)(2). Business entities are not required to follow the Form I-9
5 In any event, even if this argument had any merit, Plaintiffs do not possess standing to assert it. Plaintiffs’ complaint states that Windover Inc. and Jacqueline Gray are, respectively, a business entity and the entity’s owner. Windover Inc. cannot, by definition, recruit or hire an exempt domestic casual worker because it is not a private individual with a private abode. Similarly, Ms. Gray cannot recruit or hire domestic casual labor in the capacity under which she filed her complaint, as a business owner. If Gray were to hire domestic casual labor to babysit or
21

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 30 of 52
process with a bona fide independent contractor under 8 U.S.C. § 1324a(b), but once they become aware the such contractor is an unauthorized alien, that relationship is treated as an employer-employee relationship (subject to verification), and they do have a statutory duty to terminate the services of such a contractor once they become aware the contractor is an unauthorized alien.
There is one additional problem with Plaintiffs’ arguments concerning verification of casual domestic workers and independent contractors. There is absolutely no restriction anywhere in federal law or federal regulations on a municipality’s verification of an alien’s immigration status according to 8 U.S.C. § 1373(c). That provision of federal law requires the federal government to answer any such request from a local government, concerning any alien:
(c) Obligation to respond to inquiries The Immigration and Naturalization Service shall respond to an inquiry by a Federal, State, or local government agency, seeking to verify or ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency for any purpose authorized by law, by providing the requested verification or status information. 8 U.S.C. § 1373(c). Under Ordinance 1722, when a complaint is filed, it is the City that does the verifying, not the employer. The two situations that Plaintiffs identify concern employers who need not verify independent contractors and casual domestic workers. Those provisions in no way restrict a municipality’s verify of immigration status pursuant to 8 U.S.C. § 1373(c).
J. Preemption Principles Do Not Require a Locality to Replicate an Office Within the U.S. Department of Justice
Plaintiffs illustrate just how expansive their concept of implied conflict preemption is when they claim that Ordinance 1722 is preempted because it does not establish an office to receive complaints of racial discrimination by employers. Pl. Amd. Resp. Memo. 10. Plaintiffs’ novel theory appears to be this: a state or locality is conflict preempted when it takes any action as permitted under 8 U.S.C. § 1324a(h)(2) unless it also establishes an office to investigate discriminatory employment practices. Plaintiffs theory does not meet the standard of conflict preemption in immigration—that the state or local action “stands as
wash up the dishes after a dinner party in her home, she would not be doing so as a business entity, and would not in
22

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 31 of 52
an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” De Canas, 424 U.S. at 363. There is no conflict preemption standard supporting Plaintiffs’ theory.
Federal law prohibits any employer from “discriminat[ing] against any individual (other than an unauthorized alien…) with respect to the hiring, or recruitment or referral for a fee, of the individual for employment … because of the individual’s national origin.” 8 U.S.C. § 1324b(a)(1). The same section of federal immigration law created the Office of the Special Counsel for Immigration-Related Unfair Employment Practices within the Department of Justice. The sole responsibility of that office is to investigate complaints of hiring discrimination and related unfair employment practices. 8 U.S.C. §1324b(c). Any person in the United States who believes that he has been the subject of such discrimination may file a charge with the office. 8 U.S.C. § 1324b(b)(1). Any person seeking employment in the City of Valley Park who is subject to the hypothetical discrimination described by Plaintiffs may avail himself of these remedies under federal law. Those federal protections are fully in force in Valley Park. For Valley Park to duplicate those provisions on a local level would serve no purpose whatsoever. Employees in Valley Park remain protected by the all of the prohibitions against discrimination that are included in federal civil rights laws. See 8 U.S.C. § 1324b; 42 U.S.C. 2000e-2 (prohibiting discrimination based on “race, color, religion, sex, or national origin”).
Later in their memorandum, Plaintiffs put a slightly different spin on this same argument. They claim that when Congress enacted IRCA, it “carefully balanced” the imposition of criminal penalties for the employment of unauthorized aliens with federal protections against employment discrimination. Pl. Amd. Resp. Memo. 14. They then suggest that Ordinance 1722 is preempted because its enforcement provisions are not balanced by a similar set of employment discrimination provisions at the local level. Id. at 15. This argument is blind to two crucial facts. First, the existing federal statutory protections against employment discrimination provide “balance” to the enforcement of Ordinance 1722 in the same manner that they provide balance to the federal government’s enforcement of 8 U.S.C. § 1324a. Second, Ordinance 1722 provides an additional layer of anti-discrimination protection that does not exist under federal law.
any conceivable circumstance be subject to Ordinance 1722. 23

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 32 of 52
Ordinance 1722 renders invalid any “complaint which alleges a violation on the basis of national origin, ethnicity, or race.” Ordinance 1722 § 4.B(2). Like Ordinance 1722, federal immigration law allows “individuals and entities to file written, signed complaints respecting potential violations of subsection (a) or (g)(1) of [8 U.S.C. § 1324a].” 8 U.S.C. § 1324a(e)(1)(A). However, unlike Ordinance 1722, federal law does not contain an anti-discrimination provision that renders complaints invalid if they are based on national origin, ethnicity, or race. If the theoretical “balance” is any different under Ordinance 1722, it is weighted more heavily toward preventing discrimination, not toward enforcement. In any event, Plaintiffs’ balance theory finds no support in the controlling precedent of De Canas v. Bica, 424 U.S. 351, passim.
What Plaintiffs continually gloss over in their repeated attempts to find “conflict” between federal law and Ordinance 1722 is that “[t]he conflict standard of preemption is strict.” Affordable Hous. Found., Inc. v. Silva, 469 F.3d 219, 238 (2d Cir. 2006). Even if Plaintiffs could identify any slight differences between the provisions of federal law and the provisions of Ordinance 1722, such differences would not be sufficient to create implied conflict preemption. “Tension between federal and state law is not enough to establish conflict preemption. Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984).” Incalza, 479 F. 3d at 1010. A “clear demonstration of conflict … must exist before the mere existence of a federal law may be said to pre-empt state law operating in the same field.” Jones v. Rath Packing Co., 430 U.S. at 544 (Rehnquist, J., concurring in part and dissenting in part). Federal preemption cannot be based on “unwarranted speculations” about Congress’s intent. Id.
K. Plaintiffs’ Reliance on Hines v. Davidowitz to Assert Field Preemption is Misplaced Plaintiffs rely in particular on a 66-year old case that is largely irrelevant to the case at bar. Plaintiffs cite Hines v. Davidowitz, 312 U.S. 52 (1941), in which the Supreme Court found that Pennsylvania’s Alien Registration Act of 1939 was preempted by the Alien Registration Act that Congress established in 1940. Plaintiffs cite this case in support of their theory that once the federal government enters a field, all state laws are preempted because allowing them to remain in effect would disrupt the federal government’s “careful balance of policy choices.” Pl. Amd. Resp. Memo. 14. Although Plaintiffs
24

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 33 of 52
are unclear as to what type of preemption they are asserting, it appears that they are trying to formulate a field preemption argument. In any event, they fail to recognize two important limitations on the scope of the Hines precedent—limitations that were imposed by the Supreme Court itself.
First, the state law at issue in Hines was on constitutionally weak footing because the state attempted to register legal aliens. 312 U.S. at 73-74. As the Supreme Court later explained in the nowcontrolling precedent of De Canas v. Bica, 424 U.S. 351, the state statute in Hines trenched upon Congress’s authority to regulate immigration because the statute sought to “determine the conditions under which a legal entrant may remain” in the United States. Id. at 355 (emphasis added). The Supreme Court went on to distinguish Hines from the state law at issue in De Canas, which prohibited the employment of unauthorized aliens, because “the Pennsylvania statute[] in Hines … imposed burdens on aliens lawfully within the country that created conflicts with various federal laws.” Id. at 363. The ordinance at issue in case at bar does not restrict the ability of aliens lawfully present in the United States to remain either. Rather, Ordinance 1722 restricts the ability of unauthorized aliens to violate federal law by working unlawfully in the United States. In De Canas, the Court was unequivocal in its conclusion that a state is permitted to restrict the employment of unauthorized aliens:
In this case, California has sought to strengthen its economy by adopting federal standards in imposing criminal sanctions against state employers who knowingly employ aliens who have no federal right to employment within the country; even if such local regulation has some purely speculative and indirect impact on immigration, it does not thereby become a constitutionally proscribed regulation of immigration that Congress itself would be powerless to authorize or approve. 424 U.S. at 355-56 (emphasis added). Six years later, the Supreme Court would reiterate that states and localities possess the authority to discourage the employment of illegal aliens: As we recognized in De Canas v. Bica, 424 U.S. 351 (1976), the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal. In De Canas, the State’s program reflected Congress’ intention to bar from employment all aliens except those possessing a grant of permission to work in this country. Id. at 361. Plyler v. Doe, 457 U.S. 202, 225 (1982). The Supreme Court has never departed from this holding. Plaintiffs offer no response in their memorandum to these two unequivocal statements from the U.S.
25

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 34 of 52
Supreme Court. In addition, state laws that deny privileges and benefits to illegal aliens have been upheld in the wake of De Canas by inferior U.S. courts. See, e.g., Equal Access Educ. v. Merten, 305 F. Supp. 2d 585, 603-04 (E.D. Va. 2004) (upholding state policy denying university admission to illegal aliens).
The second reason that the 66-year-old decision in Hines is inapposite is because the federal alien registration statute in Hines did not explicitly reserve authority for the states and localities to act. In De Canas, the Supreme Court expressly distinguished the Hines holding in this regard and limited it accordingly:
Moreover, in neither Hines nor Nelson was there affirmative evidence, as here, that Congress sanctioned concurrent state legislation on the subject covered by the challenged state law. Furthermore, to the extent those cases were based on the predominance of federal interest in the fields of immigration and foreign affairs, there would not appear to be a similar federal interest in a situation in which the state law is fashioned to remedy local problems, and operates only on local employers, and only with respect to individuals whom the Federal Government has already declared cannot work in this country. 424 U.S. at 363 (emphasis added). In contrast to the federal law involved in Hines, with IRCA Congress expressly reserved authority for states and localities to enact “licensing and similar laws” that impose sanctions “upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). Finally, Plaintiffs fail to recognize that the Supreme Court has expressly rejected the conclusion that they attempt to extract from Hines—that field preemption has occurred. The De Canas Court considered and rejected the hypothetical possibility that the regulation of immigration by the federal government might be so comprehensive that it occupies the field and leaves not room for state action: Only a demonstration that complete ouster of state power—including state power to promulgate laws not in conflict with federal laws—was “‘the clear and manifest purpose of Congress’” would justify that conclusion…. Respondents have not made that demonstration. They fail to point out, and an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular.
26

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 35 of 52
424 U.S. at 357-358 (internal citations omitted). “Nor can such intent [to occupy the field] be derived from the scope and detail of the INA. The central concern of the INA is with the terms and conditions of admission to the country and the subsequent treatment of aliens lawfully within the country.” Id. at 359.
The passage of IRCA in 1986 did not constitute subsequent occupation of the field (even if the field is defined narrowly to cover only the employment of unauthorized aliens), because IRCA itself contains an express invitation for states and localities to enter the field. 8 U.S.C. § 1324a(h)(2). As the De Canas Court observed before IRCA, “Congress sanctioned concurrent state legislation on the subject covered by the challenged state law.” 424 U.S. at 363. The same observation applies post-IRCA. As the Second Circuit observed in 2006, in adjudicating a preemption challenge under IRCA: “Congress’s intent to preempt state law may be implied where it has designed a pervasive scheme of regulation that leaves no room for the state to supplement….” Affordable Hous. Found., Inc. v. Silva, 469 F.3d at 240 (emphasis added). The Second Circuit concluded that IRCA did not result in field preemption. Id. at 240-41. State courts have reached the same conclusion. “IRCA does not … so thoroughly occupy the field as to require a reasonable inference that Congress left no room for states to act.” Safeharbor Employer Servs. I, Inc. v. Cinto Velazquez, 860 So. 2d 984, 986 (Fl. Ct. App. 2003).
L. Implied Preemption Does Not Usually Exist in the Presence of Express Preemption One final observation is necessary on the subject of implied preemption (be it implied field preemption or implied conflict preemption): finding implied preemption in the presence of an express federal provision defining the exact scope of preemption contradicts basic rules of statutory construction. As Defendant has previously observed, this creates the problem of surplusage—in that the express preemption language becomes unnecessary if broad implied preemption is also being inferred from the same statute. The Supreme Court has recognized this problem and discouraged Article III Courts from finding implied preemption where Congress has inserted express preemptive language. “This [express preemption] language would be pure surplusage if Congress had intended to occupy the entire field… .” Wisc. Pub. Intervenor v. Mortier, 501 U.S. 597, 612-13 (1991). Plaintiffs commit precisely this error,
27

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 36 of 52
asserting various implied preemption arguments stemming from the enactment of IRCA, even though accepting such arguments would render 8 U.S.C. § 1324a(h)(2) mere surplusage.
In their Memorandum, Plaintiffs respond that it is possible to find implied preemption in the same statute that includes an express preemption clause. Pl. Amd. Resp. Memo. 9. In support of this statement, they cite the cases of Sprietsma v. Mercury Marine, 537 U.S. 51, 65 (2002), and Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000), two instances in which the Court considered an express preemption claim as well as an implied field preemption claim in the same case. Plaintiffs apparently misunderstand Defendant’s argument. Defendant does not contend that it is impossible to consider both an express preemption claim and an implied preemption claim stemming from the same federal statute. Rather Defendant points out that the Supreme Court has repeatedly cautioned against finding implied preemption in the presence of express preemption language. Doing so runs the risk of violating two fundamental canons of statutory interpretation: violating the principle that judicial interpretations must not render statutory text mere surplusage, and violating the principle of expressio unius est exclusio alterius (the expression of one thing is the exclusion of another). As the Supreme Court has explained with respect to the latter:
When Congress has considered the issue of pre-emption and has included in the enacted legislation a provision explicitly addressing that issue, and when that provision provides a “reliable indicium of congressional intent with respect to state authority,” Malone v. White Motor Corp., 435 U.S., at 505, “there is no need to infer congressional intent to pre-empt state laws from the substantive provisions” of the legislation. California Federal Savings & Loan Assn. v. Guerra, 479 U.S. 272, 282 (1987) (opinion of Marshall, J.). Such reasoning is a variant of the familiar principle of expression unius est exclusio alterius: Congress’ enactment of a provision defining the pre-emptive reach of a statute implies that matters beyond that reach are not pre-empted. Cipollone v. Liggett Group, Inc., 505 U.S. 504, 518 (1992). These interpretive canons make any claim of implied preemption particularly weak in the presence of an express congressional statement on the subject. It is quite clear that Congress in enacting IRCA sought to limit its preemptive effect, by carving out an area for continuing state action in 8 U.S.C. § 1324a(h)(2). Plaintiffs would have this Court ignore the express limitation on preemption that Congress enacted.
28

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 37 of 52
II. Plaintiffs’ Equal Protection Argument Cannot Survive Plaintiffs Equal Protection Clause challenge, as expressed in their Motion for Preliminary
Injunction, was simply a speculative assertion that Ordinance 1722 will cause employers to discriminate against Hispanic individuals when hiring new employees. Plaintiffs argue that Ordinance 1722, though facially neutral, will have an unconstitutionally discriminatory impact on such workers in the private hiring process. Pl. Mtn. for Pre. Inj., 15. In their Second Amended Complaint and in their Amended Response Memorandum, Plaintiffs belatedly recharacterize their equal protection argument by adding another theory: that a discriminatory effect will occur “by inducing City officials or Valley Park residents to file complaints ... against business entities based on their employment of Hispanics.” Pl. Amd. Resp. Memo. 17. However, this new claim is subject to the same fatal flaws that require summary judgment against Plaintiffs: (1) Plaintiffs do not have standing to raise this particular claim and (2) their theory lacks state action. These flaws are sufficient to render Plaintiffs’ Equal Protection claim invalid, even if all of Plaintiffs’ factual assertions were true.
A. Plaintiffs Lack Standing to Raise Their Equal Protection Claim At the outset, it must be reiterated that Plaintiffs are employers; they are not workers who have been denied a job. The hypothetical future hiring discrimination that they predict will occur is private discrimination against the employees of other employers. Plaintiffs do not have standing to challenge such discrimination because they, as unrelated employers, suffer no judicially cognizable injury. The injured party in such a scenario is a third party not present in this action. Establishing a judicially cognizable injury to the plaintiff is a core requirement of Article III standing. “[T]he ‘injury in fact’ test requires more
29

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 38 of 52
than an injury to a cognizable interest. It requires that the party seeking review be himself among the injured.” Sierra Club v. Morton, 405 U.S. 727, 734-735 (1972). Consequently, “the plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Warth v. Seldin, 422 U.S. 490, (1975). See Thompson v. Adams, 268 F.3d 609, 613 (8th Cir. 2001). It is a well-established general rule that “a litigant may only assert his own constitutional rights or immunities.” United States v. Raines, 362 U.S. 17, 22 (1960). Exceptions to this rule are very narrow.6
Recognizing that their standing to raise this hypothetical equal discrimination claim is fatally flawed, Plaintiffs make a last-ditch attempt to resuscitate their standing in their Amended Response Memorandum. They assert that their equal protection claim falls within the narrow exception allowing third parties to possess standing to assert the rights of others. Pl. Amd. Resp. Memo. 18-20. Tellingly, Plaintiffs neglect to state what the requirements for asserting standing as a third party are.
The elements needed to assert third party constitutional rights are (1) the litigant himself still must have suffered an “injury in fact” therefore giving him a “sufficiently concrete interest” in the outcome, (2) the litigant has a “close relationship to the third party,” and (3) there must be something hindering the third party’s ability to protect its own interests. Powers v. Ohio, 499 U.S. 400, 411 (1990). Plaintiffs fail to meet all three elements of the test.
First, Plaintiffs have not shown that they themselves would suffer actual injury as was present in Craig v. Boren, 429 U.S. 190 (1974) on which the plaintiffs rely on heavily. In Craig, the vendor suffered a “direct economic injury through the constriction of her buyer’s market.” Id. at 194. Besides the obvious distinction that Craig involved a vendor asserting the rights of vendees (whereas in this case Plaintiff is an employer attempting to assert the rights of another employer’s hypothetical future employees), there is no plausible way in which such discrimination by another employer would cause a direct injury to be suffered by Plaintiffs. Furthermore, because the plaintiffs assert only a hypothetical injury from hypothetical
6 The exceptions include an association asserting the rights of its members (with rules); a law firm asserting the rights of clients; corporate shareholders asserting corporation's rights; a physician or hospital asserting a patient’s
30

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 39 of 52
employees, a more applicable case than Craig would be Kowalski v. Tesmer, 543 U.S. 125 (2004). In that case, attorneys attempted to assert the rights of hypothetical indigent clients (their own hypothetical indigent clients, not the clients of other attorneys). The Court rejected their assertion of third-party standing.7 The Court held that establishing an “injury in fact” under Lujan was still necessary. Even in a third-party standing case, the plaintiff “must demonstrate an ‘injury in fact;’ a causal connection between the injury and the conduct of which the party complains; and that it is ‘likely’ a favorable decision will provide redress. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-561 (1992).” Kowalski, 543 U.S. at 129 n.2. It is important to note that the Court made clear that the plaintiff himself must suffer all three Constitutional requirements of standing: injury, a causal connection between the injury and the challenged conduct, and redressability.
Plaintiffs recognize that they have a problem here. In an effort to gloss over this requirement, Plaintiffs make the passing statement that they meet the injury in fact requirement “because they are subject to sanctions for violation of the Ordinance.” Pl. Amd. Resp. Memo. 18. What Plaintiffs neglect to mention is that they must demonstrate “a causal connection between the injury and the conduct of which the party complains.” Kowalski, 543 U.S. at 129 n.2. There is no causal connection whatsoever between Plaintiffs “injury” (the possibility that they themselves might be subject to a complaint) and the discriminatory conduct of another employer in refusing to hire an employee because of his ethnicity. The unequal treatment of others must in turn cause the Plaintiffs direct injury. They have not, and cannot, explain how they as an employer are injured by the discriminatory employment decision of another employer. Merely being subject to sanctions in the abstract is not enough. In McGowan v. Maryland, 366 U.S. 420, 429-430 (1960), a case that involved an employee-employer relationship, the Court found that the employees could not assert the third-party standing to assert the constitutional rights of their own employer despite the fact that the employees themselves were subject to sanctions.
rights; vendor asserting vendees rights - almost all of these have cases going both ways). 7 The Court assumed for the sake of argument that the plaintiff attorneys could establish the first requirement— injury to themselves—but found that they could not establish the second and third requirements of third-party standing. 543 U.S. at 129-34.
31

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 40 of 52
Second, Plaintiffs show no close relationship to the third party victims of hypothetical discriminatory hiring practices by other employers. To even have a chance of satisfying the third party standing requirement, Plaintiffs would have to assert a close relationship to their own hypothetical employees. However, the Supreme Court has been reluctant to recognize third party standing even when there is a direct employer-employee relationship. Id. Moreover, as the Kowalski Court clearly stated, there is a huge distinction between known third-parties and hypothetical third-parties. “[An] existing attorneyclient relationship is, of course, quite distinct from the hypothetical attorney-client relationship posited here.” Kowalski, 543 U.S. at 131 (emphasis added). As the Court explained, “The attorneys before us do not have a ‘close relationship’ with their alleged ‘clients’; indeed, they have no relationship at all.” Kowalski, 543 U.S. at 131. The same failure is present in the case at bar. Plaintiffs would not be able to establish a sufficiently close relationship to the potential employees of another employer, even if Plaintiffs could identify actual potential employees. Much less when Plaintiffs are asserting the interests of hypothetical future employees. Plaintiffs provide no case law that even comes close to indicating that they meet this requirement to establish third-party standing. All they can do is cite an irrelevant case from the civil rights era in which close companions were discriminated against because of the race of one of the companions. From the statement that “a State must not discriminate against a person because of his race or the race of his companions,” Plaintiffs extrapolate that they therefore have a sufficiently close relationship with hypothetical potential employees of another employer to satisfy the third-party standing requirements. Pl. Amd. Response Memo. 19 (quoting Adickes v. S.H. Kress and Co., 398 U.S. 144, 150-52 (1970)). Standing was not even at issue in the case they cite. See id., passim. Clearly, the Plaintiffs have not satisfied the second element required to assert third-party standing.
Third, Plaintiffs must establish that the third parties they hope to represent are hindered in their ability to protect their interests on their own. Here Plaintiffs say absolutely nothing. Plaintiffs are either unaware of this requirement or they do not wish to talk about it. It is potential employee could bring his own Equal Protection Clause challenge. Even if the would-be employee were an illegal alien, he would
32

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 41 of 52
have standing to assert his own rights under the Equal Protection Clause. See Lozano, 496 F.Supp. at 49899. In addition, the potential employee, not Plaintiffs, would have access to the Office of the Special Counsel for Immigration-Related Unfair Employment Practices within the Department of Justice. Only a person who believes that he has been the subject of such discrimination may file a charge with that office. 8 U.S.C. § 1324b(b)(1). Moreover, Plaintiffs are in no position to effectively assert the rights of that individual when such future discrimination occurs. Plaintiffs would not be witness to the discrimination, Plaintiffs would not be able to effectively argue the facts of the discrimination because they would be ignorant of the circumstances, Plaintiffs would have no relationship to the victim of the discrimination in order to establish the trust necessary to effectively represent him. Indeed, plaintiffs would probably not even be aware that such discrimination had occurred. Thus, the Plaintiffs clearly fail to meet the third requirement of third-party standing. Having failed to meet any of the three requirements, Plaintiffs’ equal protection claim must be rejected because Plaintiffs lack standing to raise it.
B. Plaintiffs’ Theory Lacks State Action Plaintiffs second basic flaw in their equal protection theory is that it lacks state action. The Fourteenth Amendment prohibits racial or ethnic discrimination by state actors, not by private individuals. U.S. CONST., Amend. XIV, Section 1. Plaintiffs’ theory of unconstitutional discrimination rests on the independent actions of private individuals. Under such circumstances, no state action exists. City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 195-96 (2003).8 In their Amended Response Memorandum, Plaintiffs attempt to explain how the requisite state action exists. However, their explanation reveals a basic misunderstanding about state action: “Plaintiffs are suing the City of Valley Park… . Plaintiffs are not suing any private businesses or private persons.
8 Plaintiffs make an unpersuasive attempt to distinguish Cuyahoga Falls, stating that because it involved a referendum by private individuals that preceded any action by city officials, that distinguishes it from the present case, where the action by city officials came first, and the racially-motivated private discrimination came second. Pl. Amd. Resp. Memo. 23-24. Plaintiffs offer a distinction without a difference. The order of events is entirely beside the point. The question is whether the discriminatory actions of private individuals can be said to be attributable to the City. The answer is no, in both Cuyahoga Falls and in the case at bar.
33

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 42 of 52
Therefore, Plaintiffs’ claim is squarely based on state action.” Pl. Amd. Resp. Memo. 20. Plaintiffs’
argument is essentially: because we are suing a city, there is state action. To be sure, Plaintiffs are suing a
city. But the problem with their argument is that in order to make a discrimination claim under the Equal
Protection Clause, Plaintiffs must demonstrate that the state actor has caused or has participated in the
unconstitutional conduct. Merely suing a city does not establish the requisite state entanglement. The
question that the court must answer is whether the allegedly unconstitutional discrimination is attributable to a state actor. Wickersham v. City of Columbia, 481 F.3d 591, 597-99 (8th Cir. 2007). In the Wickersham
case, the Eighth Circuit asked and answered this question, holding that the private organization “and the
city were knowingly and pervasively entangled in the enforcement of the challenged speech restrictions.”
Id. at 599.
Plaintiffs fail to apply relevant the “state entanglement” test of state action case law. Under Lugar
v. Edmondson Oil Co., 457 U.S. 922, 937, (1982), a court must ask whether the claimed deprivation
“resulted from the exercise of a right or privilege having its source in state authority” and whether the party
engaging in the deprivation “may be appropriately characterized as [a] state actor[].” See Lugar, 457 U.S.
at 939. See also Wickersham, 481 F.3d at 597. The second Lugar query was described in full by the
Supreme Court as follows: whether the person may characterized as a state actor “because he is a state
official, because he has acted together with or has obtained significant aid from state officials, or because
his conduct is otherwise chargeable to the state.” 457 U.S. at 937. The Supreme Court has explained the
operation of the state action requirement in such cases more fully as follows:
Our cases try to plot a line between state action subject to Fourteenth Amendment scrutiny and private conduct (however exceptionable) that is not. Nat’l College Athletic Assoc. v. Tarkanian, 488 U.S. 179, 191 (1988); Jackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974). The judicial obligation is not only to “ ‘preserv[e] an area of individual freedom by limiting the reach of federal law’ and avoi[d] the imposition of responsibility on a State for conduct it could not control,” Tarkanian, supra, at 191(quoting Lugar, supra, at 936-937), but also to assure that constitutional standards are invoked “when it can be said that the State is responsible for the specific conduct of which the plaintiff complains,” Blum v. Yaretsky, 457 U.S. 991, 1004 (1982) (emphasis in original). If the Fourteenth Amendment is not to be displaced, therefore, its ambit cannot be a simple line between States and people operating outside formally governmental organizations, and the deed of an ostensibly private organization or individual is to be treated sometimes as if a State had caused it to be performed. Thus, we say that state
34

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 43 of 52
action may be found if, though only if, there is such a “close nexus between the State and the challenged action” that seemingly private behavior “may be fairly treated as that of the State itself.” Jackson, supra, at 351.
Brentwood Academy v. Tennessee Secondary School Athletic Ass'n, 531 U.S. 288, 295 (2001) (emphasis added). Clearly, the behavior that Plaintiffs predict private individuals will engage in the future (whether they by private employers or private individuals submitting complaints) cannot “be fairly treated as that of the [City] itself. No City authority gives employers in Valley Park the right or privilege to discriminate on the basis of race, national origin, or ethnicity. Nothing in Ordinance 1722 can even be remotely characterized as authorizing or encouraging such private discrimination. Indeed, Ordinance 1722 expressly prohibits private discrimination in the filing of complaints. Ordinance 1722 § 4.B(2). Without such close and deliberate collaboration between state actors and private actors, Plaintiffs’ equal protection claim lacks the necessary component of state action.
C. Plaintiffs’ New Equal Protection Theory is Equally Flawed Plaintiffs new version of their equal protection argument suffers from the same standing and state action problems, as well as others. They speculate that Ordinance 1722 will promote private discrimination in the form of Valley Park residents submitting complaints to the City because the employers in question employ Hispanics. Pl. Amd. Resp. Memo. 17. Once again, Plaintiffs assert an Equal Protection argument that lacks both standing and state action. Indeed, the problems are worse with this claim. In addition to suffering from the same third party standing problems described above, due to the fact that this claim alleges discrimination against a hypothetical future employee, not against the Plaintiff employer, this claim suffers from additional standing problems: it is entirely speculative and causation rests upon the intervening action of unknown third parties. A speculative injury does not meet the requirements of standing. An injury in fact for the purpose of establishing Article III standing must be “actual or imminent, not ‘conjectural’ or ‘hypothetical[.]’” Lujan v. Defenders of Wildlife, 504 U.S. 555,
35

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 44 of 52
560-61 (1992). “The litigant must clearly and specifically set forth facts sufficient to satisfy these Art. III standing requirements,” not rely on speculation and conjecture to do so. Whitmore v. Arkansas, 495 U.S. 149, 155 (1990). In addition, “the 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 before the court.” Lujan, 504 U.S. at 560-61 (internal citations omitted). Plaintiffs hypothetical future injury falls short on both counts.
Plaintiffs’ assertion that Plaintiff herself will suffer such “injury” in the future is entirely based on conjecture. Plaintiffs do not allege that they are presently employing any Hispanic employees. As a result, their standing to assert this claim rests on all six events occurring in the following speculative chain of events: (1) Plaintiffs will hire an employee in the future, (2) an Hispanic employment applicant will come forward and seek the job, (3) Plaintiffs will elect to hire that applicant, (4) some resident of Valley Park will learn about the employee’s employment with Plaintiff, (5) that resident will be motivated by racial animus to file a complaint against Plaintiff under Ordinance 1722, and (6) that complaint will not be rejected outright by the City as one based on ethnicity. This chain of events is exactly the sort of speculative injury that the Supreme Court rejected in the landmark case of Lujan. Speculation cannot establish an Article III injury for standing purposes. Lyons v. City of Los Angeles, 461 U.S. 95,105-106 (1983). In addition, for this speculative injury to occur, unidentified third parties must take actions (2), (4), and (5). An unidentified Hispanic worker must come forward and seek employment with Plaintiff, and an unidentified resident of the City must file a complaint driven by racial animus. The Supreme Court has repeatedly made clear that for standing to exist, the injury may not be “‘the result [of] the independent action of some third party not before the court.’” Lujan, 504 U.S. at 560-61 (quoting Simon v. Eastern Ky. Welfare Rights Organization, 426 U.S. 26, 41-42 (1976)). Plaintiffs rely on the independent action of not one, but two, third parties not before the court.
Plaintiffs’ state action deficiency is even worse on this new claim because the City has expressly discouraged and disqualified the ethnicity-based complaints that Plaintiffs speculate may occur. Ordinance 1722 contains a blanket anti-discrimination clause: “Any complaint which alleges a violation on the basis
36

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 45 of 52
of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance 1722 § 4.B(2). This is an extraordinary provision. Even if the business entity that is the subject of the complaint is in violation of the ordinance, the City will take no action on such a complaint. In addition, City officials are not permitted to consider race, ethnicity, or national origin when they enforce Ordinance 1722. City officials may only consider race/ethnicity/origin-neutral factors when deciding whether a complaint is a valid one that warrants further investigation. Ordinance 1722 § 4.B(1). With this blanket policy rejecting such discriminatory complaints, Plaintiffs’ claim lacks the “close nexus between the State and the challenged action” which is necessary if seemingly private behavior “may be fairly treated as that of the State itself.” Jackson, 419 U.S. at 351
III. Plaintiffs’ Due Process Claim is Meritless The fundamental requirement of due process is a meaningful opportunity to be heard that is
appropriate to the circumstances. Matthews v. Eldridge, 424 U.S. 319, 333 (U.S. 1976). There is no rigid set of procedural requirements that must be satisfied. Indeed, “[t]he judicial model of an evidentiary hearing is neither required, nor even the most effective, method of decision-making in all circumstances.” Id. at 348. As long as the party subject to the revocation of a license has notice and a meaningful opportunity to be heard, due process is satisfied. Goldberg v. Kelly, 397 U.S. 254, 268-69, (1970). Plaintiffs’ Amended Response Memorandum asserts that both notice and a meaning opportunity to be heard are missing from Ordinance 1722. However Plaintiffs assertions are plainly incorrect. Their claims are facially invalid because they cannot be squared with the plain text of Ordinance 1722. Indeed, the plain text of Ordinance 1722 provides notice as well as multiple meaningful opportunities to be heard, including judicial evidentiary hearings. In so doing, it goes well beyond the minimum requirements of due process.
Plaintiffs’ claim that Ordinance 1722 fails to provide notice is nothing more than a simple assertion in one sentence, without any supporting case law or any explanation. Pl. Amd. Resp. Memo. 31. In fact, there are multiple instances of notice in Ordinance 1722. First, all business entities within the City of Valley Park are placed on notice at the time of applying for a business permit when they must sign an
37

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 46 of 52
affidavit stating that they do not knowingly utilize the services of or hire any unlawful worker. Ordinance 1722 § 4.A. Ordinance 1722 operates prospectively only, so employment contracts entered into prior to the effective date of the Ordinance cannot provide the basis for enforcement against an employer. Ordinance 1722 § 5.A. Any business entity in the City can fully immunize itself against violations of the ordinance by verifying the work authorization of its future employees through the E-Verify Program. Ordinance 1722 § 4.B(5). This safe harbor provision allows a business owner to ascertain the legal status of any employee through the chosen mechanism established by the federal government. Thus, business entities are given adequate notice of the requirements of the ordinance and are provided an administrative mechanism for ensuring and confirming that they are not violating the ordinance in the future. Second, the ordinance provides notice to the business entity after the City determines that a complaint is valid. At that point, the City notifies the business entity of the complaint and requests information concerning the employee(s) in question. At that point, the business entity can provide any information that it wishes to provide to the City. Ordinance 1722 § 4.B(3). Third, after the federal government issues a final verification regarding the employees’ work authorization, the City notifies the business of that verification. Ordinance 1722 § 4.B(4). Clearly, these three junctures of notice meet the requirements of due process.
Ordinance 1722 provides multiple meaningful opportunities to be heard, including judicial evidentiary hearings. In so doing, it goes well beyond the minimum requirements of due process. Plaintiffs’ most significant error in their Amended Response Memorandum is that they fail to recognize that, in addition to the many opportunities to be heard that occur at specific points in the enforcement process under Section 4 of Ordinance 1722,9 the judicial evidentiary hearings of Section 5.D. alone are sufficient to meet the “meaningful opportunity to be heard” requirement of due process. Section 5.D. provides as follows.
Venue for Judicial Process. Any business entity subject to a complaint and subsequent enforcement under this Ordinance, or any employee of such a business entity, may challenge the enforcement of this Ordinance with respect to such entity or individual before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right 9 These multiple opportunities to be heard are described in detail in Defendant’s Memorandum Supporting Defendant’s Motion for Summary Judgment 35-36.
38

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 47 of 52
of appeal to the St. Louis County Circuit Court. Such an entity or individual may alternatively challenge the enforcement of this Ordinance with respect to such entity or individual in any other Court of competent jurisdiction in accordance with applicable law, subject to all rights of appeal. Ordinance 1722 § 5.D. What Plaintiffs fail to recognize is that this judicial process may be utilized by a business entity or employee at any time once the enforcement mechanisms of Section 4 begin. Once a complaint is filed and the City begins determination of whether the complaint is valid, enforcement has begun (even though no suspension of a business license is possible yet), and the business entity or employee may seek an injunction before the Board of Adjustment with full panoply of procedural protections that apply in a judicial hearing. Plaintiffs erroneously assume that this process only occurs post-deprivation. Pl. Amd. Resp. Memo. 35. Plaintiffs also make the empty argument that the ordinance fails to lay out the judicial standards for reviewing a challenge. Id. at 35-36. The judicial standards in evaluating a challenge to the enforcement of Ordinance 1722 are the same standards that apply in any Missouri state court in which a challenge is made to the enforcement of a municipal ordinance. It is not necessary for an ordinance to recite such standards for the requirements of due process to be met. If it were, then virtually every ordinance of every municipality in the state of Missouri would be unconstitutional. Not surprisingly, Plaintiffs offer no case law directly on point. Finally, it must be reiterated that Ordinance 1722 provides considerably more process than is due. With respect to business licenses, due process does not require pre-deprivation hearing. A business owner need only be given an opportunity to be heard at a meaningful time and in a meaningful manner following revocation of his business license. Tanasse v. City of St. George, 1999 U.S. App. LEXIS 2389 (10th Cir., February 17, 1999). Thus, Ordinance 1722 goes well beyond the requirements of due process, offering the business entity multiple opportunities to be heard, both pre-deprivation and post-deprivation. Plaintiffs also make the claim that Ordinance 1722 fails to provide adequate guidance to business entities. Pl. Amd. Resp. Memo. 30. Here again, the answer if evident on the face of the Ordinance. The various provisions of Section 4.B provide lengthy guidance to business entities in the event that they are the subject of a complaint. In addition, the provisions of Section 5.B describe options available to a business
39

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 48 of 52
entity seeking to correct a violation; and Section 5.D. describes judicial remedies available to any business entity that wishes to challenge the enforcement of the ordinance. Plaintiffs also fail to note that current federal law already requires them to determine the immigration status of an employee. 8 U.S.C. §§ 1324a(a), 1324a(b). And Plaintiffs do have a way of determining the work authorization of prospective employees. They may scrutinize documents presented by the employee, as they are already required to do by federal law, id.; and they may utilize the E-Verify Program, along with more than 19,000 other employers across the country, to verify the work authorization of employees with the federal government over the internet. There are multiple avenues for a business to ensure that it meets the requirements of Ordinance 1722.
Plaintiffs also assert that the suspension of a license when a business entity refuses to provide identity information about an employee in question after three days constitutes a deprivation of the license without any prior due process. Plaintiffs incorrectly refer to this as an “automatic suspension procedure.” Pl. Amd. Resp. Memo. 31-32. There are two errors in Plaintiffs’ argument. First, as noted above, the full judicial process of Section 5.D. is available before any suspension occurs. A business entity may go straight to the Board of Adjustment and seek a temporary restraining order prohibiting the City from proceeding any further in acting upon the complaint. Second, assuming for the sake of argument that Section 5.D. did not exist, it is permissible for a license to be suspended when the subject of a complaint refuses to provide information to the state. This has been well established in the context of driving under the influence statutes, where a driver’s license may be suspended if the driver refuses to consent to a “breathalyzer” test. As the Supreme Court has explained:
The District Court, in holding that the Due Process Clause mandates that an opportunity for a further hearing before the Registrar precede a driver’s suspension, overstated the risk of error inherent in the statute's initial reliance on the corroborated affidavit of a law enforcement officer. The officer whose report of refusal triggers a driver’s suspension is a trained observer and investigator. He is, by reason of his training and experience, well suited for the role the statute accords him in the presuspension process.
40

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 49 of 52
Mackey v. Montrym, 443 U.S. 1 (1979). Similarly, the City officials who investigate complaints to determine if they are valid are suited to reduce the risk of error in this process. In any case, full judicial process is available if the business entity wishes to trigger the protections of Section 5.D.
IV. Ordinance 1722 Does Not Contravene Missouri Law Regarding Imprisonment and Fines Plaintiffs fail to overcome the first and most obvious problem their state law claim: the statute they
cite is simply a limit on the amount of fines and the terms of imprisonment that Missouri cities of the fourth class may impose on those who commit offenses. It is not a restriction on what conditions such cities may impose upon the retention of business permits. The text of the statute simply reads:
For all ordinance violations the board of aldermen may impose penalties not exceeding a fine of five hundred dollars and costs, or ninety days’ imprisonment, or both the fine and imprisonment. Where the city and state have a penalty for the same offense, the board shall set the same penalty by ordinance as is set by statute, except that imprisonments, when made under city ordinances, may be in the city prison or workhouse instead of the county jail. R.S.Mo. § 79.479. The limitations on penalties and offenses has no bearing upon the authority of cities of the fourth class to issue, suspend, or revoke business permits. Plaintiffs again fail to offer any case law suggesting that R.S.Mo. § 79.479 may somehow restrict the issuance and suspension of business permits. Missouri cities of the fourth class have long possessed the authority to issue business licenses to business entities in their jurisdiction, and to use that licensing authority to regulate such business entities. This authority is statutorily recognized in R.S.Mo. § 94.270: “The mayor and board of aldermen shall have power and authority to regulate and to license … merchants of all kinds, grocers, confectioners, restaurants, butchers, taverns, hotels, public boardinghouses … manufacturing and other corporations or institutions … and all other business, trades and avocations whatsoever.” R.S.Mo.§ 94.270. The power to issue such licenses necessarily includes the power to suspend, revoke, or decline to issue such licenses. Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927). The courts of Missouri continue to adhere to the fundamental principle that a city has the power to revoke a license that it has issued. Riverside-Quindaro Bend Levee Dist. v. Mo. Am. Water Co., 117 S.W.3d 140 (Mo. Ct. App. 2003). Unlawful action by a business entity is
41

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 50 of 52
a well-established basis for the revocation of a municipal business permit. The courts of Missouri have accordingly recognized a city’s “power to suspend or revoke licenses on final adjudication of violation of city ordinances.” State ex rel. Jimmy's Western Bar-B-Q, Inc. v. Independence, 1975 Mo. App. LEXIS 1800 (Mo. Ct. App. 1975). Thus Valley Park is well within its authority under state law.
Plaintiffs also fail to address the fact that a Missouri city may act within it police powers to protect the general health, safety, or welfare of the public. Businesses may be “reasonably regulated in the interest of the public welfare” by a city using its police powers. McLellan v. Kansas City, 379 S.W.2d 500, 504 (Mo. 1964) Conditions imposed on licensing are also a manifestation of the police powers of a Missouri city. Horton v. Clark, 316 Mo. 770, 781 (Mo. 1927). “[I]n the exercise of its police power, the city could regulate the conduct of the business here involved and could employ licensing as a means for such regulation.” McLellan v. Kansas City, 379 S.W.2d at 505. An ordinance is presumed to be a valid exercise of the police power and the party challenging the ordinance has the burden of showing that it is unreasonable, see Miller v. City of Town & Country, 62 SW3d 431, 437 (Mo.App. E.D. 2001), citing Bibb v. Navajo Freight Lines, 359 U.S. 520 (1959); St. Louis v. Liberman, 547 S.W.2d 452, 457 (Mo. 1977); McClellan v. Kansas City, 379 S.W.2d at 504-05. Plainly, protecting the jobs of U.S. citizens and authorized alien workers against loss to unauthorized aliens, and protecting their wages against depression resulting from the presence of illegal labor are measures that serve the welfare of the public.
Plaintiffs contend that any doubt about the City’s power under state law should be resolved against the City. However, if reasonable minds differ as to whether a particular ordinance bears a substantial relationship to the protection of the general health, safety, or welfare of the public, then the issue must be decided in favor of the ordinance. Lewis v. City of University City, 2004 Mo .App. Lexis 1119. Conditioning the retention of a business permit upon compliance with federal immigration laws governing the employment of unauthorized aliens serves the welfare of legal workers in Valley Park and the interest of all Valley Park residents in preserving the rule of law.
42

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 51 of 52
CONCLUSION For all of the reasons presented above, and because Plaintiffs have not alleged any facts that would cure the defects in Plaintiffs’ legal arguments, Defendant respectfully requests that this Court grant summary judgment in favor of Defendant, declaring that Ordinance No. 1722 is constitutional and consistent with Missouri law, and denying the injunctive relief sought by Plaintiffs.
Respectfully submitted by /s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu
/s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
/s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org
Attorneys for Defendant
43

Case 4:07-cv-00881-ERW Document 101-1 Filed 09/27/2007 Page 52 of 52
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 27th day of September, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH
44

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 1 of 1

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 1 of 7

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 2 of 7

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 3 of 7

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 4 of 7

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 5 of 7

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 6 of 7

Case 4:07-cv-00881-ERW Document 101 Filed 09/27/2007 Page 7 of 7

 
 Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 1 of 23

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION

WINDHOVER, INC. AND JACQUELINE GRAY,
Plaintiffs, v.
CITY OF VALLEY PARK, MISSOURI, Defendant.

) ) ) ) Cause No. 07-cv-881 ERW ) ) ) ) ) )

PLAINTIFFS’ SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Pending before this Court are: (1) the Defendant City of Valley Park’s (the “City”) omnibus motion for summary judgment on Plaintiffs’ preemption claims, equal protection claim, due process claim, state law claim and preclusion claim;1 and (2) Plaintiffs’ cross-motion for summary judgment based on issue preclusion. On October 5, 2007, the Court granted Plaintiffs’ Motion for a Continuance Pursuant to Rule 56(f), directed the parties to complete fact-discovery no later than October 22, 2007, and provided that any supplemental briefs on the pending motions for summary judgment are to be filed by October 26, 2007. Fact-discovery has now largely been completed,2 and Plaintiffs respectfully submit this Supplemental Memorandum.

1 The only claim not challenged in the City’s Motion for Summary Judgment is Plaintiffs’ claim under the Missouri Sunshine Law. 2 The October 19, 2007 deposition of Alderman Randy Helton was partially taken but was continued because Mr. Helton forgot his eyeglasses and was unable to read the exhibits. To accommodate Mr. Helton’s work schedule, the completion of his deposition has been scheduled for the evening of November 2, 2007. Plaintiffs anticipate that Mr. Helton’s testimony will be consistent with the testimony of the other aldermen and will not require any additional submissions to the Court. Plaintiffs reserve the right, however, to seek leave to bring Mr. Helton’s additional deposition testimony to the Court’s attention if it bears uniquely on the pending motions for summary judgment. Further, on October 12, 2007, after it became clear that the aldermen would not be able, or would not be allowed, to answer

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 2 of 23
This Memorandum demonstrates the following: (1) that the City’s newly asserted interpretation of Ordinance 1722 excludes the Plaintiffs from being subject to the Ordinance and therefore raises the possibility that the remainder of this case is moot; (2) in the alternative, if Plaintiffs, who do not have and are not required to have a business license, are subject to Ordinance 1722, that further supports the conclusion that Ordinance 1722 is not a “licensing law” so as to be exempt from IRCA’s preemption clause; (3) new discovery further supports Plaintiffs’ claim of conflict-preemption; (4) new discovery further supports Plaintiffs’ equal protection claim; and (5) new discovery further supports Plaintiffs’ due process claim. I. PLAINTIFFS ARE ENTITLED TO A DECLARATION THAT THEY ARE NOT
SUBJECT TO ORDINANCE 1722. Under the City’s interpretation of Ordinance 1722 the ordinance does not apply to, and cannot place any obligations on, either of the Plaintiffs in this case. Plaintiffs brought this case in the belief that they were subject to obligations under the housing and employment ordinances that were in effect at the time of filing. The housing ordinance has, of course, been repealed; and the employment ordinance that is now before the court is Ordinance 1722, as amended by Ordinance 1736. In its Reply, the City responds to Plaintiffs’ conflict preemption argument by claiming that “Ordinance 1722 extends only to employment relationships involving a ‘business entity’…. ‘Business entity’ is limited in section 3 of the ordinance to business entities that require a business license, unless expressly exempted by law.” (Def. Reply at 20 (emphasis in original).) In addition, the City claims that the term “business entity” cannot include individuals acting in a private capacity. (Id. at 21 & n.5.)
questions regarding the enforcement and implementation of Ordinance 1722, Plaintiffs filed a motion seeking a modification of the Court’s October 5, 2007 Order to permit the Plaintiffs to take a deposition of the City under Fed. R. Civ. P. 30(b)(6) regarding the topic of the enforcement and implementation of Ordinance 1722. That motion is fully briefed and pending before the Court.
2

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 3 of 23
Under that interpretation of the Ordinance, Plaintiffs are not subject to the ordinance because they do not possess a business license and do not intend to obtain such a license. (Ex. A, Declaration of Jacqueline Gray, ¶ 3. (Therefore, they also are not required to sign an affidavit under the ordinance, see Ordinance 1722, § 4-A.) Indeed, as a landlord, Windhover, Inc. (and by extension Ms. Gray) is not required to obtain a business license, nor is it expressly exempted from obtaining a business license. (See Ex. B, Valley Park municipal code, Chapter 605: Business Licenses and Regulations.)
Accordingly, Plaintiffs seek a declaration confirming that the Ordinance does not apply to Windhover, Inc., or to Jacqueline Gray. The issuance of a declaration is appropriate in these circumstances because even though the City has now advanced an interpretation of the ordinance that excludes Plaintiffs from its scope, the City has also made other statements indicating that it plans to subject Plaintiffs to the ordinance. (See, e.g., Ex. C, Transcript of May 16, 2007 Motion Hearing, at 33:16-17 (“they are under an immediate obligation to file an affidavit by the City”); Def. Mem. in Supp. of MSJ at 25 (“Plaintiffs, as employers, would suffer injury if their claims were valid”); Def. Stmt. of Uncontroverted Facts, Docket No. 55 (“Plaintiff Windhover, Inc. . . . is subject to Ordinance 1722.”). In addition, in the absence of a declaration by this Court, the City could re-interpret the ordinance to again subject Plaintiffs to imminent injury. On the other hand, if the court declares that Plaintiffs are not subject to the ordinance, the remainder of the issues in this case would be moot. II. IF ORDINANCE 1722 DOES APPLY TO PLAINTIFFS, THAT REINFORCES
PLAINTIFFS’ PREEMPTION CLAIMS. If the City backs away from its interpretation of Ordinance 1722 as stated in its Reply, or if the Court finds that interpretation unsustainable, Plaintiffs’ express and conflict preemption arguments will be further strengthened.
3

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 4 of 23
As Plaintiffs have already explained, Ordinance 1722 cannot reasonably be considered a “licensing law” (or similar to a licensing law), and therefore it is expressly preempted under 8 U.S.C. § 1324a(h)(2). (See generally Opp. at 7-9.) Indeed, even after many amendments, Ordinance 1722 does not purport to be a licensing law (or similar to a licensing law) on its face. Its title and its extensive “findings and declaration of purpose” make no reference to licensing or licenses. It does not require or provide standards for the licensing of any particular business activity (other Valley Park ordinances do that). It refers to no other licensing provisions and it has not been codified within the City’s licensing provisions. Its goal is clearly to set forth a general prohibition on the employment of undocumented workers, not to impose particular conditions as part of specific licensing or “fitness to do business” requirements. On those grounds alone, and as explained in Plaintiffs’ prior submissions, it is plain that the ordinance is preempted under § 1324a(h)(2).
If entities such as Plaintiffs, which neither possess a license, plan to apply for a license, or are required to obtain a license, are subject to Ordinance 1722, then it is even clearer that the ordinance cannot be considered a “licensing or similar law.” In those circumstances, the ordinance’s reach is universal and its prohibitions are not even remotely connected to licenses.3
Moreover, if Plaintiff Gray is subject to the ordinance’s prohibitions then, contrary to Defendant’s arguments, even under the City’s reading of the federal law, there is plainly a
3 Not only would the prohibitions of Ordinance 1722 apply to businesses and individuals who were not subject to any licensing requirement, but non-licensing penalties triggered by a violation of those prohibitions could also apply to such entities. In testimony regarding the construction and application of the earlier landlord ordinance, the City Attorney previously explained that in the absence of an applicable penalty provision, entities that violate a prohibition in the municipal code are typically subject to a general penalty provision, which could provide penalties up to $500 and/or imprisonment for 90 days. (See Ex. D, Transcript of March 1, 2007 Court Proceedings at 77, 65-68.) If Ordinance 1722’s prohibition on the employment of unauthorized aliens can be enforced using such penalties – a question that is still unresolved in the current record – then the ordinance is expressly preempted under 8 U.S.C. § 1324a(h)(2) for that reason as well.
4

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 5 of 23
conflict between federal law’s exception for domestic workers and the ordinance’s application to all situations where one person “works” for another. (See Opp. at 10; cf. Def. Reply at 20.) III. DISCOVERY REINFORCES PLAINTIFFS’ CLAIM OF CONFLICT-
PREEMPTION. Plaintiffs have previously noted that federal law provides certain carefully considered and limited opportunities for state or local governments to participate in immigration-related activities and that the City’s immigration scheme does not fall within any of those limited areas. (Opp. at 16-17.) In particular, we noted the lack of any Congressional creation of a system for local authorities to verify work authorization status of workers employed by businesses within their municipalities. (Id.) The City has failed to produce any evidence that such a system exists or is available to the City. Defendant has instead produced documents indicating that the City has enrolled in the Systematic Alien Verification for Entitlements (SAVE) system, and that it has obtained a username for the Basic Pilot (now e-Verify) system. Neither system can provide determinations of work authorization status as envisioned under § 5-E of the ordinance. Using SAVE to try to determine the work authorization status of workers in Valley Park would violate the City’s Memorandum of Understanding (“MOU”) with the federal government. According to that document, Valley Park is participating in the SAVE system “for the purpose of verifying the immigration status of alien applicants for commercial licenses, sewer lateral program assistance and other licenses and/or benefits issued by [Valley Park].” (Ex. CC, Plfs’ Dep. Ex. 21, emphases added.) Accordingly, the MOU requires the City to “obtain a written release from each applicant … authorizing the release of DHS-CIS information”; and the City certified that it “fully understands that this MOU does not permit it to use SAVE for the purpose of complying, or assisting any person or entity to comply, with the employment eligibility
5

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 6 of 23
verification requirements of … 8 U.S.C. section 1324a.” (Id.) Because the ordinance calls on the City not to verify the immigration status of alien applicants for licenses, but rather to determine the work authorization status of non-applicant workers where complaints have been made against their employers, any attempt to use SAVE to enforce Ordinance 1722 would violate the MOU that the City has entered into.
Similarly, the City cannot use the Basic Pilot system to enforce the Ordinance. Although the City apparently has a username for the Basic Pilot interface, it has not yet signed the MOU that the federal government requires of all program participants. In any event, in law and in practice Basic Pilot participants may only use the program to verify their own employees, not the employees of other entities. See Illegal Immigrant Reform and Immigrant Responsibility Act (“IIRIRA”), § 402(c)(2)(A), Pub. L. No. 104-28, Div. C (Sept. 30, 1996), codified as amended at 8 U.S.C. § 1324a note (an entity’s election to participate in Basic Pilot applies to its hiring); Ex. E at 4 ¶ 12 (sample Basic Pilot MOU providing that participant “agrees that it will use the information it receives from the SSA or [DHS] pursuant to the Basic Pilot and this MOU only to confirm the employment eligibility of newly-hired employees after completion of the Form I-9”); ¶ 8 (“should the Employer use the Basic Pilot procedures for any purpose other than as authorized by this MOU, the Employer may be subject to appropriate legal action and the immediate termination of its access”); ¶ 13 ( “any person who obtains [certain Basic Pilot information] under false pretenses or uses it for any purpose other than as provided for in this MOU may be subject to criminal penalties”).4 Further, while Ordinance 1722 requires the City to share the results of any federal verification with the relevant business entity, the Basic Pilot
4 These and other provisions also confirm that employers cannot use the Basic Pilot system to reverify employees, as Ordinance 1722 requires in some circumstances. Compare Ordinance 1722 §§ 5(B)(2) & 4(B)(5) with Ex. E at 4 ¶ 8 (“The Employer agrees not to use Basic Pilot procedures for reverification, or for employees hired before the date this MOU is in effect.”).
6

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 7 of 23
program prohibits such information-sharing. See id. at 4 ¶ 12 (employer shall ensure that information received through Basic Pilot “is not disseminated to any person other than employees of the Employer who need it to perform the Employer’s responsibilities under this MOU”). IV. DISCOVERY REINFORCES PLAINTIFFS’ EQUAL PROTECTION CLAIM.
Plaintiffs demonstrated in their Opposition to the City’s Motion for Summary Judgment that Plaintiffs have sufficiently alleged “state action” in connection with their equal protection claim because Plaintiffs allege that a city government has enacted an ordinance that will, and is intended to, induce employers and residents of Valley Park to engage in discriminatory conduct. (Opp. at 20-24.) The question of state action is largely a fact question because, if there is sufficient evidence to raise an inference that Ordinance 1722 was motivated by a discriminatory purpose and is intended to have a discriminatory effect, then that evidence also would give rise to an inference of state action.
Plaintiffs also demonstrated that they have “standing” to assert an equal protection claim because, as this Court has already ruled, they have Article III standing, and because: (1) they are in a better position as a prudential matter to represent Hispanic immigrants who may be discriminated against by employers and prospective employers as a result of Ordinance 1722 (Opp. at 17-18); and (2) Plaintiffs are entitled under the law to assert an equal protection claim in their own right based on being targeted because of their association with (contracting of) Hispanic workers. (Id. at 19-20.) As to prudential standing, the City has chosen not to depose or take any significant discovery of the Plaintiffs, and thus has no basis to argue that Plaintiffs are not in a better position to pursue this litigation than dispersed Hispanic immigrants who may be
7

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 8 of 23
fearful of coming forward or who may be deterred from even seeking employment in Valley Park.
As to “associational” standing, the City concedes that Plaintiffs may as a matter of law assert an equal protection claim based on discrimination against the Plaintiffs themselves because of their association with Hispanic workers. But the City asserts that the occurrence of such discrimination is “conjectural” or “hypothetical,” and therefore Plaintiffs do not have standing to assert a claim for that kind of discrimination. (Def. Reply at 35-36.) The authority the City relies on all deals with “injury-in-fact” sufficient to confer Article III standing. But this Court has already held, and the City successfully argued in resisting remand of this case to state court, that Plaintiffs have Article III standing sufficient to give rise to federal jurisdiction. The City is judicially estopped from now arguing otherwise. We do not understand the City to also be asserting that Plaintiffs lack standing to assert their conflict-preemption claim and due process claim. The City should not be permitted to pick and choose in that regard.
In any event, the discovery that the Court permitted under Rule 56(f) reinforces an inference that the enactment of Ordinance 1722 was motivated by a discriminatory purpose and will have a discriminatory effect.
A. Ordinance 1722 Was Motivated By A Discriminatory Purpose. Village of Arlington Heights v. Metropolitan Housing Dev. Corp., 429 U.S. 252 (1977), sets forth factors relevant to a determination of discriminatory intent. These factors include: the extent to which the impact of the official action “bears more heavily on one race than another;” the “historical background of the decision” including the events leading up to the action; and the legislative and administrative history, including “contemporary statements” of the decision makers. Id. at 267-68 (internal quotations and citations omitted). The evidence discussed below
8

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 9 of 23
suggests a deliberate effort by the City of Valley Park to target individuals of Mexican descent. It also reveals a process in which Ordinances were enacted or amended with limited (if any) discussion or comment, and quite possibly without review by some aldermen. Moreover, as part of that process, correspondence from an extremist hate group was presented to the aldermen to consider in conjunction with the proposed ordinances. Finally, the evidence includes contemporary statements by the Mayor indicating outright bias and discrimination. Taken as a whole, this evidence is sufficient to establish discriminatory intent.
Plaintiffs showed in their Opposition that the City’s Mayor first formed the idea of enacting an illegal-immigration ordinance after a Mexican family (who turned out to be legal immigrants, though the Mayor did not know one way or the other at the time) moved into his neighborhood. (Opp. at 24-25 and citations to the record.) The Mayor referred to his displeasure about the perceived tendency of Mexican immigrants to live together with their extended families, describing the additional relatives as “Cousin Puerto Rico and Taco whoever moving in.” (Id.) When asked why his lawyers did not want him to speak to reporters about the immigration ordinances, the Mayor responded that they were concerned that he would say words like “wetbacks” and “beaners.” (Id.) When the Mayor learned of the anti-immigrant ordinances in Hazleton, Pennsylvania, he saw that as a way to address his concerns about Mexican immigrants moving into Valley Park. (Id.)
The foregoing statements by the Mayor were initially reported in a February 28, 2007 issue of the Riverfront Times by reporter Kristen Hinman. (Ex. F, Oct. 16, 2007 Whitteaker Dep. at 114; Ex. G, Plfs’ Dep. Ex. 2.) In its briefing, the City has tried to back away from the statements of the Mayor reported in the Riverfront Times by insulting Ms. Hinman as having published a “vulgar hit piece.” (Def. Mem. in Supp. of MSJ at 27.) But as Plaintiffs pointed out
9

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 10 of 23
in their Opposition, the Mayor affirmed under oath on April 26, 2007 that nothing in Ms. Hinman’s article was falsely attributed to him: “Q: As you sit here today, do you remember anything specifically in the Riverfront Times article of February 28th, 2007 that you -- that was attributed to you that you believe was definitely false?” A: Not that I can remember.” (Opp. at 25 and Ex. K at 97.) In his October 16, 2007 deposition, given another chance under oath to repudiate the statements attributed to him in the Riverfront Times article, the Mayor expressly reaffirmed the testimony cited above from his April 26, 2007 deposition. (Ex. F, Oct. 16, 2007 Whitteaker Dep. at 127-128.)
Moreover, recent discovery has revealed that, at a March 5, 2007 meeting of the Board of Aldermen, in the wake of demands for the Mayor’s resignation that resulted from the Riverfront Times article, the Mayor made a public statement in which he apologized for his statements in the Riverfront Times article, and stated “[m]any of my comments, I thought, were off the record.” (Ex. F, Oct. 16, 2007 Whitteaker Dep. at 88-90; Ex. H, Oct. 11, 2007 Walker Dep. at 41-43; Ex. I, Oct. 17, 2007 Brust Dep. at 26-27, 33; Ex. J, Oct. 19, 2007 Carroll Dep. at 48-50; Ex. K, Plfs’ Dep. Ex. 33.) The Mayor read from a written statement that was prepared by the City Attorney. (Ex. F, Oct. 16, 2007 Whitteaker Dep. at 90.)5 In making the public apology, the Mayor did not deny making the statements attributed to him, but apologized for them, and complained only that he thought he was making the comments off the record. (Id. at 88-90.)6
5 At Mr. Whitteaker’s deposition, his counsel indicated that the City possessed the written statement of apology and would produce it promptly. (Ex. F, Oct. 16, 2007 Whitteaker Dep. at 127.) Subsequently, the City Attorney has indicated that the statement cannot be located and must have been discarded at the March 5, 2007 board meeting. (Ex. L, Oct. 23, 2007 email from E. Martin to F. Bermudez.) 6 In a March 14, 2007 article in the Riverfront Times, Ms. Hinman indicated that the Mayor had given her three separate interviews, and that “at no time did he indicate that he wished to say anything off the record.” (Ex. K, Plfs’ Dep. Ex. 33.) But it does not matter whether the Mayor believed he was making comments “off the record.” The salient point is that he made them.
10

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 11 of 23
To be sure, on “cross,” the Mayor’s own counsel tried to lead him into denying that he made the statements, but the Mayor instead wound up again confirming that he made them. With respect to the quote attributed to the Mayor: “You got one guy and his wife that settle down here, have a couple of kids, and before long, you have Cousin Puerto Rico and Taco whoever moving in[,]” the Mayor’s counsel asked him:
Q: “Did you say those words?” A: “No. That’s just ridiculous that something like that could come out in print in her article.” Q: “Why do you say it’s ridiculous that it could come out in print?” A: “I just believe that the reporter was on a mission to just have a nasty article that would maybe provoke different individuals and make a good controversial story which would, in turn, have a lot of people picking up that paper.” Q: “Opposing counsel asked you about what [was] on the record and off the record. Did you, did you say those comments to [the reporter] off the record and just think that she wouldn’t print them?” A: “Yes.” (Ex. F, Oct. 16, 2007 Whitteaker Dep. at 115.) Indeed, all of the aldermen who were asked about the Mayor’s public apology on March 5, 2007 testified that he did not deny having made the statements attributed to him, but contended only that he thought he had made them off the record. (Ex. H, Oct. 11, 2007 Walker Dep. at 41-43; Ex. I, Oct. 17, 2007 Brust Dep. at 26-27, 33; Ex. J, Oct. 19, 2007 Carroll Dep. at 48-50.) The Mayor and several of the aldermen further confirmed that one of the reasons for enacting the immigration ordinances was the reason that was publicly articulated by the City Attorney:
This ordinance arose after several landscaping and tree-trimming companies purchased single and multi-family housing in the
11

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 12 of 23
Valley Park (area) and warehoused their employees in the units -four men for a two-bedroom (apartment), four units to an (apartment) building. . . . Drinking, noise and fights in these dwellings brought demands for police services, and our municipal court had increased instances of uninsured drivers of both commercial and non-commercial vehicles with foreign drivers licenses (primarily from Mexican states) even though the drivers had admitted being here over (six) months.
(Ex. M, Plfs’ Dep. Ex. 5; Ex. F, Oct. 16, 2007 Whitteaker Dep. at 81-86; Ex. N, Oct. 8, 2007
Drake Dep. at 32-35; Ex. O, Oct. 8, 2007 White Dep. at 34-41; Ex. P, Oct. 19, 2007 Helton Dep.
at 14-17.) In his October 16, 2007 deposition, the Mayor tried to dance around the fact that the
allegedly “warehoused” employees were Hispanic immigrants. (See, e.g., Ex. F, Oct. 16, 2007
Whitteaker Dep. at 82-86.) Yet the implication is obvious. The Mayor acknowledged at least that a resident told him that the “warehoused” men were Hispanic. (Id. at 85.)7
The City contends that, even if discriminatory intent can be attributed to the Mayor, it
cannot be attributed to the aldermen. (Def. Mem. in Supp. of MSJ at 27.) Even if that were true
-- and it is not -- the City offers no reason for thus letting the City off the hook. It is not disputed that the immigration ordinances are the Mayor’s brainchild and that he is the one who pushed
them through the Board of Alderman to enactment, and has sought to keep them alive. (Ex. Q,
Plfs’ Dep. Ex. 1 at 2; Ex. J, Oct. 19, 2007 Carroll Dep. at 16-17; Ex. P, Oct. 19, 2007 Helton
Dep. at 10-11; Ex. F, Oct. 16, 2007 Whitteaker Dep. at 50-51, 60-64 (testimony regarding
correspondence with U.S. and state senators lobbying for support for the immigration
ordinances).) The highly controversial immigration ordinances were first presented to the Board
of Aldermen in the “Friday packets” -- the packets of proposed ordinances and other materials
that are distributed to the aldermen for their consideration prior to the semi-monthly Monday
7 Moreover, Ray’s Tree Service, owned by Ray Thompson, and which hires some 30 Mexicans every year through a federal program, is most assuredly the employer referenced in the statement by the City Attorney. Mr. Thompson stated in the press that he has been harassed over the past few years by residents who resent the presence of Hispanic workers. (Ex. G, Plfs’ Dep. Ex. 2 at 5.)
12

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 13 of 23
board meetings -- without discussion at prior board meetings, and with little discussion in the board meetings at which they were passed. (Ex. R, Oct. 8, 2007 Pennise Dep. at 50-51; Ex. O, Oct. 8, 2007 White Dep. at 12; Ex. J, Oct. 19, 2007 Carroll Dep. at 8; Ex. P, Oct. 19, 2007 Helton Dep. at 6-9.) In other words, for the most part, the aldermen were simply rubberstamping the Mayor’s discriminatory agenda.
That said, the aldermen themselves cannot be excused from responsibility for the immigration ordinances’ discriminatory purpose. The Board of Aldermen continued to perpetuate the ordinances even after the Mayor’s discriminatory motive became clear on February 28, 2007 and March 5, 2007, and even after becoming aware of the ordinances’ racially divisive effect in the community. On March 19, 2007, the Board voted to repeal the Landlord Ordinance (Ex. S, Plfs’ Dep. Ex. 12 at 4), but on April 2, 2007, did not have sufficient votes to override the Mayor’s veto. (Ex. T, Plfs’ Dep. Ex. 13.) It can reasonably be inferred that the illfated effort to repeal the Landlord Ordinance was a reaction, at least in part, to the Mayor’s public statements and the racial overtones of the ordinances in the community. (See, e.g., Ex. U, Oct. 11, 2007 Adams Dep. 92, 94-95.) Yet, the Board of Aldermen ultimately continued to take action to perpetuate the Employer Ordinance despite the Mayor’s public statements and the racial overtones. (See Ex. V, June 4, 2007 Ordinance amending Ordinance 1722 to add word “knowingly”; Ex. W, Ordinance 1736 making Ordinance 1722 effective immediately.)
Moreover, Alderman Drake, the one alderman who has been fairly vocal regarding the immigration ordinances, revealed at deposition that his own bias against Hispanic immigrants drove his support for the immigration ordinances. In addressing the “warehousing” of workers in the south end of town, Mr. Drake opined that illegal aliens were taking tree-trimming jobs, including jobs for Ray’s Tree Service, away from the community’s youth. (Ex. N, Oct. 8, 2007
13

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 14 of 23
Drake Dep. at 77-79.) Yet Mr. Drake had no basis whatsoever for concluding that those immigrant workers were “illegal” (id.), other than the fact that they were Hispanic. Moreover, in discussing the immigration ordinances in an email communication, Mr. Drake stated that he felt is was “imperative not to let the slumlord bully a town.” (Id. at 81; Ex. X, Plfs’ Dep. Ex. 30.) By “slumlord,” Mr. Drake was referring to, among others, Stephanie Reynolds and Florence Streeter, two of the plaintiffs in the state proceeding challenging the immigration ordinances. (Ex. N, Oct. 8, 2007 Drake Dep. at 81-82.) Mr. Drake regarded Ms. Reynolds and Ms. Streeter as “slumlords” because “they own multiple properties, and they’re feasting on the back of people that they shouldn’t be renting to.” (Id. at 82.) Mr. Drake further testified that the people Ms. Reynolds and Ms. Streeter should not be renting to were, “I’m going to have to guess illegal aliens.” (Id.) But, again, Mr. Drake articulated no basis for believing that Ms. Reynolds’ and Ms. Streeter’s tenants were illegal aliens other than the fact that Ms. Reynolds and Ms. Streeter are plaintiffs in a lawsuit challenging the immigration ordinances. (Id. at 83.) Obviously, the real basis is that at least some of Ms. Reynolds’ and Ms. Streeter’s tenants are Hispanic. (See, e.g., Ex. Y, Affidavit of Florence Streeter ¶¶ 7, 8; Plfs’ Stmt. of Material Facts, Docket No. 84-1, Ex. L.)
The evidence, therefore, that the City’s enactment of the immigration ordinances, including Ordinance 1722, was motivated by animus toward Hispanic immigrants generally, and not merely toward “illegal” immigrants, is compelling, and certainly is sufficient to defeat summary judgment. It further should be noted that the foregoing evidence has been developed from a truncated discovery schedule in which the City has not fully complied with the Plaintiffs’ production requests and in which the number and duration of depositions for this kind of case have been limited. The depositions have revealed additional persons who might be able to
14

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 15 of 23
provide relevant evidence; for example, the City Building Commissioner, who apparently will be charged with the implementation and enforcement of Ordinance 1722, or the owner of Ray’s Tree Service, who might be able to connect the dots regarding the targeting of the “warehoused” workers in Valley Park’s south end. Under ideal circumstances, the Plaintiffs might subpoena those and other third parties for depositions, and may still subpoena various undeposed third parties for trial.
Moreover, the Plaintiffs agreed to conduct dispositions in compliance with this Court’s Protective Order in Reynolds v. City of Valley Park, 06CV01487, in which this Court set certain parameters to protect the legislative privilege. Plaintiffs respect, and endeavored to respect, the legislative privilege, but that constraint nevertheless inhibited the effort to obtain discovery on whether Ordinance 1722 was motivated by racial animus. Despite that constraint, we submit that the evidence so far adduced is far more than sufficient to defeat summary judgment.8
This Court’s Protective Order did provide that, in seeking to establish discriminatory intent, Plaintiffs could “inquire as to any materials [the aldermen] had available to them before the Board of Aldermen action was taken, and when discussing the challenged ordinance.” (Prot. Order at 7.) A review of such materials here supports an inference of discriminatory intent.
In particular, the Board had available to it in the “Friday packet” that was distributed to the aldermen prior to the February 5, 2007 board meeting at which Ordinance 1722 was enacted a January 15, 2007 letter to the Mayor from the “Citizens Civil Defense.” (Ex. Z; Ex. F, Oct. 16, 2007 Whitteaker Dep. at 73-74; Ex. U, Oct. 11, 2007 Adams Dep. at 52-55; Ex. I, Oct. 17, 2007
8 Plaintiffs believe that the deponents’ counsel was in many instances overly aggressive in asserting the legislative privilege, particularly in instructing the witnesses not to answer questions relating to the implementation and enforcement of Ordinance 1722. This Court stated in its Protective Order that “[h]ow an ordinance is to be enforced is not related to the issue of motive or intent in passing an ordinance[.]” (Nov. 2, 2006 Prot. Order, Docket No. 27, at 8.) Plaintiffs have certified those questions and reserve the right to bring the matter before the Court if necessary.
15

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 16 of 23
Brust Dep. at 52-53.) The Citizens Civil Defense letter to the Mayor is a hateful diatribe that contends that the challenge to the anti-illegal alien ordinances is motivated by “Hispanic Jihadist’s, Marxists, liberals and socialists. The Hispanic advocacy groups are exceptionally racist.” (Ex. Z, at 1.) Among other things, the letter lists the Hispanic-American street gangs that purportedly reside in California and Chicago, attempting to associate those gangs with illegal immigrants. (Id. at 3-4.) The Citizens Civil Defense letter might be written off as the ranting of a marginalized hate-group, except that it was placed in the Friday packet to be available for the aldermen in considering whether to vote for Ordinance 1722.
In addition, the Friday packet for the August 7, 2006 board meeting contained an email from the City Attorney to St. Louis Mayor Slay, which was the source of the reports that the antiimmigration ordinance in Valley Park arose as a result of the “warehousing” of Hispanic workers by several landscaping and tree trimming companies in Valley Park. (Ex. AA, Plfs’ Dep. Ex. 50, at sixth page, 8/2/2006 email from EMartin772 to Mayor Slay.)
B. Ordinance 1722 Will Have A Discriminatory Effect. In their Opposition, the Plaintiffs set forth expert testimony and media reports that at least raise a fact question regarding whether, as a result of the existence of the anti-immigration ordinances, including Ordinance 1722, persons of Hispanic heritage will be deterred from living or working in Valley Park, employers will be induced to avoid hiring persons who appear to be of Hispanic heritage, and City officials and residents of Valley Park will be induced to lodge complaints under Ordinance 1722 against businesses based on the apparent Hispanic heritage of their workers. (Opp. at 27 and citations to the record.) This Court declined to defer ruling on the summary judgment motions pending expert discovery, and Plaintiffs have had only a very limited opportunity to take third-party discovery
16

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 17 of 23
that might relate the likely discriminatory effect of Ordinance 1722. Nevertheless, there is one fact that the depositions of the Mayor and the aldermen has made abundantly clear and that relates to the question of discriminatory effect: No witness could satisfactorily explain how it would be determined that a complaint lodged against an employer pursuant to Ordinance 1722 is not, even in part, based on national origin, ethnicity or race. (See, e.g., Ex. F, Oct. 16, 2007 Whitteaker Dep. at 108-110; Ex. N, Oct. 8, 2007 Drake Dep. at 61; Ex. O, Oct. 8, 2007 White Dep. at 73; Ex. U, Oct. 11, 2007 Adams Dep. at 108; Ex. I, Oct. 17, 2007 Brust Dep. at 47-49.)9 Even the belatedly supplied Declaration of Valley Park Building Commissioner Jeffery Schaub - which was most assuredly carefully prepared by the City’s counsel -- fails to explain how it will be determined that a complaint is not based on national origin, ethnicity or race. (Ex. BB, Schaub Decl. ¶ 6 and passim.) (See also discussion in Section V, supra.)
With no way to ascertain whether a complaint is based on an impermissible factor -- it can hardly be expected that discriminators will reveal their biased motives on the complaint form -- Ordinance 1722 is wide open to all sorts of mischief, including by residents who are intent on driving Hispanic workers out of Valley Park. V. DISCOVERY REINFORCES PLAINTIFFS’ DUE PROCESS CLAIM.
By moving for summary judgment of Plaintiffs’ due process claims, the City contends that no material, factual disputes exist to preclude summary judgment in its favor. Yet in support of its motion, the City made arguments grounded not in the plain language of the ordinance, but based on what could only have been extrinsic evidence. (See Docket No. 54 at 36; Docket No. 91 at 6 n.3.) The City subsequently produced a declaration addressing the City’s planned enforcement of the Ordinance (Ex. BB, Schaub Decl.) that conflicts with the plain language of
9 At least two aldermen were instructed not to answer this line of questioning under the pretext of legislative privilege. (See Ex. H, Oct. 11, 2007 Walker Dep. at 60-72; Ex. J, Oct. 19, 2007 Carroll Dep. at 67-68.)
17

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 18 of 23
the Ordinance. Thus factual disputes exist regarding Plaintiffs’ claim that Ordinance 1722 does not provide due process. More significantly, depositions of Valley Park aldermen and the Mayor reinforce Plaintiffs’ claim that the Ordinance fails to provide sufficient notice or opportunity for accused businesses to be heard before their right to do business in Valley Park is suspended. Neither the aldermen who enacted the ordinance, nor the mayor who proposed the ordinance, could address how Ordinance 1722 by its own terms could be enforced in a manner consistent with due process standards.
Depositions of the aldermen and Mayor reveal that Ordinance 1722 contains no standards that would provide notice to businesses of their obligations under the statute. First, neither the aldermen nor the Mayor could address what constitutes a valid complaint. 10 (See, e.g., Ex. N, Oct. 8, 2007 Drake Dep. at 62-66; Ex. O, Oct. 8, 2007 White Dep. at 79; Ex. U, Oct. 11, 2007 Adams Dep. at 106-08.) Alderman Brust contemplated a procedure for establishing that a complaint was valid under which “[y]ou can tell pretty well by talking to somebody what – they know what where [sic] talking about, and you can just about tell by talking to ’em whether they don’t know nothing about it or not.” (Ex. I, Oct. 17, 2007 Brust Dep. at 44.) Second, neither the aldermen nor the mayor could articulate what standards Ordinance 1722 requires for determining whether a complaint is impermissibly based on race, ethnicity or national origin.11 (See, e.g., Ex. N, Oct. 8, 2007 Drake Dep. at 66; Ex. U, Oct. 11, 2007 Adams Dep. at 108.)
Additionally, the very aldermen who enacted Ordinance 1722 were unable to state what constitutes the critical “identity information” that an employer must provide once a valid
10 Alderman Drake went so far as to imply that a complaint under the Ordinance could result in an arrest, stating that the “arresting officer . . . or the building superintendent—building code guy, building inspector” would determine whether or not a complaint is valid. (Ex. N, Oct. 8, 2007 Drake Dep. at 6061.) 11 One Alderman did propose a hypothetical scenario, but not one grounded in any standards found in the Ordinance. (See Ex. O, Oct. 8, 2007 White Dep. at 79.)
18

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 19 of 23
complaint is lodged against it. (See, e.g., Ex. U, Oct. 11, 2007 Adams Dep. at 109; Ex. F, Oct. 16, 2007 Whitteaker Dep. at 110.) The Ordinance’s failure to identify what information a business must produce to the City in order to avoid automatic, mandatory suspension of its business license renders the Ordinance invalid under the due process clause. See Lozano v. City of Hazleton, 496 F. Supp.2d 477, 536 (M.D. Pa. 2007) (finding that the Ordinance’s failure to specify the nature of the identity information renders notice inadequate).
Additionally, since filing its motion, the City has proffered evidence that establishes material, factual disputes with regard to the City’s planned enforcement of the Ordinance. Ordinance 1722 requires that the City confirm that all complaints are valid before the City undertakes an enforcement action. The plain language of the Ordinance sets forth specific, limited criteria for a valid complaint. Once these are satisfied the City must initiate an enforcement action that subjects accused business entities to the burden of turning over identity information (which the business may or may not possess, and may or may not be lawfully entitled to release.) Yet the City has proffered the declaration of its Code Enforcement Officer indicating that he intends to engage in a highly subjective, discretionary review of each complaint. (See BB, Schaub Decl. ¶¶ 8, 10.) This intrusive investigation is not contemplated by Ordinance 1722 (see Ex. W, §4B(1)-(3)), and once again subjects the accused business to an investigation without opportunity to know the source or basis of the allegations made against it. More importantly, the procedure contradicts the language of the Ordinance, which requires that the City demand “identity information” from an accused business within three days of receiving a complaint containing the following information: an allegation describing the alleged violators, the actions constituting the violations, the date and location where such actions occurred, and the signature of the complainant. (Ex. W, §4B(1).)
19

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 20 of 23
The Ordinance’s failure to define the “identity documents” that an accused business must provide to the City within three days of a demand for such information (on pain of having its license suspended) also constitutes inadequate notice. By declaration, the City now purports to define identity information, including “any and all information that the business entity possesses regarding the work authorization and identity of any person alleged to be an unlawful worker.” (Ex. BB, Schaub Decl. ¶ 11.) This definition, which is not contemplated by the plain language of the Ordinance, further supports Plaintiffs’ claim that Ordinance 1722 is not reasonably calculated to provide notice to business entities of what information might be demanded of them.12
In sum, the testimony of the elected officials who enacted Ordinance 1722 reinforces Plaintiffs’ claim that the language of the Ordinance lacks standards or guidelines for compliance and provides inadequate notice by failing to explain what businesses must do to avoid losing the right to do business in the City. Subsequently promulgated standards for enforcing the Ordinance that conflict with or otherwise extend beyond the language of the Ordinance cannot, by their very nature, support the City’s motion for summary judgment of Plaintiffs’ due process claims. At the very least those purported standards create a material, factual dispute sufficient to defeat the City’s motion, if not establish outright Plaintiffs’ claim that Ordinance 1722 fails to comport with due process. For these reasons, summary judgment against Plaintiffs’ due process claim must be denied.
12 Moreover, requiring such information places employers in danger of violating privacy laws and the confidentiality provisions of the INA.
20

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 21 of 23

CONCLUSION

For the foregoing reasons, and the reasons set forth in Plaintiffs’ Opposition, Plaintiffs

request that the Court enter an order denying the City’s Motion for Summary Judgment in its

entirety.

Dated: October 26, 2007

Respectfully submitted,

s/Daniel J. Hurtado

Daniel J. Hurtado (admitted pro hac vice) Gabriel A. Fuentes (admitted pro hac vice) Jenner & Block LLP 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com

Anthony E. Rothert, #518779 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org

Fernando Bermudez, #79964 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com

21

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 22 of 23
Omar C. Jadwat (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org Jennifer C. Chang (admitted pro hac vice) American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org Ricardo Meza (admitted pro hac vice) Jennifer Nagda (admitted pro hac vice) Mexican American Legal Defense and Educational Fund 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile rmeza@maldef.org
22

Case 4:07-cv-00881-ERW Document 115 Filed 10/26/2007 Page 23 of 23
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Defendant’s counsel of record, listed below, by operation of the Court’s ECF/CM system on October 26, 2007.
Eric M. Martin 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
Kris W. Kobach Professor of Law, UMKC School of Law 500 East 52nd Street Kansas City, MO 64110
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009
s/Daniel J. Hurtado

 
 Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 1 of 16

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

WINDHOVER, INC., and JACQUELINE GRAY,
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

) ) ) ) ) Cause No. 4:07CV00881-ERW ) ) ) ) )

DEFENDANT’S SUPPLEMENTAL MEMORANDUM ON THE PENDING MOTIONS FOR SUMMARY JUDGMENT REFLECTING DEPOSITIONS OF THE MAYOR AND BOARD OF
ALDERMEN OF VALLEY PARK, MISSOURI
On October 5, 2007, this Court issued an Order permitting Plaintiffs to depose the Mayor and
Board of Alderman by October 22, 2007. The last of those depositions occurred on October 19, 2007.1
This Court also ordered “that any supplemental briefing on the pending motions for summary judgment is
due no later than 10/26/07.” Order of October 5, 2007. The following memorandum summarizes the
factual information gained from those depositions and applies such information to the relevant issues in
1 The Defendant produced Alderman Randy Helton for Deposition a 2:55 PM on October 19, 2007. The deposition occurred at the offices of Plaintiffs’ counsel, Fernando Bermudez. During the deposition, when Mr. Helton was asked to look at documents by Plaintiffs’ counsel, he found that he had forgotten to bring his reading glasses with him to the deposition. Accordingly all present at the deposition agreed that any written material would be read aloud to Mr. Helton, as had been done at the deposition of Mayor Jeffrey Whitteaker. Helton Depo. 14-15. Mayor Depo. 76. Counsel for Defendant indicated that he would be “reasonable” in extending the time of the deposition if it proved necessary. Helton Depo. 18. Sixteen minutes into the deposition, however, Mr. Bermudez lost his temper while reading a document and declared, “This is ridiculous.” Mr. Burmudez abruptly terminated the deposition. Id. at 18-19. Plaintiffs later requested a second deposition of Mr. Helton. The City believes that it fully complied with this Court’s Order by producing the witness and being willing to do whatever was necessary to complete the deposition on October 19, 2007. Plaintiffs’ counsel unilaterally terminated the deposition, despite the fact that the deposition was occurring on the final weekday before this Court’s deadline of October 22, 2007. The City is therefore under no obligation to accommodate Plaintiffs’ demand to produce Mr. Helton (who works from 7:00 AM to 7:00 PM six days a week) a second time. However, in the interest of professional cooperation, Defense counsel have agreed to produce Mr. Helton for a second deposition on November 2, 2007. However, this Court’s order was not in any way modified by the behavior of Mr. Burmudez. Accordingly, Defendants are submitting this supplementary memorandum on October 26, 2007, as this Court ordered.
1

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 2 of 16

this case. Accordingly this memorandum is organized by subject area, rather than by deponent. Under each subject heading, the relevant statements by deponents (and any applicable case law) are presented.2 As is explained below, Plaintiffs’ depositions have only reinforced Defendant’s Motion for Summary Judgment. The depositions have not yielded any information that strengthens Plaintiffs’ position on the merits.

I.

Plaintiffs’ Equal Protection Claim Lacks Any Showing of Discriminatory Intent

As explained in Defendant’s Memorandum Supporting Defendant’s Motion for Summary

Judgment, Plaintiffs do not possess standing to raise the hypothetical claims of third parties with no

relationship to themselves, and Plaintiffs may not raise speculative injuries to themselves in order to

satisfy the requirements of standing. Assuming arguendo that Plaintiffs could somehow overcome these

barriers, thereby giving this Court jurisdiction to adjudicate Plaintiffs’ Equal Protection Clause claim,

Plaintiffs would still fall far short of demonstrating discriminatory intent on the part of the City.

(Plaintiffs would also be unable to demonstrate discriminatory impact, because Plaintiffs have

prematurely filed this lawsuit prior to any impact occurring.) Plaintiffs’ slender reed, upon which their

Equal Protection Clause argument rests, is an article from the Riverfront Times tabloid of February 28,

2007, that contained numerous misquotations and took the Mayor’s statements entirely out of context.

A. The Riverfront Times is not a Trustworthy Source of Information One widely-held opinion that came through loud and clear from the Board of Alderman is that the Riverfront Times tabloid is not a reliable source of information. According to Alderman Drake, “[T]his is a newspaper that is not a newspaper. …I’m saying the Riverfront Times carries no media integrity whatsoever…. I give it no credibility.” Drake Depo. 21-22. Not to put too fine a point on it, he
2 The depositions and supporting materials are attached to this Memorandum as follows: Exhibit A-Mayor Jeffrey Whitteaker, Exhibit B-Daniel Adams, Exhibit C-John Brust, Exhibit D-Donald Carroll, Exhibit E-Steven Drake, Exhibit F-Randy Helton, Exhibit G-Michael Pennise, Exhibit H-Edgar Walker, Exhibit I-James White, Exhibit JDeclaration of Jeffrey Schaub, Exhibit K-SAVE MOU.
2

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 3 of 16
reiterated, “I don’t view the Riverfront Times as any form of legitimate media.” Id. at 75. Alderman Brust concurred: “I don’t think that’s a very good paper.” Brust Depo. 28. “I don’t really believe everything the Riverfront Times paper says.” Id. at 30. “I’ve heard people say there’s a lot of stuff in there, Riverfront Times, that’s not true or they got it out of proportion….” Id. at 31. As Alderman Drake surmised, the Riverfront Times deliberately engaged in “sensationalism” to sell advertisements. Drake Depo. 21. Of the reporter who wrote the story on Valley Park, he said, “I mean, she’s got a job to do. She produced a story that got a lot of people to pick up her newspaper.” Id. at 22. Such “reporting” cannot serve as credible evidence of discriminatory intent in an Equal Protection Clause challenge, particularly when the person being quoted disputes the article. And it falls far short of the U.S. Supreme Court’s requirement that “proof” of discriminatory intent be shown. “We have made clear that ‘proof of racially discriminatory intent or purpose is required’ to show a violation of the Equal Protection Clause.” City of Cuyahoga Falls v. Buckeye Cmty. Hope Found., 538 U.S. 188, 194 (2003) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 265 (1977)).
B. The Mayor was Misquoted in the Riverfront Times Plaintiffs rest their allegation of discriminatory intent primarily upon the mention of two derogatory terms in the Riverfront Times article: “beaner” and “wetback.” However, as the article itself indicates, and the Mayor reiterated during his deposition, he was describing to the reporter terms that a city attorney would not want a City official to use. “[S]he had asked for examples of what might a city attorney or legal counsel recommend that you don’t say.” Mayor Depo. 70. Moreover, the reporter deceptively indicated to the Mayor that this portion of the discussion—concerning why a city attorney might be displeased about the fact that the interview was occurring or about certain terms being used— would be off the record. Mayor Depo. 118. The Mayor understood that “some of the questions that she would ask were examples that were suggestions of things that the legal counsel probably not recommend that you would ever say.” Mayor Depo. 91. It was the reporter who initiated questioning about offensive terms. “I was prompted by the interviewer, or the reporter, Kristen, on why, you know, the attorneys
3

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 4 of 16
would not want me to have correspondence with reporters and things that you would not say.” Mayor Depo. 115. Plainly, the reporter was laying a trap. She was asking the Mayor to talk about terms that should not be used, so that she could quote the Mayor as saying those terms. The reporter’s motivations became clear to the Mayor in retrospect. “I just believe that the reporter was on a mission to just have a nasty article that would maybe provoke different individuals and make a good controversial story which would, in turn, have a lot of people picking up that paper.” Mayor Depo. 115.
In another section of the article, the reporter attributed to the Mayor a statement including the phrases “Cousin Puerto Rico” and “Taco Whoever.” The Mayor denied making any such statement. Mayor Depo. 117. The depositions also revealed that in his conversations individual Aldermen shortly after the article was printed, the Mayor denied making such statements. As Alderman White stated, “He had told me that didn’t make some of those statements….” White Depo. 25. “[H]e actually cited the cousin Puerto Rico and Taco statement as being something that he never said to her and he didn’t know where that statement came from….” Id. at 26.
The reporter also insinuated that the Mayor had advocated the immigration-related ordinances in response to the arrival of an Hispanic family into a particular neighborhood. The Mayor flatly denied any such motivation, on his part, or on the part of any Alderman. “[T]hat’s ridiculous. I don’t know of any board member or myself that had such activity in their mind.” Mayor Depo. 125.
Desperate to find some indication, other than the Riverfront Times article, that the Mayor used derogatory terms, Plaintiffs erroneously seized upon the Mayor’s apology to the Board of Aldermen after the article was published. In that apology at the Board meeting of March 5, 2007, the Mayor stated that he had made a “mistake” that reflected poorly on the City. However, contrary to the assumption of Plaintiffs, the mistake that the Mayor acknowledged was not the use of derogatory terms; it was talking to the reporter in the first place. “I believe the mistakes were just talking to some of these newspaper and tabloid reporters who like to twist and turn facts and misquote words out of individuals' discussions.” Mayor Depo. 121. During that meeting of the Board of Aldermen, the Mayor denied saying some of the quotations attributed to him by the Riverfront Times. “He said in the meeting that he didn’t say that.”
4

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 5 of 16
Pennise Depo. 38. The Mayor’s public and private statements at the time that the derogatory statements in the tabloid article were either fabricated or taken out of context must be weighed heavily in any assessment of the article’s credibility.
C. The Mayor Has Never Used Derogatory Terms to Refer to Hispanic Individuals Not only did the Mayor not use derogatory terms to refer to Hispanic individuals in the interview with the Riverfront Times reporter, he never uses the terms ascribed to him. “I never use those terms in everyday language, and that question, those terms were put out as examples that the reporter had asked as what would be things that your attorney, attorneys would probably not want you to comment and talk about and that was all taken out of [context]…. [T]he reporting was just, I think, intended to make [an] article that would have a lot of controversy and draw attention so people would pick up that magazine or paper.” Mayor Depo. 114. Nor has the Mayor used any other derogatory terms in reference to Hispanic individuals, Id. 126, or a derogatory term to refer to a person of any other ethnicity or race. Id. Every Alderman who was asked during the depositions confirmed that the Mayor does not use such terms. As Alderman Drake declared, “I have not heard him say any of these things.” Drake Depo. 22, 75. Alderman White confirmed, “[I]t doesn’t sound to me like anything that I’ve ever heard the Mayor say.” White Depo. 17 “I have never ever heard the Mayor use those terms. He’s never used them in my presence.” Id. at 90. He added, “I have no reason to believe that he would [use them outside of my presence].” Id. at 90-91. Alderman Brust stated that he had never heard the Mayor use any derogatory terms either. Brust Depo. 61. Alderman Pennise stated the same thing, Pennise Depo. 70, as did Alderman Carroll. Carroll Depo. 51. These unanimous statements of people who have known and worked with the Mayor for years cannot be discounted. Nor have the Aldermen used such derogatory language themselves. As Alderman White averred, “I’ve never heard any language like that used by any member of the Board of Aldermen at any time in my presence…. [T]hat language just doesn’t fit with what I know Valley Park to be, and it certainly doesn’t fit with what I am….” White Depo. 91-92. According to Alderman Pennise, “I had never heard any of
5

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 6 of 16
the aldermen use any derogatory terms. This isn’t about, wasn’t about race, it’s just about the law.” Pennise Depo. 69-70. See also Carroll Depo. 51-52. Plaintiffs’ mischaracterization of the motivations and actions of the Mayor is a weak one, to say the least. To prove discriminatory intent on the part of the City, Plaintiffs would also have to prove that the Board of Aldermen (who passed the Ordinance unanimously) acted with the same intent. Their depositions did not indicate such intent in any way.
D. The Motivations of the City in Enacting Ordinance 1722 Were Entirely NonDiscriminatory
The Mayor and every Alderman declared unequivocally in their depositions that there was no racial or ethnic bias motivating the enactment of Ordinance 1722. The Plaintiffs’ allegations of racial bias were described by the Mayor as “totally ridiculous.” Mayor Depo. 113 “[R]ace, color … had no driving force in getting these ordinances enacted.” Id. As Alderman Drake stated, “The press has created this entire [racial] agenda. I mean, this whole thing all started with the betterment of our community. I mean, that’s all it is….” Drake Depo. 76. Alderman White reiterated, “[The Riverfront Times article] created, I believe, some racial overtones.” White Depo. 23. Alderman Adams also agreed that racial overtones were cast on the City’s actions by others. Adams Depo. 88.3
Plaintiffs’ counsel also explored whether Ordinance 1722 was enacted in response to overcrowding in accommodations purchased by landscaping and tree-trimming companies in Valley Park, referring to an article quoting City Attorney Eric Martin on the subject. Mayor Depo. 81. Searching in vain for some form of racial or ethnic bias, Plaintiffs’ counsel questioned the Mayor regarding the ethnicity of the workers housed in the overcrowded accommodations. The Mayor responded that he never saw, nor learned, nor cared to learn the race or ethnicity of the tenants. “The events … were
3 Throughout this litigation, Plaintiffs have repeatedly stated their preposterous claim that it would be impossible for a complaint under Ordinance 1722 to be based on anything other than race. However, when asked what a valid complaint under the ordinance might be based upon, the Mayor himself offered an example that the Plaintiffs had apparently not considered—a complaint arising “if somebody would openly admit to a police officer” that he was unauthorized to work in the United States. Mayor Depo. 123. As the Mayor correctly noted, voluntary admissions are frequently the first indicators of violations of the law.
6

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 7 of 16
reported to me by other citizens, so I can’t tell you if they saw blacks, whites, Hispanics, or Chinese.” Mayor Depo. 85, 119-20. “I didn’t care. Don’t know.” Mayor Depo. 84. He never had occasion to learn or inquire about their race at any time. Mayor Depo. 120.
The motivation of the Mayor in approving Ordinance 1722 was to protect jobs and wages of U.S. citizens and of aliens authorized to work in the United States. “I was quoted as saying that I've got some ideas and comparisons from another city [that was] taking such actions, but my concerns started many, many years ago. I'm a Teamster, union personnel man. … I've got 29 years in the Teamsters, and my concern to get the ordinance underway was to prevent the deterioration of the wage structure and also to protect the wage of the legal—I said ‘legal’—immigrant that needs [to be] protected within the community.” Mayor Depo. 80. Ethnicity had nothing to do with it.
Alderman White offered the same justification for his support of Ordinance 1722. “[P]rotecting the American workers is a big issue with me, and I believe that … you can’t just turn a blind eye to any illegal activity but you need to do what you can to keep your community safe, you need to do what you can to protect American workers, and I believe that when you have American workers out there competing against people who are illegally in this country and are being paid a substandard wage, it’s not good for anybody.” White Depo. 93-94. Alderman Drake was driven by a similar motivation: “[T]he youth of the community used to always get jobs, you know, in those various entities, … but it just doesn’t happen anymore. I mean, the kids don’t get those jobs, so they go to somebody else, and I guess the reason why they’re going to [illegal aliens] is because it’s a cheaper wage base….” Drake Depo. 74, 77. Alderman Carroll stated his belief that it was better to discourage employers from illegally hiring unauthorized aliens than to focus the ordinance on employees: “[T]he ordinance we have right now would be to hit the employer, as opposed to the employee, and try to cut them down from hiring illegals.” Carroll Depo. 18.
In addition to protecting the wages and jobs of U.S. citizens and authorized alien workers, several of the Aldermen offered other justifications for Ordinance 1722. Alderman Drake explained that he saw the ordinance as a means of preserving tax dollars that would wrongly be spent on infrastructure and
7

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 8 of 16
services for illegal aliens. “[T]he one thing we can do is make sure we’re spending that money correctly for the people that are paying taxes to the City of Valley Park.” Id. at 16. “It’s my [constituents’] tax dollars that are being killed by it.” Id. at 73. Alderman White explained that he was driven in part by the desire to preserve the rule of law: “[T]o me, these ordinances were a no-brainer because I believe that all Americans are—it’s one of our obligations to follow the rule of law and be law-abiding citizens.” White Depo. 16. As Alderman Brust put it, “[If they’re legal, I’m behind ’em a hundred percent, but if they’re not legal, they’re aliens not legal, they need to be legal.” Brust Depo. 58.
E. The Informational Materials Included In the Friday Packets Do Not Reflect Discriminatory Intent
In a new attempt to find some indication of racial or ethnic discrimination Plaintiffs’ counsel turned their attention during the depositions to the letters and articles included under the “Information” tab in the “Friday Packet” of materials delivered to each Alderman before Board meetings. Plaintiffs’ counsel evidently believe that such materials might reflect discriminatory motives on the part of the City. However, contrary to Plaintiffs’ implication, the depositions revealed that the Mayor does not selectively choose what goes into the Information section of the Friday Packets. In fact, every signed letter received by the Mayor about any City business is placed in the Friday Packets. There was no selection of particular letters by the Mayor or by any other City official. “I just directed the Clerk to put in … any signed letters or documents that I got, I always made sure they go into the packet so the board could read and consider any questions, or comments, or complaints….” Mayor Depo. 19, 55-56. The Mayor does not normally respond in writing to any letters sent to the City, regardless of whether the letters support or oppose City policies. As the Mayor explained, “I personally didn’t have the time to respond to each individual.” Mayor Depo. 64. “[T]here’s hundreds of letters weekly that come through that office, and generally, when someone has spoken their viewpoint, it’s pretty hard to change that, and I personally don’t have the time to reply to that many letters that were coming through.” Mayor Depo. 113.
8

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 9 of 16
In addition, news clippings mentioning the City of Valley Park or discussing issues relevant to the City were placed in the Information section of the Friday Packet, usually by the City Clerk or by the Assistant to the Mayor. Mayor Depo. 44-45; Pennise Depo. 51; Walker Depo. 28. The City Attorney also submitted material for inclusion in the Information Section of the Friday Packets. Mayor Depo. 53. Thus, any selective or ethnically-biased inclusion of materials would have to be a collusive effort of all four people.
Plaintiffs’ counsel also suggested that certain political viewpoints regarding illegal immigration were “inappropriate,” and that the Mayor should have excluded letters or articles espousing those viewpoints from the Friday Packet. Mayor Depo. 74. Plaintiffs’ counsel seemed particularly exercised about a letter to the City from a Citizens Civil Defense Special Operations organization, dated January 15, 2007. The letter mentioned particular gangs associated with illegal aliens, many of which have the word “Latin” in the gang name. Plaintiffs’ counsel seemed to be suggesting that a listing of such gang names (in the context of a discussion of the criminal impact of illegal immigration) was inappropriate. None of the Aldermen who were asked about the letter thought it was inappropriate. See Adams Depo. 48-51. More importantly, the Mayor made clear that he does not exclude any letter or article based on its political viewpoint. “[M]y personal idea of inappropriate and an alderman’s idea of inappropriate might be different, so I try not to be the judge of what’s right and wrong to go in the packet.” Mayor Depo. 74. Nor did any of the Aldermen indicate that they had ever voiced any objection to material in the Information section of the Friday Packet. See Brust Depo. 13; Adams Depo. 51.
Finally, it should be noted that several of the Aldermen indicated that they do not read the material included in the Information Section in the Friday Packets. As Aldermen Brust stated, “[A] lot of times I don’t even look at the back of the book, the information.” Brust Depo. 12. He explained, “[T]here's a lot of stuff in there, people has wrote in and stuff, and I feel if they've got a complaint, they ought to come to the board.” Brust Depo. 11. Others may read the information, but give it little or no weight in considering ordinances. “I don’t know that I used that information to make my decision or even in consideration [regarding Ordinance 1722]. It was strictly information.” Adams Depo. 57. And of
9

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 10 of 16
course, some Aldermen do read the material in the Information Section regularly. See Walker Dep. 23. Regardless, Plaintiffs’ suggestion that the existence of a letter or article in the Information Section of the Friday Packets somehow reflects the legislative intent of the Mayor or the Board of Aldermen is simply not supported by the deposition statements of the Mayor and the Aldermen.
II. Plaintiffs’ Due Process Claim Fails to Meet the Salerno Standard In due process cases, “[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 exists under which the Act would be valid.” U.S. v. Salerno, 481 U.S. 739, 745 (1987). This Court need only conclude that a “set of circumstances exists under which the [ordinance] would be valid,” to resolve the due process challenge in this case. Id. Plaintiffs’ counsel suggested during the depositions of the Mayor and the Board of Aldermen that the enforcement procedures of Ordinance 1722 were not clear, and that there might not be an opportunity for business entities to be heard. However, the depositions revealed to the contrary that business entities will receive numerous opportunities to present information to the city in hearings before the Code Enforcement Office, as well as in hearings before the Board of Adjustment. Moreover, any questions that business entities have about the operation of Ordinance 1722 will be answered directly by the City Attorney. Thus, Plaintiffs have no factual basis for claiming that the basic due process requirement of a meaningful opportunity to be heard that is appropriate to the circumstances, Matthews v. Eldridge, 424 U.S. 319, 333 (U.S. 1976), is not met. And Plaintiffs certainly have not satisfied the Salerno standard of establishing that due process would be denied in every case.
A. Ordinance 1722 Provides Multiple Opportunities to be Heard As the text of Ordinance 1722 makes clear, and the Declaration of Code Enforcement Officer Jeffrey Schaub confirms, Ordinance 1722 provides multiple opportunities for business entity that is the subject of a complaint to be heard. Schaub Declaration, ¶¶ 10-13. Not only will a representative of the particular business entity be interviewed prior to the determination of whether a complaint is valid,
10

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 11 of 16
Section 4.B(3) of Ordinance 1722 allows the business entity to produce any information it wishes in a hearing before the Code Enforcement Office, and Section 5.D. allows a business entity or its employee to obtain a pre-deprivation or post-deprivation hearing before the Board of Adjustment of Valley Park, with the right of appeal to the Saint Louis County Circuit Court.
Plaintiffs’ counsel asked many of the Aldermen whether they were familiar with the procedural minutiae of the enforcement process of Ordinance 1722. While several Aldermen were not able to recall such details, others such as Alderman Drake identified the procedural protections available to business entities. He pointed out that prior to the determination of any complaint’s validity, the Code Enforcement Officer would conduct “an interview of the business that’s in question.” Drake Depo. 63. He also noted that there would be an interview when the business entity presented information to the City within three business days of being notified of a valid complaint, referring to Section 4.B(3) of the ordinance. Id. at 65. Alderman White noted that the Code Enforcement Officer would not be attempting to make determinations of any alien’s status on his own. “I believe that ultimately, this … would be utilizing some sort of a federal database, some sort of database that would be able to corroborate whether someone was to be legally or illegally into the country.” White Depo. 82.
B. Plaintiffs Claims Regarding the Clarity of Ordinance 1722 are Unfounded Despite the considerable length and detail found in the text of Ordinance 1722, Plaintiffs have suggested that its provisions do not provide clear guidelines for business entities. However, Plaintiffs confuse the guidelines for business entities with guidelines for City officials. The behavior by business entities that is prohibited by Ordinance 1722 is quite clear—it is the precisely the same behavior that is prohibited under federal law, 8 U.S.C. § 1324a(a)(1)-(2). “It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ” an unauthorized alien. Ordinance 1722 § 4.A. What Plaintiffs point to, as an example of a provision of Ordinance 1722 that is unclear in their opinion, is what constitutes a “valid complaint” under Section 4.B(3). However, this is entirely beside the
11

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 12 of 16
point with respect to a due process challenge brought by a business entity. As long as the business entity’s obligations are clear, a due process challenge based upon vagueness cannot stand.
In any case, the depositions demonstrated that there is sufficient clarity regarding the enforcement mechanisms of Ordinance 1722. Moreover, the Code Enforcement Officer will consult the City Attorney as a matter of course in assessing the validity of all complaints. “The Building Commissioner/Code Enforcement Officer would contact City Counsel before any action was taken, to verify what was the proper procedure in this matter.” Mayor Depo. 124.
In the event that a business entity does have questions about any aspect of Ordinance 1722, those questions may be raised directly to the Board of Alderman and the City Attorney at an Aldermanic meeting. Plaintiffs were evidently unaware of this feature of small-town government in Valley Park. As the Mayor explained: “[W]e have a audience participation section that starts before every board meeting that allows anybody, … anybody that attends the board meeting can, can fill out a speaker request form and ask any question about anything in the City limits of Valley Park, and a lot of times they ask about stuff that's not Valley Park related, but we try to give the residents the correct answer or give them the right place to go get the answer.” Mayor Depo. 32. “[A]ny citizen or individual in the audience can get their questions answered about any ordinance right there at that meeting and we give them the answer, if we have it and can supply it at that current time.” Mayor Depo. 33. In addition, any resident of Valley Park may call the City Attorney directly by telephone and ask questions about any ordinance. “I have told Mr. Martin to answer all questions and comments from the citizens that he can, legally within his means.” Mayor Depo. 34.
III. Plaintiffs’ Claims Regarding the Validity of Ordinance 1722 are Unfounded Plaintiffs’ constant questions regarding the fact that the Mayor accidentally signed an earlier draft
of Ordinance 1722, as well as the correct version of Ordinance 1722 (enacted by the Board of Alderman) on February 14, 2007, still have not yielded any basis for challenging the validity of the ordinance. (Indeed, Plaintiffs’ unexplained argument is moot in any event because Ordinance 1736 restated the text
12

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 13 of 16
of Ordinance 1722 in its entirety.) The depositions of the Mayor and Aldermen confirmed what Defendant has repeatedly explained to Plaintiffs: (1) the Mayor signed two versions because he accidentally signed a draft that was on his desk before signing the actual ordinance that was enacted by the Board; (2) the version enacted by the Board was the same version that appeared in the Friday Packets before the Board meeting and the same version certified by the City Clerk as the official text of Ordinance 1722.
The Mayor explained the accidental signing of the draft version as follows: “[T]his is probably a draft that was on my desk, … and so possibly amongst the desk and the shuffling of the paperwork, [I] probably signed the draft, and then had to go back and sign the, the clear, clean document.” Mayor Depo. 98. Alderman Adams, who was Mayor of the City from 1998 to 2000, stated that a similar mix-up may have happened during his tenure as Mayor: “If I signed a ordinance in my packet and had not presented it to the City Clerk, she may have forwarded me another copy to be signed, unknowing.” Adams Depo. 35.
The Mayor also confirmed that the version included in the Friday Packet before the meeting was the same version that was enacted by the Board. There was no amending of the terms of the proposed ordinance during the meeting. Mayor Depo. 122-23. Alderman Pennise concurred. “Q. … So whatever was in your book on that Friday packet is the one that you passed? A. Yes.” Pennise Depo. 31. Thus, it is quite easy to confirm the true text of Ordinance 1722—look at the Friday Packet before the meeting. The text of that ordinance matches precisely the text of Ordinance 1722 as certified by the City Clerk.
IV. The City Has Entered Into a Memorandum of Understanding with the Federal Government to Use the SAVE Program to Determine Aliens’ Statuses. On September 12, 2007, the City entered into a Memorandum of Understanding (MOU) to use
the SAVE Program operated by the federal government to allow city and state officials to receive federal verification of aliens’ immigration statuses. See SAVE MOU, attached as Exhibit K. During the depositions, Plaintiffs resorted to their now-familiar tactic of attempting to claim that an official document is not really valid. In this instance, Plaintiffs questioned most of the Aldermen about the
13

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 14 of 16
authority of Special Counsel to the City, Kris W. Kobach, to sign the Memorandum of Understanding on behalf of the City. Several Aldermen informed Plaintiffs’ counsel that the Board had authorized Special Counsel Kobach to sign the MOU. Alderman Brust confirmed that the Board of Aldermen had approved the signing of the MOU. “Q. Was this approved by the Board of Aldermen? A. Yes.” Brust Depo. 42. Alderman Adams also recalled authorizing the MOU: “I do not recall when we authorized Kobach, but I do know that it was taken up by the board.” Adams Depo. 98. Asked again if he recalled whether the Board authorized Kobach to sign the MOU, he repeated: “My belief was yes.” Id. at 110. Although Alderman White was absent from the meeting in question, he stated, “It’s my opinion that [Kobach] is acting on behalf of the City.” White Depo. 83. However, because the authorization occurred during executive session and was therefore not reflected in the minutes of the open meeting, Plaintiffs’ counsel were evidently not satisfied with the sworn statements of the Aldermen.
In addition, many Aldermen correctly surmised that specific authorization of Special Counsel Kobach was probably not necessary in any event. As Alderman Drake noted, such an MOU was implicitly assumed by Ordinance 1722, which required the City to use SAVE or a similar process established by the federal government to obtain verification of aliens’ work authorization status: “I believe that this was probably encompassed in some of the previous legislation.” Drake Depo. 69. Alderman White concurred: “I don’t believe [authorizing Kobach to sign the MOU] would be necessary.” White Depo. 86. He explained, “[I]t seems like it’s part of the whole ordinance of having these sort of agreements in place….” Id. at 87. Alderman Adams also doubted that the authorization of the MOU by the Board during executive session was actually required. Asked whether he thought it was necessary to specifically authorize Special Counsel Kobach to sign the MOU, Alderman Adams replied, “In my opinion, not specifically.” Adams Depo. 112. In any event, such authorization was given by the Board.
V. Conclusion In summary, Plaintiffs’ depositions of the Mayor and Aldermen have not only failed to support
Plaintiffs’ claims, the depositions have actually undermined Plaintiffs’ claims in four critical respects.
14

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 15 of 16
They have made clear that (1) there was no discriminatory intent on the part of the Mayor or the Board of
Aldermen in enacting Ordinance 1722; (2) the Plaintiffs are unable to show any denial of due process,
much less meet the Salerno standard; (3) Plaintiffs’ claims about the validity of the enactment of
Ordinance 1722 are as flimsy as ever; and (4) Plaintiffs’ recent attempt to make the City’s SAVE MOU
disappear is unavailing. For all of these reasons, Defendant requests that this Court grant Defendant’s
Motion for Summary Judgment, which is now even more justified that it was when it was filed.
Respectfully submitted by
/s/ Kris W. Kobach KRIS W. KOBACH, Kansas 17280, Nebraska 23356 Professor of Law, UMKC School of Law 5100 Rockhill Road Kansas City, MO 64110 913-638-5567 816-235-2390 (FAX) kobachk@umkc.edu
/s/ Eric M. Martin ERIC M. MARTIN, FBN 19885 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
/s/ Michael Hethmon MICHAEL HETHMON, Maryland Bar General Counsel Immigration Reform Law Institute 1666 Connecticut Ave. N.W., Suite 402 Washington DC 20009 202-232-5590 202-464-3590 (FAX) mhethmon@irli.org
Attorneys for Defendant
15

Case 4:07-cv-00881-ERW Document 116 Filed 10/26/2007 Page 16 of 16
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a copy of the foregoing was served on Plaintiffs’ counsel of record, listed below, by operation of the Court’s ECF/CM system, this 26th day of September, 2007:
Fernando Bermudez Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105
Anthony E. Rothert American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108
Jenner & Block LLP Daniel J. Hurtado Gabriel A. Fuentes 330 North Wabash Avenue Chicago, IL 60611-7603
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, NY 10004
Jennifer C. Chang American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111
Ricardo Meza Jennifer Nagda Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603
/s/ Kris W. Kobach KRIS W. KOBACH
16

 
 Case 4:07-cv-00881-ERW Document 125 Filed 11/29/2007 Page 1 of 1

BILL NO. 1896

ORDINANCE NO. 1745

AN ORDINANCE AMENDING THE EFFECTIVE DATE OF ORDINANCE NO. 1736 PERTAINING TO THE ENFORCEMENT OF SECTIONS 2,3,4,5, AND 6 AND THE ACCEPTANCE OF COMPLAINTS THEREIN

WHEREAS, the enforcement o f Sections 2, 3, 4, 5, and 6 and the acceptance of complaints were stayed until December 1, 2007, in Ordinance No. 1736, and
WHEREAS, the validity of Ordinance No. 1722 and its successor, No. 1736, is currently the subject of an action for injunction and declaratory relief pending in United States District Court for the Eastern Division of Missouri; and
WHEREAS, counsel to the City has represented t o the trial judge in Windhover and Grav vs. Vallev Park, MO, e t al. that while the case is under submission he will urge the City to extend the effective date therein from December 1, 2007, t o January 1, 2008.
NOW, THEREFORE, BE I T ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Section Seven of Ordinance No. 1736 is hereby amended by deletins "December 1, 2007" from that section and, in lieu thereof, inserting " J a n u a 1, 2008."
Section Two
This Ordinance shall become effective from and after its passage anc upon approval by the Mayor.

 
 Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 1 of 57
UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

JACQUELINE GRAY, et al.,

)

)

Plaintiff(s),

)

)

vs.

)

)

CITY OF VALLEY PARK, MISSOURI,

)

)

Defendant(s).

)

Case No. 4:07CV00881 ERW

MEMORANDUM AND ORDER This matter comes before the Court on Defendant’s Motion for Summary Judgment [doc. #53], Plaintiffs’ Motion for Summary Judgment [doc. #73], and Plaintiffs’ Motion for Sanctions [doc. #117]. I. BACKGROUND On February 14, 2007, the City of Valley Park (Defendant or “the City”) enacted Ordinances No. 1721 and No. 1722. Plaintiffs’ filed suit in the Circuit Court of St. Louis County on March 14, 2007, against the Defendant, seeking to invalidate both Ordinances. Ordinance No. 1721 addressed landlords leasing to illegal immigrants (“landlord provision”) and Ordinance No. 1722 addresses the employment of illegal immigrants (“employment provision”). Defendant filed a Motion to Remove the case on May 1, 2007. Plaintiffs then filed a Motion to Remand, which was denied. Subsequently, the City has repealed Ordinance No. 1721, leaving only Ordinance No. 1722, the landlord provision, at issue in this suit. Plaintiffs’ filed a Motion for Preliminary

1

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 2 of 57
Injunction on April 19, 2007, which is currently pending.1 Plaintiffs also filed a Motion for Issuance of a Declaration that Valley Park Ordinance No. 1722 is inoperative. On November 19, 2007, this Court held a hearing on Plaintiffs’ Motion for Summary Judgment, Defendant’s Motion for Summary Judgment, and Plaintiffs’ Motion for sanctions. The Court will now address each pending motion, in turn. II. MOTION FOR ISSUANCE OF A DECLARATORY JUDGMENT
The Court will very briefly address Plaintiffs’ Motion for Issuance of a Declaratory Judgment. Plaintiffs’ filed their motion on the basis that Ordinance No. 17222 did not become effective until an appeal had been taken in the state court case of Reynolds v. City of Valley Park, 06-CC-3802, in St. Louis County Circuit Court (“Reynolds”), a case currently before the state court. In an effort to remedy any confusion,3 the Board of Alderman met at a special meeting on August 9, 2007. In that meeting the Board of Alderman passed Ordinance No. 1736, which restated the text of Ordinance No. 1722, and clarified the effective date, making the Ordinance
1The Court notes that the procedural posture of this case is a motion for preliminary injunction. However, Defendants agreed to refrain from any enforcement action of Ordinance No. 1722 until a ruling on its legality had been entered by this Court. Therefore, rather than addressing Plaintiffs’ likelihood of success on the merits, the Court allowed discovery to go forward, and now has before it fully briefed summary judgment motions. There is therefore no need to discuss the factors to be considered in ruling on a preliminary injunction. The Court therefore denies as moot Plaintiffs’ motion for a preliminary injunction.
2The Court refers, throughout the opinion, to Ordinance No. 1722, however, the Court notes that the Ordinance at issue is more accurately referred to as Ordinance No. 1736. Although Ordinance No. 1736 did not repeal Ordinance No. 1722, it amended the effective date, and restated the text of Ordinance No. 1722 in its entirety. The substance of the two Ordinances is identical, and therefore the Court’s ruling addresses the effectiveness of both Ordinances.
3Plaintiffs attribute a less forthright motive to Defendant, however, the Court takes Defendant’s counsel’s comments at face value.
2

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 3 of 57
immediately enforceable.4 Plaintiffs’ then sought to amend their Complaint, alleging that Ordinance No. 1736 was enacted in violation of the Missouri Sunshine Act. In an effort to prevent any further arguments from Plaintiffs regarding the Ordinance’s validity, and to address the merits of the pending litigation, the Board of Alderman re-enacted Ordinance No. 1736 at the regularly-scheduled meeting on August 20, 2007, thus nullifying Plaintiffs’ contention that the August 9, 2007 meeting was not lawfully convened. Since the Court finds that the second reenactment of Ordinance No. 1736 was lawful, the issue of whether it was originally lawfully enacted is moot. Furthermore, the subject of the original Motion for Issuance of a Declaratory Judgment, was mooted by the enactment of Ordinance No. 1736, which clarified the effective date. Therefore Plaintiffs’ Motion is denied. III. MOTION FOR EVIDENTIARY SANCTIONS
The Court will first address Plaintiffs’ Motion for Sanctions for Spoilation of Evidence, as a ruling on this motion will determine whether evidence of the Mayor’s comments during a March 5, 2007 public meeting is admissible in support of or in opposition to the pending motions for summary judgment.5
A. LEGAL STANDARD A district court possesses the inherent power to impose sanctions against a party and it’s attorney for the destruction of evidence. See Dillon v. Nissan Motor Company, Ltd., 986 F.2d 263, 267 (8th Cir. 1993); see also Hughes v. Black & Decker, Inc., 2007 WL 107680, *1 (D.
4However, as the Court noted above, the City agreed to refrain from enforcement pending the outcome of the present litigation.
5The Court notes that the Parties dispute whether a determination of the Mayor’s discriminatory intent is required for a ruling on Defendant’s summary judgment motion. The Court will address this question in detail in its discussion of the motions for summary judgment; for the purposes of this Motion, the Court assumes that the evidence is relevant.
3

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 4 of 57
Minn. Jan. 10, 2007) (“District courts have inherent authority to impose sanctions when a party destroys evidence . . ..”). The district court in Hughes specifically found that such a penalty is warranted when the party knew or should have known that the evidence is relevant to potential litigation. Hughes, 2007 WL 107680, at *1. However, “[b]efore a sanction for destruction of the evidence is appropriate, . . . there must also be a finding that the destruction prejudiced the opposing party.” Dillon, 986 F.2d at 267.
B. DISCUSSION This motion raises a number of issues for the Court to resolve in determining whether sanctions are appropriate. First, the Court must determine whether a finding of bad faith is required before any sanctions may be imposed.6 Secondly, the Court must determine whether the destruction of the alleged statement prejudiced the Plaintiffs. Thirdly, the Court must determine whether the evidence is sufficient to show the existence of a written statement. Lastly, if the prior three issues are decided in Plaintiffs’ favor, the Court must determine whether the standard for sanctions has been satisfied. Plaintiffs seek to prevent the Defendant from making any arguments based upon the Mayor’s apology made during the March 5, 2007 meeting, due to the destruction of the text of that statement, however, they do not seek an adverse inference instruction, nor do they seek the dismissal of the action. Defendant disputes that sanctions are warranted. The Court will first address the bad faith requirement. The District of Minnesota addressed this exact question in Hughes, and held that “[a] finding of bad faith is necessary to impose certain sanctions, such as an outright dismissal or an adverse-inference instruction. But the Court may impose other types of sanctions in the absence of a bad-faith finding.” Hughes,
6For purposes of their motion, Plaintiffs do not argue that the destruction was done in bad faith.
4

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 5 of 57
2007 WL 107680, at *1 (internal citations omitted). This conclusion is further supported by Eighth Circuit case law. See Stevenson v. Union Pacific Railroad Company, 354 F.3d 739, 745 (8th Cir. 2004) (“Our interpretation of Supreme Court authority concerning a court’s inherent power to sanction counsels that a finding of bad faith is not always necessary to the court’s exercise of its inherent power to impose sanctions.”); see also Menz v. New Holland North America, Inc., 440 F.3d 1002, 1006 (8th Cir. 2006) (“[T]o warrant dismissing a case as a sanction for spoilation of evidence there must be a finding of intentional destruction indicating a desire to suppress the truth.” (internal quotation omitted)). The Eighth Circuit in Stevenson found that while the Eighth Circuit upheld the imposition of sanctions in the nature of the exclusion of evidence based on the “knew or should have known standard,” that lower negligence standard did not apply to cases where an adverse inference instruction is given. 354 F.3d at 747, n. 2. The only sanction that Plaintiffs seek is the exclusion of any evidence relating to the former Mayor of Valley Park’s apology, made during the March 5, 2007 meeting. Therefore, the Court concludes that a finding of bad faith is not required.
The Court next looks at whether the Plaintiffs have been prejudiced by the alleged destruction of any notes or transcript of the Mayor’s apology. Defendant argues that there is no prejudice, because the contents of the apology is available through other sources, namely a newspaper article that was written following the meeting. Plaintiffs’ dispute that this is adequate, and argue that the exact wording is at issue because of conflicting testimony, and therefore Plaintiffs are harmed by the Defendant’s alleged destruction. The Eighth Circuit in Dillon, found prejudice when plaintiff destroyed the car that was at issue in a products liability action. 986 F.2d at 268. The Eighth Circuit dismissed the plaintiff’s argument that photographs documenting the condition of the car were sufficient, because the photographs were not comprehensive. Id. This
5

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 6 of 57
is exactly the situation before the Court. While there is clearly other evidence regarding the contents of the Mayor’s apology, including the newspaper article, the testimony of the alderman who were present at the meeting, and the Mayor’s testimony, none of this evidence is comprehensive. If, in fact, a word for word transcript existed, then it would be better evidence than that which is currently available, and its destruction would be prejudicial to the Plaintiffs.
However, there still remains two important determinations to be made. Firstly, did such a transcript actually exist? Secondly, was the city in a position that it knew or should have known that such evidence would be critical to the pending lawsuit. The Court finds the first question dispositive, and therefore need not address the second question. Defendant’s counsel, Eric Martin, testified that he looked through his computer files and was unable to locate any written apology that he drafted for the Mayor. Furthermore, Mr. Martin testified that a search of all of the documents from the meeting failed to reveal the transcript of the apology, and that he may have handwritten the notes for the Mayor. Additionally, Plaintiffs have failed to provide any concrete evidence that such a document existed. The Court is unwilling to impose sanctions upon the Defendant on the basis of an assumption. The Court is not holding that the Mayor did not know or should not have known that any documents from statements made during a public meeting should be retained. This is a separate question, and the Court does not reach a conclusion on that legal issue. Rather, the Court holds only that the evidence presented by Plaintiffs is insufficient to support a finding by this Court that a verbatim copy of the statement made by the Mayor existed. Therefore, Plaintiffs’ Motion for Sanctions for the spoilation of evidence is denied. III. MOTIONS FOR SUMMARY JUDGMENT
6

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 7 of 57
Plaintiffs have filed a motion for summary judgment on the limited basis of issue preclusion. Plaintiffs assert that the ordinance at issue in this lawsuit is substantially similar to the ordinance at issue in a prior state law suit, and therefore Defendant is barred by the doctrine of issue preclusion from litigating the action a second time in this Court. Defendant’s motion for summary judgment is considerably broader. Defendant’s seek summary judgment in their favor that the ordinance at issue is lawful and enforceable, thereby denying Plaintiffs’ Motion for Issuance of a Preliminary and Permanent Injunction.
A. LEGAL STANDARD Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for summary judgment only if all of the information before the court shows “there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). See Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986). The United States Supreme Court has noted that “summary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the federal rules as a whole, which are designed to ‘secure the just, speedy and inexpensive determination of every action.’” Id. at 327 (quoting Fed. R. Civ. P. 1). “By its terms, [Rule 56(c)(1)] provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for judgment; the requirement is that there be no genuine issue of material fact.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those “that might affect the outcome of the suit under the governing law,” and a genuine material fact is one such that “a reasonable jury could return a verdict for the nonmoving party.” Id. Further, if the non-moving party has failed to “make a showing sufficient to establish the existence of an element essential to that party’s case, . . . there can be ‘no genuine issue as to any material fact,’ since a
7

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 8 of 57
complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial.” Celotex, 477 U.S. at 322-23.
The initial burden of proof in a motion for summary judgment is placed on the moving party to establish the non-existence of any genuine issue of fact that is material to a judgment in its favor. City of Mt. Pleasant, Iowa v. Associated Elec. Co-op., Inc., 838 F.2d 268, 273 (8th Cir. 1988). Once this burden is discharged, if the record does in fact bear out that no genuine dispute exists, the burden then shifts to the non-moving party who must set forth affirmative evidence and specific facts showing there is a genuine dispute on that issue. Anderson, 477 U.S. at 249. When the burden shifts, the non-moving party may not rest on the allegations in its pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine issue of material fact exists. Fed. R. Civ. P. 56(e); Stone Motor Co. v. Gen. Motors Corp., 293 F.3d 456, 465 (8th Cir. 2002). To meet its burden, the non-moving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In fact, the non-moving party must show there is sufficient evidence favoring the non-moving party which would enable a jury to return a verdict for it. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 324. “If the non-moving party fails to produce such evidence, summary judgment is proper.” Olson v. Pennzoil Co., 943 F.2d 881, 883 (8th Cir. 1991).
B. PLAINTIFF’S MOTION As an initial matter, the Court notes the procedural posture of this motion. Plaintiffs have filed a motion for a Permanent Injunction upon which they seek summary judgment. Their basis for seeking summary judgment is that the issue to be decided by this Court is the same issue that was decided by the state court, and therefore this Court is precluded.
8

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 9 of 57
For purposes of this motion, it is helpful to detail the chronology of the ordinance at issue in this action, as well as the ordinance that was at issue in the previous state court action. On July 17, 2007, Ordinance No. 1708 was enacted by the City of Valley Park, entitled “An Ordinance Relating to illegal Immigration within the City of Valley Park, Mo.” On September 22, 2006, four plaintiffs filed a lawsuit against the City in Reynolds, in St. Louis County Circuit Court. Ordinance No. 1708 was repealed and replaced by Ordinance No. 1715, which was enacted on September 27, 2006. Both Ordinance No. 1708, and Ordinance No. 1715 addressed the hiring of illegal immigrants (“employment provision”) as well as the leasing of property to illegal immigrants (“landlord provision”). On February 5, 2007, the City again amended its ordinances, adopting Ordinance No. 1721 and Ordinance No. 1722.7 Ordinance No. 1721 addresses the landlord provision of the earlier ordinances, and Ordinance No. 1722 addresses the employment provision. At issue in this lawsuit is only Ordinance No. 1722, the employment provision.
The Reynolds action challenged the validity of Ordinances No. 1708 and No. 1715; and was not amended to include Ordinances No. 1721 and No. 1722. On March 1, 2007, the circuit court held a hearing to address the question of whether the question of the validity of Ordinances No. 1708 and No. 1715 had been rendered moot by the enactment of Ordinances No. 1721 and No. 1722, and to address the plaintiffs’ motion for judgment on the pleadings. On March 12, 2007, the circuit court declared Ordinance No. 1708 and No. 1715 void under state law. Plaintiffs now argue before this Court, that because Ordinance No. 1722 is substantially similar to Ordinances No. 1708 and No. 1715, the circuit court’s decision to invalidate the earlier ordinances, precludes this Court from addressing the issue a second time.
7These ordinances were signed by the Mayor on February 14, 2007. 9

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 10 of 57
Issue preclusion, or collateral estoppel, prevents a party from raising an issue that was previously decided against the same party. State ex rel Johns v. Kays, 181 S.W.3d 565, 566 (Mo. 2006). There are four factors the Court is to consider: “(1) is the issue in the present case identical to the issue decided in the prior adjudication; (2) was there a judgment on the merits in the prior adjudication; (3) is the party against whom collateral estoppel asserted [sic] the same party or in privity with a party in the prior adjudication; and (4) did the party against whom collateral estoppel is asserted have a full and fair opportunity to litigate the issue in the prior suit.” Id. The Court recognizes that all four factors must be met in order for collateral estoppel to be applicable, however, as the parties only dispute the first and fourth factors, the Court will focus its discussion on those factors.
The first factor is whether the issue to be decided in this case is identical to the issue decided in Reynolds. The first step required to make this determination is to articulate exactly what was decided by the state court. On March 1, 2007, the circuit court held a hearing on whether the enactment of Ordinances No. 1721 and No. 1722 mooted the question of the validity of Ordinances No. 1708 and 1715. The legal standard for determining whether the enactment of a new ordinance moots a legal challenge to a prior ordinance is whether the two ordinances are substantially similar. See Smithfield Foods, Inc. v. Miller, 367 F.3d 1061, 1064 (8th Cir. 2004) (“A controversy is not moot if the new statute ‘is sufficiently similar to the repealed [statute] that it is permissible to say that the challenged conduct continues.” (quoting Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 508 U.S. 656, 662-63, n. 3 (1993)) (alterations in original). If the two ordinances, the old and the new, are substantially similar, then the case is not mooted, and a judgment on the merits is appropriate. Id. The circuit court concluded that the ordinances were sufficiently similar, and therefore the
10

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 11 of 57
substantive issue before it was not mooted. Furthermore, during the March 1, 2008 hearing,
counsel for the defendant City stated that “[t]he employment provisions have not been changed in
any of the statutes and I would not represent to the court that there is a substantial change in the
employment provision.” Pls. Statement of Uncontroverted Material Facts, Ex. I, 14. However,
later in that same proceeding, a slightly different exchange took place between Mr. Martin, counsel for Defendant,8 and counsel for Plaintiff:
Q: Mr. Leonatti has said, but I want to make sure you’re in agreement, that 1722 dealing with employment is virtually identical to 1715 in terms of regarding employment?
A: There were some amendments made and the amendments included making it prospective only in its application, and I believe an appellate process was set forth.
Q: But the substance is virtually identical?
A: Yes, sir.
Pls. Statement of Uncontroverted Material Facts, Ex. I, 49. On this basis, the circuit court
concluded that the case was not moot. However, in its findings in support of its judgment, to
void the Ordinances at issue in Reynolds, the circuit court held that Ordinance No. 1708, the
original employment provision, was invalid because it conflicted with Missouri Revised Statute § 79.470.9 Pls. Statement of Uncontroverted Material Facts, Ex. J, 6, ¶¶8-9. The circuit court
8Mr. Martin is counsel for the City of Valley Park and represents them in both the case before this Court and the Reynolds case. Mr. Leonatti was retained by the City in the Reynolds case, but does not represent the City in the case at bar.
9That statutory provision states in full:
For all ordinance violations the board of alderman may impose penalties not exceeding a fine of five hundred dollars and costs, or ninety days’ imprisonment, or both the fine and imprisonment. Where the city and state have a penalty for the same offense, the board shall set the same penalty by ordinance as is set by statute, except that imprisonments, when made under city ordinance, may be in the city prison or workhouse instead of the county jail.
11

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 12 of 57
stated: “Ordinance No. 1708 conflicts with Mo.Rev.Stat. § 79.470 in that it provides for a fine of ‘not less than Five Hundred Dollars ($500.00),’ and loss of a business permit (or its renewal) for a violation of its provisions.” Pls. Statement of Uncontroverted Material Facts, Ex. J, 6, ¶9.10
The Court notes that there is an important distinction between the standard for determining mootness and the standard for issue preclusion. The state court judge was required to find that the new ordinance, in this case Ordinance No. 1722, was substantially similar to the old ordinance, Ordinance No. 1708. However, this Court is required to determine whether “the issue in the present case [is] identical to the issue decided in the prior adjudication.” Johns, 181 S.W.3d at 566. This difference is highlighted by plaintiffs’ counsel in Reynolds, when she stated that: “if a new ordinance affects the same class of people as the old and/or attempts to regulate the same conduct as the old, whether in whole or in part, the case is not moot and a court can declare the validity of the old ordinance.” Pls. Statement of Uncontroverted Material Facts, Ex. I, 22. Just before that, plaintiffs’ counsel had admitted that there were some differences between
Mo.Rev.Stat. § 79.470. 10Paragraph ten of the circuit court’s opinion also addresses the question of business
permits. Specifically, that paragraph finds that requiring a business to forgo a business permit for a period of five years violates Missouri law. Paragraph ten states in full:
Ordinance No. 1715 conflicts with Mo.R.Stat. § 79.470 in that it penalizes a violation of its provisions by suspending existing occupancy permits, refusing the issuance of new occupancy permits, prohibiting the collection of rent or compensation, and by forcing a business to forgo a business permit, or renewal of a business permit, for a period of ‘not less than five (5) years.’” Pls. Statement of Uncontroverted Material Facts, Ex. J, 7, ¶10. There is no provision in Ordinance No. 1715 which relates to business permits, this is contained within Ordinance No. 1708. This paragraph does not change the Court’s finding in this case. Neither the five hundred dollar monetary penalty, nor the loss of a business license for a period of five years, is present in Ordinance No. 1722.
12

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 13 of 57
the new ordinance and the old ordinance, hinging their argument on the fact that the ordinances addressed substantially the same subject matter. Id. at Ex. I, 21-22. Specifically, plaintiffs’ counsel noted a key distinction between the two statutes: “[n]ow granted, under the old ordinance they were also going to fine them severe monetary penalties . . ..” Id. at Ex. I, 22. As held by the circuit court judge, Ordinance No. 1708 was invalidated because its penalty provision failed to comply with Missouri law. As admitted by plaintiffs’ counsel, the monetary penalty provision is not found in the statute at issue before this Court. Therefore, while the two statutes are substantially similar, such that the plaintiffs in Reynolds could overcome a mootness challenge, the issue decided by the state court is not identical to the issues to be decided by this court, sufficient to warrant the application of collateral estoppel.
As the first requirement for a finding of issue preclusion has not been met, namely that the issues before this Court, and the issue before the circuit court are not identical, it is unnecessary for the Court to address the remaining three factors. In Reynolds, the circuit court found Ordinances No. 1708 and No. 1715 to be invalid as a violation of state law. The circuit court did not address the validity of Ordinance No. 1722, and therefore the issue of its validity is properly before this Court. Plaintiffs’ motion for summary judgment on this basis is denied.
C. DEFENDANT’S MOTION The Defendant seeks summary judgment on a more substantive and widespread basis. Defendant seeks summary judgment on all bases claimed by Plaintiffs for invalidating Ordinance No. 1722. Defendant first disputes Plaintiffs’ assertion that Ordinance No. 1722 is preempted by Federal Immigration Law. Secondly, Defendant argues that Plaintiffs’ Equal Protection Claim is fatally flawed as Plaintiffs lack standing, and they have failed to show a suspect classification, discriminatory purpose or impact, or state action. Thirdly, Defendant challenges Plaintiffs’ due
13

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 14 of 57
process claim. Lastly, Defendant disputes that the ordinance in question violates Missouri Law regarding the imposition of imprisonment and fines.11 The Court will address each of the Defendant’s arguments, in turn.
1. Preemption As an initial matter, the Court addresses the Parties’ arguments regarding the presumption against preemption. The Defendant correctly states that there is an “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.” Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). However, the Supreme Court in Medtronic, emphasized that while this presumption exists in all preemption cases, it is particularly relevant in “those in which Congress has ‘legislated a field which the States have traditionally occupied . . ..’” Medtronic, Inc., 518 U.S. at 485 (quoting Rice, 331 U.S. at 230). The Supreme Court clarified the question of a presumption against preemption in the case of United States v. Locke. 529 U.S. 89, 108 (2000). The Supreme Court stated that “an ‘assumption’ of nonpreemption is not triggered when the State regulates in an area where there has been a history of significant federal presence.” Id. In Locke, the state law in question involved national and international maritime commerce, an area which the Supreme Court found was traditionally a federal domain, and therefore “there is no beginning assumption that concurrent regulation by the State is a valid exercise of its police powers.” Id. The Supreme Court went on to look at whether there was a conflict between the state and federal laws. Id. In order to determine whether a presumption against preemption exists, this Court must determine whether the
11Defendant also disputes that issue preclusion is applicable. However, this was fully addressed by the Court above, and therefore need not be repeated in this portion of the Court’s order.
14

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 15 of 57
Ordinance in question involves an area of law traditionally governed by the states, the regulation of business licenses, or an area traditionally governed by the Federal government, immigration. The Supreme Court in DeCanas, defined a regulation of immigration as “essentially a determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain.” 424 U.S. at 355. The Supreme Court further stated that “states possess broad authority under their police powers to regulate the employment relationship to protect workers within the state.” Id. at 356. The Ordinance in question does not address the question of who may or may not enter the United States, and therefore the Court concludes that the Ordinance is a regulation on business licenses, an area historically occupied by the states. The rule articulated by the Supreme Court in Metronic, Inc., is applicable, and the Court will apply a presumption against preemption. See Metronic Inc., 518 U.S. at 485.
Before the Court addresses the specific arguments presented regarding preemption, the Court will set forth the general governing law.12 “Pre-emption may be either express or implied and is compelled whether Congress’ command is explicitly stated in the statute’s language or impliedly contained in its structure and purpose.’” Gade v. National Solid Wastes Management Ass’n, 505 U.S. 88, 98 (1992) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977)). This area of the law is further subdivided into two types of implied preemption: “field pre-
12The Parties disagree over the appropriate semantics in addressing the subject of preemption. Defendant asserts that there are two types of preemption, whereas Plaintiffs assert that there are three. The Court notes that this distinction is in language only. The law of preemption may be broken into two categories: implied or express, with the former being further broken down into implied field preemption and implied conflict preemption. Or, three different types of preemption may be stated, field, conflict, and express preemption. See e.g. Madeira v. Affordable Housing Foundation, Inc., 469 F.3d 219, 238 (2nd Cir. 2006). Plaintiffs refer to field preemption as constitutional preemption. See e.g. Jones, 430 U.S. at 525 ( “In its present posture, this litigation contains no claim that the Constitution alone denies California power to enact the challenged provisions.”). The Court will ensure that all arguments are addressed in full.
15

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 16 of 57
emption, where the scheme of federal regulation is so pervasive as to make reasonable the
inference that Congress left no room for the States to supplement it, and conflict preemption,
where compliance with both federal and state regulations is a physical impossibility, or where
state law stands as an obstacle to the accomplishment and execution of the full purposes and
objectives of Congress.” Gade, 505 U.S. at 98 (internal citations omitted).
a. Express Preemption
The first argument between the Parties relates to express preemption; specifically, does the
federal statute expressly preempt the state law in question? The federal statute states:
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing or similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.
8 U.S.C. § 1324a(h)(2). Thus, the local ordinance is preempted, unless it is a “licensing or similar
law.” The Ordinance in question is entitled: “An Ordinance Repealing Ordinance No. 1715 and
Sections One, Two, Three, and four of Ordinance No. 1708 Relating to Illegal Immigration
Within the City of Valley Park, MO, Relating to the Employment of Aliens Within the City of
Valley Park, MO.” Pls. Statement of Uncontroverted Material Facts, Ex. H. The key section of
the Ordinance is Section Four, which is entitled “Business Permits, Contracts, or Grants.” Id.
This section states:
A. It is Unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City. Every business entity that applies for a business license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.
B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Valley Park Code Enforcement Office submitted by any City
16

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 17 of 57
official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.
(3) Upon receipt of a valid complaint, the Valley Park Code Enforcement Office shall, within three (3) business days, request identify [sic] information from the business entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which fails, within three (3) business days after receipt of the request, to provide such information.
(4) The Valley Park Code Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.
(5) In any case in which the alleged unlawful worker is alleged to be an unauthorized alien, the Valley Park Code Enforcement Office shall not suspend the business license of the business entity if prior to the date of the violation the business entity had verified the work authorization of the alleged unlawful worker using the Basic Pilot Program.
(6) The suspension shall terminate one (1) business day after a legal representative of the business entity submits, at a City office designated by the City Attorney, a sworn affidavit stating that the business entity has corrected the violation, as described in Section 5.B.
. . .
(7) For a second or subsequent violation, the Valley Park Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty (20) days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to Untied States Code Title 8, section 1373. In the case of an unlawful worker disqualified by state law not related to immigration, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.
Id.
17

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 18 of 57
On its face, the ordinance in question appears to be a licensing law, as it relates to the
issuance of business permits, and the denial of business permits. Plaintiffs dispute that the
Ordinance falls within the exception, arguing that it would violate the intent of congress to
interpret the statute so that a state or local government was forbidden from imposing criminal or
civil sanctions, but could “impose the enormous penalty of entirely shuttering a business.” Pls. Memo. in Opp. to Def. Mot. for Summ. Judg., 8.13 The Court agrees with Defendants that
whether or not the denial of a business permit is a greater or lesser sanction than fines and imprisonment is an irrelevant inquiry.14 The question before the Court is not whether the
sanctions reserved to the state or local government are greater or lesser than those granted to the
federal government, or whether Congress intended such a result; the question for the Court is
solely whether the ordinance is a licensing or other similar law. See Connecticut National Bank v.
Germain, 503 U.S. 249, 253-254 (1992).
[I]n interpreting a statute a court should always turn first to one, cardinal cannon before all others. We have stated time and again that courts must presume that a legislature says what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: judicial inquiry is complete.
Id. at 254 (internal citations omitted). The law in question specifically relates to the issuing of a
business permit. The purpose of the law may indeed be, as stated in the title, to address illegal
13Throughout their briefing, Plaintiffs rely heavily upon the recent Pennsylvania decision, in which a substantially similar local ordinance was found to be preempted by federal law. See Lozano v. City of Hazleton, 496 F.Supp.2d 477 (M.D. Penn. 2007). The Court respectfully notes that the Pennsylvania decision is not binding, and therefore, the Court will conduct its own thorough analysis of the issues presented.
14The Court also notes that the Ordinance will immediately reinstate a business license upon a showing that the violation has been corrected. Ordinance 1722, § 4B.(6). Upon a the correction of a second or subsequent violation, the business license is suspended for twenty (20) days. Ordinance 1722, § 4B.(7).
18

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 19 of 57
immigration within the city of Valley Park, however, licensing laws may have any number of purposes. See e.g. Gold Cross Ambulance and Transfer v. City of Kansas City, 705 F.2d 1005, 1013 (8th Cir. 1983) (“[T]he thrust of the licensing law . . . was toward control of destructive competition and improvement of service.”).
Plaintiffs also assert that the ordinance in question is not a licensing law because it applies to those required to get a business permit, as well as those who are exempt from obtaining a business permit. The Court finds this argument unpersuasive. The Ordinance in question mimics the requirements of the City’s business licensing Ordinance, and places additional requirements on business entities within the City. The Court is weary of finding a law preempted, simply because it is passed as an addition to an existing licensing scheme, rather than as an entirely new licensing law. If Plaintiffs’ argument were correct, the Ordinance would be valid if it had invalidated the existing business license requirements, and passed a new law with the additional requirement that employers verify the legal status of all employees. The Court is also unpersuaded that the application of the law to those who are not required to possess a business permit is material. Plaintiffs argument fails, firstly, because IRCA states “licensing or similar law[,]” the law is clearly a similar law as its penalties are limited to the suspension of a business license. 8 U.S.C. § 1324a(h)(2). Secondly, the local ordinance that dictates who is required and who is exempt to the business license requirements effects all business entities, and yet is still clearly a licensing law. It is illogical to assert that a law is not a licensing law because some individuals that would fall within its definitions are exempt for one reason or another. The fact that those exempt from the business license requirement does not effect this Court’s determination that the Ordinance at issue is a licensing law.
19

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 20 of 57
The Court is in agreement with Defendant that the statutory language is not ambiguous. However, the Court will nonetheless look at the legislative history to ensure that the Court’s interpretation of the express preemption provision is correct. See Garcia v. United States, 469 U.S. 70, 75 (1984) (“While we now turn to the legislative history as an additional tool of analysis, we do so with the recognition that only the most extraordinary showing of contrary intentions from those data would justify a limitation on the ‘plain meaning’ of the statutory language.”). The specific provision of the legislative history, upon which Plaintiffs rely, states:
The penalties contained in this legislation are intended to specifically preempt any state or local laws providing civil fines and/or criminal sanctions on the hiring, recruitment or referral of undocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or refusal to reissue a license to any person who has been found to have violated the sanctions provisions in this legislation. Further, the Committee does not intend to preempt licensing or ‘fitness to do business laws,’ such as state farm labor contractor laws or forestry laws, which specifically require such licensee or contractor to refrain from hiring, recruiting or referring undocumented aliens. H.R. Rep. 99-682(I), at 58 (1986) as reprinted in 1986 U.S.C.C.A.N. 5649, 5662. This provision, contrary to the assertions made by Plaintiffs, supports the validity of the Ordinance in question. The house report restates the purpose of the preemption provision, that it is not intended to prevent states from suspending, revoking, refusing to issue, or reissue a license to a person found to have violated the statute. Id. Furthermore, the Court notes that in order to overcome the plain meaning of the statute, the legislative history would have to provide an extraordinary showing of contrary intentions. Garcia, 469 U.S. at 75. Plaintiffs also rely on this statement in the legislative history as evidence that any penalty linked to a state licensing law can only be imposed after a finding by the federal government that federal immigration law has been violated. See H.R. Rep. 99-682(I), at 58. Although the wording in the house report is somewhat ambiguous, the wording of the statute is perfectly clear. A local government is prevented from
20

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 21 of 57
imposing any penalty, except through “licensing or similar laws,” “upon those who employ, or
recruit or refer for a fee for employment, unauthorized aliens.” 8 U.S.C. § 1324a(h)(2). There is
no requirement in the statute that a finding be made by the federal government that a person has
employed, recruited or referred for a fee for employment, unauthorized aliens, only that those are
the individuals who are subject to penalty. Id. Therefore the ambiguity in the legislative history is irrelevant.15 The plain meaning of the statute clearly provides for state and local governments to
pass licensing laws which touch on the subject of illegal immigration. The statute at issue is such
a licensing law, and therefore is not expressly preempted by the federal law. b. Implied Preemption16
Plaintiffs next assert that even if the Ordinance in question is not covered by the express
preemption provision of the federal immigration law, it is impliedly preempted. Pls. Memo. in
Opp. to Def. Mot. for Summ. Judg., 9. Plaintiffs allege both field and conflict preemption,
however, the majority of their arguments relate to conflict preemption. The Parties raise a
number of arguments regarding implied preemption, specifically relating to whether certain
provisions of Ordinance No. 1722 conflict with federal law. However, the first question for the
15The Court also notes that the wording of the Ordinance at issue requires that “[t]he determination of whether an individual is an unauthorized alien shall be made by the federal government, pursuant to United Stats Code Title 8, Subsection 1373(c).” Ordinance No.1722 § 5E. Therefore, even if federal law did require that a finding be made by the federal government, Ordinance No. 1722, by its own times, complies with this requirement. The only circumstance in which the Ordinance would not comply, would be if the Federal Law required that an employer be found to be in violation of the Federal statute before any state action could be taken. However, nowhere in the legislative history cited by Plaintiffs, nor, more importantly, within the language of the statute, is this requirement stated.
16The Court notes at the outset that this is a difficult argument for Plaintiffs to make. Not only must they overcome the presumption against preemption, but they must also show that regardless of the express preemption provision which allows licensing laws, Congress intended to preempt certain licensing laws impliedly.
21

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 22 of 57
Court to address is whether an analysis of implied preemption is appropriate when there is an express preemption provision.
Plaintiffs argue that it is appropriate to address implied preemption, even when there is an express preemption provision. For support of this proposition they cite to the Supreme Court case of Sprietsma v. Mercury Marine, a Division of Brunswick Corporation. 537 U.S. 51 (2002). Plaintiffs are correct that the Supreme Court stated: “Congress’ inclusion of an express pre-emption clause “does not bar the ordinary working of conflict pre-emption principles, that find implied pre-emption ‘where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of full purposes and objectives of Congress.” Sprietsma, 537 U.S. at 65 (quoting Geier v. American Honda Motor Co., 529 U.S. 861, 869 (2000)). However, the Supreme Court also stated in that case that “our task of statutory construction must in the first instance focus on the plain wording of the clause, which necessarily contains the best evidence of Congress’ preemptive intent.” Sprietsma, 537 U.S. at 62-63 (internal quotation omitted).
I. Implied Field Preemption Having concluded that implied preemption may be found, even in the presence of an express preemption provision, the Court will now address the first category of implied preemption, field preemption. This requires little discussion. Field preemption occurs “where the scheme of federal regulation is so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it . . ..” Gade, 505 U.S. at 98. In the context of regulations regarding illegal aliens, the Supreme Court made clear in DeCanas, that no such blanket intent on the part of Congress existed. 424 U.S. at 357-58. Only a demonstration that complete ouster of state power including state power to promulgate laws not in conflict with federal laws was “‘the clear and manifest purpose
22

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 23 of 57
of Congress’” would justify that conclusion. Florida Lime & Avocade Growers v. Paul, [373 U.S. 132, 146 (1963)], quoting Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Respondents have not made that demonstration. They fail to point out, an independent review does not reveal, any specific indication in either the wording or the legislative history of the INA that Congress intended to preclude even harmonious state regulation touching on aliens in general, or the employment of illegal aliens in particular. Id. (footnote omitted). The Supreme Court in DeCanas made clear that while the “power to regulate immigration is unquestionably exclusively a federal power, . . . the Court has never held that every state enactment which in any way deals with aliens is a regulation of immigration and thus per se preempted by this constitutional power . . ..” 424 U.S. at 355. The Court recognizes that this case was handed down prior to the enactment of IRCA, however, the provision in question in the current statute serves only to bolster the Supreme Court’s conclusion. Including a provision in the statute, as well as comments in the legislative history, allowing some state licensing regulations to exist, clearly conflicts with an intent to preempt the entire field of immigration regulation. Therefore, the Court concludes that IRCA does not manifest an intent of Congress to occupy the entire field of immigration law.
ii. Implied Conflict Preemption The Court next looks at whether the Ordinance in question is preempted on the basis of implied conflict preemption. Conflict preemption exists “where it is impossible for a private party to comply with both state and federal requirements, or where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Sprietsma, 537 U.S. at 65 (quoting Freightliner Corp. v. Myrick, 513 U.S. 280, 287 (1995)). The Court will address each in turn. Plaintiffs argue that the Ordinance in question is invalid because it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.” Pls. Memo. in Opp. to Def. Mot. for Summ. Judg., 9 (quoting DeCanas, 424 U.S. at
23

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 24 of 57
363). Specifically, Plaintiffs dispute Defendant’s assertion that they must show the impossibility of simultaneous compliance, but rather that they need only show that the Ordinance prevents the full objectives of Congress being effectuated. Plaintiffs suggest a number of ways in which Ordinance No. 1722 conflicts with federal law. The Court will address each, in turn.
Plaintiffs’ first argument is that Ordinance No. 1722 requires verification of domestic workers and independent contractors, who are expressly exempted from IRCA. Plaintiffs argue that this creates a conflict because it negates the intent of Congress to exclude these types of employers from compliance. Defendant disputes any conflict, arguing that these type of workers would not ordinarily be included in the City’s definition of an employee, and therefore the local ordinance does not impose upon an employer of a domestic worker, or the company employing an independent contractor, any additional requirements. Furthermore, Defendant argues that there is no conflict with federal law, because federal law does not prohibit a City from determining the immigration status of a casual domestic laborer or independent contractor. The Court will address the two groups separately.
The code of federal regulation defines the term employee as “an individual who provides services or labor for an employer for wages or other remuneration but does not mean independent contractors as defined in paragraph (j) of this section or those engaged in casual domestic employment as stated in paragraph (h) of this section . . ..” 8 C.F.R. § 274a.1(f). Section (h) of that regulation states that “the term ‘employment’ . . . does not include casual employment by individuals who provide domestic service in a private home that is sporadic, irregular or intermittent. 8 C.F.R. § 274a.1(h). Ordinance No. 1722 states:
“Business entity” means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.
24

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 25 of 57
(1) The term business entity shall include, but not be limited to, self-employed individuals, partnerships, corporations, contractors, and subcontractors. (2) The term business entity shall include any business entity that possesses a business license, any business entity that is exempt by law from obtaining such a business license, and any business entity that is operating unlawfully without such a business license. Ordinance No. 1722, § 3A.(1)-(2). With regards to domestic workers, the regulations themselves limit this exception to work done within the home. 8 C.F.R. § 274a.1(h); see also Jenkins v. I.N.S., 108 F.3d 195, 199 (9th Cir. 1997) (“The INS regulation restricted this temporal exception to domestic service in a private home.”). Plaintiffs encourage the Court to find a conflict between the broad application of Ordinance No. 1722 and the limits placed on compliance by the federal statute. As the cited language above shows, the Court finds no such conflict. Firstly, there is nothing in Ordinance No. 1722 which would require an individual who hires a casual domestic worker, for a short period of time, to comply with the Ordinance, other than that in the event that the hirer is informed of the employee’s illegal status, they are required to terminate employment.17 Secondly, the Court notes that it is questionable whether the regulations, offered by Plaintiffs as proof of a conflict, are binding. The Ninth Circuit in Jenkins, stated that “we have serious doubts about whether the regulation itself reasonably interprets the statute or the legislative history.” Jenkins, 108 F.3d at 200.18 “An interpretation [by an agency] is not entitled to deference if it is contrary to clearly expressed congressional intent.” Id. The statutory language in this case, unambiguously states
17The exception referenced in the Federal Regulations, is an exception to the documentation requirements for employers, it does not excuse the continued employment of known undocumented worker. 8 C.F.R. § 274a.1(h).
18The Ninth Circuit was reviewing the decision of an ALJ, and therefore it was procedurally improper for that court to question the applicability of the regulation. Jenkins, 108 F.3d at 200-201 (“The posture of this case leaves us in an interpretive quandary.”).
25

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 26 of 57
that the eligibility verification system applies to all employers, without exception. 8 U.S.C. § 1324a(a)(1)(B). Assuming that Plaintiffs are correct, and the regulations quoted above are applicable, the clear statutory language, and the small exception that is created, is not sufficient to create a conflict between Congressional intent and the local ordinance. Again, assuming that Congress intended domestic workers19 to be excused from the documentation requirements, this does not evidence an intent that no state law touch on these employees. The clear intent of congress is that all employees be subject to the employment requirements, a very limited exception does not provide a basis for finding conflict preemption. The Court concludes that the limited exception in the federal regulation for domestic workers does not create a conflict. The Court also notes that the definition of the term business entity, could be read to exclude domestic workers, as they are not engaged by the employer in order to make a profit, but rather to do minimal household tasks. Regardless of the inclusion of these employees, the Court does not see a conflict between the local and federal law.
The Court also disagrees with Plaintiffs that a conflict is created because of the federal regulation that excludes independent contractors from the documentation requirements. The exclusion is contained in 8 C.F.R. § 274a.1(f), quoted above, and § 274a.1(j) provides a detailed definition of an independent contractor.20 There is nothing in this definition that prevents an
19The Court addresses independent contractors separately, as these individuals are not generally included within a definition of employees.
20That definition states:
The term independent contractor includes individuals or entities who carry on independent business, contract to do a piece of work according to their own means and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls itself, will be determined on a case-by-case basis. Factors to be considered in that determination include, but are not limited to, whether the individual or entity: supplies
26

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 27 of 57
employer from complying with both the local and federal law. See e.g. Sprietsma, 537 U.S. at 65 The Ordinance applies to all business entities, which includes contractors. Contractor in turn is defined as “a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include, but not be limited to, a subcontractor, contract employee, or a recruiting or staffing entity.” Ordinance No. 1722, § 3C. This, by its terms, applies the requirements of the ordinance to a contractor, who hires employees, it does not hold the hirer of the contractor responsible for the employees of that contractor. The Court can find no conflict between compliance with both statutes. The federal government excuses an individual from verifying the work authorization of the employees of an independent contractor, nothing in Ordinance No. 1722 contradicts this. Furthermore, should the Court conclude that Ordinance No. 1722 required a higher level of verification, this would not prevent an individual from complying with both the local and federal law. See Incalza v. Fendi North America, Inc., 479 F.3d 1005, 1010 (9th Cir. 2007) (“We find preemption only in ‘those situations where conflicts will necessarily arise.’ A hypothetical conflict is not a sufficient basis for preemption.” (quoting Goldstein v. California, 412 U.S. 546, 554 (1973)). Without even a hypothetical conflict between the two laws, this is insufficient to support a finding of preemption. While the Court recognizes Plaintiffs assertion that there need only be a conflict with the purpose of the federal statute, see Sprietsma, 537 U.S. at 65, this does not mean that every slight difference in emphasis
the tools or materials; makes services available to the general public; works for a number of clients at the same time; has an opportunity for profit or loss as a result of labor or services provided; invests in the facilities for work; directs the order or sequence in which the work is to be done and determines the hours during which the work is to be done. 8 C.F.R. § 274a.1(j).
27

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 28 of 57
between the federal requirements and the local requirements creates such a conflict. The purpose of the federal law is clearly to control the employment of undocumented aliens; the ordinance is aimed at the same conduct.
The next issue raised by Plaintiffs is that the local ordinance fails to prohibit discrimination on the basis of national origin, which is in conflict with IRCA. The plain language of the ordinance belies Plaintiffs’ assertion, and therefore little discussion is required. Ordinance No. 1722 states: “A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance No. 1722, § 4B.(2). The Court will not assume that the Defendant City intended the statute to be enforced in such a way as to discriminate against individuals on the basis of national origin. The Court does not find any conflict between the Federal statute and the local ordinance on this basis. The Court will more fully address the question of discrimination below, in reference to Plaintiffs’ equal protection claim.
Next, Plaintiffs assert that there is a conflict between the process outlined in Ordinance 1722 and the process provided in IRCA, such that preemption is required. This argument is also easily disposed. Plaintiffs argue that under IRCA an individual who receives an adverse finding under the Basic Pilot program is given eight days to contest that finding, followed by a ten day period in which the government may respond. The federal regulations provide that during the contested period, the employer may not take any action, including termination, against the employee. What Plaintiffs describe as an adverse finding is described by the federal regulations as a “tentative nonconfirmation.” 62 F.R. 48309-01(IV)(B)(2). The procedure following a tentative nonconfirmation is as follows:
An employee who is the subject of a tentative nonconfirmation after completion of an automated Service verification check is provided a secondary verification opportunity
28

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 29 of 57
to verify his or her employment status. In these cases, the employer must notify the employee of the tentative nonconfirmation and determine whether or not he or she will contest the tentative nonconfirmation. If the employee does not contest the tentative nonconfirmation, it will be considered a final nonconfirmation. If the employee contests the tentative nonconfirmation, he or she must contact the Service within 8 Federal Government work days for resolution of his or her case. The employer will instruct the employee to call a Service toll-free telephone number or visit a local Service office within that time period. The SSA [Social Security Administration] and the Service have 10 Federal Government work days within which to respond to contested tentative nonconfirmation cases. During this period, the employer may not terminate or take adverse action against the employee based upon his or her employment eligibility status, unless the Service determines, within that time, that the employee is not authorized to work.
62 F.R. 48309-01(IV)(B)(a). The Court does not find any conflict between this procedure, and
the procedure mandated by the Ordinance. The Ordinance requires that:
upon the receipt of a valid complaint,21 the Valley Park Code Enforcement Office shall, within three (3) business days, request identify [sic] information from the business entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which fails, with three (3) business days after receipt of the request, to provide such information.
Ordinance No. 1722, § 4B.(3). At first blush this appears to conflict with the federal procedure
outlined above. However, the Ordinance allows for the federal procedure to take its course,
before the Ordinance has any effect. The Ordinance states:
If the federal government notifies the City of Valley Park that it is unable to verify whether an individual is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any city official attempt to make an independent determination of any alien’s legal status, without verification from the federal government . . ..
Ordinance No. 1722, § 5C. In the event that the Basic Pilot program reports back a tentative
nonconfirmation, then the Ordinance’s three day time table is tolled, pending completion of the
federal determination, which allows the employee eight federal government business days to
21That is one not based on national origin. Ordinance No. 1722, § 4B.(2).
29

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 30 of 57
respond to the nonconfirmation. There is no conflict between these two provisions such that the employer cannot comply with both. Incalza, 479 F.3d at 1010. Furthermore, the purpose of both laws is the same, namely to allow the alleged violator an opportunity to correct any error in the determination of an employee’s status.
The Court next addresses Plaintiffs’ final conflict preemption argument. Plaintiffs’ contend that the Ordinance improperly requires that employers enroll in the BasicPilot program.22 Plaintiffs argue that Congress made an informed decision not to require all employers to participate in the BasicPilot program, and that a local law which requires such participation is in conflict with Congressional intent. Defendant raises a number of arguments in response to this contention. First, Defendant states that the Ordinance at issue does not require employers to participate in the program, but rather provides a safe harbor for those who have used BasicPilot to verify an employees work eligibility. Secondly, Defendant argues that even if participation in the program were mandatory, this would not conflict with federal law.
Defendant is correct, that under the Ordinance, employers are not required to participate in the BasicPilot program. Rather, the Ordinance provides that
In any case in which the alleged unlawful worker is alleged to be an unauthorized alien, the Valley Park Code Enforcement Office shall not suspend the business license of the business entity if prior to the date of the violation, the business entity had verified the work authorization of the alleged unlawful worker using the BasicPilot Program. Ordinance No. 1722, § 4B.(5) (“safe harbor provision”). Participation in the program is only mandated “where two or more unlawful workers are verified by the federal government to be
22This program is alternately referred to as BasicPilot and E-Verify. At the time the ordinance was drafted the program was known as BasicPilot, it has since been renamed E-Verify. The Court will use the language used in the Ordinance at issue, and that used by the Parties in their briefs, and refer to the program as BasicPilot.
30

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 31 of 57
unauthorized aliens . . ..” Ordinance No. 1722, § 4B.(6)(b). Upon such a finding, the Ordinance requires that a business entity’s business license shall only be returned if the business entity provides “documentation acceptable to the City Attorney which confirms that the business entity has enrolled in and will participate in the BasicPilot Program for the duration of the validity of the business permit granted to the business entity.” Id. IRCA provides for the implementation of an employee verification program. 8 U.S.C. § 1324a. An amendment to IRCA, known as the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), provides for the Attorney General23 to conduct three pilot programs of employment eligibility confirmation. PL 104-208, 1996 HR 3610, 3009-655. IIRIRA further provides that:
any person or other entity that conducts any hiring (or recruitment or referral) in a State in which a pilot program is operating may elect to participate in that pilot program. Except as specifically provided in subsection (e), the Attorney General may not require any person or other entity to participate in a pilot program. PL 104-108, 1996 HR 3610, 100 Stat. 3009-656, IIRIRA § 402(a). Subsection (e) requires certain entities to participate in the BasicPilot program. PL 104-108, 1996 HR 3610, 100 Stat. 3009-656, IIRIRA § 402(e). Specifically, all government departments are required to participate, as well as certain violators. PL 104-108, 1996 HR 3610, 100 Stat. 3009-656, IIRIRA § 402(e)(1) & (2). An order under section 274A(e)(4) [8 U.S.C. § 1324a(e)(4)] or section 274B(g) [8 U.S.C. § 1324b(g)] of the Immigration and Nationality Act may require the subject of the order to participate in, and comply with the terms of, a pilot program with respect to the subject’s hiring (or recruitment or referral) of individuals in a State covered by such a program. PL 104-108, 1996 HR 3610, 100 Stat. 3009-656, IIRIRA § 402(e).
23The Secretary of Homeland Security was later substituted for the Attorney General. 31

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 32 of 57
The Court does not find any conflict between the provisions of the Ordinance and IRCA
(as amended by IIRIRA). Both the Ordinance and the federal law provide for voluntary
participation in the BasicPilot Program, unless a business is found to be in violation of either the
local ordinance or the federal law, in which case participation becomes mandatory. Furthermore,
as evidenced by the numerous statements provided by the Defendant, there has been continued
movement towards expanding the BasicPilot program, not limiting it. See e.g. Def.. Reply Memo.
in Support of Def. Mot. for Summ. Judg., Ex. A, 2 (“Because of the success of this system [Basic
Pilot] and its ability to take the guesswork, or some of the guesswork out of employment
document review, we’re going to be strengthening and expanding the system and giving it a new
name: E-Verify.”). While the Secretary of Homeland Security recognized that the system was still
voluntary, he emphasized that they will “encourage as many companies as possible to use E-
Verify.” Id. The Court also recognizes that a recent Arizona law, which mandated all Arizona
state employers to utilize the BasicPilot program was upheld by the United States District Court for the District of Arizona.24 See Arizona Contractors Association v. Napolitano, 2007 WL
4570303 (D. Ariz. Dec. 21, 2007). The Arizona court concisely stated the relationship between
the federal law and a state, or local law.
The program [BasicPilot] was in an evaluative stage when it was created, and so Congress was leery of mandating its use right away itself. Accordingly, it prohibited the Attorney General from requiring participation in the program. IIRIRA § 402(a), 110 Stat. 3009-656. But that does not necessarily mean that Congress placed the
24Plaintiffs correctly point out that the procedural posture of the Arizona case is distinct. The plaintiffs in that case were seeking to stay the enforcement of the Arizona law pending appeal of the district court’s judgment in favor of defendants. Arizona Contractors Association, 2007 WL 4570303, at *1 (“Plaintiffs have appealed the December 7, 2007 judgment dismissing this action without prejudice for lack of a justiciable case or controversy against these Defendants. They now seek an injunction preventing the Defendants from implementing or enforcing the [Act] for the duration of the appeal.”). However, the analysis of the Arizona court is nonetheless instructive.
32

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 33 of 57
conduct that it excluded from federal mandate-whether to use E-Verify-also outside of the residuum of conduct subject to the police power of the state. A decision not to invoke federal coercive powers leaves conduct within the power of the states to compel or forbid for proper legislative purposes. Id. at *14. The Court does not see Congress’s decision not to make the program mandatory as restricting a state or local government’s authority under the police powers. Furthermore, the Court recognizes that generally, a state has concurrent jurisdiction with the federal government to enforce federal laws. See Gonzales v. City of Peoria, 722 F.2d 468, 474 (9th Cir. 1983). The Ordinance in question uses the BasicPilot program to determine an individual’s work status in the same manner as that proscribed by the Federal Government. This allows for greater enforcement of the federal law, while providing additional local sanctions through the licensing law. There is no conflict between the two laws. Having thoroughly reviewed each of Plaintiffs’ arguments in support of preemption, the Court concludes that Ordinance No. 1722 is not preempted by federal immigration law. The City’s Ordinance falls squarely into the exception to preemption carved out by Congress. Furthermore, the emphasis on preventing the hiring of illegal aliens is a goal shared by the Federal and local law.
2. Equal Protection The Court will next address Plaintiffs’ equal protection claim. Plaintiffs assert that Ordinance No. 1722 will have the effect of discriminating against individuals of Hispanic origin in violation of the Equal Protection Clause of the Fourteenth Amendment. Plaintiffs sought discovery on the issue of discriminatory impact, and both Parties filed supplemental memorandum following the completion of that discovery.25 However, Defendant raises two preliminary
25This Court’s order allowing additional discovery was not intended to predetermine the relevance of that evidence. As Defendant correctly states, the factual circumstances surrounding
33

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 34 of 57
arguments that need to be addressed, both of which, if correct, would be dispositive of Plaintiffs’
equal protection claim. The first is that Plaintiffs lack standing, the second is that there is no state
action. Plaintiffs allege two ways in which Ordinance No. 1722 will have a discriminatory effect,
in violation of the equal protection clause: “(1) by inducing employers to refrain from employing
Hispanics; and (2) by inducing City officials or Valley Park residents to file complaints under the
Ordinance against business entities based on their employment of Hispanics.” Pls. Memo. in
Opposition to Def. Mot. for Summ. Judg., 17.26
As an initial matter, the Court will recite the requirements of an equal protection claim.
The Fourteenth Amendment provides that:
No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
U.S. CONST. amend. XIV, § 1. The “Equal Protection Clause directs that ‘all persons similarly
circumstanced shall be treated alike.’” Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting F.S.
the enactment of the Ordinance is only relevant if the threshold requirements of standing and state action are satisfied.
26It is undisputed that up until this point in time, no action has been taken to enforce the ordinance against any individuals or businesses. There is some confusion throughout the Parties’ briefs regarding the nature of the Equal Protection Claim asserted, and to what degree discriminatory motive on the part of the Board of Alderman and the Mayor is relevant to this claim. There are two types of discrimination claims that can be brought under the Equal Protection Clause; Plaintiffs may assert that the Ordinance was enacted due to discriminatory intent on the part of the law makers, or Plaintiffs may assert that the Ordinance has a discriminatory impact. The second basis, that the Ordinance has a discriminatory impact, can further be broken down into a facial challenge, or an as applied challenge. There is no basis for an “as applied” challenge in the case at bar, because no enforcement of the Ordinance has taken place. However, Plaintiffs assert that the Ordinance has a discriminatory impact on its face, and alternately that the Ordinance was passed with discriminatory intent. The Court notes that both equal protection claims require a showing that Plaintiffs possess standing. The state action argument applies only to Plaintiffs’ facial discriminatory impact claim.
34

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 35 of 57
Royster Guano Co. v. Virginia, 253 U.S. 412, 415 (1920)). Implicit in this dictate is the
requirement that legislatures make distinctions between those who are not similarly
circumstanced. Plyler, 457 U.S. at 216.
A legislature must have substantial latitude to establish classifications that roughly approximate the nature of the problem perceived, that accommodate competing concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to most forms of state action, we thus seek only the assurance that the classification at issue bears some fair relationship to a legitimate public purpose.
Id. The Supreme Court has required a higher standard than the fair relationship test articulated
above, if the classification disadvantages a “suspect class,” or impinges upon the exercise of a
“fundamental right.” Id. at 216-217. “With respect to such classifications, it is appropriate to
enforce the mandate of equal protection by requiring the State to demonstrate that its
classification has been precisely tailored to serve a compelling government interest.” Id. at 217.27
If necessary following the Court’s analysis of standing and state action, the Court will address the
level of scrutiny appropriate in this case.
a. Standing
The Supreme Court has divided the question of standing into constitutional requirements
and prudential considerations. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).
The irreducible constitutional minimum of standing contains three elements. First, the plaintiff must have suffered an “injury in fact”-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the challenged action of the defendant, and not the result of the independent action of
27The Supreme Court has also employed intermediate scrutiny for those classifications which are “not facially invidious, [but] nonetheless give rise to recurring constitutional difficulties . . ..” Plyler, 475 U.S. at 217. This intermediate level of scrutiny is not alleged by either Party to apply to the case at bar, and therefore, the Court need not address it in further detail.
35

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 36 of 57
some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision. Lujan, 504 U.S. at 560-61 (internal quotations omitted). The Supreme Court further held that “[t]he party invoking federal jurisdiction bears the burden of establishing these elements.” Id. at 561. Each element of the standing requirement “must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of litigation.” Id. The Supreme Court specifically states that at the summary judgment stage “the plaintiff can no longer rest on ‘mere allegations’ but must ‘set forth’ by affidavit or other evidence ‘specific facts’” which support a finding of standing. Id. (quoting Fed. R. Civ. P. 56(e)). The Supreme Court has also placed several “judicially self-imposed limits on the exercise of federal jurisdiction” that have become part of the standing doctrine. Allen v. Wright, 468 U.S. 737, 751 (1984). For example, “the general prohibition on a litigant’s raising another person’s legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff’s complaint fall within the zone of interests protected by the law invoked.” Id. Each of these requirements must be satisfied before the Court can proceed to address the merits of Plaintiffs’ equal protection claim.28 The first constitutional requirement for standing is that Plaintiff present evidence of an injury in fact, which must be both particularized and actual or imminent. Lujan, 505 U.S. at 560. Defendant disputes that this requirement has been satisfied, arguing that the injury asserted by Plaintiffs is discrimination against third parties, namely Hispanics who are the subject of Plaintiffs’ Equal Protection claim. Plaintiffs dispute this characterization of the injury, arguing that the
28While the Constitutional requirements are unalterable, the prudential requirements articulated above, may, in certain circumstances, be altered.
36

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 37 of 57
injury is the burden of compliance with the statute. Plaintiffs are asserting that the Ordinance in question violates the equal protection clause of the constitution, by improperly discriminating on the basis of national origin. Thus the injury, for purposes of this claim, is to an individual applicant who is not hired on the basis of his national origin, or an employee against whom a complaint is filed. Plaintiffs’ assertion that compliance with the Ordinance places a burden upon them sufficient to constitute an injury is inadequate. Firstly, the Court notes that compliance with any statute, law, or ordinance, places some cost of compliance upon the subject of the law. Secondly, standing requires that there be a causal connection between the injury and the conduct of which a complaint is made. Lujan, 504 U.S. at 560-561. The conduct challenged by the Plaintiffs is the potential discrimination against employees, or potential employees, of Hispanic Origin. The burden of compliance with the Ordinance is not causally connected to discrimination against individual employees. Therefore the second constitutional standing requirement is not met. This failure to satisfy the constitutional requirements is dispositive of Plaintiffs equal protection claim, however, for purposes of thoroughness, the Court will address Plaintiffs’ assertion that they have third party standing.
Plaintiffs argue that their injury, the burden of compliance, is sufficient to satisfy the standing requirement, and that they are able to assert the rights of a third party, in this case the potential employees who will be discriminated against as a result of the Ordinance. The assertion of the rights of a third party is not a limitation on jurisdiction required by the Constitution, but rather is a self-imposed limitation, “designed to minimize unwarranted intervention into controversies where the applicable constitutional questions are ill-defined and speculative.” Craig v. Boren, 429 U.S. 190, 193 (1976). In a later Supreme Court case, the Court articulated a three
37

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 38 of 57
part test to determine whether an exception to the general prohibition against third-party standing was warranted.
We have recognized the right of litigants to bring actions on behalf of third parties, provided three important criteria are satisfied: The litigant must have suffered an “injury-in-fact,” thus giving him or her a “sufficiently concrete interest” in the outcome of the issue in dispute, [Singleton v. Wulff, 428 U.S. 106, 112 (1976)]; the litigant must have a close relation to the third party, id., at 112; and there must exist some hindrance to the third party’s ability to protect his or her own interests. Id., at 115-116. Powers v. Ohio, 499 U.S. 400, 410-411 (1991). In the case before the Court, Plaintiffs’ arguments in support of these requirements are not persuasive. The first requirement, injury-infact has been addressed at length, and need not be repeated. The second requirement, is that there be a close relationship between the Plaintiffs and the third party. The specific facts in Powers, involved a defendant and a jury person. 499 U.S. at 413. The Supreme Court also noted other close relationships that would satisfy the second requirement: Planned Parenthood official and a licensed physician and rights of contraceptive users with whom they had professional relationships; licensed beer vendor and male customer; attorney and client. Id. The relationship of employer and employee may be sufficiently close that an employer has an incentive to litigate on behalf of its employees. However, the case here does not involve an employer and employee relationship, it involves a potential employer and employee relationship. In each of the cases cited by the Parties, and reviewed by the Court, there was an actual third party who was the subject of the constitutional violation. The Court does not believe that this is a sufficient relationship to satisfy the second requirement articulated by Powers. 499 U.S. at 411. The third requirement poses the biggest hurdle for Plaintiffs to overcome. Plaintiffs must show that the third-party is unable to bring an action on their own behalf. Id. In Powers, this requirement was satisfied because the jury person who is eliminated on the basis of race, has little opportunity to raise an
38

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 39 of 57
objection before the trial court, and any relief after the fact would be ineffective. Id. at 414-415. The present case does not present such hurdles. Plaintiffs assert that a Hispanic employee would be unlikely to raise an equal protection challenge on their own behalf. However, the Court is not persuaded that this is correct. Assuming that the potential employee was a legal worker, was discriminated against on the basis of his or her national origin, and not his or her employment status, there is nothing to prevent that individual from filing a lawsuit on their own behalf.29
Plaintiffs rely heavily on the Craig case to support their position that they may assert the rights of potential Hispanic employees. However, the Court notes a number of significant differences between the two cases. First, the Supreme Court emphasized the fact that the defendant in Craig did not challenge the ability of the Supreme Court, or the lower courts, to address the constitutionality of the state’s liquor law. Id. at 193. Secondly, and more importantly, the Court notes that the controversy in Craig was well defined and was far from speculative. Id. The issue before the Supreme Court was whether a liquor law which limited the sale of 3.2% beer to men under 21 and women under 18 violated the Equal Protection Clause. Id. at 192. There was no speculation regarding the potential injury to third parties; men under age 21 were not permitted to purchase 3.2% beer, whereas women were. Id. The present case involves the potential discrimination by employers against Hispanic workers, or in the alternative, the discrimination against Hispanic workers by citizens of the City in filing complaints. Neither one of these asserted third party injuries is well defined, and both are speculative. Upon enforcement of the statute, if Plaintiffs can show particularized injuries to third parties, who are unable to bring
29The Cost of litigation is certainly a consideration, however such costs are associated with all suits. Furthermore, the Court notes that the Plaintiffs in the present case are represented by several private attorneys, as well as the American Civil Liberties Union, suggesting that finding competent representation is not a barrier to filing suit.
39

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 40 of 57
an equal protection challenge on their own behalf, then the standing discussion may have a different result. However, on the facts as presented before this Court, in the context of a facial attack, Plaintiffs do not have standing to raise an equal protection claim on behalf of potential employees.
Plaintiffs briefly raise the argument of associational standing. The Supreme Court has “recognized that an association has standing to bring suit on behalf of its members when: (a) its members would otherwise have standing to sue in their own right; (b) the interests it seeks to protect are germane to the organization’s purpose; and (c) neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. Hunt v. Washington State Apple Advertising Commission, 432 U.S. 333, 343 (1977). This basis for standing requires no further analysis, as Plaintiffs are not an association bringing suit on behalf of its members, rather Plaintiffs are employers attempting to file suit on behalf of potential employees. Therefore, no associational standing exists in the case at bar.
b. State Action Defendant argues that even if Plaintiffs did have standing to raise an equal protection challenge, such a challenge would fail because of a lack of state action. Defendant argues that any discrimination that would take place would be on the basis of the individual actor’s own biases, and not because of the Ordinance. Plaintiffs disagree, arguing that the Ordinance itself will cause the unlawful action by third parties, thus making their actions the actions of the City. There are two key provisions in the Ordinance which form the basis for both Parties’ arguments. The first is the provision which permits complaints to be filed by members of the community. Ordinance No. 1722, § 4B.(1). The second, is the Ordinance provision which states that “a complaint which
40

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 41 of 57
alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.” Ordinance No. 1722, § 4B.(2).
The Fourteenth Amendment prohibits discriminatory action “‘that may fairly be said to be that of the States.’” Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188, 196 (2003) (quoting Blum v. Yaretsky, 457 U.S. 991, 1002 (1982)). “That Amendment erects no shield against merely private conduct, however discriminatory or wrongful.” Blum, 457 U.S. at 1002 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). “Faithful adherence to the ‘state action’ requirement of the Fourteenth Amendment requires careful attention to the gravamen of the plaintiff’s complaint.” Blum, 457 U.S. at 1003. “To ascertain whether there is state action in a case, we examine the record to determine ‘whether the conduct at issue is fairly attributable to the state.’” Wickersham v. City of Columbia, 481 F.3d 591, 597 (8th Cir. 2007) (quoting Montano v. Hedgepeth, 120 F.3d 844, 848-849 (8th Ci. 1997)). “We are guided in this inquiry by two additional queries: whether the claimed deprivation ‘resulted from the exercise of a right or privilege having its source in state authority’ and whether the party engaging in the deprivation ‘may appropriately characterized as [a] state actor[].’” Wickersham, 481 F.3d at 597 (quoting Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)) (alterations in original).
In determining whether the conduct at issue, in this case the discrimination by potential employers and town residents against individuals on the basis of their national origin, is attributable to the City, the Court examines the two queries quoted by the Eighth Circuit. Wickersham, 481 F.3d at 597. The first requirement is that “the claimed deprivation resulted from the exercise of a right or privilege having its source in state authority . . ..” Id. This requirement is not met in the present case. The Ordinance at issue does not permit an employer to discriminate against potential employees on the basis of national origin. The only authority
41

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 42 of 57
granted to employers under the Ordinance, is the authority to refuse to hire an individual who fails to provide the documentation, required by Federal law, showing employment status. The Ordinance in no way authorizes an individual employer to discriminate on the basis of national origin, and therefore this conduct cannot be attributed to the State, or in this case the local City. Plaintiffs’ alternate theory, that the Ordinance provides the basis for individual discrimination on the basis of national origin through the Ordinances complaint procedure, also fails to meet this requirement. The Ordinance explicitly invalidates any complaints that are made on this basis alone; this can hardly be said to be the basis of the right or privilege to discriminate. Furthermore, a complaint procedure in and of itself does not violate the equal protection clause.30 Plaintiffs also fail to meet the second requirement articulated by the Eighth Circuit; “the party engaging in the deprivation may be appropriately characterized as a state actor.” Id. (internal quotation and alterations omitted). The individuals in question would be either employers, or City residents. The fact that a local law requires that employers comply with Federal documentation requirements, or suffer penalties, does not make those employers state actors. Nor are City residents acting as state actors in filing complaints against business entities that hire illegal workers. It cannot be said that “the government [is] so entangled in private conduct that the deed of an ostensibly private organization or individual is to be treated as if a State had caused it to be performed.” Id. (internal quotation omitted). The Ordinance in question causes action on the part of employers and residents, but it cannot be said to cause the action which would result in discrimination.
Plaintiffs cite to a number of cases in which the Supreme Court held that a state or local law encouraged conduct which violated the United States Constitution, and therefore the private
30The federal law provides a similar procedure, which Plaintiffs do not challenge. 42

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 43 of 57
conduct was found to be state action. Plaintiffs cite to the case of Robinson v. State of Florida, in which the Supreme Court found that a Florida law requiring separate toilet and lavatory facilities for African Americans and whites was sufficient state involvement in the illegal action of private restaurants refusing to serve both races, as it places “burdens upon any restaurant which serves both races, burdens bound to discourage the serving of the two races together.” 378 U.S. 153, 156 (1964). While the Supreme Court did not require the illegal action to be written into the statute in Robinson, the relationship between the illegal conduct and the requirements of the statute was very close. Id. Such a close relationship is not present in the case at bar. There is a burden related to the imposition of the statute, however, that burden does not encourage employers to refuse to hire Hispanics as suggested by Plaintiffs. The Court also notes that this alleged burden, is already mandated under Federal law. Plaintiffs also cite to the case of Reitman v. Mulkey, in which the Supreme Court held that a California law which was “intended to authorize, and does authorize racial discrimination in the housing market” was unconstitutional. 387 U.S. 369, 380 (1967). Part of the basis for the Supreme Court’s decision in that case, was that prior to passing the law at issue, the California state legislature had repealed an existing law forbidding private racial discrimination. Id. at 381. The Supreme Court viewed this as evidence of the legislatures intent to permit racial discrimination in the housing market. Id. Again, this case is distinct from the present case, as the Supreme Court clearly focused on the intent of the legislature to allow private discrimination, thus constituting state action. Id. The Ordinance in question in no way authorizes individuals to discriminate against Hispanics, and in fact specifically warns against the validity of such conduct. Therefore, any potential discrimination that results in the hiring of employees, or in the filing of complaints, cannot fairly be construed as being caused by State action.
43

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 44 of 57
c. Merits As the Court has found that Plaintiffs lack standing, and alternately that the claimed discriminatory action lacks state action, it is unnecessary to address the merits of Plaintiffs’ equal protection claim. However, to ensure that all issues are fully addressed, the Court will briefly touch on the merits of Plaintiffs’ claim. This requires a brief discussion of both Plaintiffs’ facial challenge asserting that the Ordinance has a discriminatory impact, and Plaintiffs’ assertion that the Ordinance was passed with a discriminatory intent. The first question to be determined is what classification is being challenged, upon making such a determination, the Court then applies the appropriate test to determine whether the challenged conduct violates the Equal Protection Clause. Plaintiffs characterize the Ordinance at issue as one which classifies individuals on the basis of national origin, which would require analysis under the strict scrutiny test. Conversely, Defendant argues that the Ordinance classifies individuals on the basis of immigration status, and thus requires application of the rational basis test. See Plyler, 457 U.S. at 223 (“Undocumented aliens cannot be treated as a suspect class because their presence in this country in violation of federal law is not a ‘constitutional irrelevancy.’”). The Ordinance in question classifies workers on the basis of immigration status, that is whether they are legally permitted to work in the United States. Such a classification does not require strict scrutiny by this Court, but rather the City need only show that there is a rational basis between the Ordinance and the purpose for which it was passed. Id. The City specifically states in the second section of the Ordinance that “illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and our residents to substandard quality of care, contributes to other burdens on public services, increasing their costs and diminishing their availability, diminishes our overall quality of life, and endangers the
44

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 45 of 57
security and safety of the homeland.” Ordinance No. 1722, § 1C. The Court recognizes that such a finding of purpose would fall into a different analysis under strict scrutiny, required in the context of a suspect classification, however, the rational basis standard requires far less analysis. Plyler, 457 U.S. at 224; see also Pennell v. City of San Hose, 485 U.S. 1, (1988) (“[W]e will not overturn a statute that does not burden a suspect class or a fundamental interest unless the varying treatment of different groups or persons is so unrelated to the achievement of any combination of legitimate purposes that we can only conclude that the legislature’s actions were irrational.” (internal quotation omitted)). The Court in Plyler, also stated that “the States do have some authority to act with respect to illegal aliens, at least where such action mirrors federal objectives and furthers a legitimate state goal.” Id. at 225. On its face, Ordinance No. 1722 does not violate the Equal Protection Clause of the Fourteenth Amendment.
The majority of the evidence submitted by Plaintiffs is in support of their claim that the Ordinance in question was intended to discriminate against Hispanics. In support of this assertion, Plaintiffs point to evidence of comments made by the Mayor, and subsequently reported in a local newspaper article, as well as materials circulated to the Board of Alderman prior to the passage of the Ordinance at issue. Defendant disputes that this information is sufficient to support a finding of discriminatory intent.
The Supreme Court in Rogers v. Lodge, held that a legislative scheme that is not on its face unconstitutional, may violate the Fourteenth Amendment “if ‘conceived or operated as purposeful devices to further racial discrimination’ . . ..” 458 U.S. 613, 617 (1982) (quoting Whitcomb v. Chavis, 403 U.S. 124, 149 (1971). The Supreme Court in Whitcomb stated that “the courts have been vigilant in scrutinizing schemes allegedly conceived or operated as purposeful devices to further racial discrimination.” 403 U.S. at 149. The Court notes that there
45

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 46 of 57
can be no claim that the Ordinance operates to discriminate, as it has yet to be enforced, but the Court will review the claim that it was conceived as a “purposeful device[] to further racial discrimination.” Id. A court addressing the question of the validity of an Ordinance, “must keep in mind the fundamental principal that ‘official action will not be held unconstitutional solely because it results in a racially disproportionate impact . . .. Proof of racially discriminatory intent or purpose is required to show a violation of the Equal Protection Clause.’” Hernandez v. New York, 500 U.S. 352, 359-360 (1991) (quoting Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 264-265 (1977)). “Discriminatory purpose implies more than intent as volition or intent as awareness or consequences. It implies that the decisionmaker selected a particular course of action it least in part because of, not merely in spite of, its adverse effects upon an identifiable group.” Hernandez, 500 U.S. at 360 (internal alterations and citations omitted).
The Court must decide whether Plaintiffs have presented evidence, sufficient to show a genuine issue of material fact. The Court finds that Plaintiffs fail to meet this standard. As an initial matter, the Court notes that Plaintiffs must show discriminatory intent by the Alderman, and not only by the Mayor. Even assuming that the City was aware that the Ordinance would disproportionately effect Hispanic applicants, and assuming that such a negative impact results,31 there is no evidence that the Ordinance was passed because of this negative impact. The testimony of each of the Board of Aldermen belies this assertion. Each one testified to their reasons for passing the Ordinance, and each reason related to the impact of illegal workers on the job market, the strain on the local economy because of illegal immigrants, and the impact on other
31The Court notes that if the Ordinance is enforced as written, there will be no discrimination against Hispanics. The only classification in the statute is on the basis of work eligibility.
46

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 47 of 57
local services. While the Court recognizes that personal statements made by legislatures are relevant to a determination of intent, Arlington Heights, 429 U.S. at 268, the only evidence of that in this case involves the Mayor, and not the Aldermen. Plaintiffs point to the lack of discussion during the meeting at which the Ordinance was passed, as evidence supporting their decision. However, this lack of discussion forces the Court to look more directly at the terms of the Ordinance, and the testimony of the Aldermen in their depositions. The Ordinance itself provides the reason for its passage, and each statement by the Aldermen support this purpose. The Court concludes that the evidence provided by Plaintiffs, even were the Plaintiffs able to meet the standing requirements, is insufficient to support a jury verdict in their favor on the question of discriminatory intent.
3. Due Process Plaintiffs assert that the Ordinance violates the due process clause because it subjects Plaintiffs to the potential deprivation of their businesses without providing standards or guidance for compliance, it does not provide for pre-sanction hearing, and provides no meaningful process or procedure by which Plaintiffs might challenge Defendant’s determination that Plaintiffs have violated the ordinance. Pls. Response in Opposition to Def. Mot. for Summ. Judg., 29. Defendant disputes Plaintiffs’ factual assertions, as well as their legal conclusion that the process provided is insufficient. “Procedural due process imposes constraints on governmental decisions which deprive individuals of ‘liberty’ or ‘property’ interests within the meaning of the Due Process Clause of the Fifth or Fourteenth Amendment.” Mathews v. Eldridge, 424 U.S. 319, 332 (1976). “For more than a century the central meaning of procedural due process has been clear: Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must
47

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 48 of 57
first be noticed.” Fuentes v. Shevin, 407 U.S. 67, 80 (1972). It is undisputed that “some form of hearing is required before an individual is finally deprived of a property interest.” Mathews, 424 U.S. at 333. It is also undisputed that a business license constitutes a property interest. See Bell v. Burson, 402 U.S. 535, 539 (1971) (“Suspension of issued licenses thus involves state action that adjudicates important interests of the licensees. In such cases the licenses are not to be taken away without procedural due process required by the Fourteenth Amendment.”); see also Tanasse v. City of St. George, 1999 WL 74020, *2 (10th Cir. February 17, 1999). Plaintiffs’ argument centers on the requirement of a pre-deprivation hearing. However, the Supreme Court in Mathews, held that “the fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” 424 U.S. at 333 (quoting Armstrong v. Manzo, 380 U.S. 545, 552 (1965)). The Supreme Court in Mathews held that there are three distinct factors to consider in identifying the specific dictates of due process: “First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” 424 U.S. at 334-35. The Supreme Court has further made clear that determining what process is required “is influenced by the extent to which he [the recipient of the procedure] may be condemned to suffer a grievous loss . . ..” Goldberg v. Kelly, 397 U.S. 254, 263 (1970).
Plaintiffs’ first argument is easily disposed. Plaintiffs assert that the ordinance fails to provide notice of how to comply. The text of the Ordinance itself belies this assertion. The Ordinance requires that “[i]t is unlawful for any business entity to recruit, hire for employment, or
48

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 49 of 57
continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part within the city.” Ordinance No. 1722, § 4A. Clearly a business is on notice that if it hires an unlawful worker, then it will be in violation of the code. Furthermore, the Ordinance requires that when applying for a business license, that person “shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.” Ordinance No. 1722, § 4A. The Court will not repeat the remaining provisions in full, as they are cited above. However, the Court notes that the Ordinance goes on to state how the statute will be enforced, and how a business that is found to be in violation of the Ordinance should proceed. Ordinance No. 1722, § 4B. The Court finds nothing confusing about these provisions, and therefore, concludes that Plaintiffs have sufficient notice as to how to comply. Plaintiffs also argue that the Ordinance gives no guidance on how a business entity is to determine the work status of an individual employee. Plaintiffs are correct that the Ordinance does not specifically provide information on how to determine the status of an employee. However, it does encourage the use of the BasicPilot program, which can be used to determine an individuals work status. Furthermore, all employers are required to determine the work status of an employee under Federal law, therefore, the Court does not see this as a valid complaint by the Plaintiffs. Plaintiffs further argue that only an immigration judge can make a final determination regarding the lawful status of any alien. Pls. Memo. in Opposition to Def. Mot. for Summ. Judg., 30 (citing 8 U.S.C. § 1229a(a)(3)). Plaintiffs are correct in this statement, however, nowhere in the Ordinance are Plaintiffs required to make an absolute determination regarding a worker’s status. Plaintiffs are required to refrain from knowingly hiring an unlawful worker, and upon the filing of a valid complaint, they are required to show documentation for the accused unlawful worker. No deprivation of business license takes place
49

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 50 of 57
until after the worker is in fact found to be unlawful, a determination made by the federal
government. Furthermore, such deprivation is immediately remedied upon action taken by the
business entity to correct the violation. Ordinance No. 1722, § 4B.(6).
Plaintiffs’ next argument requires further discussion. Plaintiffs assert that the Ordinance
fails to provide sufficient process before depriving a business of its business license.32 The key
question presented by the Parties, is whether a pre-deprivation hearing is required, and if so, does
the Ordinance satisfy this obligation? The Court begins by looking at the predeprivation process
that is provided in the Ordinance. The ordinance provisions at issue state:
(3) Upon receipt of a valid complaint, the Valley Park Code Enforcement Office shall, within three (3) business days, request identify [sic] information from the business entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which fails, within three (3) business days after receipt of the request, to provide such information.
(4) The Valley Park Code Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.
Ordinance No. 1722, § 4B.(3) & (4). The Ordinance also provides for a tolling of the three day
period if “[t]he business entity, after acquiring additional information from the worker, requests a
secondary or additional verification by the federal government of the worker’s authorization . . ..”
Ordinance No. 1722, § 5B.(2). Thus, the Court reads the Ordinance to provide a business entity
three days to present any documentation that it received from the worker regarding the worker’s
32Plaintiffs refer generally to the denial of a business license, or in even more extreme terms the loss of a business. However, the language of the Ordinance, quoted previously by the Court, does not mandate the permanent denial of a business license. The license is immediately reinstated one day after a violation is corrected. In the event of multiple violations, the City is authorized to suspend a business license for twenty (20) days. Ordinance No. 1722, § 4B.(7). The Ordinance does not speak of a permanent loss of a business.
50

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 51 of 57
employment eligibility. Furthermore, the business entity, upon providing the city with such documentation, may request that a verification be made from the federal government through the BasicPilot program. While this process is taking place, no suspension of the business license takes place. Plaintiffs point out that the business entity is not given an opportunity to review the contents of the complaint. The Court does not find that this is required to satisfy due process.
Plaintiffs cite the Court to the case of Stauch v. City of Columbia Heights, in which the Eighth Circuit held that “the City was required to provide the Stauches [plaintiffs] with some form of notice and opportunity for a hearing before determining they were no longer licensed.” 212 F.3d 425, 431 (8th Cir. 2000). However, the Eighth Circuit further held that a procedure by which the plaintiffs could appeal a finding of building code violations which would result in the withdrawal of a rental license was adequate process. Id. (“The Stauches concede that the Code’s procedure for appealing compliance orders provides adequate due process . . ..”). The process outlined in Stauch as sufficient, is analogous to this case. Plaintiffs in that case were told of a violation, and had a certain period of time to appeal that finding of a violation. Id. The failure to do so resulted in the loss of a rental license. Id. In this case, upon a finding by the City that a valid complaint has been made, the alleged violator is given three days to provide documentation of an employee’s work status.33 The issue before the Eighth Circuit in Stauch, was whether the City followed the procedure outlined in the code. Id. Plaintiffs argue that the contents of the complaint, and the motivation for its filing are significant to the subject of due process. The Court does not agree. Given that Plaintiffs, or any employer, are given a three day period before
33Contrary to Plaintiffs assertion, this does not have to be evidence sufficient to make a final determination of the worker’s employment eligibility, but rather must show that the employer sought verification of the employees status. Such evidence would show that the employer was not knowingly employing an unauthorized worker.
51

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 52 of 57
any adverse action is taken, Plaintiffs may easily refute any complaints which are based upon
vindictive motives. Furthermore, the only information which is relevant, is the employment status
of the business entities employees. The information contained within the complaint is not necessary for an alleged violator to refute the claims.34 The Court finds that in accordance with
the Eighth Circuit in Stauch, the Ordinance provides sufficient pre-deprivation notice and
opportunity to be heard to satisfy the requirements of due process. This is in accordance with the
three factors articulated by the Supreme Court in Mathews. 424 U.S. at 334-35. The private
interest in the present case is the suspension of a business entity’s business license. The Court
recognizes that this may be severe, however, this sanction is moderated by the immediate
reinstatement of the license following the remedy of an initial violation, and the reinstatement after
twenty (20) days following the remedy of a second or subsequent violation. Ordinance No. 1722,
§ 4B.(6) & (7). Furthermore, the procedures provided for leave little room for an erroneous
violation. An individual either is or is not authorized to work in the United States. Under the
Ordinance, a request is made of the federal government to verify an individuals status. If no
violation has occurred, then no further action is taken. Finally, the Court recognizes the City’s
interest in compliance with its local ordinances though its business licensing laws, and its further
interest, as stated in detail in the Ordinance, in limiting the employment of individuals not
34Plaintiffs cite Division of Family Services v. Cade, to support their contrary conclusion. However, that case involved the suspension of an employee pending an investigation based on alleged sexual harassment. 939 S.W.2d 546, 551 (Mo.Ct.App. 1997). The Missouri Court of Appeals found that the employee must be given notice of the allegations against him. Id. This case is clearly inapposite. Firstly, the Ordinance at issue gives notice of the alleged misconduct, because a violation of Ordinance No. 1722 necessarily involves the hiring of unauthorized workers. Secondly, in Cade, the court of appeals cited to a Missouri statute, which required “that in the case of any suspension over five days in length, an employee so requesting shall be furnished with a copy of ‘a statement in writing specifically setting forth the reason for such suspension.’” 939 S.W.2d at 551 (quoting Mo.Rev.Stat. § 36.270) (emphasis in original). No such similar statute is present in the case at bar.
52

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 53 of 57
authorized to work in the United States. See Ordinance No. 1722, § 2. The pre-deprivation procedure provided is in line with the factors articulated in Mathews, and fairly balances the interests of the government with the potential wrongful deprivation of a business entity’s business license.
The Court next considers Plaintiffs assertion that the post-deprivation process is insufficient. Having found that the pre-deprivation process was sufficient, it is not clear that any further analysis is required. However, both parties present arguments on the sufficiency or lack thereof, of the Ordinance’s post-deprivation process, and therefore the Court will briefly address it. As recognized by Plaintiffs, the Ordinance permits appeal to the City’s Board of Adjustment. Ordinance No. 1722, § 5E. This provision further provides for appeal from the Board of Adjustment to the St. Louis County Circuit Court. Plaintiffs contend that this reference alone is insufficient to satisfy the constitutional requirements, because it does not detail “what procedures will be afforded as part of a challenge, the standards for reviewing a challenge and the criteria for sustaining or rejecting the challenge.” Pls. Memo. in Opposition to Def. Mot. for Summ. Judg., 36. Plaintiffs proposed requirements are higher than those mandated by the due process clause. Plaintiffs cite to the case of Martinez v. Ibarra, where a Colorado district court judge held that a Minnesota regulation which failed to articulate “clear, written standards” for its review procedures failed to comply with due process. 759 F.Supp. 664, 668 (D.Colo. 1991). However, that case is not analogous to the present case. The Ordinance at issue clearly delineates the requirements placed upon a business entity, and further articulates the process by which a business entity may challenge a finding of a violation by the City. While the Ordinance does not state every detail, this is not the requirement the Colorado court had in mind, and is not what is required by due process. “[T]he fundamental requirement of due process is the opportunity to be heard ‘at a
53

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 54 of 57
meaningful time and in a meaningful manner.’” 424 U.S. at 333 (quoting Armstrong v. Manzo,
380 U.S. 545, 552 (1965)). The Ordinance complies with this requirement.
4. Violation of Missouri Law
Plaintiffs final assertion is that the Ordinance violates Missouri law, because it imposes the
sanction of revocation of a business license in excess of the authority granted a fourth class city.
Plaintiffs assert that Ordinance No. 1722 violates Missouri law because: “(1) it is not a licensing
law, and yet imposes revocation of a business license as a sanction, and (2) it does not provide for
due process prior to the revocation of a license.” Pls. Memo. in Opposition to Def. Mot. for
Summ. Judg., 36-37. The Second assertion requires no further discussion. The Court has
conclusively decided the procedural due process question, and Plaintiffs have cited to no
provision of Missouri Law which imposes more stringent procedural requirements on a City, in
excess of those mandated by the due process clause of the United States Constitution.
The Plaintiffs main argument is that the suspension of business license may only be
imposed in conjunction with the violation of a business licensing law. The Parties disagree over
whether the Ordinance in question is a licensing law or not. The Court has previously addressed
this question in the context of preemption. The Ordinance in question requires business entities to
comply with the Ordinance’s obligations as a condition precedent to the receipt of, or continued
possession of a business license. This is clearly a licensing law. Missouri law states that:
The mayor and board of aldermen shall have power and authority to regulate and to license and to levy and collect a license tax on auctioneers, druggists, hawkers, peddlers, banks, brokers, pawnbrokers, merchants of all kinds, grocers, confectioners, restaurants, butchers, taverns, hotels, public boardinghouses, billiard and pool tables and other tables, bowling alleys, lumber dealers, real estate agents, loan companies, loan agents, public buildings, public halls, opera houses, concerts, photographers, bill posters, artists, agents, porters, public lecturers, public meetings, circuses and shows, for parades and exhibitions, moving picture shows, horse or cattle dealers, patent right dealers, stockyards, inspectors, gaugers, mercantile agents, gas companies, insurance companies, insurance agents, express companies, and express agents, telegraph
54

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 55 of 57
companies, light, power and water companies, telephone companies, manufacturing and other corporations or institutions, automobile agencies, and dealers, public garages, automobile repair shops or both combined, dealers in automobile accessories, gasoline filling stations, soft drink stands, ice cream stands, ice cream and soft drink stands combined, soda fountains, street railroad cars, omnibuses, drays, transfer and all other vehicles, traveling and auction stores, plumbers, and all other business, trades and avocations whatsoever . . ..
Mo.Rev.Stat. § 94.270.1. This Missouri law gives the Defendant City the authority to regulate
and license all businesses within the City of Valley Park. Furthermore, this authority, granted to
the City by Missouri law, was held by the Missouri Supreme Court to include the power to
revoke. See Horton v. Clark, 293 S.W. 362, 366 (Mo. 1927) (“[T]here is no possible distinction
in this respect between refusing to grant a license and revoking one already granted. Both acts
are an exercise of the police power.”); see also McClellan v. Kansas City, 379 S.W.2d 500, 504
(Mo. 1964) (“The police power is such that any trade, calling, or occupation may be reasonably
regulated in the interest of the public welfare if the general nature of the business is such that,
unless regulated, many persons may be exposed to hazards and misfortunes against which the
legislative body can properly protect them.” (internal citation omitted)). The Court concludes
that the City not only has the authority to issue business licenses upon the terms articulated in the
Ordinance, it also has the authority to revoke that license upon violation of the Ordinance.35 This
conclusion further negates Plaintiffs’ argument that a city is limited by Missouri statute to
imposing a fine of no more than $500.00 and imprisonment of not more than 90 days.
Mo.Rev.Stat. § 79.470. This statute refers to penalties that may be imposed for ordinance
35Plaintiffs assertion that the Ordinance is not a licensing law and therefore cannot impose such a penalty would lead to an unreconcilable result. It would allow a City to impose the restrictions against hiring illegal aliens upon business entities, if those restrictions were written into the same ordinance that provides for the issuance of a business license. However, it would disallow such a result in the case here, where a separate ordinance is passed to place additional restrictions on the issuance of a business license. There is no difference between these two scenarios. Both involve the issuance of a business license, and therefore both are licensing laws.
55

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 56 of 57
violations in general. However, the specific provisions on licenses clearly allow for the imposition of the revocation of a license, thereby making the provision regarding fines and prison time inapplicable. The Court concludes that the Ordinance at issue does not violate Missouri law.
D. CONCLUSION The Court concludes that Plaintiffs have failed to provide sufficient evidence to create a genuine issue of material fact on any of the allegations in support of their motion for a preliminary injunction. The Ordinance at issue is not preempted by federal law, to the contrary, federal law specifically permits such licensing laws as the one at issue. Furthermore, Plaintiffs lack standing to bring their claim of an equal protection violation, and in the alternative, they have failed to provide any evidence supporting a constitutional violation on this basis. The Court also finds that Plaintiffs due process claim fails. To satisfy due process, a governmental entity must provide sufficient pre and post-deprivation process before infringing upon a property right. The Ordinance unquestionably provides such process. A business entity is given an opportunity to contest any complaint against it, and is entitled to challenge any suspension of a license, all the way through the judicial process, if necessary. Lastly, the Court concludes that the Ordinance at issue does not violate Missouri law. For these reasons, the Court concludes that Plaintiffs’ claim for injunctive relief cannot succeed, and judgment is appropriately granted in favor of Defendant. Accordingly, IT IS HEREBY ORDERED that Plaintiffs’ Motion for Issuance of a Declaratory Judgment [doc. #50] is DENIED. IT IS FURTHER ORDERED that Defendant’s Motion for Summary Judgment [doc. #53] is GRANTED.
56

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 57 of 57 IT IS FURTHER ORDERED that Plaintiffs’ Motion for Summary Judgment [doc. #73]
is DENIED. IT IS FURTHER ORDERED that Plaintiffs’ Motion for Sanctions [doc. #117] is
DENIED. Dated this 31st Day of January, 2008. ____________________________________ E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE
57

 
 IN THE CIRCUIT COURT FOR THE COUNTY OF ST. LOUIS STATE OF MISSOURI

Jacqueline Gray,

Plaintiff,
v.
City of Valley Park, Missouri,
Defendant.
Serve at: City Clerk's Office 320 Benton Street Valley Park, MO 63088
HOLD SERVICE

) Division: ) ) Cause ) ) ) ) ) ) ) )

Petition for Declaratory and Injunctive Relief Plaintiff Jacqueline Gray, for her cause of action against Defendant City of Valley Park, Missouri, states as follows:
Preliminary Statement Plaintiff owns real property in the City of Valley Park, which she leases to tenants. This action, brought pursuant to the Declaratory Judgment Act, Mo.R.Stat. § 527.010, et seq., seeks to obtain a determination of Plaintiff's "rights, status, and other legal relations" with respect to Valley Park Ordinance No. I 721, as amended by Valley Park Ordinance

Nos. 1723 and 1725, and Valley Park Ordinance No. 1722, as amended by Ordinance 1724. The challenged ordina..f1ces purport to regulate immigration within the City of Valley Park. Plaintiff seeks declaratory and injunctive relief.
Parties 1. Plaintiff ,Jacqueline Gray is an adult citizen and resident of the State of Missouri. 2. Defendant City of Valley Park is a City ofthe fourth class located in St. Louis County, Missouri.
Jurisdiction and Venue 3. This Court has jurisdiction of this action pursuant to Art. 5, § 14 of the Missouri Constitution. 4. Venue is proper in this Court pursuant to Mo.R.Stat. § 508.010.2(1).
Factual Allegations 5. Plaintiff is a resident of St. Louis County who presently owns rental units in Valley Park. 6. Plaintiff owned rental units in Valley Park at the time Valley Park Ordinance No. 1721, as amended by Valley Park Ordinance Nos. 1723 and 1725, and Valley Park
2

Ordinance No. 1722, as amended by Ordinance No. 1724 were enacted.
7. Plaintiff's ability to rent her Valley Park rental units in the future and the marketability of her rental units should she determine to sell them are hampered and interfered with by Valley Park Ordinance No. 1721, as amended by Valley Park Ordinance Nos. 1723 and 1725.
8. Plaintiff is a "business entity" as that term is defined in Valley Park Ordinance No. 1722, as amended by Ordinance 1724.
9. Plaintiff has legally protected interests in the unconstitutional acts of the City of Valley Park.
Background 10. On July 17, 2006, the City of Valley Park, Missouri passed Ordinance No. 1708, entitled "An Ordinance Relating to Illegal Immigration Within the City of Valley Park, Mo.," which ordinance sought to regulate federal immigration matters. See Exhibit A.
3

11. . On September 22,2006, Plaintiff Gray and others! filed suit in the Circuit Court of S1. Louis alleging Ordinance No. 1708 violated Missouri state law as well as federal law.
12. On September 25,2006, Circuit Court Judge Barbara W. Wallace entered a Temporary Restraining Order in regards to Ordinance No. 1708.
13. On September 26,2006, the City of Valley Park, Missouri enacted Ordinance No. 1715, entitled "An Ordinance Repealing Sections One, Two, Three[,J and Four of Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of and Harboring of Illegal Aliens Within the City of Valley Park, MO," which ordinance sought to regulate federal immigration matters. See Exhibit B.
14. On September 27,2006, Circuit Court Judge Barbara W. Wallace entered a Temporary Restraining Order in regards to Ordinance No. 1715.
In addition to plaintiff, Stephanie Reynolds, Florence Streeter and the Metropolitan St. Louis Equal Housing Opportunity Council were named plaintiffs in this suit. The case was captioned Reynolds, et al., v. City of Valley Park, et al., and docketed in this Court as cause no. 06-CC3802 in Division no. 13.
4

15. On October 14,2006, the City of Valley Park, Missouri enacted Ordinance No. 1716, making it retroactive to October 4,2006, entitled "An Ordinance Appointing Kris Kobach As Special Counsel For Reynolds, et al.LYs. Valley Park, Mo, eL at," for the purpose of defending the City of Valley Park in federal court. See Exhibit C.
16. On February 14,2007, the City of Valley Park, Missouri enacted Ordinance No. 1721 entitled "An Ordinance Repealing Section 510.020 Subsection 103.6.1 Of The Property Maintenance Code Relating To Inspections And Occupancy Permits And Enacting A New Ordinance In Lieu Thereof Relating To The Same Subject Matter," which seeks to regulate immigration matters, specifically, the rental of dwellings to aliens unlawfully in the United States. See Exhibit D.
17. On February 14, 2007, the City of Valley Park, Missouri enacted Ordinance No. 1722, entitled "An Ordinance Repealing Ordinance No. 1715 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of Illegal Aliens Within the City of Valley Park, Mo." which seeks
5

to regulate immigration matters, specifically, the employment of illegal aliens. See Exhibit E.
18. On Februcuy 14,2007, the City of Valley Park, Missouri enacted Ordinance No. 1723, entitled "An Ordinance Amending Bill 1866, Proposed Ordinance 1721, Pertaining to the Property Maintenance Code Relating to Inspections and Occupancy Permits by Clarifying Section Two and Section Three Thereof," which Ordinance amended portions of an earlier Ordinance which seeks to regulate immigration matters, specifically, the rental of dwellings to aliens unlawfully in the United States. See Exhibit F.
19. On February 14,2007, the City of Valley Park, Missouri enacted Ordinance No. 1724, entitled "An Ordinance Amending Bill 1867, Proposed Ordinance 1722, Pertaining to the Employment of Illegal Aliens by Adding Language to Section Seven Thereof Clarifying the Effective Date," which Ordinance amended portions of Ordinance 1722 which seeks to regulate immigration matters, specifically, the employment of Illegal Aliens. See Exhibit G.
6

20. On February 27,2007, the City of Valley Park, Missouri enacted ordinance No. 1725, entitled "An Ordinance Amending Ordinance 1723 Pertaining to the Effective Dates of the Property Maintenance Code Providing that the Enforcement of Ordinance 1721 Shall Become Effective Immediately," which ordinance amended Ordinance 1723 to make, which in turn had amended Ordinance 1721, to make the provision of Ordinance 1721 effective and enforceable immediately. See Exhibit H.
21. On March 12, 2007, Circuit Court Judge Barbara W. Wallace ordered that the temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance No. 1715 be made permanent. See Exhibit L
Federal Regulation of Immigration 22. The power to regulate immigration is an exclusively Federal power that derives from the Constitution's grant to the Federal government of the power to "establish a uniform Rule of Naturalization," U.S. Const. art. I, § 8, cL 4., and to "regulate Commerce with foreign Nations." Id., cL 3.
7

23. Pursuant to its exclusive power over matters of immigration, the Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States.
24. In addition to provisions that directly regulate immigrants' entry and behavior, the Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. Thus, the comprehensive Federal immigration scheme includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States.
25. The laws, procedures, and policies created by the Federal government regulate immigration and confer rights in a careful balance reflecting the national interest.
8

Cause of Action 26. Valley Park Ordinance No. 1721, as amended by Valley Park Ordinance No. 1723 cmd 1725 (hereinafter "Ordinance 1721") is void and unenforceable because:
a. It violates the Supremacy Clause of the Constitution of the United States. U.S. Const. art VI, cl. 2. The power to regulate immigration vests exclusively in the federal government. Ordinance 1721 encroaches on the federal government's exclusive power to regulate immigration, legislates in a field that is completely occupied by the federal government, and conflicts with federal laws, regulations, policies, and objectives;
b. It conflicts with and violates the Fair Housing Act, 42 U.S.C. § 3601, et seq. The Fair Housing Act prohibits housing practices based on, inter alia., race, color, and national origin, including refusing to rent based on the race, color, or national origin of a prospective tenant. 42 U.S.C. §3604. By delaying the occupancy of any person whose lawful presence in the United States cannot be proven instantly,
9

Ordinance 1721 places landlords in the untenable position of choosing between violating the Fair Housing Act or leaving their rental units unoccupied for the indefinite period during which a prospective tenant attempts to satisfy the City of Valley Park that she is lawfully present in the United States;
c. It is preempted by the Fair Housing Act. In the manner described, supra., Ordinance 1721 stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the Fair Housing Act; and
d. It provides Plaintiff insufficient procedural due process, in violation of the Fourteenth Amendment to the Constitution of the United States, in that Plaintiff cannot fully comply with Ordinance 1721 without violating other laws, including the Fair Housing Act.
27. Valley Park Ordinance No. 1722, as amended by Ordinance No. 1724 (hereinafter "Ordinance 1722") is void and unenforceable because:
a. Its penalty provision exceeds that authorized by Mo.R.Stat. § 79.470;
10

b. It is not meaningfully different from Valley Park Ordinance No. 1715, which was declared void and permanently enjoined by the Honorable Barbara W. Wallace on March 12,2007, so the City of Valley Park is estopped from enforcing the law under the principles of res judicata and collateral estoppel;
c. It violates the Supremacy Clause of the Constitution of the United States. U.S. Canst. art VI, cl. 2. The power to regulate immigration vests exclusively in the federal government. Valley Park Ordinance 1722 encroaches on the federal government's exclusive power to regulate immigration, legislates in a field that is completely occupied by the federal government, and conflicts with federal laws, regulations, policies, and objectives; and
d. It conflicts with, violates, and is preempted by the Immigration Reform and Control Act of 1986.
WHEREFORE, plaintiff prays this Court grant a declaratory judgment in plaintiffs favor against defendant that the challenged ordinances are void; grant temporary and permanent injunctive relief enjoining defendant from enforcing
11

the challenged ordinances; award plaintiff the costs of this action, including reasonable attorneys' fees; and grant such other or further relief as is just and proper.
Res ectfully submitted,
By: Anthony E. Rothert, #44827 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile
Green Jacobson & Butsch P.C. Fernando Bermudez, #39943 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile
12

OfCounse1: Mexican American Legal Defense
and Educational Fund Ricardo Meza Jennifer Nagda 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile
American Civil Liberties Union Foundation Immigrants' Rights Project
Lee Ge1ernt Omar C. Jadwat 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2620 (212) 549-2654 facsimile
13

 
 IN THE CIRCUIT COURT FOR THE COUNTY OF ST. LOUIS STATE OF MISSOURI

Windhover, Inc., and Jacqueline Gray, Plaintiffs, v.
City of Valley Park, Missouri, Defendant.

) ) ) Division 18 ) ) Cause No. 07-CC-1103 ) ) ) )

AMENDED PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF Plaintiffs Windhover, Inc. and Jacqueline Gray, for their amended petition against Defendant City of Valley Park, Missouri, state as follows:
PRELIMINARY STATEMENT 1. This action is brought pursuant to the Declaratory Judgment Act, Mo.R.Stat. § 527.010, et seq. and Missouri Supreme Court Rule 87, to seek a declaration of Plaintiffs’ “rights, status, and other legal relations” with respect to Valley Park Ordinance No. 1721, as amended by Valley Park Ordinance Nos. 1723 and 1725 (together “Ordinance 1721”), and Valley Park Ordinance No. 1722, as amended by Ordinance 1724 (together “Ordinance 1722”). The challenged ordinances purport to regulate immigration within the City of Valley Park. Plaintiffs seek a preliminary and permanent injunction restraining enforcement of those provisions. 2. Ordinances 1721 and 1722 are an attempt to circumvent this Court’s March 12, 2007 permanent injunction restraining the enforcement of anti-immigrant Ordinance No. 1708 and Ordinance No. 1715. Like the permanently enjoined ordinances, Ordinances 1721 and 1722 are aimed at usurping the federal government’s exclusive power to regulate immigration and are

aimed in particular at immigrants of Hispanic origin. Ordinance 1721 denies an occupancy permit to any prospective tenant who is an “alien unlawfully present in the United States.” Ordinance 1722 purports to penalize businesses who employ “illegal aliens.” Public comments by the mayor of Valley Park strongly suggest that those ordinances are motivated by racial animus toward Mexican immigrants in particular. The ordinances and their predecessors have caused, or threaten to cause, landlords and businesses to engage in racial profiling and violate federal anti-discrimination laws. The ordinances threaten to cause the Plaintiffs to lose business by delaying or preventing them from obtaining occupancy permits for potential tenants, and threaten to subject the Plaintiffs to enforcement actions by the City without due process. Ordinances 1721 and 1722 should be enjoined.
PARTIES 3. Plaintiff Windhover, Inc. (“Windhover”) is a Missouri corporation with its principal place of business in Valley Park, Missouri. Windhover owns rental units in the City of Valley Park. 4. Plaintiff Jacqueline Gray is an adult citizen and resident of the City of Valley Park in the State of Missouri. Jacqueline Gray is the sole owner and principal of Windhover, Inc. 5. Defendant City of Valley Park is a City of the fourth class located in St. Louis County, Missouri.
JURISDICTION AND VENUE 6. This Court has jurisdiction of this action pursuant to Art. 5, § 14 of the Missouri Constitution. 7. Venue is proper in this Court pursuant to Mo.R.Stat. § 508.010.2(1).
2

FACTUAL ALLEGATIONS 8. Windhover owned rental units in Valley Park at the time Valley Park Ordinances 1721 and 1722 were enacted. 9. Windhover’s ability to rent its Valley Park rental units in the future and the marketability of its rental units should it determine to sell them are hampered and interfered with by Valley Park Ordinance 1721. 10. Windhover is a “business entity” as that term is defined in Valley Park Ordinance 1722. Ordinance 1722 would require the Plaintiffs to investigate and determine the immigration status of any person it hires or contracts to perform work on its properties, and, because Plaintiffs do not know how to determine a person’s immigration status, would subject them to the enforcement provisions of Ordinance 1722. 11. Plaintiffs have legally protected interests that are threatened or violated by the unconstitutional acts of the City of Valley Park.
BACKGROUND 12. On July 17, 2006, the City of Valley Park, Missouri passed Ordinance No. 1708 (“Ordinance 1708”), entitled “An Ordinance Relating to Illegal Immigration Within the City of Valley Park, Mo.,” which ordinance sought to regulate federal immigration matters. See Exhibit A. In particular, Ordinance 1708 purported to penalize any landlord or business who leased property to or employed an “illegal alien.” 13. On September 22, 2006, Plaintiff Gray and others1 filed suit in the Circuit Court for the County of St. Louis alleging that Ordinance No. 1708 violated Missouri state law as well as federal law.
1 In addition to Plaintiff Gray, Stephanie Reynolds, Florence Streeter and the Metropolitan St. Louis Equal Housing Opportunity Council were named plaintiffs in the September 22, 2006
3

14. On September 25, 2006, Circuit Court Judge Barbara W. Wallace entered a Temporary Restraining Order enjoining enforcement of Ordinance 1708.
15. On September 26, 2006, the City of Valley Park, Missouri enacted Ordinance No. 1715 (“Ordinance 1715”), entitled “An Ordinance Repealing Sections One, Two, Three and Four of Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of and Harboring of Illegal Aliens Within the City of Valley Park, MO.” See Exhibit B. Among other things, Ordinance 1715 removed an “English-only” provision that was included in Ordinance 1708, but still purported to penalize any landlord or business who leased property to or employed an “illegal alien.”
16. On September 27, 2006, Judge Wallace entered an Amended Temporary Restraining Order enjoining the enforcement of Ordinance 1715.
17. On February 14, 2007, during the pendency of the action before Judge Wallace, the City of Valley Park, Missouri enacted Ordinance 1721 entitled “An Ordinance Repealing Section 510.020 Subsection 103.6.1 Of The Property Maintenance Code Relating To Inspections And Occupancy Permits And Enacting A New Ordinance In Lieu Thereof Relating To The Same Subject Matter,” which, like Ordinance 1715, seeks to regulate immigration matters, specifically, the rental of dwellings to aliens unlawfully in the United States. See Exhibit C. Ordinance 1721 requires landlords to obtain from each prospective tenant information regarding the “names, ages, citizenships, and relationships for each proposed occupant, together with such identifying information that shall be required by the City.” Exhibit C, Section Two. The landlord then must apply for an occupancy permit. Id. The Building Commissioner shall not issue an occupancy ________________________ suit. The case was captioned Reynolds, et al., v. City of Valley Park, et al., and docketed in this Court as Cause No. 06-CC-3802 in Division No. 13.
4

permit if it is determined that “any alien unlawfully present in the United States is a proposed occupant[.]” Id. Thus, under no circumstances will an occupancy permit be issued unless and until the City either determines that no proposed occupant is an “alien unlawfully in the United States” or concludes that it is unable to make that determination. Id. Ordinance 1721 initially provided that it would become effective upon, among other things, “the termination of any restraining order or injunction which [was then] in force in Cause No. 06-CC-3802[.]” Id. at 2, Section Three.
18. On February 14, 2007, the City of Valley Park, Missouri also enacted Ordinance 1722, entitled “An Ordinance Repealing Ordinance No. 1715 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment of Illegal Aliens Within the City of Valley Park, Mo.[,]” which seeks to regulate immigration matters, specifically, the employment of illegal aliens. See Exhibit D. Ordinance 1722 provides that “[i]t is unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part in the City.” Id. at 3, Section Four, A. It provides that an enforcement action may be initiated against a business entity by means of a complaint submitted by any resident of Valley Park alleging that the business entity is in violation of the Ordinance. Id. at 4. The business entity will then have 3 days in which to provide “identity information . . . regarding any persons alleged to be unlawful workers.” Id. Any business entity that does not provide the information requested by the City with 3 days or who does not correct a violation of the Ordinance within 3 days of being notified of a violation, shall have its business license suspended. Id.
5

19. On February 14, 2007, the City of Valley Park, Missouri further enacted Ordinance No. 1723, entitled “An Ordinance Amending Bill 1866, Proposed Ordinance 1721, Pertaining to the Property Maintenance Code Relating to Inspections and Occupancy Permits by Clarifying Section Two and Section Three Thereof.” See Exhibit E. Ordinance No. 1723 amended Ordinance 1721 to expressly reference Ordinance 1722 with respect to the requirement that the Valley Park Building Commission not issue an occupancy permit if “any alien unlawfully present in the United States is a proposed occupant[.]” Ex. E, Section One.
20. On February 14, 2007, the City of Valley Park, Missouri further enacted Ordinance No. 1724, entitled “An Ordinance Amending Bill 1867, Proposed Ordinance 1722, Pertaining to the Employment of Illegal Aliens by Adding Language to Section Seven Thereof Clarifying the Effective Date,” which Ordinance amended Ordinance 1722 so that it would not become effective until “the termination of any restraining orders or injunctions which [were then] in force in Cause No. 06-CC-3802[.]” See Exhibit F.
21. On February 27, 2007, the City of Valley Park, Missouri enacted ordinance No. 1725, entitled “An Ordinance Amending Ordinance 1723 Pertaining to the Effective Dates of the Property Maintenance Code Providing that the Enforcement of Ordinance 1721 Shall Become Effective Immediately,” which ordinance amended Ordinance 1723, which in turn had amended Ordinance 1721, to make Ordinance 1721 effective and enforceable immediately. See Exhibit G.
22. On March 12, 2007, Circuit Court Judge Barbara W. Wallace ordered that the temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance No. 1715 be made permanent. See Exhibit H.
23. On March 14, 2007, Plaintiff Gray initiated this action by filing a Petition for Declaratory and Injunctive Relief seeking an order enjoining the enforcement of the newly
6

enacted Ordinance 1721 and Ordinance 1722.2 Plaintiffs file this Amended Petition for Declaratory and Injunctive Relief to join Windhover as a Plaintiff and add additional causes of action.
FEDERAL REGULATION OF IMMIGRATION 24. The power to regulate immigration is an exclusively Federal power that derives from the Constitution's grant to the Federal government of the power to “establish a uniform Rule of Naturalization,” U.S. Const. art. I, § 8, cl. 4., and to “regulate Commerce with foreign Nations.” Id., cl. 3. 25. Pursuant to its exclusive power over matters of immigration, the Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States. 26. In addition to provisions that directly regulate immigrants’ entry and conduct, the Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. Thus, the comprehensive Federal immigration scheme includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States. 27. The laws, procedures, and policies created by the Federal government regulate immigration and confer rights in a careful balance reflecting the national interest.
2 As noted above, Ordinance 1722 does not become effective under its own terms until “the termination of any restraining orders or injunctions now in force [as of February 14, 2007] in Cause No. 06-CC-3802[.]” Plaintiffs challenge Ordinance 1722 in this Amended Petition to the extent that: (1) Ordinance 1724 is construed as making 1722 effective upon the termination of the preliminary injunction in Cause No. 06-CC-3802; and/or (2) the permanent injunction in Cause No. 06-CC-3802 is vacated on appeal or on remand.
7

CAUSES OF ACTION 28. Valley Park Ordinance 1721 is void and unenforceable because:
a. It violates the Supremacy Clause of the Constitution of the United States. U.S. Const. art VI, cl. 2. The power to regulate immigration vests exclusively in the federal government. Ordinance 1721 encroaches on the federal government’s exclusive power to regulate immigration, legislates in a field that is completely occupied by the federal government, and conflicts with federal laws, regulations, policies, and objectives;
b. It conflicts with and violates the Fair Housing Act, 42 U.S.C. § 3601, et seq. The Fair Housing Act prohibits housing practices based on, inter alia., race, color, and national origin, including refusing to rent based on the race, color, or national origin of a prospective tenant. 42 U.S.C. §3604. By delaying the occupancy of all prospective tenants pending the issuance of an occupancy permit, and creating the risk that the landlord will be required to repeat the process with another prospective tenant if an occupancy permit is denied, Ordinance 1721 places landlords in the untenable position of choosing between violating the Fair Housing Act by rejecting prospective tenants who appear to be of Hispanic heritage, or leaving their rental units unoccupied for the indefinite period during which a the City of Valley Park attempts to determine whether prospective tenants are lawfully present in the United States;
c. It is preempted by the Fair Housing Act. In the manner described, supra., Ordinance 1721 stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress in enacting the Fair Housing Act;
d. It violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It creates an impermissible alienage classification. Further, it has a discriminatory impact on persons of Hispanic heritage, and, on information and belief, its enactment was motivated by racial animus toward persons of Hispanic heritage; and
8

e. It violates Plaintiffs’ due process rights under the Fourteenth Amendment to the Constitution of the United States, in that it deprives Plaintiffs of potential business and of the value of their property by causing unreasonable and unjustified delays in attempting to obtain occupancy permits.
29. Valley Park Ordinance 1722 is void and unenforceable because: a. Its penalty provision exceeds that authorized by Mo.R.Stat. § 79.470; b. It is not meaningfully different from Valley Park Ordinance No. 1715,
which was declared void and permanently enjoined by the Honorable Barbara W. Wallace on March 12, 2007. Therefore, the City of Valley Park is estopped from enforcing the law under the principles of res judicata and collateral estoppel;
c. It violates the Supremacy Clause of the Constitution of the United States, U.S. Const. art VI, cl. 2, and conflicts with, violates, and is preempted by the Immigration Reform and Control Act of 1986. The power to regulate immigration vests exclusively in the federal government. Valley Park Ordinance 1722 encroaches on the federal government’s exclusive power to regulate immigration, legislates in a field that is completely occupied by the federal government, and conflicts with federal laws, regulations, policies, and objectives;
d. It violates the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. It creates an impermissible alienage classification. Further, it has a discriminatory impact on persons of Hispanic heritage, and, on information and belief, its enactment was motivated by racial animus toward persons of Hispanic heritage; and
e. It violates Plaintiffs’ due process rights under the Fourteenth Amendment to the Constitution of the United States, in that it subjects the Plaintiffs to being deprived of their business without providing any standards or guidance for compliance. Plaintiffs have no way of
9

determining the immigration status of a prospective employee or contractor, and are at risk of

violating other laws by attempting to do so.

WHEREFORE, Plaintiffs pray that this Court: (1) grant a declaratory judgment in

Plaintiffs’ favor and against Defendant that Ordinances 1721 and 1722 are void; (2) grant

preliminary and permanent injunctive relief enjoining Defendant from enforcing Ordinances

1721 and 1722, or any ordinance that is substantially the same in content as Ordinances 1721 and

1722; (3) award Plaintiffs the costs of this action, including reasonable attorneys’ fees to the

extent provided for by law; and (4) grant such other or further relief as is just and proper.

Dated: April 12, 2007

Respectfully submitted,

By: ______________________________ Fernando Bermudez, #39943 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com

Anthony E. Rothert, #44827 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org

Jenner & Block LLP Daniel J. Hurtado* Gabriel A. Fuentes* 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com

10

Omar C. Jadwat* American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004 (212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org
Jennifer C. Chang* American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org
Of Counsel:
Mexican American Legal Defense and Educational Fund
Ricardo Meza rmeza@maldef.org Jennifer Nagda jnagda@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile ____________________ * 1 Not admitted in Missouri, motion for admission pro hac vice to be filed upon receiving Rule 6.01(m) receipt from Supreme Court.
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the Amended Petition for Declaratory and Injunctive Relief was forwarded via facsimile and hand-delivery on this 12th day of April, 2007 to:
Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, Missouri 63005-1233
______________________________
11

 
 IN THE CIRCUIT COURT FOR THE COUNTY OF ST. LOUIS STATE OF MISSOURI

Windhover, Inc. and Jacqueline Gray, Plaintiffs, v.
City of Valley Park, Missouri, Defendant.

) ) ) Division 18 ) ) Cause No. 07-CC-1103 ) ) ) ) )

PLAINTIFFS’ MOTION FOR A PRELIMINARY INJUNCTION

Plaintiffs Windhover, Inc. (“Windhover”) and Jacqueline Gray (“Gray”) respectfully

move this Court pursuant to Rule 92.02 of the Missouri Rules of Civil Procedure and Mo. Rev.

Stat. § 526.030, for a preliminary injunction enjoining Defendant City of Valley Park, Missouri

(“Valley Park” or “the City”) from enforcing Valley Park Ordinance No. 1721, as amended by

Valley Park Ordinance Nos. 1723 and 1725 (together “Ordinance 1721”), and Valley Park

Ordinance No. 1722, as amended by Valley Park Ordinance No. 1724 (together “Ordinance

1722”). Plaintiffs seek preliminary relief to prevent them from suffering irreparable harm

between now and a trial on the merits. In support of their Motion, Plaintiffs state as follows:

INTRODUCTION

The challenged Ordinances improperly seek to regulate immigration within the City of

Valley Park. Ordinance 1721 prevents Valley Park landlords from leasing their dwelling units

until the City determines that no aliens “unlawfully present in the United States” will be

occupants. Ordinance 1722 requires Valley Park businesses to determine the immigration status

of anyone they hire or contract to do work, or else risk being reported by their fellow Valley Park

residents as employing “unlawful workers” and ultimately losing their business licenses. The

Plaintiffs own a duplex in Valley Park that they rent out, and for which they contract workers to

perform maintenance. The Plaintiffs fear that they will irretrievably lose renters and be subject

to enforcement actions by the City because they do not know how to determine a person’s immigration status. They fear that any attempt to screen out “unlawful workers” will put them in violation of other laws. Plaintiffs seek a preliminary injunction because there is a reasonable likelihood that they will be faced with enforcement of Ordinance 1721 and/or Ordinance 1722 before they can obtain relief in a trial on the merits.
BACKGROUND The City first came up with the idea of trying to enlist its residents to enforce federal immigration laws sometime in the summer of 2006. The City’s mayor reportedly first formed the idea when a Mexican family (legal residents) moved into his neighborhood. (Ex. A, Kristen Hinman, “Valley Park to Mexican immigrants: Adios, illegals!”, Riverfront Times, Feb. 28, 2007, www.riverfronttimes.com/2007-02-28/news/valley-park-to-mexican-immigrants-adios, at 9.) The mayor is reported to have later said, “You got one guy and his wife that settle down here, have a couple kids, and before long you have Cousin Puerto Rico and Taco Whoever moving in.” (Id. at 1.) He has been quoted as referring to Mexicans as “wetbacks” and “beaners.” (Id. at 4-5.) On July 17, 2006, the City enacted Ordinance No. 1708 (“Ordinance 1708”), which included an “English-only” provision and purported to penalize any landlord who permitted an “illegal alien” to occupy a dwelling unit and to penalize any business that employed or contracted an “illegal alien” to work. (Ex. B, Ord. No. 1708.) On September 22, 2006, Plaintiff Jacqueline Gray and other plaintiffs filed suit in this Court, alleging that Ordinance 1708 violated state and federal law.1 On September 25, 2006, the Court entered a Temporary Restraining Order enjoining enforcement of Ordinance 1708. The
1 In addition to Plaintiff Gray, Stephanie Reynolds, Florence Streeter and the Metropolitan St. Louis Equal Housing Opportunity Council were named plaintiffs in the September 22, 2006 suit. The case was captioned Reynolds, et al., v. City of Valley Park, et al., (hereafter Reynolds I), and
2

City promptly tried to circumvent the Temporary Restraining Order by repealing parts of Ordinance 1708, and, on September 26, 2006, enacting Ordinance No. 1715 (“Ordinance 1715”). (Ex. C, Ord. No. 1715.) Among other things, Ordinance 1715 removed the “English-only” provision, but nevertheless purported to penalize any landlord who leased property to an “illegal alien” or any business that employed an “unlawful worker.” On September 27, 2006, the Court entered an Amended Temporary Restraining Order enjoining the enforcement of Ordinance 1715. On March 12, 2007, the Court entered an order permanently enjoining the enforcement of Ordinance 1708 and Ordinance 1715. (Ex. D, March 12, 2007 Order.)
Meanwhile, on February 14, 2007, apparently anticipating the fate of Ordinances 1708 and 1715, the City enacted Ordinance 1721 and Ordinance 1722. (Ex. E, Ord. No. 1721 and amendments; Ex. F, Ord. No. 1722 and amendments.)2 Like its predecessor Ordinances, Ordinance 1721 seeks to regulate immigration by prohibiting the rental of dwellings to aliens unlawfully present in the United States. Ordinance 1721 requires landlords to obtain information from each prospective tenant regarding the “names, ages, citizenships, and relationships for each proposed occupant, together with such identifying information that shall be required by the City.” (Exhibit E, Section Two.) The landlord then must use that information to apply for an occupancy permit. (Id.) The City will refuse to issue an occupancy permit if it is determined that “any alien unlawfully present in the United States is a proposed occupant[.]” (Id.) Thus, under no circumstances will an occupancy permit be issued unless and until the City either
__________________________ docketed in this Court as Cause No. 06-CC-3802 in Division No. 13. 2 Ordinance 1722, as amended by Ordinance No. 1724, provides that it becomes effective upon “the termination of any restraining orders or injunctions now in force [as of February 14, 2007] in Cause No. 06-CC-3802[.]” Because the Court entered a permanent injunction in Cause No. 06-CC-3802, it is not clear whether Ordinance 1722 is currently in force. Plaintiffs challenge Ordinance 1722 to the extent that: (1) Ordinance 1724 is construed as making Ordinance 1722 effective upon the termination of the preliminary injunction in Cause No. 06-CC-3802; and/or (2) the permanent injunction in Cause No. 06-CC-3802 is vacated on appeal or on remand.
3

determines that no proposed occupant is an “alien unlawfully in the United States” or the City concludes that it is unable to make that determination. (Id.)
Ordinance 1721 does not specify what additional “identifying information” will be required by the City. As it turns out, Ordinance 1721’s implementing documents (Exhibit G hereto, “Documents Required to Apply for a Valley Park Occupancy Permit) require a confusing array of identifying documents and immigration-status documents for prospective tenants who cannot prove they are U.S. citizens. Moreover, the implementing documents indicate that certain classes of non-citizens who are lawfully within the United States are not eligible for an occupancy permit, including ambassadors, other foreign officials, and Temporary Visitors for business.
Ordinance 1722 seeks to regulate immigration matters by making it “unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part in the City.” (Ex. F at 3, Section Four, A.) It provides that an enforcement action may be initiated against a business entity by means of a complaint submitted by any resident of Valley Park alleging that the business entity is in violation of the Ordinance. (Id. at 4.) The business entity will then have 3 days within which to provide “identity information . . . regarding any persons alleged to be unlawful workers.” Id. Any business entity that does not provide the information requested by the City within 3 days or who does not correct a violation of the Ordinance within 3 days of being notified of a violation, shall have its business license suspended. (Id.) Ordinance 1722 provides no information or guidance as to how a business entity is to determine that a potential worker or contractor is an “unlawful worker.”
Both Ordinance 1721 and Ordinance 1722 subject the Plaintiffs to the risk of lost business and potential enforcement action by the City. Ms. Gray is the sole owner of Windhover, which owns a duplex with two rental units. (Affidavit of Jacqueline Gray, hereafter “Gray Aff.,” at ¶2 attached as Exhibit G). At least one of those units has turnover, and therefore
4

Windhover may be seeking new tenants in the near future. (Id. at ¶3.) Windhover also employs contractors to perform maintenance on the property. (Id. at ¶4.) Accordingly, both Ordinance 1721 and Ordinance 1722 are likely to be enforced against the Plaintiffs in the near future.
The Plaintiffs are concerned that Ordinance 1721 will cause them to irretrievably lose business because of the delay it will cause in the occupancy permit process, and because it may reduce the available pool of tenants by deterring potential tenants from seeking rental units in Valley Park because of fear of being discriminated against. (Id. at ¶6.) Plaintiffs are also concerned that Ordinance 1721 may reduce the value of their property because it may induce some landlords to discriminate against Mexican-appearing applicants rather than risk the denial of an occupancy permit after going through the approval process. (Id.) Such discrimination is likely to give the City of Valley Park a negative public image that will drive away potential new businesses and residents. Moreover, such discrimination is likely to drive away people of diverse races and backgrounds, resulting in a community that is less diverse and a less desirable place to live.
As to Ordinance 1722, it appears that if the Plaintiffs wish to employ a painter, landscaper, plumber, electrician or any other contractor to perform maintenance work on their property, they will be required to perform an independent investigation to determine whether any such contractor or any of their employees is an “unlawful worker.” Otherwise, they risk being “snitched on” by other residents of Valley Park, and risk potentially losing their privilege to do business in Valley Park if they are unable to prove within the prescribed time period that no such worker is an “unlawful worker.” The Plaintiffs do not know precisely what constitutes an “unlawful worker,” much less how to go about investigating and determining whether a person is an “unlawful worker.” (Gray Aff. at ¶7.) Plaintiffs are concerned that, by attempting to do so, they might be in violation of state and federal anti-discrimination laws. (Id.) They also are concerned that their inability to comply with Ordinance 1722 is likely to subject them to its enforcement provisions and cause them to lose the privilege of doing business in Valley Park.
5

(Id.) Accordingly, on March 14, 2007, the Plaintiffs filed this suit seeking a preliminary and
permanent injunction enjoining the enforcement of Ordinances 1721 and 1722.3 Because there is a high likelihood that one or both of Ordinances 1721 or 1722 will be enforced against the Plaintiffs before this matter proceeds to a trial on the merits, Plaintiffs have filed this motion for a preliminary injunction.
ARGUMENT A preliminary injunction will allow this Court to “preserve the status quo until the trial court adjudicates the merits of the claim for a permanent injunction.” State of Mo. ex rel. Myers Memorial Airport Comm., Inc. v. City of Carthage, 951 S.W.2d 347, 352 (Mo. Ct. App. 1997). Under Missouri law, Plaintiffs are entitled to a preliminary injunction upon establishing: (1) a probability of success on the merits; (2) a threat of irreparable harm absent the injunction; (3) that the harm to the Plaintiffs outweighs any injury that the injunction will impose upon the Defendant; and (4) that the injunction is not contrary to the public interest. See State ex rel. Dir. of Revenue v. Gabbert, 925 S.W.2d 838, 839 (Mo. 1996); Pottgen v. Mo. State High Sch. Activities Ass’n, 40 F.3d 926, 928 (8th Cir. 1994); Database Systems, Inc. v. C L Systems, Inc., 640 F.2d 109, 114 (8th Cir. 1981) (en banc). All four of those factors support a preliminary injunction here. I. PLAINTIFFS HAVE A PROBABILITY OF SUCCESS ON THE MERITS OF THEIR CLAIMS. Plaintiffs have a high probability of success on the merits of their claims for several
3 On April 4, 2007, Stephanie Reynolds and other plaintiffs from the Reynolds I case also filed a second lawsuit, Reynolds et al. v. City of Valley Park, 07-CC-1420 (Reynolds II), which challenges only Ordinance 1721. On April 5, 2007, the plaintiffs in Reynolds II obtained a temporary restraining order with respect to Ordinance 1721. A hearing is scheduled in that matter for April 20, 2007, at which the City is to show cause why the temporary restraining order should not be extended.
6

reasons. First, this Court has previously found Ordinances 1708 and 1715 invalid and has permanently enjoined their enforcement. Ordinance 1722 is not meaningfully different from Ordinance 1715, and therefore the City should be precluded from attempting to litigate its validity under principles of res judicata. Second, both Ordinance 1721 and Ordinance 1722 are preempted by federal immigration laws and fair housing laws under the Supremacy Clause of the United States Constitution. Third, Ordinances 1721 and 1722 are invalid under the Equal Protection Clause of the Unites States Constitution because they have a discriminatory impact and discriminatory purpose. Even prior to discovery being taken, there is substantial evidence suggesting that the enactment of Ordinances 1721 and 1722 was motivated by racial animus toward the Mexican immigrant population in Valley Park.
A. The City Is Precluded From Asserting The Validity Of Ordinance 1722 Under Principles Of Res Judicata.
A party is precluded under principles of res judicata from asserting a claim or defense in a subsequent action where there was: (1) a final judgment on the merits in the earlier action; (2) an identity of the cause of action in both the earlier and the later suit; and (3) an identity of the parties in the two suits. King General Contractors, Inc. v. Reorganized Church of Jesus Christ of Latter Day Saints, 821 S.W.2d 495, 501 (Mo. 1991); Prentzler v. Schneider, 411 S.W.2d 135, 138 (Mo. 1966). Here, there was: (1) a final judgment on the merits in the Reynolds I matter; (2) an identity of causes of action between Reynolds I and this matter, namely, a request for a declaratory judgment that a virtually identical ordinance is invalid; and (3) an identity of parties, namely, Plaintiff Gray and Defendant City of Valley Park. With respect to the identity of the ordinances at issue, Sections One, Two, Three and Four of Ordinance 1722 are virtually identical to Sections One, Two, Three and Four of Ordinance 1715, the sections purporting to regulate the hiring of “unlawful workers.” cf. JBK, Inc. v. City of Kansas City, Mo., 641 F. Supp. 893, 899 (W.D. Mo. 1986) (subsequent constitutional challenges to newly enacted ordinance barred by res judicata in the absence of any material changes in the ordinance previously adjudicated).
7

The only meaningful addition incorporated in Ordinance 1722 is Section Five, which essentially
provides that business entities, the City, and State courts may require the federal government to
provide information regarding a person’s immigration status. Far from saving Ordinance 1722
from being invalid, those additional provisions render it all the more repugnant to federal
immigration law and the Supremacy Clause. Ordinance 1722 is therefore substantively the same
ordinance that this Court permanently enjoined, and therefore the City is precluded under
principles of res judicata from arguing here that it is valid and enforceable.
B. Under the Supremacy Clause of the United States Constitution, Ordinances 1721 and 1722 Are Preempted by Federal Law.
Local laws concerning immigration and foreign nationals are invalid under the
Supremacy Clause of the United States Constitution if they: (1) attempt to regulate immigration,
which is “unquestionably exclusively a federal power;” or attempt to operate in a field that is
entirely occupied by federal law; or (2) are “conflict” preempted because they “burden[] or
conflict[] in any manner with any federal laws or treaties,” or “[stand] as an obstacle to the
accomplishment and execution of the full purposes and objectives of Congress.” De Canas v.
Bica, 424 U.S. 351, 354, 362 n. 5, 363 (1976) (internal citation omitted).4 Ordinances 1721 and
1722 are preempted because the federal government has the exclusive constitutional authority to
regulate immigration and has, in addition, implemented a comprehensive regulatory scheme
4 The United States Supreme Court has struck down numerous state statutes relating to noncitizens on one or both of those Supremacy Clause grounds. See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982) (invalidating state denial of student financial aid to certain visa holders); Graham v. Richardson, 403 U.S. 365, 377-80 (1971) (invalidating state welfare restriction); Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 418-20 (1948) (invalidating state denial of commercial fishing licenses); Hines v. Davidowitz, 312 U.S. 52, 62-68 (1941) (invalidating state alien registration scheme); Truax v. Raich, 239 U.S. 33, 42 (1915) (invalidating state employer sanctions scheme under Fourteenth Amendment and suggesting Supremacy Clause violation); Chy Lung v. Freeman, 92 U.S. 275 (1876) (invalidating state statute that authorized state official to classify certain arriving immigrants as undesirable and indirectly bar their entry); Henderson v. Mayor of the City of New York, 92 U.S. 259 (1876) (invalidating state bond requirement for arriving immigrants).
8

governing both the presence and “harboring” of non-citizens in the United States, as well as the employment of non-citizens. Therefore Valley Park lacks any authority to enact or enforce Ordinances of this type. Furthermore, both Ordinances are inconsistent with and will interfere with the administration of federal immigration law.
1. Ordinances 1721 and 1722 Impermissibly Regulate Immigration, and Attempt to Legislate in Fields Completely Occupied by Federal Law.
There can be no dispute that Ordinances 1721 and 1722 attempt to regulate immigration: they purport to directly regulate who may access housing and who may work within the city limits based on immigration status. Making rules about who may stay and who may depart, and effectuating that departure, is the very core of immigration regulation. See, e.g., Graham v. Richardson, 403 U.S. 365, 379 (1971) (concluding that state laws denying “entrance and abode” “are constitutionally impermissible” because they “encroach upon exclusive federal power”); Truax v. Raich, 239 U.S. 33, 42 (1915) (same). Similarly, there can be no doubt that the federal government has enacted a comprehensive, and complex, regulatory scheme governing the topics of entry, employment and “harboring” of aliens, which permits no state or local legislation in the same field. See Hines v. Davidowitz, 312 U.S. 52, 69 (1941) (federal law sets forth a “broad and comprehensive plan” governing entry, naturalization, and removal of aliens); Baltazar-Alcazar v. INS, 386 F.3d 940, 948 (9th Cir. 2004) (“[w]ith only a small degree of hyperbole, the immigration laws have been termed second only to the Internal Revenue Code in complexity”); see also 8 U.S.C. § 1324 (specifically addressing the “harboring” of certain aliens); ; 8 U.S.C. § 1324a (specifically addressing employment of noncitizens). Accordingly, Ordinances 1721 and 1722 are preempted by federal immigration law and are therefore void.
2. Ordinances 1721 and 1722 Are Further Preempted Because They Conflict with the Execution of Federal Immigration Law.
9

Not only do Ordinances 1721 and 1722 encroach upon the federal government’s exclusive power to regulate immigration, but their enforcement will actually conflict and interfere with the administration of federal immigration law.
a. Ordinance 1721 conflicts with federal immigration law. Ordinance 1721 conflicts with federal immigration law in at least three ways. First, Ordinance 1721 prohibits immigrants who are lawfully within the United States from living in Valley Park. Second, Ordinance 1721 prohibits immigrants who may be “illegal” under Valley Park’s definition − but who are nevertheless permitted to live in the United States under federal law − from living in Valley Park. Third, Ordinance 1721 purports to give local government the power to demand that the federal government determine an individual’s immigration status.
(i). Ordinance 1721 purports to exclude immigrants who are lawfully within the United States from living in Valley Park.
Valley Park has interpreted and implemented Ordinance 1721 to prohibit immigrants from living in Valley Park who are lawfully present in the United States. The City’s list of “documents required to apply for a Valley Park Occupancy Permit” provides that individuals in certain legal immigration statuses – including A-1 diplomatic visa holders, B-1 and B-2 temporary visitors, and visitors who have entered the United States lawfully under the Visa Waiver Program – are not “eligible for a permit.” (Ex. G.) However, under federal immigration law, those individuals are explicitly allowed to live in the United States for a temporary period, typically lasting at least several months. See 8 U.S.C. § 1187. The City’s decision to bar those individuals from living in Valley Park based on their immigration status, even though under federal law that status actually permits them to live anywhere in the United States, clearly conflicts with federal law. Indeed, the City’s attempt to exclude such categories of individuals from living in Valley Park reflects either an animus toward (Mexican) immigrants generally (which is a violation of the Equal Protection Clause), or a complete misunderstanding of
10

immigration law, which demonstrates why local governments are not equipped to dabble in regulations relating to immigration.
(ii). Ordinance 1721 conflicts with federal immigration law because, under federal law, an individual’s current status does not solely determine whether he or she is permitted to live in the United States.
Under federal immigration law, individuals who are not currently in a legal status may apply for a change in their status that will, if granted, make them lawful permanent residents or otherwise regularize their immigration status. See, e.g. 8 U.S.C. § 1255(i). The federal government routinely permits those and other individuals with pending applications to live in the United States even though they do not currently have legal immigration status. See Clark v. Martinez, 543 U.S. 371 (2005) (allowing persons released from detention pursuant to legal mandates and restrictions to stay and work in the U.S. regardless of immigration court’s removal order); Zadvydas v. Davis, 533 U.S. 678 (2001) (same); see also 8 C.F.R. § 274a.12 (a) (11-13), (c) (8-11, 14, 18-20, 22, 24). Federal officials also may exercise discretion not to deport otherwise removable persons for humanitarian reasons. See 8 C.F.R. § 212.5(f).
Moreover, the federal government is affirmatively prohibited from removing certain individuals even though they may lack lawful immigration status, where removal to another country means the individual will face a likelihood of torture or persecution. See United Nations Convention Against Torture, Art. 3, as implemented in the Foreign Affairs Reform and Restructuring Act of 1998 (“FARRA”), Pub.L. No. 105-277, div. G, Title XXII, § 2242, 112 Stat. 2681, 2681-822 (1998) (codified as Note to 8 U.S.C. § 1231); 8 U.S.C. § 1231(b) (3) (withholding of removal). Those forms of relief from removal are mandatory under federal law even if the alien has no “legal” right to be here.
Ordinance 1721 further conflicts with federal law because it prohibits persons who may not be lawfully present in the United States from residing with lawfully present relatives, including relatives who live in housing partially subsidized by the federal government. See 24
11

C.F.R. § 5.508(e) (providing that “[i]f one or more members of a family elect not to contend that they have eligible immigration status, and other members of the family establish their citizenship or eligible immigration status, the family may be eligible for assistance . . . despite the fact that no declaration or documentation of eligible status is submitted for one or more members of the family.”); see also 24 C.F.R. § 5.520 (providing for prorated subsidies based on the number of persons in the household eligible for benefits). Unlike federal law, Ordinance 1721 purports to deny an occupancy permit if any proposed occupant is an “alien unlawfully present in the United States,” even if other occupants are legal residents or citizens. Ordinance 1721’s denial of occupancy to any person its describes as “unlawfully present in the United States” clearly conflicts and interferes with the structure and administration of the federal immigration system.
(iii). Ordinance 1721 conflicts with federal law because it purports to give the City the power to require the federal government to determine, on demand, an individual’s immigration status.
The requirement in Ordinance 1721 that the federal government provide the City with information regarding a person’s immigration status is in conflict with the federal scheme. The federal government created a complex administrative system for determining when and why an individual must leave the United States. The central element of this system is the removal proceeding, a formal administrative procedure with extensive procedural requirements and an opportunity for judicial review, at which the burden of proof is on the government to prove that the individual should be removed from the country, and in which the individual is provided an opportunity to apply for asylum or other form of relief from removal. Any determinations by an immigration court are subject to further judicial appellate review before any actual removal occurs.
In the absence of having gone through that process, the federal government cannot answer, on demand, a local request, such as that dictated in Ordinance 1721, regarding whether a particular individual cannot reside lawfully within the United States. See Plyer v. Doe, 457 U.S.
12

202, 241 n.6 (1982) (Powell, J., concurring) (“Until an undocumented alien is ordered deported
by the Federal Government, no State can be assured that the alien will not be found to have a
federal permission to reside in the country…. Indeed, even the [federal immigration authorities]
cannot predict with certainty whether any individual alien has a right to reside in the country
until deportation proceedings have run their course.”); accord id. at 236 (Marshall, J.,
concurring) (“[T]he structure of the immigration statutes makes it impossible for the State to
determine which aliens are entitled to residence, and which eventually will be deported”).
The federal government has rejected the concept of concluding that an immigrant is not
lawfully in the United States in the absence of due process. With respect to the Systematic Alien
Verification for Entitlements (SAVE) system, for example, the federal government has instructed
its agencies that a federal entity
will “know” that an alien is not lawfully present in the United States only when the unlawful presence is a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review….. In addition, that finding or conclusion of unlawful presence must be supported by a determination by the Service or the Executive Office of Immigration Review, such as a Final Order of Deportation. A [SAVE] response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion of law that the individual is not lawfully present.
65 Fed. Reg. 58301 (emphasis added). This is particularly significant because the City of Valley
Park has indicated that it intends to use the SAVE system to determine whether individuals are
not lawfully present for the purpose of denying them housing permits or employment.
Obviously, to do so would conflict with the federal government’s own guidelines for the use of
that system.
Moreover, to permit local governments to place such demands on the federal
government for information regarding an individual’s immigration status would place an undue
burden on the federal government. A federal court in California issued a Temporary Restraining
Order barring enforcement of a similar ordinance, noting that it had “serious concerns regarding
the burden this Ordinance will place on federal regulations and resources” because of the 13

envisioned federal verification of status and the incorporation of federal-law definitions and concepts into a local law relating to housing. Garrett v. City of Escondido, 465 F. Supp.2d 1043, 1057 (S.D. Cal. 2006). Similarly here, Valley Park cannot be permitted to burden the federal government with its passage and enforcement of Ordinance 1721.
b. Ordinance 1722 conflicts with Federal Employment Verification Laws.
Ordinance 1722 conflicts with federal law in at least two respects. First, Ordinance 1722 imposes additional burdens on employers not required under the federal Immigration Reform and Control Act, thereby disrupting the deliberate choice Congress made in enacting the federal employment verification requirements in that Act. Ordinance 1722 requires all business entities to ensure that any person they “recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct . . . to perform work in whole or in part in the City is an authorized worker. (Ex. F at 3, Section Four, A.) In contrast, federal law does not require that employers verify the immigration status of certain categories of workers, such as independent contractors and casual domestic workers, and does not apply to entities, such as unions, that refer individuals for employment but without a fee or profit motive. See Immigration Reform and Control Act (“IRCA”), 8 U.S.C. § 1324a; 8 C.F.R. § 274a.1(c)-(f); see also H.R. Rep. 99-682(I), at 57 (stating that “[i]t is not the intent of this Committee that sanctions would apply in the case of casual hires” and noting an exception for unions and similar entities).
Ordinance 1722 further conflicts with and upsets the careful balance Congress struck in the IRCA in that it fails to contain any protections for immigrant workers from invidious discrimination by employers. Recognizing that any scheme requiring employers to verify workers’ employment authorization status was likely to lead to employment discrimination against immigrants, Congress viewed IRCA’s provisions prohibiting discrimination by employers (see 8 U.S.C. § 1324b) as a critical complement to the Act’s enforcement provisions. See, e.g., H.R. Conf. Rep. No. 99-1000 (1986), reprinted in 1986 U.S.C.C.A.N. 5840, 5842
14

(“[t]he antidiscrimination provisions of this bill are a complement to the sanctions provisions, and must be considered in this context”); H.R.Rep. No. 99-682(II) (1986), pt. 2, at 12 (1986), reprinted in 1986 U.S.C.C.A.N. 5757, 5761 (explaining that the House Committee on Education and Labor “strongly endorses [the anti-discrimination amendment] and ... has consistently expressed its fear that the imposition of employer sanctions will give rise to employment discrimination against Hispanic Americans and other minority group members. It is the committee's view that if there is to be sanctions enforcement and liability there must be an equally strong and readily available remedy if resulting employment discrimination occurs.”). Yet by enacting an enforcement-only scheme that contains no countervailing prohibition on discrimination by employers, Valley Park has undermined the balance Congress sought to achieve.
C. Ordinances 1721 and 1722 Violate The Equal Protection Clause Of The Fourteenth Amendment To The United States Constitution.
Ordinances 1721 and 1722 violate the Equal Protection Clause because they have a discriminatory purpose and a discriminatory effect with respect to persons of Hispanic heritage. A statute or ordinance violates the Equal Protection Clause where it has a discriminatory purpose and discriminatory effect, even if it appears facially neutral. Rogers v. Lodge, 458 U.S. 613 (1982); Hayden v. County of Nassau, 180 F.3d 42, 48 (2d Cir. 1999) (“a facially neutral statute violates equal protection if it was motivated by discriminatory animus and its application results in a discriminatory effect.”); Horizon House Developmental Services, Inc. v. Township of Upper Southampton, 804 F. Supp. 683, 693 (E.D. Pa. 1992).
Here, the Plaintiffs have a high probability of success in proving both elements. Even prior to discovery in this matter, there is evidence that the enactment of Ordinances 1721 and 1722 had a discriminatory purpose. Statements in the media by Valley Park’s mayor suggest that the intended targets of Ordinances 1721 and 1722 and its predecessor ordinances are Hispanic immigrants, and that the ordinances are motivated by racial animus toward the Mexican
15

immigrant population in Valley Park. (Ex. A.) As the mayor himself describes it, the precipitating incident was the entry of a Mexican family into his neighborhood. (Id.) In voicing his objection to that, the mayor invoked numerous racial stereotypes and epithets. (Id.) Yet he didn’t have the slightest idea whether the Mexican family or other occupants of their home were lawful residents. He simply saw an anti-“illegal alien” ordinance as a means of purging persons of Mexican heritage from Valley Park. That is invidious discrimination.
There also is a high probability that Ordinances 1721 and 1722 will be shown to have a discriminatory effect. The Ordinances are likely to impose on Hispanic residents and workers unique obstacles to housing and employment by subjecting them to discriminatory treatment based solely on their apparent Hispanic heritage. For example, landlords will be incentivized to turn away rental applicants who appear to be Hispanic or have Hispanic surnames rather than risk the costly delay of the approval process set forth in Ordinance 1721, only to have to start the process all over again if the City declines to issue an occupancy permit. The ripple effect is that landlords are likely to avoid leasing properties to Hispanic persons in order to avoid all possible city intervention into their businesses. Likewise, the effect of Ordinance 1722 is that employers are likely to be reluctant to hire persons of Hispanic heritage lest they risk repeated complaints by their fellow Valley Park residents and subsequent enforcement actions to suspend their business licenses on the mere suspicion that a Hispanic individual may be an “unlawful worker.”5
Finally, it appears that Ordinance 1721 is being implemented in a manner that discriminates against “aliens,” irrespective of their legal status. As noted above, the
5 Ordinance 1722 itself acknowledges the probability of such stereotyping in providing that a complaint from a resident will not be “enforced” where it is based “solely or primarily” on “national origin, ethnicity, or race[.]” (Ex. F, Section Four, A.(2).) It can scarcely be doubted, however, that most complaints will be precipitated by a worker’s Hispanic appearance, and that employers will be incentivized not to hire Hispanic workers at all.
16

implementing documentation provides that non-citizen aliens in certain legal categories are not eligible for an occupancy permit. It is well-established that discrimination on the basis of alienage violates the Equal Protection Clause. In re Griffiths, 413 U.S. 717 (1973); Sugarman v. Dougall, 413 U.S. 634 (1972); Graham v. Richardson, 403 U.S. 365 (1971). II. PLAINTIFFS ARE THREATENED WITH IRREPARABLE HARM IN THE
ABSENCE OF A PRELIMINARY INJUNCTION. Preliminary injunctive relief is available to “prevent irreparable injury to a property right resulting from enforcement of an unconstitutional or invalid ordinance.” Glenn v. City of Grant City, 69 S.W.3d 126, 129-30 (Mo. Ct. App. 2002). Ordinances 1721 and 1722, which have a high likelihood of being held unconstitutional or otherwise invalid, threaten to cause irreparable injury to the Plaintiffs’ property rights. Plaintiff Gray (who is sole owner of Windhover) has invested significant amounts of time and energy into maintenance of the Windhover rental properties over the past ten years and has built an ongoing business with reasonable expectations of future profit. (Gray Aff. at ¶¶2, 3.) Enforcement of either Ordinance 1721 or Ordinance 1722 presents a substantial threat of irreparable harm to the Windhover business for which no adequate remedy at law exists and which therefore warrants preliminary injunctive relief. If this Court does not preliminarily enjoin enforcement of Ordinance 1721, Plaintiffs will experience difficulty in filling any vacancy in their rental units that occurs prior to a trial on the merits in this case due to the Ordinance’s onerous and time-consuming process for obtaining an occupancy permit. To comply with the requirements of the implementing documents, Plaintiffs will be forced to undertake a burdensome investigation and collection of documents by a law which is not only illegal, but unconstitutional. Ordinance 1721 requires landlords first to gather information about each prospective tenant's name, age, citizenship, and relationships with each of the other proposed tenants, in addition to any other unspecified information the City may subsequently decide to require. The landlord then must apply for an occupancy permit. The City will only grant a permit upon a determination that none of the proposed occupants are
17

“unlawfully present in the United States” or upon a finding that the City is unable to make such determination. If the City denies the permit, then the landlord must start all over again to locate another prospective tenant and then go through the same process. The delays in leasing the property will cause Plaintiffs to suffer significant losses in rental income. The onerous requirements of Ordinance 1721 are also likely to deter prospective tenants from seeking housing in Valley Park at all, thus diminishing the pool of applicants and thereby reducing the value of the Plaintiffs’ property.6 Moreover, there is the intangible but no less real harm to Plaintiffs in living in a community that is, or is perceived to be, bigoted and lacking in diversity.
The enforcement of Ordinance 1722 places the Plaintiffs at risk of losing their ability to do business at all in Valley Park. If the Plaintiffs wish to hire workers or contractors to perform maintenance on their property any time prior to a trial on the merits in this case, they will be forced to try to investigate whether any such workers are “unlawful workers,” even though such verification is not required under federal law and even though the burdens imposed by the City are illegal and unconstitutional. Otherwise, they are likely to be subject to complaints by fellow Valley Park residents that they are employing “illegal aliens,” potentially subjecting them to an enforcement action by the City that could result in the loss their business license. Indeed, the Plaintiffs may be subject to the threat of a multiplicity of enforcement actions by the City each time they hire a worker who might appear to someone else to be an “unlawful worker.” Preliminary injunctions are specifically designed to prevent such a result during the pendency of an action. Plaintiffs are entitled to protection from “the expense, vexation and annoyance of such a multiplicity of proceedings” while the merits of their claim are adjudicated. Brotherhood
6 Courts have recognized that the threat of economic losses can constitute irreparable harm sufficient for issuance of a preliminary injunction, particularly where “the loss of business threatens[s] the very existence of an enterprise.” Assoc. Producers Co. v. City of Independence, Missouri, 648 F. Supp. 1255, 1258 (W.D. Mo. 1986).
18

of Stationary Engineers, et al. v. City of St. Louis, 212 S.W.2d 454, 458 (Mo. Ct. App. 1948). III. THE BALANCE OF HARMS FAVORS A PRELIMINARY INJUNCTION.
The City will not suffer any injury at all from the imposition of a preliminary injunction that prevents it from enforcing Ordinances 1721 and 1722 during the pendency of the litigation. First, there is a very high likelihood that the ordinances will be held unconstitutional or otherwise invalid, and therefore the City has no legitimate interest in enforcing them. Second, we are aware of no evidence that the “harms” supposedly addressed by Ordinances 1721 and 1722 actually exist in Valley Park. Though Ordinance 1722 intones what are presumably the City’s “harms,” including “higher crime rates,” “fiscal hardships” to its local hospitals, and “diminishing the overall quality of life and provid[ing] concerns to the security and safety of the homeland[,]” there is no evidence that any such problems exist in Valley Park, or that the presence of aliens, legal or illegal, in Valley Park will cause such problems. Indeed, this Court’s previous orders preliminarily and permanently enjoining the substantially similar Ordinance No. 1708 and Ordinance No. 1715 demonstrate that the balance of harms in this case decidedly tips in favor of a preliminary injunction. IV. A PRELIMINARY INJUNCTION AGAINST ENFORCEMENT OF THE
CHALLENGED ORDINANCES IS IN THE PUBLIC INTEREST. It is clear that enforcement of Ordinances 1721 and 1722 poses a significant threat of harm to landlords and employers in Valley Park, to all the residents, potential residents and workers who may suffer discrimination as result of the Ordinances’ enforcement, and to the public image of Valley Park, and by extension, to its residents like Plaintiff Gray. Similar ordinances enacted in this and other cities have sparked nationwide attention and elicited a negative response to the discriminatory purpose and effect of ordinances directed toward the supposed “regulation” of illegal aliens. Beyond the shame and disrepute of living in a community where one must comply with such clearly discriminatory ordinances in order to lease dwelling units or operate a business, the Ordinances have the likely effect of deterring
19

individuals of Hispanic heritage, as well as others who do not wish to live in such an environment, from moving to Valley Park.
Moreover current residents of Valley Park who are recent immigrants or who are of Hispanic heritage have a legitimate fear that they will face discrimination in their own community, whether it is in the context of housing or otherwise. Such hostile conditions would undoubtedly provoke persons of Hispanic heritage to move elsewhere in order to escape such hardship. Above and beyond the reputational harms associated with the discriminatory nature of the challenged Ordinances, the exodus of current residents, without the addition of new residents, exposes the city to economic harms (e.g., labor shortages, decreased commercial activity). Accordingly, a preliminary injunction is in the public interest.
WHEREFORE, Plaintiffs respectfully request that this Court order: A. a preliminary injunction enjoining the enforcement of Ordinance No. 1721 and Ordinance No. 1722, or any ordinance that is substantially the same in content to Ordinance No. 1721 and Ordinance No. 1722; and, B. any and all such other relief this Court deems just and proper.
20

Dated: April 19, 2007

Respectfully submitted,
By: ______________________________ Fernando Bermudez, #39943 Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105 (314) 862-6800 (314) 862-1606 facsimile Bermudez@stlouislaw.com
Anthony E. Rothert, #44827 American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tony@aclu-em.org
Jenner & Block LLP Daniel J. Hurtado* Gabriel A. Fuentes* 330 North Wabash Avenue Chicago, Illinois 60611-7603 (312) 923-2645 (312) 840-7645 facsimile dhurtado@jenner.com Omar C. Jadwat* American Civil Liberties Union Foundation Immigrants' Rights Project 125 Broad St., 18th Fl. New York, New York 10004
(212) 549-2620 (212) 549-2654 facsimile ojadwat@aclu.org Jennifer C. Chang* American Civil Liberties Union Foundation Immigrants' Rights Project 39 Drumm Street San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile jchang@aclu.org
21

Of Counsel: Mexican American Legal Defense
and Educational Fund Ricardo Meza rmeza@maldef.org Jennifer Nagda jnagda@maldef.org 11 E. Adams; Suite 700 Chicago, Illinois 60603 (312) 427-0701 (312) 427-0691 facsimile * Not admitted in Missouri, motion for admission pro hac vice to be filed upon receiving Rule 6.01(m) receipt from Supreme Court.
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiffs’ Motion for a Preliminary Injunction was forwarded via facsimile and mailed on April 19, 2007 to:
Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, Missouri 63005-1233
______________________________
22

 
 ATTYNA

U.S. District Court Eastern District of Missouri (LIVE) (St. Louis) CIVIL DOCKET FOR CASE #: 4:07-cv-00881-ERW

Gray, et al. v. Valley Park, Missouri, City of Assigned to: Honorable E. Richard Webber Case in other court: St. Louis County Circuit Court,
07CC-001103 Cause: 42:405 Fair Housing Act

Date Filed: 05/01/2007 Jury Demand: None Nature of Suit: 443 Civil Rights: Accomodations Jurisdiction: Federal Question

Plaintiff Jacqueline Gray

represented by Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI 454 Whittier Street St. Louis, MO 63108 314-652-3114 Fax: 314-652-3112 Email: tony@aclu-em.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel J. Hurtado JENNER & BLOCK LLP 330 North Wabash Avenue Chicago, IL 60611-7603 US 312-923-2645 Email: dhurtado@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Fernando Bermudez GREEN AND JACOBSON, P.C. 7733 Forsyth Boulevard Suite 700 St. Louis, MO 63105 314-862-6800 Fax: 314-862-1606 Email: bermudez@stlouislaw.com LEAD ATTORNEY

ATTORNEY TO BE NOTICED
Gabriel A. Fuentes JENNER AND BLOCK, LLP 330 N. Wabash Avenue Chicago, IL 60611-7603 US Email: gfuentes@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Chang AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 US 415-343-0770 Fax: 415-395-0950 Email: jchang@aclu.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer R. Nagda MALDEF 11 E. Adams Street Suite 700 Chicago, IL 60603 US 312-427-0701 Fax: 312-427-0691 Email: jnagda@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C. Jadwat AMERICAN CIVIL LIBERTIES UNION FOUNDATION 125 Broad Street 18th Floor New York, NY 10004 US 212-549-2620 Fax: 212-549-2654 Email: ojadwat@aclu.org LEAD ATTORNEY

Plaintiff Windhover, Inc.

ATTORNEY TO BE NOTICED
Ricardo Meza MALDEF 11 E. Adams Street Suite 700 Chicago, IL 60603 US 312-427-0701 Fax: 312-427-0691 Email: rmeza@maldef.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Daniel J. Hurtado (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fernando Bermudez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Gabriel A. Fuentes (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer C. Chang (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jennifer R. Nagda (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Valley Park, Missouri, City of

Omar C. Jadwat (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Ricardo Meza (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. Martin 109 Chesterfield Business Parkway Suite 210 Chesterfield, MO 63005 636-530-1515 Fax: 636-530-1556 Email: emartin772@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kris W. Kobach UNIVERSITY OF MISSOURIKANSAS CITY SCHOOL OF LAW 5100 Rockhill Rd. Law 1-200 Kansas City, MO 64110 US 913-638-5567 Fax: 816-235-5276 Email: kobachk@umkc.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michael M. Hethmon IMMIGRATION REFORM LAW INSTITUTE 1666 Connecticut Avenue Suite 402, NW Washington, DC 20009 US 202-232-5590 Fax: 202-464-3590

Email: mhethmon@irli.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 04/12/2007 04/19/2007 05/01/2007
05/01/2007
05/01/2007 05/01/2007 05/01/2007 05/02/2007 05/02/2007 05/02/2007

#

Docket Text

AMENDED COMPLAINT against Defendant City of Valley Park, Missouri filed by Windhover, Inc. and Jacqueline Gray. (See attachment to the Notice of Removal)(CDD, ) (Entered: 05/02/2007)

MOTION for Preliminary Injunction filed by Plaintiffs Windhover, Inc. and Jacqueline Gray. (See attachment to Notice of Removal) (CDD, ) (Entered: 05/02/2007)

Receipt # S2007-006505 in the amount of $350.00 for CIVIL FILING FEE, CIVIL FILING FEE-PART 2, CIVIL FILING FEE-PART 3 on behalf of CITY OF VALLEY PARK, MO. (CSW,) (Entered: 05/01/2007)

1 NOTICE OF REMOVAL from St. Louis County Circuit Court, case number 07CC-001103 filed by the City of Valley Park, Missouri. Filing fee $350.00 paid. Disclosure of Corporate Interest issued to Windhover, Inc.. (Attachments: # 1 Copy of State Court Case Part 1# 2 Copy of State Court Case Part 2# 3 Civil Cover Sheet # 4 Original Filing Form)(CDD, ) (Entered: 05/02/2007)

2 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE filed by Defendant City of Valley Park, Missouri. (CDD, ) (Entered: 05/02/2007)

3 NOTICE OF FILING NOTICE OF REMOVAL filed by Defendant City of Valley Park, Missouri. Sent To: St. Louis County Circuit Court and Executed by State Court Clerk. (CDD, ) (Entered: 05/02/2007)

4 ANSWER to Amended Complaint filed by the City of Valley Park, Missouri. (CDD, ) (Entered: 05/02/2007)

5 Letter to attorney Daniel J. Hurtado from Deputy Clerk. Re: Admission by Motion Pro Hac Vice Requirements. (CDD, ) (Entered: 05/02/2007)

6 Letter to attorney Gabriel A. Fuentes from Deputy Clerk. Re: Admission by Motion Pro Hac Vice Requirements. (CDD, ) (Entered: 05/02/2007)

7 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Plaintiff Windhover, Inc.Parent companies: None, Subsidiaries: None, Publicly held company: None,. (Rothert, Anthony) (Entered:

05/03/2007 05/03/2007 05/03/2007 05/03/2007 05/04/2007 05/04/2007 05/04/2007 05/04/2007 05/04/2007 05/07/2007
05/07/2007 05/07/2007

05/02/2007)
8 MOTION for Leave to File Emergency Motion to Reassign Case to Judge Webber by Plaintiffs Windhover, Inc., Jacqueline Gray. (Bermudez, Fernando) (Entered: 05/03/2007)
9 MOTION for Extension of Time to File Response/Reply by Defendant Valley Park, Missouri, City of. (Martin, Eric) Additional attachment(s) added on 5/4/2007 (KXS, ). (Entered: 05/03/2007)
Receipt # S2007-006586 in the amount of $100.00 for ATTORNEY ADM. FEE - PHV on behalf of HURTADO, DANIEL J.. (CSW,) (Entered: 05/03/2007)
10 MOTION for Leave to Appear Pro Hac Vice Daniel J. Hurtado (Filing fee $100) by Plaintiff Jacqueline Gray. (CQL, ) (Entered: 05/04/2007)
11 MOTION to Remand Case to State Court to Circuit Court of St. Louis County by Plaintiffs Windhover, Inc., Jacqueline Gray. (Rothert, Anthony) (Entered: 05/04/2007)
12 MEMORANDUM in Support of Motion re 11 MOTION to Remand Case to State Court to Circuit Court of St. Louis County filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A# 2 Exhibit B)(Rothert, Anthony) (Entered: 05/04/2007)
13 MOTION to Expedite briefing and decision on motion to remand by Plaintiffs Windhover, Inc., Jacqueline Gray. (Rothert, Anthony) (Entered: 05/04/2007)
14 MEMORANDUM in Support of Motion re 13 MOTION to Expedite briefing and decision on motion to remand filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Rothert, Anthony) (Entered: 05/04/2007)
15 RESPONSE to Motion re 9 MOTION for Extension of Time to File Response/Reply objecting in part filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Rothert, Anthony) (Entered: 05/04/2007)
16 ORDER REASSIGNING CASE. Case reassigned to Judge E. Richard Webber for all further proceedings. Judge Jackson's name will be replaced for future assignment. Judge Carol E. Jackson no longer assigned to case; In all future documents filed with the Court, please use the following case number: 4:07cv881 ERW. . Signed by Judge Carol E. Jackson on 5/7/07. (KKS, ) (Entered: 05/07/2007)
ORDER RECEIPT: (see receipt) Mon May 7 13:17:54 CDT 2007 (KKS, ) (Entered: 05/07/2007)
Docket Text ORDER: Motion for Case Reaassignment [doc. #8] is

05/07/2007 05/08/2007
05/08/2007 05/08/2007
05/08/2007 05/09/2007

DENIED, as moot. Case has been reassigned to Judge E. Richard Webber due to a related case as requested. Motion for Pro Hac Vice [doc. #10] is GRANTED. Daniel J. Hurtado shall be admitted pro hac vice for the purpose of representing Plaintiffs in this matter. Counsel for all parties shall appear before this Court on May 8, 2007, at 9:00 a.m. for a Hearing on Defendants' Motion for Extension of Time [doc. #9] to file Response to Motion for Preliminary Injunction and Plaintiffs' Motion for Expedited Briefing [doc. #13] regarding Motion for Remand. Out-of-town counsel has been granted leave to participate in this Hearing by telephone. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/07/2007)
Receipt # S2007-006685 in the amount of $200.00 for ATTORNEY ADM. FEE - PHV-JENNIFER C. CHANG, ATTORNEY ADM. FEE PHV-OMAR C. JADWAT on behalf of AMERICAN CIVIL LIBERTIES UNION FOUNDATIO. (CSW,) (Entered: 05/07/2007)
17 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Defendant's Motion for Additional Time to FileResponse to Motion for Preliminary Injunction [doc. #9] is GRANTED in part. Defendant'sResponse shall be filed no later than May 25, 2007. Plaintiffs' Reply shall be filed no later thanMay 31, 2007. IT IS FURTHER ORDERED that Plaintiff's Motion for Expedited Briefing onPlaintiff's Motion to Remand [doc. #13] is GRANTED in part. Defendant's Response shall befiled no later than May 11, 2007. Plaintiffs' Reply shall be filed no later than May 15, 2007. Signed by Judge E. Richard Webber on May 8, 2007. (MCB) (Entered: 05/08/2007)
ORDER RECEIPT: (see receipt) Tue May 8 09:46:56 CDT 2007 (MCB, ) (Entered: 05/08/2007)
18 Minute Entry for proceedings held before Judge E. Richard Webber : Motion Hearing held on 5/8/2007 re 9 MOTION for Extension of Time to File Response/Reply filed by Valley Park, Missouri, City of, and 13 MOTION to Expedite briefing and decision on motion to remand filed by Jacqueline Gray, Windhover, Inc. Issues heard. Parties agree on deadlines for responses and replies to pending motions. Order to issue. (Court Reporter or FTR Gold Operator initials: G. Madden) (FTR Gold yes or no: no) (proceedings started: 9:01 a.m.) (proceedings ended: 9:11 a.m.) (JMW) (Entered: 05/08/2007)
19 NOTICE by Plaintiffs Windhover, Inc., Jacqueline Gray Notice to Missouri's Attorney General of Claim that Ordinances are Unconstitutional (Mo. Rev. Stat. ? 527.110): (Rothert, Anthony) (Entered: 05/08/2007)
20 MOTION for Leave to Appear Pro Hac Vice Jennifer C. Chang (Filing

05/09/2007 05/09/2007
05/09/2007 05/10/2007 05/10/2007 05/10/2007 05/10/2007 05/11/2007 05/11/2007
05/11/2007 05/14/2007

fee $100) by Plaintiffs Windhover, Inc., Jacqueline Gray. (JMW) (Entered: 05/09/2007)
21 MOTION for Leave to Appear Pro Hac Vice Omar C. Jadwat (Filing fee $100) by Plaintiffs Windhover, Inc., Jacqueline Gray. (JMW) (Entered: 05/09/2007)
Docket Text ORDER: Motions for Leave to Appear Pro Hac Vice [doc. #20 & #21] are GRANTED. Jennifer C. Chang and Omar C. Jadwat shall be admitted pro hac vice for the purpose of representing Plaintiffs in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/09/2007)
Receipt # S2007-006885 in the amount of $100.00 for ATTORNEY ADM. FEE - PHV on behalf of KOBACH, KRIS W.. (CSW,) (Entered: 05/21/2007)
ORDER RECEIPT: (see receipt) Thu May 10 10:03:48 CDT 2007 (JMW, ) (Entered: 05/10/2007)
22 MOTION for Leave to Appear Pro Hac Vice Kris W. Kobach (Filing fee $100) by Defendant Valley Park, Missouri, City of. (JMW) (Entered: 05/10/2007)
Docket Text ORDER: Motion for Leave to Appear Pro Hac Vice [doc. #22] is GRANTED. Kris W. Kobach shall be admitted pro hac vice for the purpose of representing Defendant in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/10/2007)
ORDER RECEIPT: (see receipt) Thu May 10 14:33:04 CDT 2007 (JMW, ) (Entered: 05/10/2007)
23 MOTION for Leave to Appear Pro Hac Vice Gabriel A. Fuentes (Filing fee $100) by Plaintiff Jacqueline Gray. (BAK, ) (Entered: 05/11/2007)
24 RESPONSE MEMORANDUM in Opposition re 11 MOTION to Remand Case to State Court to Circuit Court of St. Louis County filed by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Affidavit Declaration of Eric Martin (Exhibit A)# 2 Exhibit Documents re Martin Decl (Exh A1-A5))(Kobach, Kris) Modified on 5/16/2007 (BAB). (Entered: 05/11/2007)
Receipt # S2007-006931 in the amount of $100.00 for ATTORNEY ADM. FEE - PHV on behalf of FUENTES, GABRIEL A.. (CSW,) (Entered: 05/11/2007)
Docket Text ORDER: Motion for Leave to Appear Pro Hac Vice [doc. #23] is GRANTED. Gabriel A. Fuentes shall be admitted pro hac vice for the purpose of representing Plaintiff Jacqueline Gray in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/14/2007)

05/14/2007 05/14/2007 05/15/2007 05/16/2007
05/21/2007 05/21/2007 05/25/2007 05/25/2007 06/01/2007
06/04/2007

ORDER RECEIPT: (see receipt) Mon May 14 09:47:34 CDT 2007 (KLH, ) (Entered: 05/14/2007)
Docket Text ORDER: Oral Argument on Plaintiffs' Motion to Remand [doc. #11] will be held on May 16, 2007, at 2:00 p.m. in Courtroom 12 South o the U.S. District Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/14/2007)
25 REPLY MEMORANDUM in Support of Motion re 11 MOTION to Remand Case to State Court to Circuit Court of St. Louis County filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit C# 2 Exhibit D# 3 Exhibit E)(Hurtado, Daniel) Modified on 5/16/2007 (BAB). (Entered: 05/15/2007)
26 Minute Entry for proceedings held before Judge E. Richard Webber: Motion Hearing held on 5/16/2007 re 11 MOTION to Remand Case to State Court to Circuit Court of St. Louis County filed by Jacqueline Gray, Windhover, Inc. Matter taken under submission. (Court Reporter or FTR Gold Operator initials: S. Moran.) (FTR Gold yes or no: no.) (proceedings started: 2:00.) (proceedings ended: 2:55.) (KLH, ) (Entered: 05/16/2007)
27 MEMORANDUM AND ORDER denying 11 Plaintiffs' Motion to Remand and for Attorneys' Fees. Signed by Judge E. Richard Webber on 5/21/07. (KLH, ) (Entered: 05/21/2007)
ORDER RECEIPT: (see receipt) Mon May 21 09:06:40 CDT 2007 (KLH, ) (Entered: 05/21/2007)
28 MOTION for Extension of Time to File Response/Reply by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Text of Proposed Order Order Changing Filing Dates)(Kobach, Kris) (Entered: 05/25/2007)
Docket Text ORDER: Motion for Extension of Time [doc. #28] is GRANTED. Defendant's Response to Plaintiff's Motion for Preliminary Injunction shall be filed no later than June 1, 2007. Any Reply by Plaintiff shall be filed no later than June 7, 2007. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 05/25/2007)
29 MEMORANDUM in Opposition re MOTION for Preliminary Injunction filed by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Exhibit A - Valley Park Notice - Applying for a Valley Park Occupancy Permit# 2 Exhibit B - DHS Exhibit 300 Public Release BY08, Feb. 12, 2007# 3 Exhibit C - DHS Privacy Impact Assessment, April 1, 2007)(Kobach, Kris) (Entered: 06/01/2007)
30 MOTION for Leave to File Complete Copy of State Court Petition by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit

06/04/2007
06/04/2007 06/04/2007
06/04/2007 06/04/2007 06/05/2007 06/05/2007 06/05/2007

Petition for Declaratory and Injunctive Relief# 2 Exhibit Pet Ex A# 3 Exhibit Pet Ex B# 4 Exhibit Pet Ex C# 5 Exhibit Pet Ex D# 6 Exhibit Pet Ex E# 7 Exhibit Pet Ex F# 8 Exhibit Pet Ex G# 9 Exhibit Pet Ex H# 10 Exhibit Pet Ex I)(Rothert, Anthony) (Entered: 06/04/2007)
31 MOTION for Leave to file Complete Copy of State Court Amended Petition by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Amended Petition# 2 Exhibit Am Pet Ex A# 3 Exhibit Am Pet Ex B# 4 Exhibit Am Pet Ex C# 5 Exhibit Am Pet Ex D# 6 Exhibit Am Pet Ex E# 7 Exhibit Am Pet Ex F# 8 Exhibit Am Pet Ex G# 9 Exhibit Am Pet Ex H# 10 Exhibit Am Pet Ex I)(Rothert, Anthony) (Entered: 06/04/2007)
32 Consent MOTION for Extension of Time to File Response/Reply as to MOTION for Preliminary Injunction by Plaintiffs Windhover, Inc., Jacqueline Gray. (Rothert, Anthony) (Entered: 06/04/2007)
Docket Text ORDER: Motion for Leave to File Complete Copy of State Court Petition [doc. #30] is GRANTED. Document #31 appears to be a duplicate filing of document #30 and will be DENIED, as moot. Consent Motion for Extension of Time [doc. #32] is GRANTED. Plaintiffs' Reply regarding Motion for Preliminary Injunction shall be filed no later than June 14, 2007. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/04/2007)
33 MOTION for Reconsideration re Docket Text Order, by Plaintiffs Windhover, Inc., Jacqueline Gray. (Rothert, Anthony) (Entered: 06/04/2007)
34 RESPONSE MEMORANDUM in Opposition re 33 MOTION for Reconsideration re Docket Text Order, Opposing Filing of Incorrect Petition Exhibit filed by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Exhibit A - Enacted Ordinance 1722# 2 Exhibit B Email)(Kobach, Kris) Modified on 6/15/2007 (BAB). (Entered: 06/04/2007)
35 MOTION to Withdraw 33 MOTION for Reconsideration re Docket Text Order, by Plaintiffs Windhover, Inc., Jacqueline Gray. (Rothert, Anthony) (Entered: 06/05/2007)
Docket Text ORDER: Plaintiffs are granted leave of Court to file a complete copy of the State Court Amended Petition along with the correct exhibits. Defendant shall thereafter file an Amended Answer to Plaintiffs' Amended Petition. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/05/2007)
36 NOTICE by Plaintiffs Windhover, Inc., Jacqueline Gray re Docket Text Order, Amended Petition for Declaratory and Injunctive Relief and

06/08/2007 06/08/2007 06/12/2007 06/12/2007 06/14/2007 06/14/2007 06/14/2007
06/15/2007

Exhibits A-H: (Hurtado, Daniel) (Entered: 06/05/2007)
Receipt # S2007-007629 in the amount of $100.00 for ATTORNEY ADM. FEE - PHV on behalf of HEATHMON, MICHAEL M.. (CSW,) (Entered: 06/08/2007)
37 MOTION for Leave to Appear Pro Hac Vice Matthew M. Hethmon (Filing fee $100) by Defendant Valley Park, Missouri, City of. (MCB) (Entered: 06/11/2007)
Docket Text ORDER: Motion for Leave to Appear Pro Hac Vice [doc. #37] is GRANTED. Matthew M. Hethmon shall be admitted pro hac vice for the purpose of representing Defendant in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/12/2007)
ORDER RECEIPT: (see receipt) Tue Jun 12 09:36:37 CDT 2007 (KLH, ) (Entered: 06/12/2007)
38 MOTION to Consolidate Cases On The Merits With Hearing On Plaintiffs' Motion For A Preliminary Injunction (Order) by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H)(Hurtado, Daniel) (Entered: 06/14/2007)
39 Proposed MOTION for Leave to File in Excess of Page Limitation For Reply To Defendant's Response To Plaintiffs' Motion For Preliminary Injunction by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 06/14/2007)
40 REPLY MEMORANDUM in Support of Motion re MOTION for Preliminary Injunction (Reply) filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit I part 1# 2 Exhibit I Part 2# 3 Exhibit J Part 1# 4 Exhibit J Part 2# 5 Exhibit K Part 1# 6 Exhibit K Part 2# 7 Exhibit L Part 1# 8 Exhibit L Part 2# 9 Exhibit L Part 3# 10 Exhibit L Part 4# 11 Exhibit M# 12 Exhibit N Part 1# 13 Exhibit N Part 2# 14 Exhibit N Part 3# 15 Exhibit N Part 4# 16 Exhibit N part 5# 17 Exhibit N Part 6# 18 Exhibit O Part 1# 19 Exhibit O Part 2# 20 Exhibit O Part 3# 21 Exhibit O Part 4# 22 Exhibit P Part 1# 23 Exhibit P Part 2# 24 Exhibit Q# 25 Exhibit R Part 1# 26 Exhibit R Part 2# 27 Exhibit R Part 3# 28 Exhibit R Part 4# 29 Exhibit R Part 5# 30 Exhibit R Part 6# 31 Exhibit S Part 1# 32 Exhibit S-Part 2# 33 Exhibit S Part 3# 34 Exhibit S Part 4# 35 Exhibit S Part 5# 36 Exhibit S Part 6# 37 Exhibit S Part 7# 38 Exhibit S Part 8)(Hurtado, Daniel) Modified on 6/15/2007 (BAB). (Entered: 06/14/2007)
Docket Text ORDER: Motion for Leave to Exceed Page Limitation [doc. #39] is GRANTED. Plaintiffs' Reply [doc. #40] to Defendant's Opposition to Motion for Preliminary Injunction consisting of

06/18/2007 06/19/2007 06/19/2007 06/19/2007
06/20/2007 06/20/2007 06/22/2007
06/27/2007
07/02/2007 07/02/2007 07/03/2007

approximately twenty-three (23) pages is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/15/2007)
ORDER RECEIPT: (see receipt) Mon Jun 18 09:55:06 CDT 2007 (MCB, ) (Entered: 06/18/2007)
41 MOTION for Leave to File Corrected Reply Memorandum To Correct Typographical Errors by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 06/19/2007)
42 CORRECTED REPLY MEMORANDUM in Support of Motion re MOTION for Preliminary Injunction Filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) Modified on 6/19/2007 (BAB). (Entered: 06/19/2007)
Docket Text ORDER: Motion for Leave to File Corrected Reply [doc. #41] is GRANTED. Plaintiff's Corrected Reply Memorandum [doc. #42] in Support of Motion for Preliminary Injunction is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 06/19/2007)
ORDER RECEIPT: (see receipt) Wed Jun 20 10:15:53 CDT 2007 (MCB, ) (Entered: 06/20/2007)
43 Amended ANSWER to Amended Complaint by Valley Park, Missouri, City of.(Martin, Eric) (Entered: 06/20/2007)
44 MOTION for Leave to File Corrected Exhibits To Reply Memorandum In Support Of Plaintiffs' Motion For Preliminary Injunction by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit J-Part 1# 2 Exhibit J-Part 2# 3 Exhibit K-Part 1# 4 Exhibit K-Part 2# 5 Exhibit K-Part 3# 6 Exhibit L-Part 1# 7 Exhibit L-Part 2# 8 Exhibit LPart 3)(Hurtado, Daniel) (Entered: 06/22/2007)
Docket Text ORDER: Motion for Leave to File Corrected Exhibits [doc. #44] is GRANTED. Plaintiffs' Exhibits J, K, and L are accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non-registered attorney on 6/28/2007 (BAK, ). (Entered: 06/27/2007)
46 MOTION for Leave to Appear Pro Hac Vice Ricardo Meza (Filing fee $100)by Plaintiffs Windhover, Inc., Jacqueline Gray. (RJD) (Entered: 07/05/2007)
47 MOTION for Leave to Appear Pro Hac Vice Jennifer R. Nagda (Filing fee $100)by Plaintiffs Windhover, Inc., Jacqueline Gray. (RJD) (Entered: 07/05/2007)
45 RESPONSE to Motion re 38 MOTION to Consolidate Cases On The

07/03/2007 07/05/2007 07/05/2007 07/06/2007 07/06/2007 08/08/2007
08/08/2007 08/09/2007

Merits With Hearing On Plaintiffs' Motion For A Preliminary Injunction (Order) Memorandum in Response filed by Defendant Valley Park, Missouri, City of. (Martin, Eric) (Entered: 07/03/2007)
Receipt # S2007-008063 in the amount of $200.00 for ATTORNEY ADM. FEE - PHV-JENNIFER R. NAGDA, ATTORNEY ADM. FEE PHV-RICARDO MEZA on behalf of MEXICAN AMERICAN LEGAL DEFENSE FUND. (CSW,) (Entered: 07/03/2007)
ORDER RECEIPT: (see receipt) Thu Jul 5 09:14:26 CDT 2007 (RJD, ) (Entered: 07/05/2007)
48 MEMORANDUM in Support of Motion re 38 MOTION to Consolidate Cases On The Merits With Hearing On Plaintiffs' Motion For A Preliminary Injunction (Order) filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 07/05/2007)
Docket Text ORDER: Motions for Leave to Appear Pro Hac Vice [doc. #46 and #47] are GRANTED. Ricardo Meza and Jennifer R. Nagda shall be admitted pro hac vice for the purpose of representing Plaintiffs in this matter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 07/06/2007)
ORDER RECEIPT: (see receipt) Fri Jul 6 16:50:04 CDT 2007 (KLH, ) (Entered: 07/06/2007)
49 MEMORANDUM AND ORDER. ORDERED that Plaintiffs' Motion to Consolidate Trial on the Merits with Hearing on Motion for Preliminary Injunction 38 is GRANTED. FURTHER ORDERED that the parties shall appear before this Court on August 10, 2007, at 2:00 p.m. for status conference. FURTHER ORDERED that Defendant City of Valley Park will notify the Court within five (5) days of the date of this order of the status of the Valley Park Ordinances at issue in this suit. Status Conference set for 8/10/2007 02:00 PM in Courtroom 12S before Honorable E. Richard Webber. Signed by Judge E. Richard Webber on 8/8/07. (KLH, ) (Entered: 08/08/2007)
ORDER RECEIPT: (see receipt) Wed Aug 8 12:13:46 CDT 2007 (KLH, ) (Entered: 08/08/2007)
50 MOTION for Issuance of a Declaration that Valley Park Ordinance No. 1722 is Inoperative by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit Exh. 1- Defendant's Amended Answer to Plaintiffs' Amended Petition for Declaratory and Injunctive Relief and Exhibits Thereto# 2 Exhibit Exh. 2- Findings of Fact, Conclusions of Law, Order and Judgment# 3 Exhibit Exh. 3- Motion of Defendant's to Dismiss Plaintiff's Petition for Declaratory Relief and Temporary, Preliminary, and Permanent Injunction# 4 Exhibit Exh. 4- St. Louis

08/09/2007 08/09/2007 08/10/2007 08/10/2007 08/10/2007
08/10/2007 08/10/2007
08/10/2007

County Circuit Court Order and Judgment, August 3, 2007# 5 Exhibit Exh. 5- E-Mail from Daniel Hurtado to Eric Martin, July 24, 2007# 6 Exhibit Exh. 6- E-Mail from Eric Martin to Daniel Hurtado, July 24, 2007# 7 Exhibit Exh. 7- E-Mail from Daniel Hurtado to Eric Martin and Kris Kobach, July 24, 2007# 8 Exhibit Exh. 8- Transcript of Motion Hearing, May 16, 2007)(Hurtado, Daniel) (Entered: 08/09/2007)
51 STIPULATION of Partial Voluntary Dismissal Under Fed. Rule of Civil Procedure 41(a)(1) by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 08/09/2007)
58 ORDER re: 51 STIPULATION of Partial Voluntary Dismissal Under Fed. Rule of Civil Procedure 41(a)(1). IT IS SO ORDERED. Signed by Judge E. Richard Webber on 8/9/07. (RJD) (Entered: 08/13/2007)
52 MOTION for Leave to exceed page limit by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 08/10/2007)
53 MOTION for Summary Judgment by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 08/10/2007)
54 MEMORANDUM in Support of Motion re 53 MOTION for Summary Judgment filed by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Exhibit A - Ordinance 1736 (amending Ordinance 1722)# 2 Exhibit B - Arizona v. Salazar Ruling# 3 Exhibit C - DHS Statement to Congress re Employment Eligibility Verification System)(Kobach, Kris) (Entered: 08/10/2007)
55 STATEMENT of Material Facts re 53 MOTION for Summary Judgment filed by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 08/10/2007)
Docket Text ORDER: Motion for Leave to Exceed Page Limitation [doc. #52] is GRANTED. Defendant's Memorandum in Support of Motion for Summary Judgment consisting of approximately forty (40) pages is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/10/2007)
56 ORDER - IT IS HEREBY ORDERED that Plaintiff has 14 days to conduct discovery on the limited question of the legality of the passing of Valley Park, Missosuri Ordinance No. 1736. IT IS FURTHER ORDERED that the parties shall follow the normal briefing schedule on Defendant City of Valley Park's Motion for Summary Judgment. Plaintiff will have 20 days to file their reponse brief and Defendant shall have 5 days thereafter to file their reply brief. IT IS FURTHER ORDERED that the Court shall hold in abeyance Plaintiff's Motion for Declaratory Judgment, pending a determination of whether Valley

08/10/2007 08/10/2007
08/13/2007 08/14/2007 08/14/2007 08/15/2007
08/15/2007 08/16/2007 08/20/2007

Park, Missouri Ordinance No. 1776 was lawfully enacted. IT IS FURTHER ORDERED that the parties shall notify the Court by noon on 8/14/07 of any stipulation as to further discovery deadlines.. Signed by Judge E. Richard Webber on 8/10/07. (BAK, ) (Entered: 08/10/2007)
ORDER RECEIPT: (see receipt) Fri Aug 10 16:26:32 CDT 2007 (BAK, ) (Entered: 08/10/2007)
57 Minute Entry for proceedings held before Judge E. Richard Webber: Status Conference held on 8/10/2007. Arguments heard. 14 days allowed for discovery on issue of lawfulness. (Court Reporter or FTR Gold Operator initials:T. Hopwood.) (FTR Gold yes or no: no.) (proceedings started: 2:01 pm.) (proceedings ended: 3:00 pm.) (RJD) (Entered: 08/13/2007)
ORDER RECEIPT: (see receipt) Mon Aug 13 09:58:50 CDT 2007 (RJD, ) (Entered: 08/13/2007)
59 NOTICE of Filing Proposed Scheduling And Discovery Order by Plaintiffs Windhover, Inc., Jacqueline Gray (Attachments: # 1 Text of Proposed Order)(Hurtado, Daniel) Modified on 8/14/2007 (KLH, ). (Entered: 08/14/2007)
60 NOTICE of Filing Proposed Scheduling and Discovery Order by Defendant Valley Park, Missouri, City of (Attachments: # 1 Text of Proposed Order)(Kobach, Kris) Modified on 8/15/2007 (KLH, ). (Entered: 08/14/2007)
61 ORIGINAL TRANSCRIPT (Pilot) proceedings of Motion Hearing held on May 16, 2007 before Judge E. Richard Webber. Court Reporter: Susan Moran. The transcript filed with the court will not be remotely available until such time as the period for redaction has expired or a request for redaction has been received and the redacted transcript filed. For additional information see the Notice/Instructions to the Bar regarding Electronic Availability of Civil Transcripts on the Court's website at www.moed.uscourts.gov (LMT, ) (Entered: 08/15/2007)
62 SCHEDULING AND DISCOVERY ORDER. Please refer to order for all deadlines. Signed by Judge E. Richard Webber on 8/15/07. (KLH, ) (Entered: 08/15/2007)
63 MOTION for Extension of Time to File Response/Reply as to 53 MOTION for Summary Judgment by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 08/16/2007)
Docket Text ORDER: Motion for Extension of Time [doc. #63] is GRANTED. Plaintiffs shall file a Response to Defendant's Motion for Summary Judgment [doc. #53] no later than September 13, 2007. So

08/20/2007
08/21/2007
08/22/2007 08/22/2007 08/23/2007 08/23/2007 08/24/2007 08/24/2007 08/24/2007

Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/20/2007)
64 REPLY MEMORANDUM in Support of Motion re 50 MOTION for Issuance of a Declaration that Valley Park Ordinance No. 1722 is Inoperative to Defendants' Oral Response made in open Court filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A# 2 Exhibit B-D)(Hurtado, Daniel) Modified on 8/20/2007 (BAB). (Entered: 08/20/2007)
65 MOTION for Leave to File Amended Reply Memorandum by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 AMENDED REPLY MEMORANDUM IN SUPPORT OF MOTION FOR DECLARATION THAT VALLEY PARK ORDINANCE NO. 1722 IS INOPERATIVE# 2 Exhibt A to Reply Memorandum# 3 Exhibit B to Reply Memorandum# 4 Exhibit C and D to Reply Memorandum)(Hurtado, Daniel) (Entered: 08/21/2007)
Docket Text ORDER: Motion for Leave to File Amended Reply [doc. #65] is GRANTED. Plaintiffs' Amended Reply in support of Motion for Issuance of a Declaration [doc. #50] is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/22/2007)
66 AMENDED REPLY MEMORANDUM in Support of Motion re 50 MOTION for Issuance of a Declaration that Valley Park Ordinance No. 1722 is Inoperative, filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibits C and D)(KLH, ) (Entered: 08/22/2007)
67 NOTICE by Defendant Valley Park, Missouri, City of Second Passage of Ordinance 1736: (Attachments: # 1 Exhibit Ordinance 1736, part 1# 2 Exhibit Ordinance 1736 - part 2)(Kobach, Kris) (Entered: 08/23/2007)
68 SURREPLY/RESPONSE to Motion re 50 MOTION for Issuance of a Declaration that Valley Park Ordinance No. 1722 is Inoperative filed by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 08/24/2007)
69 MOTION for Leave to file Surreply by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 08/24/2007)
70 RESPONSE in Opposition re 69 MOTION for Leave to file Surreply filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 08/24/2007)
Docket Text ORDER: Motion for Leave to File Sur-Reply [doc. #69] is GRANTED. Defendant's Sur-Reply [doc. #68] to Plaintiff's Amended Reply Memorandum in support of Motion for Issuance of a Declaration

08/27/2007 08/27/2007 08/29/2007 08/29/2007 08/29/2007
08/31/2007 09/04/2007
09/04/2007

is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 08/24/2007)
71 MOTION for Leave to File Second Amended Complaint by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit 1 (Second Amended Complaint)# 2 Exhibit A# 3 Exhibit B# 4 Exhibit C# 5 Exhibit D# 6 Exhibit E# 7 Exhibit F# 8 Exhibit G# 9 Exhibit H# 10 Exhibit I# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N)(Hurtado, Daniel) (Entered: 08/27/2007)
72 MEMORANDUM in Support of Motion re 71 MOTION for Leave to File Second Amended Complaint filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 08/27/2007)
73 MOTION for Summary Judgment by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 08/29/2007)
74 MEMORANDUM in Support of Motion re 73 MOTION for Summary Judgment filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 08/29/2007)
75 STATEMENT of Material Facts re 73 MOTION for Summary Judgment (Uncontroverted) filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I Part 1# 10 Exhibit I Part 2# 11 Exhibit J# 12 Exhibit K# 13 Exhibit L# 14 Exhibit M# 15 Exhibit N Part 1# 16 Exhibit N Part 2# 17 Exhibit O)(Hurtado, Daniel) (Entered: 08/29/2007)
76 NOTICE by Defendant Valley Park, Missouri, City of re 71 MOTION for Leave to File Second Amended Complaint Non-Opposition to Plaintiffs' Motion for Leave to File Second Amended Complaint: (Kobach, Kris) (Entered: 08/31/2007)
Docket Text ORDER: Motion for Leave to File Second Amended Complaint [doc. #71] is GRANTED. Plaintiffs' Second Amended Complaint is accepted for filing by this Court. Defendant shall file an Answer to the Amended Complaint no later than September 24, 2007. Plaintiffs' Response to Defendant's Motion for Summary Judgment [doc. #53] is due no later than September 13, 2007. Defendants' Response to Plaintiffs' Motion for Summary Judgment [doc. #73] is due no later than September 18, 2007. Any Reply to a Response to Motion for Summary Judgment is due within five (5) days thereafter. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/04/2007)
77 REPLY (to termed motion) re 71 MOTION for Leave to File Second Amended Complaint filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/04/2007)

09/04/2007
09/06/2007
09/06/2007 09/07/2007 09/07/2007 09/07/2007 09/13/2007 09/13/2007

78 SECOND AMENDED COMPLAINT against defendant Valley Park, Missouri, City of , filed by Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D# 5 Exhibit E# 6 Exhibit F# 7 Exhibit G# 8 Exhibit H# 9 Exhibit I# 10 Exhibit J# 11 Exhibit K# 12 Exhibit L# 13 Exhibit M# 14 Exhibit N)(BAK, ) (Entered: 09/06/2007)
79 MEMORANDUM in Opposition re 73 MOTION for Summary Judgment filed by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Exhibit A - Reynolds Defendants' Trial Brief 2-2207# 2 Exhibit B - Reynolds Defendants' List of Citations 2-22-07# 3 Exhibit C - Reynolds Defendants' Memo in Opp to Motion for Judgment on the Pleadings 2-22-07)(Kobach, Kris) (Entered: 09/06/2007)
80 STATEMENT of Material Facts re 73 MOTION for Summary Judgment Statement of Controverted Material Facts filed by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 09/06/2007)
81 NOTICE by Defendant Valley Park, Missouri, City of re 77 Reply (to termed motion) in Response to Plaintiffs' Scheduling Request (Kobach, Kris) (Entered: 09/07/2007)
82 MOTION for Extension of Time to File Their Reply In Support Of Motion For Summary Judgment on September 20, 2007 by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) Modified on 9/7/2007 (BAB). (Entered: 09/07/2007)
Docket Text ORDER: Motion for Extension of Time [doc. #82] is GRANTED. Plaintiffs' Reply in support of their Motion for Summary Judgment [doc. #73] shall be filed no later than September 20, 2007. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/07/2007)
83 MEMORANDUM in Opposition re 53 MOTION for Summary Judgment (RESPONSE) filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit 1 part 1# 2 Exhibit 1 part 2# 3 Exhibit 1 part 3# 4 Exhibit 1 part 4)(Hurtado, Daniel) (Entered: 09/13/2007)
84 STATEMENT of Material Facts re 53 MOTION for Summary Judgment (Response) filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C Part 1# 4 Exhibit C Part 2# 5 Exhibit C Part 3# 6 Exhibit C Part 4# 7 Exhibit C Part 5# 8 Exhibit C Part 6# 9 Exhibit C Part 7# 10 Exhibit D# 11 Exhibit E# 12 Exhibit F# 13 Exhibit G# 14 Exhibit H# 15 Exhibit I# 16 Exhibit J# 17 Exhibit K Part 1# 18 Exhibit K Part 2# 19 Exhibit K Part 3# 20 Exhibit L Part 1# 21 Exhibit L Part 2# 22 Exhibit L Part 3# 23 Exhibit M Part 1# 24 Exhibit M Part 2# 25 Exhibit M Part 3# 26 Exhibit M Part 4# 27 Exhibit N Part 1# 28 Exhibit N Part 2)(Hurtado,

09/13/2007 09/14/2007
09/14/2007 09/14/2007
09/17/2007
09/17/2007 09/17/2007 09/18/2007 09/18/2007

Daniel) Modified on 9/14/2007 (BAK, ). (Entered: 09/13/2007)
85 MOTION for Leave to File in Excess of Page Limitation by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/13/2007)
Docket Text ORDER: Motion for Leave to File in Excess of Page Limitation [doc. #85] is GRANTED. Plaintiffs' Memorandum in Opposition [doc. #83] to Motion for Summary Judgment consisting of approximately thirty-nine (39) pages is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/14/2007)
86 MOTION for Leave to File Amended Response Memorandum In Opposition To Defendant's Motion For Summary Judgment by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/14/2007)
87 MOTION for Leave to File Amended Response Memorandum In Opposition To Defendant's Motion For Summary Judgment by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Brief part 1# 2 Brief part 2# 3 Exhibit 1 To Brief part 1# 4 Exhibit 1 To Brief part 2# 5 Exhibit 1 To Brief part 3# 6 Exhibit 1 To Brief part 4# 7 Exhibit 1 To Brief part 5# 8 Exhibit 1 To Brief part 6)(Hurtado, Daniel) (Entered: 09/14/2007)
Docket Text ORDER: Motion for Leave to File Amended Response [doc. #87] is GRANTED. Plaintiffs' Amended Response Memorandum in Opposition to Defendant's Motion for Summary Judgment is accepted for filing by this Court. Motion for Leave [doc. #86] is a duplicate pleading and is denied, as moot. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/17/2007)
88 MOTION for Leave to Take More Than Ten Depositions by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/17/2007)
89 MEMORANDUM in Support of Motion re 88 MOTION for Leave to Take More Than Ten Depositions filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/17/2007)
90 MOTION to Continue / Defer Ruling Pursuant to Rule 56(f) on Defendant's Motion for Summary Judgment by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) Modified on 9/18/2007 (BAB). (Entered: 09/18/2007)
91 MEMORANDUM in Support of Motion re 90 MOTION to Continue Pursuant to Rule 56(f) Defendant's Motion for Summary Judgment filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel)

09/18/2007 09/18/2007 09/20/2007 09/21/2007 09/22/2007 09/24/2007
09/26/2007 09/26/2007

(Entered: 09/18/2007)
92 DECLARATION filed by Plaintiffs Windhover, Inc., Jacqueline Gray re 90 MOTION to Continue Pursuant to Rule 56(f) Defendant's Motion for Summary Judgment. (Hurtado, Daniel) (Entered: 09/18/2007)
93 SUPPLEMENTAL re 90 MOTION to Continue Pursuant to Rule 56(f) Defendant's Motion for Summary Judgment Exhibit A-Part 1 by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A-Part 2)(Hurtado, Daniel) (Entered: 09/18/2007)
94 REPLY to Response to Motion re 73 MOTION for Summary Judgment filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit P# 2 Exhibit Q# 3 Exhibit R)(Hurtado, Daniel) (Entered: 09/20/2007)
95 MOTION to Stay And For Expedited Briefing And Decision by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/21/2007)
96 MEMORANDUM in Opposition re 95 MOTION to Stay And For Expedited Briefing And Decision, 90 MOTION to Continue Pursuant to Rule 56(f) Defendant's Motion for Summary Judgment filed by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Text of Proposed Order Proposed Scheduling Order)(Kobach, Kris) (Entered: 09/22/2007)
Docket Text ORDER: The Court hereby sets the following briefing deadlines: Defendant's Reply to its Motion for Summary Judgment [doc. #53] shall be filed no later than September 27, 2007. Defendant's Response to Motion for Leave to Take More than Ten Depositions [doc. #88] shall be filed no later than September 26th and any Reply by Plaintiffs shall be filed no later than September 28th. Plaintiffs' Reply regarding both its Motion to Continue/Defer Ruling [doc. #90] and its Motion to Stay [doc. #95] shall be filed no later than September 26, 2007. After all motions are fully briefed and reviewed by this Court, the Court will schedule an in-court hearing, if necessary. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/24/2007)
97 REPLY to Response to Motion re 95 MOTION to Stay And For Expedited Briefing And Decision, 90 MOTION to Continue Pursuant to Rule 56(f) Defendant's Motion for Summary Judgment filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/26/2007)
98 RESPONSE to Motion re 88 MOTION for Leave to Take More Than Ten Depositions filed by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 09/26/2007)

09/26/2007 09/27/2007 09/27/2007
09/28/2007 09/28/2007 09/28/2007
09/28/2007
09/28/2007 09/28/2007 09/28/2007 09/28/2007 09/28/2007

99 NOTICE by Defendant Valley Park, Missouri, City of Receipt by Defendant of Plaintiffs' Agreement to Abide by Protective Order: (Kobach, Kris) (Entered: 09/26/2007)
100 REPLY to Response to Motion re 88 MOTION for Leave to Take More Than Ten Depositions filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/27/2007)
101 REPLY to Response to Motion re 53 MOTION for Summary Judgment filed by Defendant Valley Park, Missouri, City of. (Attachments: # 1 Exhibit A - Chertoff and Gutierrez Remarks 8-10-07# 2 Exhibit B Basic Pilot Program Certificate# 3 Exhibit C - SAVE MOU)(Kobach, Kris) (Entered: 09/28/2007)
102 MOTION for Leave to Exceed Page Limits by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 09/28/2007)
103 RESPONSE in Opposition re 102 MOTION for Leave to Exceed Page Limits filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/28/2007)
Docket Text ORDER: Motion for Leave to Exceed Page Limitation [doc. #102] is GRANTED. Defendant's Reply [doc. #101] to Response to its Motion for Summary Judgment is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/28/2007)
Docket Text ORDER: Counsel for all parties shall appear before this Court on October 5, 2007, at 9:00 a.m. to address the following pending motions: Motion for Leave to Exceed Deposition Limit [doc. #88]; Motion to Continue/Defer Ruling on Summary Judgment [doc. #90]; and Motion to Stay [doc. #95]. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/28/2007)
104 MOTION for Entry of Clerk's Default against Defendant, City Of Valley Park, Missouri (And For Default Judgment) by Plaintiffs Windhover, Inc., Jacqueline Gray. (Hurtado, Daniel) (Entered: 09/28/2007)
***REMARK - Motion for Clerk's Entry of Default held by Clerk's Office per chambers instructions (BAK, ) (Entered: 09/28/2007)
105 ANSWER to Amended Complaint by Valley Park, Missouri, City of.(Kobach, Kris) (Entered: 09/28/2007)
106 MOTION for Leave to File Answer to Second Amended Complaint, Out of Time by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 09/28/2007)
Docket Text ORDER: Motion for Leave to File Answer Out of Time

10/02/2007 10/04/2007 10/04/2007 10/05/2007
10/05/2007

[doc. #106] is GRANTED. Defendant's Answer to Second Amended Complaint [doc. #105] is accepted for filing by this Court. Motion for Entry of Clerk's Default [doc. #104] is DENIED, as moot. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 09/28/2007)
107 MOTION to Quash Subpoena of City Attorney by Defendant Valley Park, Missouri, City of. (Kobach, Kris) (Entered: 10/02/2007)
Docket Text ORDER: Defendant's Motion to Quash [doc. #107] will be addressed at the previously scheduled Motion Hearing set for October 5, 2007, at 9:00 a.m., along with the Motion for Leave to Exceed Deposition Limit [doc. #88]; Motion to Continue/Defer Ruling on Summary Judgment [doc. #90]; and Motion to Stay [doc. #95]. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 10/04/2007)
108 MEMORANDUM in Opposition re 107 MOTION to Quash Subpoena of City Attorney filed by Plaintiffs Windhover, Inc., Jacqueline Gray. (Attachments: # 1 Exhibit A)(Hurtado, Daniel) (Entered: 10/04/2007)
109 Minute Entry for proceedings held before Judge E. Richard Webber : Motion Hearing held on 10/5/2007 re 95 MOTION to Stay And For Expedited Briefing And Decision filed by Jacqueline Gray,, Windhover, Inc.,, 107 MOTION to Quash Subpoena of City Attorney filed by Valley Park, Missouri, City of,, 88 MOTION for Leave to Take More Than Ten Depositions filed by Jacqueline Gray,, Windhover, Inc.,, 90 MOTION to Continue Pursuant to Rule 56(f) Defendant's Motion for Summary Judgment filed by Jacqueline Gray,, Windhover, Inc.,. Arguments heard. Order to issue. (Court Reporter or FTR Gold Operator initials:D. Kriegshauser.) (FTR Gold yes or no: no.) (proceedings started: 9:05.) (proceedings ended: 10:01.) (BAK, ) (Entered: 10/05/2007)
110 MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Plaintiffs' Motioin for Leave to Take More Than Ten Depositions 88 is GRANTED in part and DENIED in part. Plaintiffs may take the nine additional depositions requested before this court. These depositions are to be completed no later than 10/22/07, in accordance with the terms of this order. Plaintiffs may not take the deposition of City Attorney Eric Martin. IT IS FURTHER ORDERED that any supplemental briefing on the pending motions for summary judgment is due no later than 10/26/07. No responsive briefs shall be permitted. IT IS FURTHER ORDERED that Plaintiffs' Motion for Continuance Pursuant to Rule 56(f) 90 is GRANTED. The Court will reserve ruling on Defendants' Motion for Summary Judgment 53 and Plaintiffs' Motion for Summary Judgment 73, pending the completion of fact discovery as provided in this order. IT IS FURTHER ORDERED that Plaintiffs' Motion to Stay and for Expedited Briefing and Decision 95 is DENIED. IT IS

FURTHER ORDERED that Defendant's Motion to Quash Notice and subpoena of City Attorney 107 is GRANTED. IT IS FURTHER ORDERED that this Court's 8/15/07 order is VACATED.Signed by Judge E. Richard Webber on 10/5/07. (BAK, ) (Entered: 10/05/2007)

PACER Service Center
Transaction Receipt

10/10/2007 10:38:08

PACER Login: hs0328

Client Code:

Description: Docket Report Search Criteria: 4:07-cv-00881-ERW

Billable Pages: 13

Cost:

1.04

 
 STATE OF MiSSOUR! )))
)))
ST. LOUIS COUNTY)))

I, lVfarguerite Wilburn, City Clerk within and for the City of

Valley Park, S1. Louis

County, Missouri, do hereby certify that the foregoing constitutes a full, true, and

complete copy of Ordinance 1736 passed by the Board of Aldermen on the

9th day of August 2007 and approved by the Mayor on the 9th day of August 2007 as

fully as the same appears of

record in my offce in the Book of

Ordinances of

said City.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affix the sea! of

the

(."..it.v~r.\Jf\.!.al;lp-,J! P~ar~l: "M,.i.ss¡o~u,,\.j.'~:Jt n.H.~' o..f.F'-;""~,'i'n';',',',','i''i'!-rJit''"'''!&thl ;~s 0:tih&r~Ia"Jo.f.Å..U..ob-usL+"-70:0.7

.~.

BILL NO. 1885

***************

ORDINANCE NO. 1736

AN ORDINANCE AMENDING ORDINANCE 1722 AS AMENDED BY ORDINANCES 1724 AND 1732 BY MAKING THE ORDINANCE EFFECTIVE.IMMEDIAT.ELY-
BUT STAYING THE ENFORCEMENT OF SECTIONS 2, 3, 4r 5 AND 6 AND NOT ACCEPTING COMPLAINTS THEREUNDER UNTIL DECEMBER 1, 2007
***************

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Ordinance 1722, as amended by Ordinance 1724 and Ordinance 1732, is
hereby amended by deleting Section Seven therefrom and, in lieu thereof,
inserting a new Section Seven so that Ordinance 1722, as amended by
Ordinances 1724 and 1732, shall read as follows:
"Section One
Ordinance No. 1715 and sections one, two, three and four of Ordinance
No. 1708 are hereby repealed and the following is enacted in lieu thereof:
Section Two

FINDINGS AND DECLARATION OF PURPOSE.
The people of the City of Valley Park find and declare:
A. That state and federal law require that certain conditions be met
before a person may be authorized to work in this country. .
B. That unlawful workers and illegal aliens, as defined by this
Ordinance and state and federal law, do not normally meet such
conditions as a matter of law when present in the City of Valley
Park.
C. That the unlawful employment of, harboring of, and crimes
committed by, illegal aliens harm the health, safety, and welfare of
residents of the City of Valley Park. Ilegal immigration leads to
higher crime rates, subjects our hospitals to fiscal hardship and our
residents to substandard quality of care, contributes to other'
burdens on public services, increasing their costs and diminishing
their availability, diminishes our overall qualify of life, and
1

endangers the security and safety of the homeland. Employment of
unauthorized aliens reduces the wages of, and may result in the
unemployment of, U.S. citizens and aliens who are authorized to work in the United States.
D. That the City of Valley Park is authorized to enact ordinances to
promote the health, safety, and welfare of its residents and to abate public nuisances, including the nuisance of illegal immigration, by
diligently prohibiting the acts and practices that facilitate illegal immigration, in a manner consistent with federal law and the objectives of Congress.

E. This Ordinance seeks to secure to those lawfully present in the
United States and this City, whether or not they are citizens of the United States, the right to live in peace free of the threat of crime,
to enjoy the public services provided by this City without being
burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed
by the influx of illegal aliens, to the fullest extent that these goals
can be achieved consistent with the Constitution and Laws of the United States and the State of Missouri.
F. The City shall not construe this Ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal
assistance to any person.
Section Three

DEFINITIONS.

When used in this chapter, the following words, terms and phrases shall

have the meanings ascribed to them herein, and shall be construed so as to be

consistent with state and federal

law, including federal immigration law:

A. "Business entit/' means any person or group of persons performing
or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for
profi.

(1) The term business entity shall include, but not be limited to,
self-employed individuals, partnerships, corporations,
contractors, and subcontractors.

(2) The term business entity shall include any business entity
that possesses a business license, any business entity that is
exempt by law from obtaining such a business license, and
any business entity that is operating unlawfully without such a business license.
2

B. "City" means the City of Valley Park, Missouri.

C. "Contractor" means a person, employer, subcontractor or business
entity that enters into an agreement to perform any service or work
or to provide a certain product in exchange for valuable
consideration. This definition shal,1 include, but not be limited to: a subcontractor, contract employee, or a recruiting or staffing entity.

D. "Ilegal Alien" means an alien who is not lawfully present in the
United States, according to the terms of United States Code Title 8,

section 1101 et seq. The City shall not conclude that a person is an

illegal alien unless and until an authorized representative of the City

has verified with the federal government, pursuant to United States

Code Title 8,

subsection 1373(c), that the person is an alien who is

not lawfully present in the United States.

E. "Unlawful worker" means a person who does not have the legal
right or authorization to work due to an impediment in any provision of federal, state or local law, including, but not limited to, a minor
disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).
F. "Work" means any job, talk, employment, labor, personal services, or any other activity for which compensation is provided, expected,
or due, including, but not limited to, all activities conducted by
business entities.
G. "Basic Pilot Program" means the electronic verification of work authorization program of the Ilegal Immigration Reform and Immigration responsibilty Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and
operated by the United States Department of Homeland Security (or
a successor program established by the federal government.)
Section Four

BUSINESS PERMITS, CONTRACTS, OR GRANTS.

A. It is unlawful for any business entity to knowingly recruit, hire for
employment, or continue to employ, or to permit, dispatch, or
instruct any person who is an unlawful worker to perform work in whole or part within the City. Every business entity that applies for a business license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an
unlawful worker.

3

B. Enforcement: The Valley Park Code Enforcement Office shall
enforce the requirements of this section.

(1) An enforcement action shall be initiated by means of a written
signed complaint to the Valley Park Code Enforcement Office
submitted by any City official, business entity, or City
resident. A valid complaint shall include an allegation which
describes the alleged violator(s) as well as the actions
constituting the violation, and the date and location where
such actions occurred.

(2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not
be enforced.

(3) Upon receipt of a valid complaint, the Valley Park Code

Enforcement Office shall, within three (3) business days,
request identify information from the business entity

regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the

business permit of any business entity which fails, within

three (3) business days

after receipt of the request, to

provide such information.

(4) The Valley Park Code Enforcement Office shall suspend the
business license of any business entity which fails to correct a violation of this section within three (3) business days after
notification of the violation by the Valley Park Code
Enforcement Office.

(5) In any case in which the alleged unlawful worker is alleged to
be an unauthorized alien, the Valley Park Code Enforcement
Office shall not suspend the business license of the business entity if prior to the date of the violation, the business entity
had verified the work authorization of the alleged unlawful
worker using the Basic Pilot Program.

(6) The suspension shall terminate one (1) business day after a legal representative of the business entity submits, at a City
office designated by the City Attorney, a sworn affidavit
stating that the business entity has corrected the violation, as
described in Section S.B.
(a) The affidavit shall include a description of the specific
measures and actions taken by the business entity to
correct the violation, and shall include the name,
address and other adequate identifying information of the unlawful workers related to the complaint.

4

Section Six
CONSTRUCTION AND SEVERABILITY
A. The requirements and obligations of this sectiloanw rsehgaullaltibneg implemented in a manner fully consistent with federal immigration and protecting the civil rights of all citizens and aliens.
B. If any parts of or any provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes,
or is otherwise held to be invalid or unenforceable by any court of
competent jurisdiction, such part or such provision shall be
suspended and superseded by such applicable laws or regulations,
and the remainder of this Chapter shall not be affected thereby.
Section Seven
This Ordinance shall become effective from and after its passage and
approval by the Mayor in repealing Ordinances 1708 and 1715, .provided that the enforcement of the provisions contained within Sections Two, Three, Four, Five and Six shall be stayed and no complaints thereunder shall be accepted by the
City of Valley Park until December 1, 2007."
Section Two
This Ordinance shall become effective from and after its passage and approval by the Mayor.
c) I) 11o.f ..f//:J?t..Æ-O)~o~1' / , 2007.
PASSED this /.X:J7r day
APPROVED this 'jtt~ day of ,l¿r"''-¿ ,2007.

ATTEST:
_//)7
'7 / La-f/'
MARGU /: ITE WILBURN
City Clerk

. ryc¿¿¿"/'L

7

 
 United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 08-1681 ___________

Jacqueline Gray; Windhover, Inc.,

*

*

Plaintiffs-Appellants,

*

*

v.

*

*

City of Valley Park, Missouri,

*

*

Defendant-Appellee.

* On Appeal from the United

____________

* States District Court for the

* Eastern District of Missouri.

Eagle Forum Education and Legal

*

Defense Fund; Allied Educational

*

Foundation; Brian Bilbray; Steve

*

King; Lamar Smith; Washington

*

Legal Foundation,

*

*

Amici on behalf of Appellee. *

___________

Submitted: December 10, 2008 Filed: June 5, 2009 (Corrected: 06/11/2009) ___________

Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges. ___________

BEAM, Circuit Judge.

Jacqueline Gray and Windhover, Inc. (Appellants, collectively) challenge ordinances enacted by the City of Valley Park, Missouri, (City) that address illegal

alien employment in the context of real estate occupation and leasing. Appellants initially filed suit in state court against the City to invalidate the ordinances. The City removed the case to federal court and the parties later filed cross motions for summary judgment. The district court1 granted judgment in favor of the City, denied Appellants' motion and dismissed Appellants' Second Amended Complaint with prejudice. Because Appellants have standing and we agree with the district court regarding the absence of preclusion, we affirm.
I. BACKGROUND
Gray is the sole owner of Windhover, Inc., a corporation that owns rental units in the City. Intermittently, Windhover hires individuals to work at miscellaneous tasks and perform maintenance on this property. In September 2006, Gray and others sued the City in state court seeking to enjoin the enforcement of an ordinance (ordinance 1708, later repealed and amended by ordinance 1715), which concerned the same general subject matter as the two ordinances challenged in this action. See Reynolds v. City of Valley Park, No. 4:06CV01487, 2006 WL 3331082 (E.D. Mo. 2006) ("the Reynolds case"). The City removed the Reynolds case, but the district court remanded, in part because it held there was no case or controversy under the Federal Declaratory Judgment Act. Id. at *6. In February 2007, the City effectively repealed both of the ordinances at issue in the Reynolds case and replaced them with ordinance 1721 (involving the harboring of illegal aliens in rental units) and ordinance 1722 (involving the employment of unauthorized aliens). The Reynolds case nonetheless proceeded in state court and on March 12, 2007–even after the City repealed the two ordinances upon which the pending action was based, and the plaintiffs declined the opportunity to amend the action to include ordinances 1721 and 1722–the state court permanently enjoined the enforcement of the two, then-repealed
1The Honorable E. Richard Webber, United States District Judge for the Eastern District of Missouri.
-2-

ordinances. The City appealed that order and the Missouri Court of Appeals dismissed the case as moot because the enforcement provisions of the ordinances had been repealed and substituted with new executory provisions–ordinances 1721 and 1722 (at issue in the instant appeal). Reynolds v. City of Valley Park, 254 S.W.3d 264, 266 (Mo. Ct. App. 2008).
On March 14, 2007, Appellants initiated the instant action in state court, challenging ordinances 1721 and 1722. Ordinance 1722, however, is the only ordinance now at issue because the City repealed ordinance 1721 in July 2007, and the parties stipulated to a voluntary dismissal of Appellants' related claims. The City removed the case to federal district court. The district court retained the action, holding that the new ordinance imposed immediate obligations on Appellants.
Generally, ordinance 1722 prohibits all business entities in Valley Park from knowingly employing unauthorized aliens.2 The ordinance sets out a procedure for lodging complaints against potential violators and requires, among other things, that those business entities that apply for a business license sign an affidavit stating that they do not knowingly employ any person who is an unlawful worker.
Both parties filed motions for summary judgment with the district court. As a result of these motions, the district court addressed issues of preclusion (based upon the effect, if any, of the state court's March 12, 2007, injunction concerning ordinances 1708 and 1715); preemption, or not, by federal immigration law; Appellants' standing to assert an equal protection claim; the status of Appellants' due process claim; and whether ordinance 1722 violates Missouri law. The district court ruled in the City's favor, determining that (1) there was no issue preclusion arising
2In August 2007, the City enacted ordinance 1736, which amended the effective date of ordinance 1722 but otherwise reenacted 1722 intact. Thus, for the sake of clarity, throughout this opinion we refer to ordinance 1722 as the ordinance at issue.
-3-

from the state court's earlier decision regarding ordinances 1708 and 1715 because ordinance 1722 was not identical; (2) federal law did not preempt ordinance 1722; (3) Appellants lacked standing to pursue an equal protection claim; (4) ordinance 1722 does not violate the Due Process Clause; and (5) ordinance 1722 does not violate Missouri law by exceeding the authority granted a fourth class city.
Only two issues are before us today: (1) whether the district court lacked jurisdiction over this matter and (2) whether this matter is precluded by the prior Missouri state court order.
II. DISCUSSION
In an unlikely turn of events, Appellants now claim that ordinance 1722 is not enforceable against them at all (and was never enforceable) and as a result, the district court had no subject matter jurisdiction–making the court's failure to remand a jurisdictional defect. "'[I]f a plaintiff lacks standing, the district court has no subject matter jurisdiction.'" Young America Corp. v. Affiliated Computer Services (ACS), Inc., 424 F.3d 840, 843 (8th Cir. 2005) (quoting Faibisch v. Univ. of Minn., 304 F.3d 797, 801 (8th Cir. 2002)) (alteration in original). Appellants' current claim, contrary to nearly every pleading filed by Appellants since the inception of this case in state court, is that there is no actual or imminent injury-in-fact and thus no justiciable case or controversy sufficient to satisfy federal standing requirements. To be sure, this course of argument is unorthodox. It is with restraint that we do not point out the numerous instances, in court pleadings and affidavits made under oath, where Appellants claimed imminent harm, injury to property interests and other burdens of enforcement and compliance arising from ordinance 1722. To be fair, at one point Appellants did amend their argument in support of summary judgment and sought a declaration that the ordinance did not apply to Windhover or Gray. That argument, however, was not made in the context of a challenge to standing (although a ruling in Appellants' favor on that issue would have put the issue of standing in play), but was
-4-

crafted to judicially solidify the then-uncertain interpretation of ordinance 1722 as it applied to Appellants. But, that argument was merely a needle in the haystack of Appellants' allegations of imminent harm to themselves and third parties that dominated the proceedings below.3
A. Judicial Estoppel
The City argues that because Appellants' current stance regarding their lack of standing is wholly at odds with the position they took before the district court, Appellants should be judicially estopped from proceeding on this theory. The doctrine of judicial estoppel provides that when "a party assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position, especially if it be to the prejudice of the party who has acquiesced in the position formerly taken by him." New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quotation omitted) (holding that under the doctrine of judicial estoppel, New Hampshire was equitably
3The City argues that Appellants' current change of course is a keen, brazen, and strategic attempt by Appellants to covertly vacate the district court's decision on the merits without having to address the merits on appeal, and in an effort to return to state court with no preclusive federal opinion blocking their efforts. We caution that if any of this so-called tactical scheming pours the foundation for the unnecessary exertion of our judicial resources here, such abuse will not go unnoticed. This admonition applies equally to the City, which likewise appears to have contradicted itself on appeal in an attempt to gain an advantage. For example, we are dubious of the City's professed disdain regarding Appellants' alleged "desperate" effort to find some way of denying their own standing by "deceptively" inserting the word "expressly" into ordinance 1722 as a qualifier to those business entities exempted–i.e., "any business entity that is [expressly] exempt by law." The City itself, in its Reply Memorandum in Support of Defendant's Motion for Summary Judgment, stated that the "business entity" contemplated by ordinance 1722 "is limited in Section 3 of the ordinance to business entities that require a business license, unless expressly exempted by law." Those who live in glass houses should not throw stones.
-5-

barred from asserting, contrary to its position in prior litigation over the states' lobster fishing rights, that the inland Piscataqua River boundary ran along the Maine shore); In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999); Taylor v. Food World, Inc., 133 F.3d 1419, 1422 (11th Cir. 1998); Lowery v. Stovall, 92 F.3d 219, 223 (4th Cir. 1996); In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). This rule "generally prevents a party from prevailing in one phase of a case on an argument and then relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich, 530 U.S. 211, 227 n.8 (2000). The purpose of the doctrine is to protect the integrity of the judicial process by prohibiting parties from deliberately changing positions according to the exigencies of the moment. New Hampshire, 532 U.S. at 749-50; Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 609 (8th Cir. 1993).
While the circumstances under which judicial estoppel may appropriately be invoked are not reducible to any general formulation, the Supreme Court has identified several factors that typically inform the decision whether to apply the doctrine in a particular case: (1) whether a party's later position is clearly inconsistent with its earlier position; (2) whether the party has succeeded in persuading a court to accept that party's earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create the perception that either the first or the second court was misled; and (3) whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped. New Hampshire, 532 U.S. at 750-51. There is no mechanical test, however, and ultimately, because the rule is intended to prevent improper use of judicial machinery, the discretionary determination to apply the doctrine of judicial estoppel is made on a case-by-case basis. Id. at 750 (stating that judicial estoppel is an equitable doctrine invoked by a court at its discretion).
The City's contention that we should apply judicial estoppel in this case is not without force. Indeed, it would seem at first blush that this is just the sort of case to which judicial estoppel must apply. However, we are sufficiently concerned about
-6-

applying judicial estoppel under the particular circumstances of this case that we decline to do so.4 In the end, we must have Article III jurisdiction to entertain any claim even though the change in tactics in this case does seem to result in the sort of extreme perversion of the judicial process that normally justifies the use of judicial estoppel. Most critically, we have failed to find any precedent, and the City cites to no authority, supporting the application of this doctrine in the face of an alleged jurisdictional default.5 Even if the parties wasted judicial resources up to this point
4Appellants claim that it was only after they received the City's stated interpretation of ordinance 1722 in the City's Reply Memorandum in Support of [the City's] Motion for Summary Judgment (discussing the ordinance in the context of whether it covers casual domestic workers for purposes of the federal preemption statute) that Appellants realized there was no threat of enforcement because they did not have, nor did they plan to obtain, a business license. Judicial estoppel might be inappropriate when a party's prior position was based on inadvertence or mistake. New Hampshire, 532 U.S. at 753 (rejecting New Hampshire's mistake argument that it had failed to do historic research earlier). To the extent we indulge Appellants' newly-minted "understanding" (or prior, inadvertent misunderstanding) of the ordinance in question, this too informs our determination not to apply judicial estoppel. That said, Appellants' argument gives us pause to consider why they did not amend their pleadings or otherwise pursue the instant argument before the district court when they discovered the problem prior to the court's judgment on the pending motions. Appellants assert that "it had by then [at the time the district court ruled on Appellants' motion for summary judgment] become clear that the [Appellants] are not required to have a business permit under Valley Park municipal law, had no intent of applying for a business permit, and thus would not be required to sign an affidavit of compliance." Appellants' Brief at 28 (emphasis added). If it was so clear that there was no means by which the City could enforce ordinance 1722 against them, why continue to pursue the claim?
5The Federal Circuit Court of Appeals addressed the issue in Biomedical Patent Management Corp. v. California Department of Health Services., 505 F.3d 1328, 1342 (Fed. Cir. 2007), cert. denied, 129 S. Ct. 895 (2009), but declined to apply the doctrine because there was an intervening change of law justifying the party's change of position regarding its immunity from suit.
-7-

and misled the courts on this issue in the process, we may not forge ahead on blind principle without jurisdiction to do so.
B. Jurisdiction
We recognize that "[a]ny party or the court may, at any time, raise the issue of subject matter jurisdiction." GMAC Commercial Finance LLC v. Dillard Dep't Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004). And, even if neither party had raised the issue below, we are required to address it. Renne v. Geary, 501 U.S. 312 (1991) (discussing justiciability and ripeness for the first time before the Supreme Court); FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990).
"Federal courts are not courts of general jurisdiction; they have only the power that is authorized by Article III of the Constitution and the statutes enacted by Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 541 (1986). "The limitations imposed by Article III are usually referred to as the 'case or controversy' requirement." Schanou v. Lancaster County Sch. Dist. No. 160, 62 F.3d 1040, 1042 (8th Cir. 1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d 1430, 1435 (8th Cir. 1993) (en banc)); see also Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982) ("Article III of the Constitution limits the 'judicial power' of the United States to the resolution of 'cases' and 'controversies.'"). This court defines "case or controversy" to require "a definite and concrete controversy involving adverse legal interests at every stage in the litigation." McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir. 1992). "Federal courts must always satisfy themselves that this requirement has been met before reaching the merits of a case. Courts employ a number of doctrines to determine justiciability such as standing, ripeness, and mootness." Schanou, 62 F.3d at 1042.
-8-

Article III standing represents "perhaps the most important" of all jurisdictional requirements. FW/PBS, 493 U.S. at 231. This doctrine "requires federal courts to satisfy themselves that the plaintiff has alleged such a personal stake in the outcome of the controversy as to warrant [her] invocation of federal-court jurisdiction." Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (internal quotations and emphasis omitted). In the normal course, the plaintiff has the responsibility clearly to allege facts demonstrating that she is a proper party to invoke judicial resolution of the dispute and the exercise of the court's remedial powers. Warth v. Seldin, 422 U.S. 490, 518 (1975). This assures the existence of that measure of concrete adverseness necessary to sharpen the presentation of issues necessary for the proper resolution of the constitutional questions. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
This particular case is interesting because it is not the normal course of events for the parties originally initiating the action to challenge their own standing on appeal by claiming the very law they challenge is not enforceable against them.6 In the normal course of events, a simple dismissal would logically cure the current ailment. Here, however, it is Appellants' desire to pursue their claims in Missouri state court, where they started, and thus Appellants seek to shed themselves of this federal forum and all of its ramifications.7 It is customary that "the court must accept all factual
6That Appellants' claim is not yet ripe might be another way of viewing Appellants' argument but Appellants' claim is not that this ordinance has not yet been enforced against them or that the threat of enforcement is not imminent, but rather that this statute could never apply to them, thus concentrating this matter in "standing" jurisprudence. See Johnson v. Missouri, 142 F.3d 1087, 1090 n.4 (8th Cir. 1998) (noting that although "standing and ripeness are technically different doctrines, they are closely related in that each focuses on 'whether the harm asserted has matured sufficiently to warrant judicial intervention.'") (quoting Warth, 422 U.S. at 499 n.10).
7Counsel clearly pointed out at oral argument that the "problem" in this case is that there is now a judgment in place in the federal court that will affect what Appellants can do in the state court. Yet, Appellants do not overtly challenge the merits of this problematic district court opinion.
-9-

allegations in the complaint as true and draw all inferences in the plaintiff's favor" when making a determination on standing. Young America, 424 F.3d at 843. Given the unique posture of this case, the nature of Appellants' allegations on appeal are different from those alleged in their complaint. Were we to look only to Appellants' complaint (a pleading that was never amended to reflect the current discussion) there would be no controversy regarding Appellants' standing because it would surely exist. As the case stands today, we review Appellants' complaint, along with ordinance 1722, all pleadings in this matter, and the parties' arguments on appeal in making our jurisdictional decision. Warth, 422 U.S. at 517-18.
To satisfy Article III's standing requirement, (1) there must be "injury in fact" or the threat of "injury in fact" that is (a) concrete and particularized and (b) actual or imminent, not conjectural or hypothetical; (2) the injury must be fairly traceable to defendant's challenged action; and (3) it must be likely (as opposed to merely speculative) that a favorable judicial decision will prevent or redress the injury. Summers, 129 S. Ct. at 1149; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 180-81 (2000). The standing "requirement assures that 'there is a real need to exercise the power of judicial review in order to protect the interests of the complaining party.'" Summers, 129 S. Ct. at 1149 (quoting Schlesigner v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974)). To determine whether a pre-enforcement challenge such as this is justiciable requires us to take these factors into consideration on a case-by-case basis. Regional Rail Reorganization Act Cases, 419 U.S. 102, 143 n.29 (1974).
Appellants now claim that ordinance 1722 is not enforceable against them because (1) Appellants only hire independent contractors, (2) Appellants have no business permit to lose in the event of non-compliance, and (3) any potential injuries, assuming ordinance 1722 applied to Appellants, are not imminent and are speculative.
-10-

Focusing properly and sequentially on the three requisites for standing, we find "injury in fact" traceable to ordinance 1722 that could be redressed by a favorable judicial decision. All parties acknowledge that Appellants have not yet been subjected to enforcement under ordinance 1722. Pre-enforcement facial challenges may be brought, however, in certain circumstances. Plaintiffs have standing to challenge the facial validity of a regulation notwithstanding the pre-enforcement nature of a lawsuit, where the impact of the regulation is direct and immediate and they allege an actual, well-founded fear that the law will be enforced against them. Lake Carriers' Ass'n v. MacMullan, 406 U.S. 498, 507 (1972); Abbott Labs. v. Gardner, 387 U.S. 136, 152 (1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977); Krantz v. City of Fort Smith, 160 F.3d 1214, 1218 (8th Cir. 1998). Only recently have Appellants changed their tune to claim they no longer fear enforcement of ordinance 1722. Even so, the City argues that ordinance 1722 is enforceable against Appellants and will be enforced against Appellants and, given the unique posture of this case, we take that claim into consideration when deciding Appellants' stake in this litigation. See Int'l Ass'n of Firefighters v. City of Ferguson, 283 F.3d 969, 973 (8th Cir. 2002) (concluding that the threatened conduct against the claimant's husband should she violate the challenged charter provision was sufficient to present a "case" or "controversy"); Krantz, 160 F.3d at 1217 (assuming for the purposes of standing that the City would enforce violations of the law in question because the City vigorously defended the ordinance and never suggested that it would refrain from enforcement).
Now, turning to Appellants' specific claims as to why 1722 is not enforceable, we easily dispose of the first. Appellants do hire individuals or contractors from time to time to perform maintenance on the rental units and are likely to do so in the future.8 As such, we need neither speculate nor merely attempt to anticipate whether
8Appellants claim that ordinance 1722 is not enforceable against them because it does not govern business entities who hire only independent contractors. Very plainly, and under oath, Jacqueline Gray stated that she "intend[ed] in the near future to hire an individual or contractor to paint the interior of one unit and another to
-11-

Appellants will fall within the purview of ordinance 1722 in that respect. O'Shea v. Littleton, 414 U.S. 488, 497 (1974).
Second, Appellants are clearly contemplated by the ordinance at issue as a "business entity." That Appellants do not maintain a business license is immaterial. The definition casts a wide net. "'Business entity' means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit." Ordinance No. 1736 § 3A. "The term business entity shall include, but not be limited to, self-employed individuals, partnerships, corporations, contractors, and subcontractors." Id. at § 3A(1). Section 3A(2) further states that "[t]he term business entity shall include any business entity that possesses a business license, any business entity that is exempt by law from obtaining such a business license, and any business entity that is operating unlawfully without such a business license." That Appellants do not have a business license does not exempt them from this ordinance. Appellants fall within the ordinance provisions and must, as law-abiding citizens, comply and conform their conduct according to its directives.
Third, this injury is not speculative in such a way as to defeat jurisdiction. Where a plaintiff alleges an intention to engage in a course of conduct that is clearly proscribed by statute, courts have found standing to challenge the statute, even absent a specific threat of enforcement. Russell v. Burris, 146 F.3d 563, 566-67 (8th Cir. 1998); see also Lake Carriers', 406 U.S. at 507(determining that the mere obligation
replace carpeting." We take her at her word. Further, we are confused by Appellants' claim that they "have no history of hiring Hispanic workers and have evidenced no intent to do so in the future." Perhaps it is Appellants who are confused–ordinance 1722 addresses employment of illegal aliens, not Hispanics. (We further ponder why Appellants have adopted such a hiring policy, but we digress.) If Appellants meant to argue that they have not hired, and have no intent in the future to hire, illegal aliens, then we are left wondering, again, why this case was initiated in state court in the beginning, or at the very least, not dismissed in federal court long ago.
-12-

to install sewage storage devices placed upon the challenging party under a Michigan statute, even without threat of enforcement, created a live controversy for purposes of justiciability). "This court has also entertained constitutional challenges where the statute clearly applies to the plaintiff, and the plaintiff has stated a desire not to comply with its mandate." United Food & Commercial Workers Int'l Union, AFLCIO, CLC v. IBP, Inc., 857 F.2d 422, 428 (8th Cir. 1988); see also Pursley v. City of Fayetteville, 820 F.2d 951, 953 (8th Cir. 1987); Blatnik Co. v. Ketola, 587 F.2d 379, 381 (8th Cir. 1978). And, as this court has previously noted, commentators agree with this result: "'[w]here the enforcement of a regulatory statute would cause plaintiff to sustain a direct injury, the action may properly be maintained, whether or not the public officer has "threatened" suit; the presence of the statute is threat enough,' at least where the challenged statute is not moribund." United Food, 857 F.2d at 428 (quoting 6A Moore's Federal Practice, ¶ 57.18[2] at 57-189 (2d ed. 1987)) (alteration in original). Here, even though Appellants do not have a business license, they admittedly will continue to maintain the rental property by hiring an "individual or contractor" to do work. It is the hiring process that is affected. And, as noted above, this affected process is fairly traceable to ordinance 1722.
The City claims that injury-in-fact indeed exists. Despite Appellants' lack of a business license and the professed denial of ever obtaining a business license in the future, the City claims that no less than four other sanctions apply to business entities that violate ordinance 1722, all directly traceable to ordinance 1722 itself: (1) a violator of ordinance 1722 is compelled to take specific steps to correct the violation and submit a sworn affidavit; (2) if in violation, Appellants can be required to enroll in the E-Verify program; (3) a violation of ordinance 1722 exposes the violator to potential penalties under federal law; and (4) Appellants would be barred from expanding their business and opening an off-site leasing office. The City additionally points out that Appellants will suffer economic injury, including the cost of compliance (i.e., the cost of additional steps in hiring, etc.), and argues that merely being subjected to the enforcement process is enough to confer standing. Only the
-13-

first of the City's enumerated "sanctions" has teeth, along with the City's more general discussion of Appellants' injuries, as the second and third alleged sanctions apply after the suspension of a license has occurred, which Appellants admittedly do not have, and the fourth is too tenuous to entertain.
As a business entity contemplated by ordinance 1722, Appellants are still compelled to take specific steps to correct a violation, despite the absence of a threat of license suspension. At the very least, as a business entity covered by the ordinance, Appellants may not knowingly recruit, hire for employment, or continue to employ, an unlawful worker to perform work within the City. Ordinance No. 1736 § 4A. And, when a valid complaint is lodged, Appellants would be required to terminate a violative employee and provide identity information to the Valley Park Code Enforcement Office. Id. at §§ 4B, 5B. Further, Appellants could be asked to procure further information from the federal government regarding the immigration status of the involved employee. Id. at § 5B. Generally, Appellants must inevitably alter current hiring practices to establish a procedure that assures compliance with ordinance 1722.9 This might entail a request for proof of status or conducting a wholly independent verification of potential employees prior to hiring. This, on its own, is injury-in-fact, traceable to ordinance 1722, that a favorable decision could redress, sufficient to confer jurisdiction.10
9This appears to have been one of the bases on which Appellants challenged the ordinance to begin with. The Amended Petition for Declaratory and Injunctive Relief states: "Windhover is a 'business entity' as that term is defined in Valley Park Ordinance 1722. Ordinance 1722 would require the Plaintiffs to investigate and determine the immigration status of any person it hires or contracts to perform work on its properties, and . . . Plaintiffs do not know how to determine a person's immigration status." This same concern was expanded upon in Appellants' Second Amended Complaint for Declaratory and Injunctive Relief.
10If, as they claim, Appellants choose to stand in defiance of ordinance 1722, they could, as the City noted at oral argument, be subject to Valley Park City Code § 100.110, entitled "General Penalty," which states that "[f]or all violations of this Code
-14-

The latter discussion regarding the effect this ordinance certainly has on Appellants' very way of recruiting and hiring also embraces the "prudential" concerns that are juxtaposed with, and considered in addition to, the constitutional elements already discussed. Valley Forge, 454 U.S. at 471. This action clearly falls "within the zone of interests protected by the law invoked." Allen v. Wright, 468 U.S. 737, 751 (1984). The ordinance is directly targeted at business entities such as Appellants who recruit and hire employees. And, Appellants are seeking redress of their own legal rights and not the legal rights or interests of third parties. Warth, 422 U.S. at 499. Appellants have an interest of their own to defend as set out above. And, finally, this action presents more than "abstract questions of wide public significance which amount to generalized grievances, pervasively shared and most appropriately addressed in the representative branches." Valley Forge, 454 U.S. at 475 (internal quotations omitted). Again, there is no doubt that Appellants fall within the purview of ordinance 1722 and are immediately affected by its directives, as are all business entities in the City.
Accordingly, Appellants have standing and this matter is appropriately before us for review.
and all other ordinance violations, the penalty of which has not been established elsewhere in this Code or by separate ordinance, the Municipal Judge may impose the same penalty as is set by State Statute for the same offense or the following maximum penalty, whichever is less: A fine of five hundred dollars ($500.00) and costs or ninety (90) days' imprisonment, or both the fine and imprisonment." Post-argument, Appellants argued that the City fundamentally changed its position on an issue not on appeal (preemption), revealing for the first time that ordinance 1722 is enforceable by the imposition of fines or imprisonment. Enforcement of 100.110, however, remedies the act of defiance, not a violation of ordinance 1722, contrary to Appellants' argument. Accordingly, we do not indulge Appellants' supplemental, and novel, arguments regarding its application, as it is not central to the issue before us.
-15-

C. Preclusion Appellants alternatively argue that the district court should have given full faith
and credit to the state court's judgment and held that the penalty provision that appears in ordinance 1722, which they claim is identical to the penalty provisions of ordinances 1708 and 1715, is invalid under state law. We have considered Appellants' remaining arguments and find them to be without merit.11 III. CONCLUSION
For the reasons stated herein, we affirm. ______________________________
11As part of this consideration, we reviewed Appellants' supplemental appendix and hereby grant Appellants' pending motion to file that document.
-16-