1 Alan M. Mansfield. Esa. (SBN 1259981

Fax: (858) 348-1150
David Blair-Loy, Esq. (SBN 229235) ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P. 0.Box 87131 San Diego, CA 92138-7131 Tel.: (619) 232-2121 Fax: (619) 232-0036
Cynthia Valenzuela, Esq. (SBN - Pending) cvalenzuela~,MALDEF.org MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATION FUND (MALDEF) 634 S. Spring Street, 1lthFloor Los Angeles, CA 90014 Tel: (213) 629-2512 Fax: (213) 629-0266
Counsel for Plaintiffs [Additional Counsel Appear on Signature Page]

IN THE UNITED STATES DISTRICT COURT

I

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

ROY and MARY GARRETT; ESCONDIDO HUMAN RIGHTS COMMITTEE; JANE DOE 1; JANE DOE 2,
Plaintiffs,
v.
CITY OF ESCONDIDO,
Defendant.

Case No.
COMPLAINT FOR: 1) Violation of the Supremacy Clause; 2) Violation of the Contracts Clause; 3) Violation of the First Amendment and
Art. I, $1 of the Calif. Constitution; 4) Violation of Equal Protection; 5) Violation of Procedural Due Process; 6) Violation of 42 U.S.C. $1981; 7) Violation of the Federal Fair Housing
Act; 8) Violation of Fair Employment and
Housing Act, Calif. Gov. Code $12955, et seq.; 9) Violation of Unruh Act, Calif. Civ. Cod
$ 5 51 and 52;
10)Violation of Legitimate Police Powers; and
11)State Law Preemption

COMPLAINT

I

1

Plaintiffs ROY and MARY GARRETT, ESCONDIDO HUMAN RIGHTS

COMMITTEE, and JANE DOES 1 and 2, all to the best of their knowledge, information, and ' belief formed after an investigation reasonable under the circumstances, which facts are likely to

have evidentiary support after a reasonable opportunity for further investigation and discovery, except for information identified herein based on personal knowledge, hereby allege as follows

against the above-named defendant:

I. INTRODUCTION AND NATURE OF THE ACTION

1. On October 18, 2006, the City of Escondido ("Escondido" or "City") passed Ordinance No. 2006-38 R "Establishing Penalties For The Harboring of Illegal Aliens In The City of Escondido" (the "Ordinance"). The Ordinance was patterned largely after portions of an

ordinance adopted in Hazelton, Pennsylvania on July 13, 2006 and subsequently amended, the

enforcement of which has been suspended by court order pending a federal lawsuit challenging

that ordinance on several constitutional grounds.

2. Purporting to blame ills such as crime and overcrowded neighborhoods on the presence of what it calls "illegal aliens," Escondido passed the Ordinance with the express goal of

preventing landlords from allowing "illegal aliens" to occupy dwelling units. However, the data

on which Escondido purports to rely provide no support for the conclusion that immigrants, either documented or undocumented, cause those ills.

3. The Ordinance sets forth a new municipal code violation described as "harboring

illegal aliens", and subjects landlords to significant penalties if they engage in "harboring" by renting to an "illegal alien" or allowing an "illegal alien" to occupy a dwelling unit. The

Ordinance will have, and has already had, the effect of inducing landlords to deny housing to

persons on the basis of race or national origin. Under the Ordinance, anyone who looks or sounds "foreign" - regardless of citizenship or immigration status - stands to be excluded from living in Escondido.
4. The Ordinance is riddled with constitutional flaws and ignores the subtleties,

complexities and primacy of federal immigration law. The Ordinance infringes on the federal

government's authority over immigration in violation of the Supremacy Clause, not least because

I COMPLAINT

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I

it invades a field that is exclusively occupied by the federal government through Congress'

express regulation of, inter alia, "harboring" persons unlawfully present in the United States

pursuant to 8 U.S.C. §1324(a).

5. The Ordinance violates the constitutional rights of landlords by placing them in the

impossible position of either violating the Ordinance and facing Draconian penalties or risking

violation of federal and state laws if they comply with the Ordinance. It also violates due process

by failing to require adequate proof before the City designates a tenant as an "illegal alien,"

failing to provide adequate procedures for landlords or tenants to contest such designation before

the City imposes severe sanctions for alleged "harboring," and by imposing sanctions on

landlords for alleged "harboring" before it is possible to correct any such violation in compliance

with state law.

6 . The Ordinance contemplates state action based on race and national origin, in

violation of the Constitutional guarantee of equal protection.

I

7. Because the people most likely to lose their housing as a result of the Ordinance

are Latinos - who as of 2004 comprise approximately 42% percent of the City's population -the

Ordinance will have a disproportionate adverse impact on Latinos and other minority

communities and will tend to have a segregative effect on the City of Escondido, in violation of

multiple state and federal laws, including but not limited to, federal and state fair housing and

anti-discrimination laws.

8. The Ordinance is also preempted by the California Constitution and other state

law, which mandate that non-citizens shall have the same property rights as citizens. By giving

landlords only 10 business days to evict an alleged "illegal alien" tenant, the Ordinance directly

conflicts with state law controlling eviction proceedings and for cancelling an existing tenancy.

By imposing a new basis for commencing eviction proceedings - being an "illegal alien" - not

contained in state law, the Ordinance invades the state law function of determining what

constitutes grounds for eviction or refusal to continue a tenancy relationship, and the timing

thereof.

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COMPLAINT

9. Through this Complaint, plaintiffs ask this Court for the entry of judgment declaring that the Ordinance is unconstitutional and unlawful, equitable relief in the form of a permanent injunction against the enforcement of the Ordinance, statutory and exemplary damages, and costs and attorneys' fees.
11. JURISDICTION AND VENUE
10. This Court has original jurisdiction pursuant to 28 U.S.C. $ 5 1331 and 1343 oveI plaintiffs' causes of action under the Constitution of the United States, 42 U.S.C. $ 5 1981 and
1983, the Fair Housing Act, 42 U.S.C. $3601 et seq., and the Declaratory Judgment Act, 28
U.S.C. $5 2201 and 2202. This Court has supplemental jurisdiction over plaintiffs' causes of
action under California law pursuant to 28 U.S.C. $1367. 11. This Court has personal jurisdiction over defendant, which is located in the
Southern District of California. 12. Venue is proper in the Southern District of California pursuant to 28 U.S.C.
$1391(a) in that Escondido is subject to personal jurisdiction within the Southern District of California, and the events which give rise to this action occurred within the Southern District of California.
111. PARTIES 13. On personal knowledge, plaintiffs Roy and Mary Garrett (the "Garretts") are husband and wife and own multiple rental units in trust in the City of Escondido ("Landlord Plaintiffs"). 14. The Landlord Plaintiffs receive substantial rental income from such dwelling units. The Landlord Plaintiffs do not know the immigration status of their present tenants, nor are they capable of making such a determination, nor as a matter of policy do they have any intention of inquiring into the immigration status of their tenants or tenant applicants. Nor do they have any intention of gathering any identity data required under the Ordinance to obtain a federal verification of immigration status of tenants and share such private information with Escondido even if they could determine what the necessary private data would be, even if federal verification 28 of immigration status could be obtained by the City, and even though they are under fear of
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COMPLAINT

criminal and civil sanctions if they do not comply with the Ordinance. They rent their dwelling units pursuant to written lease agreements that expressly state the terms and conditions undel which they can evict a tenant or terminate a tenancy. Their lease agreements do not provide thai they can evict any tenant on the ground they are an "illegal alien" within 10 business days.
15. The Landlord Plaintiffs know their tenants are visited by guests and family members. They have no reasonable mechanism available to determine whether through such visitations they are "suffering" or "permitting" their rented premises to be "occupied" by persons who are defined to be "illegal aliens" under the Ordinance, and whether they could be punished or sanctioned by the City under the Ordinance as a result.
16. The Landlord Plaintiffs have a well-founded fear that the Ordinance will be enforced against them and that they will suffer substantial adverse consequences as a result if the Ordinance is not declared invalid and enjoined. Unless the Ordinance is permanently enjoined and declared invalid, the Landlord Plaintiffs are subject to irreparable harm by, inter alia, being subject to significant monetary fmes for violating the Ordinance, losing andlor being refused business permits or licenses, being unable to collect rent on any of their rental units, and facing criminal misdemeanor liability for multiple violations since a separate violation occurs under the Ordinance for every day that an "illegal alien" tenant or occupant remains in a dwelling unit after notice from Escondido that the specified time has passed to "correct the violation."
17. Unless the Ordinance is permanently enjoined and declared invalid, the Landlord Plaintiffs may also be exposed to the imminent threat of irreparable harm for which there is no adequate remedy at law in terms of personal liability if, in attempting to comply with the Ordinance, they take adverse action against an individual whom the City claims may be an "illegal alien" under the Ordinance, where such action is prohibited by state or federal law.
18. The following plaintiffs ("Tenant Plaintiffs") rent dwelling units in Escondido under otherwise valid and binding leases and have a well-founded fear that they would be classified as "illegal aliens" under the Ordinance:
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COMPLAINT

a. On personal knowledge, plaintiff Jane Doe 1 came to the United States from

Mexico in or about 1994. She has minor children who are United States citizens.

She rents an apartment in Escondido, which she has occupied continuously since

2001. Her children, who are U.S. citizens, live with her and attend school in

Escondido. She is gainfully employed.
( b. On personal knowledge, plaintiff Jane Doe 2 came to the United States from

Mexico in or about January 1987. She has three minor children who are United

States citizens. She rents an apartment in Escondido, which she has occupied

continuously since February 1996. Her minor children, who are U.S. citizens, live

with her and attend school in Escondido. She is gainfully employed.
I If the Ordinance is not declared invalid and permanently enjoined, enforcement of the Ordinance

will pose an imminent threat of irreparable harm to the Tenant Plaintiffs and/or members of their

families for which there is no adequate remedy at law by subjecting them to, inter alia, the threat

I of eviction from their homes and the inability to locate local substitute housing or for their U.S.

citizen children to attend school in Escondido.

I

19. The Landlord Plaintiffs seek to provide housing, or continue to provide housing, to

persons without regard to the Ordinance. The Tenant Plaintiffs seek to remain in occupancy and

quiet enjoyment of their dwelling units in Escondido that they have leased and occupied for years.

Both Landlord Plaintiffs and Tenant Plaintiffs seek to continue receiving the benefits of pre-
I existing contract and property rights. If not declared invalid and permanently enjoined, the

Ordinance will adversely impact both Landlord Plaintiffs and Tenant Plaintiffs in their ability to

I1 pursue such objectives. 20. On personal howledge, plaintiff Escondido Human Rights Committee ("EHRC")

is a California unincorporated association.

I

21. EHRC's primary purpose is to advocate for the human rights of all persons in

I Escondido, educate the Escondido community regarding human rights, and document human

rights violations in Escondido.

I

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COMPLAINT

1 1 immigration status as a condition to membership. The Ordinance has created great hostility towards the Latino community in Escondido and therefore adversely affects the work and mission the organization follows and performs in Escondido and for Escondido residents. EHRC has 1 received numerous reports from its members and other Escondido residents that they have. been
' subjected to discrimination due to the adoption of the Ordinance, as some landlords are
I demanding proof of citizenship or demandingtenants leave the premises in fear the landlords may
be found to violate the Ordinance. 23. The interests EHRC seeks to protect through this action are germane to its
purpose, and neither the claims asserted nor the relief requested herein require the personal participation of EHRC's members.
24. As a result of the proposal, debate, and enactment of the Ordinance, EHRC has diverted and expended, and will continue to divert and expend, its own resources from other activities to educate the public regarding the Ordinance, advocate against enactment and enforcement of the Ordinance, provide assistance to community members impacted by the Ordinance, and respond to concerns and questions from community members regarding the Ordinance.
25. Defendant City of Escondido ("Escondido" or "City") is a city existing pursuant to California law, with its principal location at Escondido City Hall, 201 North Broadway, Escondido, San Diego County, California.
26. At all relevant times described herein, Escondido adopted the Ordinance acting through its duly authorized agents, Mayor Lori Holt Pfeiler, Ed Gallo, Mayor Pro Tem, and City Council members Ron Newrnan, Marie Waldron and Sam Abed.
27. At all times alleged herein, Escondido and its officials, employees and agents were acting under color of state law.

IV. STATEMENT O F FACTS
A. The Ordinance

28. On August 16, 2006, at an Escondido City Council meeting, Councilmember

Waldron introduced the concept of adopting the proposed Ordinance to the Escondido City

Council. After discussing the issue, the City Council directed City staff to prepare an ordinance

andlor policies "to regulate overcrowding, renting to illegal aliens, and on-street parking

restrictions." The only one of these issues addressed by the City Attorney's Office was renting to

illegal aliens or, in the words of the Ordinance, "harboring illegal aliens."

I

29. Council member Waldron proposed the Ordinance amid a passionate national

debate over federal immigration policy at the very time the United States Congress was holding

hearings across the country regarding competing bills to amend federal immigration law and

addressing, inter alia, whether and how the federal statute governing the harboring of illegal

aliens should be amended.

30. On October 4, 2006, after receiving a several page analysis prepared by the City

Attorney, the Escondido City Council by a 3-2 vote approved the Ordinance at first reading, with

minor amendments. On October 18, 2006, an amended version of the Ordinance received one

more reading before the City Council. At the second reading, the City Council adopted the

Ordinance, also by a 3-2 vote. A true and correct copy of the Ordinance is attached hereto as

Exhibit "A" and incorporated herein by this reference.

31. Unless enjoined, the Ordinance will go into effect on November 17,2006,30 days

after its second reading.

32. Any of the following activities would result in a violation of the Ordinance, if done

with "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, unless such harboring is otherwise expressly permitted by

federal law":

(a) to "let, lease or rent a dwelling unit to an illegal alien";

I

(b) to "suffer or permit the occupancy of the dwelling unit by an illegal alien";

I

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COMPLAINT

(c) within five business days after receiving written notice from the City demanding whatever information it asserts is necessary to comply with this demand, to fail "tc

provide the City with identity data needed to obtain a federal verification 01

immigration status" of a tenant;

(d) within 10 business days after receiving written notice from the City of a violation, to fail to correct the violation.

Futher, should a landlord actually remove an "illegal alien" from a rental property, the denial 01

suspension of the landlord's business permit continues until one day after the landlord (or a

representative thereof) submits an affidavit to the City not only confirming that the violation has

ended, but also including the new "address and other adequate identifying information for the

illegal aliens who were the subject of the complaint." Providing such information will likely

prompt another round of charges until the "illegal alien" moves out of Escondido.

33. As written, the Ordinance only applies to landlords subject to 516-17 of the

Escondido Municipal Code, not homeowners. It requires landlords to evict tenants upon written

notice fiom the City that an "illegal alien" is renting or staying in one of their rental properties.

34. The Ordinance would deny or suspend the Escondido business license of a rental

property owner who is alleged to be in violation of the Ordinance, without any hearing prior to

such denial or suspension. This denial or suspension would preclude the owner from collecting

any rent, payment, fee, or any other form of compensation from any dwelling unit owned by the

landlord in Escondido. More than one violation - which as defined in the statute would result

fiom not taking action more than one day after required to do so under the terms of the Ordinance

(since each day that passes and each alien "harbored" constitutes a separate violation) - would

I result in a monetary penalty of up to $1,000.00 per violation per day, or a jail term of six months,

or both.

I

I 35. The Ordinance does not provide any pre-determination hearing for a landlord prior

to the suspension of their business license. The Ordinance also does not provide a tenant or

subtenant that the City believes is an "illegal alien" any notice or opportunity to be heard as to

their right to present in the United States.

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COMPLAINT

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B. Intent and Effect of the Ordinance 36. The intent and effect of the Ordinance is to regulate immigration in Escondido and the United States in a manner not contemplated or approved by the federal government. 37. The Ordinance defines a group of individuals as "illegal aliens" and sets forth an unfathomable scheme intended to eliminate this group of individuals from Escondido by forbidding them from renting or occupying rental property and converting landlords into a posse compelled to enforce the law, all with the intent and effect of forcing immigrantsto leave the city based on the allegedly "valid complaint" of any person - government officials, a disgruntled neighbor, persons with their own political agenda who have already expressed an intent to be vigilante reporters, or even a landlord that wishes to get rid of a tenant subject to a valid lease agreement. 38. If the Ordinance is allowed to go into effect and be enforced, it may be difficult if not impossible for anyone who is perceived to possibly be an "illegal alien" as defined by the Ordinance to rent or occupy a dwelling unit in Escondido, because landlords may elect to avoid the burden of compliance with the Ordinance and the risk of noncompliance by refusing to enter into leases with anyone whom they perceive as likely to be an "illegal alien" under the Ordinance. 39. Escondido based the Ordinance on findings that "the harboring of illegal aliens in dwelling units in the City, and crime committed by illegal aliens, harm the health, safety and welfare of legal residents in the City." The City based this conclusion on the findings of a June 2006 study by the National Latino Research Center at California State University San Marcos addressinghousing conditions in the Mission Park area of Escondido (the "San Marcos Study'?. 40. The San Marcos Study does not support the City's finding that increased crime, overcrowding and harm to health, safety and welfare are linked to "illegal aliens" dwelling in rental property in Escondido. In fact, the San Marcos Study found that the causes for overcrowding were due to the high costs of housing and the unavailability of affordable subsidized housing in Escondido - not the presence of an "illegal alien" population. Escondido therefore misrepresented the conclusion of this study to justify its own desires, contradicting what the San Marcos Study actually found.
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COMPLAINT

41. Council member Waldron - the driving force behind the Ordinance - likened

undocumented immigrants to terrorists and linked them with her perception of a general

deterioration of American values in trying to gamer support for the Ordinance. "To look the

other way is treasonous," according to member Waldron. In addition, in response to a Council

member's suggestion that the revenues and costs associated with enforcing the Ordinance be

tracked, several Council members (including Council member Waldron) stated that was only

acceptable if the City also tracked the local costs associated with illegal immigration generally.

42. The Ordinance would compel persons who own rental property in Escondido to

disclose unspecified "identity data" on their tenants to the City, solely on the basis of an unsworn

and unverified complaint to the City, even if the owners have no reason to believe that their

tenants may be "illegal aliens" under the Ordinance, and even if the information they possess is

protected from disclosure under state and federal law. The Ordinance thus exposes rental

property owners to a well-founded fear of civil or criminal liability for violation of state and

federal laws prohibiting disclosure of tenants' private information.

43. The Ordinance does not define the term "illegal alien" other than making a general

reference to the federal immigration laws, which includes very complex definitions for

"immigrants" but no definition of "illegal alien." The Ordinance makes such a determination by

asking the federal government to verify the legal status of a tenant, but the federal government

may not (or cannot) provide that verification to the City. Landlord Plaintiffs and others will have

to guess at the immigration status of persons who might fall into this category, based upon

improper gauges such as color of skin and foreign accents.

I

I 44. The Ordinance actually invites such speculation: only "a complaint which alleges a

violation solely or primarily on the basis of national origin, ethnicity, or race shall be deemed

I invalid" (emphasis added), whereas those based partially on such characteristics and stereotypes-

which hear no relevance to a person's immigration status -will presumably be deemed valid.

1

45. Persons who lack such official documents such as a U.S. birth certificate, passport
I or current visa, but who are lawfully permitted to reside and work in the United States, may be
deemed "illegal aliens" due to the inability of City officials and property owners to accurately

11

COMPLAINT

I

identify and interpret specialized immigration documents, and due to the Ordinance's lack of any procedure providing for notice or an opportunity to be heard. There is also no indication what level of information would be necessary to "verify" such status, particularly if the information to be provided is protected from disclosure under federal and state privacy laws and cannot be shared with the City.
46. The Ordinance requires the immediate suspension of business permits to anyone who "harbors illegal aliens." Yet, the Ordinance fails to specify the precise conduct that constitutes "harboring". For example, is "harboring" just the act of renting a dwelling unit? Could it be the mere presence and occupancy of a guest? What if one of the tenants is a lawfkl immigrant or even a U.S. citizen (such as a minor) and one is not? What happens if the landlord is informed the tenant or occupant is an illegal immigrant - must he or she immediately commence eviction proceedings under the Ordinance and, if so, on what ground under Califomia law, and must he or she independently verify this fact? The Ordinance does not say.
47. Moreover, if a demand for information is received from the City, but for whatever reason such information cannot be provided to the City within five business days, the landlord would be considered in violation of the Ordinance even if nothing can be done by the landlord to obtain such information either voluntarily or involuntarily. What is a landlord to do if a tenant or occupant simply refuses to provide the landlord such information, or is out of town on business or a vacation? What if the landlord only has a California driver's license from the tenant, or information protected from disclosure under the Fair Credit Reporting Act? And if the landlord is presented with some form of documentation indicating the tenant is not an "illegal alien" but the federal government does not confirm that fact, is the tenant presumptively guilty and the landlord violating the statute unless he or she evicts the tenant in 10 days, irrespective of the requirements of California's landlord-tenant laws? And what if the federal government either cannot or will not provide verifying information to the City? The Ordinance leaves these threshold questions unanswered.
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COMPLAINT

1

C. Federal Preemption

2

48. The power to regulate immigration is undeniably exclusively federal and derives

fiom the constitutional grant of power to Congress to "establish a uniform Rule of

Naturalization," U.S. Const. Art. I, 3 8, cl. 4., and to "regulate Commerce with foreign Nations.'

Id., cl. 3. In addition, the U.S. Supreme Court has held that the federal government's power tc

control immigration is inherent in the nation's sovereignty.

49. 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 administrative and judicial review, whether and

under what conditions a given individual may enter, stay in, and work in the United States.

50. In addition to provisions that directly regulate immigrants' entry and behavior, the

federal immigration laws also include provisions directed at other classes of individuals,

including those who harbor individuals not lawfully in the United States.

51. The federal government has also chosen to allow certain categories of non-

citizens, and certain individual non-citizens, to remain in the United States, even though such

non-citizens may not have valid immigrant (permanent) or non-immigrant (temporary) status

andfor may be removable under the federal Immigration and Nationality Act ("INA").

52. These laws, procedures, and policies created by the federal government regulate

immigration and confer rights in a careful balance reflecting the national interest, and have been

found to preempt any contrary state laws.

53. In addition, a final determination that a tenant is or is not an "illegal alien" is to be

made by the City under the Ordinance solely by attempting to ascertain from the United States

Citizen and Immigration Service ("USCIS"), pursuant to 8 U.S.C. §1373(c), whether the reported

tenant is an alien who is not l a f i l l y present in the United States. However, that is not how a

determination of legal status is finally made by the federal government, and the federal

immigration system does not produce a final determination of immigrant status at the request of a

local government.

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COMPLAINT

54. Due to the Ordinance's definition of "illegal alien" and the lack of procedural

( safeguards, some persons who are permitted by the federal government to live andlor work in the

United States will nevertheless be effectively barred £rom residing in Escondido.

I

55. The Ordinance is preempted by federal law because it is an impermissible attempt

to regulate immigration and because it conflicts with and interferes with Congress'

comprehensive scheme of immigration regulation. D. Discriminatow Imoact of Ordinance 56. The Ordinance has a disproportionate discriminatory impact on the local Latino
community, which constitutes approximately 42% of the City population. Landlords likely will focus their attention on people who look or sound Latino, rather than any prospective or actual tenant who may be an undocumented person.
57. In addition, contrary to popular belief, the majority of the undocumented population is part of a mixed-status family, with a significant percentage (over 25%) having children who are U.S. citizens and who have a right to live wherever they want to and go to school wherever they choose. The effect of the Ordinance is to punish such U.S. citizens and

deprive them of their right to access the housing and schools of their choice, in violation of both federal and state law.

58. Prior to the filing of this action, plaintiffs made a formal demand of defendants to suspend or repeal the enactment of this Ordinance. Such demand has been refused. Thus, this action is the only method available to obtain the requested relief.

V. CAUSES OF ACTION

FIRST CAUSE OF ACTION

(VIOLATION OF THE SUPREMACY CLAUSE)

59. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 58 above as

though set forth herein.

60. Article VI, Section 2, of the United States Constitution provides:

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COMPLAINT

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.
61. The Supremacy Clause mandates that federal law preempts any state regulation oj any matter over which Congress has expressly or impliedly exercised exclusive authority 01 which is constitutionallyreserved to the federal government.
62. The power to regulate immigration is a matter over which the federal govemmenl has exclusive authority.
63. The Ordinance, in its entirety, is a law purporting to regulate immigration and the incidents thereof by focusing exclusively on preventing the "harboring" of "illegal aliens." This issue is specifically regulated by the federal government pursuant to, inter alia, 8 U.S.C. $ 1324(a), which is part of the federal govemment's comprehensive statutory and regulatory scheme governing immigration.
64. The Ordinance attempts to usurp the federal government's exclusive power oveI immigration and naturalization and its power to regulate foreign affairs.
65. The Ordinance is preempted because its regulatory scheme attempts to legislate in fields occupied by the federal government.
66. The Ordinance threatens the uniformity and primacy of the federal immigration system and conflicts with federal immigration law.
67. The Ordinance thus violates the Supremacy Clause, on its face or as applied. 68. Therefore, plaintiffs are entitled to declaratory and injunctive relief.
SECOND CAUSE O F ACTION (VIOLATION O F THE CONTRACTS CLAUSE) 69. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 68 above as though set forth herein. 70. The Contracts Clause of the United States Constitution provides that no state shall
pass a "law impairing the obligation of contracts." (U.S. Const. art. I, 5 10, cl. 1). This article
COMPLAINT

~ prohibits States from enacting laws that retroactively impair contractual obligations. Tht California Constitution has a similar provision in the California Constitution, Art. I, $9.

I

71. Sections 16E-1 and 16E-2 of the Ordinance make it unlawful for any landlord tc

knowingly, or in reckless disregard of the fact, harbor an "illegal alien," and mandates landlords

evict any "illegal alien" within 10 business days after receipt of a notice of violation from the CiQ

to avoid the denial or suspension of their business licenses and the imposition of additiona

penalties.

72. Further, if a landlord is unsuccessful in evicting the tenant or occupant within 1(

business days, under $16E-2 of the Ordinance, the landlord's business license is denied 01

suspended and the landlord is not permitted to collect any rent, payment, fee, or another form ot

compensation from, or on behalf of, any tenant or occupant in the dwelling (or any other dwelling

covered by the landlord's business license) until the landlord is no longer in violation of the

Ordinance, i.e., has evicted the tenant.

73. For the reasons set forth herein, the Ordinance fails to have a significant and

legitimate public purpose.

74. For the reasons set forth herein, the Ordinance is not based upon reasonable

conditions and is not of a character appropriateto the stated public purpose.

75. The Landlord and Tenant Plaintiffs have valid lease and rental agreements f o ~

residential rental property in the City of Escondido. Each lease or rental agreement has specific

provisions that specify the grounds upon which a landlord may evict or prematurely terminate the

agreement. None of these leases or agreements allow a landlord to evict tenants based upon

"harboring of illegal aliens" or the fact the tenant is an "illegal alien".

76. The eviction of a tenant or occupant within ten business days, under conditions not

specified in lease agreements, would cause Landlord Plaintiffs and others to breach those

agreements, and also deprives the Tenant Plaintiffs of their contractual rights to occupancy and

quiet enjoyment of their leased dwelling units. Therefore, the Ordinance violates the Contracts

Clause of the United States and California Constitutions.

COMPLAINT

77. In addition, the Ordinance also violates the Contracts Clause of the United States
1I and California Constitutions insofar as 516E-2 of the Ordinance precludes the Landlord Plaintiffs and other landlords from receiving rents pursuant to each and every existing lease or rental agreement should the landlord fail to timely evict a purported "illegal alien" from a single
dwelling unit. 78. Therefore, plaintiffs are entitled to declaratory and injunctive relief.
THIRD CAUSE OF ACTION (VIOLATION OF THE FIRST AMENDMENT AND ART. I, §2(a)
OF THE CALIFORNIA CONSTITUTION)

79. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 78 above as

though set forth herein.

80. A major purpose of the First Amendment and Art. I, 52(a) of the California
Constitution is to protect the free discussion of public issues and to avoid compulsion of speech
I1l3 by the government - particularly speech that may incriminate a person and subject them to
1 I l4
) I 15 possible criminal prosecution.
81. By offering such protection, these Constitutional provisions serve to ensure that
1Il6 plaintiffs can effectivelyparticipate in and contribute to our system of self-government.
1 I l7 82. The Ordinance, pursuant to 516E-1 and 516E-2, compels persons such as the
1 II 19 Landlord Plaintiffs to speak by requiring them to provide an undisclosed level of information
1I (expressed in 516E-1 as "identity data needed to obtain a federal verification of immigration
20 status" and expressed in 516E-2 as "other adequate identifying information") about their tenants

to the City, or face significant financial penalties and the fear of criminal sanction. Much of that

information may be protected from disclosureby federal and state privacy laws.

I

24 I1

83. Because the Ordinance discriminates among speech-related activities in terms of

1I compelling landlords to provide information to the government under threat of criminal sanction,
25

11I) 1 both the First Amendment and the Equal Protection Clause and Art. I, 52(a) of the California
26 27 Constitution, mandates that the Ordinance be narrowly tailored to serve substantial governmental

28 interests, and the justifications offered for any distinctions drawn must be strictly scrutinized. 17
COMPLAINT

84. The Ordinance will have the effect of chilling speech between landlords anc tenants, for fear that learning too much information would potentially expose the landlord tc liability if such information became available or was demanded by the City.
85. The City does not have a compelling, or even rational, state interest to require suck speech. The Ordinance is not narrowly tailored to justify the requirements for compelling suck speech. The Ordinance's provisions overall serve no substantial local governmental interest and are not narrowly tailored to affect state interests.
86. Therefore, plaintiffs are entitled to declaratory and injunctive relief. FOURTH CAUSE OF ACTION
(VIOLATION OF EQUAL PROTECTION) 87. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 86 above as though set forth herein. 88. The Ordinance provides that only "a complaint which alleges a violation sole& or primarib on the basis of national origin, ethnicity, or race shall be deemed invalid" (emphasis added), but permits enforcement of complaints - and denial of housing - based in part on national origin, ethnicity, or race. 89. The Ordinance also impermissibly discriminates between homeowners not subjeci to 516-17 of the Escondido Municipal Code who "harbor illegal aliens" and landlords subject to 516-17 who rent or lease to "illegal aliens" or have tenants who "harbor illegal aliens." 90. The Ordinance is thus invalid under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. 91. Therefore, plaintiffs are entitled to declaratory and injunctive relief.
FIlFTH CAUSE OF ACTION (VIOLATION OF PROCEDURAL DUE PROCESS) 92. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 91 above as though set forth herein. I// 11 I
18
COMPLAINT

93. The Due Process Clause of the Fourteenth Amendment to the United States Constitution prohibits Escondido from depriving any person of life, liberty, or process without

due process of law.

94. Landlord Plaintiffs have a liberty and/or property interest in leasing their rental

dwelling units and receiving income from such leases.

95. The Ordinance deprives Landlord Plaintiffs of such interests without due process

of law because it is impossible for them to comply with the Ordinance without violating state and

federal law, including, but not necessarily limited to, state and federal laws prohibiting disclosure of tenants' private information and state laws concerning terminating tenancies, eviction and unlawful detainer proceedings.

96. The Ordinance also requires that upon written notice by the City that a violation

has occurred, Landlord Plaintiffs must within 10 business days: (1) provide notice to vacate the

premises; (2) institute an unlawful detainer action; (3) prevail in that action; (4) evict the "illegal

alien"; and (5) provide a sworn affidavit not only that the violation has ended, but also the new

"address and other adequate identifying information for the illegal alien" so that such information

can be forwarded to federal authorities.

97. The Ordinance does not require the City to sustain any burden to prove by

sufficiently probative evidence that a property owner is in fact renting a dwelling unit to an

alleged "illegal alien" before the City deprives the owner of liberty andlor property interests.

98. The Ordinance permits the City to suspend a property owner's business license,

and thus deprive the owner of the liberty and/or property interest in retaining such license,

conducting a rental property business, andlor receiving income from rental property, without any

hearing or proceedings before such suspension and deprivation occurs.

I

99. The Ordinance also provides no due process within its statutory scheme for any

person alleged to be an "illegal alien" to challenge such a designation.

100. The Ordinance has no relation to any legitimate local government purpose.

Escondido does not have any compelling state interest or rational basis for its enactment.

111

19

COMPLAINT

I

101. As a result, the Ordinance, on its face or as applied, violates the Due Process Clause of the Fourteenth Amendment.
102. Therefore, plaintiffs are entitled to declaratory and injunctive relief. SIXTH CAUSE OF ACTION
(VIOLATION OF 42 U.S.C. 5 1981)
103. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 102 above as though set forth herein.
104. The fundamental right to contract and to full and equal benefit of all laws is codified under 42 U.S.C. $1981, as amended by Section 101 of the Civil Rights Act of 1991.
105. Pursuant to 42 U.S.C. $1981, "[all1 persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
106. Section 1981prohibits discriminationunder the color of law based on alienage and race.
107. Congress deliberately used "all persons" instead of "citizens" in order to reflect the language of the Fourteenth Amendment that extended the guarantee of equal protection under the laws to "any person within the jurisdiction of the United States."
108. Plaintiffs are entitled to the protections and benefits afforded by Section 1981, including Plaintiffs categorized as "illegal aliens" under the Ordinance.
109. Sections 16E-1 and 16E-2 of the Ordinance seek to proscribe the execution of contracts with "illegal aliens," or the collection of rents, even owed by tenants who are lawfully in the United States, if a landlord fails to evict a tenant or occupant he or she is told is an "illegal alien."
110. By enacting the Ordinance, Escondido has violated plaintiffs' fundamental right to contract on an equal basis.
111. Therefore, plaintiffs are entitled to declaratory and injunctive relief. 20
COMPLAINT

SEVENTH CAUSE OF ACTION (VIOLATION OF THE FF,DERAL FAIR HOUSING ACT) 112. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 111 above as though set forth herein. 113. The Fair Housing Act ("FHA"), 42 U.S.C. $3601 et seq., prohibits housing
I practices that discriminate on the basis of race, color, religion, sex, familial status, national origin,
or handicap. 114. Sections 16E-1 and 16E-2 of the Ordinance impose fines on the Landlord
Plaintiffs and other property owners who rent to "illegal aliens" at up to $1,000 per day per violation, with no stated maximum cap on the amount of the monetary penalty, possible jail time, and automatic deprivation of the right to collect any monies from any tenants due to the automatic suspension of the property owner's license, even from tenants who are lawfully in the United States. Some landlords are also discriminatonly demanding some tenants vacate their units for fear of violating the Ordinance.
115. Defendant injured plaintiffs and threatened them with injury in violation of the FHA by committingthe following discriminatoryhousing practices:
a. To otherwise make unavailable or deny a dwelling because of race, color, or national origin, in violation of 42 U.S.C. §3604(a);
b. To discriminate against any person in the terms, conditions, or privileges of rental of a dwelling, or in the provision of services or facilities therewith, because of race, color, or national origin, in violation of 42 U.S.C. §3604(b);
c. To make, print or publish, or cause to be made, printed or published, any notice, statement or advertisement, with respect to rental of a dwelling, that indicates any preference, limitation, or discrimination, based on race, color, or national origin, or an intention to make any such preference, limitation, or discrimination, in violation of 42 U.S.C. §3604(c); and

COMPLAlNT

I

d. To coerce, intimidate, threaten or interfere with any person in the exercise o r
enjoyment of, or on account of his having exercised or enjoyed, any of the rights
granted by the FHA, in violation of 42 U.S.C. 53617.
116. In addition, 42 U.S.C. 53615 provides:
"Nothing in this subchapter shall be construed to invalidate or limit any law of a State or political subdivision of a State, or of any other jurisdiction in which this subchapter shall be effective, that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid." (Emphasis added.)

117. Therefore, plaintiffs are entitled to declaratory and injunctive relief.
EIGHTH CAUSE OF ACTION
(VIOLATION OF FAIR EMPLOYMENT AND HOUSING ACT, CALIFORNIA GOVERNMENT CODE $12955 ETSEQ.)

118. Plaintiffs incorporate by reference the allegations contained in paragraphs 1

through 117 above as though set forth herein.

I

I 119. Defendants injured Plaintiffs in violation of the California Fair Employment and

Housing Act, Cal. Gov. Code 512955, et seq. by committing the following discriminatory

housing practices:

l

a. To make, print or publish, or cause to be made, printed or published any notice,

statement or advertisement, with respect to rental of a dwelling, that indicates any

preference, limitation, or discrimination, based on race, color, ancestry, or national

origin, or an intention to make any such preference, limitation, or discrimination,

in violation of Civil Code 512955(c);

b. To discriminate against any person in the provision of housing accommodations,

in violation of the Unruh Civil Rights Act, Civil Code 551, et seq., on the basis of
I race, color, ancestry, or national origin, or other prohibited basis, in violation of
Civil Code 512955(d);

I l I

22

COMPLAINT

I

c. To aid, abet, incite, compel, or coerce the doing of any of the acts or practices

declared unlawful under Civil Code $12955, in violation of Civil Code $12955(g);

d. To otherwise make unavailable or deny a dwelling based on discrimination

because of race, color, ancestry, or national origin, in violation of Civil Code
5 12955(k);

e. To discriminate through public or private land use practices, decisions, and

authorizations because of race, color, ancestry, or national origin, in violation of

Civil Code §12955(i); and

f. To coerce, intimidate, threaten or interfere with any person in the exercise oi

enjoyment of, or on account of his having exercised or enjoyed, any of the right:

granted by the Fair Employment and Housing Act, in violation of Civil Cod6

$12955.7.

120. Therefore, plaintiffs are entitled to declaratory and injunctive relief.

NINTH CAUSE OF ACTION
(VIOLATION OF UNRUH ACT, CALIFORNIA CIVIL CODE 55 51 AND 52, ETSEQ.)

121. Plaintiffs incorporate by reference the allegations contained in paragraphs 1

through 120 above as though set forth herein.

122. Defendants violated the Unruh Civil Rights Act, California Civil Code $51 et seq.,

by adopting an Ordinance that has the effect of discriminating against persons as a result of thei~

race, color, ancestry or national origin.

123. The conduct of defendant alleged herein constitutes a denial of full and equal

access to housing accommodations to persons within the meaning of California Civil Code $51.

124. In addition, by virtue of the adoption of the Ordinance, defendant under color of

law has interfered by threats, intimidation or coercion with the exercise or enjoyment by plaintiffs

of rights secured by the Constitution of the United States and of California, as well as the laws of

the United States and the State of California, including rights to kee speech, privacy, contract,

due process and the processes set forth in the California Civil Code and California Code of Civil

Procedure as set forth herein.

23

COMPLAINT

I

125. Pursuant to the Unruh Act and Civil Code 852.l(b), plaintiffs are therefore entitled

to statutory damages of either $4,000 or $25,000 per violation, and exemplary damages as

determined by the trier of fact, against defendant, as well as injunctive and declaratory relief.

TENTH CAUSE OF ACTION

(VIOLATION OF LEGITIMATE POLICE POWERS)

126. Plaintiffs incorporate by reference the allegations of paragraphs 1 to 125 above as

though set forth herein.

127. Article XI, $7 of the Califomia Constitution provides that "[a] county or city may

make and enforce within its limits all local, police, sanitary, and other ordinances and regulations

not in conflict with general laws." See also Gov. Code 837100.

128. To validly exercise its police powers, Escondido may only enact ordinances within

the parameters of the laws established by the State Legislature.

129. Escondido violated these powers by enacting the Ordinance that stands in direct

conflict with federal and state laws.

130. First, the Ordinance attempts to regulate immigration, a power that falls

exclusively to the federal government. The federal government has a comprehensive scheme

governing immigration, including the INA, 8 U.S.C. $11 et seq. Because the Ordinance attempts

to legislate in a field extensively occupied by the federal government, it exceeds the authority

granted Escondido by Art. XI, $7 of the Califomia Constitution.

131. Second, the Ordinance provides that a landlord must evict an "illegal alien" tenant

within 10 business days. This provision conflicts with California Code of Civil Procedure $1159

et seq. and g1940.1, effective January 1, 2007, which proscribes the notice requirements and

timetables required to evict or no longer lease or rent to a tenant. Compliance with the Ordinance

is not possible without violating the provisions of Code of Civil Procedure $1159 et seq. and

$1940.1. As such, the Ordinance constitutes a violation of the authority granted Escondido under Article XI, $7 of the Califomia Constitution.
II 132. Third, the Ordinance impermissibly attempts to create a new circumstance by

which a landlord may evict a tenant for unlawful detainer. Califomia Code of Civil Procedure

24

COMPLAINT

I

$1161 specifies the circumstances under which a tenant is guilty of unlawful detainer. None of

these circumstances include or refer to a lack of United States citizenship or lawful or unlawfd

presence in the United States. Escondido's attempt to add an additional circumstance by which a

landlord may evict a tenant for unlawful detainer conflicts with $1161 and therefore is a violation

of the authority granted by Article XI, $7 of the California Constitution.

133. To constitute a valid exercise of Escondido's police power, the Ordinance must

relate to and be in furtherance of the public health, safety and welfare that are matters o f local

concern, and the means that the City employs to further such health, safety and welfare must not

be highly unreasonable or arbitrary.

134. Escondido's failure to properly assess the existence of a threat to public safety or

welfare before enacting the Ordinance is an additional abuse of the City's police powers.

135. Before enacting the Ordinance, Escondido failed to conduct any analysis of the

criminal, fiscal, cultural, or other challenges facing Escondido in order to determine if: (a) any actual problem existed; or (b) what measures were necessary to abate such problems, if any. In

fact, the supporting analysis referenced in the Ordinance's record does not support the

conclusions reached by the City, and misquoted the San Marcos Study.

136. Escondido claims that "illegal aliens" contribute to a higher crime rate, do not

report substandard housing conditions, and occupy units in numbers beyond occupancy limits.

Nowhere in the Ordinance record, however, are there any statistics or evidence to support the

claim that "illegal aliens" have contributed significantly, if at all, to any real or perceived

problems in Escondido.

137. With no evidence presented in the Ordinance's record that "illegal aliens"

contribute to the stated problems facing Escondido's housing community, Escondido cannot

claim that an ordinance restricting "illegal aliens" from renting in the City is related to and in

furtherance of the public safety and welfare of the City.

I

138. The decision to ban all "illegal aliens" from renting in Escondido is a decision

influencedby prejudice, misstatementsfrom the San Marcos Study, and comments with no

I

/ 1 evidentiary support whatsoever. It is palpably unreasonable, unduly oppressive, and wholly

arbitrary that Escondido selected "illegal aliens" as the scapegoat for the ills facing the city.

I

139. Because the Ordinance will do nothing to remedy the burdens alleged by

Escondido, but rather will merely prevent a number of people, primarily minorities, fiom renting

in the City, the Ordinance is an abuse of Escondido's police powers.

140. Therefore, plaintiffs are entitled to declaratory and injunctive relief.

I

ELEVENTH CAUSE OF ACTION

(STATE LAW PREEMPTION)

141. Plaintiffs incorporate by reference the allegations contained in paragraphs 1

through 140 above as though set forth herein.

I

142. Escondido may not adopt a municipal ordinance that is preempted by federal or

California law, pursuant to Art. XI, $7 of the California Constitution.
I 143. Article I, $20 of the California Constitutionprovides: Won-citizens have the same

property rights as citizens." California law treats leasehold interests as property rights.

144. California Civil Code $671 provides that "any person, whether citizen or alien,

may take, hold, and dispose of property, real or personal, within the State."

145. On its face or as applied, the Ordinance directly conflicts with Cal. Const. Art. I,

$20 and Civil Code $671 and is thus preempted by California law.

1

146. On its face or as applied, the Ordinance attempts to legislate or regulate in a field

extensively occupied by the federal government through the INA, 8 U.S.C. $11 et seq. and thus

exceeds the authority granted Escondido by Art. XI, $7 of the California Constitution.

I

147. California Code of Civil Procedure $1161 specifies the circumstances under which

a tenant "is guilty of unlawful detainer" and may therefore be evicted. None of those
I circumstancesinclude or refer to lack of United States citizenship or lawful or unlawful presence
in the United States.

148. By permitting City officials to impose sanctions on landlords who fail to evict

tenants who are alleged to be "illegal aliens" under the Ordinance, when eviction on that ground

is not authorized by state law, the Ordinance conflicts with and is preempted by California law. 26

I

COMPLAINT

I

1 149. California law, including, but not limited to, Civil Code (1940 et seq. and Cod6 Civ. Proc. (1159 et reg., prohibits self-help eviction and requires specified forms of notice tc tenants and strict compliance with specified timelines and judicial procedures as a conditior precedent to obtaining a court order to evict a tenant. In addition, under Cal. Civil Code 51946.1 as amended effective January 1, 2007, a tenant who has resided in a dwelling unit less than on6 year must receive 30 days' notice of the landlord's intent to terminate the tenancy, and 60 days' notice if the tenant has resided in the same unit for more than one year (as is the case for t h f Tenant Plaintiffs). Under these laws, it is not legally or practicably possible to evict a tenant 01
I terminate a tenancy relationship within 10business days, as the Ordinancerequires. 150. By permitting the City to impose sanctions on landlords who fail to evict or no1
lease or rent to tenants who are designated as "illegal aliens" under the Ordinance within 1C business days of receiving notice of such designation from the City, when it is not legally 01 practicably possible to do so within 10 business days, the Ordinance conflicts with and thuc unconstitutional and preempted by California law.
151. Therefore, plaintiffs are entitled to declaratory and injunctive relief.
DEMAND FOR JURY TRIAL Plaintiffs demand a jury trial on all claims so triable.
PRAYER FOR RELIEF WHEREFORE, plaintiffs respectfully request the following:
1. A declaratory judgment pursuant to 28 U.S.C. $5 2201 and 2202 declaring the
Ordinance void because it violates numerous provisions of the federal Constitution, the California Constitution, federal statutes andlor California statutes, as set forth herein;
2. A temporary restraining order, preliminary and permanent injunction pursuant to Fed. R. Civ. Proc. 65 prohibiting Escondido and its agents from implementing or enforcing the Ordinance;
3. Pursuant to Cal. Civ. Code $52, statutory damages of either $4,000 or $25,000 per violation, and exemplary damages for violating the Landlord and Tenant Plaintiffs' rights under the United States and California Constitutions and the federal and state laws as set forth above;
27
COMPLAINT

4. An order awarding plaintiffs costs and attorneys' fees, pursuant to statutes citet
herein, 42 U.S.C. $1988, California Code of Civil Procedure 31021.5, Fed. R. Civ. Proc. 54, ant
any other applicable law.
5. Such other relief the Court deems just and proper.
Respectfully submitted,
alan@rosnerandmansfield.com Hallen D. Rosner, Esq.
10085 Carroll Canyon, First Floor San Diego, CA 92131 Tel.: (858) 348-1005 Fax: (858) 348-1 150
David Blair-Loy, Esq. ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES P. 0 . Box 87131 SanDiego, CA 92138-7131 Tel.: (619) 232-2121 Fax: (619) 232-0036
Omar C. Jadwat,. Esq. oiadwat@,aclu.org AMERICAN CIVIL LIBERTIES UNION FO- U- -N- D-A-TIO- -N Immigrants' Rights Project 125 Broad St., 18th F1. New York, NY 10004 Tel.: (212j 549-2620 Fax: (212j 549-2654
Jennifer C. Chang- , Esq.. (.SBN 233033) jchang@,aclu.org (Application for Admission Pending) AMERICAN CIVIL LIBERTIES UNION FOUNDATION Immigrants' Rights Project 39 Drumm Street San Francisco, CA 94111 Tel.: (415) 343-0774 28 Fax: (415) 395-0950

David Kline, Esq. (SBN 241636) david@fhcsd.com THE FAIR HOUSING COUNCIL OF SAN DEGO 625 Broadway, Suite 1114 San Diego, CA 92101 Tel: (619) 699-5888. Ext. 212 Fax: (619) 699-5885

Philip Tencer, Esq. (SBN 17308)

tencemc@cooley.iom

Michael Levinson, Esq. (SBN 104155)

levinsonms~,coolev.com

COOLEY GODWARD KRONISH LLP

4401

East"eate

Mall
----

Sari Diego, CA 92121-1909

Tel: (858) 550-6035

Fax: (858) 550-6420

Elliot Mincbere. Esa.

Fax: (202) 293-2672
Christopher Brancart, Esq. (SBN cbrancart@brancart.com Elizabeth Brancart, Esa. (SBN ebrancart@branc&.co& ' BRANCART & BRANCART P. 0.Box- 6- 8- 6~escaderoC, A 94060 Tel: (650) 879-0141 Fax: (650) 879-1103
Counsel for Plaintiffs

29
COMPLAINT

 
 I Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453)
ROSNER & MANSFIELD, LLP 3 10085 Carroll Canyon Rd., 1st Floor
San Diego, CA 92131 4 Tel: (858) 348-1005
Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804)
10 MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)
11 634 S. Spring Street, 11 th Floor Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266
13 Counsel for Plaintiffs
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAR (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

PLAINTIFFS' APPLICATION FOR

19 JANE DOE 2,

TEMPORARY RESTRAINING ORDER

20

Plaintiffs,

21

v.

22 CITY OF ESCONDIDO,

Date: To Be Set Time: To Be Set Courtroom: The Honorable John A. Houston

23

Defendant.

24 Plaintiffs, through the undersigned counsel, hereby apply for a temporary restraining order
25
under Fed. R. Civ. Proc. 65(b) immediately restraining the City of Escondido from implementing 26
27 and/or enforcing Ordinance No. 2006-38 R (Ordinance), Chapter 16E ofthe Escondido Municipal

28 Code (adopted by the City of Escondido on October 18, 2006, with an effective date of November

1
APPLICATION FOR TEMPORARY RESTRAINING ORDER

06 CV 2434 JAH (NLS)

1 17,2006), in order to preserve the status quo pending a hearing on a motion for preliminary

2 injunction.

3

This Application is made on the ground that the Ordinance on its face violates numerous

4 provisions of the United States Constitution and California Constitution, and plaintiffs will suffer
5 imminent and irreparable injury from implementation and enforcement of the Ordinance.
6
This Application is based on the pleadings on file, and the accompanying Memorandum 7

8 ofPoints and Authorities and Declarations submitted herewith. This Application is made upon

9 notice to the City of Escondido, as set forth in the accompanying Certificate of Service.

75, 10 DATED: November 2006

Respectfully submitted,

11

ROSNER & MANSFIELD, LLP

12

BY:~

13

ALAN M. MANSFIELD

alan@rosnerandmansfield.com

14

Hallen D. Rosner, Esq.

hal@rosnerandmansfield.com

15

Virginia Y. Calderon, Esq.

Virginia@rosnerandmansfield.com

16

Cecilia Brennan, Esq.

Cecilia@rosnerandmansfield.com

17

10085 Carroll Canyon, First Floor

18

San Diego, CA 92131

Tel.: (858) 348-1005

19

Fax: (858)348-1150

20

David Blair-Loy, Esq.

ACLU FOUNDATION OF SAN DIEGO &

21

IMPERIAL COUNTIES

P. O. Box 87131

22

San Diego, CA 92138-7131

Tel.: (619) 232-2121

23

Fax: (619) 232-0036

24

Cynthia Valenzuela, Esq.

cvalenzuela@MALDEF.org

25

MEXICAN-AMERICAN LEGAL

DEFENSE &

26

EDUCATIONAL FUND (MALDEF)

634 S. Spring Street, 11th Floor

27

Los Angeles, CA 90014

Tel: (213) 629-2512

28

Fax: (213) 629-0266

2

APPLICATION FOR TEMPORARY RESTRAINING ORDER

06 CV 2434 JAH (NLS)

1

2

3

Omar C. Jadwat, Esq.

4

ojadwat@aclu.org Lee Gelemt, Esq.

5

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

6

Immigrants' Rights Project 125 Broad St., 18th Fl.

7

New York, NY 10004 Tel.: (212) 549-2620

8

Fax: (212) 549-2654

9

Jennifer C. Chang, Esq. (SBN 233033) jchang@aclu.org

10

(Application for Admission Pending) Lucas Guttentag, Esq. (SBN 90208)

11

AMERICAN CIVIL LIBERTIES UNION FOUNDATION

12

Immigrants' Rights Project 39 Drumm Street

13

San Francisco, CA 94111 Tel.: (415) 343-0774

14

Fax: (415) 395-0950

15

David Kline, Esq. (SBN 241636) david@fhcsd.com

16

THE FAIR HOUSING COUNCIL OF SAN DIEGO

17

625 Broadway, Suite 1114 San Diego, CA 92101

18

Tel: (619) 699-5888, Ext. 212 Fax: (619) 699-5885

19

Philip Tencer, Esq. (SBN 173818)

20

tencerpc@cooley.com Michael Levinson, Esq. (SBN 104155)

21

levinsonms@cooley.com COOLEY GODWARD KRONISH LLP

22

4401 Eastgate Mall San Diego, CA 92121-1909

23

Tel: (858) 550-6035 Fax: (858) 550-6420

24

Elliot Mincberg, Esq.

25

emincberg@pfaw.org PEOPLE FOR THE AMERICAN WAY

26

2000 M Street N.W., Suite 400

Washington, D.C. 20036

27

Tel: (202) 467-2392

Fax: (202) 293-2672

28

3

APPLICATION FOR TEMPORARY RESTRAINING ORDER

06 CY 2434 JAH (NLS)

1

2

3

Christopher Brancart, Esq. (SBN 128475)

4

cbrancart@brancart.com Elizabeth Brancart, Esq. (SBN 122092)

5

ebrancart@brancart.com BRANCART & BRANCART

6

P. O. Box 686 Pescadero, CA 94060

7

Tel: (650) 879-0141
Fax: (650) 879-1103

8

Counsel for Plaintiffs

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 4
APPLICATION FOR TEMPORARY RESTRAINING ORDER

06 CV 2434 JAH (NLS)

1 HaUen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453)
ROSNER & MANSFIELD, LLP 3 10085 CarroU Canyon Rd., 1st Floor
San Diego, CA 92131 4 Tel: (858) 348-1005
Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804)
10 MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)
11 634 S. Spring Street, 11th Floor Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266
13 Counsel for Plaintiffs
14 [Additional Counsel Appear on Signature Pagel

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

) CASE NO. 06 CV 2434 JAR (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE; )

18 JANE DOE I; and JANE DOE 2,

) MEMORANDUM OF POINTS
) AND AUTHORITIES IN SUPPORT

19 Plaintiffs,

) OF PLAINTIFFS' APPLICATION ) FOR TEMPORARY RESTRAINING

20

v.

) ORDER )

21 CITY OF ESCONDIDO,

) Date: To Be Set ) Time: To Be Set

22
Defendants.

) Courtroom: The Hon. John A. Houston )

23

)

24

25

26

27

28

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

CASE NO.: 06 CV 2434 JAH (NLS)

1
2
3 I.
4 II.
5 6 7 8 III. 9 10 11 12 13 14 15 16 17 18 19 20 21
22
23 IV.
24 25 26 27 28

TABLE OF CONTENTS
INTRODUCTION AND SUMMARY OF ARGUMENT ................................................. 1 STATEMENT OF FACTS ................................................................................................. 2 A. The Ordinance and What it Prohibits...................................................................... 2 B. The Intent and Effect ofthe Ordinance................................................................... 4 C. The Irreparable Hann Suffered by Plaintiffs .......................................................... 6 LEGAL ARGUMENT ........................................................................................................ 7 A. Standards for Issuing Temporary Restraining Order and Irreparable Hann........... 7 B. The Comprehensive Federal Regulation of Immigration Establishes the
Ordinance Violates the Supremacy Clause ............................................................. 9 1. Constitutional Preemption......................................................................... 10 2. Field Preemption ....................................................................................... 12 3. Conflict Preemption .. '" ............................................................................. 13
a. Conflicts With Individual Provisions of Federal Law .................. 14 b. Interference with the Federal Govermnent's Regulatory
Scheme .......................................................................................... 14 C. The Ordinance Directly Conflicts With California Law, in Violation of
the California Constitution .................................................................................... 16 D. The Ordinance Violates the Contracts Clause of the United States and
California Constitutions .................,.............................................................,........ 18
E. The Ordinance also Violates the First Amendment and Art. I, §2(a) of
the California Constitution.................................................................................... 20
F. The Ordinance Facially Deprives Plaintiffs of Due Process ................................. 21
G. No Bond Should Be Required ............................................................................... 24 CONCLUSION ................................................................................................................. 25

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1

TABLE OF AUTHORITIES

2

3

FEDERAL CASES

4 Allied Structural Steel Co. v. Spannaus, 438 U.S. 234 (1978) ..................................................... 19

5 American Ins. Assoc. v. Garamendi, 539 U.S. 396 (2003) ..................................................... 10, 15

6 Associated General Contractors ofCalifornia, Inc. v. City and County ofSan

Francisco, 748 F.Supp. 1443 (N.D. Cal. 1990), aff'd 950 F.2d 1401

7

(9th Cir.1991) ..................................................................................................................... 9

8 Babbitt v. United Farm Workers Nat 'I Union, 442 U.S. 289 (1979) .............................................. 8

9

Benda v. Grand Lodge ofInt 'I Ass 'n ofMachinist & Aerospace Workers, 584 F.2d 308 (9th Cir. 1978), cert dismissed, 441 U.S. 937 (1979) ................................................... 8

10 Byron M v. City of Whittier, 46 F.Supp.2d 1032 (CD. Cal. 1998) ................................................ 7

11 Chy Lung v. Freeman, 92 U.S. 275 (1876) ................................................................................... 10

12 City ofAuburn v. Qwest Corp., 260 F.3d 1160 (9th Cir. 2001) ....................................................... 8

13 City ofLittleton v. ZJ. Gifts D-4, L.L.c., 541 U.S. 774 (2004) .................................................... 21

14 Clark v. Martinez, 543 U.S. 371 (2005) ........................................................................................ 14

15 Columbia Basin Apartment Ass 'n v. City ofPasco, 268 F.3d 791 (9th Cir. 2001)...................... 8, 9

16 Crosby v. nat 'I Foreign Trade Council, 530 U.S. 363 (2000) ................................................ 15, 16

17 De Canas v. Bica, 424 U.S. 351 (1976) .................................................................. 9,11,12,16,20

18 Desert Outdoor Advertising, Inc. v. City ofMoreno Valley, 103 F.3d 814 (9th Cir. 1996) ............ 7

19 Dr. Seuss Enterprises L.P. v. Penguin Books USA, 924 F.Supp. 1559 (S.D. Cal. 1996) ............... 7

20 East New York Sav. Bank v. Hahn, 326 U.S. 230 (1945).............................................................. 20

21 Energy Reserves Group, Inc. v. Kan. Power & Light Co., 459 U.S. 400 (1983).................... 19,20

22 Florida Bar v. Went For It, Inc., 515 U.S. 618 (1995) ................................................................. 21

23 Fuentes v. Shevin, 407 U.S. 67 (1972) .......................................................................................... 23

24 Goldie's Bookstore, Inc. v. Superior Court, 729 F.2d 466 (9th Cir. 1984) ..................................... 9

25 Graham v. Richardson, 403 U.S. 365 (1971) ......................................................................... 10, 11

26 Granny Goose Foods, Inc. v. Brotherhood ofTeamsters and Auto Truck Drivers

27

Local No. 70,415 U.S. 423 (1974) ..................................................................................... 7

28 Greene v. Lindsey, 456 U.S. 444 (1982) ....................................................................................... 22

II

DECLARATION OF VIRGINIA CALDERON IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1 TABLE OF AUTHORITIES
2
FEDERAL CASES (Cont'd) 3

4 Henderson v. Mayor ofthe City ofNew York, 92 U.S. 259 (1876)............................................... 10

5 Hines v. Davidowitz, 312 U.S. 52 (1941).......................................................................... 10,14,15

6 Lozano v. City ofHazleton, 2006 U.S. Dist. LEXIS 79301 (W.D. Pa.) ............................. 2, 12,24

7 LULAC v. Wilson, 908 F.Supp. 755 (C.D. Cal. 1998) .................................................................. 11

8 Mathews v. Eldridge, 424 U.S. 319 (1976) ................................................................................... 23

9 Mitchell v. Cuomo, 748 F.2d 804 (2nd Cir. 1984) ........................................................................... 9

10 Mullane v. Central Hanover Bank & Trust co., 339 U.S. 306 (1950) .......................................... 23

11 People ofCalif. v. The Tahoe Reg 'I Planning Agency, 766 F.2d 1319 (9th Cir. 1985)................. 24

12 Plyer v. Doe, 457 U.S. 202 (1982) ................................................................................................ 20

13 Reno v. ACLU, 521 U.S. 844 (1997) ............................................................................................... 8

14 Reno v. Catholic Soc. Servs., Inc., 509 U.S. 43 (1993)................................................................... 8

15 Ridley v. Massachusetts Bay Transp. Authority, 390 F.3d 65 (1 st Cir. 2004) ............................... 21

16 Ross v. City ofBerkeley, 655 F.Supp. 820 (N.D. Cal. 1987) ........................................................ 19

17 Steffel v. Thompson, 415 U.S. 452 (1974)....................................................................................... 8

18 Swanson v. University ofHawaii Professional Assembly, 269 F.Supp. 1252 (D. Haw.

19

2003) ............................................................................................................................... 24

20 Takahashi v. Fish & Game Comm 'n, 334 U.S. 410 (1948) .......................................................... 10

21 Toll v. Moreno, 458 U.S. 1 (1982) ................................................................................................ 10

22 Truax v. Raich, 239 U.S. 33 (1915) .............................................................................................. 10

23 U.S. v. James Daniel Good Real Prop., 510 U.S. 43 (1993) .................................................. 22, 23 24 United States v. Kim, 193 F.3d 567 (2nd Cir. 1999) ................................................................ 13, 15

25 United States v. Locke, 529 U.S. 89 (2000) .................................................................................. 16 26 . United States v. Lopez, 521 F.2d 437 (2nd Cir. 1975) ................................................................... 13

27 United States v. Maali, 2005 WL 2204982 (M.D. Fla. Sept. 8, 2005) ......................................... 13

28 United States Trust Co. v. New Jersey, 431 U.S. 1 (1977) ........................................................... 20

111 DECLARAnON OF VIRGINIA CALDERON IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAR (NLS)

1

2

TABLE OF AUTHORITIES

3

FEDERAL CASES (Cont'd)

4

Page

5 Valley Broadcasting Co. v. United States, 107 F.3d 1328 (9th Cir. 1997) .................................... 21

6 WB. Worthern Co. v. Kavanaugh, 295 U.S. 56 (1935) ................................................................ 20

7 Wisconsin Dep 't ofIndus. v. Gould, 475 U.S. 282 (1986) ............................................................ 16

8 Zadvydas v. Davis, 533 U.S. 678 (2001)................................................................................. 10,14

9 STATE CASES

10 ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc., 138 Cal.AppAth 1307

11

(2006) ............................................................................................................................... 21

12 Big Creek Lumber Co. v. County ofSanta Cruz, 38 Ca1.4th 1139 (2006) ..................................... 16

13 Briseno v. Santa Ana, 6 Cal.AppAth 1378 (1992) ......................................................................... 16

14 Cook v. City ofBuena Park, 126 Cal.AppAth 1 (2005)................................................................. 24

15 Jeffers v. Easton Eldridge & Co., 113 Cal. 345 (1896) ................................................................ 18

16 Kreling v. Walsh, 77 Cal.App.2d 821 (1947) .............................................................,.................. 18

17 Pacific Southwest Realty Co. v. County ofLos Angeles, 1 Ca1.4th 155 (1991) ............................. 18 18 People v. Thompson, 43 Cal.App.4th 1265 (1996) ........................................................................ 17 19 Thornton v. City ofSt. Helens, 425 F.3d 1158, (9th Cir. 2005) ..................................................... 22

20 Tri County Apartment Assn. v. City ofMountain View, 196 Cal.App.3d 1282 (1987) ................. 18

21 Wong v. Tenneco, Inc., 39 Ca1.3d 126 (1985) ............................................................................... 18

22
FEDERAL STATUTES

23 Code ofFederal Regulations, Title 8

24 Section 212.5(f) ................................................................................................................. 14

25

Section 274a.12 ................................................................................................................. 14

26 United States Code, Title 8

27

Section 1101, et seq..................................................................................................... 12, 13

Section 1154...................................................................................................................... 13

28

Sections 1228-1252 ........................................................................................................... 13

Section 1229a..........................................:......................................................................... 13

IV

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1

TABLE OF AUTHORITIES

2

3

FEDERAL STATUTES (Cont'd)

4 United States Code, Title 8 (Cont'd)

5

Section 1254a .................................................................................................................... 14

Section 1255 ...................................................................................................................... 14

6

Sections 1255-1259 ...............................:........................................................................... 13

Section 1324...................................................................................................................... 13

7

Section 1373(c) ............................................................................................................. 3, 12

8 United States Code, Title 42

9

Section 1983 .............................................................................................,..................... '" 24

10 United States Constitution

11

Art. I, §10 .......................................................................................................................... 19

Amendment XIV ............................................................................................................... 22

12

13

STATE STATUTES

14 California Constitution

15

Art. I, §2(a) .................................................................................................................... 1,22

Art. I, §9 ............................................................................................................................ 19

16

Art. I, §20 .................................................................................................,.................. 18, 22

Art. XI, §7 ......................................................................................................... 1, 16, 18, 19

17 Civil Code

18 Section 671 .................................................................................................................. 18,22

19

Section 765 ........................................................................................................................ 18

Section 1945 et seq.....................,...................................................................................... 17

20

Section 1946.1 .........~ ......................................................................................................... 17

21 Code of Civil Procedure

22

Section 1161 ................................................................................................................ 17,24

Section 1167.3 ................................................................................................................... 18

23

Section 1170.5 ................................................................................................................... 18

24 Government Code

25

Section 25123 ...................................................................................................................... 2

Section 36937...................................................................................................................... 2

26

27 III

28 III

v
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06 CV 2434 JAH (NLS)

1

TABLE OF AUTHORITIES

2

3

OTHER

4 Escondido Municipal Code

5

Section 16-17(a) .................................................................................................................. 4

Section 16-221, et seq. ...................................................................................................... 22

6

Section 16-224 .................................................................................................................. 22

Section 16-225 .................................................................................................................. 22

7

Section 16-249 .................................................................................................................... 4

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
VI
DECLARATION OF VIRGINIA CALDERON IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1

I. INTRODUCTION AND SUMMARY OF ARGUMENT

2

On October 18, 2006, the City of Escondido ("City" or "Escondido") adopted local

3 Ordinance No. 2006-38R "Establishing Penalties for the Harboring of Illegal Aliens in the City of

4 Escondido" (the "Ordinance"). The Ordinance brazenly attempts to regulate immigration, finding

5 that the federal government lacks the resources to properly protect the interests of Escondido

6 residents. The Ordinance requires any landlord who leases or rents a dwelling unit in Escondido

7 to provide the City with undefined "identity data" about a tenant upon any "valid complaint", and

8 within 10 business days after receiving notice evict anyone designated by the City as an "illegal

9 alien" or be charged with "harboring illegal aliens". Landlords must also advise the City of the

10 whereabouts of that "illegal alien" after eviction. The penalties for refusing to do so are

11 significant -- for multiple violations (each day that passes is a separate violation) up to $1,000 per

12 day and/or six months in jail, and an inunediate pre-hearing suspension of the landlord's license.

13 This latter penalty is particularly onerous as it precludes a landlord from enforcing any existing

14 rental contracts, even with lawfully present tenants.

15

The Ordinance is facially invalid on numerous grounds. First, the Constitution forbids

16 municipalities from engaging in immigration regulation, legislating in fields reserved for the

17 federal government or enforcing laws that burden or conflict with federal law. The Ordinance is

18 unenforceable under the three separate preemption tests established by the U.S. Supreme Court.

19 Second, as the Ordinance directly contradicts California and federal laws involving

20 landlord/tenant relations and property rights, it violates Art. XI, §7 of the California Constitution.

21 Third, the Ordinance violates the Contracts Clause of the U.S. and California Constitutions by

22 interfering with existing contractual obligations, and specifically existing rental and lease

23 agreements of both landlords and tenants. Fourth, the Ordinance violates the First Amendment

24 and California Constitution, Art. I, §2(a), because it compels speech and imposes criminal and

25 civil penalties for failing to speak to the City. Finally, the Ordinance violates due process by

26 imposing penalties and revoking licenses without a prior hearing--and no hearing as to whether a

27 tenant is in fact an "illegal alien".

28

The Ordinance was patterned after a similar law adopted in Hazleton, Pennsylvania. On

1
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1 October 31, 2006, the Court in Lozano v. City o/Hazleton, 2006 U.S. Dist. LEXIS 79301 (W.D.

2 Pa.), issued a Temporary Restraining Order suspending enforcement of that statute pending a

3 preliminary injunction hearing. Plaintiffs here demanded the City voluntarily agree to suspend

4 the Ordinance pending a preliminary injunction hearing; the City has not agreed to do so.

5 Because irreparable harm will result from enforcement of the Ordinance when it goes into effect

6 on November 18, 2006 and is even taking place now, the Court must immediately restrain the

7 implementation and enforcement ofthe Ordinance pending a preliminary injunction hearing.

8

II. STATEMENT OF FACTS

9

A. The Ordinance and What it Prohibits

l O O n August 16, 2006, the Escondido City Council directed its staff to prepare an ordinance

11 and/or policies "to regulate overcrowding, renting to illegal aliens, and on-street parking

12 restrictions." The only one of these issues addressed by the Escondido City Attorney's Office

13 was, in the words of the Ordinance, "harboring illegal aliens". The Ordinance was admittedly

14 patterned after a similar Ordinance adopted in Hazleton, Pennsylvania. Declaration of Virginia

15 Y. Calderon ("Calderon Dec!."), Ex. 1.

16

On October 4, 2006, based (according to the public record) on a several-page analysis

17 prepared by the Escondido City Attorney, the Escondido City Council adopted a version of the

18 Ordinance by a 3:2 vote. Calderon Dec!., '1f'1f3-5, Ex. 2. On October 18, 2006, an amended

19 version of the Ordinance received one more reading and was passed by another 3:2 vote. A true

20 and correct copy ofthe Ordinance is attached to the Calderon Dec!. as Exhibit 3. By state statute

21 (Gov. Code §§ 25123 and 36937), the Ordinance goes into effect after 30 days, or on November

22 17,2006.

23

Under §16E-2 of the Ordinance, a "valid" complaint can be submitted by "any official,

24 business entity, or resident of the City." This definition allows complaints from persons such as a

25 disgruntled neighbor, individuals with their own political agenda who have already expressed an

26 intent to be vigilante reporters, or even a landlord that wishes to get rid of a tenant subject to a

27 valid lease agreement. Declaration ofConsuelo Martinez ("Martinez Dec!."), '1f'1f4-6.

28

Any of the following activities result in a violation of the Ordinance, if done "knowingly

2
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 or in reckless disregard of the fact that an alien has come to, entered, or remains in the United

2 States in violation of law, unless such harboring is otherwise expressly permitted by federal law";

3

(a) to "let, lease or rent a dwelling unit to an illegal alien";

4

(b) to "suffer or permit the occupancy of the dwelling unit by an illegal alien";

5

(c) to fail "to provide the City with identity data needed to obtain a federal verification

6 of immigration status" of a tenant if not provided within five business days after receiving written

7 notice from the City demanding such information. See Calderon Decl., Ex. 3 at §16E-1. The

8 landlord is compelled to force the tenant or occupant to immediately speak to them in order to

9 obtain such data, and then is compelled to speak to the City under fear of criminal sanction.

10

The Business License Division of the City of Escondido shall then submit the "identity

11 data" (which is undefined, but data likely protected from disclosure by federal and state privacy

12 laws) to the federal government to attempt to "verify" the inunigration status of a particular tenant

13 or occupant. lfthe federal government does not provide a positive response,! a landlord only has

14 10 business days to "correct a violation of this section", i.e., evict the tenant or occupant. As

15 Plaintiff Garrett notes, a person must provide more notice to the City to place a couch on the

16 street. Declaration of Roy Garrett ("Garrett Decl.") at '1110. It takes significantly more time than

17 that to legally evict a tenant. [d. at '11'1111-13. During the time such an inquiry is pending, such

18 tenants will likely be treated as if they are "illegal aliens" in order to avoid the potentially

19 crippling fmancial penalties and criminal sanctions imposed by the Ordinance. The tenant or

20 occupant is presumptively considered an illegal alien and the landlord must prove his or her

21 innocence - turning due process on its head and disregarding the federal legislative scheme in

22 place to make such a final determination.

23

The Ordinance automatically denies or suspends the business license of the violating

24 landlord without any pre-determination hearing, precluding the landlord from collecting "any

25 rent, payment, fee, or any other form of compensation from any tenant or occupant in the

26 The USClS may only respond to inquiries from local government entities "seeking to verify or
27 ascertain the citizenship or immigration status of any individual within the jurisdiction of the agency." 8 U.S.C. §1373(c), emphasis added. Tenants or occupants who may be identified as
28 "illegal aliens" are not within the jurisdiction of the Business License Division of the City.
3
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 dwelling unit" as long as the license is suspended.2 More than one violation - which as defined in

2 the statute would result from not taking action more than one day after required to do so under the

3 terms of the Ordinance, since each day that passes and each alien "harbored" constitutes a

4 separate violation - would result in a monetary penalty of up to $1,000.00 per violation per day or

5 ajail term of six months, or both. !d. at §16E-2(h); EMC §16-249.

6

B. The Intent and Effect of the Ordinance

7

The intent and effect of the Ordinance is admittedly to regulate immigration in Escondido

8 independently of the federal government. The Court need look no further than Section I of the

9 Ordinance, which states "the harboring of illegal aliens in dwelling units in the City, and crime

10 committed by illegal aliens harm the health, safety and welfare of legal residents in the City" and

11 "the state and federal government lack the resources to properly protect the citizens of Escondido

12 from the adverse effects of the harboring of illegal aliens, and the criminal activities of some

13 illegal aliens". Calderon Dec!., Ex. 3, at 2. The City based its "harboring" conclusion on the

14 findings of a June 2006 study by the National Latino Research Center at California State

15 University San Marcos addressing housing conditions in the Mission Park area of Escondido

16 ("Study"). Calderon Dec!., Ex. 2 at pp. 1-2. However, the Study found the causes for the listed

17 conditions were due to the high costs of housing and the unavailability of affordable subsidized

18 housing in Escondido - not the presence of an "illegal alien" population. In fact, the Study did

19 not study or refer to immigration status as raising a concern. Calderon Dec!., ~6, Ex. 4.

20 Escondido thus misrepresented the conclusion of the Study to justify its own desires and to claim

21 that illegal immigration was at the heart of the issues sought to be redressed.

22

In addition, while the Ordinance's Findings make several references to the criminal

23 activities of illegal aliens, the public record for the Ordinance is devoid of any verifying

24
25 2 Although the Ordinance refers to suspending the right to collect rent only on the "dwelling unit" in question (§ l6E-2(e», the effect of suspending a business license under the Escondido
26 Municipal Code ("EMC") is to preclude the collection of rent on any unit. EMC §16-17(a) (''No person shall transact and carry on any business ... in this city without ... a license ... "); § 16-3
27 ("Business" includes "lease or rental of residential real estate") ("Transact and carry on" includes "offering, or contracting, orally or in writing, in connection with any business ... [t]o ... rent ...
28 one or more rooms, apartments, portions or parcels, of any real or personal property").
4
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 infonnation. In fact, the most recent Escondido crime statistics for 2005 reported a significant

2 decline in crime by 15.31% from 2004, including a 32% decrease in auto theft and a 20.4%

3 decrease in property crimes. Calderon Dec!., Ex. 5. There is not even any evidence in the

4 Ordinance record providing an estimate of the number of undocumented immigrants in

5 Escondido, let alone if they have committed significant crimes. Id. While the City blames its

6 perceived woes on undocumented immigrants to justifY its discriminatory practices, the facts

7 available to the City and in the Ordinance record do not support such Findings.

8

In addition, during the deliberation process Council member Marie Waldron - the driving

9 force behind the Ordinance -- linked the presence of illegal immigrants with her claim of a

10 general deterioration of American values, citing a 1962 anti-Communist tract from the John Birch

11 Society as support for her novel thesis. "To look the other way is treasonous", according to

12 member Waldron, who likened illegal immigrants to terrorists. Calderon Dec!. at'll8. When one

13 Council member proposed the City track the costs of complying with the Ordinance to see if the

14 Ordinance was objectively justifiable, Council member Gallo rejected the idea outright. Council

15 members Abed and Waldron declared that such an analysis would be useless without also

16 tracking the costs of illegal immigration. However, they agreed to a cost analysis so long as the

17 "benefits" of the Ordinance, i.e., the number of undocumented persons who left the City, were

18 also tracked. Calderon Dec!., 'll10-11.

19

Thus, the clear intent of the Ordinance is to banish "illegal aliens", or anyone suspected of

20 being an "iIIegal alien", from Escondido by adversely impairing the right of landlords to contract

21 with persons of their choosing or continue existing leases or rental agreements to such persons

22 and impairing their rights to abode. Such persons will be forced to move out of the City - even if

23 (such as Jane Does 1 and 2) they have children who are U.S. citizens who attend school in

24 Escondido and who have the right to live and go to school where they want, but must live where

25 their parents live. See Declarations of Jane Does 1 and 2.

26

These adverse effects have already begun to take place even before the Ordinance goes

27 into effect. Some landlords are threatening or coercing Latino tenants into providing confidential

28 infonnation or demanding they immediately give up their tenancy, irrespective of their rights

5
POINTS AND AUTHORITiES IN SUPPORT OF APPLICATION FOR TRO

1 under federal and state law, or are threatening to raise their rent if they cannot prove their

2 citizenship. Some individuals are attempting to blackmail tenants, threatening to report them

3 under the Ordinance to City officials. Martinez Decl., ~~4-6. Similar complaints have also been

4 received by other local housing groups. See Declaration of Erica Jimenez, Fair Housing Council

5 of San Diego.

6

According to Escondido local demographic data, approximately 42% of City residents are

7 of Latino national origin. Calderon Decl., Ex. 7, ~12. Even though a very small percentage of

8 such residents may be undocumented based on national estimates of the undocumented immigrant

9 popUlation (Calderon Decl., Ex. 8), under the Ordinance, landlords will likely focus their

10 attention on people who look or sound Latino rather than on any prospective or actual tenant who

11 may be undocumented. Moreover, contrary to popular belief the majority of the undocumented

12 population in the United States is part of a family, with a significant percentage (over 25%)

13 having children who are U.S. citizens and have a right to live wherever they want and to attend

14 school wherever they choose. Id. Ex. 8 at 19, ~13.

15

c. The Irreparable Harm Suffered by Plaintiffs

16

The Garretts, who are landlords in Escondido, are potentially exposed to criminal

17 sanction, penalties and losses because of the adoption of the Ordinance if they are found to have

18 engaged in any of the activities listed above or if they do not provide the demanded information

19 to City officials. They have excellent tenants subject to lease agreements and have no intention of

20 violating their privacy rights or federal and state privacy laws by sharing confidential information

21 with the City. They are also under the threat of being compelled to speak to the City at any time

22 upon five days' notice arising from any "valid complaint" from any person and to provide

23 information about their tenants and occupants. They also face uncertainty as to what acts could

24 be deemed to be "harboring illegal aliens", as they do not know or understand what is required

25 under federal immigration laws. The Garretts are forced to choose between breaching valid

26 contracts and acting in a discriminatory manner or violating the Ordinance, and fear being fined

27 or jailed for violating an Ordinance they believe is unconstitutional. They have a significant

28 interest in not being subject to burdens imposed by the Ordinance they cannot understand,

6
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 significantly changing their business practices to require them to engage in policing actions or

2 impairing their existing contractual obligations. Garrett Decl., at '11'115-15.

3

The Jane Doe plaintiffs risk being evicted from their homes at any time, even though they

4 have U.S. citizen children living with them who attend school in Escondido, and even though

5 they are employed in Escondido. Declarations of Jane Does 1 and 2. EHRC is presently

6 diverting its limited resources from other programs to provide outreach opportunities to

7 immigrants in the Escondido community who remain confused and fearful about the Ordinance

8 and the impact on their lives and living situations, and have had to deal with the numerous

9 complaints the EHRC has received. Martinez Decl., '113. Each of the plaintiffs thus have their

10 own separate standing and irreparable harm sufficient to seek a TRO. Desert Outdoor 11 Advertising, Inc. v. City ofMoreno Valley, 103 F.3d 814, 818 (9th Cir. 1996).

12

Prior to filing this Application, plaintiffs demanded the City suspend this Ordinance

13 pending a resolution of this action, or at least pending a preliminary injunction hearing.

14 Declaration of Alan M. Mansfield and Ex. 1 thereto. The City to this point has not agreed to do

15 so. !d. This Application is the only way to stop the Ordinance from going into effect and being

16 enforced by vigilantes who feel it is their right to report any alleged violations beginning

17 November 17, 2006.

18

III. LEGAL ARGUMENT

19

A. Standards for Issuing Temporary Restraining Order and Irreparable Harm

20

A "party may obtain a temporary restraining order by demonstrating either: (I) a

21 combination of probable success on the merits and the possibility of irreparable injury if relief is

22 not granted; or (2) the existence of serious questions going to the merits and that the balance of

23 hardships tips sharply in its favor." Byron M. v. City of Whittier, 46 F.Supp.2d 1032, 1034 (C.D.

24 Cal. 1998); Dr. Seuss Enterprises L.P. v. Penguin Books USA, 924 F. Supp. 1559, 1562 (S.D. Cal.

25 1996). A temporary restraining order serves the purpose of "preserving the status quo and

26 preventing irreparable harm" pending further hearing. Granny Goose Foods, Inc. v. Brotherhood

27 of Teamsters and Auto Truck Drivers Local No. 70,415 U.S. 423,439 (1974). Here, the status

28 quo is the current situation where the Ordinance is not subject to enforcement. 7
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1

These two standards fonn a sliding scale in which "'the critical element in determining the

2 test to be applied is the relative hardship to the parties.'" Benda v. Grand Lodge oflnt 'I Ass 'n of

3 Machinist & Aerospace Workers, 584 F.2d 308, 315 (9th Cir. 1978) (cert dismissed, 441 U.S. 937

4 (1979)).

5

As detailed below, based on the face of the Ordinance there are serious questions about its

6 constitutionality, and plaintiffs can establish probable success on the merits. Unless a TRO issues

7 from the Court prohibiting enforcement of the Ordinance until at least the Court can rule upon a

8 fully briefed preliminary injunction motion, plaintiffs will suffer irreparable harm for which there

9 is no adequate remedy at law. The balance of hardships tips sharply in their favor due to the

10 Ordinance's facial infringement of their federal and state constitutional rights, particularly when

11 compared to the lack of any demonstrable harm to the City if the Ordinance does not go into

12 effect for a short period of time.

13

A facial challenge to the legality of a statute or regulation may proceed before there has

14 been any attempted or even threatened enforcement targeting the plaintiffs. It is "not necessary

15 that [a party] first expose himself to actual arrest or prosecution to be entitled to challenge a

16 statute that he claims deters the exercise of his constitutional rights." Steffel v. Thompson, 415

17 U.S. 452, 459 (1974). Courts often pennit pre-enforcement challenges to unconstitutional laws,

18 even where the government has taken no action against nor made any threat against the plaintiffs.

19 See, e.g., Reno v. ACLU, 521 U.S. 844, 861 (1997) (pre-enforcement challenge filed day law was

20 signed by President); Babbitt v. United Farm Workers Nat'l Union, 442 U.S. 289, 301-02

21 (1979) (sufficient adversity found despite lack of government threat or history of enforcement).

22 Where the promulgation of a challenged statute or regulation presents plaintiff "with the

23 immediate dilemma to choose between complying with newly imposed, disadvantageous

24 restrictions and risking serious penalties for violation, the controversy is ripe." City ofAuburn v. 25 Qwest Corp., 260 F.3d 1160, 1171 (9th Cir. 2001) (quoting Reno v. Catholic Soc. Servs., Inc., 509

26 U.S. 43, 57 (1993)). No actual threat of prosecution is required. ld. The threat of injury to a

27 plaintiff by the enforcement of an ordinance against that plaintiff makes their injury sufficiently

28 imminent to give plaintiffs standing to seek injunctive relief. Columbia Basin Apartment Ass'n v. 8
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 City ofPasco, 268 F.3d 791,797 (9th Cir. 2001). The potential invasion of constitutional rights alone is sufficient to establish irreparable
2 hann. "That constitutional rights are at issue, however, raises the specter of irreparable injury.
3

'Constitutional rights are so basic to our society that their deprivation must be redressable by 4

equitable remedies. Injury from their deprivation is almost by definition irreparable.' Thus, 5

while plaintiff's fmancial interest does not establish a 'significant threat' of irreparable injury, 6
justifying equitable intervention, its constitutional claim does, to the extent it is meritorious." 7
Associated General Contractors of California, Inc. v. City and County of San Francisco, 748 8
F.Supp. 1443, 1447 (N.D. Cal. 1990), aff'd, 950 F.2d 1401 (9th Cir. 1991). See also Goldie's 9
Bookstore, Inc. v. Superior Court, 739 F.2d 466, 472 (9th Cir. 1984) ("An alleged constitutional 10
infringement will often alone constitute irreparable hann."); Mitchell v. Cuomo, 748 F.2d 804,
11
806 (2nd Cir. 1984) ("When an alleged deprivation of a constitutional right is involved, most 12
courts hold that no further showing of irreparable injury is necessary."). 13
Plaintiffs and numerous members of not only the Escondido community but also landlords 14
and immigrants nationwide have a significant public interest in the resolution of these issues, 15

particularly when there have been numerous attempts nationwide this year to pass similar local 16

laws and Escondido officials have said this Ordinance, if upheld, is a model to be followed by 17

cities nationwide. Thus, the Ordinance causes irreparable hann that must be enjoined. 18

B. The Comprehensive Federal Regulation of Immigration Establishes the

19

Ordinance Violates the Supremacy Clause

20

21

The Supremacy Clause of the United States Constitution provides three independent

22 grounds to invalidate a local immigration-related law. First, the local law may be constitutionally

23 preempted because it is an attempt to regulate immigration, and the Constitution reserves such

24 regulation exclusively to the federal goverrunent. Second, the local law may be field preempted

25 because it is an attempt to legislate in a field occupied by the federal goverrunent. Third, the local

26 law may be conflict preempted because it "burdens or conflicts in any manner with any federal
27 laws or treaties," or "[stands1 as an obstacle to the accomplishment and execution of the full

28 purposes and objectives of Congress." De Canas v. Bica, 424 U.S. 351, 354, 362, 363 (1976).

9
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 For more than a hundred years, the Supreme Court has consistently struck down numerous 2 immigration-related state statutes on one or more of these Supremacy Clause grounds.3 The

3 Ordinance violates the Supremacy Clause under all three of these standards.

4

Courts are especially sensitive to Supremacy Clause concerns in the immigration area.

5 The "preeminent role of the federal Government with respect to the regulation of aliens within

6 our borders" is established in the Constitution itself. Toll, 458 U.S. at 10. Laws relating to

7 foreign nationals are inextricably intertwined with international relations and are a particular

8 concern of the federal government. Hines, 312 U.S. at 66-67; American Ins. Assoc. v.

9 Garamendi, 539 U.S. 396, 420, n.11 (2003) (preemption concerns in foreign relations context).

10

According to the Supreme Court in Graham, 403 U.S. at 382, there is a special need for

11 nationwide consistency in matters affecting foreign nationals given the "explicit constitutional

12 requirement of uniformity" in immigration matters. It is easy to foresee the myriad problems that

13 would result for citizens and non-citizens alike if each of the 50 states - or each of the thousands

14 of localities like Escondido across the 50 states - adopted its own unique rules for the treatment

15 of aliens, particularly in sensitive and complex areas such as housing. Zadvydas v. Davis, 533

16 U.S. 678, 700 (2001) (recognizing "the Nation's need 'to speak with one voice' in immigration

17 matters"). It is not within the province of the City to take enforcement of the sensitive issue of

18 federal immigration and "harboring illegal aliens" into its own hands simply because it believes

19 the federal government does not presently devote the resources necessary to do so.

20

1. Constitutional Preemption

21

The Ordinance is invalid because it is an impermissible attempt to regulate immigration.

22 The regulation of immigration is constitutionally reserved to the federal government, such that

23 3 See, e.g., Toll v. Moreno, 458 U.S. 1, 10 (1982) (invalidating state denial of student fInancial
24 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)
25 (invalidating state denial of commercial fIshing licenses); Hines v. Davidowitz, 312 U.S. 52, 6268 (1941) (invalidating state alien registration scheme); Truax v. Raich, 239 U.S. 33,42 (1915)
26 (invalidating state employer sanctions scheme under Fourteenth Amendment and suggesting Supremacy Clause violation); Chy Lung v. Freeman, 92 U.S. 275 (1876) (invalidating state
27 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)
28 (invalidating state bond requirement for arriving immigrants).
10
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 even if Congress had not legislated on the same subject matter the Ordinance would be invalid.

2 LULAC v. Wilson, 908 F.Supp. 755, 768 (C.D. Cal. 1998) (invalidating provisions of Prop. 187

3 on federal preemption grounds).

The Ordinance seeks to identifY non-citizens living in Escondido, have the City assess 4

their immigration status, and force landlords to expel immigrants, making it impossible for them 5

to live within City limits. Deciding who may stay and who must depart, and expelling the latter, 6

is the very core of immigration regulation. See De Canas, 424 U.S. at 355 ("detennination of 7

who should or should not be admitted to the country" included in regulation of immigration). 8

Escondido cannot arrogate this authority to itself. 9

10

Any laws that burden aliens already in the U.S. interior that "equate with the assertion of a

right ... to deny entrance and abode" impennissibly interfere with the exclusive federal power 11

over immigration. Graham, 403 U.S. at 380 (alien residency requirements for receipt of welfare 12

benefits "encroach upon exclusive federal power"). 13

14

In L ULA C, supra, the Court detennined that "Proposition 187's verification, notification

15 and cooperation/reporting requirements directly regulate immigration by creating a

16 comprehensive scheme to detect and report the presence and effect the removal of illegal aliens."

17 Accordingly, the Court held that "Proposition 187's scheme has a direct and substantial impact on

18 immigration" and impennissibly regulates immigration. Id. at 769. The Ordinance contains

19 "verification, notification and cooperation/reporting requirements" analogous to those in LULAC 20 in that it requires landlords to provide infonnation to City officials to verifY the legal immigrant 21 status of their tenants under penalty of criminal and civil sanctions. The Ordinance further
22 requires a landlord evict any person whose immigration status has not been verified, at the cost of
23 losing their business license and the ability to collect rent from any tenant in a dwelling unit until 24 the tenant is evicted. Such requirements seek not only to punish and deter landlords from renting 25 to undocumented persons but also to deny "abode" to undocumented immigrants. As a result, the 26 Ordinance, in intent and effect, has a substantial and direct impact on immigration. It is a 27 "scheme designed to deter illegal aliens from entering and remaining in [Escondido]." Id. at 765. 28 /II
11
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1

The fact is that Escondido has, independently of the federal government, designed its own

2 system of regulation that seeks to regulate the presence of foreign nationals within the City's

3 borders. This it cannot do. Since the Ordinance directly attempts to regulate the providing of an 4 abode or shelter to undocumented immigrants, the Ordinance fails the first De Canas test.

5

In Lozano, supra (Calderon Dec!., Ex. 9), the City of Hazleton passed an Ordinance

6 prohibiting landlords from "harboring illegal aliens" ("Hazleton Ordinance", attached as Ex. 10 to

7 Calderon Dec!.). The Hazleton Ordinance defines an "illegal alien" as an "alien who is not 8 lawfully present in the United States, according to the terms of U.S. C., §1101 et seq. The City

9 shall not conclude that a person is an illegal alien unless and until an authorized representative of

10 the City has verified with the federal government, pursuant to U.S.C., Title 8, subsection 1373(c),

11 that the person is an alien who is not lawfully present in the United States". This is the same

12 language used in §16E-1. See Calderon Dec!., Ex. 3, 'lf3. The Hazleton Ordinance also imposes

13 fines and suspends business licenses for any landlord found to have "harbored" an illegal alien,

14 prohibiting the landlord from collecting any rent from any dwelling unit until the violation is

15 corrected. /d. at Ex. 10. The City Attorney's office represented to the City Council the

16 Ordinance was "patterned" after the Hazleton Ordinance. Id. at Ex. 1. The Hazleton Ordinance was set to go into effect on November 1,2006. On October 31,
17 2006, the U.S. District Court for the Western District of Pennsylvania issued a Temporary
18 Restraining Order enjoining enforcement of the Hazleton Ordinance on the grounds plaintiff had
19 raised serious claims over the constitutionality of the Hazleton Ordinance and had shown
20
irreparable harm. Id., Ex. 9, at 8-10. Based on the similarity of the ordinances, the Court should
21
22 reach the same conclusion here and enjoin enforcement ofthe Ordinance.
2. Field Preemption 23
The Ordinance is also invalid because the federal government has comprehensively 24
legislated generally in the field of immigration and specifically with respect to the harboring of 25
undocumented immigrants. It has left no room for a local municipality like Escondido to pass its 26
own law and re$Ulate in these areas. 27
/II 28

12

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1

The federal immigration law is a comprehensive and complex regulatory scheme.

2 Today's Immigration and Nationality Act ("INA"), 8 U.S.C. §1101 et seq., and its associated

3 regulations in Title 8 of the Code of Federal Regulations contain a myriad of interrelated

4 provisions establishing, inter alia, numerous irmnigration categories; civil and criminal sanctions

5 for various violations; and extensive procedures for determining status and removability. See,

6 e.g., 8 U.S.c. §1154 (procedure for granting irmnigrant status); §§ 1228-1252 (relating to removal

7 proceedings and judicial review of removal decisions); §§1255-1259 (relating to adjustment of

8 status); 8 U.S.C. §1229a (removal proceedings). As courts in this District are acutely aware, the

9 final determination whether a person is lawfully present in the United States is made after an

10 extensive administrative process - not simply by referencing a federal government data base, as

11 the Ordinance provides in §16E-l.

12

Congress has specifically addressed the legality of "harboring" individuals who have

13 violated irmnigration laws. See 8 U.S.C. §1324. Congress has carefully calibrated and modified

14 the reach and penalties of the federal harboring statute over many years. See United States v.

15 Kim, 193 F.3d 567, 572-74 (2d Cir. 1999) (analyzing 1986 amendments to harboring statute to

16 determine whether harboring could apply to employment); United States v. Lopez, 521 F.2d 437,

17 440-41 (2d Cir. 1975) (describing legislative history in determining reach of earlier statute). The

18 federal system's interpretation of the statute is not entirely settled (see United States v. Maali,

19 2005 WL 2204982 (M.D. Fla. Sept. 8,2005), noting "uncertainty surrounding the meaning of 20 harboring"), and recent legislative proposals would modifY it yet further. See H.R. 4437, 109th

21 Cong., §202. In light of Congress' specific intent to regulate harboring as part of the INA's

22 comprehensive scheme, the Ordinance is invalid as it seeks to regulate in an area already

23 regulated in the INA.

24

3. Conflict Preemption

25

The Ordinance also violates the Supremacy Clause because it conflicts with multiple

26 provisions of federal law and stands as an obstacle to the accomplishment and execution of the

27 full purposes and objectives of Congress by introducing penalties and enforcement mechanisms

28 not contemplated in federal irmnigration law.

13
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1

a. Conflicts With Individual Provisions of Federal Law

2

The "harboring" provision of the Ordinance is directly at odds with the federal

3 immigration system. Section 16E-l states that it is unlawful to knowingly or recklessly "let,

4 lease, or rent a dwelling unit to an illegal alien ... who has come to, entered or remains in the

5 United States in violation of law." However, numerous categories of persons who may

6 technically not be lawfully present in the United States are nonetheless permitted to live and work 7 in the United States with the full knowledge ofthe federal government.4 In addition, persons who

8 are applying for or have been granted "temporary protected status" are permitted to stay and work

9 in the U.S. if they meet certain requirements, notwithstanding the fact that they are otherwise

IO removable. See 8 U.S.C. §l254a. Federal officials may also exercise discretion not to deport

11 persons who are otherwise removable. See 8 C.F.R. §2l2.5(f). By denying the right to abode to

12 every individual who might be found to be an "illegal alien" under the Ordinance because they

13 may not be identified in a particular government database, the Ordinance would run roughshod

14 over the complex system of federal classification and discretion, and would negate the federal

15 government's ability-and in some instances its legal obligation-to allow certain individuals to

16 stay in the country despite their lack of full lawful status.

17

b. Interference with the Federal Government's Regulatory Scheme

18

Even where the local law does not explicitly conflict with a provision of federal law but

19 rather attempts to supplement federal irnmigration law, it still violates the Supremacy Clause.

20

Hines v. Davidowitz, supra, illustrates this principle. In Hines, the Supreme Court ruled

21 that where the federal government had passed an alien registration scheme, Pennsylvania could

22 not enforce its own state alien registration law. The Court explained that "where the federal

23 government, in the exercise of its superior authority in this field, has enacted a complete scheme
24
25 4 See, e.g., 8 C.F.R. §274a.12(a)(1l-13), (c)(8-11, 14, 18-20, 22, 24) (listing categories of persons who can receive federal permission to work, and implicitly to stay, in the United States
26 even though they may be violating irnmigration laws). For example, such persons may have pending applications to adjust to a lawful status pursuant to 8 U.S.C. §1255(i). Similarly, many
27 persons released from detention pursuant to legal mandates and restrictions imposed by the Supreme Court, though subject to an order of removal, are permitted to stay and work in the U.S.
28 See Clarkv. Martinez, 543 U.S. 371 (2005); Zadvydas v. Davis, supra, 533 U.S. 678.
14
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 of regulation and has therein provided a standard for the registration of aliens, states cannot, 2 inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the

3 federal law, or enforce additional or auxiliary regulations." Hines, 312 U.S. at 66-67. The Court 4 further noted that the federal system attempted "to steer a middle path," creating a "single 5 integrated and all-embracing system ... in such a way as to protect the personal liberties of law6 abiding aliens through one uniform national registration system, and to leave them free from the

7 possibility afinquisitorial practices and police surveillance" while also obtaining the information

8 sought under the statute. !d. at 73-74 (emphasis added).

9

Congress has created an integrated scheme of federal regulation that includes provisions

10 specifically directed at harboring undocumented immigrants. The immigration law as a whole,

11 and the harboring provisions in particular, strikes a careful balance reflecting the national

12 legislature's view of the national interest. As noted in Kim, 193 F.3d at 574, Congress has

13 amended the statute to alter that balance on numerous occasions.

14

The effect of the Ordinance would be to upset the careful balance struck by Congress by

15 implementing the City's own enforcement mechanism and penalties in place of the federal system 16 and bypass the discretion that system places in federal officials and the procedures in place for 17 determining individuals' status and the applicability of sanctions under the INA's harboring 18 scheme. This seriously undermines the choices made by Congress in creating that system and 19 threatens the ability of the system to work as an integrated and uniform whole. If Escondido can

20 pass its own ordinances in this area, so can every municipality in the country--each setting forth

21 its own mechanisms, penalties, interpretations, and procedures. Courts have routinely struck 22 down such local laws. See Garamendi, 539 U.S. at 423, 427 (California could not "employ[] 'a 23 different, state system of economic pressure'" to address an issue touching on foreign relations, 24 nor "use an iron fist where the [federal government] has consistently chosen kid gloves"); Crosby 25 v. Nat'l Foreign Trade Council, 530 U.S. 363, 379 (2000) (state statute touching on foreign 26 relations not saved by the fact that state and federal statute "share the same goals and ... some

27 companies may comply with both sets of restrictions," because "the inconsistency of sanctions

28 ... undermines the congressional calibration of force"); United States v. Locke, 529 U.S. 89, 115

15

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 (2000) (fact that state requirements were similar to federal not enough to avoid preemption; "[t]he

2 appropriate inquiry still remains whether the purposes and objectives of the federal statutes,

3 including the intent to establish a workable, uniform system, are consistent with concurrent state 4 regulation"); Wisconsin Dep 'f ofIndus. v. Gould, 475 U.S. 282, 286, 288-89 (1986) (state statute

5 touching on area governed by a "complex and interrelated federal scheme of law, remedy and

6 administration" was preempted because "conflict is imminent whenever two separate remedies

7 are brought to bear on the same activity" and "[e]ach additional [state] statute incrementally

8 diminishes the [agency's] control over enforcement of the [federal law] and thus further detracts

9 from the integrated scheme ofregulation created by Congress").

10

Under all three of the DeCanas tests, the Ordinance violates the Supremacy Clause and is,

11 thus invalid.

12

c. The Ordinance Directly Conflicts With California Law, in Violation
of the California Constitution

13

14

The Ordinance also facially violates the California Constitution, Art. XI, §7, which

15 provides that no municipal or local ordinance may contradict a state statute. "A county or city

16 may make and enforce within its limits ... ordinances and regulations not in conflict with general

17 laws.' (Cal. Const., Art. XI, §7, italics added.) Local legislation in conflict with general law is

18 void. Conflicts exist if the ordinance duplicates, contradicts, or enters an area fully occupied by

19 general law, either expressly or by legislative implication." Big Creek Lumber Co. v. County of

20 Santa Cruz, 38 Cal.4th 1139, 1150 (2006) (citations omitted); see also Briseno v. Santa Ana, 6

21 Cal.App.4th 1378, 1382 (1992) (local ordinance relating to occupancy standards preempted by

22 state housing law). The Ordinance's enforcement provisions directly conflict with privacy,

23 landlord-tenant and property laws, violating this constitutional provision.

24

First, a landlord only has 10 business days to "correct the violation." Because a separate

25 violation occurs every day that "harboring" continues, the only way to "correct the violation" is to

26 cause the tenant to vacate the premises or evict them. This requirement directly contravenes

27 California law governing termination of tenancies and the unlawful detainer process. Pursuant to

28 Cal. Civil Code §1945 et seq., there are clear procedural guidelines by which landlords may evict

16
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 their tenants, and severe penalties if a landlord violates those guidelines. Generally, a tenant must

2 be provided sufficient notice, and in many instances cause for a termination oftenancy. Effective

3 January 1, 2007, if a landlord is terminating a tenancy without cause, they must give the tenant

4 either 30 or 60 days' notice, depending on whether the tenant has lived in a unit for less than one

5 year or over one year, respectively. See Cal. Civ. Code §1946.1, as amended effective January I,

6 2007.

7

In the event that following sufficient notice to terminate a tenancy the tenant does not

8 vacate the unit, the landlord may only compel a tenant to vacate by commencing unlawful 9 detainer proceedings against the tenant. People v. Thompson, 43 Cal.App.4th 1265, 1270-71

10 (1996) (summarizing eviction law and rule against self-help evictions). The landlord must

II properly serve the tenant with a 3-day notice to correct the alleged violation prior to commencing

12 eviction proceedings. Code Civ. Proc. §1161. The reasons for which a tenant may be asked to

13 "quit", or vacate the unit, are delineated in the statute; if no opportunity to cure is given, there

14 must be an egregious violation of the lease agreement or implied covenants. Id. Noncompliance

15 with federal immigration law is not one of the reasons listed in the statute.

16

If the landlord is not satisfied with the tenant's "curing" of the violation at the end of the

17 three days, he may then file an unlawful detainer against the tenant. Code Civ. Proc. §1166. The

18 tenant then has five days to answer an unlawful detainer complaint; the statute authorizes a trial

19 20 days or more after the answer. Code Civ. Proc. §§1167.3, 1170.5. Therefore, there will be a

20 minimum of several weeks from the initiation of an eviction to the end of the process. Under this

21 well-settled statutory scheme, even if a landlord acted as quickly as possible, they could not evict

22 a tenant in 10 business days without violating California law. Indeed, Mr. Garrett's experience is

23 that it takes several months to evict a tenant. Garrett Decl. at ~~11-13. "Landlord-tenant

24 relationships are so much affected by statutory timetables governing the parties' respective rights

25 and obligations that a 'patterned approach' by the Legislature appears clear," and any municipal

26 law that conflicts with or invades the exclusive province of applicable statutes is preempted. Tri

27 County Apartment Assn. v. City ofMountain View, 196 Cal.App.3d 1283, 1296 (1987). Thus, the

28 Ordinance conflicts with state law by ignoring the procedural requirements for notice and the 17
POINTS AND AUTHORITIES IN SUPPORT OF APPLICAnON FOR TRO

1 time required to terminate a valid tenancy.

2

Second, the Ordinance is directly in conflict with California law on the property rights of

3 noncitizens. Art. I, §20 of the California Constitution provides, ''Noncitizens have the same

4 property rights as citizens." Accordingly, Civil Code §671 provides "Any person, whether citizen

5 or alien, may take, hold, and dispose of property, real or personal, within this State." California

6 continues to uphold these principles. See, e.g., Wong v. Tenneco, Inc., 39 Cal.3d 126, 136 (1985).

7

An interest in a lease is considered personal property. See, e.g., Jeffers v. Easton Eldrdige

8 & Co., 113 Cal. 345, 352 (1896); Kreling v. Walsh, 77 Cal.App.2d 821, 832 (1947). See also

9 Civil Code §765 ("estates for ,years are chattels real; and estates at will are chattel

10 interests"). Therefore, under "California law an estate for years is ... a chattel real - a form of

11 personalty - even though the substance of the estate, being land, is real property." Pacific

12 Southwest Realty Co. v. County ofLos Angeles, 1 Cal.4th 155, 162 (1991). As leasehold interests

13 are property rights covered by Art. I, §20 and Civil Code §671, the City may not enact or enforce

14 any ordinance which deprives non-citizens of those rights. The Ordinance therefore conflicts

15 with state law and violates Art. XI, §7.

16

Since it is impossible to comply with the provisions of the Ordinance and California law,

17 the Ordinance violates the Cal. Const., Art. XI, §7.

18

D. The Ordinance Violates the Contracts Clause of the United States

and California Constitutions

19

20

The Ordinance also violates Art. I, §1O, cl. 1 of the U.S. Constitution and Art. I, §9 of the

21 California Constitution (the "Contracts Clause"). The Contracts Clause is violated when the law

22 (1) substantially impairs a pre-existing contractual relationship, (2) does not have a significant

23 and legitimate public purpose, and (3) is not appropriately tailored for its purpose. Energy

24 Reserves Group, Inc. v. Kan. Power & Light Co., 459 U.S. 400, 411-12 (1983). As shown below,

25 the Ordinance violates the Contract Clause.

26

As to the first prong, the Ordinance substantially impairs Mr. Garrett's pre-existing lease

27 agreements. Mr. Garrett has monthly and yearly lease agreements with his tenants. Under these

28 agreements, Mr. Garrett is entitled to collect rent on a monthly basis and, in the event he desires

18
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 to tenninate the lease, to provide 30 days' written notice in advance of the tennination date.

2 Garrett Decl., Exs. 1 and 2. The lease agreements do not contain any terms that permit

3 Mr. Garrett to evict his tenants based upon "harboring of illegal aliens" or the fact that a tenant is

4 an "illegal alien." Thus, the Ordinance affects an existing contractual relationship.

5

The Ordinance substantially impairs this relationship because it contravenes the

6 contracting parties' reasonable expectations, and concerns a topic that has not been previously

7 regulated. In Ross v. City ofBerkeley, 655 F.Supp. 820, 828 (N.D. Cal. 1987), plaintiffs' lease

8 agreements expired after a five year term and required the lessees to surrender possession of the

9 property. Berkeley adopted an ordinance limiting the plaintiffs' ability to evict or refuse to renew

10 existing commercial leases, thereby creating a potentially indefinite lease term. Id. at 823-4. The

11 Court held Berkeley's ordinance substantially impaired the plaintiffs lease agreement because

12 the parties only agreed to fixed five year terms, not to potentially endless tenancies (id. at 828-9),

13 and there were no prior legislative efforts by Berkeley to regulate the nullification of an owner's

14 right to recover possession of property at the end ofa lease. Id. at 831-2.

15

The Ordinance substantially impairs the Garretts' lease agreements because it nullifies

16 Mr. Garrett's duty to provide his tenants with 30 days' written notice in advance of the

17 termination date, it limits his tenants' ability to maintain possession of the property since they can

18 now be evicted for being an "illegal alien", and nullifies the Garretts' right to receive rent on

19 properties if he violates the Ordinance. Neither Escondido nor California have a prior history of

20 regulating the rental of dwelling units to illegal aliens, since the regulation of immigration

21 belongs to the federal government. Hence, the Ordinance substantially impairs Mr. Garrett's

22 lease agreements and all other pre-existing lease agreements in Escondido.

23

As to the second prong, the City does not "have a significant and legitimate purpose

24 behind the regulation." Energy Reserves, 459 U.S. at 411-12 (quoting Allied Structural Steel Co.

25 v. Spannaus, 438 U.S. 234, 244 (1978». A local government cannot use its power to remedy a

26 problem that is "unquestionably exclusively a federal power." DeCanas, 424 U.S. at 354. The

27 Ordinance expressly attempts to regulate immigration, a power constitutionally reserved to the

28 federal government. See Section I1LB., supra. The Ordinance Findings at §§3-4 cannot be a

19
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 legitimate purpose, because the City does not have the power to remedy this issue. The City

2 seeks to establish a system of laws and enforcement that controls which aliens may not rent

3 within the City's borders, a central theme of immigration regulation. Plyer v. Doe, 457 U.S. 202,

4 225 (1982). While the City may believe the federal government lacks the resources to address

5 this question, it is not authorized to step into the federal government's shoes to remedy this issue.

6

As to the final prong, the means chosen to carry out a local government's stated ends is

7 not reasonable and appropriate. Energy Reserves, 459 U.S. at 412. While laws affecting private

8 parties are afforded legislative deference, there must not be a "studied indifference" to the

9 interests of the parties. East New York Sav. Bank v. Hahn, 326 U.S. 230, 234-5 (1945) (quoting

10 WB. Worthern Co. v. Kavanaugh, 295 U.S. 56 (1935)). The City's record demonstrates such

11 "studied indifference." The City supports its Ordinance with statements from the Study

12 describing that overcrowding leads to a number of health and safety hazards and those living in 13 overcrowded units are less likely to complain about such conditions. Calderon Decl., Ex. 5, at

14 17-18. Nowhere in the record does the City provide evidence linking illegal aliens to a) 15 overcrowded living conditions, or b) their reporting behavior. In fact, the City does not even

16 estimate how many illegal aliens live within the City's borders. Despite the complete lack of 17 evidentiary support, the City desires to eliminate an entire category of City inhabitants.

18

"[AJ state is not free to impose a drastic impairment when an evident and more moderate

19 course would serve its purposes equally well." United States Trust Co. v. New Jersey, 431 U.S. 1

20 (1977). More moderate alternatives to improve living conditions within the City were clearly 21 available, such as increasing fines for housing code violations, improving enforcement of housing

22 codes, or attempting to curb rising rents. But the City chose none of them. Instead, the City 23 seeks to remove all "illegal aliens" without any support connecting "illegal aliens" to the City's

24 problems. This is not a reasonable and appropriate means to the City's stated end. The 25 Ordinance thus violates the Contracts Clause ofthe United States and California Constitutions.

26

E. The Ordinance Also Violates the First Amendment and Art. I, §2(a) of the

California Constitution

27

28

The Ordinance regulates speech by compelling what landlords must learn from tenants

20

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 and requiring landlords, as a condition of continuing to do business in Escondido, to provide upon

2 demand from the City whatever information City officials deem appropriate, no matter how that

3 information was obtained or what protection that information has under federal and state law.

4 Assuming without conceding the speech in question is "commercial speech", to regulate such

5 speech, "First, the government must assert a substantial interest in support of its regulation;

6 second, the government must demonstrate that the restriction on commercial speech directly and

7 materially advances that interest; and third, the regulation must be 'narrowly drawn. '" Florida

8 Bar v. Went For It, Inc., 515 U.S. 618,624 (1995).

9

A restriction on speech cannot stand when its purported justification is "not actually

10 served very well by the specific governmental action at issue; where, in other words, the fit

11 between means and ends is loose or nonexistent." Ridley v. Massachusetts Bay Transp.

12 Authority, 390 F.3d 65, 87 (1st Cir. 2004). By focusing on landlords and basing its "harboring"

13 decision on a lack of verified information, the Ordinance "provides only ineffective or remote

14 support for the government's [stated] purpose." Valley Broadcasting Co. v. United States, 107

15 F.3d 1328, 1334 (9th Cir. 1997). The Ordinance facially violates the First Amendment because it

16 fails to directly and materially advance the interest it purports to protect. City ofLittleton v. ZJ.

17 Gifts D-4, L.L.c., 541 U.S. 774, 776, 781 (2004).

18

In ARP Pharmacy Services, Inc. v. Gallagher Bassett Services, Inc., 138 Cal.App.4th

19 1307 (2006), the California Court of Appeal held that where a statute requires the compelled

20 transmission of specific content, the regulation must meet strict scrutiny required by Art. I, §2(a)

21 of the California Constitution. The Court of Appeal struck down a statute that required

22 businesses provide certain statistical information to third parties for failure to demonstrate a

23 compelling state interest and to use the least speech-restrictive alternative to reach that its goal.

24 Here, §16E-l(c) compels landlords to speak and provide specific content regarding tenants or

25 other occupants of their properties. This is not the least restrictive alternative available. Thus, the

26 Ordinance violates federal and state protections of free speech.

27

F. The Ordinance Facially Deprives Plaintiffs of Due Process

28

The Due Process Clause mandates that "no person shall be deprived of life, liberty, or

21

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 property without due process oflaw." U.S. Const. Amend. XIV. The Ordinance violates the Due

2 Process Clause on its face because it fails to provide either landlords or tenants with any notice or

3 opportunity to be heard before depriving them of fundamental liberty and property rights. A

4 "procedural due process claim hinges on proof of two elements: (1) a protectible liberty or

5 property interest ...; and (2) a denial of adequate procedural protections." Thornton v. City ofSt. 6 Helens, 425 F.3d 1158, 1164 (9th Cir. 2005). Both elements are present here.

7

Both landlords and tenants have a "property interest" in their homes and apartments

8 because there is a fundamental right to occupy and use real or personal property under federal and

9 state law. "There never has been doubt that the government must provide due process before it

10 deprives a person of real or personal property." E. Chemerinsky, Constitutional Law: Principles

11 and Policies, 536 (2002). The "right to maintain control over [one's] home, and to be free from

12 governmental interference, is a private interest of historic and continuing importance." U. S. v.

13 James Daniel Good Real Prop., 510 U.S. 43, 53-54 (1993). See also Cal. Const., Art. I, §20

14 ("non-citizens have the same property rights as citizens"); Civil Code § 671 ("Any person,

15 whether citizen or alien, may take, hold, and dispose of property, real or personal, within this

16 State. ") A "landlord undoubtedly has a property interest in collecting rent under the lease with

17 the tenant, and in avoiding the ... fines imposed by the ordinance. Additionally, because the

18 ordinance compels the landlord to undertake eviction proceedings, the costs associated with such

19 litigation directly impact the landlord financially. In short, principles of due process apply

20 because the ordinance affects substantial property interests." Cook v. City of Buena Park, 126

21 Cal.App.4th 1, 6 (2005). The Supreme Court has also held that procedural due process must

22 attend governmental deprivations of both a landlord's rental income and a tenant's continued

23 residence in the rental property. Greene v. Lindsey, 456 U.S. 444, 450-51 (1982).

24

The Ordinance violates the basic due process right to notice and opportunity to be heard

25 before deprivation of liberty or property. At best, landlords may avail themselves of the post-

26 suspension appeal procedures contained in EMC §16-221 et seq., which requires no decision until

27 60 days after the appeal has been filed (Id. §16-224) and requires no decision on subsequent

28 appeal to the City Council for another 60 days. Id. §16-225. Therefore, without prior notice or 22
POINTS AND AUTHORITiES IN SUPPORT OF APPLICATION FOR TRO

1 opportunity to be heard, landlords are exposed to the loss of their entire business income for

2 extended periods of time. And the Ordinance provides tenants with no opportunity to challenge

3 their designation as "illegal aliens".

4

The question of what process is due depends on balancing three factors: (1) "the private

5 interest that will be affected by the official action"; (2) "the risk of an erroneous deprivation of

6 such interest through the procedures used, and the probable value, if any, of additional or

7 substitute procedural safeguards"; and (3) "the Government's interest, including the fimction

8 involved and the fiscal and administrative burdens that the additional or substitute procedural

9 requirement would entail." Mathews v. Eldridge, 424 U.S. 319, 334-35 (1976). However, the

10 Ordinance suffers a fatal flaw that does not depend on intricate Mathews balancing, because it

11 fails to provide any notice and opportunity to be heard before deprivation of liberty or property.

12

The Due Process Clause invariably requires that "deprivation of life, liberty or property by

13 adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the

14 case." Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950) (emphasis

15 added); see also Mathews, 424 U.S. at 333 (The "right to be heard before being condemned to

16 suffer grievous loss of any kind, even though it may not involve the stigma and hardships of a

17 criminal conviction, is a principle basic to our society"). Except in "extraordinary situations," a

18 person is entitled to notice and hearing before any deprivation of liberty or property. James

19 Daniel Good Real Prop., 510 U.S. at 53; Fuentes v. Shevin, 407 U.S. 67, 82 (1972) (absent

20 "extraordinary circumstances," deprivation must be preceded by notice and hearing).

21

No such extraordinary circumstances exist in this case. Because the Ordinance fails to

22 provide even the most rudimentary due process before depriving Plaintiffs of fimdamental rights

23 in housing - rights essential to basic living - it is unnecessary to engage in Mathews balancing to

24 determine how extensive the necessary process must be, because the Ordinance plainly fails even

25 the most minimal standards. The Ordinance thus violates the Due Process Clause.

26

In similar circumstances, the California Court of Appeal has struck down a municipal

27 ordinance "obliging landlords to undertake eviction proceedings against 'all occupants' of a rental

28 unit when the chief of police suspects a tenant has engaged in or permitted illegal drug activity,

23
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 gang-related cnme, or a drug-related nuisance in or near the rental property." Cook, 126

2 Cal.App.4th at 3. The court found the ordinance violated due process because it placed landlords

3 in an impossible position. First, "the notice provided ... is insufficient to assure a reasonable

4 chance of success in the unlawful detainer action, thus exposing the landlord to unwarranted

5 litigation costs, as well as the possibility of a tenant countersuit for forcible entry if the landlord

6 has attempted to take possession, or malicious prosecution or abuse of process if the owner lacked

7 probable cause to bring the action." Id. at 8. Second, it improperly imposed an "onerous

8 requirement that the landlord institute the unlawful detainer action within just 10 days of

9 receiving notice." Id. at 9. Third, "the ordinance violates due process because it requires the

10 landlord to prevail in the unlawful detainer action" or face civil and criminal penalties. Id.

II

The Ordinance in this case suffers from the same flaws. It exposes landlords to liability

12 for unlawful eviction or counterclaims by requiring eviction on a ground not authorized by Code

13 Civ. Proc. §1161, which specifies the grounds for "unlawful detainer" and does not include being

14 an alleged "illegal alien." It improperly requires initiation of legal proceedings within 10 days.

15 And it unconstitutionally requires landlords to "correct the violation" by prevailing in unlawful

16 detainer proceedings, on pain of civil and criminal penalties, when landlords can have no control

17 over the outcome of such litigation. The Ordinance thus violates due process.

18

G. No Bond Should Be Required

19

In Swanson v. University ofHawaii Professional Assembly, 269 F.Supp.2d 1252, 1261 (D.

20 Haw. 2003), the District Court held: "Plaintiff argues that a minimal bond be imposed because

21 Plaintiff is seeking enforcement of constitutional rights pursuant to 42 U.S.C. §1983. The Ninth

22 Circuit does permit a waiver of the bond requirement, or a nominal bond, when requiring a

23 security would effectively deny access to judicial review. See People ofCalif. v. The Tahoe Reg'l 24 Planning Agency, 766 F.2d 1319,1325 (9th Cir.1985). The Court waives the bond requirement in

25 this matter." Even in Lozano the Court only required a $200 bond. There should be no or only a

26 nominal bond, since there is no cost to Escondido if enforcement of the Ordinance is deferred.

27 / / /

28 11/ 24
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1

IV. CONCLUSION

2

Plaintiffs respectfully request that the Court issue a temporary restraining order

3 prohibiting enforcement ofthe Ordinance pending a preliminary injunction hearing.

4 DATED: November7,2006

Respectfully submitted,

5

ROS~'LLP

6 7

BY:~ ~A~L::CA~N~M~.MAN:77"~SF""IE""L"-;D~-

alan@rosnerandmansfield.com

8

Hallen D. Rosner, Esq.

hal@rosnerandmansfield.com

9

Virginia Y. Calderon, Esq.

Virginia@rosnerandmansfield.com

10

Cecilia Brennan, Esq.

Cecilia@rosnerandmansfield.com

11 10085 Carroll Canyon, First Floor

12

San Diego, CA 92131

Tel.: (858) 348-1005

13

Fax: (858) 348-1150

14

David Blair-Loy, Esq.

ACLU FOUNDATION OF SAN DIEGO &

15

IMPERIAL COUNTIES

P. O. Box 87131

16

San Diego, CA 92138-7131

Tel.: (619) 232-2121

17

Fax: (619) 232-0036

18

Cynthia Valenzuela, Esq.

cvalenzuela@MALDEF.org

19

MEXICAN-AMERlCAN LEGAL

DEFENSE &

20

EDUCATIONAL FUND (MALDEF)

634 S. Spring Street, 11th Floor

21

Los Angeles, CA 90014

Tel: (213) 629-2512

22

Fax: (213) 629-0266

23

Omar C. Jadwat, Esq.

ojadwat@aclu.org

24

Lee Gelernt, Esq.

AMERlCAN CIVIL LIBERTIES UNION

25

FOUNDATION

Immigrants' Rights Project

26

125 Broad St., 18th Fl.

New York, NY 10004

27

Tel.: (212) 549-2620

Fax: (212) 549-2654

28

25

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1

Jennifer C. Chang, Esq. (SBN 233033)

jchang@aclu.org

2

(Application for Admission Pending)

Lucas Guttentag, Esq. (SBN 90208)

3

AMERICAN CIVIL LIBERTIES UNION

FOUNDATION

4

Immigrants' Rights Project

39 Drumm Street

5

San Francisco, CA 94111

Tel.: (415) 343-0774

6

Fax: (415) 395-0950

7

David Kline, Esq. (SBN 241636)

david@fhcsd.com

8

THE FAIR HOUSING COUNCIL OF SAN

DIEGO

9

625 Broadway, Suite 1114

San Diego, CA 92101

lO

Tel: (619) 699-5888, Ext. 212 Fax: (619) 699-5885

11 Philip Tencer, Esq. (SBN 173818)

12

tencemc@cooley.com

Michael Levinson, Esq. (SBN lO4155)

13

levinsonms@cooley.com

COOLEY GODWARD KRONISH LLP

14

4401 Eastgate Mall

San Diego, CA 92121-1909

15

Tel: (858) 550-6035

Fax: (858) 550-6420

16 Elliot Mincberg, Esq.

17

emincberg@pfaw.org

PEOPLE FOR THE AMERICAN WAY

18

2000 M Street N.W., Suite 400

Washington, D.C. 20036

19

Tel: (202) 467-2392

Fax: (202) 293-2672

20 Christopher Brancart, Esq. (SBN 128475)

21

cbrancart@brancart.com

Elizabeth Brancart, Esq. (SBN 122092)

22

ebrancart@brancart.com

BRANCART & BRANCART

23

P. O. Box 686

Pescadero, CA 94060

24

Tel: (650) 879-0141

Fax: (650) 879-1103

25 Counsel for Plaintiffs

26

27

28 26
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453)
ROSNER & MANSFIELD, LLP 3 10085 Carroll Canyon Rd., 151 Floor
San Diego, CA 92131 4 Tel: (858) 348-1005
Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804)
10 MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)
11 634 S. Spring Street, 11'h Floor Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266
13 Counsel for Plaintiffs
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAR (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

DECLARATION OF ALAN M.

19 JANE DOE 2,

MANSFIELD IN SUPPORT OF PLAINTIFFS' APPLICATION FOR

20

Plaintiffs,

TEMPORARY RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

Date: To Be Set Time: To Be Set Courtroom: The Honorable John A. Houston

23

Defendant.

24 25 I, ALAN M. MANSFIELD, declare as follows:

26

1. I am attorney licensed to practice before this Court and counsel of record for plaintiffs

27 in this action. I have personal knowledge ofthe facts as stated herein.

28 1
DECLARATION OF ALAN M. MANSFIELD IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1

2. On October 28, 2006, counsel in this action set a letter to the City asking that they

2 agree to suspend enforcement of the Ordinance pending this action, or at a minimum pending

3 resolution of a preliminary injunction motion. A true and correct copy of this letter is attached

4 hereto as Ex. 1.

5

3. Since November 1, 2006 I have had several conversations with the City Attorney and

6 counsel to discuss the issues raised by this Application. The City to this point has not agreed to

7 suspend operation of the Ordinance. Thus, this Application is required.

8

The undersigned swears that the matters set forth in the foregoing declaration are true and

9 correct according to the best of my personal knowledge, subject to the penalties of making a false

10 declaration.

11

""~"'''' ~- "'" 75 <fuy ofNo"='=,( : 0

,,,,, C,J;fomi,_

12

\.. S&:~~£LD

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2
DECLARATION OF ROY GARRETT IN SUPPORT OF APPLlCATION FOR TRO

06 CV 2434 JAH (NLS)

E HIBIT 1

i&rAAiJJI AMERICAN CIVIL LIBERTIES UNION
Immigrants' Rights Project
AMERICM' CIVIL LIBERTIES UNION SAN OIEGO & IMPERIAL COUNTIES
~MALDEF
A PEOPLE '~r.FORTH'
.,\AMERICAN ,. " WAY
ROSNER. &
MANSARD, LLP

October 27,2006
Jeffrey Epp, City Attorney City of Escondido Escondido City Hall 201 Nmih Broadway Escondido, CA 92025-2798
Re: Adoption of Escondido Ordinance 2006-38R
Dear Mr. Epp:
Despite strong opposition from numerous members of the community, on October 18,2006, the City of Escondido adopted Ordinance No. 2006-38 R (the "Ordinance"). The Ordinance seeks to ban renting an apartment to, or otherwise "harboring" any person "not lawfully present" in the United States. The Ordinance was apparently patterned after portions of a similar law adopted by Hazelton, Pennsylvania, which is being challenged in a federal lawsuit on several constitutional grounds. In addition, ACLU Immigrants' Rights Project, MALDEF, and other groups have obtained a temporary restraining order against a similar law passed in Valley Park, Missouri.
As we advised the City, in writing and in person, before the Ordinance was approved, the Ordinance is riddled with constitutional flaws and statutmy violations. This letter briefly describes some of those issues, without waiving the right to raise any other issues in subsequent legal action.
I. Federal Preemption: Federal immigration law directly addresses the so-called "harboring" of undocumented persons. 8 U.S.c. § 1324(a). Therefore, federal law exclusively occupies this field and preempts the Ordinance or any similar state or local law. The Ordinance also conflicts with and frustrates federal immigration law and policy and the Constitution's reservation of immigration regulation authority to the federal government. As a result, the Ordinance is unconstitutional under the Supremacy Clause of the United States Constitution. U.S. Canst., Art. VI, § 2.
2. Due Process: The Ordinance violates state and federal due process rights by failing to provide any procedure to contest a tenant's designation as an "illegal alien" prior to imposition of sanctions. Even if the city canlawfully require landlords to produce unspecified "identity data" on their tenants, and even if the federal government is able to respond to the city's request for verification of status (neither of which is evident), the Ordinance requires a landlord to "correct" an alleged violation, presumably by evicting the tenant, within 10 business days of receiving notice from the city, without providing any means to contest that the tenant is not lawfully present in the United States.

City Attorney, City of Escondido Page Two
3. State and Federal Anti-Discrimination and Fair Housing Laws: Because the people most likely to lose their housing as a result of the Ordinance are Latinos, the Ordinance will have a disproportionate adverse impact on Latinos and will tend to have a segregative effect on the City of Escondido in violation of multiple state and federal laws, including but not necessarily limited to state and federal fair housing laws, e.g., 42 U.S.c. §§ 1981,3604 et seq.; Civil Code §§ 51,52; Government Code § 12955 et seq.
4. State Law Preemption: Under the Ordinance, if a "violation" is identified by Escondido officials, landlords are given only 10 business days to "con'ect the violation," presumably by evicting the tenant who is allegedly not lawfully present in the United States, even if the tenant has fully paid rent and/or is subject to a lease agreement, and even if there are members of the family living in the dwelling unit who are citizens or lawful residents with a fully vested right to remain there. The Ordinance directly contradicts the procednral rights set fOlth in Civil Code § 1940 et seq. and Code Civ. Proc. § 1159 et seq., and imposes a new basis for connnencing eviction proceedings not authorized by state law. The Ordinance therefore conflicts with landlord-tenant laws that contain strict standards for evictions and procedural requirements for unlawful detainer actions, in violation ofArt. XI, § 7 of the California Constitution.
5. Abuse of Police Power and Equal Protection: The Ordinance constitutes invidious discrimination and an improper use of the City's police power prohibiting conduct based on alienage and national origin and violates the equal protection rights of Escondido residents by imposing on them the unique bnrden of having to produce proof of resident status as a condition precedent to obtaining or retaining housing, and by subjecting them to a punitive statutory scheme that contemplates using race and national origin as factors in its administration.
6. Impainnent of Contracts: To the extent the Ordinance would result in substantial impairn1ent of contracts in existence before its adoption, as it is designed to do by inducing landlords to evict tenants who entered into leases in good faith, it impairs the contractual rights and obligations of both landlords and tenants in violation of the Contracts Clause ofthe United States Constitution. U.S. Const. Art. I, § 10, cl. 1.
We have been asked by several individuals to pnrsue legal action against the City of Escondido asking for a declaration that the Ordinance is unconstitutional and unlawful, an injunction against its enforcement, statutOlY damages, litigation costs, and attorney fees. However, before we do so, we are asking the City to repeal the Ordinance, to avoid the necessity and costs of obtaining similar relief from a court, which would ultimately be bome by the City. Iflitigation is inevitable, we ask the City to stipulate to staying enforcement of the Ordinance pending a preliminmy injunction hearing so as to avoid the need to obtain a TemporalY Restraining Order.

City Attorney, City of Escondido Page Three

We request that this demand be placed on the City Council's calendar at the earliest possible opportunity, for discussion in open and/or closed session as appropriate. We are prepared to paJticipate in good faith discussion of this issue. However, if the City fails or refuses to repeal the Ordinance, or to make a binding commitment to do so at the earliest possible opportunity, please be advised we will have no choice but to initiate legal proceedings to block the enforcement of the Ordinance and have it declared unconstitutional and unlawful.

Sincerely Yours,

American Civil Liberties Union Foundation of San Diego & Imperial Counties
s!David Blair-Loy

ACLU Foundation Immigrants' Rights Project
s/Omar Jadwat s/Jenny Chang

Cooley Godward Kronish LLP slAnthony M. Stiegler s/Michael Levinson s/Phil Tencer

Fair Housing Council of San Diego s/David A. Kline

Mexican American Legal Defense and Education Fund
s/Cynthia Valenzuela

People for the American Way s/Elliot Mincberg

Rosner & Mansfield LLP s!Hallen D. Rosner slAlan M. Mansfield sNirginia Y. Calderon s/Cecilia Brennan

I Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)

2

Virginia Y. Calderon, Esq. (SBN 171453) ROSNER & MANSFIELD, LLP

3 10085 Carroll Canyon Rd., 1st Floor San Diego, CA 92131

4 Tel: (858) 348-1005 Fax: (858) 348-1150

5 David Blair-Loy, Esq. (SBN 229235) 6 ACLU FOUNDATION OF SAN DIEGO &
IMPERIAL COUNTIES 7 P. O. Box 87131
San Diego, CA 92138-7131 8 Tel.: (619) 232-2121
Fax: (619) 232-0036

9 Cynthia Valenzuela, Esq. (SBN 186804)

10 MEXICAN-AMERICAN LEGAL DEFENSE &

11

6E3D4USC. ASpTrIiOngNSAtrLeeFtU, lNlDul

(MALDEF) Floor

Los Angeles, CA 90014

12 Tel: (213) 629-2512 Fax: (213) 629-0266

13 Counsel for Plaintiffs

14

IS

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAH (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE I;

DECLARATION OF CONSUELO

19 JANE DOE 2,

MARTINEZ IN SUPPORT OF PLAINTIFFS' APPLICATION FOR

20

Plaintiffs,

TEMPORARY RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

23

Defendant.

24

25

26

I, CONSUELO MARTINEZ, declare:

27

1. I am the Coordinator of the Escondido Human Rights Committee ("EHRC"). I have

28

personal knowledge ofthe following and if called upon to testify, I could and would

1
DECLARATION OF CONSUELO MARTINEZ IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

I

competently testifY to the following facts stated herein.

2

2. The EHRC is a grassroots, not for profit, organization with limited resources. Recently,

3

there have been numerous calls to our organization regarding the Escondido Ordinance

4 relating to renting to undocumented persons in Escondido.

5
3. The EHRC has received numerous calls from both renters and landlords asking for 6

7

clarification of the ordinance. These calls have been diverting our limited resources from

8

our usual tasks in order to listen to their concerns and try to help direct them to

9

appropriate agencies.

10

4. Three calls in particular stand out in my memory. In one case, a female caller indicated

11

that her landlord and/or apartment manager had told her he would be raising the rent on

12 her apartment because the City of Escondido had approved the Ordinance. She is
13
undocumented and the landlord/apartment manager knew it. 14

15

5. In the second case, a young man was asked by private security personnel from an

16

apartment complex to provide proof of his immigration status and to have his vehicle

17

inspected because he was illegally parked in the complex parking lot.

18

6. The third case involves a female who had purchased pots and pans from a door-to-door

19

salesperson. When the salesperson returned for payment, the customer tried to return the

20 pots and pans because of the poor quality and refused to make payments. The salesperson
21
told the customer that if she did not make payments as previously agreed, the salesperson
22

23

was prepared to file a citizen's complaint on November 18,2006, alleging that the

24

customer was an undocumented person. The customer is in fact undocumented.

25

III

26

III

27 III
28 2

POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

I

7. EHRC continues to receive calls on a daily basis. I may need to supplement my

2

declaration in the future to add any additional incidents that may be relevant.

3

I declare under penalty of peIjury under the laws of the United States that the foregoing is

r 4 true and correct. Executed this

day of November, 2006 at Escondido, California.

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21 22 23 24
25
26
27 28
3
POINTS AND AUTHORITIES IN SUPPORT OF APPLICATION FOR TRO

1 Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453) ROSNER & MANSFIELD, LLP
3 10085 Carroll Canyon Rd., 1sl Floor San Diego, CA 92131
4 Tel: (858) 348-1005 Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036

9 Cynthia Valenzuela, Esq. (SBN 186804) 10 MEXICAN-AMERICAN LEGAL DEFENSE &
EDUCATIONAL FUND (MALDEF) 11 634 S. Spring Street, II'h Floor
Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266

13 Counsel for Plaintiffs
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAR (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

DECLARATION OF ERICA JIMENEZ IN

19 JANE DOE 2,

SUPPORT OF PLAINTIFFS' APPLICATION FOR TEMPORARY

20

Plaintiffs,

RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

Date: To Be Set
Time: To Be Set Courtroom: The Honorable John A. Houston

23

Defendant.

24

25

26

27

28 1
DECLARATION OF ERICA JIMENEZ IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1

DECLARATION OF ERICA JIMENEZ

2

I, Erica Jimenez, declare as follows.

3

I. I am employed as the Outreach and Education Specialist for The Fair Housing

4 CounciI ofSan Diego (FHCSD), located at 625 Broadway, Suite 1114, San Diego, CA 92101.

5

2. Most ofmy work is conducted from FHCSD's North San Diego County office at

6 4700 North River Rd., Suite A, Oceanside, CA 92057.

7

3. FHCSD is a private non-profit organization dedicated to ending unlawful housing

8 discrimination affecting the San Diego regional housing market on the basis ofrace, color,

9 religion, national origin, gender, disability, and fumilial statuS in addition to protected classes

10 under California law such as age, ancestry, marital status, sexual orientation, and source of

11 income.

12

4. FHCSD's services consist oftechuical assistance and training for housing industry

13 professionals, outreach and education, maintenance of a housing discrimination hotline,

14 conciliation of meritorious complaints ofhousing discrimination, and enforcement offilir housing

15 rights through referrals to administrative agencies such as California's Department ofFair

16 Employment and Housing and the United States Department ofHousing and Urban Development,

17 or to private attorneys.

18

5. Most ofthe funding for FHCSD's programs comes from Community Development

19 Block Grant monies received through contracts with the City ofSan Diego, the City of

20 Oceanside, the City ofNational City, and the City of Chula Vista. FHCSD currently receives no

21 funding for services in the City ofEscondido.

22

6. In response to the Escondido City Council's consideration of an ordinance that

23 would prohibit renting housing to undocumented immigrants, I spent additional effort outreaching

24 to and educating residents ofthe City ofEscondido about their mir housing rights. This effort

25 included passing out flyers to residents ofthe City ofEscondido as well as conducting interviews

26 for Spanish language media.

27

7. Once I began this additional outreach and education effurt in the City of

28 Escondido, I noticed an immediate increase in the number ofphone calls to the housing

I discrimination hotline. In October of2006, the hotline received 87 calls regarding the Escondido

2 ordinance. Ofthose callers, 62 said that they were residents ofthe City ofEscondido. The other

3 callers were from the City ofVista, the City ofSan Marcos, the City ofOceanside, the City of

4 San Diego, and the City ofNational City.

5

8. Most ofthe callers to the discrimination hotline in October of2006 expressed fear

6 that they would lose their housing as a result ofthis ordinance. At least nine callers indicated that

7 their owners, landlords, or property managers have recently requested documentation oftheir

8 residency status or have indicated an intention to request such documentation in the near future.

9

I declare under penalty ofperjury that the foregoing is true and correct under the laws of

10 the State of California and the United States ofAmerica.

11

Executed on November ~ 2006, at Oceanside,

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 2

Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998) 2 Virginia Y. Calderon, Esq. (SBN 171453) ROSNER & MANSFIELD, LLP 3 10085 Can'oll Canyon Rd., I" Floor San Diego, CA 92131 4 Tel: (858) 348-1005 Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATrON OF SAN DIEGO & IMPERIAL COUNTIES
7 P.O.Box87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804)
10 MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATION FUND (MALDEF)
II 634 S. Spring Street, II th Floor Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266
13 Counsel for Plaintiffs
14 [Additional Counsel Appear on Signature Pagel

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAH (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

DECLARATION OF

JANE DOE 2, 19

DOE 1) IN SUPPOR MOTION FOR TEMPORARY

20

Plaintiffs,

RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

Date: To Be Set Time: To Be Set Courtroom: The Honorable John A. HoustOl

23

Defendant.

24

25

26

Plaintiff, _ _, known herein as Jane Doe 1, hereby states as follows, based on

27 personal knowledge: 28

06 CY 2434 JAH (NLS)

1

1. I was born in Mexico, and I am a citizen of Mexico.

2

2. I came to the United States in 1994 on a visa. I have lived in the United States

3 since that time. My visa has since expired. I am cUITently undocumented.
4 3. I rent an apartment and live in that apat1ment in Escondido, California. I have
5 lived in that apartment under a month to month lease for several years. My lease does not contain
6 any reference to citizenship or immigration status and does not allow my landlord to evict me
7
8 based on my citizenship or immigration status.

9

4. I have minor children who live with me and go to school in Escondido. My

10 children were all born here and are United States citizens.

11

5. I am aware of an ordinance passed by the City Council of Escondido which makes

12 it unlawful for landlords to rent apartments in Escondido to undocumented immigrants, or to
13 continue to allow such persons to live in such apartments. I am afraid that my children and I will
14

soon be evicted from our home because of this ordinance. If we are evicted, I am afraid I will be 15

16 unable to get a new apal1ment in Escondido because of the ordinance, and also because it is hard

17 to obtain housing for families with children. To be evicted would be very hard on me and my

18 family.

19

6. I make this declaration anonymously because I am afraid of retaliation. I am

20
aware that people who live in Escondido have expressed great hostility toward undocumented 21
persons living in Escondido. I am extremely afi'aid that if my name, address, or any other
22

23 infonnation about me becomes public, then my children and I will be evicted fi'om our home in

24 retaliation for me standing up for my constitutional lights. I am also afi'aid that I will be reported

25 to the federal government and deported, and my children will be taken away from their home.
26

27
28
2
06 CV 2434 JAH (NLS)

*

1

2.

I declare under penalty ofpeljury that the foregoing is true and correct.

3 4 DATEP: November 6, 2006

Executed at Eacondido, California

5

6

7

8

CERTIFICATION OF TRANSLATION

9

I, Livia Rojas, hereby state the following, on personal knowledge:

10 L 1 BIll over the age ofl8 and competent to testify.

11 2. I am fluent in both English and Spanish. I translated the foregoing declaration
12

from English to Spanish for
13

(Jalle Doe 1), who indicated to me that she fully

14 understpod said declaration.

15

I declare under penalty of perjury the foregoing is true and correct. E:gecuted Nove~ber

16 6, 2006 at Escondido, California. 17

18

19

20

21

22

23

24

25

26

27

28
3
06 cv 2434 JAR (Nl.S)

1 Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453)
ROSNER & MANSFIELD, LLP 3 10085 Carroll Canyon Rd., 1st Floor
San Diego, CA 92131 4 Tel: (858) 348-1005
Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804) 10 MEXICAN-AMERICAN LEGAL DEFENSE &
EDUCATIONAL FUND (MALDEF) 11 634 S. Spring Street, 11 th Floor
Los Angeles, CA 90014 12 Tel: (213) 629-2512
Fax: (213) 629-0266
13 Counsel for Plaintiffs
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAR (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

DECLARATION OF JANE DOE 2 IN

19 JANE DOE 2,

SUPPORT OF PLAINTIFFS' APPLICATION FOR TEMPORARY

20

Plaintiffs,

RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

Date: To Be Set Time: To Be Set Courtroom: The Honorable John A. Houston

23

Defendant.

24

25

26

27

28

1
DECLARATION OF JANE DOE 2 IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1

DECLARATION OF

(JANE DOE 2)

2

I , --=-~--

--

-_. (Jane Doe 2), declare as follows:

3

1. I am age 37.

4

2. I am a Latina.

5

3. I live in and rent an apartment in Escondido, California. I have lived in this

6 apartment building since February 1996.

7

4. I live with my brother, and my three minor children.

8

5. My three minor children were all born in Escondido. They are all citizens of the

9 United States.

10

6. My two school age children attend school in the City of Escondido. They have

11 always attended school in Escondido.

12

7. In 1987, at age 17, I left my home in Mexico, and emigrated to the United States.

13

9. When I emigrated to the United States in 1987 I moved to Escondido, California

14 which has been my home since I came to the United States.

15

10. I am undocumented here in the United States.

16

11. I have tried to become an American citizen. A mend referred me to a man who

17 said he was an immigration attorney that would help me become documented. It turns out the

I 8 man was not an attorney. The police prosecuted him for fraud. I was asked to go to court to

19 testify against him. I did not have to testify because it turns out that he had defrauded many

20 others out of even more money than me. I understand that he was sent to jail for defrauding

21 persons who, like me, paid him money believing that he would help them become citizens.

22

12. I am married, but my husband and I are separated. He abused me and the police

23 took him away. He now lives in Mexico.

24

13. I work in Escondido.

25

14. I learned about the new law in Escondido telling landlords they could not rent to

26 undocumented persons by watching Channel 17. This television channel often talks about

27 immigrant rights and how to become an American citizen. Some of the information broadcast by

28 Channel 17 was about the Escondido law. Channel 17 referred people to places that could help

1 undocumented persons learn more about their rights, and how to try to stop the new Escondido

2 law. One of those places was the Fair Honsing Council of San Diego.

3

15. I contacted the Fair Housing Council of San Diego hoping to learn more about my

4 rights on October 17,2006. I asked them to help me so that! do not have to move because of the

5 new Escondido law.

6

16. I do not want to move from my home in Escondido. I like my home. I arn very

7 comfortable here, and my children think of my apartment as home. I fear that, if I were asked to

8 leave my apartment, my children might become homeless. It is easy for a single person to find a

9 place to live, but with three children it is difficult to find an apartment quickly.

10

17. I cannot go back to Mexico. My children are Americans. My husband is now in

11 Mexico, and I fear that if! go back I will have no protection against him abusing me again. My

12 youngest child has health problems that require she go to the hospital. The health care here in the

13 United States is much better than it is in Mexico. I have no close family in Mexico. My brother

14 is here in California. My cousins live in Texas. My home is here in America with my children.

15

18. I would like the Court to stop the Escondido law. I would like to remain in my

16 apartment in Escondido. I work hard. I pay my rent, and my taxes. I have caused no trouble and

17 have had no problems with the police. My children are good and the two boys like school here in

18 Escondido.

19

19. With the Court's permission, I would like to be listed in this lawsuit under a

20 different name. I fear that, if my real name is used in the lawsuit, I may be targeted by the

21 authorities and asked to leave.

22 23 II

24 II 25 II 26 II 27 II
28 II
2

I

I declare under penalty ofpetjury that the foregoing is true and correct under the laws of

2 the State of California and the United States ofAmerica.

3

Executed

on

November.3.-.,

2006, at
_.-

-E.

s
-

condido, Calif

. . . . ~

-'-'-~-

ornia.
-----

-

-

-

-

-

-

-

4

-----. , ~

5

2 -~~-~,....",,......,===--as-.Jan-e-=-Doe

6

2. ~ \:p CA '-A. "(

c.

7

CERTIFICATION OF TRANSLATION

8

I, Erica Jimenez, hereby certify.

9

I. I am over age 18.

10

2. I am fluent in both English and Spanish. I translated this declaration for Ms.

11

from English to Spanish.

12

I declare under penalty ofpetjury that the foregoing is true and correct under the laws of

13 the State of California and the United State ofAmerica.

14

Executed on November l2006, at Escondido, Calif!- .~.-o-,

15

16

17

18

19

20

21

22

23

24

25

26

27

28
3

1 Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453)
ROSNER & MANSFIELD, LLP 3 10085 Carroll Canyon Rd., 1st Floor
San Diego, CA 92131 4 Tel: (858) 348-1005
Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121
Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804)
10 MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)
11 634 S. Spring Street, 11 th Floor Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266
13 Counsel for Plaintiffs
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAR (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

DECLARATION OF ROY GARRETT IN

19 JANE DOE 2,

SUPPORT OF PLAINTIFFS' APPLICATION FOR TEMPORARY

20

Plaintiffs,

RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

Date: To Be Set Time: To Be Set Courtroom: The Honorable John A. Houston

23

Defendant.

24

25

I, ROY GARRETT, hereby declare and state as follows:

26

1. My name is Roy Garrett. I am 63 years old and am a landlord in Escondido,

27 California. My business is in Escondido.

28 III

1
DECLARATION OF ROY GARRETT IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAR (NLS)

1

2. The information in this declaration is a summary of some of the information I have

2 knowledge about relating to the City of Escondido Ordinance No. 2006-38 R ("Ordinance"), and

3 matters discussed in this declaration. The information in this declaration is not meant to

4 encompass all of the events I have witnessed or have personal knowledge of at this time.

5

3. I have ownership interests in multiple rental properties in Escondido. The rental

6 properties include both single family homes and multi-family properties ("rental units").

7

4. I am aware that the Ordinance relating to the rental of property to "iIIegal aliens"

8 in the City of Escondido was passed by the Escondido's City Council on October 18, 2006, and is

9 scheduled to go into effect 30 days from that date.

10

5. I am not familiar with immigration laws. I am unaware of what makes an

11 individual an "iIIegal alien" under federal immigration law. I do not have any training regarding

12 how to determine the rights or abilities of individuals to reside in the United States.

13

6. I have never been provided information on how I could determine whether or not

14 an individual is an "illegal alien" by any official from the City of Escondido.

15

7. As I read the Ordinance, it is very vague. There are limited definitions of terms

16 such as "illegal alien" and "harboring." The Ordinance does not make clear what I have to do to

17 follow the law or how I need to change my business practices.

18

8. When I rent property to a tenant, I typically ask for personal information as part of

19 the application process. This information is private and I understand that I am obligated to

20 protect it from dissemination to third parties. I do not share it with third parties. I do not ask

21 tenants about their citizenship status.

22

9. I am worried that if I follow the Ordinance I will be forced to violate state and

23 federal fair housing laws, and state landlord-tenant laws.

24

10. The Ordinance imposes impossible requirements for evicting a tenant, which

25 include forcing a tenant to vacate a unit within a 10-day period. However, I have to give the City

26 /II

27 /II

28 /II 2

DECLARATION OF ROY GARREIT IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1 14 days to place a couch on the street, but under the Ordinance only 10 days to place a tenant on

2 the street.

3

11. When I terminate a tenancy, I must strictly follow state law. I may not remove a

4 tenant without going through proper procedures, including filing an unlawful detainer lawsuit if

5 necessary. I know that if! follow the Ordinance's requirements to evict a tenant within 10 days, I

6 will violate state law.

7

12. Under state law, I may not use self-help measures to forcefully remove a tenant. I

8 know that no court will approve of me forcefully removing tenants without court process. Even if

9 I am forced to remove a tenant under the Ordinance, I do not have the capacity to do so. I know

10 from personal experience that the Sheriff and other local officials will not assist me in this

11 process.

12

13. In my experience, when following California landlord-tenant law procedures, a

13 termination of tenancy normally takes a minimum of 30 days, and can take up to 70 days from

14 start to fmish, or more if there is an appeal. This is outside of the 10 days provided under the

15 Ordinance.

16

14. I have never based my decision to rent or not rent any of my rental units to

17 particular individuals based upon their perceived race, national origin, or ability to speak English.

18

15. Since the Ordinance has passed, several of my tenants have expressed concern

19 about the Ordinance and have asked me if they should move.

20

16. Attached to my Declaration as Exhibit 1 is a true and correct copy of a lease

21 agreement for one of my rental properties in Escondido.

22

17. Attached to my Declaration as Exhibit 2 is a true and correct copy of a lease

23 agreement for another rental property located in Escondido.

24 1/1

25 1/1
26 III 27 I I I 28 III
3
DECLARATION OF ROY GARRETT IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

I II /

2

18. The lease agreements used in Exhibits 1 and 2 are substantially similar in fonn an

3 substance to lease agreements used to rent the otller properties I own in Escondido.

4

The undersigned swears that the matters set forth in the foregoing declaration are true and

5 correct according to the best of my personal knowledge, subject to the penalties of making a faIse

6 deelaraLion.

7 8 9
10 11 12

13 14
15 16
17

18 19

20 21 22
23

24
25 26 27 28
4

E HIBIT 1

)

MONTH TO MONTH RENTAL AGREEMENT

Escondido, California -Y-g?

.20M· I~~.! Y

Landlord and

~ Tenant, agree as follows:

PROPERTY: Landlord rents to Tenant and Tenant hires from Landlord the premises

described as -~---e:;;;J::r-~''''''''-~'__• -"'0,--------·· The premises are rented~without refrigerator.

6 ' TERM: The term shall begin on J1:& ~ !

200't5, and shall continue for month

to mOI\th. This rental agreement may benrunated at any time by either party by giving

written notice 30 days in advance ofthe termination date.

RENT: Tenant agrees to pay $

rent per month, payable in advance

on the first day of eac;h month and $___. _

representing pro-rated rent

from) ."• ..e / C.

to

u..........e.'Yd ,20 dO 1
I

.

LATE CHARGE: Iftenant does not pay the rent by the 4th day ofthe month, tenant shall

.,:.)

pay alate charge of$25.00 The acc!,ptance by the laridlordofthe late charge shall not be deemed a waiver ofprompt rent, nor shall landlord be prolubited or estopped from

demanding p~ompt rent and taking all appropriate legal actions in case of subsequent late

rent or ilOn payme~of r e n t . '

.

DEPOSIT: $_, _~ '-.

. as a security deposit is posted by tenant. Landlord may _

~

use thereafter such amounts as are reasonably necessary to remedy Tenant's default in 'I. A ? --:£!Jk

rent, to repair damages caused by tenant or tenant's guests, and to clean the premises if

- 'l

necessary at the termination ofthe tenancy:

PAYMENT: Rent shall be paid to MaryGarrert or Roy Garrett at P.O. Box. Escon!ji.do, California 92030 or at landlord's office at 225 East Third Avenue, Escondido. All rent shall be by money order, check, or cashier's check.

BOUNCED CHECKS: If, on any occasion, tenant bounces a rent check, there will be a

$20.00 service and time charge, and all rent·payments shall thereafter be by money order

or cashier's check for one year.

.

UTILITIES: Tenant agrees to pay for all utilities for the premises exceptlandlord agrees

to Jlay for the following: ~

.

Tenant's initialS

OCCUPANT~emises are for the sole use as a residence by the following persons

only:' la~'J o~

,

"3 VEHICLES AT PREMISES: Tenants shall park the following vehicles, and no others, at

the premises: 1

2

3,_ _ _ _ _ __

4'--_ _~_ _

PETS: No animal, bird, or pet shall be kept on the premises without landlord's prior written consent except ~
USE: Tenant shall not disturb, annoy, endanger, orinterfere with neighooIll, nor use or permit illegal dru~s at the premises.

ENTRY: Upon not less than 24 hours notice, Tenant Shall allow landlord orits representative to enter the premises to make repairs, or to' inspect for condition or to show ,the premises to purchasers, tenants, or contractors. Condition inspections shall not occur more than once every three months.

ASSIGNMENT AND SUBLETITNG: Tenant Shall not let or sublet all or any part ofthe premises nor assign this agreement or any ioterest io it

PO~SESSION: Iftep,ant abandons or vacates the premises, Landlord may terminate this agreement and regain lawful possession.

WAIVER: The waiver of any breach may not be construed to be a continuiog waiver of any subsequent breach.

NOTICE: Notice te landlord may be delivered to his office or by mail to the poSt office

box.

'

PLUMBING: Landlord shall pay for the -fuSt clearance-of drains: Thereafter drain

clearance shall be charged to ant unl s stoppage is the fault ofthe system or r~

A,pDmONAL TERMS:

- ' , '

ENTIRE CONrRACT: Tm;,e is ofthe eSsence. All prior agreements betweei:J.tIie parties
are incorporated, in this agreement which is the entire contract

q.. The~aVeread~~~
~~_,,~~AA

..2;-0$

_..

Date \..( /'<.:1-/0 r

Date
l

- ..
--_.

E HIBIT 2

MOl'tIH I'OMONTHREN~OO:EEMENr

Escondido;California 5,]"71,, -

20aG.... l~~A:4,

Landlord and

_, Tenant, agree as follows:

PROPERTY: Landlord rents to Tenant and Tenant hires from Landlord the premises

described as _ _~_' ~__

_ ·rhe premises are

rented ~Without refrigerator. '
2 TERM: The· term shall begin on £, A I . '; 20'''b, and shall continue for month
to month. T~is rental agreem!,!).! m;j-te terminated at aJJy..time i:tY.either party by giving
written notice 30 days in advapce of tOe termination date.

RENT: TenMt agrees to pay $-=-::-_~___ rent per month, payable in advance

on the first day of el¢t mont). and $

from.

/ to ,L

,

2~'t'7,--' _

_

.repf9Sent.ing /

p

ro-

ritd

rent

LATE CHARGE':-Iftenant does not pay the rent by the4'h day ofthe month, tenant shall pay a late chatge.of$25.00 The acceptance by the landlord ofihe late charge shall not b~ deerried a waiver ofprompt rent, not shall landlord be prohibited or estopped from demanding prompt rent and taking all appropriate legal acnons in case of subsequent late rent or non payment ofrent. :

DEPOSIT: $.....

as a security deposit is po~ted by tenant. ~dlord may ~ ~

-ffi use thereafter such atnoWlts as ate reasonably n~cessaryto remedy Tenant's default in, ff~

rellt, to repair damages caused by tenant or tenant's guests, atjd to clean the premises 'if "V""'7'

necessary at the termination ofthe tenancy.

'.

.

.

PAYMENT: Rent shall be paid to Mary Garrett or Roy Garrett at P.O. Box Escondido, California 92030 or at land.lord's offi<;e at 225 East Third Avenue, Escondido.
All rent shall be by.m.-oney..'.order, ch. eck, or c.a. shier's che-ck-.
BOUNCED CHECKS: If, on any occasion, 'tenant bOWlces a rent check, there will be a $20.00 service and time charge, and all rent payments· shall thereafter be oy money order or cashier's oheck for'one year..

UTILITIES: Tenant agrees to p'ay for all utilities for the premises except.Iandlord agrees

L<1; to pay for"tbe following: -4..&:1

~47 ~

.

Tenant's initials

OCCUPANTS: The premises are for the sole use a!i a residence by the following persons
i ' c:P:7 only: ;;t....... $ ·-.P

VEmCLES AT PREMISES: Tenants shall park the following vehicles, and no others;·a!

the premises: I ;z,~ 2

J-,-_ _- - -

4_ _ _ _ __

PETS: No animal, bird, or pet shall be kept on the premises withoutlandlord's prior written consent except 0--1. ~

USE: TeJ;llll1t shall not disturb, annoy, endanger, or interfere with neighbors, nor use Of

permit illegal drugs at·.the premises.

.

.

.

ENTRY: lJpon not less than 24 hours notice,Tenant shal.1 allow landlord or its

represen!!ltive to enter the premises to make repairs, or to inspect for condition or to show

the premises to purchasers, tenants, or contractors. Condition inspections shall not occur .

more than once eve'1' three,months,

ASSIGNMENT AND SUBLETTING: Tenant shall not let or sublet all Of any part ofthe premises nor assign this agreement or any interest in it

POSSESSION: If tenant abandons or vacates the premises, Landlord may termi!1llte this agreement and regain lawful posSession.

WAIVER; The waiver ofany breach may not be cons!rued to be a continuing waiver of any subsequent breach.

NOTICE: Notice to landlord may he delivered to his office or. by mail to the post office box.·

PLUMIlING: Limdlord shall pay fot the first ciearahce of drains. Thereafter drain

c... ?!::.:i::t:;;/tf::. Y;":1t ..,.. - . clearance shall he charged.to tenan! unless stoppage is the fault ofthe system orroots.
A).DJDUmtO! NAI .L.b TERMS:

j

.

.

ENTiRE 'CONTRAct: Time is ofthe es~nce. All prior agreements betWeen the parties
are incorporated inthls agreement whie!> is the entire contract

The undersigned h a 2 d agree to the tenus above:
~dIord,~~M! .

Tenan'

"''U . Date r'J' ,. ...\ ,"..

'-1
I

. . ...t

.

I/' )?-,,'

Date

1 Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453) ROSNER & MANSFIELD, LLP
3 10085 Carroll Canyon Rd., 1st Floor San Diego, CA 92131
4 Tel: (858) 348-1005 Fax: (858) 348-1150

5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036

9 Cynthia Valenzuela, Esq. (SBN 186804)

10

MEXICAN-AMERICAN LEGAL DEFENSE &
EDUCATIONALFUND(MALDE~

11 634 S. Spring Street, 11th Floor Los Angeles, CA 90014

12 Tel: (213) 629-2512 Fax: (213) 629-0266

13 Counsel for Plaintiffs

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAH (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

DECLARATION OF VIRGINIA Y.

19 JANE DOE 2,

CALDER6N IN SUPPORT OF PLAINTIFFS' APPLICATION FOR

20

Plaintiffs,

TEMPORARY RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

23

Defendant.

24

25

26

I, VIRGINIA Y. CALDER6N, declare:

27

1. I am an attorney at law duly admitted to practice before this Court and am an

28 associate with the law firm of Rosner & Mansfield, LLP, one of the attorneys of record for

1
DECLARATION OF VIRGINIA CALDERON IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1 Plaintiffs in this action. I have personal knowledge of the following and if called upon to testify,

2 I could and would competently testify to the following facts stated herein.

3

2. The City of Escondido posts City Council Agendas, Minutes and video streams of

4 City Council meetings. The minutes for the October 4, 2006, 7:00 p.m. meeting, are available at

5 the City of Escondido's web page under the heading of City Council & Commissions. Under

6 item number 13, titled "ORDINANCE - ILLEGAL IMMIGRATION ISSUES" the minutes state

7 "The Ordinance proposed has been modeled after portions of a similar ordinance from Hazelton,

8 Pennsylvania based on Council policy direction at the City Council meeting of August 16,2006."

9 A true and correct copy of the minutes obtained the City of Escondido's web page for the October

10 4, 2006 minutes is hereby attached as Exhibit 1.

11

3. On or about October 13, 2006, I arrived at the City Clerk's office in Escondido. I

12 requested a copy of the public record for Ordinance 2006-38R. I was provided with a copy of the

13 Staff Report from Jeffrey R. Epp, City Attorney, dated October 4, 2006 and the Ordinance.

14 Attached as Exhibit 2 is a true and correct copy of the Staff Report dated October 4,2006. A true

15 and correct copy of the Ordinance is attached as Exhibit 3.

16

4. I asked the clerk if those were the only documents relating to 2006-38R.

17 Specifically, I asked if any of the documentation used in preparing the staff report was available.

18 The clerk responded that she had provided me with everything that was part of the public record

19 given to the City Council. She also stated that I could make a public records request in order to

20 try to obtain any additional documents that might be available. I filled out the form and requested

21 any and all documents used in preparing the staff report, including any reports or studies used in

22 support.

23

5. Approximately ten (10) days later, I received a call from another City of

24 Escondido employee in response to my request for additional documents. He informed me that

25 the only other document in the public record was the Mission Park Study cited in the staff report

26 and offered to provide me with a copy of the report. I declined the copy of the Mission Park

27 study as I had already obtained the report from a different source.

28 / II
2
DECLARATION OF VIRGINIA CALDERON IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1

6. I met the author of the Mission Park Community Survey, Arcela Nunez-Alvarez,

2 PhD. on October 28, 2006 after having exchanged a few phone calls and emails. Dr. Nunez-

3 Alvarez is also the Director of the National Latino Research Center at California State University

4 San Marcos. During our meeting, Dr. Nunez-Alvarez handed me a copy the entire 73 page

5 Mission Park Community Survey. I asked her if the immigration status of the persons in her

6 study were included in the report. She stated that at no time did the survey request information on

7 a person's immigration status nor was the immigration status of any person considered while

8 preparing the report. In fact, the report does not refer to the immigrations status of any persons.

9 A true and correct copy of the Mission Park Community Survey is hereby attached as Exhibit 4.

10

7. The City of Escondido's web page also has a link to the Escondido Police

11 Department's web page. The news release dated January 9, 2006, states that the Crime Index in

12 2005 fell for the City of Escondido. As per the news release, there has been a 15.31% decline in

13 crime overall and a decline of 32% in auto theft and 20.4% decline in property crimes, in

14 particular, since 2004. Actual figures that support the statements made in the January 9, 2006

15 press release can be found on the web page in the Fourth Quarterly Report for 2005. The January

16 9,2006 release and Fourth Quarterly Reports for 2005, are hereby attached as Exhibit 5.

17

8. I have also gone to the Escondido web page and viewed the video from the

18 October 4, 2006 Council Meeting. Approximately the first hour and 45 minutes were dedicated

19 to allowing the public to voice their concerns. Shortly thereafter, Council member Marie

20 Waldron made a statement in support of her vote for the ordinance. First she stated that the

21 ordinance was one method by which the overcrowding problem in Escondido could be addressed.

22 She then pointed out that the World Trade Center terrorist acts of September 11, 2001 were the

23 acts of illegal aliens. She also read tracts from the John Birch Society approximately 1 hour and

24 50 minutes into the council meeting in order to bolster her support for the Ordinance.

25

9. Council member Ron Newman also had an opportunity to discuss his views on the

26 Ordinance approximately 2 hours and 25 minutes into the video stream. He expressed several

27 concerns including: that the Ordinance was completely politically motivated; the Ordinance was

28 dividing the City along racial lines; there was no study, dialogue or workshops prior to voting on

3
DECLARATION OF VIRGINIA CALDERON IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1 the ordinance that included community members and landlords; the City never ascertained from

2 the federal government if the federal government was capable of providing the information

3 envisioned by the Ordinance nor how long the government would need in order to provide the

4 information. He also recognized that the Ordinance was open to legal challenges and practically

5 speaking not workable.

6

10. After the Ordinance was adopted by a vote of 3 to 2, most of the public left the

7 chambers. However, the city council continued its meeting. On the City of Escondido's web

8 page, there is another video stream for item 13b of the agenda, a vote on whether to adopt a cost

9 analysis for the implementation of the Ordinance.

10

11. Council member Newman proposed a cost analysis of complying with the

11 Ordinance. Both Council members Abed and Waldron stated that any analysis would be

12 incomplete without tracking the costs of illegal immigration generally but agreed that perhaps a

13 cost analysis in conjunction with tracking of the "benefits" (council member Waldron described

14 some of the "benefits" as the number of undocumented persons who left the City of Escondido,

15 the number of less complaints of garage conversions or too many vehicles, etc.) of the Ordinance.

16

12. Currently, the City of Escondido is approximately 42% Latino according to the

17 City of Escondido's web page under the section titled "Demograhics." There is no indication

18 how many of those Latinos may be undocumented. Attached as Exhibit 7 is a true and correct

19 copy of the demographics report the City of Escondido has on its web page.

20

13. The Pew Hispanic Center prepared a paper for the Independent Task Force on

21 Immigration and America's Future on June 14,2005 entitled "Unauthorized Migrants: Numbers

22 and Characteristics." This study determined that approximately 25% of all the "unauthorized"

23 families in the United States had undocumented parents with all U.S. born children. Another 7%

24 of the "unauthorized" families contained at least one U.S. born child. A true and correct copy of

25 the "Unauthorized Migrants: Numbers and Characteristics" from the Pew Hispanic Center is

26 hereby attached as Exhibit 8. The paper can also be obtained from the Pew Hispanic Center's

27 web page.

28

14. Recently, the Court in Lozano, et al. v. City of Hazleton, issued an order granting

4

DECLARATION OF VIRGINIA CALDERON IN SUPPORT OF APPLICATION FOR TRO

06 CV 2434 JAH (NLS)

1 the plaintiffs' application for a temporary restraining order. A true and correct copy of that

2 opinion is hereby attached as Exhibit 9.

3

15. A true and correct copy of the Hazleton Ordinance 2006-18 titled "Illegal

4 Immigration Relief Act Ordinance" is attached as Exhibit 10.

5

6

I declare under penalty of perjury under the laws of the United States that the foregoing is

~ 7 true and correct. Executed this

day of November, 2006 at San Diego, California.

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 5
DECLARATION OF VIRGINIA CALDERON IN SUPPORT OF APPLICATiON FOR TRO

06 CV 2434 JAH (NLS)

E HIBIT 1

October 4, 2006 7:00 pm Meeting 1. Escondido City Council Community Development Commission CALL TO ORDER CALL TO ORDER FLAG SALUTE ROLL CALL: Abed, Gallo, Newman, Waldron, Pfeiler ORAL COMMUNICATIONS ORAL COMMUNICATIONS At tbis time the public may comment on items not appearing on the agenda. State law prohibits the Council from discussing or taking action on such items, but the matter may be referred to the City Manager/staff or scheduled on a subsequent agenda. (Please refer to the back page of the agenda for instmctions.) PUBLIC HEARINGS PUBLIC HEARINGS CURRENT BUSINESS CURRENT BUSINESS
13. ORDINANCE -- ILLEGAL IMMIGRATION ISSUES
(a) ORDINANCE PERTAINING TO RENTING OF DWELLING UNITS TO ILLEGAL IMMIGRANTS Request Council discuss and consider adopting an ordinance which would forbid the renting of dwelling units to illegal immigrants in the City of Escondido. The Ordinance proposed has been modeled after portions of a similar ordinance from Hazleton, Pennsylvania based on Council policy direction at the City Council meeting of August 16, 2006.
StaffRecommendations: Adopt Ordinance (City Council: Marie Waldron and City Attorney's Office: Jeffrey Epp)

ORDINANCE NO. 2006-38 Introduction and first reading (b) CONSIDERATION OF STAFF RECOMMENDATIONS REGARDING TRACKING FINANCIAL IMPACTS RELATED TO THE IMPLEMENTATION OF ORDINANCE 2006-38.
Staff Recommendations: Adopt recommendations (City Manager: Clay Phillips)

14. COUNCIL DISCUSSION AND DIRECTION TO STAFF REGARDING TRACKING

FINANCIAL IMPACTS

ASSOCIATED WITH ALL ORDINANCES ADOPTED

(OTHER THAN LAND DEVELOPMENT).

Staff Recommendations: Provide direction to staff (City Council: Ron Newman)

BRIEFING (Staff) BRIEFING (Staff)

E HIBIT 2

· /r-~
'£fiCONDIDO
CityOfCh~

CITY COUNCIL

...

...

o 0 For City Clel"k's Use: APPROVED

DENIED

Reso No. _ _ _ _ _ File No.,_ _ __

Ord No, _ _ _ __

is. Agenda Item No.:

0--

Date: October 4, 2006

TO: FROM:

Honorable Mayor and Members of the City Council Jeffrey R. Epp, City Attorney

SUBJECT: Renting of Dwelling Units to Illegal Immigrants

RECOMMENDATION:

That the City Council consider and adopt an ordinance amending certain provisions of the Escondido Municipal Code to prevent renting of dwelling units to illegal aliens.

BACKGROUND:

On February 22, 2006, the City Council asked staff to present a plan for enhanced proactive code enforcement services and a cost estimate. Thereafter, the City Manager formed the Appearance & Compliance Team (ACT) to improve the City's safety, image and appearance through a proactive interdepartmental approach; to focus on the prompt resolution of safety, image and appearance violations; and to improve public awareness of the City's safety. image and appearance resources and regulations. The interdepartmental approach enabled the City to use all of its resources in a coordinated manner to improve the appearance of the City quickly. Since the inception of ACT, there has been regular reporting and an increased focus on property related living and compliance issues in the City.

As part of these efforts and as one component to improving overall appearance and living conditions in neighborhoods, the City Council conducted a public meeting on August 16, 2006 to take testimony and consider the possibility of an ordinance preventing harboring illegal aliens in rental units in the City. More than 50 people expressed views and provided information during the hearing.

Although other cities and jurisdictions (most notably, Hazelton, Pennsylvania) have adopted broader measures which also regulate employment of illegal aliens, the policy direction from the City Council at the August 16, 2006 meeting focused on a measure concerning harboring illegal aliens in rental units. Although the Hazelton ordinance underwent substantial revisions during the original enactment process, and further revisions leading to re-adoption of the measure, the approach ultimately taken by Hazelton is similar to the proposed Escondido ordinance regarding harboring in rental units.

The City Council has also received a study prepared in June 2006 by the National Latino Research Center at California State University, San Marcos. The study reported on the Mission Park Community Survey Project, aimed to assess the needs, concerns, priorities and perceptions of residents in the Mission Pprk area of Escondido. While not representative of the entire city, the study

StaffReport . Council

Staff Report October 4, 2006 Page 2
focused on a large locale in the center part of Escondido. Among the obseNations of the study was that "...residents face an array of housing-related challenges that contribute to poor quality of life, including overcrowding, a limited and often deteriorating housing stock, and high rents. The area is characterized by high-density housing units that are often overcrowded and overburdened with extended families or multiple families living in 1 or 2 bedroom apartments." (National Latino Research Center (NLRC), Final Report, June 2005 at p. 17).
In addition to these conclusions, the study obseNed that "lack of space and privacy places additional burdens on families and may severely limit the areas for children to study and play..." (NLRC Report at p. 18). Moreover, the study noted that "renters who are new immigrants and/or are exceeding the unit capacity are also less likely to complain or identify maintenance problems that could lead to unhealthy housing (mold, mildew poor ventilation, lead, roach, or rodent infestations, or other potential health hazards." (NLRC Report at pg. 18).
With individuals who are not lawfully present in the United States (or "illegal aliens," as the term is used in 8 U.S.C. Section 1621 (d», there is an increased chance that they will reside in dwelling units without typical leasing, payment and other tenancy arrangements that enable the civil and regulatory processes of this City to be effective. The regulations of the City regarding housing and property maintenance often depend upon reporting by residents and neighbors as a means of bringing unlawful conditions to the City's attention. Because illegal aliens do not wish to call attention to their presence, such individuals are less likely to report such conditions, and notify authorities, or to participate in subsequent proceedings to remedy such conditions. This creates an increased likelihood that housing and property maintenance violations will remain unreported. Because such conditions are unreported, there is an increasing chance that such conditions will multiply in the future. There is a greater chance that individuals will occupy residential units in excessively large numbers or under living conditions that do not meet applicable building and health and safety codes. This creates 'unanticipated burdens on the units and the public infrastructure supporting such dwellings.
Additionally, the lack of normal tenancy arrangements (such as written leases, records of rent receipts, and related documentation which normally accompany a tenancy arrangement) hampers the enforcement processes among private parties (Le. through small claims court) and with other regulatory agencies at the state and local level. The ability of tenants and neighbors to avail themselves of normal civil and regulatory remedies is hampered.
The United States Supreme Court has made it clear that the federal government possesses the exclusive power to enact a regulation of immigration, which has been defined by the Supreme Court as a "determination of who should or should not be admitted into the country, and the conditions under which a legal entrant may remain." (See De Canas v. Bica, 424 U.S. 351, 355 (1976». The federal govemment's power to regulate immigration derives from the Constitution's grant to Congress of the power to establish a Uniform Rule of Naturalization, and to regulate commerce. Congress has exercised this power in the Immigration and Naturalization Act ("INA"), 8 U.S.C. Section 1001 et. seq.

Staff Report October 4, 2006 Page 3
The INA is a regulatory scheme which regulates the authorized entry, length of stay, residence status and deportation of aliens.
The preemptive effect of federal authority over immigration was felt particularly hard in California after the passage of Proposition 187 in 1994 by a vote of 59% in favor and 41 % opposed. The stated purpose of Proposition 187 was "to provide for cooperation ,between the agencies of state and local government with the federal government, and to establish a system of required notification by and between such agencies, to prevent illegal aliens in the United States from receiving benefits or public services in the State of California" (Proposition 187, Section 1). Nonetheless, after two rounds of litigation in the federal courts, nearly all of the provisions of Proposition 187 were invalidated, generally on federal preemption grounds. Proposition 187 was preempted chiefly because it created new immigration categories at the state level and because it attempted to authorize state officers to make independent judgments about an alien's immigration status. (See League of United Latin American Citizens, et. al. v. Wilson et. al. 908 F. Supp. 755 (9th Cir. 1995), 997 F. Supp. 1244 (9th Cir. 1997».
Various provisions of the INA criminalize activities relating to the bringing in and harboring of aliens who lack the lawful authority to enter or remain in the United States, and criminalizes certain other activities concerning the transportation of such aliens or the encouragement of inducement of such aliens to reside in the United States, and Courts have generally interpreted the code of INA Section 274 broadly. (See Congressional Research Service Memorandum of June 29, 2006 and cases cited at CRS-2, footnote 5).
However, the Court has also made it clear that the mere fact that a state or local statute pertains to aliens does not require a finding that it is preempted. The Court has left considerable room for states and municipalities to act in the field. "[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." (De Canas at p. 355.) State and local statutes affecting aliens that are consistent with congressional objectives have been upheld on numerous occasions. (See, e.g., De Canas (upholding California law concerning the employment of illegal aliens); Arizona v. Salazar, Ariz. Sup. Ct. CR2006-005932 (2006) (upholding state law criminalizing the smuggling of illegal aliens».
Regulation of businesses within its jurisdiction is a traditional and well accepted provision of California law, flowing from the so-called "police power" of Section 7 of Article XI of the California Constitution, enabling a city to enact measures to protect the health, welfare, and safety of its residents.
Presently, Escondido Municipal Code Section 16-17 requires a business license for all persons engaged in certain types of businesses. Among those regulated are those who rent residential real estate. The general practice of the City has been to require a business license for those who rent units in excess of three units; due to staffing constraints and availability of resources, enforcement of a business license is not requested for individual dwellings on a lot or for individual rooms in a homeowner's home.

Staff Report October 4, 2006 Page 4
The proposed amendment to the Escondido Municipal Code focuses on a particularized local issue, that of rental dwelling units and the conditions in those units. To the extent that harboring illegal aliens contributes to those problems (see discussion above), the City of Escondido can appropriately take action.
The proposed ordinance does not call upon local officials to make independent or separate determinations of legal status--a question properly left to federal authorities. Proposed Section 16E-2 requires individuals who believe a violation is taking place to file a complaint containing certain information, which is used to determine the legal status of those residing in the dwelling. After receiving advice from federal authorities that an individual is in fact an illegal alien, the City may then act against the business license of the landlord harboring the illegal alien. Penalties under the ordinance include suspension and revocation of licenses as well as misdemeanor penalties for subsequent violations. Landlords have certain due process protections against the revocation of their business license, including a right to appeal, which are found in current provisions of the Escondido Municipal Code (see Section 16-221, et seq.).
The proposed ordinance is entirely consistent with federal law on the subject of harboring illegal aliens. Such harboring is prohibited under 8 U.S.C. 1324(a)(1)(A). The provision of housing to illegal aliens is a fundamental component of harboring. Accordingly, the proposed ordinance reinforces federal law and is entirely consistent with congressional objectives as expressed in the INA.
Copies of the materials noted above have been provided to the City Council under separate cover.

Respectfully sUQ[1litted,

,-

",..

0

ORDINANCE NO. 2006-38 AN ORDINANCE OF THE CITY OF ESCONDIDO, CALIFORNIA ESTABLISHING PENALTIES FOR THE HARBORING OF ILLEGAL ALIENS IN THE CITY OF ESCONDIDO
The City Council of the City of Escondido, California, DOES HEREBY ORDAIN as follows:
SECTION 1. FINDINGS. The people of the City of Escondido find and declare:
1. Federal law requires that certain conditions be met before an alien may be authorized to be a lawful permanent resident, or be lawfully present, in the United States. Those conditions are found principally at United States Code Title 8, section 1101 et. seq.
2. Illegal aliens, as defined by federal law, do not normally meet such conditions as a matter of law when present in the City.
3. The harboring of illegal aliens in dwelling units in the City, and crime committed by illegal aliens harm the health, safety and welfare of legal residents in the City.
Because such individuals are not in this country lawfully, there is an increased chance that they will reside in dwelling units without typical leasing, payment and other tenancy arrangements that enable the civil and regulatory processes of this City to be effective. The regulations of the City regarding housing and property maintenance often depend upon reporting by residents and neighbors as a means of bringing unlawful conditions to the City's attention. Because illegal aliens do not wish to call attention to their presence, such individuals are less likely to report such conditions, and notify authorities, or to participate in subsequent proceedings to remedy such conditions. This creates

an increased likelihood that housing and property maintenance violations will remain unreported and, because such conditions are unreported, an increased chance that such conditions will multiply in the future.
Because of the lack of tenancy arrangements which are subject to normal civil and regulatory processes (such as written leases, records of rent receipts, and related documentation which normally accompany a tenancy arrangement) there is a greater chance that such individuals will occupy residential units in excessively large numbers, or under living conditions, that do not meet applicable building and health and safety codes. This creates unanticipated burdens on the units and the public infrastructure supporting such dwellings.
4. The state and federal government lack the resources to properly protect the citizens of the City of Escondido from the adverse effects of the harboring of illegal aliens, and the criminal activities of some illegal aliens.
5. The City finds that it is in the best interest of and will serve and benefit the health, safety and welfare of the public and law-abiding business entities and property owners to adopt policies and procedures to deter and prevent the harboring of illegal aliens, and criminal activity by illegal aliens.
6. United States Code Title 8, subsection 1324(a)(1 )(A) prohibits the harboring of illegal aliens. The provision of housing to illegal aliens is a fundamental component of harboring.
7. The City shall not construe this Ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance to any person.
SECTION 2. DEFINITIONS. The following definition shall be added to Section 16-3, and shall be construed so as to be consistent with state and federal law, including federal immigration law:

J
Illegal Alien: 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.
SECTION 3. HARBORING ILLEGAL ALIENS. The Escondido Municipal Code is amended to add Chapter 16E, commencing with Section 16E-1 to read as follows:
Section 16E-1. HARBORING ILLEGAL ALIENS. It is unlawful for any person or business entity that owns a dwelling unit in the City and is subject to Section 16-17, to harbor an illegal alien in the dwelling unit, 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, unless such harboring is otherwise expressly permitted by federal law.
a. For the purposes of this section, to let, lease, or rent a dwelling unit to an illegal alien, 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, shall be deemed to constitute harboring. To suffer or permit the occupancy of the dwelling unit by an illegal alien, 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, shall also be deemed to constitute harboring.
b. A separate violation shall be deemed to have been committed on each day that such harboring occurs, and for each adult

illegal alien harbored in the dwelling unit, beginning one business day after receipt of a notice of violation from the City.
c. A separate violation of this section shall be deemed to have been committed for each business day on which the property owner has failed, following written notice from the City, to provide the City with identity data needed to obtain a federal verification of immigration status, beginning five business days after the property owner receives written notice from the City.
Section 16E-2 Enforcement. The Business License Division shall enforce the requirements of this section.
a. An enforcement action shall be initiated by means of a written signed complaint to the City submitted by any official, business entity, or resident of the City. A valid complaint shall include an allegation that describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
b. 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.
c. Upon receipt of a valid written complaint, the City shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The Business License Division shall submit identity data required by the federal government to verify immigration status. The City shall forward identity data provided by the property owner to the federal government, and shall

provide the property owner with written confirmation of such request for verification.
d. If after five business days following receipt of written notice from the City that a violation has occurred and that the immigration status of any alleged illegal alien has been verified, pursuant to United States Code Title 8, section 1373(c), the owner of the dwelling unit fails to correct a violation of this section, the City shall deny or suspend the business license of the dwelling unit as provided in Section 16-235.
e. For the period of suspension, the owner of the dwelling unit shall not be permitted to collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any tenant or occupant in the dwelling unit.
f. The denial or suspension shall terminate one business day after a legal representative of the dwelling unit owner submits, to the Business License Division, a sworn affidavit stating that each and every violation has ended. The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information for the illegal aliens who were the subject of the complaint.
g. The City shall forward the affidavit, complaint, and associated documents to the appropriate state or federal enforcement agency.
h. Any dwelling unit owner who commits a second or subsequent violation of this section shall be subject to penalties as provided in Section 16-249 for each separate violation. The suspension provisions of this section applicable to a first violation shall also apply.

i.

Upon the request of a dwelling unit owner subject to this

Section, the City shall, pursuant to United States Code Title 8, section

1373(c), verify with the federal government the lawful immigration status

of a person seeking to use, occupy, lease, or rent a dwelling unit in the

City. The penalties in this section shall not apply in the case of occupants

of a dwelling unit whose status as an alien lawfully present in the United

States has been verified.

SECTION 4. CONSTRUCTION. 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.

SECTION 5. CERTIFICATION. That the City Clerk is hereby directed to certify to the passage of this ordinance and to cause the same or a summary to be prepared in accordance with Government Code Section 36933, to be published one time within 15 days of its passage in the North County Times, a newspaper of general circulation, printed and published in the City of Escondido.

SECTION 6. SEPARABILITY. If any section, subsection sentence, clause, phrase, or portion of this Ordinance 'is held invalid or unconstitutional for any reason by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions.

E HIBIT 3

ORDINANCE NO. 2006-38 R AN ORDINANCE OF THE CITY OF ESCONDIDO, CALIFORNIA ESTABLISHING PENALTIES FOR THE HARBORING OF ILLEGAL ALIENS IN THE CITY OF ESCONDIDO
The City Council of the City of Escondido, California, DOES HEREBY ORDAIN as follows:
SECTION 1. FINDINGS. The people of the City of Escondido find and declare:
1. Federal law requires that certain conditions be met before an alien rnay be authorized to be a lawful permanent resident, or be lawfully present, in the United States. Those conditions are found principally at United States Code Title 8, section 1101 et. seq.
2. Illegal aliens, as defined by federal law, do not normally meet such conditions as a matter of law when present in the City.
3. The harboring of illegal aliens in dwelling units in the City, and crime committed by illegal aliens harm the health, safety and welfare of legal residents in the City.
Because such individuals are not in this country lawfully, there is an increased chance that they will reside in dwelling units without typical leasing, payment and other tenancy arrangements that enable the civil and regulatory processes of this City to be effective. The regulations of the City regarding housing and property maintenance often depend upon reporting by residents and neighbors as a means of bringing unlawful conditions to the City's attention. Because illegal aliens do not wish to call attention to their presence, such individuals are less likely to report such conditions, and notify authorities, or to participate in subsequent proceedings to remedy such conditions. This creates an increased likelihood that housing and property maintenance violations will

remain unreported and, because such conditions are unreported, an increased chance that such conditions will multiply in the future.
Because of the lack of tenancy arrangements which are subject to normal civil and regulatory processes (such as written leases, records of rent receipts, and related documentation which normally accompany a tenancy arrangement) there is a greater chance that such individuals will occupy residential units in excessively large numbers, or under living conditions, that do not meet applicable building and health and safety codes. This creates unanticipated burdens on the units and the public infrastructure supporting such dwellings.
4. The state and federal government lack the resources to properly protect the citizens of the City of Escondido from the adverse effects of the harboring of illegal aliens, and the criminal activities of some illegal aliens.
5. The City finds that it is in the best interest of and will serve and benefit the health, safety and welfare of the public and law-abiding business entities and property owners to adopt pOlicies and procedures to deter and prevent the harboring of illegal aliens, and criminal activity by illegal aliens.
6. United States Code Title 8, subsection 1324(a)(1)(A) prohibits the harboring of illegal aliens. The provision of housing to illegal aliens is a fundamental component of harboring.
7. The City shall not construe this Ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance to any person.
SECTION 2. DEFINITIONS. The following definition shall be added to Section 16-3, and shall be construed so as to be consistent with state and federal law, including federal immigration law:

Illegal Alien: 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.
SECTION 3. HARBORING ILLEGAL ALIENS. The Escondido Municipal Code is amended to add Chapter 16E, commencing with Section 16E-1 to read as follows:
Section 16E-1. HARBORING ILLEGAL ALIENS. It is unlawful for any person or business entity that owns a dwelling unit in the City and is subject to Section 16-17, to harbor an illegal alien in the dwelling unit, 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, unless such harboring is otherwise expressly permitted by federal law.
a. For the purposes of this section, to let, lease, or rent a dwelling unit to an illegal alien, knowing or in reckless disregard of the fact that an alien has corne to, entered, or remains in the United States in violation of law, shall be deemed to constitute harboring. To suffer or permit the occupancy of the dwelling unit by an illegal alien, 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, shall also be deemed to constitute harboring.
b. A separate violation shall be deemed to have been committed on each day that such harboring occurs, and for each adult illegal alien harbored in the dwelling unit, beginning ten business days after receipt of a notice of violation from the City.

c. A separate violation of this section shall be deemed to have been committed for each business day on which the property owner has failed, following written notice from the City, to provide the City with identity data needed to obtain a federal verification of immigration status, beginning five business days after the property owner receives written notice from the City.
Section 16E-2 ENFORCEMENT. The Business License Division shall enforce the requirements of this section.
a. An enforcement action shall be initiated by means of a written signed complaint to the City submitted by any official, business entity, or resident of the City. A valid complaint shall include an allegation that describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
b. 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.
c. Upon receipt of a valid written complaint, the City shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal govemment the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The Business License Division shall submit identity data required by the federal government to verify immigration status. The City shall forward identity data provided by the property owner to the federal govemment, and shall provide the property owner with written confirmation of such request for verification.

d. If after ten business days following receipt of written notice from the City that a violation has occurred and that the immigration status of any alleged illegal alien has been verified, pursuant to United States Code Title 8, section 1373(c), the owner of the dwelling unit fails to correct a violation of this section, the City shall deny or suspend the business license of the dwelling unit as provided in Section 16-235.

e. For the period of suspension, the owner of the dwelling unit shall not be permitted to collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any tenant or occupant in the dwelling unit.

f. The denial or suspension shall terminate one business day after a legal representative of the dwelling unit owner submits, to the Business License Division, a sworn affidavit stating that each and every violation has ended. The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information for the illegal aliens who were the subject of the complaint.

g. The City shall forward the affidavit, complaint, and associated documents to the appropriate state or federal enforcement agency.

h. Any dwelling unit owner who commits a second or subsequent violation of this section shall be subject to penalties as provided in Section 16249 for each separate violation. The suspension provisions of this section applicable to a first violation shall also apply.

i.

Upon the request of a dwelling unit owner subject to this Section,

the City shall, pursuant to United States Code Title 8, section 1373(c), verify with

the federal government the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The penalties in this section shall not apply in the case of occupants of a dwelling unit whose status as an alien lawfully present in the United States has been verified.
SECTION 4. CONSTRUCTION. 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.
SECTION 5. CERTIFICATION. That the City Clerk is hereby directed to certify to the passage of this ordinance and to cause the same or a summary to be prepared in accordance with Government Code Section 36933, to be published one time within 15 days of its passage in the North County Times, a newspaper of general circulation, printed and published in the City of Escondido.
SECTION 6. SEPARABILITY. If any section, subsection sentence, clause, phrase, or portion of this Ordinance is held invalid or unconstitutional for any reason by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions.

E HIBIT 4

Mission Park Community Survey Escondido, California
Survey Report prepared by
National Latino Research Center California State University, San Marcos
June 2006
Report Authors Arcela Nunez-Alvarez, Ph.D.
Carolyn Kitzmann, M.A. Ana M. Ardon, BA
The Mission Park Community Survey Project is the result of a partnership between the City of Escondido. California. the Escondido Public Library. the National Latino Research Center at Cal State San Marcos. and residents of the Mission Park neighborhood. The project aims to assess the needs. concerns. priorities and perceptions of residents in Mission Park.

ACKNOWLEDGMENTS

This survey was developed for the Mission Park Community project in Escondido, California, a project to assess needs/challenges and to identify strengths/opportunities for change and civic engagement. Numerous individuals and organizations provided invaluable expertise and input during the development of the survey and the preparation of the report. In particular, we would like to thank and acknowledge the following:
The City of Escondido: Jamie Kasvikis, City of Escondido Management Analyst. and Jerry Van Leeuwen, City of Escondido Director of Housing Neighborhood Services, provided valuable support during the entire assessment process.
Escondido Public library: Loretta McKinney, former Deputy City Librarian, helped develop the survey's Community Resources & Social Networks section and provided ongoing project consultation.
Mission Park Community AdviSOry Team: The Mission Park Community Advisory team formed in June 2004 to guide the development and implementation of improvement activities in Mission Park. Members include:
o Esther Resendiz, Mission Park resident & Park Place Neighborhood Group. o Anita Herrera, Mission Park resident & Park Place Neighborhood Group. o Benny Herrera, Mission Park resident & Park Place Neighborhood Group, o Carmen Amigon, CommunityHousing Works, Leadership Development Manager. o Lucy Cardona, resident and student at Grant Middle School. o Jessie Espinoza, resident and student at Grant Middle School. o Alfonso Nava Garda, Mission Park resident (Cobblestone Village). o Rosario Salazar, Farr Elementary School (TOPS - Technician of Parent for Schools). o Linda Woods, board member of the Escondido Unified School District.
National Latino Research Center Staff:,The authors would like to thank the NLRC staff for overall support on this project and specific contributions:
Database & Data Entry: Carolyn Kitzmann created the database and supervised data entry. Carolyn Kitzmann, Griselda Cervantes, and Ana Ardon completed data entry.
Data Collection: Arcela Nunez-Alvarez and Ana Ardon supervised data collection.
Data Analysis: Carolyn Kitzmann and Ana Ardon completed data analysis.
Report Preparation: Arcela Nunez-Alvarez, Carolyn Kitzmann and Ana Ardon prepared the final report.
Reviewers: Dr. Gerardo M, Gonzalez and Paul Hernandez served as research conSUltants and reviewers,
Special thanks to Sonia Taddy, former NLRC Associate Director, for initiating this project and for her overall vision, support and contributions.

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Cal State San Marcos Students: The authors thank the following CSUSM students for collecting door-to-door surveys in Mission Park:
CSUSM Volunteers: Isaiah Nevarez, Agustin Zavala, Fredi Garcia, Juan Luna, Ivonne Sanchez, Heather Rolfe, Pedro Sandoval, Didi Lund, Nancy MartfnezMolano, and Carmelino Cruz volunteered their time to collect surveys,
CSUSM/NlRC Interns: Chris Wall and Omar Yanez, NLRC interns during Fall semester 2005, collected data in Mission Park,
Cal State San Marcos Faculty: Dr. Kim Knowles-Yanez and Dr, Jorge Riquelme provided valuable support during preliminary data collection phase at the initial Neighbor-toNeighbor dinners,
Community Housing Works: Carmen Amigon arranged for NLRC to conduct a focus group with residents from the City of Escondido,
Funding: The City of Escondido, the Escondido Public Library, Albertson's, Inc, Southern California Region, and The Welk Foundation funded this project,

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TABLE OF CONTENTS
ACKNOWLEDGMENTS .................................................................................................................. 2 TABLE OF CONTENTS ................................................................................................................... 4 LIST OF FIGURES AND TABLES..................................... ................................................................. 5 INTRODUCTION ............... ............................................................................................................. 7 DEMOGRAPHICS OF THE MISSION PARK COMMUNITY ........................................................... 8 BACKGROUND TO MISSION PARK COMMUNITY SURVEy ..................................................... 22 MISSION PARK COMMUNITY SURVEy.............................................:........................................ 27 SURVEY PARTICIPANT DEMOGRAPHiCS .................................................................................. 29 YOUTH ISSUES & ACTiViTIES ...................................................................................................... 32 COMMUNITY RESOURCES & SOCIAL NETWORKS ................................................................... 38 EMPLOYMENT & ECONOMIC DEVELOPMENT ...... ................................................................... 47 HOUSING & NEIGHBORHOOD SAFETY .................................................................................... 52 SUMMARY OF FINDINGS & RECOMMENDATIONS.................................................................. 60 LIST OF ATTACHMENTS .................................~............................................................................ 65 CITY OF ESCONDIDO SUMMARY OF SERViCES ........ .............................................................. 66 REFERENCES & RESOURCES ....................................................................................................... 72

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LIST OF FIGURES AND TABLES

Figure 1, Map of San Diego County",,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, 8

Figure 2, Map of Mission Park Census Tracts (City of Escondido) ",""'" " ,,"" """ " " 12

Figure 3. Mission Park Population by Ethnicity

(2000 U.S. Census) .".13

Figure 4. Educational Attainment of Mission Park Residents (2000 U.S. Census)

... """ ". ," .... "". "" ". ,.... ,'" """'" " ..... "."." .. " .. "" ,.. ". """", ... ," ,," "" ," ,". ,". " " ... ,". ". ".. 15 Figure 5. Household Language of Mission Park Residents (U.S. Census 2000) .. "". 16

Figure 6. Average Household Size of Residents

(U.S, Census 2000)"" 17

Figure 7. Owner-Occupied Housing Units in Mission Park """"" .. """ .. " .. "" .. """"".17

Figure 8. Monthly Crime Index for Mission Park, July 2003-June 2005... "."" ....... " ... 19

Figure 9. Total Monthly Property Crime in Mission Park, July 2003-June 2005""" ... 20

Figure 10. Total Monthly Violent Crime in Mission Park, July 2003-June 2005 " .. "". 20

Figure 11, Neighbor-to-Neighbor Dinner, June 2004 ... "" .. " .. """ ...... "."" ... ,,.,, ... ,,"" 22

Figure 12. Neighbor-to-Neighbor Dinner, June 2004 """ .. " .. "".:""""" ... "." .. " ... ,, .... 23

Figure 13. Mission Park Area 1.. """ "." ." .... ""'''''''''' " .. """ .. " "." ... " .. "." ... '"'''''' ". "'"'' 27

Figure 14. Mission Park Area 2 "." ........ " ...... "."."" .. """" ...... """ .. " .. """ ... ""." .. ,,,,.,, ... 27

Figure 15. Mission Park Area 3 " ..... """ .... ""." ... """"""."""" ... """".,,,.,,.,,,,.,,,, ... ,,""" 27

Figure 16, Mission Park Area 4 " ... " ... " .. "" ... " ..... "."" ...... ""." ... " .. """ .. "."" ... "" ........ ,, 27

Figure 17. Ethnicity of Mission Park Residents (by area) "" .... """"."""."".""." ... ,,,,. 29

Figure 18. Country of Birth (by area)" .. " .... ".""""" .. "." ...... """" ...... "" .. " .. "" .... """ .. 29

Figure 19. In what language do you usually communicate? " .. """ ... " .. " .. "",,.,, .... 30

Figure 20. In what language do you read most? "" .... "."."".".""" .. """".",,.,, .. ,,"" 31

Figure 21, Do you own or rent? By area "'''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''''' 31 Figure 22. How would you describe your community as a safe place to raise a

family? .. ,........ ,.. ,... " .. ,....... ,..... ,..... ,... ,.. " .. ,................. ,... ',., ... ,....... ".,'"." .. ,...... ,.. ,.. ,.. ,32

Figure 23. Respondents who agree that children have a safe place to play in

their neighborhood." .. """ .... ,,,.,,',,.,,.,,,.,"'''''''',,.,'''',,.,,,.,,.,.. ,,'''',.,''''',,.,,,,.,,,,.,,.,,,. 33

Figure 24. Availability of recreational facilities and programs for youth """."""". 34

Figure 25. Respondents who agree that their children have enough activities

after school. ,... '.......... " .. ,.... " ... ,.. ,...... ,.. ,... ,.. ,.. ,,.. ,....... ,.......... ,' ,., ,....... ,... ,., .. '.... ,....... 35

Figure 26. How would you rate the quality of education of your child? " ..... ""." .. 36

Figure 27, Respondents who had someone to turn to for help "" .. """ .. "."".,, ... ,," 38

Figure 28. How connected do you feel to your community? .. " .. """."""" ... " ... "" 39

Figure 29. With whom/what are you connected? ...... """ .. "."" ..... """." ... ",,.,,.,,"" 40

Figure 30. Use of Escondido Public Library by Family Monthly Income "."" .. " ... "" 40

Figure 31. "Which branch of the library do you use?" """."."""" .. """" ... " ... ".""" 41

Figure 32. "Which newspapers do you read?" .. ".""" ....... """ .. "."""",,.,,,,",, ..... ,," 41

Figure 33. "Do you feel that Escondido city government is responsive to the

needs of your neighborhood?" .. """'''' ""'" "" """" .. ," .. ". """,,., """""" " ... ". """ 42

Figure 34. "Why couldn't you receive healthcare?" "" ...... ""." .. """"".,, .. ,,",, .... ,," 43

Figure 35, "How would you rate the ease with which you are able to get social

,services?" """"""""""""""""""""'"""""",",.""""",........ ,.. ,.... ,, .................... ,., .... 44

Figure 36, "How would you rate the ease with which you are able to get social

services?" ", .. ,,,.,,.,,""",,.,,,.,,..... ,,.,,,., .. ,,.,"',,.,,,.,"""''''',,.. ,,.,.,'', .. ,',,.,, .. ,,.,.,'',.,,., .. ,,'' 44

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Figure 37. "How would you rate the ease with which you are able to get social services?" by language .......................................................................................... 45
Figure 38. "What do you think would improve access to social services?" ........... 45 Figure 39. Respondents receiving government assistance by language .............. 46 Figure 40. Knowledge of Eligibility of Government Assistance by Language....... 47 Figure 41. Personal or family financial situation .......................................................... 48 Figure 42. Going without basic needs? ....................................................................... 49 Figure 43. "Do you or anyone in your family have a bank account?" ................... 49 Figure 44. Portion of income going to housing costs ................................................. 52 Figure 45. Portion of income that goes to housing costs .......................................... 52 Figure 46. Effects of Cost of Housing ............................................................................ 53 Figure 47. Respondents who have considered moving out of the area by
language .................................................................................................................. 53 Figure 48. Respondents' Perceptions of Housing Conditions in Mission Park ......... 54 Figure 49. How safe do you feel in your neighborhood? .......................................... 55 Figure 50. How safe do you feel in your neighborhood? by area ........................... 55 Figure 51 . Respondents Concern About Crime ......................................................... 56 Figure 52. How concerned are you about crime? .................................................... 56 Figure 53. Crime getting better or worse? .................................................................. 57 Figure 54: Crime getting better or worse? .................................................................. 57 Figure 55. What crimes concern you? ......................................................................... 58 Figure 56. How effective is law enforcement in your community? ......................... 59 Figure 57. How effective is law enforcement in your community? ......................... 59
Table 1. Highlight of Quality of Life Indicators of Mission Park.................................. 14 Table 2. Socio-Economic Indicators of Mission Park Residents ................................ 15 Table 3. Strengths and/or Opportunities in Mission Park ........................................... 24 Table 4. Barriers and/or Needs in Mission Park............................................................ 25

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INTRODUCTION ..
Beginning in the spring of 2003, the National Latino Research Center (NLRC) and an interdisciplinary team of faculty, staff, community agencies, and Mission Park neighborhood residents initiated a dialogue to address coordination of community resources, leadership, civic engagement. and economic development in the City of Escondido, California (North San Diego County). This exchange consisted of numerous meetings throughout 2003 to 2005 to assess and prioritize community needs and suggest opportunities to strengthen power within local communities.
The interdisciplinary team selected the Mission Park neighborhood as an appropriate site for a community needs assessment based on the extent of needs and potential to benefit from coordinated city-university-community collaboration. As a means to move forward this process the Mission Park Collaborative was formalized in 2004.
In partnership with the City of Escondido, the Escondido Public Ubrary, and the Mission Park Community Advisory Group, the NLRC developed a community sUNey to assess the needs, concerns, priorities and perceptions of residents in Mission Park. Specifically, the community sUNey focused on four key areas: Youth Issues and Education, Community Resources and Social Networks, Employment and Economic Development, and Housing and Neighborhood Safety.
This report does the following:
1) Documents the formation of the Mission Park collaborative; 2) Presents the preliminary findings of the Mission Park Community Needs Assessment
and; 3) Offers recommendations to help guide program development and allocation of
local resources in the Mission Park community
This study aims to capture community residents' issues and concerns through engagement in partiCipatory-action research to help guide the city's future planning strategies and resource allocation.
For additional information about the sUNey and report, please contact Dr. Arcela NunezAlvarez at the Cal State San Marcos National Latino Research Center (NLRC) at 760.750.3500 or email nlrc@csusm.edu.

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DEMOGRAPHICS OF THE MISSION PARK COMMUNITY

To better understand the needs and characteristics of Escondido's Mission Park area, this report provides a brief overview of demographics at the county, city, and neighborhood levels. This demographic section is followed by an overview of survey participants' demographics, a summary of survey results, and recommendations.

SAN DIEGO COUNTY
San Diego County is the sixth most populated county in the United States and the second most populated county in California with an estimated 2.8 million residents. Between 1990 and 2000 the County's population increased by rnore than 11 %, further increasing the diversity of the region (2000 U.S. Census). It is located in the Southwest corner of the State of California and is bordered by the Pacific Ocean to the West. Imperial County to the East. the US-Mexico border to the South, and Orange and Riverside counties to the North.

i Figure 1. Map of San Diego County
•

According to the 2000 US Census, a majority (55%) of the County's residents is White while over one-quarter (27%) are Latino. The remaining 18% of the County's residents are Asian (9%), Black (5%), American Indian or Alaskan Native (1%), Hawaiian or Pacific Islander (0.4%), two or more ethnicities (3%), or "other" (0.2%).

CITY OF ESCONDIDO
The City of Escondido is located in the northern part of San Diego County along Interstate 15, about 18 miles from the coast. 100 miles southeast of Los Angeles, and 30 miles northeast of the City of San Diego.

Brief social and economic history of Escondido

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Established in 1888, the City of Escondido;s history has been shaped by waves of immigrants from throughout the world - Na1"ive Americans, Spaniards, Mexicans, Anglos, Asians, Africans, and others - and development of the region's natural resources including arable land, water, and climate.
Originally called "Mehel-om-pom-pavo" by Luiseno and Kumeyaay, Escondido's early history was characterized by Native American camps and villages located near natural resources. As new waves of European Immigrants settled in the region, Native Americans were displaced and moved to federal reservation lands during the nineteenth century.
Subsequently, during the Spanish and Mexican eras, Escondido was known as "Rancho Rincon del Diablo," a land grant belonging to Juan Bautista Alvarado. In the mid 1800s, the area was the ground of a decisive battle during the United States-Mexico War when on December 6, 1846 Anglo soldiers fought the Mexican army at San Pasqual valley. In 1850, California was annexed into the Union signaling a transition of political and economic power from Mexico to the United States.
Capital, innovation, and natural resources contributed to Escondida's economic growth in the late nineteenth and early twentieth centuries. Land development and access to water attracted Anglo immigrants from the Eastern and Midwestern United States and Europe interested in agriculture. Subsequently, the region's expanding economy created work in ranches, groves, and packing houses pulling persons of many ethnic backgrounds - Chinese, Native American, Jamaican, Filipino, Mexican, MexicanAmerican - to work.
World War II changed the demographic landscape. While Mexican nationals had lived in Escondido since the early 1900s, the United States government began contracting laborers or braceros to fill the labor shortage the war caused. A labor camp located near the Mission Park neighborhood on Quince and Valley Parkway housed nearly two hundred Mexican workers. Laborers were contracted to work in Escondido through the 1960s. After the Bracero Prograrn ended in 1964, labor opportunities continued to attract immigrants to live and work in the city of Escondido.
For additional information about Escondido history, visit the Pioneer Room's local history site: http://www.ci.escondido.ca.us/library/pioneer/history.htm.

Escondido today and tomorrow
Once home to avocado and citrus groves and small family-run businesses, the City of Escondido now has a population of more than 141,350 and is striving to become a regional economic leader at the forefront of job development and new industries. 1 Like San Diego County, Escondido has experienced significant population growth in the last ten years (22%). Escondido was incorporated on October 8, 1888.
Escondido's growth has been marked by an increase in the Hispanic population. From 1990 to 2000 the City of Escondido's Hispanic population grew approximately 16% (from 23% to 39%) while the White population decreased 3% (from 71% to 68%).2 While the White population is still a small majority (49%), Hispanics represent approximately 42% of

1 California state Department of Finance. 2004 2 SANDAG 1990 Census Population and Housing Profile, SANDAG Census 2000 Profile

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the city's total population.3 ln comparison to the entire County (27% Hispanic), Escondido has proportionally more Latino residents.

Escondido's economy is comprised of a mix of businesses, supplying a diverse job base. The percentage of employees in select industries is as follows: retail trade (21%), construction (16%), health care (10%), manufacturing (9%), accommodation and food services (9%), administration, support, and waste management (8%), professional. scientific, and technical skills (4%), arts, entertainment and recreation (3%), wholesale trade (3%), management of companies and enterprises (2%), real estate, rental, and leasing (2%), finance and insurance (2%), information (2%), educational services (1 %), transportation and warehousing (1 %), mining and utilities (1 %), and other services (4%) (http://www.ci.escondido.ca.us/qlance/employmentlindex.htmD.

Escondido's education system educates a large number of diverse students. The Escondido Union Elementary School District serves over 20,239 students in kindergarten to eighth grade schools the majority of whom are Hispanic (42%). The rest of the students are White (38%), African American (8%), and ASian (5%). Almost a quarter of elementary students (24%) are Spanish speakers learning English and 42% receive free or reduced meals.-

The Escondido Union High School District enrolls about 8,868 students in grades nine
through twelve. Hispanic students make up 42% of the total high school student
population. Whites comprise 37%, African Americans 8%, and Asians and Filipinos 10%. Twenty-four percent of high school students are English learners and 42% receive free or reduced meals.s

In addition to the primary and secondary educational institutions, the City of Escondido also benefits from access and proximity to two institutions of higher education, Palomar College and California State University San Marcos (CSUSM). San Marcos is contiguous with Escondido and the University is located approximately 5 miles from the Mission Park orea.

The City of Escondido has a general law government with a city manager and·a five-member city council composed of a directly elected mayor and four council members, Residents of its communities are served by two school districts, community based organizations, and governmental entities that provide opportunities that support increased quality of life for all residents,

The mIssIon of the City of EscondIdo Is to provIde quality servIces that enhance the safety, economIc dIversity. envIronment, and health of the community. where our customers and employees can thrive In an
atmosphere of courtesy, integrity. and respect.
City of Escondido Mission Statement

The San Diego Association of Governments (SANDAG) projects a 24% growth in Escondido by the year 2030, to a population of 163,299.6 Given current demographics, the ethnic diversity will increase in Escondido and so will the demand for employment, education, housing, and other services.

3 SANDAG 2004 4 California Department of Education, Educational Demographics Office, 2005 S California Departrnent of Education, Educational Demographics Office, 2005 6 SANDAG 2004

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CITY OF ESCONDIDO RESOURCES
The City of Escondido currently provides a range of services and programs for residents. Programs and activities for youth. community resources and social networks, employment and economic development and housing and neighborhood safety are available through or in the City of Escondido (See Appendix: City of Escondido Summary of Services).
The City of Escondido has developed an innovative program called Neighborhood Porch, to engage residents. The program's 12-foot trailer is equipped to conduct neighborhood meetings anywhere and anytime. The mobile "Porch" is staffed by City personnel and enables them to listen to residents' concerns, and assists them in addressing or referring residents to appropriate departments or agencies within the city.
The Neighborhood Porch program has two goals:
• Identify and engage leadership in the neighborhoods for the purpose of developing neighborhood improvement activities.
• Increase resident participation and awareness by bringing available resource information about the city and community.'
Additionally, the City of Escondido implements a variety of programs and interventions to revitalize the community, promote economic development, and improve community facilities and services with federal funds. 8

MISSION PARK COMMUNITY
This section contains statistical data as well as descriptive information highlighting the demographic and socio-economic conditions in Mission Park. It begins with a general

7 http://www.ci.escondldo.ca.us/depts/hns/nelghborhood/porch/lndex.html 8 http://www.ci.escondido.ca.us/depts/hns/neighborhood/overvlew/lndex.html

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geographic oveNiew of the Mission Park community, demographics, and key quality of life indicators.
The term "Mission Park" is not readily recognized by community residents. Coined by the city, it demarcates a locale in the center of the City. The area encompasses two lowincome census tracts (tracts 202,02 and 202,12). It is bordered by Lincoln Avenue to the north, Ash Street to the east. Valley Parkway to the south and Centre City Parkway to the west. Figure 2 highlights the Mission Park neighborhood at the center of the map.
Figure 2. Map of Mission Park Census Tracts (City of Escondido)
CITY OF ESCONDIDO DISTRIBUTION OF PROJECTS BY LOCAL PRIORITY

• #

I

PROJECTS
... Neighborhood ReYi1allzation • Senior Services • Youth, children and Families
*• Home/e...,." Employment
• MJA Public Facility Improvements
• B.\'etIIJnfo<tl,....comm"""ra«le~et:C'Q.,..."1ICt 'I'KnInln~ed'lc ..taIIonI""D'lI$ ..1I>
Ethnic Diversity in Mission Park

; v MercadO NelghbDffiood

~ Westside Census Tract

~ Mission Park Census Tract

~ c-us Tracts

l Bemeolaiy ! Middle School
.t HIgh School

-

"

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Latinos comprise the majority of the resident population in Mission Park. In 2000. Mission Park was home to approximately 10.070 residents, of whom 71% were Latino. 91n 2005, the population had increased by over six-thousand to 16,491 residents of whom approximately 79% are Latino. In addition to Latinos, 2,527 (15%) residents are White, 473 (2.9%) residents are Asian and Pacific Islanders, 375 (2.3%) residents are Black, 85 (0.5%) residents are American Indian, and 293 (1.8%) residents are of other ethnic background. 1O

Figure 3, MisSion Park Population by Ethnicity (2000 U.S. Census)
E1White
o Black • PJ/i'N liD Asian I!I Hawaiian/PI • Other I§] Two or more o Latino

Quality of Life Indicators in Mission Park
As further described in this report, the Mission Park community is challenged by a variety of issues, including conSistently low standing in the areas of education, employment. household earnings, housing conditions, immigration and citizenship, and other quality of life indicators.ll
Table 1 highlights quality of life issues in Mission Park compared to the City of Escondido. "West" and "Mission Park" represent the two census tracts previously mentioned (tracts 202.02 and 202.12).
NLRC further subdivided these census tracks into four areas for data collection purposes. Although not all data gathered is reported in this document. additional requests regarding specific data for the Area level can be processed by the NLRC. For maps of these areas, see Figures 13, 14, 15, and 16.
Area 1 is Census Tract 202.02, South of East Lincoln Ave. North of E. Mission Ave. West of North Ash St. and East of North Fig St.
Area 2 is Census Tract 202,02. South of Mission Ave. North of East Washington Ave. West of North Ash St. and East of North Fig St.
Area 3 is Census Tract 202.12. South of East Lincoln Ave. North of East Mission Ave. West of North Fig St. and East of Centre City Parkway,
Area 4 is Census Tract 202.12. South of West/East Mission Ave. North of West/East Washington Ave. West of North Fig St. and East of Centre City Parkway.

9 SANDAG Data Warehouse Census Tracts 202.02 and 202.12. 2000 10 SANDAG Current Estimates. Census Tracts 202.02 and 202.12, 2005 11 SANDAG Data Warehouse Census Tracts 202.02 and 202.12. 2000

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Whenever available, data is further subdivided into four geographic areas used by the NLRC for data collection purposes.

. -
Table 1, Highlight of Quality of Ufe Indicators of Mission Park12

Quality of Life Indicators

I,·
i

,,• II
· ,
· I Hispanic or Latino (of any race)

;".. ... -. ,

' " ,---.~,~-,.

: ! Average Family Size

' i "",0_', .<" .• _ • Percent population 0- 19 years of age

· I

_C" •• ""<-.",,·,,,,'''''.''

: ,i Median Income

, - i
, "

Percent of individuals living in poverty

.. ... .. - 1 ("

--~,-." -.",,-.,., -,,'," ~".

,.! I Percent wI no high school diploma ' " • • r ".'_' . " e , '___ , _,. ""

,, Families (with children under 18)

, ·
·

,

living below poverty level in 2000

Percentage of persons with low or moderate Income

,· l

«80%
.-~."

o. f

San Diego
.. . . . . . -.".

median

income)

·
· ·

Ii,,

Percent never attended college Single female households wlchlldren

under

18

yrs.

of

age

, ! Renter occupied housing units

I Percent of household income paid for gross rent

! West

Mission Park

(Tract

(Tract

202.12) ···1,···.. 2',",0.-,2..,,~0- .2..) 78% \ 69%

4.36

4.27

40%

40",6

. .1. .

$21.420 I $30,507

, 38.6% j 26.8%

"(

61%

51%

43.4%

29.3%

City of Escondido
39% 3.50
~30%
$42,567 13.4% 27.4% 14.1%

85%

70%

40%

70%

78%

75.6%

67.1%

33.3%

48.6% 30.1% 46.7% 29.4%

With an average federal poverty rate of 29%, the Mission Park area has been identified as having one of the most rapidly growing poverty rates in the State of California, with twice as many families below the California poverty level. and nearly three times below the national poverty threshold (U.S. Census, 2000).
Table 2 below subdivides socio-economic indicators by the four Mission Park sub-areas used in data survey data collection compared to the City of Escondido. The median household income in Area 4 ($17,382) is less than half the City's median household income ($42,567).

" Mission Park Baseline Data Collection-Community Economic and Health Indicators; SANDAG Data Warehouse, Census Tracts 202.02, 202.12; SANDAG Census 2000 Profile; San Diego County Child and Family Health & Well-Being Report Card 2001

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Table 2. Socio-Economic Indicators of Mission Park Residentsl3

Median Household
l Income
Per capita Income
i Population in Poverty
, "10 Population in Poverty

Area I (Tract 202.02)

• Area 2 . (Tract
202.02)

Area 3 (Tract 202.12)

33,785 10,092 ;
674 : 29%

29,875 ; 11,552 ,
447:
18% •

25,625 7,222 715 26%

Area 4 (Tract 202.12)

Escondido

17,382 . 8,379 .
944
42% •

42,567 18,241 17.759
13%

Immigration and Citizenship Status
The Mission Park area is home, and often the "first stop" for many new immigrants seeking. better opportunities in the United States. Language is a barrier for many, with 44% speaking English less than "very well". Although the survey did not collect information about citizenship status, this seems to be key consideration for residents in this community.

Education
Educational attainment of Mission Park's adult residents is relatively low. Fewer than half of residents have completed high school (47%), and only one in ten residents have earned an Associate, Bachelor's, or advanced degree (11%).

--

- -_.

i Figure 4. Educational Attainment of Mission Park Residents

(2000 U.S. Census)

30%

1

24%

j 20%

"6

f 10%

The Mission Park

community is served

by two elementary

schools (Farr and

Pioneer) and one

Educational Level

middle school

-----.~--.---

(Grant). All report

school data to the California Department of Education.

13 Mission Park Baseline Data Collection-Community Economic and Health Indicators; SANDAG Data Warehouse, Census Tracts 202.02, 202.12; SANDAG Census 2000 Profile; San Diego County Child and Family Health & Well-Being Report Card 2001

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Grant Middle School provides a disconcerting snapshot of key indicators that characterize the surrounding area: 14
.:. Close to 90% of Grant Middle School students meet the criteria under the National School Lunch Act. This figure is nearly two times the statewide figure for California as well as for San Diego County.
•:. Nearly 43% of students are limited English proficiency (LEP) students. more than twice the California rate of 23%.
•:. The attrition rates at the two secondary schools that serve Grant Middle School students are disturbingly high, with 32% and 41% drop out rates, respectively.
•:. Approximately 85% of Grant Middle School parents speak Spanish but less than 10% of the teachers and administrators are bilingual, creating significant barriers to parent involvement.
Other issues exacerbating poor quality of life for the youth and young adults of Mission Park include high rates of teen pregnancy (three year average rate for teen pregnancy of 66.2 per thousand as compared to the North Inland regional average of 21.915), unaffordable and inadequate child care and after-school programs, and a lack of enrichment activities for youth and young adults.

Language
A majority of Mission Park households are primarily Spanish speaking (54%). A large minority of households speak primarily English (41%) while few speak other Indo-European languages (2%), Asian or Pacific Island languages (3%), or other languages (0.2%).
Housing Indicators

, Figure 5. Household Language of Mission Park Residents (U.S. Census 2000)

2% 3%0.2%

[] English
iii Spanish 41%
[] Other Indo-European languages
I1J Asian and Pacific Island languages
[] Other languages

Mission Park has a total of

2,694 housing units, of

-_._---_._----.------

which 2,611 (97%) are

occupied. On average, housing units in Mission Park are home to a larger number of

residents than in the City of Escondido or San Diego County.

14 "And College for All" 15 San Diega County Health and Human Services Agency Child and Family Health & Well-Being Repart Card 2001

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Mission Park is primarily composed of rental housing. Within Mission Park. 20% of occupied housing units are owner-occupied and 80% are renter-occupied. This is in sharp contrast to the City of Escondido, in which 53% of occupied housing units are owner-occupied, and San Diego County, in which 55% of occupied housing units are owner-occupied.

· Figure 6, Average Household Size of Residents

·

(U.S. Census 2000)

5
4.49 4.08
4
3.01
3

2

o
Son Diego EscondIdo
Co.

Area 1

Nea2

Neo3

Area 4

· City of Escondido, HUD Consolidated Plan, 2005

Mission Park residents face an array of j housing-related challenges that contribute to poor quality of life, including overcrowding, a limited and often deteriorating housing stock, and high rents. The area is characterized by highdensity housing units that are often overcrowded and overburdened with extended families or multiple families living in 1 or 2 bedroom apartments.

Overcrowding: As

--

-

-

, Figure 7. Owner-Occupied Housing Units in Mission Park

discussed in the City's

Consolidated Plan,

60%

overcrowding is caused

50%

by the combined effect of

low earnings and high

40%

housing costs and is

defined by the Census as

30%

households with more

than 1.01 persons per

20%

room (excluding

10%

bathrooms, kitchens,

hallways and porches).

0%

The City of Escondido has

documented a significant

increase in overcrowding,

particularly in the Mission

Park area where the

average family size Is 4.32 and the cost burden for

City of Escondid()! f-ILJD Collsolidated Plan, 2005

rent exceeds 33% of the household income. Furthermore, overcrowding is more acute in

renter-households. In Escondido over 98% of Hispanic renter-households that were

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classified as low-income or extremely low income, experienced problems with overcrowding, physical housing defects; and/or high cost burdens. T6 The City has also identified an acute need for affordable rental units that accommodate larger families (with three or more bedrooms).
Overcrowding and high density contribute to an array of related problems that can lead to unsafe and unhealthy conditions that adversely impact area residents. Lack of space and privacy places additional burdens on families and may severely limit the areas for children to study and play. Overcrowding can also contribute to general deterioration of structures, excess trash, overburdened facilities and substandard housing conditions. Renters who are new immigrants and/or are exceeding the unit capacity are also less likely to complain or identify maintenance problems that could lead to unhealthy housing (mold mildew, poor ventilation, lead, roach or rodent infestations, or other potential health hazards).
Transient nature of community: Mission Park's transient nature (short tenure status) of community residents has contributed to a lack of "ownership' in making the community a better place to live. As previously mentioned, 67.1 % of the housing units in the Mission Park area are renter-occupied. Not surprisingly, homeowners are more invested in improving the quality of the Mission Park community. A good example is the Park Place Neighborhood Group that has been successful in working with the City to carry out revitalization projects in Mission Park and elsewhere in Escondido.
, ....
Latino home ownership: While homeownership among Hispanics grew nationwide to 46.7% as of December 2003, this rate falls significantly short of the nation's overall average of 68.3%.17 The Mission Park area is no exception. Obvious barriers to Latino homeownership include low incomes and high housing costs, but other important barriers can be attributed to poor consumer education, discrfmination, and a lack of outreach to the Latino market..

T6 City of Escondido, HUD Consolidated Plan, May 2005. 17 U.S. Census Bureau 2000

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Crime
Monthly statistics are available detailing the occurrences of several types of crimes in Mission Park, identified by Escondido Police as Beat 42, through the Automated Regional Justice Information System (ARJIS).

Figure 8. Monthly Crime Index for Mission Park, July 2003-June 2005

120

100

80

60

40

20

a

'" '" '" '" '" , , 0 0 0 0 0

> c :;
" " " '" " '" '" " '" " " " '" " '" '" " « ~

0,

c.

,'., u

U) 0

z 0

, , , , , , , , , , , , , , , M
0

". ". 0 0

". 0

". 0

". ". ". 0 0

". 0

". 0

". 0

". 0

". 0

In 0

In 0

In 0

In 0

In In 0 0

u C .0 L cL . >- C :;

« «'" « 0 ~ u.. :E

~
:E ~

c.

,'., u

U) 0

>
z 0

u 0

c .c L ~ u.. :E

cL . >-
:E ~

Note: Crime Index equals the sum onotal Violent Crime and Total Property Crime, ARJIS

During the 24 monthS preceding this study, the overall Crime Index (combining reported violent and property crimes) in Mission Park fluctuated from month to month but indicated an overall stable level of crime over the longer term period. In an average month, 65.4 crimes were reported in Mission Park; the Crime Index ranged from a low of 35 to a high of 107. Of these crimes, 79% were property crimes while 21% were violent crimes.

Similar to the overall Crime Index, data on reported property crimes (burglary, thefts, and motor vehicle thefts) fluctuated from month to month but were relatively stable over the full 24-month period. In an average month, 51.8 property crimes were reported in Mission Park; the reported property crimes ranged from a low of 28 to a high of 88.

For additional information about crime statistics in Escondido, see Escondido Police quarterly reports: http://www.ci.escondido.ca.us/police/news/statistics/index.html.

Nationallatino Research Center (NlRC)

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19

Figure 9. Total Monthly Property Crime in Mission Park, July 2003-June 2005
100

80

60

40

20

o

, , o. ... It) 0 u " COIJ ~ '"

I.Il I.Il I./') I.n Ln ~0 IrL 0 tJL 0 a.0 iI O0 §I u.:E«;:E'"

Note: Total Property Crime equals the sum otTotal Burglary. Total Thefts. and motor vehicle thefts; ARJIS

Reported violent crimes (murders. rapes. robberies. and assaults) also fluctuated from month to month but were relatively stable over the 24-month period preceding this study. In an average month. 13.7 violent crimes were reported; reported violent crimes ranged from a low of 7 to a high of 21.

Figure 10. Total Monthly Violent Crime in Mission Park, July 2003-June 2005

25

20

15

10

5

0

'" ... ... ... ... ... ... ... ... ... ... ... ... 0,
:;
'"" '" '" " "'" '" '" " ~

'0",
01
«::J

0'", '0",

Co OJ
III

1j 0

'0",
>
0 Z

'0",
u
OJ CI

0 ,
~

0 ,
.a
uO.J.

0 ,
L
::E

0, 0, 0,

« L
Co

>-

::J

::E ~

0 ,
:;
~

0, 0, 0

01 Co

« -6 ::J

OJ III

0

0 ,
>
0 Z

0 ,
u
OJ CI

It)
0 ,
~

It)
0 ,
.a
uO.J.

,It)
0
L
::E

, , , It) It) It)
0 0 0

« L
Co

>-

::J

::E ~

Note: Total Violent Crime equals the sum of murders. rapes. robberies. and assaults. ARJIS

NaHonal LaHno Research Center (NLRC)

Final Report + June 2006

20

Summary
According to population forecasts, as the Mission Park Community grows, the median age of residents will stay low at 25 years, incomes will remain low, and the proportion of residents who are Hispanic will grow. IS It is this growing population of low-income, young Hispanics concentrated in Escondido's inner core, low-income census tracts, which is targeted for the Mission Park project. This population and their families face numerous challenges related to poverty including high unemployment, lack of educational attainment and language barriers. The City of Escondido's Five-Year Consolidated Plan prioritizes efforts to increase the quality-of-life oppbrtunlties in the City of Escondido, particularly in Mission Park.
The Census Bureau predicts that the Mission Park area of Escondido will grow steadily in overall population within the next ten years. The Hispanic population will grow from 74% to 81 %, the median age will remain low at 25 years, and median earnings will stay well below even the current median for the City of Escondido. These forecasts point to a community that is currently, and will continue to be, in great need of inteNentions in order to significantly improve quality of life for its residents.

18 SANDAG Data Warehouse Census Tracts 202.02 and 202.12

. National Latino Research Center (NLRC)

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BACKGROUND TO MISSION PARK COMMUNITY SURVEY

Recent scholarship on communify-based strategies for change suggests grassroots activify could possibly impact communities and sociefy at large. The Mission Park partnership sought to initiate a discussion to advance issues of equify and economic justice in Mission Park. Partners agreed to support a multi-pronged strategy starting with a needs assessment that would involve communlfy residents, seNice providers, and researchers. The assessment results would then be used to work with communify resident to identify common problems or goals, mobilize resources, and, develop and implement strategies for reaching the objectives they want to accomplish.

Communify Dialogue

In addinon to examining the statistical data outlined above, the Mission Park partners also initiated numerous discussions with local residents and communify-based organizations between 2003 and 2005 to include resident voices and strategies in the research project. A reoccurring concem that emerged through these discussions was the level of civic isolation that exists among residents in the Mission Park area. Due to a combination of factors, seNice providers and residents alike described a general "disconnect" between communify members and local institutions and agencies.

Figure 11. Neighbor-fo-Neighbor Dinner, June 2004

With this in mind, the universify and partner

agencies involved Mission

Park residents in identifying

and prioritizing the key issues

as well as developing

strategies and objectives for

the needs assessment. The

need for civic engagement

and communify involvement

in Mission Park is further

supported in the Cify of

Escondido's Consolidated

Plan where priorify emphasis

is given to increasing

"qualify of life opportunities

for Mission Park Area

students and families by

Improving their social and physical environment" (2005, p. 6).

Through a series of communify dialogues, focus groups, and communify forums, the MiSSion Park project sought to include communify residents. In the spring of 2003, faculfy member/NLRC Associate Dr. Kim Knowles-Yanez and AmeriCorp volunteer Vanessa Riedel organized a focus group with residents of the Park Place Neighborhood Association In Mission Park to learn more about their concerns, priorities and ideas for a Mission Park communify-universify partnership. As a small but acnve group, they noted that even long-term reSidents of the neighborhood did not start getting to know each other until the neighborhood group was formed in 1999. As a prime example of the effectiveness of resident engagement the group has been successful In getting cify

. Notionol Lanno Reseorch Center (NLRC)

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22

funding for the uniform black fencing that now defines the boundaries of their neighborhood. The city supplied the material while neighborhood residents supplied the labor.
Members of the group expressed a variety of concerns that ranged from language barriers to lack of information and limited access to resources. A specific recommendation that was echoed by members of the group early on was the development of a "Centro de Padres' (Parents' Center or Family Resource Center) which would serve as a place for disseminating bilingual information about resources and opportunities. It would also serve as a place for children to work on computers after school and other training opportunities for members of the community.

"Neighbor-Io-Neighbor" Dinner DiSCUSSions

With the help of the City of Escondido. the Mission Park partners convened another community dialogue in June 2004. identifying a group of residents and community leaders to participate in a "Nelghbor-to-Neighbor- dinner discussion. Over 30 people participated. including residents and representatives from the local schools and school board. churches. community-based organizations. the City of Escondido. the local community college, the National Latino Research Center. and Cal State San Marcos faculty. City and NLRC/CSUSM staff provided bilingual facilitation for several roundtable diSCUSSions about the strengths, challenges. and most significant barriers in the Mission Park community. See Table 3 for an overview of strengths and opportunities discovered and Table 4 for a list of barriers and needs identified for Mission Park.

The outcome of these discussions was an overwhelming consensus that Mission Park

would benefit significantly from r=;,---=-=--:--:-:--.---:---:c:-:--;-;--=---;--=:::-:------,

(1) a civically engaged

Figure 12. Neighbor-Io-Neighbor Dinner, June 2004

community; (2) increased

collaboration with schools and expanded educational

enrichment programs; (3) and neighborhood revitalization

which included decent and

affordable housing. Residents

again expressed a lack of

access to information (particularly in Spanish) and limited knowledge about

available resources.

Additionally they recognized community assets including the

schools and the potential of residents to "take backMission Park. The following

table summarizes the strengths

and barriers generated at the community meeting held on June 1, 2004.

National Latino Research Center (NLRC)

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Table 3. Strengths and/or Opportunities in Mission Park

Schools
Parent Involvement Programs
Social Capilal

Strengths and/or Opportunities
The area schools are an asset, but more programs and collaborations with the schools need to be cultivated. In particular, Grant Middle School (in the heart of Mission Park area) is seen as an imgortant asset in the community and an ideal location for events. The Parent Institute and ESL program for parents are two examples of parents working well with teachers and becoming involved in the schools. The Latino community has many hardworking, dedicated, and caring people of all ages with great potential to work together. make a difference, "take back" their neighborhood and make Mission Park area a better place to live.

Neighborhood Associations

The area has organized neighborhood associations such as Park Place Group.

Communication Networks
City Resources
Walkability Family/youth Programs

There Is good communication among neighbors, particularly in times of need. There are City resources that are focused on improving the quality of life in the Mission Park Area. In particular, there are programs such as the City's "Neighborhood Porch" as well as the resident leadership tralnina courses sponsored by the City. Most stores and schools are located within walkinQ distance. The programs at the Boys & Girls Club as well as the YMCA are community strenaths, but more after-school proarams are needed.

Notionol Latino Research Center (NLRC)

Final Report. June 2006

24

Table 4. Barriers and/or Needs in Mission Park

Deteriorating Schools
Civic Isolation & Lackot Community Involvement
High Density Housing & Overcrowding
Lack of information & fear
Crime, gangs & safety
Trash, graffiH & overall deteriOration of neighborhoods Lack of parks & recreational facilities Lack of oraanizations

Barriers and/or Needs While local schools were considered an asset. residents expressed a need for infrastructure improvements, more space, more collaboration with schools, and more after-school and educational enrichment programs.
.:. Residents are not civically engaged, informed, or Involved .:. Low voter registration and many new citizens not voting
because they are unsure about the process or feel overwhelmed
.:. Residents who are unfamiliar with civic institutions, the role of
government, or how to access government SeNices
.:. Lack of affordable apartments/housing .:. Lack of support from landlords & housing management .:. Overcrowding in apartments with multiple families living under
one roof leading to many related issues such as excess trash, stress and lack of space for children to study and play (. Transient nature of community with many reSidents who are not rooted in the community and may not be committed to making it a better place.
.:. Fear of immigration/border patrol .:. Lack of information about seNices and resources .:. CommunfrLmembers don't know each other .:. Lack of police & poor communication .:. Lack of security and safe places for youth .:. Need for a neighborhood watch system .:. Concern about small children walking by themselves to and
from school
.:. Negative influence of numerous liquor stores, particularly en
route to schools
There is a general need for improving the overall appearance of the community and to revitalize buildings and eliminate excess trash, litter, and graffiti. '
There is not enough green space, parks and facilities where families & children can safely play.
Residents expressed a need for a Family Resource Center as well as a center that supports women and mothers in particular.

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"Defining Your Community"

In March 2005, a focus group was conducted by the NLRC with Escondido residents participating in the Neighborhood Civic Leadership Program (NCLP), a training developed by Community HousingWorks and funded by the City of Escondido. NCLP offers opportunities for participants to build and strengthen leadership skills, and provides networking opportunities and tools which can be applied towards developing stronger communities, The topic for this focus group was "Defining Your Community" and was dedicated to discussing common community goals. A total of 9 Mission Park residents participated, Of the participants, 5 were Latino and 3 were monolingual Spanish and/or limited English speakers. Residents again expressed a lack of access to information (particularly in Spanish) and limited knowledge about available resources. In addition, residents identified many health conditions (diabetes, cardiovascular disease, and obesity) as well as lack of affordable health insurance, fear of deportation, and a general lack of knowledge about health conditions, services and resources. They also concurred that addressing these issues requires that the community work in partnership with private and public organizations, businesses, the media, government officials, health care agencies, educational institutions and researchers.

The Mission Park partners have recognized the need to engage residents in defining their

community, cultivating their social networks, documenting their past and current

contributions, and building the community's social capital. Social capital. as defined by

the World Bank, refers to "the institutions, relationships, and norms that shape the quality

and quantity of a community's social interactions....social capital is not just the sum of

the institutions which underpin a society - it is the glue that holds them together". 19 A

growing body of evidence suggests that communities with high social capital are more

likely to benefit from lower crime rates, better health, higher educational achievement.

and better economic growth.

.

Concems expressed in the dialogues and focus groups were incorporated into the community survey design to better understand resident perceptions regarding youth issues and activities, community resources and social networks, employment & economic development. and housing and neighborhood safety.

19 World Bank (1999) http://www.worldbank.org/poverty/scapltal/whatsc.htm

Nafional Latino Research Center (NLRC)

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MISSION PARK COMMUNITY SURVEY

Between May and December 2005, a community survey was conducted among 200 residents of the Mission Park community to assess residents' perceptions and priorities for improving their community. Survey participation focused on residents who were at least 18 years of age. Participation was also strictly voluntary. The survey was conducted doorto-door by bilingual interviewers in both English and Spanish. A small Incentive ($10 grocery store gift card) was offered to participants. Interviews were conducted during the week and on weekends at various hours of the day.

To obtain a more representative sample of community residents, the community was divided into four data collection areas according to U.S. Census boundaries.

The following maps illustrate each of the areas covered:

Figure 13. Mission Park Area 1

Figure 14, MiSSion Park Area 2

. National LaHno Research Center (NLRC)

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27

The survey was approximately 25 minutes long and focused on four key areas: Youth Issues and Education, Community Resources and Social Networks, Employment and Economic Development, and Housing and Neighborhood Safety. The survey closed with a brief section to obtain demographic information.
After a brief introduction, the survey began with questions about youth issues and education. The first part of the youth section asked for all residents, whether parents or not, to respond to questions about schools, neighborhood safety for children, and youth recreational opportunities. Specific questions were also included for parents of children 17 and under and for parents of children enrolled in local schools.
The second survey section consisted of questions about community resources and social networks. This section included questions about social services and government assistance, health care and health insurance, social connections with the community, and city services.
A third section asked community residents about employment and economic development. This section asked about the economic and employment situation in Mission Park broadly and within each interviewee's family.
The fourth section focused on housing and neighborhood safety. This section assessed affordability and quality of housing. the impact of cost of living on residents, and residents' perception of neighborhood safety and crime.

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" .<;

SURVEY· PARTICIPANT DEMOGRAPHICS

'

Efhnicity
The vast majority (88%) of sUNey participants identified their ethnicity as Hispanic or
Latino. The remainder identified as White (8%). African American (2%). Asian or Asian American (0.6%) and 'Other" (1%).
Figure 17. Efhnicity of Mission Park Residents (by area)

Jc1l 100% ~ c 80%
8.
& 60%
'6
8. 40%
2c 20%
l " 0%

heal

hea2

hea3

Comrunity Areas

hea4

I!!iI Latino

Il'IWhlte

l1li Other

Figure 18. Country of Birth (by area)

Jc1l 100%

~
c

80%

8.

0
~

60%

'6

" 40%
C)
"2c 20%
~

CD 0.

0%

hea 1

hea2

hea3

Comrunlty Areas

hea4

Ill! US l1li Mexico l1li Centrall'menca l1li Other

.NaHonal LaHno Research Cenler(NLRC)

Final Report + June 2006

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Socioeconomic Indicators (income)
Eighty-five percent of survey participants reported family income; 2% declined to provide income information and 13% did not know the family income. Among survey participants who provided income information, family income levels were relatively low.

Immigration and nationality
A large majority (85%) of survey participants were born outside of the United States. Most participants (81 %) were born in Mexico, while fewer were born in other non-U.S. areas (Central America: 3%, "Other": 1%).

Educational aHainment
Sirnilar to U.S. Census data for the area, survey participants have generally attained low levels of education.

Language use
When asked "In what language do you usually communicate?" a majority of respondents (66%) indicated Spanish. A substantial number (18%) indicated that they comrnunicate in both Spanish and English,16% indicated English, and 0.2% indicated each of Mixteco, French and Swahili, and Tagalog.

Figure 19. In what language do you usually communicate?
70% 60%

10%
0% Spanish

English

Both

La~.guage Spoken

Other

When asked "In what language do you read most?" a rnajority of respondents (66%) indicated Spanish. Several participants (14%) indicated reading equally In both Spanish and English, 17% indicated reading most in English, and 3% of participants indicated that they do not or cannot read.

Nation.al LaHno Research Center (NLRC)

Final Report + June 2006

30

Figure 20. In what language do you read most?

70%
60% :l ~ 50%
.il
o
~ 40%
'<~I 30%
j'" 20%
~ 10%
0%

Spani'sh

English

Both

Language Read

Does not read

Housing Indicators
Survey participants have lived in Mission Park for an average of 5.6 years, with a range from 0 months to 60 years. The vast majority (85%) of respondents indicated that they rent their homes, while only 15% live in owner-occupied homes.
Figure 21. Do you own or rent? By area

90%

80%

:l 70%
151 60%
! o 50%
~g:, 40% ~ 30%
.t.. 20%
10%

0%+----

Own

Rent

Housing

Most survey respondents (76%) live in multi-unit complexes such as apartments or condos. A smaller group (23%) lives in single-family homes, while 0.6% lives in mobile homes.

!\I0tional Latino Research Center (NLRC)

~!Oal Report + June 2006

31

1 Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453)
ROSNER & MANSFIELD, LLP 3 10085 Carroll Canyon Rd., 1st Floor
San Diego, CA 92131 4 Tel: (858) 348-1005
Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804)
10 MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATION FUND (MALDEF)
11 634 S. Spring Street, II th Floor Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266
13 Counsel for Plaintiffs
14 [Additional Counsel Appear on Signature Pagel

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT;

CASE NO. 06 CV 2434 JAR (NLS)

ESCONDIDO HUMAN RIGHTS COMMITTEE;

18 JANE DOE 1;

DECLARATION OF ESTELA DE LOS

JANE DOE 2, 19

RIOS IN SUPPORT OF PLAINTIFFS' MOTION FOR TEMPORARY

20

Plaintiffs,

RESTRAINING ORDER

21

v.

22 CITY OF ESCONDIDO,

Date: To Be Set Time: To Be Set Courtroom: The Honorable John A. Housto

23

Defendant.

24

25

26

Estela De Los Rios hereby states as follows, based on personal knowledge:

27

1. I am employed as the Human Rights Director for the Center for Social Advocacy

28

1
06 CV 2434 JAH (NLS)

1 (CSA), which is located at 1068 Broadway, Suite 221, El Cajon, CA 92021.

2

2. CSA provides a variety of services in the area of fair housing, including

3 counseling, monitoring of discrimination, education and outreach, and mediation. CSA provides

4 information concerning state and federal fair housing laws. CSA receives and investigates
5
allegations of fair housing violations. CSA operates a telephone hotline, with services in English 6
and Spanish, to receive complaints of fair housing violations.
7

8

3. CSA has a contract to provide such services in the City of Escondido, California.

9 Our contract is to provide fair housing counseling and dispute mediation to over 2000 clients a

10 year. We provide Spanish-English bilingual educational fair housing seminars, presentations, and
11 community forums for tenants, landlords, and apartment managers. 12
4. As of October 4,2006, when Escondido's ordinance concerning renting to 13
undocumented immigrants was introduced, we averaged approximately 10 calls per week from 14 15 tenants in Escondido. Since October 4,2006, we have received an average of20 calls per week
16 from tenants in Escondido.

17

5. Since October 4, 2006, we have received numerous calls from Escondido stating

18 the following:

19

a. Landlords have demanded documentation of immigration status from tenants,

20 causing tenants to feel intimidated and concerned about their rights. Tenants have been subjected
21

to eviction or threatened eviction if they did not have such documents.
22

23

b. Landlords have warned tenants to be ready to show documentation of immigration

24 status, once the ordinance has passed.

25

c. Landlords have raised the rent for tenants whom the landlords believe to be

26 undocumented, as a form of intimidation or exploitation.
27

28
2
06 CV 2434 JAH (NLS)

1

d. Tenants have received 30-day notices and been Bljked 1 I vacate their apartments

2 due to the ordinance.

:I

e. Tenants have asked US to clarify thcir.rights and the sta us and contents ofthe

4
ordinance.

5

I declare under penalty ofpezjury that the foregoing is true anc. correct.

6 7 DATED: November..8: 2006

V 4J Executed at

'(j' l. California

8

~M~

9

ESTELA DE LOS RIOS

10

11

Additional Counsel for Plaintiffs: 12

Omar C. Jadwat, Esq. 13 oiadwat@aclu.org
Lee Gelernt, Esq. 14 AMERICAN CIVIL LmERTTES UNION
FOUNDATION 15 Immigrants' Rights Project
125 Broad St., 18th FI. 16 New York, NY 10004
Tel.: (212) 549-2620 17 Fax: (212) 549-2654
Jennifer C. Chang, Esq. (SBN 233033) 18 jchang@aclu.org
(Application for Admission Pending) 19 Lucas Guttentag, Esq. (SBN 90208)
AMERICAN CJVIL LffiERTIES UNION 20 FOUNDATION
Immigrants' Rights Project 21 39 Drumm Street
San Francisco, CA 94111 22 Tel.: (415) 343-0774
Fax: (415) 395-0950 23

Elliot

Esq.

24

WAY 25 2000 M Street N.W., Suite 400
WBljhington, D.C. 20036 26 Tel: (202) 467-2392
Fax: (202) 293-2672 27

David Kline, Esq. (SB1 241636) david@thcsd.com THE FAIR HOUSING .:::OUNCIL OF SAN DIEGO 625 Broadway, Suite 1 14 San Diego, CA 92101 Tel: (619) 699-5888, E. t. 212 Fax: (619) 699-5885
Philip Tencer, Esq. (SB IT 173818) tencerpc@cooJey.com Michael Levinson, Esq (SBNI04155) levinsontns@cooley.co ! COOLEY GODWARr KRONISH LLP .
440 I Eastgate Mall
San Diego, CA 92121- 909 Tel: (858) 550-6035 Fax: (858) 550-6420
Christopher Brancart, 1 Iq. (SBN 128475)
~::~~~~ [(SBN 122092)
ebrancart@brancart.col l BRANCART & BRAI' :ART P.O. Box 686 Pescadero, CA 94060 Tel: (650) 879-0141 Fax: (650) 879-1103

28

1 Hallen D. Rosner, Esq. (SBN 109740) Alan M. Mansfield, Esq. (SBN 125998)
2 Virginia Y. Calderon, Esq. (SBN 171453)
ROSNER & MANSFIELD, LLP 3 10085 Carroll Canyon Rd., 1st Floor
San Diego, CA 92131 4 Tel: (858) 348-1005
Fax: (858) 348-1150
5 David Blair-Loy, Esq. (SBN 229235)
6 ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
7 P. O. Box 87131 San Diego, CA 92138-7131
8 Tel.: (619) 232-2121 Fax: (619) 232-0036
9 Cynthia Valenzuela, Esq. (SBN 186804)
10 MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)
11 634 S. Spring Street, 111h Floor Los Angeles, CA 90014
12 Tel: (213) 629-2512 Fax: (213) 629-0266
13 Counsel for Plaintiffs
14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE SOUTHERN DISTRICT OF CALIFORNIA

17 ROY and MARY GARRETT; ESCONDIDO HUMAN RIGHTS COMMITTEE;
18 JANE DOE 1; 19 JANE DOE 2,

20

Plaintiffs,

21

v.

22 CITY OF ESCONDIDO,

CASE NO. 06 CV 2434 JAR (NLS) PROOF OF SERVICE

23

Defendant.

·24

25

I, the undersigned, declare under penalty of peljury that I am employed with the law firm of ROSNER & MANSFIELD, LLP, whose address is 10085 Carroll Canyon Road, lSI Floor, San

26

Diego, California 92131. I am over the age of eighteen years and not a party to this action; that I served the below named persons the following documents:

27

DECLARATION OF ESTELA DE LOS RIOS IN SUPPORT OF PLAINTIFFS'

28

MOTION FOR TEMPORARY RESTRAINING ORDER

PROOF OF SERVICE

1
06 CV 2434 JAH (NLS)

1 [1
2

By personally delivering copies to the person served at the following address:

3 [1
4

By leaving, during usual office hours, copies in the office of the person served with the person who apparently was in charge and thereafter mailing (by first-class mail, postage prepaid) copies to the person served at the place where the copies were left.

5 [1 By leaving copies at the dwelling house, usual place of abode, or usual place ofbusiness
of the person served in the presence of a competent member ofthe household or a

6

person apparently in charge of his office or place of business, at lease 18 years of

age, who was informed ofthe general nature of the papers, and thereafter mailing

7

(by first-class mail, postage prepaid) copies to the person served at the place where

the copies were left.

8 [ 1 By placing a copy in a separate envelope, with postage fully prepaid, for each address

9

named below and depositing each for collection and mailing pursuant to the

ordinary business practice ofthis office, which mail is deposited with the U.S.

10

Postal Service on the same day at San Diego, California:

11 [1 By Overnight Mail by placing an Overnite Express Envelope addressed to:
12

13

and depositing said envelope in the Express Pickup Boxes located at Business Park Way

and Carroll Canyon Road in San Diego, California 92131.

14 [ 1
15

Via facsimile to the persons and fax numbers listed below. I did not receive, within a reasonable time after the transmission, any electronic message or other indication that the transmission was unsuccessful.

16 [ X 1 By electronic service by emailing PDF versions of the above documents to the following

17

persons:

18 Christopher W. Garrett
19 LATHAM & WATKINS LLP 600 West Broadway, Suite 1800
20 San Diego, CA 92101-3375 Tel: (619) 236-1234
21 Fax: (619) 696-7419 email: christopher.garrett@lw.com
22
Attorneys for the Defendant, CITY OF 23 ESCONDIDO
24

Jeffry Epp, City Attorney CITY OF ESCONDIDO 201 North Broadeay Escondido, CA 92025 Tel: (760) 839-4608 Fax: (760) 741-7541 email: jepp@escondido.org
Attorney for the Defendant, CITY OF ESCONDIDO

25

26

27

28 2
PROOF OF SERVICE

1 Donald Lincoln ENDEMAN, LINCOLN, TUREK &
2 HEATERLLP
600 "B" Street, Suite 2400 3 San Diego, CA 92101-4508
4 Tel: (619) 544-0123 Fax: (619) 544-9110
5 Email: dlincoln@elthlaw.com

6 Attorneys for the Defendant, CITY OF ESCONDIDO

7

L Executed this day of November , 2006 at San Diego, California.

8

9

/s/ Sally Cormier

SALLY CORMIER

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 3
PROOF OF SERVICE

EXHIBIT 5

Duane D. White Chief of POlice 700 West Grand Avenue, Escondido, CA 92025 Phone: 760-839-4721 Fax: 760-839-4919 dwhite@ci.escondido.ca.us

NEWS RELEASE

FOR IMMEDIATE RELEASE

DATE: January 9, 2006

CONTACT: Lt. David Mankin PHONE: 760.839.4700

ESCONDIDO'S CRIME INDEX FALLS in 2005

Both the California Crime Index (CCI) and FBI Crime Index (FBI-CI) report a decline in crime for the City of Escondido. The CCI index total reflects a decline of 15.31%, while the FBI-CI reflects a decline of 11.50%. The difference in the indexes is that the CCI excludes larceny statistics, which are reflected in the FBI-CI.

Leading the decline is a drop of 32% in the rate of reported auto thefts, from 1576 in 2004, to 1079 in 2005, down 497. CCI property crime totals report a decline of 20.37%, while the FBI-CI reports a decline of 13.16%. Residential burglaries fell from 412 in 2004, to 399 in 2005, a decline of 3.16%; however, commercial burglaries rose from 373 in 2004, up 29 cases to 402 in 2005, a 7.77% increase. All reported larcenies declined 7.98%, from 3294 cases in 2004, down 263 cases to 3031 in 2005.

The violent crime total reported an increase of 2.37%, up 16 cases from 676 in 2004, to 692 in 2005. Homicides fell from 3 in 2004, to 2 in 2005. Robberies declined 6.06%, from 198, down 12 cases to 186 in 2005. Aggravated assaults rose 4.42%, from 453 in 2004, up 20 cases to 473 in 2005. Rape rose 9 cases from 22 in 2004, to 31 in 2005, a 40.91% increase (based on the low incident of occurrence, any change will dramatically effect percentages).

Respectfully Submitted, Lt. David R. Mankin
###

Lori Holt rfeller, Mayor

Ed Gallo, Mayor rro Tern

Marie Waldron

Ron Newman

Sam Abed

PART I CRIME COMPARISON (Quarter)
4th Quarter 2005

category Homicide Rape Robbery Aggravated Assault Burglary Larceny Motor Veh. Theft Arson

4th QTR 2005 0 4 57 97
205 769 276 17

4th QTR 2004 2 6 59 114
175 894 432
1

Abslt Chge -2 -2 -2 -17 30
-125 -156
16

% Change N/A N/A
-3.4% -14.9% 17.1% -14.0% -36.1%
N/A

Total

1425

1683

-258

-15.3%

• Current_Year . Previous_Year

Homicide

Rape

Robbery

Aggravated Assault

Burglary

Larceny

Motor Veh. Theft

Arson

Prepared by the Crime Analysis Unit

Tuesday, February 07, 2006

DETAILED PART 1 CRIME COMPARISON
4th Quarter 2005

CATEGORY Homicide Rape Robbery
Armed Strong-Arm Total Aggravated Assault

4th QUARTER 2005 4th QUARTER 2004

0

2

4

6

25

27

32

32

57

59

97

114

Total Violent Crime

158

181

Burglary

Residential

103

89

Non Residential

102

86

Total

205

175

Larceny

Grand (Over $400)

249

262

Petty (Under $400)

520

632

Total

769

894

Motor Vehicle Theft

276

432

Arson

17

1

Total Pro~erty Crime Total Part 1 Crime

1267 1425

1502 1683

ABSLT CHGE -2 -2

%CHNG N/A N/A

-2

-7.41%

0

N/C

-2

-3.39%

-17

-14.91%

-23

-12.71 %

14

15.73%

16

18.60%

30

17.14%

-13

-4.96%

-112

-17.72%

-125

-13.98%

-156

-36.11%

16

N/A

-235

-15.65%

-258

-15.33%

Prepared by the Crime Analysis Unit

Tuesday, February 07, 2006

DETAILED PART 1 CRIME COMPARISON
4th Quarter 2005
Violent Crime
• Quarter (Current) GJ Quarter (Previous)

Murder

Rape

Armed Ro bbery

Stro ng-A rm Robbery

Aggravated Assault

Property Crimes
• Quarter (Current)
o Quarter (Previous)

Res. Burglary

Non Res. Burglary

Grand Larceny Petty Larceny M otorVehlcle Theft

Arson

Prepared by the Crime Analysis Unit

Tuesday, February 07, 2006

PART II CRIME COMPARISON (Quarter)
4th Quarter 2005

category Simple Assaults Child & Family Deadly Weapon Forgery/Fraud Vandalism Sex Crimes Other Part II Crimes

4th QTR 2005 222 47 3 69 267 22 196

4th QTR 2004 222 59 0 106 270 34 301

Abslt Chge 0 -12 3
-37 -3 -12 -105

% Change N/C
-20.3% N/A
-34.9% -1.1% -35.3% -34.9%

Total

826

992

·166

·16.7%

• current_Year Year

Simple Assaults

Child & Family Deadly Weapon Forgery/Fraud Vandalism

Sex Crimes

Other Part II Crimes

Prepared by the Crime Analysis Unit

Tuesday, February 07,2006

E HIBIT 7

Revised 6-5-06 Incorporated: 10-8-1888

CITY OF ESCONDIDO DEMOGRAPHICS
Elevation: 400 ft.-2, 100 ft'" Latitnde: 330 North

Longitnde: 1170 West

Size:

Ci!l:, Limits***
23,664.33 acres 36.98 sq. miles

SRhere of Influence***
43,597.13 acres 68.12 square miles

Industriall~ Zoned ProI!erties
1,202 acres

POl!ulation: Escondido Growth from Prior Period County:

1980
64,355 75% 1,861,864

1990 108,635 69% 2,498,016

2000
133,559 23% 2,813,833

2002
136,956 2.5% 2,918,254

2004
140,671 2.7% 3,017,204

2006* 140,766 .06% 3,066,820

Ethnici1Y:
1990 Census
2000 Census
2004SANDAG
Gender: 1990 Census 2000 Census 2004SANDAG
Age: 2004SANDAG

White 77,507 71.3% 69,305 51.9% 68,323 49%

Latino 25,380 23.4% 51,693 38.7% 58,626 42%

Female 55,273 67,330 70,857

Male 53,362 66,229 69,814

<15

15-34

24% 31%

Black 1,254 1.2% 2,734 2.0% 2,741 1.9%
35-64 35%

Native American

Asian

Hawaiian! Pacific Islander

776

5,812

0.6%

4.4%

828

6,509

0.5%

4.0%

251 0.2% 267 0.2%

65>

Median Age: 31.5

10%

Mixed Race/Other
2,988 2.2% 3,377 2.4%

Housing Units

1990 42,040

1992

1994

1996 1998 2000 2002 2004 2006*

42,893 43,423 43,837 44,577 45,050 45,575 46,155 46,934

Housing Types

Sing1e-Famil), Homes* Multifamil), (Allts/Condos)* Mobilehomes*

25,996

17,008

3,930

Persons per Household

1990 1992 1994 1996 1998 2000 2002 2004 2006* 2.73 2.76 2.795 2.853 2.924 3.01 3.054 3.09 3.045

Escondido's

1990

1996 1998 2000 2002 2003 2004**

Median Income $33,260 $33,990 $38,969 $42,567 $43,328 $45,165 $46,907

Per Household

San Diego County's 1990 1996 1998 2000

Median Income

$35,022 $38,477 $42,357 $46,503

Per Household

2002 $47,268

2003 $49,649

2004** $52,192

Household Income**

<$15k $15k - $30k $30k - $45k $45k - $60k $60k-$75k $75k-$100k $IOOk+

11%

20%

18%

15%

11%

11%

14%

Sources: * State Department of Finance Estimates
" 2004 SANDAG Estimates (99$ adjusted for inflation) '*' GIS Manager, Info. Systems. (includes Daley Ranch area)
Ptemp:/CommDev/PlanninglDemographics.doc www.ci.escondido.ca.us/glanceldemographics

E HIBIT 8

June 14, 2005

Unauthorized Migrants: Numbers and Characteristics

About the Paper
This report was developed as a briefing paper for the Independent Task Force on Immigralion and America's Future, co-chaired by fonner Senator Spencer Abraham (RMI) and former Congressman Lee Hamilton (D-IN). The bipartisan task force has been convened by the Migration Policy Institute in partnership with the Manhattan Institute and the Woodrow Wilson International Center for Scholars. The report on the unauthorized population was presented to the task force by the Pew Hispanic Center, a nonpaI1isan research group in Washington DC, to provide a factual basis for its discussions. The Pew Hispanic Center, which does not engage in issue advocacy, is not participating in the task forcc's deliberations or its policy recommendations.
The report draws on both new research and previous work done by the author at the Pew Hispanic Center and the Urban Institute where he worked until January 2005.

Background Briefing Prepared for Task Force on Immigration and America's Future
By Jeffrey S. Passel Senior Research Associate
Pew Hispanic Center

Pew Hispanic Center

A Pew Research Center Project

www.pewhispanic.org

1615 L Street, NW, Suite 700 • Washington, DC 20036-5610

Phone: 202-419-3600 " Fax: 202-419-3608

'nauthorized Population
How Many?
Numbers & Trends Where Are They From? Where Are They Going?
Who Are They? What Statuses? Families & Children
What Are They Like? Education & Income Labor Force
Growth of Mexicans

This report presents a range of material on the unauthorized migrant population resident in the United States;* Several major aspects of unauthorized migrants in the U.S, receive attention:
Demographic Aspects: How many immigrants are coming to the U.S.; How many are already in the U.S.; What share are they of the U.S, immigrant population; Where do they come from; Where do they live in the U.S.; What legal statuses do immigrants have; What kinds offamilies do they have; How old are they?;
Socioeconomic Characteristics: What are the unauthorized migrants' levels of education; What occupations have the most unauthorized migrants; How do their incomes compare with other groups; What are their poverty levels; Howmany do not have health insurance?
Finally, the briefing pulls together information from Mexico and the United States to describe trends in the growth of the Mexican-bom population of the United States. Population projections for the number of Mexicans in the U.S. through 2050 are presented.

* This repOit uses the term "unauthorized migrant" to mean a person who resides in the United States, but who is not a U.S.
citizen, has 1I0t been admitted for pennanent residence, and is /lot in a set of specific authorized tempormy statuses pennitting longer-term residence and work. (See Passel, Van Hook, and Bean 2004 for fUliher discussion.) Various labels have been applied to this group of unauthorized migrants, including "undocumented immigrants," "illegals," "illegal aliens," and "illegal immigrants." The term "unauthorized migrant" best encompasses the popUlation in our data because many migrants now enter the country or work using counterfeit documents and thus are not really "undocumented," in the sense that they have documents, but not completely legal documents. While many will stay permanently in the United States, unauthorized migrants are more likely to leave the country than other groups (Van Hook, Passel, Zhang, and Bean 2004). Thus, we use "migrant" rather than "immigrant" to highlight this distinction.

,> ;

P.ew

.

RlSpamC

Center

Page 2

L ., Status ofImmigrants

Legal Permanent Resident (LPR) Aliens
(10.4 million) 29%

Unauthorized Migrants
(10.3 rniJ/ion) 29%

Naturalized Citizens (former
(11.3 million) 32%

Temporary Legal Residents
(1.2 million) 3%
Refugee Arrivals--
(Post-'30)
(2.5 million) 7%

35.7 Million Foreign-Born in 2004
(Demographic estimates based on March 2004 CPS with allowance for omissions)

The chaIt sub-divides the foreign-born population in 2004 according to estimates of legal status.
In 2004, naturalized citizens represent just under one-third of the foreign-born population at 11.3 million or 32% of the 35.7 million estimated total. Legal permanent resident aliens (LPRs or "legal immigrants") who have not yet become citizens represent about 10.4 million or about 29% of all immigrants living in the country. A substantial share of the foreign-bom population (just over 10 million or 29%) is unauthorized (either entering clandestinely without inspection, with fraudulent documents, or overstaying visas), and a smaller share (2.5 million or 7%) is made up ofrefugees** (immigrants who fled persecution). Another 3-5% of foreign-born residents are "legal nonimmigrants," temporary visitors such as students and temporary workers.
The unauthorized popUlation has been steadily increasing in size (and possibly by large increments since the last half of the 1990s). Similarly, the naturalized citizen population has grown rapidly in recent years as increasing numbers of legal immigrants have become eligible and taken advantage of the opportunity to naturalize. The LPR alien population, on the other hand, actually decreased for several years as the number who have naturalized (or left the U.S. or died) exceeded the number being admitted.
** Some refugee and asylees have naturalized. If the refugees (and asylees) are grouped with LPRs and
naturalized citizens, LPRs represent 11.8 million or 33% of all inunigrants and naturalized citizens, 12.4 million or 35%.
Source: Based on Pew Hispanic Center estimates derived principally from the March 2004 CUITent Population Survey (CPS) and Census 2000 (Passel 2005). (See also Passel et al. 2004; Passel 2002, 2003.) Neither dataset, however, includes direct infornlation on unauthorized status Of any legal status, other than naturalization. Our estimates also draw on data from the Immigration and Naturalization Service (INS), the Department of Homeland Security (OJ-IS), and information about countries of birth, time spent in the U.S., and occupation (Passel and Clark 1998; Passel, Van Hook, and Bean 2005.) Note that these estimates include an allowance for immigrants not included·in the CPS.

Page 3

Unauthorized Are Latin American

other
Latin America -- 24%
2.5 million

nI lnUe Xi "i C O

~w

I 'i;f;"»

•

.

.

,

'S! "/0

5.9 million

Asia -- 9%
1.0 million

Europe & Canada -- 6%
0.6 million
Africa & Other -- 4%
0.4 million
10.3 Million Unauthorized in March 2004
(Demographic estimates based on March 2004 CPS with allowance for omissions)
This chart shows estimates of the unauthorized migrant population as of March 2004 subdivided the country/region of bilth.
There are about 10.3 million unauthorized migrants estimated to be living in the United States as of March 2004. Of these, about 5.9 million or 57% are from Mexico. The rest of Latin America (mainly Central America) accounts for another 2.5 million or about one-quarter of the total. Asia, at about 1.0 million, represents 9%. Europe and Canada account for 6% and Africa and Other about 4%.

The estimates presented in this chart are derived by Passel (2005) using residual techniques applied to the March 2004 CPS. Note that the methodology adjusts for legal immigrants and unauthorized migrants not included in the March 2004 CPS; approximately 1 million unauthorized migrants are estimated to be omitted from the CPS.
Source: Based on Passel 2005 using methods described in Passel et ai. 2004. See also pages 3, 7·-9.

-Elelwspamc Center

Page 4

Unauthorized Arrived Since 199(J

2000~d04
3.1 million - 30%
(700,000 per year)

19805
1.3 million -- 14%
(130,000 per year)

3.6 million -- 35%
(750,000 per year)

1990a 94
2.2 million "- 21%
(450,000 per year)

10.3 Million Unauthorized in March 2004
(Demographic estimates based on March 2004 CPS with allowance for omissions)

This chart shows estimates of the unauthorized migrant population as of March 2004 subdivided by when the migrants arrived in the United States.
About 30% of the unauthorized population in 2004 or 3.1 million persons arrived in the 4+ years since 2000. In the 5 years before that, 3.6 million arrived. Thus, about two-thirds of unauthorized migrants have been in the country less than 10 years.
Note that the average number of arrivals each year during any period is likely to have been larger than the annualized figures shown here because some of the arrivals will have left by 2004. Thus, the data presented here suggest that the annual unauthorized entries in the post-2000 period, while still extremely high, may have decreased somewhat from the period just before 2000.
It should also be emphasized that these estimates represent persons still in an unauthorized status as of March 2004. For example, many persons who arrived as unauthorized migrants during the 1980s acquired legal status through the Immigration Reform and Control Act of 1986 (IRCA) or other mechanisms in the more than one decade since they arrived. Thus, average annual arrivals of unauthorized migrants during the I 980s were undoubtedly higher than the figures shown here.

Source: Based on Passel 2005 using methods described in Passel et al. 2004. See also pages 3, 7-9.

Page 5

Alifff"a' Arrivals of Unauthorized
IE:rtceed L.ega/s Since <N1995
Average Annual Arrivals of 2004 Population by Legal Status in 2004
o Legal Immigrants II Unauthorized Migrants

1980s

1990-94

1995-99

2000-March 2004

The figures represent the population as of March 2004 subdivided by their legal status in 2004 and by the period when they arrived in the United States. There are a number of interesting relationships shown by these data:
I. The number of legal immigrants arriving has not varied substantially over this period. ("Legal immigrants" here include LPRs, refugees, and asylees.)
2. As in the previous chaIt, the vast majority of unauthorized migrant have arrived in the last 10 years.
3. Since the mid-1990s, arrivals of unauthorized migrants have exceeded arrivals oflegal immigrants.
4. The data suggest the possibility of a slight decrease in both legal and unauthorized migrants since the late 1990s.
Note that the average number of arrivals each year during any period is likely to have been larger than the annualized figures shown here because some of the arrivals will have left by 2004. Thus, the data presented here suggest that the annual unauthorized entries in the post-2000 period, while still extremely high, may have decreased very slightly from the period just before 2000.

Source: Derived from data shown on page 5. Based on Passel 2005 using methods described in Passel et a1. 2004. See also pages 3, 7-9.

Page 6

Methods: Residual Estimates cf Unauthorized Migrants
Widely Used: Warren (INS) Passel (et al.) 8i-National Study
Unauthorized Population := Total Foreign-Born (Census or CPS) minus Legal Foreign-Born (estimate)

This chart and the next two describe the methods used to estimate the size of the unauthorized migrant population. Although understanding the specific details of the methods is not essential, understanding the legal statuses represented by the estimates can be quite helpful in interpreting the results, especially in the context of alternative policy fonnulations.
The estimates of unauthorized migrants discussed here are derived using a variant of a basic "residual" method. In this method, an estimate of the legally-resident foreign-born population is first developed using data on admissions from INS (now Department of Homeland Security or DHS) as well as data on refugees admitted and asylum granted from various agencies. After allowing for legal temporary migrants (or "nonimmigrants" in the parlance ofINS) and for legal immigrants missed in the Census or CPS, the initial estimate .of the unauthorized population is derived by subtracting the estimated legal population from the Census or CPS figure for the total foreign-born population. This initial estimate of the number of unauthorized migrants counted is then inflated for omissions.
All calculations are done by country or region of birth, age, sex, period of an-ivaI, and state or region of residence.
The residual method has been used for several decades to measure unauthorized migration to the U.S. Specifically, some of the first sound empirical estimates by Warren and Passel (1987, also Passel 1986) came from residual methodology applied to the 1980 Census. Variants of the method were used or discussed by the Census Bureau, the Panel on Immigration Statistics, the Bi-National (U.S.-Mexico) Study and the Commission on lnunigration Reform, INS, and a number of other organizations and researchers .

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Page 7

I§ Components of Legaiimmigrants:
a. Refugee Arrivals (ORR, INS, State) b. Asylum Approvals (INS) c. Cuban-Haitian Entrants, Amerasians,
Northern Iraq parolees (ORR) d. Other Entrants, Other Parolees (INS) e. IRCA Legalizations approved --
SAWs & "LAWs" (INS)
f. INS New Arrivals, except Amerasians in d. g. Adjustments to LPR Status, except from
statuses in a.-e. (INS) h. Pre-1980 Entrants (Census/CPS counts)
In the residual method, the unauthorized population is defined, in part, by exclusion; that is, by which groups are included in the estimate oflegal foreign-born popUlation and which groups are omitted. In other words, the unauthorized popUlation consists of persons and groups not included in the authorized population. This chart lists the groups included in our estimates oflegal foreign-born residents:
a. Refugees are counted in the year they arrive in the U.S., not when they get green cards; b. Asylum approvals, likewise, are included as legal when approved, not when they get green cards; c.-d. Cuban-Haitian and other entrants, Amerasians, and various groups of parolees are also included as
legal when approved, not when they get green cards; for some, these dates are the same; e. Persons acquiring legal status under IRCA are included when they obtain their green cards; f. INS (or DHS) "New Arrivals"-i.e., persons getting green cards as they enter the U.S.-are counted in
the year they arrive (unless they have already been counted in groups c.-d. to avoid double counting); g. Persons "adjusting" to LPR status-i.e., persons getting green cards who are already in a legal status
in the U.S.-are counted in the year they get their green card (unless they have already been counted in groups a.-c. to avoid double counting); h. Census or CPS counts of persons arriving before 1980 are all assumed to be legal by 2000. Note that the "year of arrival" for a legal immigrant may be different from the year they are included in the legal popUlation. This year can be much earlier than the year of acquiring legal status, especially for IRCA legalizations (Group e.) and INS adjustments ( Group g.).
In addition, the particular variant of the method employed here includes estimates of some legal temporary visa categories as part of the legal population. The visa categories counted as legal include: A, F, G, H-lB, some H-2's,some J's, L, M, N, 0, P, and R. (See Passel, Van Hook, and Bean 2004 and 2005.)
Page 8

@ Not "Legal" or Non-Immigrants
~, Overstays (25-40%) & EWls
&~ "Quasi-"Legals, including:
a. TPS & OED (esp. EI Salvador, Nicaragua) b. NCARA & ABC beneficiaries c. Asylum Applicants d. Adjustment Applicants (inc!. K, V visas) e. 245(i) Beneficiaries
@ Overlapping Categories
'" Probably -1-1.5 MilJign "Quasi"

This chart displays some ways of describing unauthorized migrants in the residual-based estimates. First, virtually all of the unauthorized are either visa overstayers (that is, persons admitted on temporary visas who either stay beyond the expiration of their visas or otherwise violate their terms of admission) or EWls ("entries without inspection" or clandestine entrants). Visa overstayers probably represent 25% to
40% of the unauthorized migrants. *

Another view of this population is to consider various administrative categories not included in the estimated legal foreign-born population described in the previous slides. Many such persons actually have EADs (or "Employment Authorization Documents") issued by DHS and thus could be considered as "authorized" in some sense. Persons with Temporary Protected Status (TPS) and Extended Voluntary Departure (EVD) together with applicants for these statuses may account for 300,000-400,000 persons (DHS 2004). In addition, another 250,000 have applied for asylum but have not had their cases adjudicated. Although some individuals in these categories may eventually acquire green cards, many (perhaps most) will not.

Another large group not included in our estimate of legal residents but who have employment authorization and are not subject to deportation are persons in the legal immigration backlog. There are more than 600,000 persons in the U.S. who have applied for green cards but are waiting for them to be issued. In addit{on there perhaps another 100,000 persons who are immediate relatives or fiancees of legal residence waiting for their final papers. Most persons in these groups will eventually acquire green cards.

All told, there are probably about 1-1.5 million persons represented in our estimates of unauthorized residents who are known to DHS and have full legal statuses pending but are not yet fully legal.

* There is little solid information on composition of the unauthorized population with respect to visa overstayers versus entries
without inspection. The share of visa overstayers is a rough approximation based on assumptions that: (a) almost all Mexicans enter without inspection; (b) a share of Central Americans enter without inspection; and (c) a very sizable majority of the remain unauthorized are visa overstayers.

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Page 9

Unauthorized at New High ...-
Details of Trend Uneertaln

Millions of Unauthorized Migrants Living in the U.S.

.' 8.4

/10.3
(2004)

...... '4' ,'. .

3 "..-.3-..~3.......... .

····2.5····

5. .....

4-80 1-82

6-86

6-89 10-92 10-96

4-00

3-04

A major demographic story of the 1990s is a broad increase in the unauthorized population. This chart portrays the growth trend in the unauthorized population while illustrating the uncertainty involved with the dotted bands of error and the alternative trend line at the end incorporating the results based on the 2000 Census and subsequent March CPSs through 2004. (Note that smooth lines should not be interpreted to mean that there are not annual fluctuations in growth. The lines merely connect the dates for which stock estimates are available.)
Because of inherent uncertainties in the residual technique, the difference in successive annual estimates of the unauthorized population is not a valid measure of growth. However, it is possible to use differences taken over longer intervals to measure growth. Thus, the average annual change over the 2000-2004 period is about 485,000 or 10.3 million minus 8.4 million divided by 4. For the entire decade of the 1990s, growth averaged just about 500,000 per year. However, there are a number of data sources that point to substantially larger growth increments at the very end of the 1990s (and possibly at the end of the 1980s and the very early 1990s).
The apparent slowdown in growth after 1996 is probably not a real decline but is attributable to undercoverage in the data used to estimate unauthorized flows. Similarly, the apparent very rapid growth to 2000 may (or may not) be an accurate depiction of the trend but may reflect data anomalies in the CPSs of the late 1990s.
The decrease in size from 1986 to 1989 is caused by the IRCA legalizations that removed immigrants from the unauthorized population by granting them legal status, not by making them leave the country.

Page 10

Unauthorized ConcenhtedJ
but Also Dispersing

Texas-14% 1.4 million

Florida -9% 850,000

NewYork-7% 650,000

Arizona* - 5% 500,000

Illinois - 4%

400,000 New Jersey-
350,000

All Others - 32%
3.1 million

North Carolina* - 3%

300,000

10 Million Unauthorized for 2002-2004-

(Average of estimates for 2002-2004, except *2003-2004)

This chart shows estimates of the unauthorized migrant population for states averaged over three March CPSs, 2002-2004.
Almost two-thirds (68%) of the unauthorized population lives in just eight states: California (24%), Texas (14%), Florida (9%), New York (7%), Arizona (5%), Illinois (4%), New Jersey (4%), and North Carolina (3%). The appearance of Arizona and North Carolina on this list highlights another recent trend. In the past, the foreign-born population, both legal and unauthorized, was highly concentrated. But, since the mid-1990s, the most rapid growth in the immigrant population in general and the unauthorized population in particular has taken place in new settlement areas where the foreignborn had previously been a relatively small presence.

Source: Based on Passel 2005 using methods described in Passel et a1. 2004. See also pages 3, 7-9. Estimates for CA, TX, FL, NY, IL, and NJ are "direct" in that they use components of population change-immigration, mortality, emigration, and internal migration. For other states, synthetic methods state-level figures on populations and are averages of the percentage unauthorized by countly of birth and period of arrival. Because of instability and sampling variability in the state level figures, the estimates shown are averages for 2002-2004 except for AZ and NC. All estimates are approximate and rounded independently.

Page 11

Mil/or Redlsfributlon Away From . Big GSettlement States

45%

Percent of Total Unauthorized Migrant Population

.1990 02002-2004

3,,9 M(!J.iOf!

12% .. 400,000

California New York

Texas

Florida

Illinois New Jersey

All Other

This chart shows the high degree of geographic diversification that occurred for the unauthorized population during the 1990s. In 1990,45% of the unauthorized population, or about 1.6 million persons, lived in California; by 2004, the share had dropped to 24%. Note, however, that because of the sizeable growth in the unauthorized population, California still experienced substantial growth to about 2.4 million or growth of about 45%. Texas' share increased while New York's dropped significantly. In Florida, New Jersey, and Illinois, the shares changed little, but the numbers increased significantly. (Note that the number ofunauthorized migrants in each of these six states was larger in 2004 than in 1990, even when the share of the national total decreased.)
Outside these six large states, the growth in the unauthorized population was extremely rapid as the share tripled from 12% to 39%. Numerically, the growth was even more striking as the unauthorized population increased almost ten-fold from about 400,000 to 3.9 million. The rapid growth and spreading of the unauthorized population has been the principal driver of growth in the geographic diversification for the total immigrant population into the new settlement states such as Arizona, North Carolina, Georgia, and Tennessee.
Source: Based on Passel 2005 using methods described in Passel et aJ. 2004. See also pages 3, 7-9, and II.

Page 12

Size Categories

-~I:-!'l

• Major Destinations (300,000-2,300,000)

II New large States (200,000-250,000)

IiIIllarge States (100.000-150,000)

(7)

1*1 Moderate Slales (55,000-85,000)

(9)

o[J Smaller States (20,000.35,000) Smallest States «10,QOD)

(12) (9)

The geographic diversification of the unauthorized population since 1990 is very evident in this map as many states other than the six major destination states have large unauthorized populations as of 2002-2004. Note that the ranges shown are not contiguous so as to specify more precisely the range of estimates. (See Passel 2005 and next chart for more details.)

Source: Based on Passel 2005 using methods described in Passel et aL 2004. See also pages 3, 7-9, and II.

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Page 13

e 200,000-250,000 -- Georgia -- Colorado -- Maryland -- Massachusetts -- Virginia -- Washington
~ 100,000-150,000 -- Nevada -- Oregon -- Pennsylvania -- Michigan .- Ohio -- Wisconsin -- Tennessee

• 55,000-85,000 -- Connecticut -- Utah -- Minnesota
-- Kansas, New Mexico -- Indiana, Iowa -- Oklahoma, Missouri
• 20,000-35,000 -- South Carolina, Idaho -- Rhode Island, Arkansas -- Alabama, Kentucky -- Nebraska, Louisiana
-- Hawaii, Dist. of Columbia -- Mississippi, Delaware
~ Under 10,000 -- 9 Others

States are shown in groupings to emphasize the potential degree of error and variability in the estimates. The ranges are not contiguous so as to specifY more precisely the size of the populations. However, the ordering within groups is in approximate order of size of the estimates. For the groups on the right-hand side of the page, the states in smaller type fall near the bottom of the range.
Source: Based on Passel 2005 using methods described in Passel et a!. 2004. See also pages 3, 7-9, and II.

Page 14

2002-2004 Composition Categories

• Highest % Unauthorized (40-54%) ~ Very Highest % (48-54%)
I:'§ High % Unauthorized (30-39%) § lower % Unauthorized (20-29%)

(17) (S)
(10) (16)

[] Lowes! % Unauthorized «20%)

(a)

This chart displays the estimated unauthorized population as a percentage of the total foreign-born population in the state.
In 17 new settlement states* stretching from the northwest through the mountain states to the southeast, the unauthorized make up 40% or more of the total foreign-born population. Of the six traditional settlement states, only Texas has such a large ratio of unauthorized population to the total foreignborn. In the other five traditional unauthorized states, unauthorized migrants make up less than 30% of the foreign-born population and in New York the unauthorized share is less than 20%. (Note that the five highest shares, shown with shaded colors, are part of the top group of 17 states.)
The new growth states with high shares of unauthorized face special challenges because many do not have the social infrastructure needed to deal with newcomer populations to begin with (Passel et aI. 2002). In those areas, the challenges of dealing with a newcomer population are simply exacerbated by the clandestine nature of the unauthorized group.

Source: Based on Passel 2005 using methods described in Passel et a!. 2004. See also pages 3, 7-9, and 11. * See Passel et a!.
2002 for definitions of "traditional" and "new settlement" states.

-,-, ,
Page 15

New Flows from Mexico Dominated by Unauthorized
Mexican~Born Population in U.S. according to Status in 2004
Note: labels show totar population and % unauthorized. Figures in bars ate annualized. Slightly more than half
of all Mexican migrants in U.S. are unauthorized.

&I Unauthorized in 2004
o Legal in 2004

1,850,000 (70%)

1,100,000 (18%)

Entered 1980-1984

1985-1989

1990-1994

1995-1999

Entered 2000-2004

This chart subdivides the entry cohorts of Mexican migrants by legal status (and presents the data in bars that represent the average annualflows).
The cohorts who have entered from Mexico since 1990 (i.e., in the U.S. for 14 years or less) are principally unauthorized. This trend translates into an average of about 400,000-485,000 annual unauthorized entrants from Mexico. Of those coholtS in the country more than 14 years, most are legal residents. For those entering before 1985, virtually all are legal. (In fact, the unauthorized component shown for the pre-I 985 entrants may be largely estimation and sampling error.)
These data should, however, be interpreted cautiously. The data do not necessarily support the idea that the share of Mexican migration that is unauthorized has been increasing in recent years. The earlier cohorts (i.e., pre-1990) had also been largely unauthorized when they had been in the country for shorter durations. That is, the Mexican-born population in the United States for less than 5 years was found to be at least 75% unauthorized in estimates made for 1995, 1990, 1986, and 1980. These earlier entry cohorts are now almost all legal as a result of three processes:
(1) A "nonnal" transition from unauthorized to legal through sponsorship and 245(i);
(2) The legalization programs of the late 1980s; and
(3) Selective return migration to Mexico by unauthorized migrants.
There is some suspicion that the more-or-Iess orderly transition process in (1) may have been short-circuited by the legislative changes of the late 1990s, especially affecting 245(i). If true, this change could partially explain the buildup in the unauthorized Mexican population.
Source: Based on Passel 2005 using methods described in Passel et aI. 2004. See also pages 3, 7-9.

Page 16

@ .Who Are They?
Mainly in Families -- Relatively Young -- Almost All Work
$ What Are They Like?
-- Low Education -- Low Income -- High Poverty
Lack of Insurance
This next section of this report focuses on a broader range of characteristics of the unauthorized population. Specifically, we first investigate the age, sex, and family structure of the unauthorized population. We introduce here the concept of "mixed families" which in this context has one or two parents who are unauthorized migrants and at least one child who is a U.S. citizen. The unauthorized population contains a significant number of solo males and females, but more of the unauthorized are in couples, either with or without children. Most of the children in unauthorized families are U.S. citizens by bilth.
We also examine labor force participation of unauthorized migrants, their education, and the occupations and industries in which they work. Labor force participation of unauthorized men is very high while that of women is lower. Finally, we tum to the income of unauthorized workers and how that affects family povelty levels. Not surprisingly, unauthorized workers have relatively low levels of education which translates into low incomes and high poverty levels.
Data, Sources, and Methods: The data presented in this section are drawn principalIy from the March 2004 CPS, but augmented to include immigration status for migrants included in the CPS. The data and techniques employed were developed initially at the Urban Institute by Passel and Clark. (See Passel and Clark 1998 and Passel, Van Hook, and Bean 2005 for description afthe various methods used.) The methods involve estimating the number of unauthorized migrants included in the CPS with the techniques described previously. In this process, the CPS data are first corrected for over-rep0l1ing of naturalized citizenship on the part of aliens. Then, persons entering the U.S. as refugees and individuals holding certain kinds of temporary visas (including students, diplomats, and "high-tech guest workers") are identified in the survey and assigned an immigration status using infonnation on country of birth, date of entry, occupation, education, and various family characteristics. Then, individuals that arc definitely legal and those that are potentially unauthorized are identified in the CPS (based on state of residence, age, sex, occupation, country of birth, and date of entry). Finally, using probabilistic methods, enough are selected and assigned to be unauthorized so as to hit the estimated populations. The last step involves a consistency edit to ensure that the family stlUcture of both legal and unauthorized populations "make sense." The whole process requires several iterations to produce survey-based estimates that agree with the demographically-derived population totals.
Page 17

Unauthorized Families "'xed Composition

Unauthorized
Children
1.6 million 14% of all unauthorized

Adult Men
4.9 million 56% of Adults

U.s. Citizen
Children
3.1 million 67% of kids

Adult Women
3.9 million 44% of Adults

Other Adults

13.9 million in

400,000 Unauthorized Families (2004)

This chart shows estimates of family composition for families' in which the head or spouse is unauthorized based on the March 2004 CPS.
Unauthorized migrant families contain 13.9 million persons, including the 10.3 million unauthorized migrants. There are 1.6 million children (under 18) in these families, representing about 14% of all unauthorized migrants. In addition, these families include more than 3 million children who are U.S. citizens by birth.
About 56% of the 8.8 million adult unauthorized migrants are men. Additionally, there are about 400,000 other adults in these unauthorized families.
Although the stereotype of unauthorized migrants is that of single adults without families coming to the United States, fewer than half of the adult men (2.3 million or 46%) are single and unattached-the rest are mostly in married couples although some are in other types of families. Among the adult women, about 750,000, or only one in five, is single and unattached.
* "Families" arc defined as nuclear families, consisting of: (1) married (or unmarried) couples with children; (2) married (or unmarried) couples without children; (3) other adults with children; or (4) solo adults. An unauthorized family has either a head or spouse who is unauthorized. A legal immigrant family does not have an unauthorized head or spouse, but has a head or spouse who is a naturalized citizen, and LPR alien, or a refugee alien. Native families have heads (and spouses) who are US natives. Families with legal temporary migrants are not shown separately. This definition of family is used throughout this report.
Source: Based on U~ban Institllte data from March 2004 CPS with legal status assigned. The CPS does not include direct information on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also note on page 17.
Estimates include an allowance for persons not covered by the March 2004 CPS.

Page 18

With US Citizen Children
24%
1.5 million families "Mixed"

V\fith
GhHdren
1 (Y' lo
-o3f},0nO t?,milii7:s

Non-Citizen Children 7'~/~ .... 460,000 families ("Mixed")

Other 3% --160,000

6.3 Million Unauthorized Families

(Estimated with March 2004 CPS)

This chart examines the structure of families in which either the head or spouse is unauthorized.
There are 6.3 million unauthorized migrant families in 2004 (containing the 13.9 million persons shown in the previous chart). Most of these families-3.7 million or 59%-<10 not contain children; that is they consist of single adults, couples, or some other combination of relatives. About half of all unauthorized families are solo adults without children (or the "stereotypical" unauthorized migrant) with 2.3 million solo male "families" accounting for just over one-third of the families and 740,000 solo females; these two groups make up 80% of the families without children.
A significant share of unauthorized families can be characterized as "mixed status" in which there is one or more unauthorized parent and one or more children who are U.S. citizens by birth. There are 1.5 million unauthorized families where all of the children are U.S. citizens; these families are about one-quarter of all unauthorized families and 58% of unauthorized families with children. In addition, there are another 460,000 mixed status families in which some children are U.S citizens and some are unauthorized.
About 10% of all unauthorized families have children who are all unauthorized themselves. This group of families is "not mixed status." However, it represents slightly less than one-quarter of the unauthorized families with children and only 10% of all unauthorized families.

Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infonnation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17 and 18.
Estimates include an allowance for persons not covered by the March 2004 CPS.

Page 19

20':.''0
020,000 chHchen Not "IVHxGd"

us Citizen
Children (Only) 55%

Unauthorized ChHdren
with
US Citizen Slblings 12%
580,000 children "Mixed"
US Citizen Children
with
Unauthorized Siblings 13% -- 620,000 children
"Mixed ll

4.7 Million Children of Unauthorized
(Estimated with March 2004 CPS)

This chart changes perspective to examine the structure of unauthorized families with children from the point of view of the children.
Overall, there are 4.7 million children of unauthorized migrants, of whom only 1.6 million or 33% are unauthorized themselves according to the chart on page 18. An even smaller share, 20% of unauthorized children, or 920,000, are in families where everyone is unauthorized (or "not mixed" families. Thus, 80% of the children of unauthorized migrants are in mixed status families. Over half of the children of unauthorized migrant-55% or 2.6 million children-are in families where all of the children are U.S. citizens. Another 620,000 U.S. citizen children and 580,000 unauthorized children are in unauthorized families where some of the siblings are unauthorized and some are U.S. citizens. These mixed status families with mixed status children include about 25% of all of the children of unauthorized migrants.

Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct information on unauthorized status or any legal status, other than naturalization. Status <lssignments lise methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17 and 18.
Estimates include an allowance for persons not covered by the March 2004 CPS.

Page 20

Il!I Unauthorized Families
o Legallmrrigrant Families
III Native Famlies

Children (% Under 18)

% Young Adults (18-44) of Working Age (18-64)

<1%
% Elderly (65+) of Adults

This chart shows several measures of age composition for families and compares those families headed by unauthorized migrants with those headed by legal immigrants and natives.
The general conclusion of these comparisons is that, by almost any measure, unauthorized families are much younger, on the whole than either native families or families oflegal immigrants. A much higher share of persons in unauthorized families are children (under 18)-35% among unauthorized families versus 29% among legal immigrant families and only 24% among native families. At the other end of the age spectrum, virtually none of the unauthorized population is elderly (65 and over). III contrast, about I in 6 native adults and the same share oflegal immigrant adults is aged 65 or older.
Among working-age (18-64) adults, the unauthorized population is also substantially younger. Almost all (84%) of unauthorized migrants in this age range are under age 45. In contrast, only about three-fifths of native and legal immigrants of working age are under 45.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infommtion on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passd, Van Hook, and Bean 2004, 2005. See also notes on pages 17 and 18.

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Page 21

Unauthorized Yomh
tess likely to Continue Education
Share of Each Group's 18-24 Population, 2004
IIlI Unauthorized Migrants
o Legallmrigrants
II Natives
49%

!\Ot Graduating from High School ("Dropouts")

High School Graduates Who Have Gone on to Attend College

This chart reports on two aspects of educational progression among post-high school-age youth (i.e., ages 18-24 years):
Unauthorized youth are much more likely to have dropped out (that is, not completed high school)-50% of unauthorized youth versus 2 1% ofIegal immigrants and only I 1% of natives. This result needs to be iilterpreted with caution when considering the implications for the education system, however. Many of the immigrant youth who are classified as "dropouts" never actually attended school in the U.S. Further, many stopped attending school before even entering high schooI.
The converse-progressing to attend at least some college after high school-is much more common among natives and legal immigrants than among unauthorized youth. About half of unauthorized high school graduates are not attending or have not attended college. In contrast, almost three-quarters of legal immigrant and native youth have formal education beyond high school.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infomlation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 22

UnauthorizedAdults AN NlJuch Less Educated #han Othws

32%

~ Unauthorized Migrants o Legallmrigrarits

Share of Each Group's 25-64 Population. 2004
32%

II Natives

Less than 9th Grade

9th-12th Grade

High School Diploma

Some College Bachelor's Degree or More

This chart addresses the educational attainment ofthe working-age population that is likely to have completed the major portion of their education-that is, persons ages 25 to 64 years.
Immigrants in general, but especially the unauthorized are considerably more likely than natives to have very low levels of education. For example, less than 2% of natives have less than a 9th grade education, but 15% oflegal immigrants and 32% of unauthorized migrants have this little education. (Note that education in Mexico is currently compulsory only through the 8th grade, so finding this many with this little education is not surprising. Further, the level of compulsory school attendance was recently raised from 6th grade.)
At the upper end, legal immigrants are slightly more likely to have a college degree than natives (32% versus 30%). This difference is particularly noteworthy given the high percentage of legal immigrants with very little education. Even the unauthorized population has some at the upper end of the educational spectrum, with 15% having at least a college degree and another 10% having some college. Not all of the unauthorized population fits the stereotype of a poorly educated manual laborer.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infOlmation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 23

EducafiolflJ ftltH~tltfI'IISS~ & f;fIDlamoftd~

Less than High School Graduate 56%

Share of Each Group's 25-64 Population, 2004
College Degree or Beyond. o Less than 10 years in US
1!110+ years in US

Natz.Citz. LPR Alien Refugees Unauth.

Natz.Citz. LPR Alien Refugees Unauth.

This chart offers a bit more detail on legal status and duration of residence than the previous chart while depicting the low end of the educational spectrum (i.e. less than a high school education) and the high end (B.A. or greater) for all immigrants by legal status.
Some have characterized the educational distribution of immigrants as an "hourglass" because immigrants tend to be over-represented at both extremes relative to natives; with natives, the concentration is in the middle, hence the characterization of native education distribution as a "diamond." However, as this chart highlights, the high proportion with low levels of education found among immigrants is due principally to unauthorized migrants and older cohorts ofIegal immigrants. The larger proportion with college degrees can be traced to naturalized citizens and recent legal immigrants. In fact, by 2004, all groups of legal immigrants in the country for less than 10 years are more likely to have a college degree than natives, notwithstanding the continued over-representation of legal immigrants at low levels of education.
This chart illustrates, too, the upgrading of education among recent legal immigrants in contrast to longertenn residents. It also illustrates some of the selectivity in the naturalization process. Among legal immigrants in the counlIy 10 years or more, a much higher proportion of those who have naturalized have college degrees than among those who have not.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infonnation on unauthorized status or any legal status, other than naturalization. Statlls assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 24

Unauthorized lien Wolk 1110,.;
Women Wort Less Than Others
Percent in Labor Force, 2004

92%

m! Unauthorized Migrants
o Legallrrrrigrants
• Natives

Adult Men (18-64)

Adult Women (18-64)

This chart displays labor force participation rates for the working-age population by sex and legal status.
Labor force participation differs substantially by sex and across the groups defined by immigration status. Among men ages 18-64, natives are the least likely to be in the civilian noninstitutional labor force (83 %) followed by legal immigrants (86%) and then by the group most likely to be working-the unauthorized (92%). There appear to be a number of factors associated with these differences. One of the simplest is age. Within this age range for workers, those who are older (e.g., 45-64) are more likely to be retired or disabled and so, not in the labor force. Very few unauthorized fall in this age range, so overall, they are simply more likely to be working.
In addition to disability and retirement, the other principal reason for men not being in the labor force is that they are attending college. Again, very few unauthorized attend college so their labor force participation is higher. Finally, if unauthorized persons do become disabled or retire, they are much more likely than others to leave the country and, thus, not appear in the U.S. labor force.
Participation patterns among women are just the opposite-with unauthorized being the lowest and natives being the highest. The principal reason women do not participate in the labor force is the presence of yOWlg children in their family. Secondarily, unmarried women are more likely than married women to participate in the workforce. Immigrant women are more likely to be married than native women; they are also considerably more likely than natives to have children. Among unauthorized migrant women, this pattern is even stronger because more of them are from high fertility areas.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infonnation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

~ew
f=flspamc Center

Page 25

Unauthorized In Lowe, Wage & Education Occupations

Management, Business, &
Professional 10% -
Transportation &
Material Moving 8% - (6%)

33% -' (15%)

Production, installation, 8,
Repair
16% - (10%)

';:>d'"'' &Admin. Support
13% - (27%)

Construction 8, Ex"trelclivE 17% - (6%)
6.3 Million Unauthorized Workers, 2004
Note: Share of native workers falling in the "major" occupation group is shown in parentheses.

This chart shows the distribution of unauthorized migrants across occupations by combinations of the CPS' 10 "major occupation groups" for those migrants who are in the labor force. (The distribution of native workers is shown in parentheses.)
Unauthorized migrants account for about 4.3% of the civilian labor force or about 6.3 million workers out of a labor force of 146 million. ([Note that these data are flot adjusted for persons omitted from the CPS. Were they corrected for omissions,the number of unauthorized migrants in the labor force would probably be about 675,000-700,000.) Although the unauthorized workers can be found throughout the workforce, they tend to be over-represented in certain occupations and industries. The next several charts attempt to identify some of these concentrations.
Unauthorized workers are conspicuously sparse in white collar occupations compared with native. "Management, business, and professional occupations" and "Sales and administrative support occupations" account for over half of native workers (52%) but less than one-quarter of unauthorized workers (23%). On the other hand, unauthorized migrants are much more likely to be in broad occupation groups that require little education or do not have licensing requirements. The share of unauthorized who work in agricultural occupations and construction and extractive occupations is about three times the share of native workers in these types ofjobs.

Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infonnation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel. Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 26

19% 17%
. . '-'
'mE '•.
.."..i.s..
JP..'

Percent Unauthorized within Occupation Group, 2004
o "Migrant" occupations
II "Native" occupations
Overall Proportion Of Workers Who Are
Unauthorized -
4.3%
/

Fann, fish, and forest
aces.

Building Construction Food prep. Production Transport &

cleaning & & extractive & serving occupations material

maint. aces. aces.

aces.

mav. accs.

All other aces.

This chart shows the proportion of workers who are unauthorized migrants in a selection among the CPS' 27 "detailed occupation groups". The major occupations shown are those where the proportion of unauthorized migrants exceeds the proportion in the workforce (4.3%).

Within the broad occupation groupings shown in this chart and the previous ones, there are selected occupations with very high concentrations of unauthorized migrants. The following specific occupation groups have both significant numbers and high concentrations of unauthorized migrants. For example more than lout of every 4 (or 27% of) drywall/ceiling tile installers in the U.S. is an unauthorized migrant. These occupations are grouped roughly by broad categories and generally share the characteristics noted earlier-no govemmentallicensing or education credentials are required.

Drywall/ceiling tile installers... 27%

Cement masons & finishers

22%

Roofers

21 %

Construction laborers

20%

Painters, construction etc.

20%

Bricklblocklstone masons

19%

Carpenters

12%

Grounds maint. workers

26%

Misc. agricultural workers

23%

Hand packers & packagers 22%

Graders & sorters, ago prod.

22%

Butchers/ meat, poultry wrkrs 25%

Cooks

18%

Food prep. workers

13%

Dishwashers

24%

Dining & cafeteria attendants

14%

Janitors & bldg cleaners

12%

Maids & housekeepers

22%

Sewing machine operators

18%

Cleaning/washing equip. oper 20% Metal/plastic workers, other 13%

Packaging/filling mach. opel'.

17%

Source: See page 26 for source.

Page 27

Leisure 8, Hospitality
18% - (8%)

All Other Industries
17% - (43%)

Other Services 6% - (5%)

iltlarwfacruring 15% -. (12%)

Wholesale & Retail Trade 12% - (15%)

Professional & Business Services 12% - (15%)

6.3 Million Unauthorized Workers, 2004
Note: Share of native workers failing in the "major" industry group is shown in parentheses.

This chart shows the distribution of unauthorized migrants across industries by combinations of the CPS' 14 "major industry groups" for those migrants who are in the labor force. The specific groups shown are those where the distribution of unauthorized workers approximates or exceeds the distribution of natives.
The concentration of unauthorized workers in broad industries is not as marked as the concentration in broad occupation groups. Only in "leisure & hospitality" and in "construction" does the share of unauthorized workers greatly exceed the share of natives. Somewhat greater than 1 in 6 unauthorized workers is in the the leisure & hospitality industry (18%) or the construction industry (17%). Only about 7%-8% of native workers is in each of these industries. Neither of these industries tends to require credentials from prospective workers. Further, there are many occupations in these industries that do not require much in the way of education.
The remaining broad industries where roughly the same shares of natives and are in services, retail trade, and manufacturing.

Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not indude direct information on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van 1·look, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 28

14% 13% 13%

Percent Unauthorized within Industry, 2004

D "Migrant" industries • "Native" industries

10~ 10%10%

Overall Proportion Of Workers Who Are
Unauthorized -
4.3%

Private households

Accom- Food mfg. Admin. & Agriculture Food servo Textile, Construction Other Mig.

modation

support

& drinking apparel, &

Ind.

seN.

places leather mfg.

Other (Native) Ird..

This chart shows the proportion of workers who are unauthorized migrants in a selection among the CPS' 52 "detailed industry groups". The major industries shown are those where the proportion of unauthorized migrants exceeds the proportion in the workforce (4.3%).

There are fewer detailed industries with high concentrations and significant numbers of unauthorized workers than detailed occupations. The range of credential and educational requirements is generally broader for industries than for occupations. Nonetheless, there are some industries with very high concentration of unauthorized workers. For example, 26% of workers in the landscaping services industry are unauthorized; similarly, about I in 5 workers in meat/pOUltry packing is unauthorized. The following industries have more than twice the representation of unauthorized workers than the whole labor force.

Landscaping services

26%

Animal slaughter & process. 20%

Services to bldgs & homes

19%

Dry cleaning & laundry

17%

Cut & sew apparel mfg

16%

Crop production

16%

Private households

14%

Traveler accommodation

14%

Restaurants & food services 11%

Construction

10%

Groceries & related prod

8%

Source: Based on Urban institute data from March 2004 CPS with legal status assigned. The CPS does not include direct illfoD11ation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 29

$47,800 $47,700

Incomes, 2003; Family Size, 2004
ill Unauthorized Farrilies
o Legall!T'illgrant Farrilies
II Native Farrilies

Average Farrily Income

Average Farrily Size

Income per Person

This chart shows average family income, average family size, and average income per person for natives, legal immigrants, and unauthorized migrants based on the March 2004 CPS.
The incomes of unauthorized migrants and their families shown here reflect the comparative levels of education shown earlier and the occupations/industries where they work. Specifically, average family income of unauthorized migrant families is more than 40% below the average income of either legal immigrant or native families. In addition to education and occupation differences, another factor contributing to this difference is the lower labor force participation of unauthorized females that results in fewer workers per family than in the other groups.
Immigrants tend to have somewhat larger families on average than natives, with little difference in family size between unauthorized and legal immigrants.
A key clement of income is the amount available per person in the family. Because unauthorized families tend to be larger with lower incomes than natives, the difference in average income per person* is even larger than the difference in income. Thus, the average income per person in unauthorized families ($12,000) is about 40% less than legal immigrant families and more than 50% below the per capita income in native families.
* Average income per person is defined as average family income divided by average family size. Source: B~sed on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct
infonnation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van l'look, and Bean 2004, 2005. See also notes on pages 17, 18, and 2!.
, .
Page 30

Average Family Income, 2003

$56,500

Natives $45,900 ',,--
-'.~~:--"----------~~~~------~~~&e-~~~'~

Unauthorized Aliens

Refugees (post-1980)

LPR Aliens

CJ In U.s. <10 Years

Naturalized LPRs
• In U.S. 10+ Years

This chart shows more detail on average family income than the previous chart using data from the March 2004 CPS by incorporating specific legal statuses and duration of residence.
The data clearly show that incomes are higher for immigrants who have been in the U.S. for more than 10 years, compared with more recently arrived immigrants. Average family income for both legal immigrants and refugees in the U.S. for more than 10 years is only 2-3% below that of natives. For longer-term naturalized citizen families, average family income is 23% higher than native income.
The incomes of unauthorized migrants do not show the same pattern of increase with longer durations of residence. For those in the U.S. more than 10 years, family incomes are only about one-sixth higher than the shorter-term unauthorized ($29,900 versus $25,700) and remain 35% below the incomes of native families. The relatively low incomes of unauthorized migrants in the country for more than 10 years most likely reflects a lack of opportunities for economic mobility among those who remain in an unauthorized status. Many unauthorized migrants are able to become legal immigrants after 10 or more years in the u.S. Those who are left as unauthorized may not be able to take advantage of a range of jobs available; that is, they may be "stuck" in lower-paying jobs.

Source: Based on Urban Institute data from March 2004 CPS with legal stahlS assigned. The CPS does not include direct infomlation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 31

Immigrant Households Large,

Average Family Size, 2004

Natives

Unauthorized Aliens

Refugees (post-1980)
o

LPR Aliens
In U.S. <10 Years

Naturalized LPRs
• In U.S. 10+ Years

This chart also shows more detail on average family size than the previous chart using data from the March 2004 CPS by incorporating specific legal statuses and duration of residence.
Immigrants, regardless of status and duration of residence, have larger families than natives, on average. In addition, those immigrants in the U.S. for more than 10 years have larger families than the shorter duration immigrants. Also, the families of noncitizens tend to be larger than those of naturalized citizens. The recently-arrived immigrants are, on average, younger than the other immigrants and so are less likely to be married and tend to have fewer children. Over time, as the short-term immigrants remain in the U.S., they can be expected to have family sizes approaching those of the longer-term immigrants.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infonllation on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 32

Income per Person Suffers

Average Family Income per Person, 2003

$25,800

/'"
Natives /
$24,300

Unauthorized Aliens

Refugees (post-1980)

LPR Aliens

CJ In U.S. <10 Years

Naturalized LPRs
I!!!I!ilI In U.S. 10+ Years

This chart follows the previous two by showing more detail on average family income per person than the previous chart with data from the March 2004 CPS on specific legal statuses and duration of residence. Average income per person is defined as average family income divided by average family size.
When family size is taken into account and incomes are converted to a per capita basis, even the somewhat higher-income immigrant groups tend to suffer in comparison with native families. Only among naturalized citizens in the U.S. more than 10 years do per capita family incomes exceed those of natives. Per capita incomes for unauthorized families are less than half of natives' per capita incomes. For LPR aliens and refugees, per capita family incomes are 30-40% below those of U.S. natives. Note that these differences exceed those expected purely on the basis of average levels of education.
For unauthorized migrant families, per capita incomes of the longer-term residents are less than half those of natives' and an even smaller fraction than those of more recent unauthorized migrants. This pattem reinforces the lack of opportunities available to the longer-term unauthorized as those who manage to acquire legal status probably do better than those who do not. The nature ofjobs available to the unauthorized, the role of employers, and the potelltiallack of opportunities for changing jobs may all playa role in the continued low incomes of unauthorized migrants even as they accumulate experience in the U.S.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct
or infonnatiol1 on unauthorized status any legal status, other than naturalization. Status assignments use methods of Passel
and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

, >
~P~~l$

Page 33

Percent in Families below 100% of Federal Poverty line, 2003

ChHdren
(by Parents' Status) 39%

[] Natives
i!!llrrmigrants

Adults:
(by Family Status)

27%

Natives

Legal

Unauthorized

Immigrants

Migrants

Natives

Legal

Unauthorized

Immigrants

Migrants

This chart shows the proportion of adults and children in families with incomes below the federal poverty level on the basis of the March 2004 CPS. Children are identified by their own nativity and by the status of their parents; adults, by their own status.

Poverty levels naturally reflect the income patterns just shown in the previous charts. Immigrant adults are more likely than natives to live in families with incomes below poverty level. Unauthorized migrants are more than twice as likely to be living in poverty than native adults.

Children have higher levels of poverty than adults across all groups. However, children of immigrants have

much higher levels of poverty than children of natives. The status of the child has a separate effect on

poverty as U.S.-born children of immigrants have somewhat lower levels living below the poverty level

than immigrant children ofimrnigrants. This pattern reflects the status of the children's families, but a

principal deterlllinant of the difference is probably duration of residence in the U.S. Immigrant families

with U.S.-born children tend to have been in the U.S. longer on average than immigration families with

only immigrant children.

.

Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infonnation on unauthorized starns or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also notes on pages 17, 18, and 21.

Page 34

tack ofHealth Insumnce
Much Hlghwl4monfl. Unauthomed

Percent without Health Insurance, 2004
Children
(by Parents' Status) 53%

o Natives
IiIllrrmigrants

Adults
(by Status)

59%

9%

Natives

Legal

Unauthorized

I mmigrants

Migrants

Natives

Legal

Unaulhorized

I mmigrants

Migrants

This cllali shows the proportion of adults and children in families without health insurance at any point in 2003 on the basis of the March 2004 CPS. Children are identified by their own nativity and by the status of their parents; adults, by their own status.
Immigrant adults are much more likely than natives to lack health insurance. More than half of unauthorized adults do not have insurance. A principal factor affecting this pattern is that the occupations and industries in which the unauthorized work tend to be those where employers do not provide insurance.
Although poverty levels for children are higher than those of adults, children are more likely to have health insurance than adults. This pattern undoubtedly reflects the availability of coverage through the State Children's Health Insurance Program (SCHIP) in recent years. Children of immigrants are less likely to be covered by health insurance than children of natives, reflecting their higher levels of poverty and the lack of insurance on the part of their parents. Here again, the status of the child has a separate effect on coverage as U.S.-born children of immigrants are more likely to have insurance than children who are immigrants themselves. Legal immigrant children, while having high levels without insurance (25%), are much more likely to be covered than unauthorized children (59%). Here, the children are not eligible for SCHIP because of their status and their parents generally do not have coverage for themselves or their families.
Source: Based on Urban Institute data from March 2004 CPS with legal status assigned. The CPS does not include direct infommtion on unauthorized status or any legal status, other than naturalization. Status assignments use methods of Passel and Clark 1998 and Passel, Van Hook, and Bean 2004, 2005. See also noles on pages 17, 18, and 21.

Page 35

Dynamics ofMexican Migration
Large Numbers Here (10+ million) Rapid Growth since Mid-'70s Large Share Unauthorized 1 in 11 Mexicans in U. S.
Numbers &Share in U.S. Up
Slowing Mexican Growth Continued Demand & Migration
The final section of this background report covers the magnitude of Mexican migration to the U.S. in the context of Mexican population growth and presents the implications for future growth of this population in the U.S. of projected population growth in Mexico.
The major highlights of the demography of Mexico and Mexican migration to the U.S. are: • Very large flows to the U.S. have resulted in a significant share-about 9%-ofthe Mexican-born population residing in the U.S. • Large-scale migration with settlement in the U.S. began in the mid-1970s and has grown steadily over the last several decades. Flows increased dramatically beginning about 1997-98. Current data do not show a dramatic response to either 9/11 or the post-200 1 recession. Large flows are continuing but there is some suggestion of a very slight decrease with levels falling to those of the mid-1990s. • A very high percentage (80-85%) of new migrants are unauthorized. OveralJ, about half of Mexicans in the U.S. are unauthorized. • The flows respond to economic conditions in Mexico more than to conditions in the U.S. with worsening conditions in Mexico leading to increased migration to the United States. Settlement patterns in the U.S. respond increasingly to the availability ofjobs. • New destinations emerged in the late 1990s. Traditional settlement areas (e.g., CA, TX, IL, AZ) continued to attract migrants but a much larger share went to new destinations. • Mexico's population is continuing to grow, but the rate of growth has decreased as fertility has fallen. Labor force entry cohorts will begin to decrease in size shortly after 2010.
Page 36

Rapid Growth ofMexicans in U"SfI

Thousands of Migrants in U.S.

Percent Mexlc<H, of Foreign-Born

10,000 8,000

(2004)
9,823 (20~J)'
9,065 (20,g0)
24%

6,000

18%

- - Mexican-Born Population in the U.S. (ODDs)

4,000

'-' Percent Mexican of U.S. Foreign-Born Population

, ,

-:2%

8%/

2,000

6%

This chart shows the Mexican-born population of the United States as measured by decennial censuses and the CPS for 1850-2004 and what proportion this group is of the U.S. foreign-born population.
While the U.S. and Mexico have always had interrelated populations and Mexicans have been coming to work in the United States since the 19th century, large-scale settlement in the U.S, is a relatively recent phenomenon-something that is often overlooked. As recently as 1970, Mexico had only the 4th largest foreign-born population-behind Italy, Germany, and Canada. (In 1960, there were more Britons, Poles, and Russians, too,)
The large increases in numbers of Mexicans actually moving to the U,S, that began in the 1960s, accelerated in the 1970s as the number of Mexicans in the U.S. tripled between 1970 and 1980. The number doubled again by 1990 and again by 2000. In 2004, the March CPS shows 10,6 million people born in Mexico, This figure represents more than a 13-fold increase over the 1970 census.
Mexicans account for about 31-32% of all immigrants, by far the largest country of origin and more than five times the next largest population. (Note that this degree of concentration from one country is not unprecedented, In the late 19th century, Germany and Ireland each accounted for more than 30% of the immigrant population at various times-in some years at the same time.)
Another phenomenon has changed in the past several decades, too, The percentage of the the Mexican population (defined as the popUlation of Mexico plus the Mexican-born population living in the U.S.) that is living in the United States has grown dramatically in recent years. For the period 1950-1970, only about 1.5% of the Mexican population was in the United States (not shown). This share doubled by 1970 and more than doubled again by 1995 (to 6.7%). The rapid growth in Mexicans in the U.S, since the mid-1990s has pushed this share to about 9% by 2004.
Sources: Decennial censuses through 2000 (Campbell and Lennon 1999), Urban Institute and Pew Hispanic Center tabulations of March CPS for 1995-2004.
Page 37

~1J,!rpl?~~!!,!es in Mule'!" ~~rtility
t8 Total Fertility Rate (Children per Woman)

7.~6.8

"0"

6

\

'\?

4

3.4

- - Historical - - CONAPO Projection - - - U.N. Medium Projection -_.. - U.S. Census Bureau Projection
Mexican Immigrants In U.S., 2000
./ 3.3
1!1

~~J'- ,~ ......- ... ~ '_ " _ .~_.... ~ •.~~ _

2

2 4 u.s. Natives of .--..-' - - - - -

Mexican Origin, 2000

•

.;"C
~ ?,:r

1.85

o _ L-~ _~~_ _~~_ _~~_ _~~_ _~~_ _~~_ _~~_ _~~_ _~~

1960

1970

1980

1990

2000

2010

2020

2030

2040

2050

This chart shows the measured total fertility rate (TFR) for Mexico for 1960-2000 and projected values through 2050 according to the three different projection sources. (Total fertility rates represent the average lifetime fertility of a woman as measured in a given year; replacement level TFR is about 2.052.1.)
The TFR in Mexico, according to CONAPO (National Population Council of Mexico) surveys, is less than one-third of what it was in 1960 as fertility has dropped from over 7 children per woman to about 2.4 in 2000, or just over replacement level.
Most population projections assume that fertility will continue to fall from 2000 levels. Both the United Nations and CONAPO assume that the Mexican TFR will ultimately reach 1.85, but the CONAPO projections assume a steeper drop. U.S. Census Bureau projections for Mexico assume the TFR will fan to 2.0.
Mexican immigrants in the U.S. actually have higher fertility than all Mexican women by almost one child per woman (3.3 versus 2.4). This surprising difference is the result, in large part, of selective migration from Mexico. In particular, the Mexicans in the U.S. tend to originate from regions experiencing higher fertility rates within Mexico and from groups prone to higher fertility.
Mexican origin women born in the United States have fertility that is only very slightly lower than women in Mexico.
Source: CONAPO (National Population Council of Mexico) website, www.conapo.gob.ll1x2003 and author's computation from US Current Population Survey data for June 1999, 2000, and 2001.
Page 38

Wide Range in Possible Flows

Annual Out-Migrants from Mexico (in ODDs) _

500000 per year : /: "'---''- 600,000 per year

. '(at least) ~ :; \ ' '" ' \

In late '90s (?)

400,000 per year

400

circa '90

---- -\-

.... -.

-- .... .... .... ,325,000

250,000

200

- - Historical Values

- - - Possible High Current Values

- - CONAPO Analysis & Projection

- - u.N. Medium Projection

- .. U. S. Census Bureau Projection
o _ L-~ _~~_ _~~_ _~~_ _~~_ _ _ ~~_~~ _~~_ _ _ ~_~ _~~_ _

1960

1970

1980

1990

2000

2010

2020

2030

2040

2050

This chart shows historical estimates of net migration from Mexico based on the author's estimates and projected future levels according to the 3 different projection sources,

CONAPO has significantly higher migration than the UN, but does not show much of a decline from the
initial values, CONAPO's assumptions rely on a set of emigration rates but do not fully reflect the new
information available from the u.s, Census 2000 on higher levels of migration to the United States
during the late 1990s; if they did, the CONAPO projections might have higher current levels of
migration to the U.S. as well as higher projected values.

The Census Bureau projections are the only ones that take into account the information on higher levels of migration. The assumptions for the first decade of the projection reflect this new information and show much higher levels of emigration from Mexico than either of the other two projections, However, by 2010, the Census Bureau assumptions are lower than CONAPO's but higher than the U.N.'s. By 2025, the Census Bureau assumptions differ little from the U.N. assumptions and reflect much lower levels of migration than the CONAPO projections,

The very different assumptions about fertility and migration result in a reasonably large range in population figures for Mexico in 2050 according to the various projections:

CONAPO

129.6 million

U.N. (Med.) 140.2 million

Census

147,9 million

Page 39

Growth ofMexicans In U..S.. Continues

Millions of Mexican iVligrants in U.S.

22· 2 M i l l i o n / \ "" I.;. j~(,"7QQ•

•
(2050)

k
~-"---;/l2\1- .2

/
20

_.- Mexican-Born Population in the U.S. (OOOs)

/19.1
/0 I

.. /., " Percent of Mexican Population in U.S. is
10

/162
I !
/ 12.8
I
0.7%1.Y . /10.6 (2004)
9.2

3.0%,~\
1.4%
1.6%.6 ~ ,~, ~ .\' 2_2
()

This chart displays the historical information on Mexicans in the United States, as previously displayed, together with projections of Mexicans in the United States based on the CONAPO assumptions about Mexico-U.S. migration.
The number of Mexicans in the United States is projected to increase steadily from 10.6 million in 2004 to more than 22 million in 2050. At this time, more than l-in-7 (or 15%) of persons born in Mexico are projected to be living in the United States.
In addition to the migrants in the United States, the Mexicans in the U.S. have children who, were the migrants still living in Mexico, would be Mexican-born. These post-2000 births also represent a sizeable group. By 2050, these post-20aO births to Mexican immigrants living in the U.S. and their descendants amount to another almost 17 million persons in addition to the 22.2 million shown in the chart. Thus, the 39 million Mexican immigrants and their post-2000 U.S.-born descendants would be equal to about 30% of the 130 million Mexicans projected to be living in Mexico.
Note that this scenario should not be treated as a prediction, but rather as the consequences of the assumptions built into the CONAPO projection. This scenario takes into account only the demographic assumptions, not any assumptions about migration policy or enforcement. Under the current immigration policies ofthe United States, the projected level of Mexico-U.S. migration built into this scenario would imply that at least half of the migration and possibly as much as two-thirds would have to be outside of legal channels. Demographically, these assumptions would imply more than half of the 2050 population of Mexicans in the United States would have to be unauthorized. Whether such a scenario is politically viable is outside the scope of these projections.
Sources: Decennial censuses through 2000 (Campbell and Lennon 1999), Urban Institute and Pew Hispanic Center tabulations of March CPS for 1995-2004, U.S. Census Bureau estimates ofthe Mexican population, and CONAPO estimates and projections. Projections beyond 2000 by author combining U.S. decennial census and CPS estirnates with CONApO projections of future migration leve1s.
Page 40

igration Flows to
Large, Increasing Flows Overall Increases Due to Unauthorized Responsive to Origin &Destination
Job Availability in U.S.
Conditions in Mexico & Elsewhere New Destinations Emerge Possible Slight Decrease in
Response to Economic Decline
Some of the major highlights from the analysis of migration flows to the U.S. and the demography of unauthorized migration are:
1. Very large flows to the U.S. Immigration flows have increased overall since the I980s. Much of the increase is due to unauthorized migration.
2. A very high percentage of new migrants are unauthorized. Much of the increase in annual immigration to the U.S. is due to increases in unauthorized migration. Since the mid-1990s, the number of new unauthorized migrants has equaled or exceeded the number of new legal immigrants. For Mexico, 80-85% of new settlers in the U.S. are unauthorized.
3. The flows respond to economic conditions in the U.S. and abroad. For Mexico and many other countries, conditions in the U.S. are almost always better than abroad so that worsening conditions in Mexico and elsewhere lead to increased migration to the United States.
4. New destinations for immigrants (especially Mexicans) emerged in the late 1990s. Settlement patterns in the U.S. respond increasingly to the availability ofjobs. Traditional settlement areas (e.g., CA, TX, IL, AZ) continued to attract migrants but a much larger share went to new destinations.
5. Current data do not show a dramatic response in the form of a large drop due to either 9/11 or the post-200! recession. Large flows arc continuing but there is some suggestion of a very slight decrease in 2003 and 2004, but immigration is still above levels of the mid-1990s.
Page 41

Impact of New Programs
Large Numbers (10+ million) Scattered Around Country NHxed, Young Families Significant "Investments" Potential Economic Mobility
Continued High Demand (?) Opening Up to New Flows (?)
This chart focuses on some of the implications of the information presented to be considered in designing policies and programs to deal with unauthorized migration.
• The numbers involved are very large-more than 10 million unauthorized migrants. • The migrants are scattered around the country with many now living in areas with little institutional
structure for dealing with newcomers. • Most of the unauthorized population is relatively young; many live in families; most of the children of
unauthorized migrants are U.S. citizens. • Almost all unauthorized families have one or more workers, many with 5 or more years in the U.S.
Their experience in the U.S. and the presence of wives and U.S.-born children suggests that they may be reluctant to leave the country. • The data on family incomes suggest that there has been little upward mobility among unauthorized migrants. Yet, after the IRCA legalizations, wages increased for formerly unauthorized migrants, suggesting the potential for mobility among the current group. • Unauthorized migrants are attracted by economic opportunity (relative to their home countries). Whether the current and previous levels of demand will continue is uncertain. However, even in the post-2000 period, unauthorized migrants have continued to come to the U.S. Migratory flows from Mexico are well-established. However, relatively small shares of the unauthorized population hail from Africa and Asia, in part because getting to the U.S. from these parts of the world is difficult.
Page 42

For more informationl contact:
(202) 419-3625 jpassel@pewhispanic.org
www.pewhispanic.org
References
Consejo Nacional de Poblacion (CONAPO). Proyecciones de la Poblacion de Mexico 2000-2050. Mexico City. See, http://www.conapo.gob.mx/00cifras/5.htm.
Department of Homeland Security. 2004. "Employment Authorization Document (EAD) Issuances (Approvals): June 2002 to May 2003." Unpublished tabulations from the Office ofImmigration Statistics. Washington, DC.
Gibson, Campbell and Emily Lennon. 1999. "Historical Census Statistics on the Foreign-bom Population of the United States: 1850-1990." Population Division Working Paper No. 29. U.S. Census Bureau: Washington, DC. February. Also, http://www.census.gov/population/www/documentation/twps0029/twps0029.html.
Passel, Jeffrey S. 2005. "Estimates of the Size and Characteristics of the Undocumented Population." Pew Hispanic Center: Washington, DC. March. Also, http://pewhispanic.org/reports/report.php?ReportID=44.
Passel, Jeffrey S. 2003. "Mexican Immigrants in the United States." In Celebracion de la aprobacion de la Ley General de Poblacion, Proceedings ofthe Seminario Internacional sobre la Ley General de Poblacion: 30 aniversario de su promulgacion, organized by Instituto de Investigaciones Juddicas, Universidad Nacional Autonoma de Mexico (UNAM). Mexico City, D.F. November 25-26.
Page 43

References (continued)
Passel, Jeffrey S. 2002. "Angels & Pins: How Many Undocumented Immigrants Live in the U.S.?" Presentation at Conference on Demographic Impacts of Legalization Programs sponsored by the NICHD, Bethesda, September 25. Forthcoming in Proceedings ofthe Conference on Demographic Impacts ofLegalization Programs. NICHD: Washington, DC.
Passel, Jeffrey S. 1986. "Undocumented Immigration." The Annals 486 (September 1986): 181-200. Passel, Jeffrey S., Randolph Capps, and Michael E. Fix. 2002. The Dispersal oflmmigrants in the I990s.
Information Brief No. 2 in Series on Immigrant Families and Workers: Facts and Perspectives. Urban Institute: Washington, DC. November 26. Also, http://www.urban.org/url.cfm?ID=410589. Passel, Jeffrey S. and Rebecca L. Clark. 1998. Immigrants in New York: Their Legal Status, Incomes and Tax Payments. Urban Institute: Washington, DC. April. Also, http://www.urban.org/url.cfm?ID=407432. Passel, Jeffrey S., Jennifer Van Hook, and Frank D. Bean. 2005. Demographic Profile of Unauthorized Migrants and Other Immigrants, Based on Census 2000: Characteristics and Methods. Report to the Census Bureau. Urban Institute: Washington, DC. Forthcoming. Passel, Jeffrey S., Jennifer Van Hook, and Frank D. Bean. 2004. Estimates ofLegal and Unauthorized Foreign Born Population for the United States and Selected States, Based on Census 2000. Report to the Census Bureau. Urban Institute: Washington, DC. June I. Also, http://www.sabresys.comli_ whitepapers.asp. Van Hook, Jennifer, Jeffrey S. Passel, Weiwei Zhang, and Frank D. Bean. 2004. Foreign-Born Emigration: New Approaches and Estimates Based on Matched Current Population Survey (CPS) Files. Report to the Census Bureau. Urban Institute: Washington, DC. September. Also, http://www.sabresys.comli_whitepapers.asp. Forthcoming in Demography. Warren, Robert E. and Jeffrey S. Passel. 1987. "A Count of the Uncountable: Estimates of Undocumented Aliens Counted in the 1980 United States Census." Demography 24 (3, August): 375-393.
Page 44

E HIBIT 9

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 1 of 13

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO, CARLOS FUENTES, HUMBERTO HERNANDEZ, ROSA LECHUGA, JOSE LUIS LECHUGA, JOHN DOES 1-4, JANE DOES 1-2, JOHN DOE 5, A MINOR, BY HIS PARENTS, JOHN DOES 6, A MINOR, BY HIS PARENTS, JANE DOE 3, A MINOR, BY HER PARENTS, JANE DOE 4, A MINOR, BY HER PARENTS, BRENDA LEE MIELES, CASA DOMINICA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, and PENNSYLVANIA STATEWIDE LATINO COALITION,
Plaintiffs

No. 3:06cv1586 (Judge Munley)

v.
CITY OF HAZLETON, Defendant
.................................................................................................................................. ••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••••• 0 .................................. .. MEMORANDUM
Before the Court is plaintiffs' motion for a temporary restraining order. l

'Though defendant received notice of plaintiffs motion for a temporary restraining order, we decline to convert that motion to one for a preliminary injunction under Rule 65(a)(1) of the Federal Rules of Civil Procedure. The Third Circuit Court of Appeals has held that notice of a motion for a preliminary injunction that offers insufficient time for the adverse party to prepare for a hearing fails to satisfy due process requirements. See Anderson v. Davila, 125 F.3d 148, 156 (3d Cir. 1997) (holding that "The

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 2 of 13
(Doc. 30). The matter has been briefed and argued and is ripe for disposition.
Background
In the instant motion, the plaintiffs challenge the legality of two
ordinances enacted in Hazleton, Pennsylvania. The first, Ordinance 2006-13
requires all occupants of rental units (as those terms are defined in the
ordinance) to obtain an "occupancy permit." In order to obtain such a permit,
an applicant must provide, inter alia, "proper identification showing proof of
legal citizenship and/or residency." (PI. Ex. A, Ordinance 2006-13, Section
7(b)1(g)). The second Ordinance is entitled the Illegal Immigration Relief Act
Supreme Court has observed that [Rule 65(a)(1)] requires, at the very least, 'a hearing in which the defendant is given a fair opportunity to oppose the application and to prepare such opposition."') (quoting Granny Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U.S. 423, 432 n. 7 (1974)); see also Sims v. Greene, 161 F.2d 87, 88 ("no preliminary injunction shall be issued without notice to the adverse party. Notice implies an opportunity to be heard. Hearing requires trial of an issue or issues of fact.").
Here, plaintiff filed a combined motion for a TRO and preliminary injunction seeking to bar enforcement of several ordinances less than two days before the ordinances in question were to take effect. We were compelled to hold a hearing on an expedited basis in order to address the impending harm plaintiffs argued enforcement would bring. Defendant had notice of the motion, but given the lengthy nature of the memorandum in support of that motion, the complexity and fact-intensive nature of the issues involved, and the short amount of time available for defendant to respond, we could not provide a hearing on the merits of a preliminary injunction that would protect defendant's due process rights. Accordingly, we will treat plaintiffs motion as a request for a temporary restraining order.
2

Case 3:06-cv-01586~JMM Document 35 Filed 10/31/2006 Page 3 of 13
Ordinance, Ordinance 2006-18. This ordinance is aimed at preventing businesses from employing or harboring illegal aliens. (PI. Ex. B, Ordinance 2006-18). The instant temporary restraining order seeks to enjoin the enforcement of these ordinances, which is scheduled to begin on November 1,2006. Discussion
The Third Circuit Court of Appeals has outlined four factors that a court ruling on a motion for a preliminary injunction must consider: (1) whether the movant will be irreparably injured by denial of the relief; (2) whether granting preliminary relief will result in even greater harm to the nonmoving party; (3)whether granting the preliminary relief will be in the public interest; and (4) whether the movant has shown a reasonable probability of success on the merits. Crissman v. Dover Downs Entertainment Inc., 239 F.3d 357, 364 (3d Cir.2001). These same factors are used to determine a motion for a
temporary restraining order. Bieros v. Nicola, 857 F. Supp. 445, 446
(E.D.Pa.1994). These factors merely "structure the inquiry" and no one element will necessarily determine the outcome. The court must engage in a delicate balancing of all the elements, and attempt to minimize the probable harm to legally protected interests between the time of the preliminary
3

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 4 of 13
injunction to the final hearing on the merits. Constructors Association of Western Pa. v. Kreps, 573 F.2d 811, 815 (3d Cir.1978). The movant bears the burden of establishing these elements. Adams·v. Freedorm Forge Corp., 204 F.3d 475, 486 (3d Cir. 2000). We will address each of these issues seriatim 1) Irreparable injury
The first factor to be weighed is whether the plaintiffs will be irreparably injured if the temporary restraining order is not granted. Crissman, 239 F.3d at 364. Usually, a preliminary injunction will be denied if it appears that the applicant has an adequate alternative remedy in the form of money damages. A.L.K. Corporation v. Columbia Pictures Indus., Inc., 440 F.2d 761 (3d Cir.1971 ).
After a careful review, the threat of irreparable injury is present in the instant case. For example, Plaintiff Jane Doe 1 risks being evicted from her apartment along with her two young children, although not an "illegal alien" under the laws of the United States. (Am. Comp/. ~ 34 - 39). Plaintiffs John Does 5 - 6 and Jane Does 3- 4 are minor school-age children residing with their parents in Hazleton, who may be forced to leave Hazleton and their schooling if the ordinances are enforced. (Am. Comp/. 40-41). Plaintiff
4

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 5 of 13
Brenda Lee Mieles is a United States citizen who may be evicted from her residence because of her inability to establish her citizenship. (Am. Compl. ~ 42 - 43). Plaintiffs Rosa and Jose Luis Lechuga have suffered and continue to suffer a great loss of business in their store and restaurant located in Hazleton, which they blame on the ordinances. (Am. CompI. ~ 15 - 19). A monetary price cannot be placed on such matters as plaintiffs' housing, livelihood and education. Therefore, monetary damages would not be sufficient to make the plaintiffs whole, and the plaintiffs' risk irreparable injury if the temporary restraining order is not granted. We find that this factor weighs heavily in favor of granting the temporary restraining order. 2) Harm to the Non-Moving Party
The second factor used by courts to determine whether to grant injunctive relief is "whether granting preliminary relief will result in even greater harm to the non-moving party" than to the movant. Allegheny Energy, Inc. v. DOE, Inc., 171 F.3d 153, 158 (3d Cir. 1999). The City argues that the ordinances related to illegal immigration are designed to prevent problems of social disorder and chaos that city leaders connect to the presence of illegal aliens in Hazleton. In the "Findings and Declaration of Purpose" that accompany the Illegal Immigration Relief Act Ordinance, the City contends
5

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 6 of 13
that "illegal 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 ... and diminishes our overall quality of life." Ordinance 2006-18 § 2(C). In statements to newspapers, the mayor of Hazleton has asserted that the illegal immigrants have created crime and disorder in the town: "They try to recruit these children into gangs; we're having graffiti sprayed on houses now." Ellen Barry, City Vents Anger at //legal Immigrants, Los ANGELES TIMES, July 14, 2006, at Ai. The city passed the ordinance, the mayor claims, partly in response to an incident where four illegal Dominican immigrants were arrested in connection with the shooting of a 29-year-old man. Id.
We find that this potential harm to the city is not greater than the harm faced by the plaintiffs from enforcement of the ordinances. Plaintiff has offered, in the form of affidavits, statements of the concrete harm faced by various individuals from the enforcement of the ordinances. Defendant, to the contrary, has offered only assertions that violent crime in Hazleton is a product of illegal immigration and that the city faces higher costs for social services because of the presence of undocumented persons. In a newspaper interview, the Mayor admitted that he had no statistics to support his claims of
6

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 7 of 13
increased crime related to illegal immigration, nor even any numbers on how many iIIegals had entered the City.2 Dan Geringer, Bloomberg: U.S. Can't
Stem Immigration Tide, PHILADELPHIA DAILY NEWS, July 6,2006 at 7. At oral argument, defendant's counsel argued that crime in the City had
increased by ten percent between 2004 and 2005, but offered no evidence to connect this increase to the presence of illegal immigrants. Counsel also offered no statistics to demonstrate the number of illegal immigrants living in Hazleton in those years. Compared to the complaints of specific harm offered by the plaintiffs, the City's vague complaints about the presence of illegal immigrants-problems that could be ascribed to a number of factors beyond the presence of people without legal documents and which might not be alleviated by the City's programs anyway-do not demonstrate that the City would face greater harm from issuing injunctive relief than the defendants would from not granting their motion.
'Some of the City's assertions about rising crime rates appear to be contradicted by other sources. The Los Angeles Times, for instance, reported on July 14, 2006, that the violent crime rate in Hazleton as reported in Pennsylvania state statistics had actually decreased during the years when illegal immigration supposedly increased. See Ellen Barry, City Vents Anger at "'egallmmigrants, Los ANGELES TIMES, July 14, 2006, at A 1 (noting that the number of total arrests in Hazleton had decreased from 1,458 in 2000 to 1,263 in 2005 and that the number of "reported rapes, robberies, homicides and assaults" had decreased as well).
7

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 8 of 13
3) The Public Interest The third factor we must consider in deciding this matter is "whether
granting the preliminary relief will be in the public interest." Allegheny, 171 F.3d at 158. We find that this factor favors granting a Temporary Restraining Order. The plaintiffs have shown they will suffer irreparable harm from enforcement of the ordinance. We find it in the public interest to protect residents' access to homes, education, jobs and businesses. No evidence offered by the City suggests that the public interest in enforcement outweighs these concerns. As stated above, defendant offers only vague generalizations about the crime allegedly caused by illegal immigrants, but has nothing concrete to back up these claims. Moreover, since the plaintiff makes claims that implicate constitutionally protected rights, the public interest would best be served by delaying enforcement of the City's ordinances until this court has an opportunity carefully to consider their constitutional implications. See Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 883-84 (3d Cir. 1997) (holding that "In the absence of legitimate, countervailing concerns, the public interest clearly favors the protection of constitutional rights"). 4) Reasonable probability of success on the merits
8

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 9 of 13
The final factor to weigh in determining whether to grant a temporary restraining order is the reasonable probability of eventual success on the merits. Crissman, 239 F.3d at 364. In order to satisfy this element, "[iJt is not necessary that the moving party's right to a final decision after trial be wholly without doubt; rather the burden is on the party seeking relief to make a prima facie case showing a reasonable probability that it will prevail on the merits." Punnett v. Carter, 621 F.2d 578,583 (3d Cir. 1980).
As mentioned above, the plaintiffs challenge the legality of two ordinances. The first, Ordinance 2006-13 requires all occupants of rental units (as those terms are defined in the ordinance) to obtain an "occupancy permit." In order to obtain such a permit, an applicant must provide, inter alia, "proper identification showing proof of legal citizenship and/or residency." (PI. Ex. A, Ordinance 2006-13, Section 7(b)1(g)). The second Ordinance is entitled the Illegal Immigration Relief Act Ordinance, Ordinance 2006-18. This ordinance is aimed at preventing businesses from employing or harboring illegal aliens. (PI. Ex. B, Ordinance 2006-18).
Plaintiffs have raised several constitutional claims regarding the ordinances at issue. Plaintiffs assert that the ordinances violate the Supremacy Clause of the United States Constitution; the Due Process Clause
9

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 10 of 13
of the Fourteenth Amendment to the United States Constitution and the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution. Plaintiffs also assert that the ordinances violate various statutes such as the Fair Housing Act, 42 U.S.C. § § 3601 et seq.; Pennsylvania Home Rule Charter Law, 53 Pa.C.S. § § 2961 et seq. and Landlord Tenant Act, 68 PENN. STAT. § § 250.101 et seq.
The ultimate success of plaintiffs' claims will, of course, depend on the facts presented at the full hearing on the merits. At this stage of the proceeding, where plaintiff seeks a temporary restraining order on an expedited basis without benefit of a full hearing, it is sufficient to note that plaintiff has raised serious claims and there is a reasonable probability of success on the merits on one or more of the claims. Moreover, we need not analyze the likelihood of success on the merit more closely at this point as we find that the other factors weigh heavily in favor of granting the temporary restraining order. See In re Arthur Treacher's Franchisee Litigation, 689 F.2d 1137 (3d Cir. 1982) ("where factors of irreparable harm, interests of third parties and public considerations strongly favor the moving party, an injunction might be appropriate even though plaintiffs did not demonstrate as strong a likelihood of ultimate success as would generally be required."
10

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 11 of 13
(internal quotation marks and citation omitted.)) Conclusion
For the aforementioned reasons, we find that the factors weigh in favor of granting a temporary restraining order. Accordingly, we will issue an order enjoining the enforcement of the ordinances at issue.
11

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 12 of 13
,

IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

PEDRO LOZANO; CARLOS FUENTES, HUMBERTO HERNANDEZ, ROSA LECHUGA, JOSE LUIS LECHUGA, JOHN DOES 1-4, JANE DOES 1-2, JOHN DOE 5, A MINOR, BY HIS PARENTS, JOHN DOES 6, A MINOR, BY HIS PARENTS, JANE DOE 3, A MINOR, BY HER PARENTS, JANE DOE 4, A MINOR, BY HER . PARENTS, BRENDA LEE MIELES, CASA DOMINICA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, and PENNSYLVANIA STATEWIDE LATINO COALITION,
Plaintiffs

No.3:06cv1586 (Judge Munley)

v.
CITY OF HAZLETON
............................................................D.-..e..f..e....n....d...a...n-...t........................................-...................................................................................................................................
ORDER _ _AND NOW, to wit, this 31 st day of October 2006, the plaintiffs' motion for a temporary restraining order is hereby GRANTED. The Defendant City of Hazleton is prohibited from enforcing the Illegal Immigration Relief Act Ordinance 2006-18 and Registration Ordinance 2006-13. A hearing on the

12

Case 3:06-cv-01586-JMM Document 35 Filed 10/31/2006 Page 13 of 13
,.
preliminary injunction will be set by further order of court. This temporary restraining order shall remain in effect until November 14, 2006, unless extended by the court.
This Order shall take effect upon the posting of a $200.00 security bond by the plaintiffs with the Clerk of Court.
BY THE COURT: sl James M. Munley JUDGE JAMES M. MUNLEY United States District Court
13

EXHIBIT 10

ORDINANCE 2006-18 ILLEGAL IMMIGRATION RELIEF ACT ORDINANCE
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HAZLETON AS FOLLOWS:
SECTION 1. TITLE
This chapter shall be known and may be cited as the "City ofHazleton Illegal Immigration Relief Act Ordinance."
SECTION 2. FINDINGS AND DECLARATION OF PURPOSE
The People of the City ofHazleton find and declare:
A. That state and federal law require that certain conditions be met before a person may be authorized to work or reside 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 ofHazleton.
C. That unlawful employment, the harboring of illegal aliens in dwelling units in the City ofHazleton, and crime committed by illega/aliens harm the health, safety and welfare of authorized US workers and legal residents in the City ofHazleton. Illegal 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 cost and diminishing their availability to legal residents, and diminishes our overall quality of life.
D. That the City of Hazleton is authorized to abate public nuisances and empowered and mandated by the people ofHazleton to abate the nuisance of illegal immigration by diligently prohibiting the acts and policies that facilitate illegal immigration in a manner consistent with federal law and the objectives of Congress.
E. That United States Code Title 8, subsection 1324(a)(l)(A) prohibits the harboring of illegal aliens. The provision of housing to illegal aliens is a fundamental component of harboring.
F. 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 crime, .to enjoy the public services provided by this city without being burdened by the cost ofproviding 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 Commonwealth of Pennsylvania.
G. The City shall not construe this ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance to any person.
SECTION 3. 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 ofpersons 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 permit, any business entity that is exempt by law from obtaining such a business permit, and any business entity that is operating unlawfully without such a business permit.
B. "City" means the City ofHazleton.
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 offederal, 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, task, 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 ofthe 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 thefederal government.)
SECTION 4. BUSINESS PERMITS, CONTRACTS, OR GRANTS
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 permit to engage in any type of work in the City shall sign an affidavit, prepared by the City Solicitor, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.
B. Enforcement: The Hazleton Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means ofa written signed complaint to the Hazleton 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 solely or primarily 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 Hazleton Code Enforcement Office shall, within three business days, request identity information from the business entity regarding any persons alleged to be unlawful workers. The Hazleton Code Enforcement Office shall suspend the business permit of any business entity which fails, within three business days after receipt of the request, to provide such information. In instances where an unlawful worker is alleged to be an unauthorized alien, as defined in United States Code Title 8, subsection 1324a(h)(3), the Hazleton Code Enforcement Office shall submit identity data required by the federal government to verify, pursuant to United States Code Title 8, section 1373, the immigration status of such person(s), and shall provide the business entity with written confirmation of that verification.
(4) The Hazleton Code Enforcement Office shall suspend the business permit of any business entity which fails correct a violation of this section within three business days after notification of the violation by.the Hazleton Code Enforcement Office.

(5) The Hazleton Code Enforcement Office shall not suspend the business permit of a business entity if, prior to the date of the violation, the business entity had verified the work authorization of the alleged unlawful worker(s) using the Basic Pilot Program.
(6) The suspension shall terminate one business day after a legal representative of the business entity submits, at a City office designated by the City Solicitor, a sworn affidavit stating that the violation has ended.
(a) The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information of the unlawful workers related to the complaint.
(b) Where two or more of the unlawful workers were verified by the federal government to be unauthorized aliens, the legal representative of the business entity shall submit to the Hazleton Code Enforcement Office, in addition to the prescribed affidavit, documentation acceptable to the City Solicitor 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 Hazleton Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Hazleton Code Enforcement Office shall reinstate the business permit. The Hazleton 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 Hazleton 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.
E. Private Cause ofAction for Unfairly Discharged Employees

(1) The discharge ofany employee who is not an unlawful worker by a business entity in the City is an unfair business practice if, on the date of the discharge, the business entity was not participating in the Basic Pilot program and the business entity was employing an unlawful worker.
(2) The discharged worker shall have a private cause of action in the Municipal Court ofHazleton against the business entity for the unfair business practice. The business entity found to have violated this subsection shall be liable to the aggrieved employee for:
(a) three times the actual damages sustained by the employee, including but not limited to lost wages or compensation from the date of the discharge until the date the employee has procured new employment at an equivalent rate of compensation, up to a period of one hundred and twenty days; and
(b) reasonable attorney'sfees and costs.
SECTION 5. HARBORING ILLEGAL ALIENS
A. It is unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit, 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, unless such harboring is otherwise expressly permitted by federal law.
(1) For the purposes of this section, to let, lease, or rent a dwelling unit to an illegal alien, 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, shall be deemed to constitute harboring. To suffer or permit the occupancy of the dwelling unit by an illegal alien, 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, shall also be deemed to constitute harboring.
(2) A separate violation shall be deemed to have been committed on each day that such harboring occurs, and for each adult illegal alien harbored in the dwelling unit, beginning one business day after receipt of a notice of violation from the Hazleton Code Eriforcement Office.
(3) A separate violation of this section shall be deemed to have been committed for each business day on which the owner fails to provide the Hazleton Code Enforcement Office with identity data needed to obtain a federal verification of immigration status, beginning three days after the owner receives written notice from the Hazleton Code Enforcement Office.
B. Eriforcement: The Hazleton 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 Hazleton Code Enforcement Office submitted by any official, business entity, or resident of the City. 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 solely or primarily on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.
(3) Upon receipt of a valid written complaint, the Hazleton Code Enforcement Office shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The Hazleton Code Enforcement Office shall submit identity data required by the federal government to verify immigration status. The City shall forward identity data provided by the owner to the federal government, and shall provide the property owner with written confirmation of that verification.
(4) If after five business days following receipt of written notice from the City that a
violation has occurred and that the immigration status ofany alleged illegal alien has been verified, pursuant to United States Code Title 8, section 1373(c), the owner of the dwelling unit fails to correct a violation of this section, the Hazleton Code Enforcement Office shall deny or suspend the rental license of the dwelling unit.
(5) For the period of suspension, the owner of the dwelling unit shall not be permitted to collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any tenant or occupant in the dwelling unit.
(6) The denial or suspension shall terminate one business day after a legal representative of the dwelling unit owner submits to the Hazleton Code Enforcement Office a sworn affidavit stating that each and every violation has ended. The affidavit shall include a description ofthe specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information for the illegal aliens who were the subject of the complaint.
(7) The Hazleton 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.
(8) Any dwelling unit owner who commits a second or subsequent violation of this section shall be subject to afine of two hundred and fifty dollars ($250)for each separate violation. The suspension provisions of this section applicable to a first violation shall also apply.

(9) Upon the request of a dwelling unit owner, the Hazleton Code Enforcement Office shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The penalties in this section shall not apply in the case of dwelling unit occupants whose status as an alien lawfully present in the United States has been verified.
SECTION 6. 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 part ofprovision of this Chapter is in conflict or inconsistent with applicable provisions offederal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part ofprovision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.
ORDAINED by Council this _ _ _ _ day of September, 2006.

First Reading
(September 8, 2006)
Presented_ _ _ __ Seconded_ _ _ __ Gabos _ _ _ __ Graham_ _ _ __ Mundie_ _ _ _ __ Nilles Yannuzzi_ _ _ __

Second Reading
Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

Third Reading
Presented Seconded Gabos Graham Mundie Nilles Yannuzzi

 
 .,.-.-. ..

I
06c WSY,
BRIEF IN SUPPORT OF PLAINTIFFS' APPLICATION FOR

TEMPORARY RESTRAINING ORDER

.

'.",..,.,

Diego County Apartment Association, the California Apartment Association

4 and the National Apartment Association respectfully request that this Court grant Plaintiffs'

5 Application for a 'Temporary Restraining Order immediately restraining the City of

6 Escondido from implementing and/or enforcing Ordinance No. 2006-38 R (the

/I I 7 "Ordinance"). The Ordinance, which seeks to ban renting an apartment to an "illegal alien"
8 or allowing such a person to live in an apartment, severely penalizes property owners and

9 presents serious constitutional and statutory legal issues. The public interest requires that its

lo enforcement be stayed in order to prevent irreparable h a m and dislocation.

I I

Amicus curiae represent thousands of residential rental property owners and real

12 estate professionals in the State of California and nationwide, including the owners and

13 operators of more than 22,000 such units in the City of Escondido. The issuance of a TRO

1 4 pending resolution of the Ordinance's legality is of utmost concern to Arnici's members.

15 Absent a TROYthe Ordinance will immediately and adversely impair their ability to conduct

16 their businesses and professions by placing thein in a prototypical "no-win situation." They

17 must eithcr attcinpt to coinply with the unlawful ordinance, thereby inviting an incalculable

number of lawsuits brought on behalf of their current and prospective tenants for violations

of federal and state housing, anti-discrimination, and privacy laws, or face the Ordinance's

draconian punishment provisions, including losing their contractual right to collect rent on

their properties in the City of Escondido (even those occupied by lawfully present tenants)

and be stripped of their business licenses and subjected to onerous fines andfor six months i

jail.

The impact on Ainici's ineinbers and their tenants in Escondido is undeniable. The

Ordiilancc virtually coinpels owners to delve into their tenants' private affairs. Not only

must owners obtain, and report to the City, certain personal information regarding their

tenants, but also the personal information of their tenants' families and guests, in order to

28 ensure that the premises are not "occupied" by an "illegal alien." Property owners,
3

Appllcet~onfor I.eave to F ~ l cAmicus Curlae Brref and Brietof Amicus Curlae ill S~cpl'ortol'l'lni~itil'lh' Application for 'l'cmporary Restraining Order; Case No. 06CV2434 IAH (NLS)

attempting to comply with the Ordinance, may then potentially be subjected to liability for violation of scvcral important privacy laws, including the right to privacy guaranteed by the California Constitution, and the Federal Credit Reporting Act (15 U.S.C. fj1681, et seq.), which prohibits the use of a consumer's personal information for purposes other than those expressly authorized by the Act.
Fines and penalties for failure to coinply with the Ordinance can be imposed without
1 a pre-determination hearing or other formal process. Further, the Ordinance provides no defined methodology or clear process for property owners to assess a tenant's or prospective
11 tenant's or resident's lawful iininigration status, and with thousands of forms of national anc
international identification, property owners simply cannot hope, nor are they trained, to identify false birth certificatcs, drivers' licenses, visas, resident alien cards, and other legal documents.
Moreover, even where the City of Escondido "determines" that a particular resident i, an "illegal alien," and an owner attempts to comply with the Ordinance, he or she faces the ilnininent threat of personal liability if such action is in fact prohibited by federal and/or state law. This scenario grows more complicated and troubling due to the fact that the
1 IOrdinance also hils to provide any direction to owners assessing whether a rented unit is
"occupied" for purposes of the regulation when it is visited by guests and family members who may be "illegal aliens," or how to handle units rented by a secalled "illegal alien" and his or hcr U.S. or lawfbl resident spouse, or his or her U.S. resident dependent children.
The potential impact and effect of the Ordinance also extends well beyond the City o Escondido. The Ordinance is one of several local immigration regulations recently adopted across the country, and therefore, is of particular concern to all of Amicus curiae's statewide and national members. Absent judicial intervention, similar unlawful but politically populai lnunicipal regulations are likely to proliferate throughout California and the nation, greatly magnifying the significant threat to the public, and specifically, to amicus curiae's members ability to lawfully conduct their businesses and professions.
A p p l ~ c a l ~ otio~r iLeave to File Amicus Curiae Brlet and Brief ot Amlcus Curlae it] Support ol. 1)luintil.l'~'Application for Temporary Restraining Order; Case No. 06CV2434JAH (NLS)

We respectfully request that the legality of the Ordinance be determined before it is implen~entedand before the threat of significant irreparable harm is realized. Ainicus curiae, therefore, ask that this Court grant Plaintiffs' Application for a Temporary Restraining Order, prohibiting the City of Escondido from implementing or enforcing Ordinance No. 2006-38 R. Dated: Novc~nber14, 2006
By: ~ t t o @ s for Amicus Curiae, The San Diego Apartment Association, The California Apartment Association and The National Apartment Association
5 Applict~l~ofnor Leave to F~lcAm~cusCur~aeBrief and Brlet o t Amicus Curiae in Support of P1aintiTi.s' Application for Temporaw Restraining Order; Case NO.06CV2434 JAH WLS)

 
 Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 1 of 21

1

2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10 ROY GARRETT, MARY GARRETT, )

ESCONDIDO HUMAN RIGHTS

)

11 COMMITTEE, JANE DOE 1 and DOE )

JANE DOE 2,

)

12

)

Plaintiffs,

)

13 v.

)

)

14 CITY OF ESCONDIDO,

)

)

15

Defendant.

)

)

16

Civil No. 06CV2434 JAH (NLS) ORDER GRANTING PLAINTIFFS’ APPLICATION FOR TEMPORARY RESTRAINING ORDER [Doc. No. 3]

17

INTRODUCTION

18

Now before this Court is Plaintiffs Roy Garrett, Mary Garrett and Escondido Human

19 Rights Committee’s (collectively “Plaintiffs”) application for a temporary restraining order

20 (“TRO”) to restrain Defendant City of Escondido (“Defendant”) from implementing and/or

21 enforcing Ordinance No. 2006-38 R, Chapter 16E of the Escondido Municipal Code. Doc. No.

22 3. Oral argument was heard on November 16, 2006, with appearances by Phillip Tencer, Alan

23 Mansfield, and David Blair-Loy for Plaintiffs, and Donald Lincoln and Christopher Garrett for

24 Defendant. This Court, after hearing the oral argument of counsel, and after a careful

25 consideration of the pleadings, relevant exhibits, and for the reasons set forth below,

26 GRANTED Plaintiffs’ application for temporary restraining order. The Court’s oral ruling of

27 November 16, 2006, is hereby incorporated by reference into this Order.

28 ///

06cv2434

Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 2 of 21

1

BACKGROUND

2

On October 18, 2006, Defendant adopted Ordinance No. 2006-38R titled “Establishing

3 Penalties for the Harboring of Illegal Aliens in the City of Escondido” (the “Ordinance”). The 4 Ordinance seeks to penalize “any person or business that owns a dwelling unit”1 in the city of

5 Escondido (“City”) who “harbor[s] an illegal alien in the dwelling unit, knowing or in reckless

6 disregard of the fact that an alien has come to, entered, or remains in the United States in

7 violation of law, unless such harboring is otherwise expressly permitted by federal law.” Decl.

8 of V. Calderon, Exh. 1, Minutes from October 4, 2006 Escondido City Council Meeting at 1;

9 Exh. 3 at 1 and 3. The enforcement provisions allow for the suspension of an owner’s business

10 license if, upon receipt of a complaint and subsequent verification “with the federal government

11 [regarding] the lawful immigration status of a person seeking to use, occupy, lease, or rent a

12 dwelling unit in the City” of a violation of the Ordinance, an owner: 1) “let[s], lease[s] or

13 rent[s] a dwelling unit to an illegal alien, knowing or in reckless disregard of the fact that an

14 alien has come to, entered, or remains in the United States in violation of law”; 2) fails to

15 correct a violation of the Ordinance upon “receipt of written notice from the City that a

16 violation has occurred and that the immigration status of any alleged illegal alien has been

17 verified”; or 3) fails to respond to the City within five business days of notification of the

18 complaint. See Exh. 3. The suspension of an owner’s license precludes the collection of rent

19 or payment “from any tenant or occupant in the dwelling unit.” Where more than one 20 violation has occurred,2 an owner would be subject to “a monetary penalty of up to $1000.00

21 per violation per day or a jail term of six months, or both.” TRO Appl. at 4, citing to §16E-2(h);

22 EMC §16-249. An illegal alien is defined in the Ordinance as:

23

24

1 The Ordinance at the present time specifically targets individuals who own more than three

25 rental units. Epp Ltr., Exh. 2 at 3 (“Presently, Escondido Municipal Code Section 16-17 requires a
business license for all persons engaged in certain types of business ... The general practice of the City

26 has been to require a business license for those who rent units in excess of three units; due to staffing
constraints and availability of resources, enforcement of a business license is not requested for

27 individual dwellings on a lot or for individual rooms in a homeowner’s home.”).

28

2 Plaintiffs assert that the Ordinance defines each day “beginning ten business days after

receipt of a notice of violation from the City” as a separate violation. See Exh. 3 at 3.

2

06cv2434

Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 3 of 21

1

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

2

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

3

Title 8, subsection 1373(c), that the person is an alien who is not lawfully present

in the United States.

4

See Exh. 3 at 3.

5

On November 3, 2006, Plaintiffs filed the instant complaint, asserting various

6

constitutional rights violations against Defendant. Plaintiff filed a TRO application on

7

November 7, 2006. Doc. No. 3. This Court, after reviewing Plaintiffs’ TRO application,

8

scheduled a hearing for November 16, 2006, with responses due by November 13, 2006. Doc.

9

No. 4. On November 9, 2006, Plaintiffs filed an additional declaration by Estela de los Rios

10

in support of their TRO application. Doc. No. 7. Defendant filed its opposition on November

11

13, 2006. Doc. No. 8. On November 14, 2006, the San Diego Apartment Association,

12

California Apartment Association and the National Apartment Association (collectively

13

“Apartment Associations”) requested leave to file an amicus brief with this Court in support of

14

Plaintiff’s TRO application. Doc. No. 9. This Court granted the amicus parties’ application.

15

Doc. No. 11. Plaintiffs filed a request for judicial notice in support of their TRO application

16

on November 15, 2006. Doc. No. 13.

17

DISCUSSION

18

I. Legal Standard

19

The purpose of a temporary restraining order (“TRO”) is to preserve the status quo before

20

a preliminary injunction hearing may be held; its provisional remedial nature is designed merely

21

to prevent irreparable loss of rights prior to judgment. See Granny Goose Foods, Inc. v. Bhd.

22

of Teamsters & Auto Truck Drivers, 415 U.S. 423, 439 (1974) (noting that a TRO is restricted

23

to its “underlying purpose of preserving the status quo and preventing irreparable harm just so

24

long as is necessary to hold a hearing, and no longer”). As such, an applicant for a TRO is

25

required to demonstrate “immediate and irreparable injury, loss or damage.” Fed. R. Civ. P.

26

65(b); see also Caribbean Marine Serv. Co., Inc. v. Baldrige, 844 F.2d 668, 674 (9th Cir. 1988).

27

The standard for issuing a TRO is similar to the standard for issuing a preliminary

28

injunction. Lockheed Missile & Space Co., Inc. v. Hughes Aircraft Co., 887 F. Supp. 1320,

3

06cv2434

Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 4 of 21

1 1323 (N.D. Cal. 1995). The Ninth Circuit recognizes two tests for demonstrating preliminary

2 injunctive relief: the traditional test or an alternative sliding scale test. Cassim v. Bowen, 824

3 F.2d 791, 795 (9th Cir. 1987). Under the traditional test, a party must show: “1) a strong

4 likelihood of success on the merits, 2) the possibility of irreparable injury to plaintiff if

5 preliminary relief is not granted, 3) a balance of hardships favoring the plaintiff, and 4)

6 advancement of the public interest (in certain cases).” Save Our Sonoran, Inc. v. Flowers, 408

7 F.3d 1113, 1120 (9th Cir. 2005). Where a party demonstrates that a public interest is

8 involved, a “district court must also examine whether the public interest favors the plaintiff.”

9 Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992).

10

Alternatively, a party seeking injunctive relief under Fed. R. Civ. P. 65 must show either

11 (1) a combination of likelihood of success on the merits and the possibility of irreparable harm,

12 or (2) that serious questions going to the merits are raised and the balance of hardships tips

13 sharply in favor of the moving party. Immigrant Assistance Project of the L.A. County of Fed’n

14 of Labor v. INS, 306 F.3d 842, 873 (9th Cir. 2002); Sun Microsystems, Inc. v. Microsoft

15 Corp., 188 F.3d 1115, 1119 (9th Cir. 1999); Roe v. Anderson, 134 F.3d 1400, 1402 (9th Cir.

16 1998). “‘These two formulations represent two points on a sliding scale in which the required

17 degree of irreparable harm increases as the probability of success decreases.’” Roe, 134 F.3d at

18 1402 (quoting United States v. Nutri-cology, Inc., 982 F.2d 394, 397 (9th Cir. 1992)); accord

19 Sun Microsystems, 188 F.3d at 1119. “Thus, ‘the greater the relative hardship to the moving

20 party, the less probability of success must be shown.” Sun Microsystems, 188 F.3d at 1119

21 (quoting Nat’l Ctr. for Immigrants Rights v. INS, 743 F.2d 1365, 1369 (9th Cir. 1984)).

22

The Ninth Circuit makes clear that a showing of immediate irreparable harm is essential

23 for prevailing on a TRO. See Caribbean Marine, 844 F.2d at 674. “Speculative injury does not

24 constitute irreparable injury sufficient to warrant granting a preliminary injunction.” Id.

25 Moreover, “a plaintiff seeking an injunction against a local or state government must present

26 facts showing a threat of immediate, irreparable harm before a federal court will intervene.”

27 Midgett v. Tri-County Met. Transp. Dist., 254 F.3d 846, 851 (9th Cir. 2001). Thus, a plaintiff

28 must show the presence of an “immediate threatened injury as a prerequisite to preliminary

4

06cv2434

Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 5 of 21

1 injunctive relief.” Id., citing Los Angeles Memorial Coliseum Commission v. National Football

2 League, 634 F.2d 1197, 1201 (9th Cir. 1980).

3 II. Analysis

4

A. Judicial Notice

5

Prior to the TRO hearing, Plaintiffs requested that this Court take judicial notice of a

6 Federal Register publication, 65 Fed. Reg. 58,301 (September 28, 2000), entitled

7 “Responsibility of certain entities to notify the Immigration and Naturalization Service of any

8 alien who the entity ‘knows’ is not lawfully present in the United States.” Doc. No. 13 at 1.

9 Pursuant to the Federal Register Act, a federal court shall take judicial notice of regulations

10 appearing in the Federal Register. See 44 U.S.C. § 1507 (“The contents of the Federal Register

11 shall be judicially noticed”); Biodiversity Legal Foundation v. Badgley, 309 F.3d 1166, 1179

12 (9th Cir. 2002). Accordingly, this Court GRANTED Plaintiffs’ request for judicial notice.

13

B. Interpretation Memorandum

14

Defendant submits an “Interpretation Memorandum” (the “Memorandum”) as support

15 for its opposition to the TRO application, which Defendant asserts “is the City’s Manager [sic]

16 formal statement of how the Ordinance will be implemented.” Resp. at 4. In his declaration,

17 the City Manager states that he is “charged with managing the affairs of the City on a day to

18 day basis” and “charged with implementing City policy.” See Phillips Decl. at ¶ 3. The City

19 Manager also declares that he is “the final authority on the City staff’s interpretation of any

20 ordinance.” Id. Plaintiffs at oral argument contested the validity of the Memorandum, stating

21 that the City’s code gives no authority to the City Manager to interpret or amend the subject

22 matter of the Ordinance.

23

From the record before this Court, it is unclear what binding effect, if any, the City

24 Manager’s Memorandum has on the construction of the Ordinance. Although administrative

25 instructions or memoranda may be used by a court in construing a state statute or ordinance,

26 the limiting construction may affect its analysis only if the construction is “made explicit by

27 textual incorporation, binding judicial or administrative construction, or well-established

28 practice.” Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1035 (9th

5

06cv2434

Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 6 of 21

1 Cir. 2006), citing to City of Lakewood v. Plain Dealer Publishing Corp., 486 U.S. 750, 770

2 (1988). For example, in Santa Monica Food, the Ninth Circuit noted that the text of the

3 ordinance in question “specifically provides that ‘[t]he City Manager, or his/her designee, shall

4 adopt administrative regulations that are consistent with and that further the terms and

5 requirements set forth within this chapter.’” 450 F.3d at 1026. Here, unlike in Santa Monica

6 Food, the Ordinance does not explicitly allow for the textual incorporation of a later-drafted

7 administrative policy memorandum. Moreover, the Ordinance contains no language that

8 delegates any regulatory authority on the City Manager, nor does Defendant present any

9 evidence indicating that the City Council or a legislative body, through judicial or

10 administrative construction, delegated to the City Manager the power or authority to

11 “interpret” and set forth regulations for implementing the Ordinance. Although the City

12 Manager has declared that he is “the final authority on the City staff’s interpretation of any

13 ordinance,” the lack of evidence of a well-established practice as required by the Ninth Circuit

14 does not convince this Court at this time that the City Manager possesses the authority to draft

15 an implementation memorandum that construes the subject matter of the Ordinance. The City

16 Manager, with the record present before the Court, therefore, cannot step into the role of

17 council member and interpret the scope of the Ordinance.

18

This Court also questions the propriety of a City policy memorandum to effectively

19 amend a city ordinance where the plain language of the Ordinance does not limit its effects to

20 prospective tenancy arrangements. In Richardson, the Ninth Circuit noted that “[w]hile a

21 municipality cannot delegate any part of its governmental power it may, of course, delegate

22 ministerial or administrative functions to its officials or employees.” 242 F.2d at 285. In the

23 instant matter, the duties that have been allegedly delegated to the City Manager do not appear

24 to be of an administrative or ministerial nature, but instead is of a legislative nature since it

25 appears to amend the plain language of the Ordinance. For example, the phrases “to let, lease,

26 rent” and “to suffer or permit” in the Ordinance indicate present, as well as future, lease or

27 applicable agreements. Moreover, the Ordinance itself does not specifically address tenancy

28 agreements that may be affected by enforcement, and in fact explicitly states that illegal aliens

6

06cv2434

Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 7 of 21

1 reside in units “without typical leasing, payment and other tenancy arrangements.” Exh. 3 at

2 1 (emphasis added). The Memorandum, therefore, attempts to amend the Ordinance by

3 significantly limiting the subject matter outside the plain language of the Ordinance.

4

In response, Defendant argues that the Memorandum construing the Ordinance as being

5 “‘applied only to leases and rental agreements entered into after the effective date” only reflects

6 the “fundamental tenet of statute interpretation” that “‘[s]tatutes do not operate retroactively

7 unless there is a clear indication of intent that they do so.’” Resp. at 23 (emphasis in original),

8 citing to Hermosa Beach Stop Oil Coalition v. City of Hermosa Beach, 86 Cal.App.4th 550

9 (2001). Although Defendant is correct in its assertion that “a statute shall not be given

10 retroactive effect unless such construction is required by explicit language or by necessary

11 implication,” see Fernandez-Vargas v. Gonzales, 126 S.Ct. 2422, 2428 (2006) (citations

12 omitted), it is unclear to this Court how the termination of a pre-existing tenancy agreement

13 is a “retroactive” application of the Ordinance. As discussed, the Ordinance here does not

14 contemplate the need of an owner to break a formal lease or agreement of a tenant once a

15 tenant has been found to be an “illegal alien,” as the Memorandum addresses. In fact, the

16 Ordinance specifically contemplates that illegal aliens are more likely to “reside in dwelling units

17 without typical leasing, payment and other tenancy arrangements ... such as written leases.” See

18 Ordinance, Exh. 3 at 1-2 (emphasis added). Because the Ordinance does not address the

19 breaking of any lease or rental agreement as the Memorandum contemplates, the breaking of

20 a prior lease or rental agreement should not be a retroactive application of the Ordinance.

21 Instead, a prospective application of the Ordinance would include newly entered leasing

22 arrangements, existing leasing arrangements, as well as housing situations that do not have a

23 typical leasing arrangement.

24

Accordingly, for the reasons stated above, this Court has serious concerns regarding the

25 binding authority and validity of the Memorandum. As such, the Memorandum does not

26 provide a limiting construction of the Ordinance, and will not be considered by this Court at

27 this time.

28 ///

7

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Case 3:06-cv-02434-JAH-NLS Document 16 Filed 11/20/2006 Page 8 of 21

1

C. Irreparable Harm

2

Plaintiffs allege that irreparable injury will occur if the Ordinance is not enjoined because

3 landlords in Escondido will be subject to fines and penalties if they do not violate their tenants

4 “privacy rights or federal and state privacy laws by sharing confidential information with the

5 City,” including compelling landlords to “speak to the City” within five days of receipt of a

6 complaint. TRO Appl. at 6. In addition, Plaintiffs further contend that the Ordinance forces

7 landlords to: 1) “face uncertainty” regarding which acts constitute the harboring of illegal aliens

8 given the complexity of federal immigration laws; and 2) choose between violation of the

9 Ordinance or breaching valid contracts such that it requires them to “engage in policing actions

10 or impairing their existing contractual obligations.” Id. at 6-7. Plaintiffs also assert that the

11 Jane Doe Plaintiffs “risk being evicted from their homes at any time, even though they have

12 U.S. citizen children living with them who attend school in Escondido, and even though they

13 are employed in Escondido.” Id. at 7. Finally, Plaintiff EHRC alleges that it will suffer

14 irreparable harm because it is forced to divert its limited resources in order to “provide outreach

15 opportunities to immigrants” in Escondido who are “confused and fearful” regarding the effects

16 of the Ordinance. Id. Defendant asserts that Plaintiffs have misinterpreted how the Ordinance

17 will be implemented, and that the Ordinance will not apply to the leasing arrangements

18 outlined in Plaintiffs’ declarations. Resp. at 6.

19

Plaintiffs have alleged irreparable harm to Jane Doe Plaintiffs 1 and 2. Jane Doe 1

20 specifically asserts that she lives in an apartment under a “month to month lease,” and that she

21 is afraid she will be “evicted from our home because of this ordinance.” Decl. Jane Doe 1 at 2.

22 Jane Doe 2 states that she has rented an apartment in Escondido since 1996, and is afraid of

23 becoming homeless because if asked to leave her apartment, it would be difficult with her three

24 children to find a place to live. Decl. Jane Doe 2 at 2. As discussed, this Court will not

25 construe the Ordinance in light of the Memorandum, and therefore finds irreparable harm to

26 Jane Does 1 and 2 real and immediate harm due to the threat of eviction if the Ordinance is

27 enacted, especially where as here, Plaintiffs would have a difficult, if not impossible, time

28 finding alternative housing where their kids attend school. See Plyler v. Doe, 457 U.S. 202,

8

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1 221-222 (1982) (illegal immigrant children irreparably harmed when deprived of access to

2 education); Mitchell v. U.S. Dept. of Housing and Urban Development, 569 F.Supp. 701, 704

3 (N.D. Cal. 1983) (irreparable harm with threat of eviction and limited housing availability in

4 geographic area).

5

This Court also finds that Plaintiffs Roy and Mary Garrett will likely suffer irreparable

6 harm because as landlords, they would be exposed to an imminent threat of litigation arising

7 from the enforcement of the Ordinance as it presently reads. As discussed below, the Ordinance

8 provides no guidance regarding the process of verification of a tenant’s alienage status, nor does

9 it provide for a meaningful hearing at a meaningful time. Finally, the Ordinance effectively

10 requires that the landlord evict the tenant, even if a tenant disputes the City’s violation

11 determination or even if the landlord could not obtain the necessary information as mandated

12 by the Ordinance. The threat of litigation for wrongful eviction by a tenant as a result of the

13 Ordinance is therefore real, establishing irreparable harm to Plaintiffs Garrett. Accordingly, this

14 Court finds that Plaintiffs have established a threatened and imminent irreparable harm, that

15 cannot be adequately compensated at a later time. See Sampson v. Murray, 415 U.S. 61, 89-90

16 (1974).

17

D. Public Purpose/Balance of Hardships

18

Plaintiffs argue that the balance of hardships weighs in favor of Plaintiffs since no harm

19 will come to the City if the Ordinance is enacted. TRO Appl. at 4-6. In response, Defendants

20 argue that because the Ordinance should be presumed constitutional, and that the City has

21 deemed the Ordinance “beneficial for its residents,” the balance of hardship tips in favor of the

22 City. Resp. at 9. To determine which direction the balance of hardship tips, “a court must

23 identify the possible harm caused by the [TRO] against the possibility of the harm caused by

24 not issuing it.” University of Hawaii Professional Assembly v. Cayetano, 183 F.3d 1096, 1108

25 (9th Cir. 1999).

26

Plaintiffs first contend that the enactment of the Ordinance prohibiting illegal aliens

27 from obtaining housing in Escondido will not relieve the perceived problems of urban blight put

28 forth by Defendant, pointing out that the study used by Defendant to justify the Ordinance

9

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1 did not cite illegal immigrants as the source of housing problems, but that the blight conditions

2 in the Mission Park area were due to the “high costs of housing and the unavailability of

3 affordable subsidized housing in Escondido.” Id. at 4. Plaintiffs also point out that while the

4 Ordinance’s findings make reference to crime caused by the illegal immigrant population, the

5 public record supports that crime significantly declined in the most recent crime statistics

6 available. Id.

7

Defendant responds that the referred to study identified an “increasing trend of urban

8 blight in at least one section of Escondido,” and that during City Council meetings, testimony

9 was given suggesting that “the landlords’ rental of housing to illegal aliens likely compounded

10 the identified blighted conditions due to the fact that illegal aliens do not wish to draw

11 attention to themselves, and therefore, would not bring substandard property maintenance

12 conditions and related problems to the attention of City enforcement officials.” Resp. at 2.

13 Defendant also adds since a city ordinance should be presumed valid, “the balance of hardship

14 tips in favor of the City and the TRO should be denied.” Resp. at 9.

15

The Ordinance cites several reasons for enactment of a ban against housing rental or

16 other arrangements with illegal aliens, including: 1) the harboring of illegal aliens endangers the

17 health, safety and welfare of its citizens; 2) criminal activities of illegal aliens; 3) illegal aliens

18 are less likely to enter into legal tenancy arrangements; and 4) illegal aliens are less likely to

19 report housing and property maintenance violations, which remain unreported. See Ordinance,

20 Exh. 3 at 1-2. Plaintiffs argue that the Ordinance will not affect overall levels of criminal

21 activity, and provide evidence in support of their argument that the crime rate actually declined

22 in the City in 2005. See Calderon Decl., Exh. 6. Plaintiffs also assert that the City in passing

23 the Ordinance, impermissibly tied any alleged criminal activity to illegal aliens without any

24 supporting evidence that illegal aliens actually caused the crime. This Court finds that the

25 evidence supports Plaintiff’s argument in regards to criminal activity. The statistics provided

26 by Plaintiffs, which are not refuted by Defendant, supports that no increase in criminal activity

27 has occurred, nor that illegal aliens are or should be tied to any alleged criminal activity in the

28 City. Plaintiffs’ arguments regarding a lack of support for criminal activity caused by illegal

10

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1 aliens, therefore, is persuasive.

2

In regards to endangering the health, safety and welfare of its citizens, the City again fails

3 to provide support for its statements. The City points to a report done by California State

4 University San Marcos (CSUSM) entitled “Mission Park Community Survey” that addresses

5 urban blight in the City of Escondido. See Calderon Decl., Exh. 4. Although the report does

6 outline a problem with overcrowding and disrepair of rental housing in this area, the report

7 attributes these problems specifically to the high cost of housing in the area and the lack of

8 affordable housing, where housing costs on average exceed 75% of a renter’s income in this

9 geographic area. Id. at 17, 53 et seq. In addition, although the report does generally state that

10 “[r]enters who are new immigrants and/or are exceeding the unit capacity are also less likely to

11 complain or identify maintenance problems that could lead to unhealthy housing,” the report

12 specifically recognizes that it “did not collect information about citizenship status.” Id. at 15,

13 18. Accordingly, it is unclear to this Court how the urban blight spoken of by Defendant as the

14 purpose behind the Ordinance can be directly or indirectly attributed to illegal immigrants since

15 illegal immigration or any blight that might be caused thereby was not the focus of the study.

16 Without such proof, there appears to be no public benefit to its citizens, or other legitimate

17 public purpose for enacting the Ordinance, and the balance of hardships tips sharply in favor

18 of Plaintiffs.

19

Finally, Defendant conceded during oral argument that the issuance of a TRO staying

20 enactment of the Ordinance would result in no actual prejudice to the City. Defendant

21 recognized that while the City would like to begin enforcement of the Ordinance, the City

22 would not lose benefits, or funds that it would be otherwise entitled, should the Court issue the

23 TRO. Accordingly, this Court finds that this factor weighs in favor of granting Plaintiffs’ TRO

24 application.

25

E. Serious Questions Going to the Merits

26

Plaintiffs assert that there are serious questions regarding the constitutionality of the

27 Ordinance, and that they will likely succeed on the merits of their claims. Plaintiffs allege

28 several constitutional violations, including under the: 1) supremacy clause; 2) California

11

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1 Constitution; 3) contracts clause; 4) First Amendment and Art. I., §2(a) of the California 2 Constitution and 5) Fourteenth Amendment due process.3

3

The Court initially notes that there is a “strong presumption of constitutionality that

4 applies to legislative enactments,” such that a plaintiff must “allege some sort of improper

5 purpose or insufficient justification in order to state a colorable federal claim for relief.” First

6 English Evangelical Lutheran Church of Glendale v. County of Los Angeles, California, 482

7 U.S. 304, 327 (1987). The burden lies with the party challenging the ordinance to

8 demonstrate any alleged constitutional violations. See New Orleans Public Service v. City of

9 New Orleans, 261 U.S. 682, 686 (1930) (“The ordinance is presumed to be valid and the

10 burden is upon the appellant to show that ... [the ordinance] deprive[s] appellant of its property

11 without due process of law.” (citations omitted)). In City of Anchorage v. Richardson Vista

12 Corp., 242 F.2d 276 (9th Cir. 1957) (Richardson), the Ninth Circuit commented on the duties

13 of a district court to uphold an ordinance “unless the ordinance is unnecessarily oppressive or

14 unreasonable.” Id. at 285. “It must be kept in mind that the courts cannot set aside city

15 ordinances unless they are unconstitutional or ultra vires, or in some special connection or

16 effect, unreasonable.” Id. Accordingly, this Court must exercise a presumption of

17 constitutionality of the Ordinance, absent a showing by Plaintiffs to the contrary.

18

a. Supremacy Clause

19

Plaintiffs first argue that the Ordinance violates the supremacy clause because the

20 Ordinance impermissibly attempts to regulate immigration. TRO Appl. at 10. Defendants

21 argue that the Ordinance is not preempted by federal law because it does not regulate

22 immigration. Resp. at 9.

23

The parties agree that DeCanas v. Bica, 424 U.S. 351 (1976), provides the relevant

24 factors for determining whether a city ordinance impermissibly preempts federal law. See TRO

25 Appl. at 9; Resp. at 9. In DeCanas, the Supreme Court reviewed the constitutionality of a

26

27
3 The TRO application does not address the equal protection, 42 U.S.C. § 1981, Federal Fair
28 Housing Act, Fair Employment and Housing Act, Unruh Act, legitimate police powers violation and
state law preemption claims that are asserted in the complaint.

12

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1 California state law prohibiting employers from hiring illegal aliens.4 The Supreme Court, while

2 recognizing that the “[p]ower to regulate immigration is unquestionably exclusively a federal

3 power,” found that there is no per se preemption against state statutes where aliens are a subject

4 matter of the legislation. “[S]tanding alone, the fact that aliens are the subject of a state statute

5 does not render it a regulation of immigration, which is essentially a determination of who

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

7 entrant may remain.” 424 U.S. at 355. Instead, the Supreme Court established three ways in

8 which a state ordinance may be preempted by federal law: 1) where the local law attempts to

9 regulate immigration; 2) where the local law attempts to operate in an area occupied by federal

10 law; and 3) where implementation of the local law is an obstacle or “burdens or conflicts in any

11 manner with any federal laws or treaties.” See id. at 354, 362-363.

12

1. Regulation of Immigration

13

Plaintiffs assert that the Ordinance is an impermissible attempt to regulate immigration

14 because it seeks to decide “who may stay and who must depart,” which “is the very core of

15 immigration regulation.” TRO Appl. at 10-11. Plaintiffs also assert that any regulation that

16 seeks to deny abode to undocumented immigrants “impermissibly interferes with the exclusive

17 federal power over immigration.” Id. at 11, citing to Graham v. U.S., 403 U.S. 365, 380

18 (1971).

19

Defendant replies that the Ordinance does not violate the supremacy clause because it

20 does not “determine who can enter or remain in this country.” Resp. at 9. Defendant

21 emphasizes that “‘it is the creation of standards for determining who is and is not in this

22 country legally that constitutes a regulation of immigration in these circumstances, not whether

23 a state’s determination in this regard results in the actual removal or inadmissibility of any

24 particular alien.’” Id. at 9-10, quoting Equal Access Educ. v. Merten, 305 F.Supp.2d 585, 603-

25 04 (E.D. Va. 2004). Defendant concludes that since the Ordinance “defers entirely to federal

26

27
4 The California law at issue stated “[n]o employer shall knowingly employ an alien who is not
28 entitled to lawful residence in the United States if such employment would have an adverse effect on
lawful resident workers.” 424 U.S. at 352, quoting Cal. Labor Code Ann § 2895(a).

13

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1 law concerning the immigration status of a rental applicant” it does not in and of itself regulate

2 immigration. Id. (emphasis in original).

3

Whether a state law impermissibly regulates immigration is dependent upon whether the

4 regulation is “essentially a determination of who should or should not be admitted into the

5 country, and the conditions under which a legal entrant may remain.” DeCanas, 424 U.S. at

6 355. A review of the language appears to support that the Ordinance does not attempt to

7 impermissibly regulate immigration. The Ordinance does not determine the condition under

8 which an individual may remain in the country, relying solely on federal agencies and

9 authorities to make that determination for the City. Accordingly, the Court finds Defendant’s

10 argument persuasive that the Ordinance is not likely preempted under the first prong of

11 DeCanas.

12

2. Field Preemption

13

Plaintiffs next argue that the Ordinance is also invalid because “the federal government

14 has comprehensively legislated generally in the field of immigration and specifically with respect

15 to the harboring of undocumented immigrants.” TRO Appl. at 12. Plaintiffs specifically point

16 to 8 U.S.C. § 1324 as support that the federal government has already addressed the legality

17 of “‘harboring’ individuals who have violated immigration laws,” and accordingly well occupies

18 this field. Id. at 13. In response, Defendant states that the “Ordinance regulates only the

19 landlord-tenant relationship, an area of law not completely occupied by the INA.” Resp. at 11.

20

In DeCanas, the Supreme Court found preemption of a state employment regulation did

21 not occur where “‘in the absence of persuasive reasons either that the nature of the regulated

22 subject matter permits no other conclusion, or that the Congress has unmistakably so

23 ordained.’” 424 U.S. at 356. The Court found that Congress, through the Immigration and

24 Naturalization Act, did not intend to affect “state regulation[s] touching on aliens in general,

25 or the employment of illegal aliens in particular,” noting especially that respondents could not

26 point to any specific wording or legislative intention. Id. at 358.

27

The Court finds that the facts in DeCanas are inapposite to the instant action. Unlike

28 the field of employment, where federal law did not legislate nor did Congress contemplate

14

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1 legislation in this area at the time the Supreme Court ruled in DeCanas, federal statutes

2 specifically provide for fines and criminal penalties for the harboring of illegal aliens. In

3 particular, 8 U.S.C. § 1324 provides for criminal penalties where a person “(iii) knowing or in

4 reckless disregard of the fact that an alien has come to, entered, or remains in the United States

5 in violation of law, conceals, harbors, or shields from detection, or attempts to conceal, harbor,

6 or shield from detection, such alien in any place, including any building or any means of

7 transportation”, in addition to where a person “(iv) encourages or induces an alien to come to,

8 enter, or reside in the United States, knowing or in reckless disregard of the fact that such

9 coming to, entry, or residence is or will be in violation of law.” See 8 U.S.C. §

10 1324(a)(1)(A)(iii) - (iv). It appears that Federal law, therefore, may occupy the same field in

11 which the Ordinance attempts to legislate. Further support for this finding appears in the

12 language of the Ordinance itself, which states that the act of housing that the Ordinance seeks

13 to regulate is within the definition of “harboring”. See Ordinance, Exh. 3 at 2 (“United States

14 Code Title 8, subsection 1324(a)(1)(A) prohibits the harboring of illegal aliens. The provision

15 of housing to illegal aliens is a fundamental component of harboring.”). Accordingly, this Court

16 finds serious concerns in regards to the field preemption of the Ordinance by existing federal

17 statutes.

18

3. Burdens or Conflicts With Federal Law

19

Plaintiffs also argue that the Ordinance conflicts with individual provisions of Federal

20 law, pointing out that there are “numerous categories of persons who may technically not be

21 lawfully present in the United States [but who] are nonetheless permitted to live and work in

22 the United States with the full knowledge of the federal government.” TRO Appl. at 14.

23 Plaintiffs also point to 8 U.S.C. § 1254a and 8 C.F.R. § 212.5(f) for support that federal

24 officials have considerable discretion “not to deport persons who are otherwise removable,” and

25 presumably listed on a federal list as an illegal alien.

26

In response, Defendant states the Ordinance does not stand as an obstacle to federal

27 immigration laws, but instead “is harmonious with its purposes and objectives.” Resp. at 13.

28 Stating that the INA’s intent is to “remove incentives for illegal immigration,” and recognizing

15

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1 that “‘harboring’ illegal aliens is unlawful and punishable for up to ten years imprisonment”

2 according to federal law, Defendant argues that the Ordinance and Memorandum “make clear

3 that the City has no intent to frustrate the federal immigration scheme with respect to aliens

4 permitted by the federal government to live and work in the United States or those aliens that

5 are in the process of obtaining legal status.” Id. at 14.

6

A review of the Ordinance language appears to support that it could stand as a burden

7 or obstacle to federal law as it currently stands. The Ordinance states that “[t]he City shall not

8 conclude that a person is an illegal alien unless and until an authorized representative of the

9 City has verified with the federal government, pursuant to United States Code Title 8,

10 subsection 1373(c), that the person is an alien who is not lawfully present in the United

11 States.” Ordinance, Exh. 3 at 3. The Ordinance further looks to federal immigration officials

12 to determine the lawful status of the tenant in question, and only if a federal immigration

13 official can answer that the tenant is an “illegal alien” will the Ordinance be applicable.

14 Defendant states in oral argument and through its Memorandum that it could make use of the

15 federal government’s Systematic Alien Verification for Entitlements (SAVE) program to carry

16 out this task. It is unclear to this Court, however, whether Defendant would be entitled to use

17 the SAVE program where the Ordinance seeks to regulate landlord-tenant relationships outside

18 of the scope of a public benefit. See Def. Exh. B-1 at 1. In addition, federal regulations make

19 clear that federal or state entities charged with reporting to the federal government the alienage

20 status of an individual must first themselves make a “formal determination that is subject to

21 administrative review” on an individual’s alienage status. 65 Fed. Reg. 58,301 (September 28,

22 2000). Because of the purpose of the SAVE program as a query for public benefit uses, as well

23 as the federal regulations’ clear mandate placing the responsibility of determining an

24 individual’s alienage status on the local or state entities themselves, this Court has serious

25 concerns regarding Defendant’s use of federal resources and procedures for a private benefit,

26 and the burden that it would cause to the federal government for the latter to conduct a formal

27 hearing to make the requisite finding of fact and conclusions of law for the Defendant. That

28 the Ordinance uses the Immigration and Nationality Act to define “illegal alien” implies that

16

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1 it will likely place burdens on the Departments of Justice and Homeland Security that will

2 impede the functions of those federal agencies. See Exh. 3 at 2. The Court, therefore, has

3 serious concerns regarding the burden this Ordinance will place on federal regulations and

4 resources.

5

Accordingly, for the foregoing reasons, this Court finds that Plaintiffs have raised serious

6 concerns regarding the constitutionality of the Ordinance and its preemption by federal law.

7

b. Due Process

8

Plaintiffs argue that the Ordinance “facially deprives Plaintiffs of due process” because

9 it “fails to provide either landlords or tenants with any notice or opportunity to be heard before

10 depriving them of fundamental liberty and property rights.” TRO Appl. at 21-22. Plaintiffs

11 cite to legitimate property interests, and the Ordinance’s provisions which lack any “right to

12 notice and opportunity to be heard before deprivation of liberty or property.” Id. at 22

13 (emphasis in original). Plaintiffs also contend that the “Ordinance provides tenants with no

14 opportunity to challenge their designation as ‘illegal aliens.’” Id. at 23 (emphasis in original).

15

Defendant responds that there is no violation of Plaintiffs’ due process rights because

16 there is “substantial process that must be completed prior to the enforcement of any penalty”

17 and there are substantial appellate opportunities “permitting a property owner to contest such

18 a suspension,” as well as the right of both landowners and tenants to avail themselves of

19 California’s eviction procedures. Resp. at 16. Defendant also points to the Memorandum,

20 which outlines that a property owner has several alternatives, including, (1) seeking “additional

21 information from the tenant in an attempt to establish the tenant’s legal status”; and (2)

22 commencing “steps under state or federal law to end the tenancy.” Id. at 17, citing to Phillips

23 Decl., Exh. B at 2-3.

24

The right to be heard prior to the deprivation of a property interest is a fundamental

25 protection of the Due Process clause. “[T]here can be no doubt that at a minimum [the Due

26 Process Clause] require[s] that deprivation of life, liberty or property by adjudication be

27 preceded by notice and opportunity for hearing appropriate to the nature of the case.” Mullane

28 v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313 (1950). “A constitutionally

17

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1 protected property interest results ‘from a legitimate claim of entitlement ... defined by existing

2 rules or understandings that stem from an independent source.” Groten v. California, 251 F.3d

3 844, 850 (9th Cir. 2001), quoting Bd. of Regents v. Roth, 408 U.S. 564, 577 (1972). Here,

4 Plaintiffs have a legitimate property interest in collecting rent under its leases, as well as the

5 incursion of costs associated with any eviction procedures that the Ordinance requires a

6 landlord to undertake if a tenant is found to be an illegal alien. See Cook v. City of Buena Park,

7 126 Cal.App.4th 1, 6 (2005). Accordingly, Plaintiffs have legitimate property interests that

8 require Defendant to provide adequate process before the landlords are deprived of that

9 property interest.

10

Defendant argues that the procedures subscribed to by the Ordinance to determine a

11 tenant’s alienage status are sufficient to meet the due process rights of Plaintiffs. First, as

12 discussed, the provisions relied upon by Defendant to determine a tenant’s status require a

13 “formal determination that is subject to administrative review” prior to submission of the

14 information to the Department of Justice. The Ordinance provides no such undertaking by the

15 City, nor does it provide any type of administrative review available to either the landlord or

16 tenant to contest the findings of the City or the federal government prior to the requirement

17 to initiate eviction proceedings by the landlord. The Ordinance, therefore, provides no recourse

18 to Plaintiffs prior to the deprivation of a life, liberty or property interest, including the

19 withholding of rents as well as the possible administration of fines and a jail term of up to six

20 months.

21

Second, Defendant presents no support for its contention that the procedures for

22 determining a tenant’s status satisfies a tenant’s due process rights. The Supreme Court makes

23 clear that illegal aliens are also afforded rights under the Due Process clause:

24

The Fourteenth Amendment provides that “[n]o State shall ... deprive any person

of life, liberty, or property, without due process of law; nor deny to any person

25

within its jurisdiction the equal protection of the laws.” ... Whatever his status under the

immigration laws, an alien is surely a ‘person’ in any ordinary sense of that term.

26

Aliens, even aliens whose presence in this country is unlawful, have long been

recognized as “persons” guaranteed due process of law by the Fifth and

27

Fourteenth Amendments.

28 Plyler, 457 U.S. at 210 (emphasis in original). Because the Ordinance fails to provide for notice

18

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1 or hearing of any kind prior to the deprivation of an illegal alien’s tenancy interest, this Court

2 has serious concerns regarding the constitutionality of the Ordinance under the Due Process

3 clause.

4

Defendant further argues that sufficient appellate procedures are available to Plaintiff

5 landlords that satisfy the due process requirement. However, “[t]he right to prior notice and

6 a hearing” under the Due Process clause can only be abridged “‘in extraordinary situations

7 where some valid governmental interest is at stake that justifies postponing the hearing until

8 after the event.’” United States v. James Daniel Good Real Property, 510 U.S. 43, 53 (1993),

9 quoting Fuentes v. Shevin, 407 U.S. 67, 82 (1972). Defendant presents no evidence of an

10 extraordinary circumstance that would justify the lack of notice and hearing prior to the

11 deprivation of Plaintiff landlords’ property interest. Moreover, from the record before the

12 Court, it is not apparent that the appellate proceedings referred to by Defendant provide a

13 hearing within a meaningful time in a meaningful manner sufficient to satisfy Plaintiffs’ Due

14 Process rights.

15

Finally, Defendant again fails to address any legally sufficient type of procedural due

16 process available to tenants who are deemed illegal aliens. As discussed, the Fourteenth

17 Amendment guarantees illegal aliens due process prior to the deprivation of a property interest.

18 Accordingly, it appears that there are serious concerns regarding due process considerations of

19 the Ordinance, weighing heavily in favor of granting Plaintiff’s TRO application.

20

c. Conclusion

21

For the foregoing reasons, this Court finds serious questions exist going to the merits of

22 this matter. Together with the Court’s previous findings of irreparable harm and a balance of

23 hardships tipping sharply in Plaintiffs’ favor, this Court accordingly GRANTS Plaintiffs’

24 application for temporary restraining order.

25

E. Bond Requirement

26

Federal Rules of Civil Procedure 65(c) require the posting of security by plaintiff “in such

27 sum as the court deems proper, for the payment of such costs and damages as may be incurred

28 or suffered by any party who is found to have been wrongfully enjoined or restrained.” The

19

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1 Ninth Circuit has no steadfast rule as to the amount of a bond as a result of the issuance of a

2 preliminary injunction. Generally, the bond amount should be sufficient “to protect his

3 adversary from loss in the event that future proceedings prove that the injunction issued

4 wrongfully.” Edgar v. MITE Corp., 457 U.S. 624, 649 (1982), citing to Fed. R. Civ. P. 65(c).

5 The Ninth Circuit gives wide discretion to the issuance of preliminary injunction bonds, holding

6 that “[s]o long as a district court does not set such a high bond that it serves to thwart citizen

7 actions, it does not abuse its discretion.” Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113,

8 1126 (9th Cir. 2005).

9

Plaintiffs argue that “[t]here should be no or only a nominal bond, since there is no cost

10 to Escondido if enforcement of the Ordinance is deferred.” TRO Appl. at 24. Defendant does

11 not address this point in its brief. Because Defendant has already conceded that no actual harm

12 would come as the result of the issuance of a TRO, this Court finds that a minimal bond would

13 be sufficient here. Accordingly, Plaintiffs shall post a bond of $100.00 pursuant to Fed. R. Civ.

14 P. 65(c).

15

CONCLUSION AND ORDER

16

For the foregoing reasons, IT IS HEREBY ORDERED that:

17

1. Plaintiffs’ request for judicial notice [Doc. No. 13] is GRANTED.

18

2. The Court’s oral ruling of November 16, 2006, is incorporated by reference into

19

this Order.

20

3. Plaintiffs’ Application for a Temporary Restraining Order [Doc. No. 3] is

21

GRANTED. Defendant City of Escondido is prohibited from enforcing

22

Ordinance No. 2006-38R titled “Establishing Penalties for the Harboring of

23

Illegal Aliens in the City of Escondido” until a hearing on the preliminary

24

injunction and determination on its merits of the same.

25

4. This Order shall be effective upon the posting of a bond of $100.00 by Plaintiffs

26

pursuant to Fed. R. Civ. P. 65(c) on or before 4:00 p.m. on November 22,

27

2006.

28

5. Plaintiffs shall file and serve their preliminary injunction brief with this Court on

20

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1

or before January 12, 2007.

2

6. Defendant shall file and serve their opposition brief on or before February 2,

3

2007. Plaintiff may file and serve their reply brief on or before February 16,

4

2007.

5

7. The preliminary injunction hearing shall be heard on March 8, 2007, at 2:00

6

p.m.

7

IT IS SO ORDERED.

8

9 DATED: November 20, 2006

10

11

HON. JOHN A. HOUSTON

United States District Judge

12

13 cc: Magistrate Judge Stormes All Counsel of Record
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1 2 3 4 5

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8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11

ROY and MARY GARRETT; ESCONDIDO Case No. 06 CV 2434 JAH (NLS) HUMAN RIGHTS COMMITTEE;

12 JANE DOE 1; JANE DOE 2,

13 v.

Plaintiff,

14 CITY OF ESCONDIDO,

ORDER RE: STIPULATED FINAL JUDGMENT AND PERMANENT INJUNCTION

15

Defendant.

16

Date Action Filed: November 3, 2006

Trial Date:

None Set

17

18

19

On November 3, 2006, Plaintiffs Roy and Mary Garrett, Escondido Human Rights

20 Committee, Jane Doe 1 and Jane Doe 2 (collectively “Plaintiffs”) filed their complaint herein,

21 asserting various constitutional rights violations against Defendant City of Escondido (“Defendant”).

22 On November 7, 2006, Plaintiffs sought from the Court an order to temporarily restrain Defendant

23 from enforcing Ordinance No. 2006-38R, titled "An Ordinance of the City of Escondido, California

24 Establishing Penalties for the Harboring of Illegal Aliens in the City of Escondido" (“Ordinance”),

25 which was adopted by Defendant on October 18, 2006, with an effective date of November 17, 2006.

26 This Court, on November 16, 2006, granted Plaintiffs’ application for temporary restraining order,

27 and enjoined Defendant from enforcing the Ordinance.

28

Case No. 06CV 2434 JAH (NLS) Stipulated Final Judgment And Permanent Injunction

Case 3:06-cv-02434-JAH-NLS Document 25 Filed 12/15/2006 Page 2 of 4

1

The parties have now filed with the Court a stipulation for entry of a stipulated final

2 judgment and permanent injunction. The Court has reviewed the stipulation submitted by the parties

3 and has concluded that it is appropriate for the Court to enter this judgment, issue the injunction as

4 set forth in the judgment and resolve all matters in dispute in this action, including without limitation

5 all claims for damages, attorneys fees, injunctive or other relief, without trial. Pursuant to agreement

6 and stipulation,

7

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

8

1. A stipulated permanent injunction enjoining the Defendant City of Escondido from

9 enforcing the Ordinance shall be issued by the Court. The parties have waived any requirement for

10 a more specific or detailed order which may be imposed by Fed. R. Civ. P. 65(d), other statutory

11 authority, or common law.

12

Accordingly, IT IS HEREBY ORDERED that Defendant and each of its officers,

13 principals, agents, servants, employees, successors and assigns, and all those in concert or

14 participation with Defendant, are PERMANENTLY ENJOINED from enforcing Ordinance No.

15 2006-38R titled "An Ordinance of the City of Escondido, California Establishing Penalties for the

16 Harboring of Illegal Aliens in the City of Escondido."

17

2. The $100 bond posted by Plaintiffs pursuant to the Court's November 20, 2006 order

18 granting the Temporary Restraining Order is hereby discharged.

19

3. This stipulated judgment is not an admission or finding of liability and shall not

20 constitute a final determination on the merits of any issue. Nor shall this judgment have any res

21 judicata, collateral estoppel, or preclusive effect as to any third party claim, action or proceeding.

22

4. Each party to this case shall bear its own costs and attorneys fees, except that

23 Defendant City of Escondido shall pay to Plaintiffs the sum of $90,000 for their costs and attorneys

24 fees pursuant to the stipulation of the parties, within 10 days after the entry of this judgment by the

25 Court.

26 / / /

27 / / /

28 / / /

Case No. 06CV 2434 JAH (NLS)

-2-

Stipulated Final Judgment

And Permanent Injunction

Case 3:06-cv-02434-JAH-NLS Document 25 Filed 12/15/2006 Page 3 of 4

1

5. The Court shall retain jurisdiction of this matter for purposes of construction and

2 enforcement of this stipulated judgment and the stipulated permanent injunction and shall have

3 jurisdiction to make any orders or findings necessary to effectuate and enforce the injunction.

4

5 DATED: December 15, 2006 6 7 8

HON. JOHN A. HOUSTON United States District Judge

9

10 Submitted by: 11 12 13

ENDEMAN, LINCOLN, TUREK & HEATER LLP Donald R. Lincoln Henry E. Heater
ESCONDIDO CITY ATTORNEY Jeffrey R. Epp

14

LATHAM & WATKINS LLP

Christopher Garrett

15

By: /s Christopher W. Garrett

Christopher W. Garrett

16

Attorneys for Defendant

City of Escondido

17

ROSNER & MANSFIELD, LLP

18

Hallen D. Rosner

Alan M. Mansfield

19

Virginia Y. Calderon

20

COOLEY GODWARD KRONISH LLP

Philip Tencer

21

Michael Levinson

By: /s Alan M. Mansfield

22

Alan M. Mansfield

23

David Blair-Loy

24

ACLU FOUNDATION OF SAN DIEGO

& IMPERIAL COUNTIES

25

Omar C. Jadwat, Esq.

26

Jennifer C. Chang, Esq.

AMERICAN CIVIL LIBERTIES UNION

27

FOUNDATION IMMIGRANTS' RIGHTS PROJECT

28

Case No. 06CV 2434 JAH (NLS)

-3-

Stipulated Final Judgment

And Permanent Injunction

Case 3:06-cv-02434-JAH-NLS Document 25 Filed 12/15/2006 Page 4 of 4

1

Cynthia Valenzuela

2

MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)

3

David Kline

4

THE FAIR HOUSING COUNCIL OF SAN DIEGO

5

Elliott Mincberg

PEOPLE FOR THE AMERICAN WAY 6

Christopher Brancart

7

BRANCART & BRANCART

Attorney for Plaintiffs

8

ROY and MARY GARRETT, et al.

9

10

11 12 13 14 15

16 17 18 19 20 21 22 23 24 25 26 27 28

Case No. 06CV 2434 JAH (NLS)

-4-

Stipulated Final Judgment

And Permanent Injunction

 
 Jeffrey R. Epp (SBN 123565) ESCONDIDO CITY ATTORNEY City of Escondido 20 1 North Broadway Escondido, CA 92025 Telephone: (760) 839-4609 Facsimile: (760) 74 1-7541
Donald R Lincoln (SBN 41672) Henry E. Heater (SBN 99007) ENDEMAN, LINCOLN, TUREK & HEATER LLP 600 B Street, Suite 2400 San Diego, CA 92 101 Telephone: (619) 544-0123 Facsimile: (619) 544-91 10
19 Christopher Garrett (SBN 100764) LATHAM & WATKINS LLP 10 600 West Broadway, Suite 1800
San Diego, CA 92101 11 Telephone: (619)236-1234
Facsimile: (6 19) 696-74 19 12
Attorneys for Defendant 13 City of Escondido
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA

ROY and MARY GARRETT; ESCONDIDO Case No. 06 CV 2434 JAH (NLS) HUMAN RIGHTS COMMITTEE; JANE DOE I ; JANE DOE 2,

Plaintiff,

E-FILING

v.

CITY OF ESCONDIDO,

22 1

Defendant.

Date Action Filed: November 3,2006

Trial Date:

None Set

I

26 27 28
SDU65463.1

STIPULATION FOR ENTRY OF FINAL JUDGMENT AND PERMANENT INJUNCTION
1 StipuClaatisoenNfOor.0E6ntCryVo2f4F3in4aJlAJHud(gNmLeSnt) And Permenant Lniunction

IT IS HEREBY STIPULATED between the parties through their respective counsel that Final Judgment in the form set forth in Attachment A to this stipulation shall be entered by the Court in this action. The parties hereby waive any requirement for a more specific or detailed order which may be imposed by Fed. R. Civ. P. 65(d), other statutory authority, or common law. This stipulated judgment is not an admission or finding of liability and shall not constitute a final determination on the merits of any issue. Nor shall this judgment have any res judicata, collateral estoppel, or preclusive effect as to any third party claim, action or proceeding. The undersigned represent and covenant that they have been duly authorized to execute this Agreement on behalf of their respective clients and that such execution is made within the course and scope of their respective representation andlor employment. The City has authorized its representatives to enter into and execute this Stipulation on behalf of the City.
ENDEMAN, LINCOLN, TUREK&HEATERLLP Donald R. Lincoln Henry E. Heater ESCONDlDO CITY ATTORNEY Jeffrey R. Epp LATHAM & WATKINS LLP Christopher Garrett
er W. Garrett

!

Case No. 06CV 2434 JAH WLS)

1

Stipulated Final Judgment And Permanent Injunction

Dated: !ltw-&L q 0 0 &

ROSNER & MANSFIELD, LLP Hallen D. Rosner Alan M. Mansfieid Virginia Y. Calderon
COOLEY GODWARD KRONISH LLP Philip Tencer Michael Levinson
David Blair-Loy ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
Omar C. Jadwat, Esq. Jennifer C. Chang, Esq, AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT
Cynthia Valenzuela MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)
David Kline THE FAIR HOUSING COUNCIL OF SAN DIEGO
Elliott Mincberg PEOPLE FOR THE AMERICAN WAY
Christopher Brancart BRANCART & BRANCART Attorney for Plaintiffs ROY and MARY GARRETT, et al.

I
Case No. 06CV 2434 JAH (NLS) Stipulated Final Judgment And Permanent Iniunction

 
 Jeffrey R. Epp (SBN 123565) ESCONDIDO CITY ATIORNEY 2 City of Escondido 201 North Broadway 3 Escondido, CA 92025 Telephone: (760) 839-4609 4 Facsimile: (760) 741~754I

5 Donald R Lincoln (SBN 41672) Henry E. Heater (SBN 99007)
6 ENDEMAN, LINCOLN, TUREK & HEATER LLP
600 B Street, Suite 2400
7 San Diego, CA 92101 Telephone: (619) 544-0123
8 Facsimile: (619) 544~9) 10

9 Christopher Garrett (SBN 100764) LATHAM & WATKINS LLP
10 600 West Broadway, Suite 1800 San Diego, CA 92101
11 Telephone: (619) 236-1234 Facsimile: (619) 696-7419
12 Attorneys for Defendant
13 City of Escondido

14 UNITED STATES DISTRICT COURT
15 SOUTHERN DISTRICT OF CALIFORNIA
16

17 ROY and MARY GARRETT; ESCONDIDO Case No. 06 CV 2434 JAH (NLS) HUMAN RIGHTS COMMITTEE; JANE DOE
18 I; JANE DOE 2,

19

Plaintiff,

20

v.

2 I CITY OF ESCONDIDO,

Date Action Filed: November 3, 2006

Trial Date:

None Set

22

Defendant.

23

24

STIPULATION FOR ENTRY OF FINAL JUDGMENT AND

25

PERMANENT INJUNCTION

26

27

28
5D\565463. J

Case No. 06 CV 2434 JAH (NLS) Stipulation for Entry of Final Judgment
And Permenant Injunction

IT IS HEREBY STIPULATED between the parties through their respective

2 counsel that Final Judgment in the form set forth in Attachment A to this stipulation shall be

3 entered by the Court in this action. The parties hereby waive any requirement for a more specific

4 or detailed order which may be imposed by Fed. R. Civ. P. 65(d), other statutory authority, or

5 common law. This stipulated judgment is not an admission or finding of liability and shall not

6 constitute a final determination on the merits of any issue. Nor shall this judgment have any res

7 judicata, collateral estoppel, or preclusive effect as to any third party claim, action or proceeding.

8 The undersigned represent and covenant that they have been duly authorized to execute this

9 Agreement on behalf of their respective clients and that such execution is made within the course

10 and scope of their respective representation andlor employment. The City has authorized its

11 representatives to enter into and execute this Stipulation on behalf of the City.

12

13 Dated: 14 15 16

ENDEMAN, LINCOLN, TUREK & HEATER LLP Donald R. Lincoln Henry E. Heater
ESCONDIDO CITY AITORNEY
Jeffrey R. Epp

17

LATHAM & WATKINS LLP

Christopher Garrett

18

19

20

By'~~~~~~~--------~-------­ er W. Garrett

r eys for Defendant

21

City of Escondido

22 III

23 III 24 III

25 1/1
26 /II

27 /II 28 /II
5D\565463.1

Case No. 06CY 2434 JAH (NLS) Stipulated Final Judgment And Permanent lnjunction

Dated: ~!~ ·).000
2
3 4 5 6
7 8 9
10
11
12
13
14 15
16 17 18 19
20
21
22 23 24 25 26
27 28
SO\565463.1

ROSNER & MANSFIELD, LLP Hallen D. Rosner Alan M. Mansfield Virginia Y. Calderon
COOLEY GODWARD KRONISH LLP Philip Tencer Michael Levinson
By-: c:;;!;z;;(22 Alan M. Mansfield
David Blair-Loy ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
Omar C. Jadwat, Esq. Jennifer C. Chang, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT
Cynthia Valenzuela MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)
David Kline THE FAIR HOUSING COUNCIL OF SAN OTEGO
Elliott Mincberg PEOPLE FOR THE AMERICAN WAY
Christopher Brancart BRANCART & BRANCART Attorney for Plaintiffs ROY and MARY GARRETT, et al.
Case No. 06CY 2434 JAH (NLS) Stipulated Final Judgment And Permanent Injunction

 
 1 2

3

4

5

6

7

8

UNITED STATES DISTRICT COURT

9

SOUTHERN DISTRICT OF CALIFORNIA

10

11

ROY and MARY GARRETT; ESCONDIDO Case No. 06 CV 2434 JAH (NLS) HUMAN RIGHTS COMMITTEE;

12 JANE DOE 1; JANE DOE 2,

13 v.

Plaintiff,

14 CITY OF ESCONDIDO,

ORDER RE: STIPULATED FINAL JUDGMENT AND PERMANENT INJUNCTION

15

Defendant.

16

Date Action Filed: November 3, 2006

Trial Date:

None Set

17

18

19

On November 3, 2006, Plaintiffs Roy and Mary Garrett, Escondido Human Rights

20 Committee, Jane Doe 1 and Jane Doe 2 (collectively “Plaintiffs”) filed their complaint herein,

21 asserting various constitutional rights violations against Defendant City of Escondido (“Defendant”).

22 On November 7, 2006, Plaintiffs sought from the Court an order to temporarily restrain Defendant

23 from enforcing Ordinance No. 2006-38R, titled "An Ordinance of the City of Escondido, California

24 Establishing Penalties for the Harboring of Illegal Aliens in the City of Escondido" (“Ordinance”),

25 which was adopted by Defendant on October 18, 2006, with an effective date of November 17, 2006.

26 This Court, on November 16, 2006, granted Plaintiffs’ application for temporary restraining order,

27 and enjoined Defendant from enforcing the Ordinance.

28

Case No. 06CV 2434 JAH (NLS) Stipulated Final Judgment And Permanent Injunction

1

The parties have now filed with the Court a stipulation for entry of a stipulated final

2 judgment and permanent injunction. The Court has reviewed the stipulation submitted by the parties

3 and has concluded that it is appropriate for the Court to enter this judgment, issue the injunction as

4 set forth in the judgment and resolve all matters in dispute in this action, including without limitation

5 all claims for damages, attorneys fees, injunctive or other relief, without trial. Pursuant to agreement

6 and stipulation,

7

IT IS HEREBY ORDERED, ADJUDGED AND DECREED that:

8

1. A stipulated permanent injunction enjoining the Defendant City of Escondido from

9 enforcing the Ordinance shall be issued by the Court. The parties have waived any requirement for

10 a more specific or detailed order which may be imposed by Fed. R. Civ. P. 65(d), other statutory

11 authority, or common law.

12

Accordingly, IT IS HEREBY ORDERED that Defendant and each of its officers,

13 principals, agents, servants, employees, successors and assigns, and all those in concert or

14 participation with Defendant, are PERMANENTLY ENJOINED from enforcing Ordinance No.

15 2006-38R titled "An Ordinance of the City of Escondido, California Establishing Penalties for the

16 Harboring of Illegal Aliens in the City of Escondido."

17

2. The $100 bond posted by Plaintiffs pursuant to the Court's November 20, 2006 order

18 granting the Temporary Restraining Order is hereby discharged.

19

3. This stipulated judgment is not an admission or finding of liability and shall not

20 constitute a final determination on the merits of any issue. Nor shall this judgment have any res

21 judicata, collateral estoppel, or preclusive effect as to any third party claim, action or proceeding.

22

4. Each party to this case shall bear its own costs and attorneys fees, except that

23 Defendant City of Escondido shall pay to Plaintiffs the sum of $90,000 for their costs and attorneys

24 fees pursuant to the stipulation of the parties, within 10 days after the entry of this judgment by the

25 Court.

26 / / / 27 / / / 28 / / /

Case No. 06CV 2434 JAH (NLS)

-2-

Stipulated Final Judgment

And Permanent Injunction

1

5. The Court shall retain jurisdiction of this matter for purposes of construction and

2 enforcement of this stipulated judgment and the stipulated permanent injunction and shall have

3 jurisdiction to make any orders or findings necessary to effectuate and enforce the injunction.

4

5 DATED: December 15, 2006 6 7 8

HON. JOHN A. HOUSTON United States District Judge

9 10 Submitted by: 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

ENDEMAN, LINCOLN, TUREK & HEATER LLP Donald R. Lincoln Henry E. Heater
ESCONDIDO CITY ATTORNEY Jeffrey R. Epp
LATHAM & WATKINS LLP Christopher Garrett By: /s Christopher W. Garrett
Christopher W. Garrett Attorneys for Defendant City of Escondido
ROSNER & MANSFIELD, LLP Hallen D. Rosner Alan M. Mansfield Virginia Y. Calderon
COOLEY GODWARD KRONISH LLP Philip Tencer Michael Levinson By: /s Alan M. Mansfield
Alan M. Mansfield
David Blair-Loy ACLU FOUNDATION OF SAN DIEGO & IMPERIAL COUNTIES
Omar C. Jadwat, Esq. Jennifer C. Chang, Esq. AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT

Case No. 06CV 2434 JAH (NLS)

-3-

Stipulated Final Judgment

And Permanent Injunction

1

Cynthia Valenzuela

2

MEXICAN-AMERICAN LEGAL DEFENSE & EDUCATIONAL FUND (MALDEF)

3

David Kline

4

THE FAIR HOUSING COUNCIL OF SAN DIEGO

5

Elliott Mincberg

PEOPLE FOR THE AMERICAN WAY 6

Christopher Brancart

7

BRANCART & BRANCART

Attorney for Plaintiffs

8

ROY and MARY GARRETT, et al.

9

10 11 12 13

14

15 16 17 18

19

20 21 22 23

24

25

26 27 28

Case No. 06CV 2434 JAH (NLS)

-4-

Stipulated Final Judgment

And Permanent Injunction

 
 ORDINANCE NO. 2006-38 R AN ORDINANCE OF THE ClTY OF ESCONDIDO, CALIFORNIA ESTABLISHING PENALTIES FOR THE HARBORING OF ILLEGAL ALIENS IN THE ClTY OF ESCONDIDO
The City Council of the City of Escondido, California, DOES HEREBY ORDAIN as follows:
SECTION I.FINDINGS. The people of the City of Escondido find and declare:
1. Federal law requires that certain conditions be met before an alien may be authorized to be a lawful permanent resident, or be lawfully present, in the United States. Those conditions are found principally at United States Code Title 8, section 1101 et. seq.
2. Illegal aliens, as defined by federal law, do not normally meet such conditions as a matter of law when present in the City.
3. The harboring of illegal aliens in dwelling units in the City, and crime committed by illegal aliens harm the health, safety and welfare of legal residents in the City.
Because such individuals are not in this country lawfully, there is an increased chance that they will reside in dwelling units without typical leasing, payment and other tenancy arrangements that enable the civil and regulatory processes of this City to be effective. The regulations of the City regarding housing and property maintenance often depend upon reporting by residents and neighbors as a means of bringing unlawful conditions to the City's attention. Because illegal aliens do not wish to call attention to their presence, such individuals are less likely to report such conditions, and notify authorities, or to participate in subsequent proceedings to remedy such conditions. This creates an increased likelihood that housing and property maintenance violations will

remain unreported and, because such conditions are unreported, an increased chance that such conditions will multiply in the future.
Because of the lack of tenancy arrangements which are subject to normal civil and regulatory processes (such as written leases, records of rent receipts, and related documentation which normally accompany a tenancy arrangement) there is a greater chance that such individuals will occupy residential units in excessively large numbers, or under living conditions, that do not meet applicable building and health and safety codes. This creates unanticipated burdens on the units and the public infrastructure supporting such dwellings.
4. The state and federal government lack the resources to properly protect the citizens of the City of Escondido from the adverse effects of the harboring of illegal aliens, and the criminal activities of some illegal aliens.
5. The City finds that it is in the best interest of and will serve and benefit the health, safety and welfare of the public and law-abiding business entities and property owners to adopt policies and procedures to deter and prevent the harboring of illegal aliens, and criminal activity by illegal aliens.
6. United States Code Title 8, subsection 1324(a)(l)(A) prohibits the harboring of illegal aliens. The provision of housing to illegal aliens is a fundamental component of harboring.
7. The City shall not construe this Ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance to any person.
SECTION 2. DEFINITIONS. The following definition shall be added to Section 16-3, and shall be construed so as to be consistent with state and federal law, including federal immigration law:

llleqal Alien: 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.
SECTION 3. HARBORING ILLEGAL ALIENS. The Escondido Municipal Code is amended to add Chapter 16E, commencing with Section 16E-1 to read as follows:
Section l6E-I. HARBORING ILLEGAL ALIENS. It is unlawful for any person or business entity that owns a dwelling unit in the City and is subject to Section 16-17, to harbor an illegal alien in the dwelling unit, 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, unless such harboring is otherwise expressly permitted by federal law.
a. For the purposes of this section, to let, lease, or rent a dwelling unit to an illegal alien, 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, shall be deemed to constitute harboring. To suffer or permit the occupancy of the dwelling unit by an illegal alien, 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, shall also be deemed to constitute harboring.
b. A separate violation shall be deemed to have been committed on each day that such harboring occurs, and for each adult illegal alien harbored in the dwelling unit, beginning ten business days after receipt of a notice of violation from the City.
Ex. "A" p. 3

c. A separate violation of this section shall be deemed to have been committed for each business day on which the property owner has failed, following written notice from the City, to provide the City with identity data needed to obtain a federal verification of immigration status, beginning five business days after the property owner receives written notice from the City.
Section 16E-2 ENFORCEMENT. The Business License Division shall enforce the requirements of this section.
a. An enforcement action shall be initiated by means of a written signed complaint to the City submitted by any official, business entity, or resident of the City. A valid complaint shall include an allegation that describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
b. 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.
c. Upon receipt of a valid written complaint, the City shall, pursuant to United States Code Title 8, section 1373(c), verify with the federal government the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The Business License Division shall submit identity data required by the federal government to verify immigration status. The City shall forward identity data provided by the property owner to the federal government, and shall provide the property owner with written confirmation of such request for verification.
Ex. llA" p. 4

d. If after ten business days following receipt of written notice from the City that a violation has occurred and that the immigration status of any alleged illegal alien has been verified, pursuant to United States Code Title 8, section 1373(c), the owner of the dwelling unit fails to correct a violation of this section, the City shall deny or suspend the business license of the dwelling unit as provided in Section 16-235.
e. For the period of suspension, the owner of the dwelling unit shall not be permitted to collect any rent, payment, fee, or any other form of compensation from, or on behalf of, any tenant or occupant in the dwelling unit.
f. The denial or suspension shall terminate one business day after a legal representative of the dwelling unit owner submits, to the Business License Division, a sworn affidavit stating that each and every violation has ended. The affidavit shall include a description of the specific measures and actions taken by the business entity to end the violation, and shall include the name, address and other adequate identifying information for the illegal aliens who were the subject of the complaint.
g. The City shall forward the affidavit, complaint, and associated documents to the appropriate state or federal enforcement agency.
h. Any dwelling unit owner who commits a second or subsequent violation of this section shall be subject to penalties as provided in Section 16249 for each separate violation. The suspension provisions of this section applicable to a first violation shall also apply.
I. Upon the request of a dwelling unit owner subject to this Section, the City shall, pursuant to United States Code Title 8, section 1373(c), verify with

the federal government the lawful immigration status of a person seeking to use, occupy, lease, or rent a dwelling unit in the City. The penalties in this section shall not apply in the case of occupants of a dwelling unit whose status as an alien lawfully present in the United States has been verified.
SECTION 4. CONSTRUCTION. 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.
SECTION 5. CERTIFICATION. That the City Clerk is hereby directed to certify to the passage of this ordinance and to cause the same or a summary to be prepared in accordance with Government Code Section 36933, to be published one time within 15 days of its passage in the North County Times, a newspaper of general circulation, printed and published in the City of Escondido.
SECTION 6. SEPARABILITY. If any section, subsection sentence, clause, phrase, or portion of this Ordinance is held invalid or unconstitutional for any reason by any court of competent jurisdiction, such portion shall be deemed a separate, distinct, and independent provision and such holding shall not affect the validity of the remaining portions.

 
 CM/ECF - casd - Docket Report

Page 1 of 7

U.S. District Court Southern District of California (San Diego) CIVIL DOCKET FOR CASE #: 3:06-cv-02434-JAH-NLS

CLOSED

Garrett et al v. City of Escondido Assigned to: Judge John A. Houston Referred to: Magistrate Judge Nita L. Stormes Cause: 42:1981 Civil Rights
Plaintiff Roy Garrett

Date Filed: 11/03/2006 Date Terminated: 12/15/2006 Jury Demand: Plaintiff Nature of Suit: 950 Constitutional - State Statute Jurisdiction: Federal Question
represented by Alan McQuarrie Mansfield Rosner and Mansfield 10085 Carroll Canyon Road Suite 100 San Diego, CA 92131 (858)348-1005 Fax: (858)348-1150 Email: alan@rosnerandmansfield.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair-Loy ACLU of San Diego and Imperial Counties PO Box 87131 San Diego, CA 92138 (619)232-2121 Fax: (619)232-0036 Email: dblairloy@aclusandiego.org LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher A Brancart Brancart and Brancart 1831 Pescadero Road PO Box 686 Pescadero, CA 94060 (650)879-0141 Fax: (650)879-1103 Email: cbrancart@brancart.com ATTORNEY TO BE NOTICED
Elizabeth N Brancart Brancart & Brancart PO Box 686

https://ecf.casd.uscourts.gov/cgi-bin/DktRpt.pl?926918647595135-L_353_0-1

11/6/2007

CM/ECF - casd - Docket Report
Plaintiff Mary Garrett
Plaintiff Escondido Human Rights Committee

Page 2 of 7
Pescadero, CA 94060 (650)879-0141 Fax: (650)879-1103 Email: ebrancart@brancart.com ATTORNEY TO BE NOTICED
Elliott Mincberg People for the American Way 2000 M Street NW Suite 400 Washington, DC 20036 (202)467-2392 ATTORNEY TO BE NOTICED
Omar C Jadwat ACLU Immigrants Right Project 125 Broad Street 18th Floor New York, NY 10004 (212)549-2620 ATTORNEY TO BE NOTICED
represented by Alan McQuarrie Mansfield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair-Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher A Brancart (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N Brancart (See above for address) ATTORNEY TO BE NOTICED
Elliott Mincberg (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address)
represented by Alan McQuarrie Mansfield

https://ecf.casd.uscourts.gov/cgi-bin/DktRpt.pl?926918647595135-L_353_0-1

11/6/2007

CM/ECF - casd - Docket Report
Plaintiff Jane Doe 1
Plaintiff Jane Doe

Page 3 of 7
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair-Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) LEAD ATTORNEY
Christopher A Brancart (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N Brancart (See above for address) ATTORNEY TO BE NOTICED
Elliott Mincberg (See above for address) ATTORNEY TO BE NOTICED
represented by Alan McQuarrie Mansfield (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair-Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher A Brancart (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N Brancart (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) ATTORNEY TO BE NOTICED
represented by Alan McQuarrie Mansfield

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CM/ECF - casd - Docket Report 2
V. Defendant City of Escondido
Amicus California Apartment Association
Amicus National Apartment Association

Page 4 of 7
(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John David Blair-Loy (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Christopher A Brancart (See above for address) ATTORNEY TO BE NOTICED
Elizabeth N Brancart (See above for address) ATTORNEY TO BE NOTICED
Omar C Jadwat (See above for address) ATTORNEY TO BE NOTICED
represented by Laura A Godfrey Latham and Watkins 600 West Broadway Suite 700 San Diego, CA 92101 (619)236-1234 Fax: (619)696-7419 Email: LAURA.GODFREY@LW.COM ATTORNEY TO BE NOTICED
represented by James R Parrinello Nielsen Merksamer Parrinello Mueller and Naylor 591 Redwood Highway Bldg 4000 Mill Valley, CA 94941 (415)389-6800 Fax: (415)388-6874 Email: jparrinello@nmgovlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James R Parrinello

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CM/ECF - casd - Docket Report

Page 5 of 7

Amicus
San Diego County Apartment Association

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by James R Parrinello (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/03/2006 11/03/2006 11/07/2006
11/07/2006 11/08/2006
11/09/2006 11/09/2006 11/13/2006

#

Docket Text

1 COMPLAINT against all defendants. Demand for Jury Trial (Filing fee $ 350.) , filed by Roy Garrett, Mary Garrett, Escondido Human Rights Committee.(jpp, ) (Entered: 11/06/2006)

2 Summons Issued as to City of Escondido. (jpp, ) (Entered: 11/06/2006)

3 MOTION for Temporary Restraining Order by Roy Garrett, Mary Garrett, Escondido Human Rights Committee, Jane Doe, Jane Doe. (Attachments: # 1 Declaration # 2 Declaration # 3 Declaration # 4 Declaration # 5 Declaration # 6 Declaration # 7 Declaration # 8 Exhibit # 9 Exhibit Exs. 5-8# 10 Exhibit Exs. 810# 11 Proof of Service # 12 Memo of Points and Authorities)(Mansfield, Alan) (Entered: 11/07/2006)

5 PRO HAC VICE APPOINTED: Omar C Jadwat, appearing for Plaintiffs Roy Garrett, Mary Garrett, Escondido Human Rights Committee, Jane Doe, Jane Doe (jpp, ) (Entered: 11/08/2006)

4 SCHEDULING ORDER re 3 Plaintiff's MOTION for Temporary Restraining Order. Defendant shall file and personally serve a responsive pleading to Plaintiffs application no later than 11/13/06 at 12:00pm. The pleading shall include any documents relevant to the determination of the issues raised in this application. No reply will be permitted by Plaintiffs. Motion hearing set for 11/16/06 at 3:00pm in Courtroom 11 before Judge John A. Houston. Signed by Judge John A. Houston on 11/08/06. (jpp, ) (Entered: 11/08/2006)

6 NOTICE by Roy Garrett, Mary Garrett, Escondido Human Rights Committee, Jane Doe, Jane Doe re 4 Order,, re Scheduling Order (Mansfield, Alan) (Entered: 11/09/2006)

7 DECLARATION re 3 MOTION for Temporary Restraining Order Estela De Los Rios Declaration in Support of Application for Temporary Restraining Order by Plaintiffs Roy Garrett, Mary Garrett, Escondido Human Rights Committee, Jane Doe, Jane Doe. (Mansfield, Alan) (Entered: 11/09/2006)

8 RESPONSE in Opposition re 3 MOTION for Temporary Restraining Order filed by City of Escondido. (Attachments: # 1 Declaration Declaration of Clay Phillips and Ex A# 2 Declaration Exhibit B and B-1 thru p4 to Decl of Clay Phillips# 3 Declaration Ex B-1 pp A-1 thru H-1# 4 Declaration Ex C to Declara to Clay Phillips)(Lincoln, Donald) (Entered: 11/13/2006)

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CM/ECF - casd - Docket Report

Page 6 of 7

11/14/2006 11/14/2006 11/15/2006 11/15/2006 11/15/2006 11/16/2006
11/17/2006 11/20/2006 11/20/2006
11/21/2006 11/21/2006

9 MOTION for Leave to File Amicus Curiae Brief in Support of Plaintiffs' Application for Temporary Restraining Order by California Apartment Association, National Apartment Association, San Diego County Apartment Association. (Attachments: # 1 Proof of Service)(Parrinello, James) (Entered: 11/14/2006)
10 CERTIFICATE OF SERVICE by City of Escondido re 8 Response in Opposition to Motion, E-File Proof of Service (Lincoln, Donald) (Entered: 11/14/2006)
11 ORDER granting 9 Motion for Leave to File Amicus Brief. Clerk of Court is hereby ordered to file the document "Amicus Brief in Support of Plaintiffs' Application for Temporary Restraining Order" attached to the Apartment Association application. Signed by Judge John A. Houston on 11/14/06. (jpp, ) (Entered: 11/15/2006)
12 Amicus Brief entered by California Apartment Association, National Apartment Association, San Diego County Apartment Association in support of Plaintiffs' application for Temporary Restraining Order. (jpp, ) (Entered: 11/15/2006)
13 MOTION for Temporary Restraining Order Request for Judicial Notice in Support of by Roy Garrett, Mary Garrett, Escondido Human Rights Committee, Jane Doe, Jane Doe. (Mansfield, Alan) (Entered: 11/15/2006)
18 Minute Entry for proceedings held before Judge John A. Houston : Motion Hearing held on 11/16/2006 re 3 MOTION for Temporary Restraining Order filed by Jane Doe,, Roy Garrett,, Jane Doe,, Mary Garrett,, Escondido Human Rights Committee: granted. Court to issue written order. (Court Reporter Cameron Kircher).(Plaintiff Attorney Alan McQuarrie Mansfield, Philip Tencer).(Defendant Attorney Christopher Garrett, Donald R. Lincoln). (lwm, ) (Entered: 11/21/2006)
14 NOTICE of Appearance by Christopher A Brancart on behalf of all plaintiffs (Brancart, Christopher) (Entered: 11/17/2006)
15 NOTICE of Appearance by John David Blair-Loy on behalf of Roy Garrett, Mary Garrett, Escondido Human Rights Committee, Jane Doe, Jane Doe (BlairLoy, John) (Entered: 11/20/2006)
16 ORDER granting 3 Plaintiff's Motion for TRO. Plaintiff's request for judicial notice 13 is granted. This order shall be effective upon the posting of a bond of $100.00 by Plaintiffs pursuant to Fed. R. Civ. P. 65(c) on or before 4:00pm on 11/22/06. Plaintiffs shall file and serve their preliminary injunction brief with this Court on or before 01/12/07. Defendant shall file and serve their opposition brief on or before 02/02/07. Plaintiff may file and serve their reply brief on or bofore 02/16/07. The preliminary injunction hearing shall be heard on 03/08/07 at 2:00pm. Signed by Judge John A. Houston on 11/20/06.(jpp, ) (Entered: 11/20/2006)
17 Joint MOTION for Extension of Time to File Answer by City of Escondido. (Lincoln, Donald) (Entered: 11/21/2006)
19 CERTIFICATE OF SERVICE by City of Escondido to Stipulation for Extension

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CM/ECF - casd - Docket Report

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11/21/2006
11/22/2006 11/22/2006 12/04/2006 12/14/2006 12/15/2006 12/15/2006 01/12/2007

of Time To File Response to Complaint (Lincoln, Donald) (Entered: 11/21/2006)
20 ORDER granting 17 Joint Motion for Extension of Time for Defendant City of Escondido to file its response to Plaintiff's Complaint up to and including 12/15/06 . Signed by Judge John A. Houston on 11/21/06. (jpp, ) (Entered: 11/21/2006)
21 AMENDED ORDER; Defendant City of Escondido shall have up to and including 12/29/06, to file its REsponse to Plaintiff's Complaint. Signed by Judge John A. Houston on 11/22/06. (jpp, ) (Entered: 11/22/2006)
22 NOTICE by Roy Garrett, Mary Garrett, Escondido Human Rights Committee, Jane Doe, Jane Doe re 16 Order on Motion for TRO,,,,, of Posting Bond (Mansfield, Alan) (Entered: 11/22/2006)
23 PRO HAC VICE APPOINTED: Elliott Mincberg appearing for Plaintiffs Roy Garrett, Mary Garrett, Escondido Human Rights Committee (jpp, ) (Entered: 12/05/2006)
24 Joint MOTION for Permanent Injunction and stipulated final judgment by City of Escondido. (Godfrey, Laura) (Entered: 12/14/2006)
25 ORDER granting 24 Stipulated Final Judgment and Permanent Injunction. Signed by Judge John A. Houston on 12/15/06. (jpp, ) (Entered: 12/15/2006)
26 CLERK'S JUDGMENT; The stipulated final judgment and permanent injunction is granted.(jpp, ) (Entered: 12/15/2006)
27 ORDER to disburse funds. Court hereby orders, pursuant to Local Rule 67.1 that the funds in the amount of $100.00 that were deposited in the registry of the Court on 11/22/06 in this action shall be disbursed to Rosner & Mansfield, LLP. Signed by Judge John A. Houston on 01/11/07. (jpp, ) (Entered: 01/12/2007)

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 STATEMENT REGARDING CITY OF ESCONDIDO ACTIONS APPROVING STIPULATION FOR FINAL JUDGMENT AND PERMANENT
INJUNCTION
In closed session today, the City Council authorized the City Attorney and special counsel to execute a stipulation for entry of a final judgment in the litigation involving the City’s immigration ordinance. The stipulation will make permanent the temporary restraining order which was previously issued by the Court.
While the stipulation and final order are still subject to approval by Judge Houston of the Federal District Court, no further action or proceeding by the City Council, including enforcement, will occur regarding the immigration ordinance.
The City Council adopted Ordinance No. 200638R based on a concern that the rental of housing to illegal aliens in the City of Escondido resulted in a number of problems for the City. Testimony from all sides during the public hearings leading up to the adoption of the Ordinance revealed serious problems with illegal immigration. Even the Plaintiffs who challenged the Ordinance in federal court noted that tenants in Escondido who did not have documentation of legal status faced a number of challenges in reporting mistreatment and problems in their housing units.
In adopting the Ordinance, the City Council was attempting to deal with serious problems but the litigation which followed quickly revealed further problems, including the lack of an assured federal database to determine the status of individuals for housing purposes.

Prior to making decisions about the City’s Ordinance, Judge Houston gave all parties a full and fair opportunity to argue the merits of the application for the Temporary Restraining Order. His

1
SD\565286.1

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approach at the hearing, his oral comments and written ruling on the TRO application and the ordinance were thorough and thoughtful. While the City does not agree with several of Judge Houston's preliminary rulings including those on the City Manager’s Interpretation Memorandum the City does not believe that the current legal environment is the best or the most cost effective manner to address the problem of illegal aliens in Escondido.
Continuing the present policy approach would be unnecessarily costly to the City, and unnecessarily consume the Court’s time, when other approaches could provide the answers to the problems more efficiently. Addressing each individual basis for Judge Houston's concerns and efficiently addressing the issues raised in the litigation would require many months of effort by the City staff and its counsel, and additional written input and perhaps testimony from federal officials. The City has also found that it needs additional input as to how it would utilize and implement the Systematic Alien Verificatioin for Entitlements (“SAVE”) program, including the procedures for processing an application for federal approval of the City’s participation in the program.

Regardless of who would have ultimately won the lawsuit in Judge Houston’s courtroom in San Diego, the legal challenge to the City’s ordinance would then face an uncertain environment in the Ninth Circuit Court of Appeals and then perhaps the United States Supreme Court in litigation stretching over several years. The stakes in such litigation, in addition to the ordinance itself, involve potential attorney’s fees in excess of $1,000,000 to the City, as well as a potential liability for plaintiff’s attorney’s fees of an equivalent or greater amount. On the other hand, City staff has planned several specific steps to address the serious problems that exist with overcrowding, unsafe and unsanitary conditions in the City’s rental housing stock, and they will

2
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be coming forward with several proposals and requests for direction before the City Council in conjunction with the Council’s regular work program session in early January. The City may also consider at upcoming public meetings a proposed resolution or staff direction requesting that Congress and the federal government provide information, guidance and confirmation on the issues concerning the SAVE program, other programs for verification of immigration status, and the ability of the City and City staff to assist in the enforcement of our federal immigration laws. After this process, which will include hearings before the City Council and input from interested parties, it may be that the City staff and City Council will consider new ordinances that address these concerns
It should be emphasized that abandoning the present litigation and embarking on new efforts to solve these problems leaves both the Council and individual Council members with complete future legislative discretion. In addition, the decisions made with respect to this Ordinance and this litigation have no binding effect whatsoever on any other litigation or measures which may be pending in other parts of the country.

3
SD\565286.1

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 City 0

13 Agenda item No.: 6 ()-
Date: October 4,2006

YO:

Honorable Mayor and Members of the City Council

FROM:

Jeffrey R. Epp, City A~orney

SUBJECT: Renting of Dwelling Units to Illegal Immigrants

RECOMMENDATION:

That the City Council consider and adopt an ordinance amending certain provisions of the Escondido Municipal Code to prevent renting of dwelling units to illegal aliens.

BACKGROUND:

On February 22, 2006, the City Council asked staff to present a plan for enhanced proactive code enforcement services and a cost estimate. Thereafter, the City Manager formed the Appearance & Compliance Team (ACT) to improve the City's safety, image and appearance through a proactive interdepartmental approach; to focus on the prompt resolution of safety, image and appearance violations; and to improve public awareness of the City's safety, image and appearance resources and regulations. The interdepartmental approach enabled the City to use all of its resources in a coordinated manner to improve the appearance of the City quickly. Since the inception of ACT, there has been regular reporting and an increased focus on property related living and compliance issues in the City.

As part of these efforts and as one component to improving overall appearance and living conditions in neighborhoods, the City Council conducted a public meeting on August 16, 2006 to take testimony and consider the possibility of an ordinance preventing harboring illegal aliens in rental units in the City. More than 50 people expressed views and provided information during the hearing.

Although other cities and jurisdictions (most notably, Hazeiton, Pennsylvania) have adopted broader measures which also regulate employment of illegal aliens, the policy direction from the City Counci! at the August 16, 2806 meeting focused on a measure concerning harboring illegal aliens in rental units. Although the Hazelton ordinance undesllvent substantial revisions during the original enactment process, and further revisions leading to re-adoption of the measure, the approach ultimately taken by Mazelton is similar to the proposed Escondido ordinance regarding harboring in rental units.

The City Gouncit has also received a study prepared in June 2006 by the National Latino Research Center at California State University, San Marcos. The study reported on the Mission Park Cornmunib Suwey Project, aimed to assess the needs, concerns, priorities and perceptions of residents in the Mission Park area of Escondido. While not representative of the entire city, the study

Staff Report - Council

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Staff Repod October 4,2006 Page 3

The INA is a regulatory scheme which regulates the authorized entry, length of stay, residence status and deportation of aliens.

The preemptive effect of federal authority over immigration was feit particulady hard in California after the passage of Proposition 187 in 1994 by a vote of 59% in favor and 41% opposed. The stated purpose of Proposition 187 was "to provide for cooperation beheen the agencies of state and local government with the federa! government, and to establish a system of required notification by and beheen such agencies, to prevent illegal aliens in the United States from receiving benefits or public services in the State of California" (Proposition 187, Section 1). Nonetheless, after two rounds of litigation in the federal courts, nearly all of the provisions of Proposition 187 were invalidated, generally on federal preemption grounds. Proposition 187 was preempted chiefly because it created new immigration categories at the state level and because it attempted to authorize state officers to make independent judgments about an alien's immigration status. (See League of United Latin American Citizens, et, al. v. Wilson et. al. 908 F. Supp. 755 (9th Cir. 1995), 997 F. Supp. 1244 (9th Cir. 1997)).

Various provisions of the INA criminalize activities relating to the bringing in and harboring of aliens who lack the lawful authority to enter or remain in the United States, and criminalizes certain other activities concerning the transportation of such aliens or the encouragement of inducement of such aliens to reside in the United States, and Courts have generally interpreted the code of INA Section 274 broadly. (See Congressional Research Service Memorandum of June 29, 2006 and cases cited at CRS-2, footnote 5).

However, the Court has also made it clear that the mere fact that a state or local statute pertains to

aliens does not require a finding that it is preempted. The Court has left considerable room for states

and municipalities to act in the field. "[Sltanding 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 admiated into the country, and the conditions under which a legal entrant may

remain." (De Canas at p. 355.) State and local statutes affecting aliens that are consistent with

congressional objectives have been upheld on numerous occasions.

e.g., De Canas (upholding

California law concerning the employment of iiiegal aliens); Arizona v. Salazar, Ariz. Sup. Ct.

CW2006-005932 (2006) (upholding state law criminalizing the smuggling of illegal aliens)).

Regulation of businesses within its jurisdiction is a traditional and well accepted pmvision of California law, Blowing from the so-called "'police power" of Section 7 of Adicle XI of the California Constitution, enabling a city to enact measures to protect the health, welfare, and safety of its residents.

Presently, Escondido Municipal Code Section 16-27 requires a business license for all persons engaged in cedain types of businesses. Among those regulated are those who rent residential real estate. The general practice of the City has been to require a business iicense for those who rent units in excess of three units; due to staffing constraints and availability of resources, enforcement of a business license is not requested for individual dwellings on a lot or for individual rooms in a homeowner" home.

Staff Repost October 4,2006 Page 4
The proposed amendment to the Escondido Municipal Code focuses on a pasticulahzed local issue, that of rental dwelling units and the conditions in those units. To the extent that harboring illegal aliens contributes to those problems (see discussion above), the City of Escondido can appropriately take action.
The proposed ordinance does not call upon local oficials to make independent or separate determinations of legal status--a question properly left to Federal authorities. Proposed Sedion 16E-2 requires individuals who believe a violation is taking place to file a complaint containing certain information, which is used to determine the legal status of those residing in the dwelling. After receiving advice from federal authorities that an individual is in fact an illegal alien, the City may then act against the business license of the landlord harboring the illegal alien. Penalties under the ordinance include suspension and revocation of licenses as well as misdemeanor penalties for subsequent violations. Landlords have certain due process protections against the revocation of their business license, including a right to appeal, which are found in current provisions of the Escondido Municipal Code (see Section 16-221, et seq.).
The proposed ordinance is entirely consistent with federal law on the subject of harboring illegal aliens. Such harboring is prohibited under 8 U.S.C. 1324(a)(l)(A). The provision of housing to illegal aliens is a fundamental component of harboring. Accordingly, the proposed ordinance reinforces federal law and is entirely consistent with congressional objectives as expressed in the iNA. Copies of the materials noted above have been provided to the City Council under separate cover.
City Agorney

 
 RESOLUTION NO. 2007-16 A RESOLUTION OF THE ClTY COUNCIL OF THE CITY OF ESCONDIDO, CALIFORNIA, REGARDING ILLEGAL IMMIGRATION
WHEREAS, illegal immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, and destroys our neighborhoods and diminishes our overall quality of life; and
WHEREAS, the City finds that it is in the best interest of and will serve and benefit the health, safety and welfare of the public and law-abiding business entities and property owners to comrnit to addressing the issues related to illegal immigration to deter and prevent criminal activity by illegal aliens; and
WHEREAS, local communities, by not enforcing their own laws already on the books act as sanctuaries for illegal aliens, and
WHEREAS, the City council, as the duly elected governing body of the City of Escondidowishes to address the public nuisances of illegal immigration by aggressively working to prohibit and address acts, policies, people and businesses that aid and abet illegal aliens.
NOW THEREFORE, BE IT RESOLVED by the City Co~.~ncoilf the City of Escondido, California as follows:
1. That the above recitations are true.
2. Now therefore, the City of Escondido will enforce the Laws of the United

States and hereby requests the Federal Government take such actions as may be necessary to authorize mur~icipagl overnments to make inquiries on the legal status of persons who may be illegal immigrants, and take other such actions that will enable local governments such as Escondido to address the problems associated with illegal immigration.

 
 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA

ROY AND M Y GARRETT; ESCONDI W 1 H W RIGHTS COWITTEE; JANE W E )

0pv

11 JANE DOE 2 ,

) CASE NO. 06CV2434-J7iH

I

vs .

PLRINTIFFS,

j SAN DIEGO, CALIFORNIA
1

I

j THURSDAY

CITY OF ESCWDIW,

1) NOVMeER 16, 2 0 0 6 3 : 1 8 P.M.

DEFENDANT.

1

COURT REPORTER:

M R THE P L A I N T I F m :

RQSNER, LAW L W S F I E L D ATTORNEYS AT LAlP BY: ALAN M. MANSMELD, ESP. 1 0 0 8 5 CARROLL CANYON ROAD FIRST FLWR SAN DIEGO, CALIFORNIA 9 2 1 3 1
COLEY, GODWARD, KRONISH ATTORNEYS AT LAW BY: P H I L I P C. TENCER, ESP. 4 4 0 1 EASTGATE MALL SAN D I E W , CALIFORNIA 9 2 1 2 1

m R THE DEFENDANT:

LATHAH L WATKINS ATTORNEYS AT LAW BY: CHRISTOPHER GARRETT, ESP. 6 0 0 WEST BROAOWAY SUITE 1 8 0 0 8AN D I E W , CALIFORNIA 9 2 1 0 1
ENDEMW, LINCOLN, TUREK C HERTER ATTORNEYS AT L R W BY: WNALD R. LINCOLN, ESP. 6 0 0 B'BROAGUAY SUITE 2 4 0 0 SAN DIEGO, CALIFORNIA 9 2 1 0 1

COMPUTER-AIDED TRANSCRIPTION

COMPUTER-AIDED TRANSCRIPTION

SAW DIEGO, CALIFORNIA; THURSDAY, NOVEHBER 1 6 , 2 0 0 6 ; 3:18 P.M. THE COURT: MR. KDMOELL, WILL YOU CALL THE CASE. THE CLERK: ALL RIGHT. T H I S I S NO. 1 0 ON CALENDAR.
I T ' S 06CV2434, GARRETT AND OTHERS VERSUS THE CITY OF ESCONDIW FOR A MOTION.
THE COURT: M Y I HAVE THE APPEARRNCES OF THE

MR. MANSFIELD: GOOD AETERNOON, YWR HONOR. ALAN

HANSFIELD FROM THE L A ~ PFIRM ROSNER, IAW L'MAHSFIELD, COUNSEL

FOR PLAINTIFF.

MR. TENCER: GdOD AFTERNOON, YWR HONOR. PHIL

TENCER, CWLEY GODWARD, ON BEHALF O F PLAINTIFFS.

- ,

THE COURT: THANK YOU.

MR. GARRETT: GOOD AETERNWN, YOUR H ~ R .CHRIS

GARRETT, WTHAf4 L WATKINS, ON BEHALF O F DEFENDANT, CITY OF

ESCONDIDO.

THE COURT: GOOD A ~ E R N W N , SIR.

NR. LINCOLN: GOOD AETERNWN, YOUR HONOR. DON

LINCOLN, ENDEMAN, LINCOLN, TUREK L HEATER,' ON BEHALF OF THE

CITY OF ESCONDIW.

THE WURT: M O D AFTERNOON, MR. LINCOLN.

WE'RE HERE TODAY ON PIAINTTFFS' MOTION FOR A

TEMPORARY RETRAINING ORDER ONLY. THE PURPOSE OF THIS HERRING

I S ONLY TO DETERHINE WHETHER THE EFFECTIVE DATE OF THE

ORDINANCE SHALL BE STAYED UNTIL SUCH TIME THAT THE MERITS OF

I

I

COMPUTER-AIDED TRANSCRIPTION

THIS M T T E R ARE FULLY BRIEFED AND CONSIDERED BY THE COURT.

I N OTHER WRDS, I T I S THE PURPOSE OF THIS HEARING TO

DETERMINE WHETHER THE COURT SHOULD PRESERVE THE STATUS QUO

BEFORE THE PRELIMINARY INJUNCTION HEARING HAY BE HELD, SO A 3

TO PREVENT IRREPAPABLE LOSS OF RIGHT PRIOR TO JUDGKENT. SO

THE DECISION RESULTING FROM MDAY'S HERRING I S NOT THE FINAL

OR SUBSTANTIVE DECISION ON THE UERITS OF T H I S CASE.

WITH RESPECT TO PROCEDURES HERE, I SEE HERE THAT

COUNSEL HAVE BEEN IDENTIFIED M BE THE LEAD COUNSEL TO

PRESENT HERE TODAY. I APPRECIATE YOUR WORKING THAT THROUGH

AMONGST YOURSELVES.

THERE WA3 AN AUICUS FILED. I S THERE A

REPRESENTATIVE FOR THE AMICUS BRIEF HERE?

MR. HANSFIELD: THE REPRESENTATIVE FOR THE AMICUS

WILL NOT BE ATTENDING TOOAY. THEY JVST MERELY 'SUBMITTED

( 1 6

THEIR BRIEF.

. ,

THE COURT:

VERY WELL.

THANK YOU.

I

WITH THAT, THE COURT WILL PROVIDE EACH SIDE

APPROXIClRTELY 2 0 TO 25 MINUTES M R ARGIMENTS. AND,

THEREAFTER, THE COURT WILL DIRECT YOUR ATTENTION AS THE COURT

D E W APPROPRIATE, SO THAT ME CAN HAVE A N L L DISCUSSION OF

THIS MATTER.

BEFORE WE BEGIN, HOWEVER, THE COURT TAKES JUDICIAL

NOTICE O F THE FEDERAL REGISTER NO. 1 0 9 , PAGES 5 8 3 0 1 THROUGH

5 8 3 0 3 , BROUGHT TO THE ATTENTION OF THE COURT BY THE

I

1

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1

PLRINTIFFS IN THE CASE.

2

NR. HANSFIELD.

4

I

MR. MSFIELD: THANK YOU, YOUR HONOR. MR. TENCER WILL BE STARTING THE ARGWENT, AND THEN I WILL BE FINISHING

5

IT.

6

THE COURT: THANK YOU.

7

MR. TENCER.

MR. TENCER: THANK YOU, YOUR HONOR.

GOOD AETERNWN, YOUR HONOR. IF IT PLEASE THE COURT,

IN OUR SHORT TIME THIS AFTERNOON, CO-COUNSEL AND I WILL

ADDRESS THE POUR ISSUES GERMANE TO TODAY'S T.R.O.

FIRST, I WILL MPLRIN WHY THE INTERPRETIVE

MEMOPANWM PREPARED BY THE ESCONDIW CITY MANAGER HAS NO

FORCE AND EFFECT. AND, SECOND, I WILL ADDRESS THE PROCEDURE

THROUGH PROCESS VIOLATIONS THAT STILL EXIST, EVEN IF THIS

COURT WERE TO CONSIDER THAT INTERPRETIVE MEHORRNDLM. MY

CO-COUNSEL WILL ADDRESS FEDERRL/STATE PREEMPTION ISSUES, AS

WELL AS THE ISSUE OF ONGOING IRREPARABLE HARM.

ORDINANCE 2006-388, WHICH WILL GO INTO EFFECT

TOMORROW, IS ENTITLED, ESTABLISHING PENALTIEB FUR THE

121

HARBORING OF ILLEGAL ALIENS.

I

BY WAY OF THIS ORDINANCE, THE CITY OF ESCONDIDO IS

ATTEMPTING TO SOLVE THE SIGNIFICANT IMMIGRATION PROBLEMS

FACING SOUTHERN CALIEtJRNIA, AND THE NATION AS A WHOLE, BY

LAYING THE RESPONSIBILITY FOR THESE PROBLEMS AT THE FEET OF

L

I

CCUPVTER-AIDED TRANSCRIPTION

ESCONDIW'S WUIDLORDS.

TWE COURT: EXCUSE ME. IF ANYONE ELSE HAS A CELL

PHONE, PLEASE TURN IT OFF. THANK YOU.

I'M SORRY. MR. TENCER. YOU UAY CONTINUE.

MR. TENCER: QUITE ALL RIGHT.

THEY ARE LRYING THIS PROBLEM AT THE FEET OF

ESCONDIDO'S LRLIOWRDS, THREATENING THEM WITH FiNES AND JAIL

TIME. AT THE SAME TIME, AMERICAN CHILDREN LIVING IN

ESCONOIW IN RENTAL PROPERTIES FACE A REAL POSSIBILITY OF

BEING EVICTED FRCU THEIR HOHES AND SCHOOL.

THE COURT: HOW IS THAT THE CASE, IF THE COURT

DETERHINES THAT THE MEMORANDUM IS VALID AND THE MEMORANDUM IS

APPLIED PROSPECTIVELY?

MR. TENCER: WELL, YOUR HONOR, TO BE APPLIED

PROSPECTIVELY DOESN'T MWUl THAT IT W W L O APPLY ONLY TO m U R E

CONTRACTS, LEASING CONTRACTS. TO BE APPLIED PROSPECTIVELY

MEANS IT WOULD BE APPLIED STARTING SATURDAY, OR THEREAFTER.

IN ORDER TO INTERPRET IT, AS THE CITY MANAGER HAS

WNE, YOU'D HAVE TO BRSICALLY REWRITE THE ORDINANCE? AND

20 THAT'S SOEIETHING THAT A FEDERAL COURT CANNOT DO, REWRITE A

I21

STATE OR CITY OROINANCE. THAT'S LEPF TO THE PREROGATIVE OF

(

THE CITY OR THE STATE.

AND SO IN ORDER TO PREVENT THESE THREATS, YOUR

HONOR, WHAT THE PLAINTIFFS HAVE W W E IS THEY FILED A LAWSUIT.

AND PRIOR TO THAT LAWSUIT, THEY WROTE A LETTER TO THE CITY,

I

I

COHPUTER-AIDE0 TPANSCRIPTION

7 AND THEY EXPLRINED TO THE CITY THAT THIS ORDINANCE HAS
,
SEVERAL CONSTITUTIONAL PROBLEMS WITH IT. THEY INVITED THE CITY TO WITHDRAW IT OR TO REWRITE IT TO CORRECT THE PROBLEHS. THE CITY REFUSED TO W SO. THE PLAINTIFFS FILED A LAWSUIT. THEREAFTER, PLAINTIFFS FILED A T.R.O.
AND AT THE END OF THOSE THREE ACTIVITIES, THE PLRINTIFFS, AFTER INEtJRMING THE CITY OF ALL THE CONSTITUTIONAL PROBLEHS WITH THIS OROINANCE, THE CITY, WHAT DOES IT W ? IT CHANGES THE PLRYING FIELD IN ITS OPPOSITION.
IT SAYS THAT IT PROVIDES AN INTERPRETIVE MEMORANDUM THAT, AT THE LAST MINUTE, IS A MOVING TARGET AN0 SAYS, WAIT A MINUTE. THIS ORDINANCE DOESN'T MEAN WHAT i~ SAYS; IT H W l S BOMETHING VERY DIFFERENT.
THE ONLY FAIR READING OF THE MEMORRNDW IS THAT THE CITY CONCEDES THAT THE ORDINANCE ON ITS FACE IS UNCONSTITUTIONAL. T H R O W ITS CITY MANAGER, ESCONDIW SUBMITS TO THE COURT A POST-LITIGATION INTERPRETIVE MEMORANOU)( THAT REWRITES SIGNIPICANT PORTIONS OF THE CITY ORDINANCE, THAT AVOID S M E , BUT NOT ALL, O F THE CONSTITUTIONAL PROBLEMS FACING THAT ORDINANCE.
UNDER BOTH STATE AN0 FEDERAL LRW, YOUR HONOR, THE MmoRANoun HAS NO m R c E AND EFPECT AND SHOULD NOT BE RELIED UPON BY THIS COURT FUR THREE KEYS REASONS.
ONE, IT'S THIS COURT'S PREROGATIVE TO INTERPRET THE ORDINANCE AND NOT THE CITY MANAGER'S. TWO; THE CITY MANAGER
COMPUTER-AIDED TRANSCRIPTION

8
DOESN'T HAVE THE AUTHORITY TO INTERPRET IT AND CERTAINLY DOESN'T HAVE THE AUTHORITY TO REWRITE THE ORDINANCE. AND,
THIRD, FEDERAL COURTS m NOT HAVE THE AUTHORITY TO REWRITE
NARROW OR CORRECT PROBLEHS'WITH CITY ORDINANCES. YOUR HONOR, IN ORDER TO CONSTRUE THIS LIKE A STATUTE
IN ITS INTERPRETATION IS A QUESTION OF LAW. AS THE SUPREHE COURT WROTE IN BURDEN VS. SNOWDEN, 2 CAL. 4TH. 556, CMIRTS MUST FIRST LoOK TO, QUOTE, THE LANGUAGE OF THE STATUTE,
' GIVING EFFECT ITS PLAIN MEANING. AND WHERE THE WORDS ARE ' CLEAR, THE COURT HAY NOT ADD OR ALTER THEU TO ACCOMPLISH A PURPOSE THAT W E S NOT APPEAR ON THE FACE OF THE STATUTE OR [ROM ITS LEGISLATIVE HISTORY. IN ITS OPPOSITION, YOUR HONOR, THE c I n OF E~CONDIDO FAILS TO PROVIDE ANY LEGISLATIVE HISTORY THAT WOULD INTERPRET THE ORDINANCE. INSTWLD, ALL THAT WE HAVE IS THE CITY MANAGER'S INTERPRETIVE n m o n m o u n . AND W I L E IT IS TRUE THAT COURTS MAY LOOK TO BINOING JUDICIAL AND ADPIINISTRATIVE INTERPRETATIONS IN CONSIDERING AN ORDINANCE, THERE IS NO EVIDENCE THAT THIS INTERPRETIVE HEMORANOUM HAS ANY BINDING EFFECT ON THE CITY. THE CITY OFFERS NO EVIDENCE ESTABLISHING THAT IT IS BINDING, OTHER THAN THE SELF-SERVING DECWUUTION OF CLAY PHILLIPS, THE CITY MANAGER, WHO c m I n s THAT HE ALONE IS THE FINAL AUTHORITY ON THE CITY STAFF'S INTERPRETATION OF ANY ORDINANCE.
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9

-- THE COURT: WHAT IF THE THE DEFENDANTS ARGUE THAT

2

IR IT'S THE PRACTICE THE CITY FOR THE CITY MANAGER TO WRITE

3 SUCH n m o s TO INTERPRET THE ORDINANCE.

4

ISN'T THERE A NINTH CIRCUIT CASE TO INDICATE THAT IF

I IT'S WITHIN THE STANDARD PRACTICE OF THE LOCALITY THAT THAT
6 MIGHT SUFFICE? 5
MR. TENCER: WELL, THE CITY OF ESCONDIDO IS A

-- GENERAL CITY. AND IT IS IT HAS RULES AND IT IS GOVERNED

BY THE CALIFORNIA GOVERNMENT CODE. FOR EMPLOYEES OF THE

1 10

CITY, THE POWERS THAT THEY HAVE HAVE TO BE SPECIFICALLY

I

11 DELINEATED IN THEIR CODE.

12

AND I WOULD POINT THE COURT'S ATTENTION TO A

13 COMPARISON BElWEEN THE CITY OF ESCONDIDO'S ORDINANCES AND

14 CODE T O THAT O F THE CITY OF VISTA. IN THE CITY OF VISTA, IT

15 HAS A --

Il6 1

1 ONE MOMENT, YOUR HONOR. I HAVE IT IN MY NOTES HERE.
THE COURT: YOU HAY TAKE A HOKENT.

MR. TENCER: THANK YOU.

VISTA'S MUNICIPAL CODE, IN SECTION 2.20040-A, GIVE3

ITS CITY MANAGER, QUOTE, POWER TO PRESCRIBE RULE8 AND

REGULATIONS, AS HE SHALL DEEM NECESSARY AND EXPEDIENT POR THE

CONDUCT OF ADMINISTRATIVE AGENCIES, SUBJECT T O HIS AUTHORITY.

23

IN THAT SITUATION, THE CITY MANAGER HAS ACTUALLY

24 BEEN DELEGATED,THE POWER TO PROMULGATE RULES AND INTERPRET

25 RULES, SPECIFICALLY BY THE CITY.

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IN THE CASE OF ESCONDIDO, THE CITY W A G E R HAS NO

I

SUCH POWER, BECAUSE THAT POWER HAS NOT BEEN DELEGATED TO THE

CITY MANAGER AND, THEREFORE, HIS INTERPRATATION HAS NO

BINDING FORCE AND EFFECT, REGARDLESS OF WHAT THE PRACTICE MAY

VERY WELL BE.

THE P W E R TO DELINEATE IT TO A CITY MANAGER HAS TO

BE SPEC.IFICRLLY LAID MIT BY THE CALIFORNIA GOVERNMENT

REGULATIONS THROUGH THE CODES O F THE CITY. AND THAT IS NOT

THE CASE HERE.

S O WE HAVE A SITUATION WHERE WE HAVE A CITY EMPLOYEE

WHO HAS INTERPRETED THIS ORDINANCE WITHOUT ANY AUTHORITY TO

BIND THE CITY.

THERE ARE TWO CALIFORNIA SUPREME COURT CASES, YOUR

HONOR, I THINK THAT ARE DIRECTLY ON POINT TO THE SITUATION W E

HAVE HERE. I'D LIKE TO DIRECT YOUR ATTENTION, YOUR HONOR, T O

CAMONA VS. DIVISION OF INDUSTRIAL SAFETY. IT'S 110 CRL

REPORTER, 473.

THE COURT: WHAT IS THAT AGAIN?

MR. TENCER: IT'S C A M O N A VS. DIVISION OF INDUSTRIAL

SAFETY. THE CITE IS 118 CAL REPORTER, 473. IT WAS WRITTEN

IN 1975.

IN CARMONA, YOUR HONOR, THE DIVISION O F INDUSTRIAL

SAFETY ATTEMPTED TO SUPPORT A NARROW INTERPRETATION OF A

REGULATION WITH A DECLARATION BY ONE O F ITS EMPLOYEES WHO WAS

INVOLVED IN DRAFTING THE INITIAL REGULATION.

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COMPUTER-AIDED TRANSCRIPTION

11

THE COURT R E N S E D TO GIVE ANY WEIGHT TO THE

DECLARATION, HOLDING THAT, FIRST, THE STATEMENTS BY LAW

UAKERS ARE NOT RELIABLE EXPRESSIONS OF THE INTENT QF THE

.

ENTIRE LEGISLRTIVE BODY.

AND, SECOND, MOST IMPORTANTLY, YOUR HONOR, THAT THE

DECLARATION AT ISSUE WAS PREPARED BY AN EMPLOYEE OF ONE O F

THE PARTIES TO THE LITIGATION, SUBSEQUENT TO THE FILING O F

JUOICIAL PROCEEDINGS.

THE CALIFORNIA SUPREME COURT THUS DETERHINED, AND I

QUOTE, THE SELF-INTEREST INHERENT IN SUCH A PROCESS REMOVES

THE DECLARATION -- REHOVES FROM THE DECLARATION THE

.

APPEARRNCE OF IMPARTIALITY NECESSARY TO JUSTIFY ANY RELIANCE

BY THE COURT.

A SIMILAR RESULT WAS REACHED, YOUR HONOR, IN

JONES VS. TRACY SCHOOL DISTRICT, WHICH CAN BE POUND AT 27

CAL. 3RD, 99. AND IF THE COURT LIKES, I HAVE COPIES FOR YOUR

HONOR OF BOTH O F THESE DECISIONS.
IN JONES, YOUR HONOR, AGAIN, THE CALIFORNIA SUPREHE

COURT REFUSED TO DEFER TO AWINISTRATIVE INTERPRETATION BY

THE DEPARTMENT OF INWSTRIAL RELATIONS. LIKE THE PRESENT
SITUATION, THE INTERPRETATION AT ISSUE IN JONES OCCURRED IN

AN INTERNAL MEHORANDUM, RATHER THAN IN AN AmINISTRATIVE

REGULATION THAT MIGHT BE S U W E C T TO NOTICE AND HEARINGS AND

PROPER ALMINISTRATIVE PROCEWIRE.

THE COURT NOTED IN THAT CASE THRT THE MEHORANDUM WAS

I COMPUTER-AIDED TRANSCRIPTION

12

1 WRITTEN AND CIRCULATED A m E R THE DEPARTMENT HAD BECOME A

1 PARTY IN THE CASE. IN ESSENCE, THE COURT REFUSED TO DEFER TO
2 THE INTERPRETATION BECAUSE ITS AUTHORITATIVE FORCE WAS
1 3 I4 SUBSTANTIALLY DILUTED.

I
I
I

WE HAVE EXACTLY THE SAKE CASE HERE, YOUR HONOR,

-- WHERE AFTER SENDING THE CITY A LETTER OUTLINING THE

'

SIGNIFICANT CONSTITUTIONAL PROBLEMS WITH THE ORDINANCE, AFTER

FILING A COMPLAINT LAYING THOSE CONSTITUTIONAL PROBLEW OUT,

AFTER FILING T.R.O. PAPERS WITH THIS COURT IDENTIFYING

SEVERAL O F THE CONSTITUTIONAL PROBLEMS, SEVERAL DAYS AFi"ER

THAT, WE GET AN INTERPRETIVE UEUOi WHICH ON ITS FACE CALLS

INTO QUESTION, BECAUSE IT HAS ONE DATE ON THE FIRST PAGE AND

A DIFFERENT DATE ON THE SECOND AND THIRD PAGE;

1l4

AND THAT IS WAVED BEFORE THIS COURT, SAYING, WAIT A

I

MINUTE, THE ORDINANCE DOESN'T SAY WHAT IT ACTUALLY SAYS, IT

SAYS S W T H I N G QUITE DIFFERENT. AND NOT ONLY ARE YE GOING TO

INTERPRET IT IN A MORE NARROW FASHION, BUT WE'RE GOING TO ADD

T E W TO THE ORDINANCE. AND THAT IS SOMETHING THAT THE CITY

W A G E R CANNOT DO, YOUR HONOR, IS CHANGE THE ORDINANCE.

UNDER THE CALIFORNIA GOVERNMENT CODE, THE ONLY ONES THAT CAN

MODIFY AN ORDINANCE OR PASS AN ORDINANCE IS A VOTE OF THE

CITY COUNCIL BY MAJORITY VOTE.

I23

SO GIVEN THAT THE CITY MANAGER DOESN'T HAVE THE

124 AUTHORITY TO REWRITE THE ORDINANCE, OR DOESN'T HAVE THE

I
I

AUTHORITY T O INTERPRET THE ORDINANCE, THE WESTION THEN

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1:
BECOHES, CAN THIS COURT SIMPLY MODIFY OR NARROW THE ORDIHANCE IN ORDER TO PASS CONSTINTIONAL hUSTER?
WELL, THERE IS FEDERAL AND STATE LAW THAT ARE DIRECTLY ON POINT TO THAT QUESTIDN, YOUR HONOR. AS THE CALIFORNIA SUPREME COURT HELD IN MNUFACTURERS LIFE INSURANCE COMPANY VS. SUPERIOR COURT, WHICH BE FOUND AT 10 CAL.4TH.
257, THE COURT WROTE, NEITHER THE crm MANAGER, NOR THE COURT
MY, QUOTE, 'INSERT WHAT HAS BEEN OMITTED, OR, QUOTE, WIT WHAT HAS BEEN INSERTED, END OF QUOTE. AND THIS RULING IS CONSISTENT WITH FEDERAL LAW.
AS THE U.S. SUPREME COURT WROTE IN GRAYNED VS. CITY OF ROCKFORD, 408 U.S. 104, IT, QUOTE, IS NOT WITHIN W R POWER TO CONSTRUE ANY NARROW STATE LAWS.
IN BOOS VS. BARRY, 485 0.5. 312, THE SUPREME COURT AGAIN HELD THAT FEDERAL COURTS ARE WITHOUT POWER TO A W P T A NARROWLY CONSTRUCTION OF A STATE STATUTE, UNLESS THIS INSTRUCTION IS REASONABLY AND READILY APPARENT FROM THE FACE OF THE STATUTE.
AND IN VIRGINIA VS. BOOKSELLERS ASSOCIATION, 484 0.8. 383, 'THE U.S. SUPREME COURT HELD THAT FEDERAL COURTS, WOTE, WILL NOT REWRITE A STATE LAW TO C O N F O W IT TO :ONSTITUTIONAL REQUIREUENTS, END OF QUOTE.
HERE WE HAVE, AGAIN, AN ORDINANCE THAT WAS PASSED. :T'S BEEN CHALLENGED ON ITS FACE. AN0 I BELIEVE THAT THE 'NTERPRETIVE MEMO DEUDNSTRATES THAT IT IS UNCONSTITUTIONAL ON

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I.-

".-A

15
OR DRUG-RELATED NUISANCES NEAR OR IN THE RENTAL PROPERTY. THE COURT HELD THAT THE ORDINANCE VIOL%TED THE
LANDLORD'S PROCEWRAL W E PROCESS RIGHTS, BECAUSE IT CREATED AN UNREASONABLY HIGH RISK OF ERRONEOUS DEPRIVATION OF A LANDLORD'S PROPERTY INTEREST. THE COURT SAID THAT THE TEN
-- DAYS IN ORDER TO P E W I T TO CDPMDlCE AN UNLAWFUL DETAINER
ACTION WAS, QUOTE, IT SUFFICES TO SAY THAT TEN DAYS IS FAR TOO SHORT.
ALSO INSTRUCTS US THAT THE ORDINANCE IN WESTION HERE VIOLATES DUE PROCESS BECAUSE LANDLORDS ARE REQUIRED TO PREVAIL IN AN UNLAWFUL DETAINER ACTION.
ACCORDING TO PAGE 3 OF THE INTERPRETIVE MEMOPANDUM, LANDLORDS CANNOT COLLECT RENTS FROM A TENANT WHERE THEY WERE UNSUCCESSNL IN EVICTING THE TENANT AFTER AN VNLAWNL DETAINER PROCEEDING.
AS THE UNITED STATES SUPREHE COURT HELD IN JAUES DANIEL W D W I L L PROPERTY, DEPRIVATION OF RENT THAT IS DUE IS A SIGNIFICANT PROPERTY INTEREST REQUIRING PROCEWPAL W E PROCESS.
THIRD, BECAUSE THE LANDLORD VIOLATES THE
-- ORDINANCE
THE COURT: EXCUSE ME. JAMES DANIEL GOOD ALSO PROVIDED THAT A POST-DEPRIVATION HEARING WAS CONSTITUTIONAL, DIDN'T IT?
MR. TENCER: WELL, ONLY IN EKTREME CIRCUMSTANCES,
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ITS FACE, AS THE CITY UANAGER TRIED TO REWRITE AND CHANGE IT

BY ADDING SAFE HAR0OR PROVISIONS, BY ADDING A TOLLING

PROVISION, BY SAYING THAT, WHEN WE SAID IT IS ONLY TO APPLY

IN THE FUTURE, WE DON'T MEAN CONDUCT IN THE FUTURE} WE UEAN

LEASES IN THE NTURE.

MY UNDERSTANDING FROU CO-COUNSEL, FROM READING

TODAY'S NEWSPAPERS, THAT THE CITY COUNCIL MENBERS WERE, AT

L E ~ ~ SOTNE OF THM, WERE SURPRISED THAT IT WESNIT APPLY TO

CURRENT LEASES GOING FORWARD.

THE COURT: THAT.'S NOT IN EVIDENCE HERE, SIR.

MR. TENCER: THE OTHER ISSUE I'D LIKE TO ADDRESS

VERY BRIEFLY, YOUR HONOR, IS THE FACT THAT, EVEN IF THE

INTERPRETIVE M M O W W H APPLIES, THAT THE ORDINANCE STILL

VIOLATES PROCEDURAL DOE PROCESS IN AT LEAST POUR WAYS.

FIRST, BECAUSE THE INTERPRETIVE MEUORANDOI( REQUIRES

IANDLORDS TO COUMENCE AN U N L A W N L DETAINER ACTION WITHIN TEN

DAYS, IT VIOLATES PROCEDURAL DUE PROCESS. AND A CASE

DIRECTLY ON POINT, Y W R HONOR, IS A CASE WE CITED, WHICH IS

COOK VS. CITY OF BUENA PARK, WHICH CAN BE POUND AT 126

CAL.4TH. 1. IT'S CITED 2005.

AND IN COOK, THE CALIFORNIA COURT OF APPEALS WAS

.

FACED WITH AN ORDINANCE OBLIGATING LANDLORDS TO UNDERTAKE

EVICTION PROCEEDINGS AGAINST ALL OCCUPANTS OF A RENTAL UNIT

WHEN THE CHIEF OF POLICE SUSPECTED THAT A TENANT WAS ENGAGED

5R PERHITTED ILLEGAL DRUG ACTIVITY OR GANG-RELATED ACTIVITY

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16
YOUR HONOR. ONLY WHERE THERE IS A SIGNIFICANT RISK OF IWINENT DANGER OR IUMINENT H A W TO THE PUBLIC.
AGAIN, YOU HAVE A POST-DEPRIVATION. THAT'S A VERY NARROW EXCEPTION, WHICH ISN'T HERIP. THE ORDINANCE DOESN'T SAY THAT THERE IS ANY FINDING OF IMMINENT RISK TO THE CITIZENS OF ESCONDIW'S HEALTH AND ~AFETY. THERE IS NO OTHER RISKS THAT'S BEEN IDENTIFIED BY THE CITY OF ESCONDIW, AND CERTAINLY NOT STATED IN THE ORDINANCE.
THIRD, BECAUSE THE LANDLORD VIOLATES THE ORDINANCE IF HE OR SHE FAILS TO PROVIDE THE CITY IDENTIFYING INFORMRTION WITHIN FIVE DAYS, THAT ALSO VIOLATES PROCEWRAL DUE PROCESS. THERE IS NO SAFE HARBOR THERE, IF, IN FACT, THE TENANT IS ON VACATION, UNAVAILABLE W R I N G THAT FlVE-DAY PERIOD, OR EVEN R E N S E S TO SPEAK TO THE LANDLORD. AS SUCH, WE SUBMIT THAT IT VIOLATES DUE PROCESS.
AND FINALLY, YOUR HONOR, BECAUSE TENANTS WHO HAVE BEEN LABELED BY THE CITY OF ESCONDIW AS ILLEWIL ALIENS HAVE NO OPPORTUNITY TO CHALLENGE THAT LABEL, IT VIOLATES THEIR DUE PROCESS RIGHTS.
IN UATHEWS V. ELDRIDGE, THE SUPREME COURT UADE CLEAR THAT IT HAS HELD THAT SOUE FORCl OF HEARING IS REQUIRED BEFORE AN INDIVIWAL IS FINALLY DEPRIVED OF A PROPERTY INTEREST.
AND IN PLYER V. DOE, THE SUPREUE COURT WROTE, AND I QUOTE, ALIENS, EVEN ALIENS WHOSE PRESENCE IN,THIS COUNTRY IS UNLAWFOL, HAVE LONG BEEN RECOGNIZED AS PERSONS GUARANTEED W E
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17

1 PROCESS OF LAW PROTECTED BY THE iUURTEENTH AMENDMENT.

2

THE CITY, IN ITS OPPOSITION BRIEF, FGAIN CITES

3 HODEL VS. VIRGINIA SURFACE MINING AND RECLAmTION, AND CLAIMS

4

-- THAT A W S T LIKE YOU SAY, YOUR HONOR, A POST-HEARING IS

5 SUFFICIENT FOR DUE PROCESS; A POST-DEPRIVATION HEARING.

6

-- THAT CASE ACTUALLY EXPLAINS THAT THE THAT IT IS A

7 LIMITED EXCEPTION WHERE WST-DEPRIVATION HWLRING IS

8 APPROPRIATE. AND IN THAT, THE COURT POUND ONLY WHERE THERE

9 IS AN IWINENT DANGER TO THE HEALTH OR SAFETY OF THE PUBLIC,

10 OR AN IlMINENT ENVIRONMENTAL HARM TO LAND, AIR OR WATER

11

f RESOURCES, WOULD A POST-SUSPENSION APPERL BE APPROPR ATE1 AND

12 NOT IN ANY OTHER SITUATION.

MAY IT PLEASE THE COURT, MY CO-COUNSEL WILL ADDRESS

15

THE COURT: A QUESTION BEFORE YOU SIT DOWN.

16

MR. TENCER: YES, YOUR HONOR.

17

THE COURT: IN STATE W S D OR TENANT LAW, WOULD THE

18 STATUS OF BEING AN UNMCUMENTED ALIEN BE REASON TO TERHINATE,

(19
::

BE CAUSE TO TERMINATE A L W E ?
MR. TENCER: I'M UNAWARE OF ANY STATE LAW THAT WOULD
TO ALLOW A L A N M R D TERMINATE A LEASE SIMPLY I S E D UPON

22

SOMEONE BEING AN ILLEGAL ALIEN.

THE COURT: OKAY. ALL RIGHT. THANK YOU. AND
24 COUNSEL -- AND --

MR. TENCER: AND THE CITY CERTAINLY HASN'T

I

.

1

COMPUTER-AIDED TRANSCRIPTION

IDENTIFIED ANY.

I

THE COURT: COUNSEL. IF YOU NEED A FEW MORE MINUTES

LATER, I'LL DEFER TO YOU IN A tTN MOMENTS.

THE COURT APPRECIATES THAT THE PLAINTIFFS DID NOT

1 5

HAVE AN OPPORTUNITY TO RESPOND, BY WAY OF A REPLY, TO THE

1

ARGUUENT IN THE OPPOSITION REFERRING TO THE MEMORANDUM.

MR. TENCER: THANK YOU VERY MUCH, YOUR HONOR.

THE COURT: MR. WSFIELD.

MR. W S F I E L D : THANK YOU, YOUR HONOR.

MY ROLE IN THIS PARTICULAR PART OF THE ARGUMENT IS

TO SAY THAT WHATEVER CREDENCE WE GIVE TO THE INTERPRETATIDN

MEMORANDUM IS REALLY ULTIWTELY IRRELEVANT, BECAUSE IF WE GET

TO THE DOCTRINE OF THE SUPRFHACY CLAUSE, AND THAT OF FEDERAL

AND STATE PREEUPTION, IT WESN'T MATTER WHETHER THE ORDINANCE

APPLIES PROSPECTIVELY OR NOT, IT DOESN'T MATTER WHETHER THE

CITY MANAGER HAS THE AUTHORITY TO REWRITE A STATUTE1 IT

MESN'T R E W Y HATTER WHETHER OR NOT IT APPLIES TO CONTRACTS

NOW OR CONTRACTS IN THE FUTURE.

BECAUSE UNDER THE DOCTRINE OF THE SUPREMRCY CLAUSE,

AND THE THREE TESTS DISCUSSED IN THE DECAWAS DECISION, WHICH

BOTH SIDES EXTENSIVELY BRIEFED, THIS STATUTE IS PREWPTED.

IT'S PREEnPTED IN THREE WAYS. THE FIRST WAY IS THE SIMPLEST

WAY, WHICH IS THAT THE STATUTE IS INTENDED TO REGULATE

IM4IGRRTION.

IT'S IN THE RECORD, UNREBUTTED, IN THE DECLARATION

I
COEIPUTER-AIDED TRRNSCRIPTION

1 DF MS. CALDERON, WHERE THE CITY COUNCIL, IN THE CONTEXT OF

2 DISCUSSING THE STATUTE, ADOPTING THE STATUTE, SPECIFICALLY

3 SAID, OUR INTENT IS TO STEM THE FLOW OF ILLEGAL IMMIGRATION

4

INTO THE CITY OF ESCONDIDO.

5

THE COURT: THERE IS SUCH DISCUSSION IN THE PUBLIC

6 RECORDS DURING CITY COUNCIL MEETINGS?

7

-- MR. HANSFIELD: YES, IT IS. THAT DISCUSSION WAS

8 'IT'S IN MS. CALDERON'S DECLARATION.

9

-- THE VIDEOTAPE0 FEEDS OF THOSE AND THEY CAN BE

10 SUBMITTED TO THE COURT, OR VIEWED BY THE COURT. THE

11 VIDEOTAPEO SUBMISSION OF THOSE PROCEEDINGS ARE ONLINE AND

12 AVAILABLE THROUGH THE ESCONDIDO WEBSITE. WE WENT THROUGH

13 THOSE PRCCEEDINGS AN0 WE HEARD TESTIUDNY, AND HER DECLARATION

14 SPECIFICALLY NOTES WHERE EXACTLY IN THOSE PROCEEDINGS IT

15 OCCURRED.

16

UNEURTUNATELY, ONE OF THE PROBLEMS WITH TEMPORARY

11 RESTRAINING ORDERS IS WE WOULD LIKE TO HAVE A FULL TRANSCRIPT

18 OF THOSE PROCEEDINGS. WE'RE IN THE PROCESS OF PREPARING IT.

19 WE DON'T HAVE IT.

20

BUT SHE CITES EXACTLY WHERE IT OCCURS, WHERE IT'S

2 1 AVAILABLE, AND HOW IT'S ACCESSIBLE. BUT THOSE POINTS WERE

-- SPECIFICALLY NOTED DURING THE COURSE OF THAT OF THOSE
DISCUSSIONS.

I

-- SECONDLY AND THAT'S SIGNIFICANT, BECAUSE IF HE

LM)K AT THE CASES, SPECIFICWY, THE CASE OF GRAHAU VS.

\
~ .'

COMPUTER-AIDED TRANSCRIPTION

RICHARDSON AND TRUAX V. RRICH, IN BOTH OF THOSE CASES, THE

COURT SAID, WHERE THE'ASSERTION IS THE RIGHT TO DENY ENTRANCE

AND ABODE, IT'S UNCONSTITUTIONAL FOR AN ORDINARY CASE, AS ONE

CANNOT LIVE IVHERE ONE CANNOT WORK.

I WOULD SUEMIT THE SAnE RULE APPLIES. ONE CANNOT

WORK WHERE ONE CANNOT LIVE.

THE CDURT: BUT THE CITY SAYS THERE ARE HEALTH AND

SAFETY REASONS FOR ENACTING THIS ORDINANCE, BLIGHT IN A

PARTICULAR ARM OF TOWN AND SUCH.
-- WHAT'S YOUR THOUGHTS WHAT'S YOUR TAKE ON THAT?

MR. MANSFIELD: THE ONLY EVIDENCE THAT'S IN THE

RECORD ON THAT POINT IS A CITE TO A STUDY BY THE CITY OF THE

MISSION PARK AREA OF THE CITY OF ESCONDIW.

IF WE LOOK SPECIFICALLY AT THAT STUDY, THAT STUDY

ACTUALLY SAYS NOTHING ABOUT THE ISSUE OF ILLEWU. IWIGRATION.

IT WAS ATTACHED TO THE CALDERON DECLARATION, EXHIBIT 4. AND
-- SPECIFICALLY, AT PAGE APOLOGIZE, YOUR HONOR.

AT PAGE 17 OF THAT STUDY, SPECIFICALLY IT SAYS. AS
-- DISCUSSED IN THE CITY'S CONSOLIDATED PLAN

THE COURT: SAVE THAT, COUNSEL. I PERUSED THAT

ENTIRE DOCUHENT.

22

WHICH EXHIBIT WAS IT7

23

MR. MANSFIELD: I'M SHOCKED YOU WN'T HAVE IT ALL

24

MEMORIZED, BECAUSE I CERTAINLY DO.

25

EXHIBIT 4, THAT IS'THE MISSION PARX COMMUNITY

I COMPUTER-AIDED TRANSCRIPTION

21

1 SURVEY, ESCONDIDO, CALIFORNIA. PAGE 17, HALFWAY DOWN.

2

THE COURT: I HAVE IT.

3

MR. MNSGIELD: THANK YW.YOUR HONOR.

4

THE SECTION THAT WAS CITED BY THE CITY IN ITS

5

CCNTEXT THAT THERE WAS CONCERN ABOUT URBAN BLIGHT AND

6 OVERCROWDING WAS REFERRING TO THE MISSION P A M STUDY. AND IN

POSITION, THE ONLY THING THAT WAS CITED IN THE RECORD WAS THAT DOCUMENT.
IF WE UX)X AT THAT PAGE OF THAT DOCUMENT, IT SPECIFICALLY SAYS, AS DISCUSSED IN THE CITY'S CONSOLIDATED PLAN, OVERCRWDING IS CAUSED BY A C(MBINATION, COMBINED EFFECT OF LOW EARNINGS AND HIGH HOUSING COSTB, AND IS DEFINED BY THE CENSUS OF HOUSEHOLDS WITH MORE THAN 1 . 0 1 PERSONS PER Rrn.
THE COURT: WITH 70-PLUS PERCENT OF THE INCDME GOING TO RENTS.
MR. MANSFIELD: YES. THE COURT: YES, I RECALL. MR. MANSFIELD: YES. THAT SECTION.
-- BO IT'S TALKING ABOUT WHAT THE CITY OF ESCONDIDO
WHAT THE STUDY FOUND, MENTIONED BY THE CITY OF ESCONDIW, IN CONNECTION WITH THE CAL STATE UNIVERSITY OF SAN MARCW, WAS THE CAUSE OF OVERCROWDING WERE NOT ILLEGAL IMMIGRANTS. NOTHING TO W WITH ILLEGAL IMMIGRATION.

I

1

COMPUTER-AIDED TRANSCRIPTION

1

THE ONLY THING THEY NOTED RA9 ON THE NEXT PAGE,

2

WHICH ON PAGE 18 OF THE STUDY SAID, OVERCROWDING CAN

3

CONTRIBUTE TO A GENERAL DETERIORATION OF STRUCTURES, EXCESS

4

TRASH. BUT, AGAIN, RFMEHBER WHAT THE CAUSES OF THAT

5

OVERCRORDING WAS. AND THEN IT SAYS, RENTERS WHO ARE NEU

6

IMMIGRANTS, AND EXCEEDING UNIT DCCUPANCY ARE LESS LIKELY TO

7

WHPLAIN. NEW IMMIGRANTS. DOESN'T SAY ILLEGAL IMMIGRANTS.

8

DOESN'T SAY ILLEGAL ALIENS. IT JUST BAYS NEW IMMIGRANTS.

9

THAT IS THE SOLE REFERENCE IN THE RECORD TO THE FACT

10

THAT THERE WAS A CONCERN OF URBAN BLIGHT, OVERCROWDIhlG OR

4)

11 ANYTHING OF THAT NATURE. THERE IS ABSOLUTELY NO EVIDENCE IN

-- -- '

12

THIS RECORD AS PRESENTED BY THE CITY COUNCIL I'M SORRY

13

-- PRESENTZXI BY THE CITY ATTORNEY THAT THE QUESTION THAT THE

14

ISSUE THAT WAS ATTEMPTING TO BE ADDRESSED WAS ONE

15 ATTRIBUTABLE TO ILLEGAL ALIENS. THE ONLY THING THEY CITED

16 WAS A STUDY THAT SAID THAT THE OVERCROWDING WAS CAUSED BY

17

HIGH HWSING COSTS, COMBINED WITH LOW IUCOMES.

10

AND IN LIGHT OF THAT, WE GO BACH TO THE BASIC

19

m, PREMISE, WHICH WAS DISCUSSED IN RICHARDSON AND

WHERE A

20

GOVERNMENT ENTITY, A LOWLL GOVERNMENT ENTITY ATTEMPTS TO

2 1 REGULATE IMMIGRATION, ATTEMPTS TO STEM THE FLOW OF ILLEGAL

22

IMIGRATION INTO AN AREA, SPECIFICALLY DENYING ENTRANCE AND

23

-- ABODE AND THE COURT SPECIFICALLY USED THE WORD ABODE,

21 HOUSING. THAT IF ONE DOES THAT, ONE IS INTERFERING, IS

25 ATTEMPTING, TRYING TO REGULATE THE ISSUE OF IMMIGRATION AND

I

I

COHPUTER-AIDED TRRNSCRIPTION

IT'S UNCONSTITUTIONAL.

THE SECOND TEST, WHICH IS DISCUSSED IN D E W A S , IS

WHERE THE ORDINANCE, ON ITS FACE, ATTEMPTS TO REGULATE IN A

FIELD THAT'S EXTENSIVELY OCCUPIED BY THE FEDERRL GOVERNMENT:

FIELD OF PREEMPTION.

AGAIN, IF WE GO BACK TO THE POINT THAT MR. TENCER

MADE, WHAT'S THE TITLE OF THE STATUTE? ESTABLISHING

PENALTIES FOR HARBORING OF ILLEGAL ALIENS IN THE CITY OF

ESCONDIDO.

1 lo

THERE IS A STATUTE, FEDERAL STATUTE, 8 U.S.C.

I

-- 1384 1324, PROHIBITING THE WARBORING OF ILLEGAL ALIENS.

THE COURT: THE COURT'S FAHILIAR WITH IT. WE DEAL

WITH IT QUITE OFTEN.

MR. W S F I E L D : AS I WAS GOING TO SAY, I WN'T NEED

TO TELL THIS COURT. THIS COURT PROBABLY HAS A LONG CAREER,

MORE THAN IT REALLY CARES TO THINKS ABOUT, THAT HAS DEALT

WITH 8 U.S.C. 1324.

THE FEDERAL GOVERNMENT HAS A VERY COMPREHENSIVE

REGULATORY SCHEME HOW IT DETERMINES WHAT HARBORING IS, WHAT

THE PENALTIES ARE FOR HARBORING, HOW IT PROVES HARBORING,

WHOSE BURDEN IT IS TO ESTABLISH HARBORING, AND WHAT EVIDENCE

IS NEEDED TO ESTABLISH HARBORING.

THE U.S. SUPREME CWRT IN THE WINES VS. DAVIWWITE

CASE, SPECIFICALLY SAID, THE REGULATION O F ALIENS IS SO
-- -- INTIMATELY INTERTWINED I S M SORRY THAT WHERE A STATE

I

I

COHPUTER-AIDED TRANSCRIPTION

1 GOVERNMENT ACTS, AND THE STATE ALSO ACTS ON THE SAHE SUBJECT,

THE ACT OF CONGRESS IS SUPREME AND THE LAW OF THE STATE MUST

YIELD TO IT. THAT'S WHAT WE HAVE HERE.

THE CWRT: I HEAR YOU. BUT WHAT'S YOUR TAKE ON, I

THINK IT'S DECANAS VS. BICA.

MR. MANSFIELD: YES.

THE COURT: WHAT'S Y W R TAXE ON THAT?

'

HOW DO YOU RECONCILE DECANAS WITH THE CASE YOU'VE

JUST CITED?
-- MR. MANSFIELD: SURE. DEUINAS THEY ARE ACTUALLY

PERFECTLY HARMONIOUS, AND THRNH YOU FOR RAISING THAT.
. IN DECANAS, WHAT HAPPENED WAS, IS THE COURT SAID, WE
-- WN'T HAVE TO DEAL WITH THIS IT IS OKAY FOR THE STATE OF

CALIFORNIA TO ISSUE A REGULATION ABOUT EMPLOYMENT, BECAUSE,
-- FIRST OF ALL, WITH REGARD TO IT NOTED, WITH REGARD TO

HARBORING, EMPLOYMENT IS SPECIFICALLY EXEMPTED FROM IT.

AND, MORE IMPORTANTLY, THE FEDERAL GOVERNHENT HAS

ISSUED NO REGULATIONS PROHIBITING THE EMPMYMENT OF ILLEGAL

ALIENS.

THE COURT: YOU MEAN OF A FEDERAL STATUTE HAKING IT
-- CRIMINAL TO HIRE ILLEGAL ALIENS I MEAN, TO M P M Y ILLEGAL

ALIENS?

MR. MANSFIELD: CORRECT. WHICH WAS ADOPTED AFTER
. DECAUAS

THE COURT: ALL RIGHT.

I

I

COHPUTER-AIDED TRANSCRIPTION

-- MR. MRNSFIELD: IT WAS CONSIDERED IN FACT, IF THE
COURT L W K S AT DECANAS, WHAT WAPPENEO WAS THE COURT ,
RECDGNIZED THE FACT TWAT THERE WAS LEGISWTION'PENDING THAT WOULD DEAL WITH THIS ISSUE, DEAL WITH THE ISSUE OF EMPLOYING ILLEGAL ALIENS. AND THEN SAID, HOWEVER, IN THAT PARTICULAR STATUTE, IT SPECIFICALLY RECOGNIZED THAT THERE HILL BE , DXPLIMENTARY STATE REGULATIOUS. AND IT SAYS, BECAUSE THE FEDERAL GOVERNMENT HAS SPECIFICALLY SAID THERE CAN BE COMPLIMENTARY STATE REGULATIONS, THAT EVIDENCE IS A
CONGRESSIONAL INTENT TO -- FOR THERE TO BE CWPLIMENTARY
REGULATIONS.
THE COURT ALSO SPECIFICALLY NOTED IN D E W S , THAT AT THAT POINT, THERE WAS NO SPECIFIC FEDERAL LAW THAT PROHIBITED THE EMPLOYMENT OF ILLEGAL ALIENS. AND, IN FACT, THAT THERE WAS THE EXCEPTION THAT WAS NOTED IN THE HARBORING STATUTE.
WE ARE NOW IN A DIFFERENT REGIME THAN WE WERE IN THE
-- DECANAS ERA. SO WE ACTUALLY IT ACTUALLY IS MORE LIKE THE
SITUATION THAT OCCURRED IN THE U)WC CASES WHICH WE CITED IN OUR BRIEF, WHERE THERE IS A COMPREHENSIVE FEDERAL SCHEME, IN TEMS OF PROVIDING BENEFITS TO CERTAIN PERSONS, AND THE PROCESS 5DR CHECKING THAT, AND FOR REPORTING PERSONS AND INTERFACING WITH THE FEDERAL GOVERNMENT IN THAT REGARD.
AND JUDGE PFAELZER ENGAGED IN A COMPREHENSIVE ANALYSIS, AS THE COURT KNOWS, PIECE BY PIECE THROUGH THE

I

I

CWPUTER-AIDED TRANSCRIPTION

STATUTE AND SAID, EVEN WHERE YOU HAVE A PARALLEL ENFORCEMENT

SCHEME, BECAUSE OF THE FACT THAT YOU HAVE COMPREHENSIVE
-- FEDERAL REGULATIONS, ON THIS PARTICULAR SUBJECT

THE COURT1 TELL ME, WHAT'S YOUR VIEW ON WHETHER OR

NOT THE COMPREHENSIVE SCHEME NEEDS TO TRICKLE WWN TO LOCAL

COMMUNITIES, TO BE IMPACTFLJL IN LOCAL C M U N I T I E S ?
-- HR. PWISFIELD: IN T E M S

THE COURT: U R G E AND SHALL TOWNS.
MR. MANSFIELD: IN TERMS OF WHETHER THE FEDERAL --
WHETHER OR NOT THE -- THE EFFECT THAT IT HAS ON LOUU.

COMMUNITIES?

THE COURT: YES.

MR. MANSFIELD: WELL, I THINK THAT THE ISSUE THERE
IS THAT IT CAN -- THAT IS UP FOR THE FEDERAL GOVERNMENT, OR

THE FEDERAL PROSECUTOR TO DECIDE, WHETHER IT NEEDS TO LDOK AT
-- A PARTICULAR IT NEEDS TO ADDRESS OR LOOK AT A PARTICULAR

AREA.

I THINK THAT HAS SORT OF ONE OF THE ISSUES THAT

AROSE IN HAZLETON, IN THE

DECISION. WHERE THE COURT,

LOJKING AT THE STATUTORY SCHEME, ALTHOUGH IT DIDN'T ADDRESS

IT IN DETAIL, SAID IT RAISED A SERIOUS CONSTITUTIOUAL

QUESTION WHETHER A LDCAL GOVERNMENT COULD M INTO AN AREA

THAT HAS BEEN SPECIFICALLY REGULATED BY THE EZDERAL
-- MVERNMENT. SO CERTAINLY IT IS I'M TRYING TO RESPOND

DIRECTLY TO YOUR QUESTION.

I

I

COMPUTER-AIDED TRANSCRIPTION

27

I THINK THAT IT IS WITHIN THE FED,ERAL GOVERNMENT'S

PREROGATIVE TO SAY, WE'RE GOING TO ATTEMPT TO ADDRESS THE

ISSUE OF HARBORING IN A PARTICULAR LOCALE, BUT THAT IS WITHIN

THE FEDERAL REGULATORY SCHEME.
-- CONGRESS GAVE NO INDICATION UNLIRE OTHER FEDERRL

STATUTES, WHERE IT DID, IT GAVE N.0 INDICATION IN CONNECTION

WITH THIS FEDERAL SCHEME THAT LCCAL CITIES, EVEN STATES COULD

ADOPT A REGULATION EVEN PARRLLEL TO THE REGULATORY SCHEME

THAT WAS ADOPTED BY THE FEDERAL GOVERNMENT.

AN0 I THINK THAT'S WtUT MRXES IT DIFFERENT T H W

DECANAS, AND W E N MRXES IT DIFFERENT THAN OTHER STATUTES,

WHERE THERE IS A SPECIFIC RECOGNITION THAT IN SOME

CIRCUMSTANCES STATE AND FEDERAL GOVERNMENTS M Y INTERACT AND

COOPERATE.

THE COURT: DO YOU KNOW WHETHER OR NOT IN

LEGISLATIVE HISTORY, OR OTHERWISE, IN THE ENACTMENT OF 1324,

THAT THERE WAS ANY MENTION WITH RESPECT TO PERHITTING STATES

- TO HAVE PARALLEL RULES?

1

MR. MANSFIELD: TO MY KNOWLEDGE, AT LEAST FROM MY --

-- 1324 HAS BEEN M E N D E D SUBSTANTIALLY HAS BEEN AMENDED

SEVERAL TIMES OVER THE YERRS. I DON'T BELIEVE THAT THERE IS

ANYTHING, ONE WAY OR THE OTHER, THAT ADDRESSES THAT ISSUE1 SO

I THINK WE'RE SORT OF LOOKING AT THE FACE OF THE STATUTE.

BUT I WOULD NOTE THIS ISN'T A STATUTE THAT HAS A
-- SAVINGS CLAUSE. THIS ISN'T A STATUTE THAT HAS A STATE WE

COMPUTER-AIDED TRANSCRIPTION

LOOK FOR STATES TO ADOPT COHPLEMENTARY REGULATIONS. AND WE

ARE TALKING ABOUT THE I ~ I G R A T I O NAND NATIONALITY ACT, AN ACT

THAT IS PRESUMPTIVELY CONSIDERED ONE THAT IS CREATING A FIELD
-- OF A FIELD GOVERNED BY THE SUPREMACY CLAUSE, SPECIFICALLY

BECAUSE IT'S REGULATED IN THE CONSTITUTION.

SO THE FACT THAT THERE MAY NOT BE SPECIFIC

LEGISLATIVE HISTORY THAT I CAN CITE TO YOU THAT WOULD SAY, WE

DON'T WANT ANYBODY DEALING WITH THIS, WE DON'T WANT ANYBODY

LOOKING AT THIS. WHAT WE W KNOW IS WE HAVE A VERY EXTENSIVE

HISTORY OF THE STATUTE THAT HAS NEVER BEEN INTERPRETED THAT

WAY AND A VERY EXTENSIVE HISTORY OF THE STATUTE THAT HAS

I EXCLUSIVELY BEEN GIVEN THE AUTHORITY IN THE FEDERAL
12

I

GOVERNMENT.

THE COURT: THANK YOU. YOU MAY CONTINUE.

MR. PWISFIELD: THE FINAL POINT IN TERHS OF THE

CONSTITUTIONALITY WESTION OF THE S U P R W C Y CLAUSE, IS

WHETHER OR NOT THE ORDINANCE CONFLICTS WITH FEDERAL LAW. AND

I APPRECIATE THE COURT STARTING OFF THE HEARING BY NOTING

THAT IT WAS TAKING JUDICIAL NOTICE OF THE FEDERAL REGISTER

CITE.

I WOULD SPECIFICALLY NOTE, IT'S IMPORTANT BECAUSE OF

SOMETHING THAT WAS SAID IN THE OPPOSITION. IN THE

OPPOSITION, THE DEFENDANT SAID, WELL, YOU DON'T REALLY HAVE

TO WORRY, YOUR HONOR, ABOUT THE FACT THAT WE M Y BE

REGULATING IN THIS PARTICUWR AREA, BECAUSE WE ARE JUST GOING

COMPUTER-AIDED TRANSCRIPTION

TO REFER TO WVERN?IENT DATABASES1 AND SPECIFICALLY THE SAVE

DATABASE. AN0 THE GOVERNUENT IS GOING TO UX)K AT THAT SAVE

3

DATABASE, WE'LL GET INFORHATION BACK FROM THAT, AND THAT'S

4

HOW WE'RE W I N G TO UAKE OUR DETERMINATION; SO THERE DOESN'T

5

HAVE TO BE WORRY ABOUT THERE BEING RH INCONSISTENCY.

6

INTERESTINGLY, WHEN THE SAVE DATABASE WAS ADOPTED IN

7

-- CONNECTION WITH THE FEDERAL OTHER FEDERAL LEGISLATION, THE

8 QUESTION W E DP OF, WHAT DOES IT MEAN TO KNOW THAT SOMEONE

9

-- IS AN ILLEGAL ALIEN? HOW DOES THAT HOW IS THAT KNOWLEDGE

CREATED? IS A MERE RESPONSE BACK FROM SAVE, THAT CAN'T

IDENTIFY THAT PARTICULRR PERSON, IS THAT ENOUGH? AND THE

FEDERAL GOVERNMENT SPECIFICALLY NOTED THAT THE ANSWER WAS NO.
-- THE FEDERAL IN THE FEDERAL RKISTER CITE THAT THE

COURT RECOGNIZED, IT SPECIFICALLY SAID THAT A SYSTEllATIC

ALIEN VERIFICATION FOR ENTITLEMENTS RESPONSE SHOWING NO

116

SERVICE RECORD ON AN INDIVIDUAL, OR AN IUUIGPATION STATUS

I

W I N G THE INDIVIDUAL INELIGIBLE FOR A BENEFIT, IS NOT A

FINDING OF FACT OR CONCLUSION OF LAW THAT THE PERSON IS NOT

LAWWLLY PRESENT.

IT GOES ON TO SAY, THE TERMINATION OF STATUS FOR

PURPOSE OF THE IMMIGRATION AND NATURALIZATION ACT ARE THE

RESPONSIBILITY OF THE DEPARTMENT OF JUSTICE; NOT ANY OTHER

AGENCY.

24

-- THE POINT BEING, THE WAY THAT IF WE LOOK AT THE

25

INTERPRETIVE HEnO, THE INTERPRETIVE MEMO SAYS, WHAT UE'RE

CONPUTER-AIDED TRANSCRIPTION

6>
I...)

GOING TO DO IS WE'REGOING TO ASK W l D W R O S TO PROVIDE US THIS DATA, OR A N Y PERSON FRANKLY1 NOT EVEN LANDLORDS. WE'RE

I

3

GOING TO ASK PERSONS TO PROVIDE COMPLAINTS. WE'RE W I N G TO

4

ASK LANDLORDS FOR DATA, WHICH IIRY BE PROTECTED FROM

!

5

DISCLOSURE. AND WE'RE GOING TO PROVIDE THAT DATA TO THE SAVE

DATABASE, AND WEIRE WING TO GET R E S ~ N S E SBACK. AND m w

THAT, WE'RE GOING TO MAKE SOUE SORT OF DETERMINATION AS TO
WHETHER THE PERSON IS AN ILLEWU. ALIEN. .

THE FEDERAL GOVERNUENT SPECIFICALLY SAID, YOU CAN'T

M E THAT DETEWINATION BASED ON THAT. YO0 HAVE TO HAVE THAT

DETERMINATION K4OE BY THE COURTS, OR IN AN ADMINISTPATIVE

PROCEEDING, OR AN I.N.S. PROCEEDING, WHICH THIS COURT IS

FAHILIAR WITH. THAT'S HOW THAT DETERMINATION IS )(ROE. IT IS

NOT IIRDE BY ACCESSING THE SAVE DATABASE. THAT'S WHERE YOU

RUN INTO DIRECT CONFLICT.

IF YOU LOOK AT THE THREE DIFFERENT PREEMPTION

DOCTRINES, IT REALLY ESTABLISHES THAT WE DO NOT HAVE TO
REALLY -- THAT THE INTERPRETIVE M W IS IMPORTANT, AND IT'S

INTERESTING, AND ITS EFFECT CAN BE DEBATED, BUT AT THE END OF

THE DAY, WHERE THE GOVERNMENT IS REGULATED, THIS IS SIMPLY
NOT AN AREA FOR LOCAL REGULATION.

AS AN ALTERNATIVE, WE ALSO NOTED THAT THERE WAS

STATE PREEMPTION. WE THINK THE FEDERAL PREEMPTION RESOLVED

THE ISSUE, BUT WE THINK STATE PREEHPTION IS ALSO IMPORTANT TO

.NOTE.

I

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COMPUTER-AIDED TRANSCRIPTION

AS WE NOTED, THE CALIFORNIA CONSTITUTION SPECIFICALLY FOUND THAT A UDNICIPALITY CAN ADOPT AN ORDINANCE 80 UlNG A S I T IS NOT INCONSISTENT WITH THE GENERAL LRWS. AND UR. TENCER HAS ALREADY TALKED ABWT, AND YOU ALLUDED TO, THE QUESTION .OF WHETHER THE STATUTE CONELICTS WITH LRNDMRD/TENANT LAWS, SPECIFIC TIMING SET FORTH IN THAT. AND THERE IS SPECIFIC REQUIREMENTS, AND THE CALIFORNIA COURTS HAVE UAOE IT CLEAR, THAT THOSE TIMING REQUIREMENTS ARE SET BY THE STATE AND CANNOT BE ABRWLTED BY ANY LOCRL ORDINANCE.
AND I DON'T BELIEVE THAT AN INTERPRETATION HEM0 THAT SAYS, IWIL, WHAT WE R E W Y MEAN WITHIN THAT TEN-DAY RULE IS SIMPLY THAT YOU HAVE TO START THE PROCESS, DOESN'T ANSWER THE QUESTION.
BECAUSE WHAT IS THAT PROCESS? DOES A LANDLORD HAVE TO TERMINATE TENANCY? DOES A LANDLORD HAVE TO GIVE 30 DAYS' NOTICE OR 60 DAYS' NOTICE, DEPENDING ON THE SITOATION? DOES A LANDLORD HAVE TO SAY, WELL, W&N THAT LEASE IS OVER IN A YEAR, I'M W I N G TO TERMINATE IT?
AS WE NOTED, THE CALIFORNIA CONSTITUTION SPECIFICALLY SAID THAT CITIZENS AND NONCITIZENS ALIKE HAVE VERY SPECIFIC PROPERTY INTEREST. AND WE'VE ALSO NOTED THAT THE LEASEHOLD INTEREST AND RENTAL HOLD INTEREST ARE PERSONAL PROPERTY THAT HAVE BEEN PROTECTED UNDER THE CALIFORNIA CIVIL CODE, SECTION 671.
THE COURTr TELL ME, COULD THAT EVICTION HEARING
COMPUTER-AIDED TPANSCRIPTION

32
PROCEDURE BE THE DUE-PROCESS HEARING THAT THE TENANT AND THE LANDLORD WOULD HAVE A RIGHT TO HAVE?
-- UR. ILRNSFIELD: WELL, EXCEPT FOR THE FACT OF
LET'S THINK ABOUT HOW THAT WOULD PLAY OUT. THE LANDLORD BEGINS AN UNLAWFUL DETAINER PRCCEEOING.
THE TENANT OBJECTS TO THAT UNLAWFUL DETAINER PROCEEOING BY SAYING, WELL, THAT'S NOT A GROUND TO EVICT UE, BECAUSE ILLEGAL ALIEN IS NOWHERE LISTED IN UILIFORNIA CIVIL CODE FOR A BASIS FOR AN UNLRWNL DETAINER PRCCEWREI AND I'M NOT AN ILLEGAL ALIEN.
SO NOW YOU HAVE A PROCEEOING PROCEEDING BEFORE A SUPERIOR COURT JUDGE ASKING QOESTIONS, AND A SUPERIOR COURT JUDGE IIRKING A DETERMINATION WHETHER SCUEONE IS AN ILLEGAL ALIEN; NOT WITHIN THE PROVINCE OF STATE COURT TO DO. IT'S THE PROVINCE OF THE FEDERAL COURT TO DO.
AND EVEN IF THEY ~ D THEAT DETERMINATION, BY THE TIUE THAT DETERMINATION IS UADE, IF THERE HAS BEEN AN ADTOWTIC SUSPENSION OF A LICENSE, YOU BASICALLY HAVEN'T BEEN ABLE TO COLLECT RENT, WE ARGUE ON THE WHOLE DWELLING UNIT, THEY ARGUE JUST ON ONE, BUT YOU HAVEN'T BEEN ABLE TO COLLECT RENT FOR A SIGNIFICANT PERIOD OF TIME.
THE TENANT CERTAINLY HAS -- THE ONLY TIME THAT THEY
EVER GET TO EVEN PRESENT THAT ISSUE IS IN THE CONTEXT OF AN UNLAWFUL DETAINER PROCEEOING, WHICH THEY ONLY GET TO IF FOR SOME REASON, SOUEQOOY COMES IN AND TRIES AN UNLAWFUL DETAINER
COMPUTER-AIDED TRRNSCRIPTION

33

)

PROCEEDING, AS COMPARED TO SIMPLY SAYING, I'M CUTTING OFF THE 1

2

LEASE; I 'M NOT RENTING TO YOU ANYMORE.

3

THE COURT: EXCUSE ME. AN UNLAWFUL DETAINER ACTION,

4

SHARE WITH ME, WOULD THE LANDLORD HAVE THE OPTION TO

5 NEGOTIATE AND PERMIT THE TENANT TO STAY BEFORE THE ACTION WAS

6 COMPLETED?

7

MR. MANSFIELD: THAT IS CORRECT. ONE OF THE

-- 0

OPTIONS

9

THE COURT: IS THAT PROVISION, IS THAT REMEDY, OR

10

RESULT OF AN UNLAWFUL DETAINER ACTION, CONTAINED IN THE

11 ORDINANCE, OR IS IT RESTRICTED BY THE ORDINANCE, IN YOUR

12 VIEW?

13

MR. UANSFIELD: WE WOULD ARGUE THAT IT'S RESTRICTED

14 BY THE ORDINANCE. BECAUSE, AGAIN, REMEMBER WHAT THE

15 ORDINANCE SAYS. WITHIN TEN DAYS, ONE MUST, QUOTE, CORRECT

16 THE VIOLATION.

17

WELL, IF THE VIOLATION OF LAW IS SUFFERING

18 OCCUPANCY, PERMITTING OCCUPANCY, RENTING OR LEASING, THEN THE

19 ONLY WAY TO CORRECT THRT VIOLATION IS TO STOP W I N G IT. SO

20

IF YOU HAD AN UNLAWNL DETAINER PROCEEDING AND THE PARTIES

21 ULTIMATELY AGREED TO SOHE SORT OF RESOLUTION OF THAT ISSUE,

22 YOU'RE STILL PERHITTING THAT PROCESS TO GO FORWARD.

23

-- SO THAT W E S NOT IN OUR MIND, IT MESN'T CURE THE

24 VIOLATION. AND, THEREFORE, ARGUABLY THE LANDLORD WOULD BE

25 PUT IN THIS IMPOSSIBLE POSITION OF BEING TOLD THAT THEY ARE

I

I

COMPUTER-AIDED TRANSCRIPTION

0

VIOLATING THIB ORDINANCE, W I L E AT THE SAME TIME BEING
-- REQUIRED TO GO THROUGH THIS GO THROUGH THE UNLAWFUL

DETAINER PROCEEDING PROCESS.

THE CWRT: THANK YOU.
-- MR. KWSFIELD: SO WE THINK THAT WHEN YO0 LOOK AT

THAT'S YET A SEPARATE, INDEPENDENT BASIS UPON WHICH TO FIND

THAT THE STATUTE IS DNCONSTITUTIONAL.

FINALLY, THERE IS THIS LAST QUESTION,

UNDERSTANDABLY, IMPORTANT ONE, WHICH IS THAT OF IRREPARABLE

Il1
12

HRRH. THE CITY'S POSITION IT'S TAKEN IS THAT, WELL, THERE
IS REALLY NO IRREPARABLE HARM ANYMORE, BECAUSE WE'RE ONLY

13 APPLYING THIB PROSPECTIVELY. AND; AWLIN, WE RESPECTNLLY

14

SUBMIT THAT IT IS WHAT THE ORDINANCE SAYS, AND WE HAVE TO

15 TAKE IT ON ITS FACE. BUT WHAT THE CASE LAW HAS CONSISTENTLY

16 SAID IS THAT THE THREAT OF A CONSTITUTIONAL VIOLATION A W N E

17

IS SUFFICIENT TO CREATE IRREPARABLE HARM. Y W HAVE THAT

18 THREATONWING.

WE'VE NOTED IN OUR DECLARATIONS, UNREBUTTED, OF BOTH

JANE DOE'S 1 AND 2 SAYING THAT THEY ARE VERY CONCERNED ABOUT

THE FACT THAT THEY MAY BE EVICTED, EVEN IF YOD TRIED TO

EXPLAIN TO THEM THAT THEY MIGHT NOT BE.

WE HAVE MR. GARRETT, WHO IN HIS MON DECLARATION HAS

TALKED ABOUT HIS TENANTS TELLING HIM THAT THEY MIGHT LEAVE.

HIS TENANTS INDICATING THAT THEY ARE CONCERNED ABOUT WHETHER

I COMPUTER-AIDED TRANSCRIPTION

35
OR NOT THEY ARE SUBJECT TO THIS ORDINANCE. AND HIM BEING PUT IN THIS ROCK AND A HARD PLACE, WHICH WILL CONTINUE. BECAUSE HE WILL CONTINUE TO HAVE PROPERTY AND CONTINUE TO HAVE PROPERTY THAT WOULD BE VACANT, NO MATTER HOW YOU INTERPRET THE STATUTE.
-- YOU HAVE THE REPORTS THAT, AGAIN, ONREBUTTED IN
-- THE RECORD OF LANDLORDS THREATENING TENANTS WITH RENT
1 INCREASES, LANDLORDS THREATENING TO REPORT THEM, QUESTIONS OF
0 B L A C M I L I THESE ISSUES ARE ALL SIGNIFICANT AND ALL IRREPAPABLE. AND, UNFORTUNATELY, THE MORE T,HAT THIS ORDINANCE IS OUT THERE AND UNCERTAIN THAT IT MIGHT BE INTERPRETED ONE WAY OR MIGHT BE INTERPRETED ANOTHER WAY, THOSE THREATS ,OF CONSTITUTIONAL INFRINGEMENT REMAIN. AND SO, IRRESPECTIVE OF THE QUESTION, WHETHER THE INTERPRETATION MEMO HAKE8 THIB STATUTE APPLY PROSPECTIVELY OR NOT, THE CONBTITUTIONAL INFRINGEMENTS STILL REMAIN, AND BECAUSE THE CONSTITUTIONAL INFRINGEMENTS STILL REHAIN, THE
IRREPARABLE HARM STILL REMAINS. AND, THUS, WE THINK THAT IRRESPECTIVE OF HOW YOU END
UP ON THAT, THERE IS STILL IRREPARABLE HARM, AND THAT AS A RESULT OF THAT, WE MUST MAINTAIN THE STATUS QUO. AND AS THE STATUS QUO, WE MAINTAIN THAT THE ORDINANCE NOT GO INTO EFFECT.
, UNLESS YOU HAVE ANY OTHER QUESTIONS, THAT'S IT. THE COURT: THANK YOU, COUNSEL.
COMPUTER-AIDED TRANSCRIPTION

36
MR. MANSFIELD: THANK YOU, YOUR HONOR. THE COURT: MR. GARRETT. MR. GARRETT: GOOD AETERNOON, YOUR HONOR. WITH THE COURT'S PERMISSION, MR. LINCOLN AND I WILL DIVIDE UP OUR TIME AS P O W W S : I'M GOING TO ADDRESS THE QUESTION OF IRREPARABLE INJURY. AND MR. LINCOLN IS GOING TO ADDRESS THE QUESTION OF PROBABILITY OF SUCCESS ON THE MERITS, INCLUDING THE LEGALITY AND QUESTIONS OF THE STATUS OF THE CITY MANAGER'S MEMORANDUM. AND SO I'M W I N G TO FOCUS ON THE ALLEGATIONS OF IRREPARRBLE H A M FOR THIS T. R.O. THE COURT: THANK YOU. YOU HAY PROCEED.
-- MR. GARRETT: I FIND IT QUITE REHARKAELE I
ACIURLLY TIMED HOW MUCH TIME WAS SPENT BY THE PLAINTIFFS IN THIS PRESENTATION, AND BY MY COUNT, IT WAS LESS THAN TWO MINUTES, WAS SPENT ON THE QUESTION OF IRREPARABLE INJURY AND
-- POTENTIAL H A W TO THEIR CLIENTS. AND, FRANKLY, WE WEL MY
CLIENTS FEEL VERY STRONGLY THAT THAT IS THE MOST IMPORTANT ISSUE IN FRONT OF THE C W R T TOMY.
AND I'M VERY SURPRISED. I'M USED TO, IN TEMPORARY RESTRAINING ORDER HEARINGS, THAT BEING THE PRIMPAY CONCERN OF PHE PLAINTIFFS, THE HARM TO THEIR ACTUAL CLIENTS, THINGS THAT lIGHT HAPPEN TO THEM.
I
COMPUTER-AIDED TRANSCRIPTION .

WHAT WAS AT S T M HERE TODAY. YOU ARE NOT HERE TO RENDER A DECISION ON THE ULTIHRTE LEGALITY OF WHAT'S OCCURRED, AS MUCH

AS THE PROBABILITY O F SUCCESS ON THE MERITS I S IMPORTANT.

BUT THE REAL I S S U E OUGHT TO BE WHETHER OR NOT WE HAVE PEOPLE

65 1

WHO ARE FACING REAL L I F E DANGER OR INJURY, IRREPARABLE INJURY THAT THEY WOULD BE FACING.
AND WE'RE VERY CONCERNED ABOUT THAT. AND I THINK

DESPITE THE EFFORTS TO ATTRIBUTE MOTIVES AND NEGATIVE THINGS
-- TO MY CLIENTS UY CLIENT, I WOULD LIKE TO S P E M ON BEHALF

OF THE CITY ATTORNEY, THE CITY MANAGER, WHO IS THE CHIEF

EXECUTIVE OFFICER O F THE CITY, AND THE C I T Y COUNCIL AS A

COLLECTIVE BODY1 AND WE ARE ALL VERY CONCERNED BY THE

POSSIBILITY THAT THERE COULD BE IRREPARABLE INJURY.

AND WE'RE ALSO VERY CONCERNED BY THE CONFUSION THAT

HRY HAVE BEEN RAISED ABOLJT T H I S ORDINANCE, AND FEEL I T ' S VERY

IMPORTANT TO REWCE THAT CONFUSION, RRTHER THAN CREATE MORE

CONFUSION UNDER THE GUISE O F CREATING MORE FEAR AND CONCERN.

AND, AGAIN, WHAT I THOUGHT WAS REHRRKABLE PRon

MR. MANSFIELD WAS, WHEN HE.DID SPEAK ABOUT IRREPARRBLE

INJURY, THAT THE HRJURITY OF H I S STATEHENTS R E W Y DEALT WITH

THE CONCERNS AND m R S O F THE TENANTS AND THE LANDLORDS.

AND, INSTEAD, I THINK WE SHOULD ALL BE I N T H I S COURTROOM

TRYING TO REDUCE THOSE CONCERNS AND FEARS, AND THAT'S

UPPERMOST I N UY CLIENT'S HIND.

M Y CLIENT IS NOT A PRIVATE BUSINESSPERSON. IT IS A

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CWPUTER-AIDED TRANSCRIPTION

I
39 TODAY. NOW, THERE ARE OTHER CLAIMS O F IRREPARRBIZ INJURY, AS I SEE I T , BUSINESS AND ECONOMIC CONCERNS O F ROY AND MRRY GARRETT, AND WHAT APPEARS TO ME TO BE ELlSTLY AN ECONOMIC CONCERN, OR AN ALLOCATION OF RESOURCES CONCERN OF THE C M I T T E E , WHICH I S THE FIFl'H PLAINTIFF. I ' L L GET TO THOSE I N A MOUENT.
AGAIN, I ' D LIKE TO REALLY FOCUS ON WHAT I THINK THE TWO ISSUE8, THE REAL HUMAN IMPACT THAT T H I S COURT SHOULD BE
JANE W E 2 . AND I F THE C W R T WILL PERHIT ME, I ' D FIRST LIKE TO
SPEAK WITHOUT BENEFIT OF RELIANCE ON THE INTERPRETATION MEI43RANDUll THAT THC CHIEF EXECUTIVE OFFICER O F THE CITY, THE
CITY WAGER, HAS ENTERED INTO. I 1 n WING TO L E ~ v EIT TO
MR. LINCOLN THE TASK m R EXPLRINING THAT. THE COURT: ALL RIGHT.
-- HR. GARRETT: FOR T H I S AT T H I S POINT, I WANT TO
WORK JUST EXCLUSIVELY FROMTHE TEXT OF THE O R D I N ~ C E . AND I BELIEVE THERE ARE THREE CRUCIAL POINTS WHERE
THE PLAINTIFFS HAVE J U S T SIMPLY INCORRECTLY STATED THE CONTENTS O F THE ORDINANCE, OR ADDED ADDITIONAL PROVISIONS IN THE ORDINANCE WHICH DON'T EXIST. AND BY DOING SO, THEY HAVE HAD TO DO THAT, I THINK, I N FACT, I N ORDER T O W I S E THE CLAIMS THAT THERE COULD BE IMMEDIATE EVICTIONS, OR THAT T H I S ORDINANCE AUTHORIZES EVICTIONS1 OR THAT I N S W E WAY THERE I S
COMPUTER-AIDED TRANSCRIPTION

CITY AGENCY.

1 UY CLIENTS DEAL EVERY DAY WITH CONCERNS OF ALL

2 1
3 1
4 1

THE RESIDENTS O F THE CITY. AND I THINK THE COURT SHOULD
-- AGAIN CONSIDER VERY CAREFULLY WHAT WHETHER THERE ARE
CONCERNS HERE, AND WHAT THEY ARE TRYING 10 DO TO REWCE WHAT

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,

RERLLY I S THE ENTIRE BASIS FOR T H I S T.R.0. HEARING, I S THERE

AN IRREPARABLE INJURY TO THE FIVE NAMED PLRINTIFFS THAT ARE

IN THIS CASE.

NOW, WHEN I lOOK AT THE T. R.O. PAPERS THAT WERE
-- FILED, TWO VERY ISSUES TWO THINGS REALLY JUMP OUT AT ME

F R W THE PAPERS AND CAUSE ME A GREAT DEAL O F CONCERN. AND,

I11

E'RANKLY, I F THEY WERE TRUE, I WOULD THINK THAT THE COURT

1

WOULD WANT TO ENTER A TWPORARY RETRAINING ORDER RIGHT AWAY

TO DEAL WITH THE IBSUE.

AND I SPEAK OF JANE DOE 1 AND JANE DOE 2. WE HAVE A

LIMITED FACTUAL DISCUSSION ABOUT WHAT THEIR SITUATIONS ARE,

BUT AT LEAST I N PARTS OF THE DECLARATION, THEY SPEAK TO A

CONCERN THAT THEY WOULD BE EVICTED FROM LONG-TERM TENANCIES.

I THINK JANE DOE 1 SPERKS PERHAPS O F BEING I N THE

W E APARTMENT BUILDING FOR NINE YEARS. THEY BOTH HAVE MINOR

1 CHILDREN. AND I F THE IMPACT OF T H I S ORDINANCE I S THAT THEY
20

I

ARE GOING TO BE EVICTED AND THROWN OUT ON THE STREET BEFORE

T H I S COURT CAN RENDER A DECISION ON THE MERITS, I THINK

,-

THAT'S A GREAT DEAL O F CONCERN.

AND I ' D LIKE TO M) THROUGH THE ORDINANCE AND M P L A I N

HOW WE DON'T FEEL THAT TH?T I S AN INJURY THAT WILL HAPPEN

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4 0

A MISUNDERSTANDING ABOUT HOW THE LEGAL STATUS O F THE TENANTS

WILL BE DETERMINED.

F I R S T O F ALL, THE ORDINANCE DOES NOT CONTAIN A

RETROACTIVITY CLAUSE. I T DOES NOT CONTAIN EXPRESS LANWAGE

WHICH BTATES THAT I T APPLIES TO TENANCIES WHICH WERE CREATED

BEFORE THE EFFECTIVE DATE OF THE ORDINANCE. AND THE

OPERATIVE LANGUAGE O F WHAT I S PROHIBITED BY THE ORDINANCE I S

LETTING, LEASING OR RENTING A aPELLING UNIT. I T W E S NOT
-- SAY, AND WE INTEND TO APPLY TO RENTALS WHICH OCCURRED THE

ACT O F RENTING, WHICH OCCURRED BEPORE THE DATE O F THE

ORDINANCE.

NOW, WITHOUT GETTING INTO ANY INTERPRETATION MEMO,

THE PLAIN LANWAGE O F T H I S ORDINANCE DOES NOT SAY, AND WE

INTEND TO APPLY TO TENANCIES WHICH WERE CREATED BEFORE THE

DATE O F THE ORDINANCE, TO RENTAL DECISIONS WHICH WERE HRDE

BEFORE THE DATE O F THE ORDINANCE. SO I BELIEVE THAT THE

-- COURT CAN EASILY S E E THAT I T ' S

FRM( THIS LRNOUAGE HERE,

THAT NO TENANT I N AN EXISTING TENANCY, HAS ANY FEAR OF THAT

TENANCY BEING TERMINATED BY THE EFFECTIVENESS O F T H I S

ORDINANCE.
-- I N A SECOND AREA AND T H I S I S SUBSECTION (D) O F
-- SECTION 1 6 ( E 1 ( 2 ) FOR ENFORCEUENT, I ACTUALLY WROTE WWN

WORD FOR WORD WHAT MR. TENCER SAID T H I S SECTION MWWT. THAT

I T , QUOTE, REQUIRES A LANDLORD TO CCMMENCE UNLAWFUL DETAINER

ACTIONS WITHIN TEN DAYS.

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> 2 3 4 5 6 7 8 9 10 11 12 13
I 14
15 16 17 1B 19 20 21 22 23 24 25

4 1

YOUR HONOR, THAT'S NOT WHAT TH1S SECTION SAYS. IT
-- SAYS THAT IF IF AFTER TEN DAYS, FULLOWING RECEIPT OF A

WRIlTEN NOTICE PRON THE CITY, THAT A VIOLATION HAS OCCURRED,

AND THAT THE IHHIGRATION STATUS OF ANY ILLE~ALALIEN HAS BEEN

VERIFIED, PURSUANT TO UNITED STATES CODE, TITLE B, SECTION

1373, THE OWNER OF THE W I N G UNIT FAILS TO CORRECT A

VIOLATION OF THE SECTION, THE CITY SHALL DENY OR SUSPEND THE

BUSINESS LICENSE OF THE DWELLING UNIT, AS PROVIDED IN SECTION '

16235.

THE COURT: THAT'S WHERE YOU LOSE ME, COUNSEL.

WHERE IS THE VIOLATION?

WR. GARRETT: I'M SORRY?

THE 'COURT: WHERE IS THE VIOLATION? SOMEWHERE IN

THERE, A VIOLATION HAS BEEN DETERMINED BEFORE THAT LETTER

GOES TO THE LANDLORD.

MR. GARRETT: RIGHT.

'

THE COURT: HOW IS THAT VIOLATION DETEMINED?

UR. GARRETT: WELL, TO BACK UP FROM UY POINT AND TO

ANSWER YOUR QUESTION, THERE IS A COMPLAINT OF SOnE SORT WHICH

I9 SUBHITTED TO THE CITY.

THE COURT! IS THAT COMPLAINT PROVIDED TO THE

LANDLORD?
-- MR. GARRETT: WELL, THE LANDWRD THE CITY, AFTER

RECEIVING A COMPLAINT, THE NE7.T STEP UNDER THE ORDINANCE IS

M R THE CITY TO CONTACT THE IRNDLORD.

COUPUTER-MDED TRANSCRIPTION

42

O

THE COURT: DOES THE CITY GIVE NOTICE, A COPY OF THE
-- WUPLAINT TD THE LANDLORD, AS ANY Cl'HF,R WHEN ANY OTHER

3 TYPE OF VIOLATION IS CITED, THAT THE ACCUSED PERSON RECEIVES

4 NOTICE OF THE VIOLATION AND HAS AN OPPORTUNITY TO CONFRONT,

5

-- AT SC44E KEANINGNL TIME, THE ACCUSER? OR IS THIS

6

-- MR. GARRETT: THERE IS SEWRRL QUESTIONS

7

THE COURT: YEAH, THAT'S SEVERAL QUESTIONS.

8

MR. GARRETT: RIGHT.

9

THE COURT: PLAINTIFF RAISES IN ITS DECLARATION

10 CIRCUMSTANCES WHERE SOHUINE UAY THREATEN AN OCCUPANT OF A

11 XCME TO TURN THEM IN, BECAUSE THEY FAILED TO PAY A BILL, OR

12 TO TAKE SOME OTHER ACTION.

13
j 14

MR. GARRETT: RIGHT. THE COURT: THE ORDINANCE STATES THAT A CONPLAINT IS

15 FILED WITH THE CITY. IT DOESN'T SAY IT'S VERIFIED UNDER

16 OATH, UNDER PENALTY OF PERJURY.

17

THEN T H E M IS A NOTION THERE THAT UPON INVESTIGATION

18 AND FINDING REASONABLE CAUSE. THE QUESTION IS WHO

19 INVESTIGATES? DOES THE CITY OFFICIAL GO OUT AND CHECK THE

20 VERACITY OF THE COnPLRINT WITH THE FILER, OR IS THE CWPLAINT

21 FILED, AND THEN THE CITY RUNS OFF WITH IT BY SENDING A NOTE

22 TO THE LANDLORD?

23

UR. GARRETT: I THINK THE ORDINANCE IS VERY CLEAR

24 THAT THE BUSINESS LICENSE DIVISION OF THE CITY IS INSTRUCTED

25 TO OBTAIN IDENTITY DATA FRCH THE WIDLORD.

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43

1

THE COURT: BASED UPON A COMPLAINT THAT'S NOT

2

VERIFIED?

MR. GARRETT: THE ~RDINANCEDOES NOT REQUIRE THE

COHPLRINT BE .VERIFIED IN THE TRADITIONAL SENSE OF SUBMITTED

UNDER PENALTY OF PERJURY.

THE COURT: AND THE ORDINANCE DOES NOT REQUIRE THE

CITY TO INVESTIGATE TO DETEMINE WHETHER OR NOT THERE IS

REASONABLE GROUNDS TO BELIEVE THAT THE COMPLRINANT HA9
-- MADE YOU KNOW, THAT THE I N F O W T I O N CONTAINED IN THE

COMPLAINT SHOULD BE RELIED UPON.

UR. GARRETT: WELL, YOUR HONOR, THE ORDINANCE IS

VERY CLEAR THAT THE CITY IS INSTRUCTED TO LOOK AT THE

COMPLAINT TO MAKE SURE THAT IT IS N M BASED SOLELY OR

PRIMARILY ON THE BASIS OF NATIONAL ORIGIN, ETHNICITY OR

RACE.

THE COURT: HOW DOES IT W THAT?

' I MEAN, IT SEEMS LIKE THAT'S WHERE THE CITY W A G E R SHOULD HAVE COME IN WITH SOHE REGULATIONS, IF T W W A G E R HA9

THAT AUTHORITY. AND YE NEED TO GET TO THAT POINT. AND I

GUESS WE'LL GET TO THAT POINT IN A HOHENT.

BOT IF IT CAN'T BE BASED ON RACE, NATIONAL ORIGIN,

ALIENAGE, WHAT IS IT BASED ON? I UERN, WHAT COULD IT BE

BASED ON?

Hit, GARRETT: SOMEONE COULD SAY, I'M HERE

ILLEGALLY.

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THE COURT: AN AMISSION?

MR. GARRETT: YES.

3

THE COURT: WHAT COULD IT BE BASED ON, OTHER THAN AN

4 ALUISSIONr IF YOU DON'T GET TO ALIENAGE, OR COLOR,

5 NATIONALITY?

WR. GARRETT: STATEMENTS BY THIRD PARTIES, THAT THEY

BELIEVE THE PERSON IS NOT --'DOESN'T HAVE LAWFUL IMMIGRATION.

10

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THE COURT: WHAT ABOUT THE SWEDISH PERSON WHO IS A HOUSEKEEPER IN ANOTHER PART OF TOWN WH0'9 OVERSTAYED THE

I

VISA? HOW WOULD THE CITY KNOW ABOUT THAT1 SOMEONE FILES A

I

MR. GARRETT: THAT'S RIGHT, YOUR HONOR.

AND THERE IS A W T OF LATITUDE M R COMPLAINTS. THE CHECK IN THE PRDCESS IS WRITTEN I N M THE ORDINANCE, WHICH IS

THE CITY CANNOT DO ANYTHING OTHER THAN OBTAIN VERIFICATION

FRDn THE FEDERAL GOVERNMENT THAT THE PERSON IS AN ALIEN WHO

IS NOT LAWFULLY PRESENT IN THE UNITED STATES. SO THERE IS EXCLUSIVE RELIANCE UPON THE FEDERAL

SYSTEM M R THAT STATEMENT THAT THE CITY, BY THE WORDS OF THE
ORDINANCE, ALL DISCRETION ABOUT WHETHER OR NOT, WHAT THE
-- INHIGRATION STATUS IS OF THE INDIVIDUAL IN QUESTION -- THE COURT: HOW m YOU
MR. GRRRETT: -- IS TAKEN W A Y PROM THE CITY.
THE COURT: HOW YOU RECONCILE THE ORDINANCE, OR

COMPUTER-AIDED TRANSCRIPTION

45

) .1
2.

THE MEMORANDDM. WITH THE FEDEPAL REGISTER I'VE TAKEN JUDICIAL rnICE OF?

3

MR. GARRETT: WELL, YOUR HONOR, I'LL LET MR. LINCOLN

4

ADDRESS IT IN DETAIL. BUT WHAT I WILL SAY IS, MY READING OF

5

THE FEDERAL REGISTER, IT SAYS, IN CERTAIN CASES, THE OUTPUT

6

FROM THE FEDERAL SYSTEM IS, WE WN'T KNOW, RATHER THAN

7

-- THIS THERE IS A FINAL ORDER OF DEPORTATION IN THE SYSTEM

8

FOR THIS NAMED INDIVIDUAL.

9

SO THERE ARE SITUATIONS W E R E THE RESPONSE BACK FROM

10 THE FEOEPAL GOVERNMENT IS SOHETHING OTHER THAN, WE ARE

11

CONFIRPIING THAT THIS PERSON IS AN ALIEN, WHO IS NOT LAWFULLY

12

PRESENT IN THE UNITED STATES.

13

THE COURT: ALL RIGHT. THANK YOU.

I4

YOU MAY PROCEED.

15

MR. GARRETT: AND THE CITY MANAGER'S UEMORANDUH ADDS

16

A GLOSS TO THIS, WHICH IS, IN THE RESPONSE I THINK THE WORD

17

"CONCLUSIVELY" IS USED TO PROVIDE THAT THE PERSON IS AN ALIEN

1% WHO IS NOT LAWFULLY PRESENT IN THE UNITED STATES.

19

MY POINT, YOUR HONOR, ON THE IRREPARABLE INJURY, IS

20

-- THAT ONE HAS m READ IN THINGS TO THE ORDINANCE, EXPRESS

2 1 ADD THINGS TO REACH THE RESULTS WHICH THE PLAINTIFFS CLAIM.

22

AND AS I WAS DISCUSSING THE TEN-DAY PROVISION, IT

23

DOESN'T SAY, THE LANDIJJRD IS COmANDED TO EVICT SOMEONE.

24

NOR, CERTAINLY IN A SITUATION, SOMEONE COULD ENTER INTO A

25

TENANCY IN A MONTH THAT VIOLATES THE ORDINANCE, WITH AN

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ILLEGAL ALIEN, ICNOWINGLY.

AND THEN THE CITY WO;ULD KNGW ABOUT IT UNDER THE

ORDINANCE, IT WOULD BE A PROSPECTIVE APPLICATION. THE CITY

ROULD SAY, THIS IS A VIOLRTION. AND THE LANDLORD SAYS,

YOU'VE GOT WE. YOU KNOW, I AGREE. I'VE RENTED TO AN ILLEGAL

ALIEN. THEN ThE TEN-DAY PROVISION KICKS IN. THERE M Y BE

SITUATIONS WHERE THE LANDLORD CAN DO NOTHING.
-- AS THE JANE W E DECLRRATION STATES I BELIEVE IT'S
JANE WE 1 SAYS EXPRESSLY THAT HER RENTAL A G M ~ N DTOES NOT

HAVE ANY PROVISION FOR CANCELLATION OF THE TENANCY BASED ON HER IMMIGRATION STATUS.

THERE IS NOTHING IN THIS ORDINANCE WHICH TRIES TO

RBACH OUT AND CHANGE STATE LAW. IT DOESN'T SAY THAT THE

LRNDLORD HAS TO C M E N C E EVICTION PROCEEDINGS. IF A LANDLORD

ENTERS INTO A TENANCY THAT VIOLATES THE ORDINANCE, AND FOR

( 16 WHATEVER REASON DOES NOT HAVE THE ABILITY TO CORRECT THE

I

VIOLATION, THE REMEDY THAT'S GIVEN IN THE ORDINANCE IS NOT

THE POLICE BE AUTHORIZED TO GO IN AND DRAG THE PERSON OUT,

BUT SIMPLY THAT FOR TH3.T UNIT, THE IANDLQRD CAN NO LONGER

COLLECT RENT.

NOW, FOR MULTIPLE VIOLATIONS, THE LANDLORD MAY FACE
-- WRTHER CONSEQUENCES, BUT NONE OF TO READ INTO THIS AND

ATTEMPT TO PREEMPT STATE LANDLORD/TENANT LAW, OR TO FORCE

EVICTIONS, ESPECIALLY IHKEDIATE EVICTIONS, IS JDST A GROSS

OVERREADING OF THE ORDINANCE.

I

1

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AND CONING BACK TO THE TWO H A M S THAT WE'RE MOST

CONCERNED ABOUT HERE, ARE PEOPLE GOING TO BE EVICTED. THERE

IS NOTHING IN THE TEXT OP THE ORDINANCE, NOT EVEN GOING TO

THE CITY MANAGER'S INTERPRETIVE MEMORANDUM, WHICH WOULD

PROVIDE TOR THAT CONSEQUENCE.

AND, AGAIN, IN THE CASE OF THE JANE DOES, m R TWD
SEPA~ATEREASONS, FIRST OF ALL, THERE IS NOTHING IN THE

ORDINANCE WHICH MAKES IT APPLY TO THE TENANCIES WHICH ARE

CREATED BEFORE THE DATE OF THE ORDINANCE. AND TO READ IN A

RETROACTIVITY CLAUSE IS TORTURING THE LANGUAGE.

SECONDLY, THERE IS NOTHING IN THE ORDINANCE THAT

COMPELS A LANDLORD OR AUTHORIZES A LANDLORD TO C O W N C E

1I13

EVICTION PROCEEDINGS WHERE THE LANDLORD WESN'T NAVE ANY

14

BASIS FUR EVICTING THE TENANT. AND WE HAVE ONE OF THE J8NE

(
I

W E 9 WHO SAYS EXPRESSLY, IN MY RENTAL AGREEMENT, THERE IS NO

PROVISION FOR THAT. AND IN THAT CASE, IF THIS ORDINANCE

SOMEHOW APPLIED TO THAT TENANCY, UNDER THE PLAIN RERDING OF

THE ORDINANCE, THE LANDLQRD IS NOT GIVEN ANY POWER TO TRY TD

TERPIINATE THE ORDINANCE.

1 THINK TO SET UP A STRAW UAN AND A STRAW-t%%N

ALLEGATION OF H A M HERE, WE'VE HAD THIS WHOLE ELREORATE SUPER

STRUCTURE ERECTED THAT SOMEHOW THE CITY IS TRYING TO INSERT

ITSELF IN LANDLORD/TENANT LAY, AND THAT IT MIGHT IMMEDIATELY

EVICT PEOPLE. AND NO WONDER PEOPLE ARE CONCERNED AND

FEARNL. AND, HOPENLLY, THE CITY CAN MAKE SURE THAT NO ONE

I

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40
BELIEVES THAT THAT'S THE CASE UNDER THE OPERATION OF THE I ORDINANCE.
THE COURT: AND IT WAS, IN YOUR MIND, THE CITY'S PRERDGATIVE TO CHOOSE THE BUSINESS AND LICENSE DIVISION AS A WAY TO ENFORCE THE ORDINANCE, AS OPPOSED TO SOME OTHER SERVICE ENTITY OF THE CITY?
MR. GARRETT: YES. YES, IT WAS THE CITY'S PREROGATIVE. AND I BELIEVE THE WISDOII OF THAT IS THIS IS AN ORDINANCE WHICH REGULATES THE BUSINESS OF BEING A LANDLORD IN THE CITY OF ESCONDIW.
THE CHOICE OF THE BUSINESS LICENSE DIVISION INDICATES THAT THIS IS NOT INTENDED TO BE AN ORDINANCE REGULATING IANDLORD TENANCY LAW, THAT IT'S AN ORDINANCE TRYING TO REGULATE ECIPLOYMENT, OR TRYING TO REGULATE ANYTHING OTHER THAN THE CONDUCT OF LANDLORDS AND THEIR CREATION OF NEW TENANCIES FOR PEOPLE WHO DON'T HAVE U W N L ImIGRATION STATUS.
THE COURT: WHY IS IT TITLED THE WAY IT IS? WHY IS
-- THE ORDINANCE TITLED THE YAY IT IS, IF IT'S A BUSINESS IF
IT'S A BUSINESS APPROACH TO REGULATING TENANCIES IN THE CITY? MR. GARRETT: WELL, HARBORING, THE TRADITIONAL
HEANING OF HARBORING, IS GIVING SOMEONE A DWELLING, A PLACE OF RESIDENCEJ AND THAT'S WHY THE WORD "HARBORING" IS USED.
IN ADDITION, THE FEDERAL GOVERNMENT HAS USED THAT
-- TERM. AND I BELIEVE THE STATE AGAIN, WE DON'T WANT TO

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HOVE, GIVEN THE NEED TO NOT IN ANY WAY VARY FROM THE T E R W OF

THE WAY THE FEDERAL W V E R N W T HAS PROCEEDED. I THINK USING THE SAME FEDERAL GOVERNMENT'S TERMS IS THE APPROPRIATE WAY TO

PROCEED.

5

NOW, WHAT DOES WARBORING NEAN? AND IT'S PRECISELY

6 DEFINED IN THIS ORDINANCE HERE. AND UNLIKE THE FZDERAL

7 GOVERNMENT,, THE CITY CLEARLY CAN'T PREEMPT FEDERAL LAW, AND

IT CLEARLY CAN'T REYRITE STATE LAW. SO THE CITY IS LIMITED TO DEFINING WHAT'IT'S TRYING TO REGULATE WITH THE LANDLORDS

IN A WAY WHICH WESN'T INTERFERE WITH EITHER STATE LAW OR

FEDERAL LAW.

THE COURT: REFRESH He. ARE YOU GOING TO DEAL WITH

THE ORDINANCE WITH RESPECT TO THE PURPOSE BEHIND IT, OR WILL

YOUR PARTNER W THAT?

MR. GARRETT: I'M W I N G TO LET MR. LINCOLN ADDRESS

THAT.

THE COURT: ALL RIGHT.

MR. GARRETT: I WILL JUST WRAP UP ON THE HARM.

THE COURT: ALL RIGHT.

MR. GARRETT: AGAIN. THE HOST COMPELLING ISSUE OF
m, WHICH I THINK IS THE HOST IMMEDIATE ISSUE HERE, AND THE

ONE THING WE SHOULD BE CONCERNED ABOUT, IS WHETHER OR NOT

PEOPLE WILL BE EVICTED AS A RESULT OF THE ORDINANCE.

24 .

AND I BELIEVE, WITHOUT EVEN RECOURSE TO THE

25

INTERPRETATION MEMORANDUM, THE PLAIN MEANING OF THE ORDINANCE '

0
0

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 ll 18 19 20 21 22 23 24 25

D3ESN1T PROVIDE FOR THAT. IN ADDITION, THE COURT SHOULD INTERPRET THE ORDINANCE IN A WAY WHICH DOESN'T LEAD IT INTO CONFLICT WITH STATE OR FEDERRL LAW.
,
AND THEN, FINALLY, FOR THE VERY REASON THE PLAINTIFFS HAVE STATED, I THINK IT'S IMPORTANT POR EVERYONE, TO TRY TO REDUCE THE FEAR AND UNCERTAINTY, AND RATHER THAN ARGUE ABOUT HOW THINGS MIGHT CHANGE, ACCEPT THE FACT THAT THE ORDINANCE SAYS WHAT IT SAYS, AND THE CITY W A G E R , THE CHIEF EXECWIVE OFFICCR OF THE CITY, IW MADE A DECISION.
MOVING TO THE OTHER INJURIES. I BELIEVE MR. GARRETT'S CONCERNS, ONE OF HIS CONCERNS IS THAT HE WOULD BE RWUIRED TO IMlEDIATELY EVICT TENANTS. I THINK I'VE ALREADY EXPLAINED WHY I DON'T BEE THAT ANYWHERE IN THE ORDINANCE, IN THE MEANING OP THE ORDINANCE.
HE'S ALSO INDICATED A CONCERN THAT HE HAS QUESTIONS
-- FROM LANDLORDS AND FRDH OR FROM TENANTS, AN0 THEY'RE
FEARNL. AND, AGAIN, WE UNDERSTAND THE FEAR AND, HOPEFULLY, WE CAN ALL REDUCE THAT FEAR BY BEING VERY CLEAR ABOUT WHAT THE ORDINANCE MEANS AND WESN'T MEAN.
THERE WAS AkSO A DISCUSSION AT THE VERY END OF MR. MNSFIELD'S STATEMENTS ABOUT W D L O R D S THRERTENING TENANTS, AND THE VERY SEVERE PROBLEM OF SOHEONE WITH AN ILLEGAL ALIEN STATUS, WHO IS NOT LAWFULLY IN THE UNITED STATES, BEING FEARFUL THAT THERE WOULD BE RETALIATION AS A RESULT OF THAT.

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51
-- -- AND I NOTED VERY CLEARLY, IN FACT THAT IN THE
DECLARATIONS OF CONSUELJJ W T I N E Z AND ESTELA DE M S RIOS, THAT WERE FILED BY THE PLAINTIFFS, THERE IS A GRERT DEAL OF EXPLANATION TO THE PHENOMENON OF EXPLOITATION OF ILLALIEN TENANTS BY LANDLORDS. AND THAT VARIOUS PEOPLE SAID, WELL, 1% GOING TO RAISE YOUR RENT, OR I'LL REPORT YOU UNDER THIS ORDINANCE, OR OTHERWISE.
THAT IS A VERY BIG PROBLEM. AND, IN FACT, THAT IS A
-- PROBLEM WHICH LED ONE OF THE REASONS WHICH LED THE CITY,
AND EXPRESSLY STATED IN THE FINDINGS WITHIN THE ORDINANCE, AS TO THE INTENT OF THE ORDINANCE, THIS CONCERN THAT TENANTS
WILL BE FEARFUL TO REPORT VIOLATIONS OF LANDLORD/TENANT LAW.
AND THAT, THEREFIIRE, TENANTS WITHOUT LEGAL IMMIGRATION STATUS ARE NOT GOING TO REPORT VIOLATIONS, WILL SUFFER VIOLATIONS, OION'T HAVE ESTABLISHED LEASES AND PROBLEMS LIKE THAT.
NOW, THERE CERTAINLY IS A PUBLIC POLICY --
THE COURT: EXCUSE ME. THAT'S A GOOD POINT YOU RAISE.
Y W MENTION THAT PERSONS WHO ARE UNDOCUMENTED M Y NOT HAVE LEASE AGREEMENTS, TENANCIES. WHAT'S THE PURPOSE OF THE ORDINANCE, IF THAT'S YOUR FOCUS?
-- MR. GARRETT: WELL -- THE COURT: BECAUSE YOU'RE NOT YOUR NET IS NOT
W I N G TO REACH EVERYONE APPARENTLY THAT THE CITY INTENDS TO REACH, IF YOU HAVE FOUND THAT UNDOCUMENTED ALIEN3 U4Y NOT
I COMPUTER-AIDED TRANSCRIPTION

52
HAVE TENANCIES AGREEMENTS. MR. GARRETT: ~ L L ,IF THERE IS NO WRITTEN
AGREEMENT, THE LAW PRESUMES THAT IT'S A MONTH-TO-MONTH ' TENANCY, RENEWABLE WITHOUT TURTHER ACTION. AND IN THE INTERPRETIVE HEPlORANDUM, THE MANAGER GOES INTO THAT.
THE COURT: SO THAT'S A HONTH-TO-MONTH, THAT'S RENEWABLE EACH MONTH?
MR. GARRETT: RIGHT. THE COURT: WWLDN'T THOSE PERSONS WHO ARE CURRENTLY
ISSUE IF THIS ORDINANCE WENT INTO EFFECT, BECAUSE EACH MONTH THEY START A NEW TENANCY, AND IT'S SUBJECT TO THE ORDINANCE?
IIR. GARRETT: WELL, THE INTERPRETATION EIrnORANDUH
-- SAYS THAT IT REQUIRES WHERE THE TENANCY ADTOHATICALLY
RENEWS. AND THERE ARE RENTAL AGREEMENTS ATTACHED TO MR. GARRETT'S DECLAFATION, FOR EXAMPLE, THAT ALL PROVIDE FOR A U T W T I C RENEWALS OF TENANCY IF NO ONE GIVES NOTICE.
THE CITY'S INTERPRETATION OF THE ORDINANCE IS, UNLESS THE LANDLORD DOES SOMETHING AFFIRMATIVELY TO CREATE A NEW TENANCY, MERELY ALLOWING THEM TO REHEW BY OPERATION OF LAW IS NOT THE CREATION OF A NEW TENANCY, D3ES NOT SUBJECT THE LANDLORD TO THE ORDINANCE.
SO I BELIEVE ONE OF THE JANE DOES TALKS ABOUT HAVING A RENTAL AGREEMENT, THE OTHER ONE TALKS ABOUT RENEWALS BY MONTH TO MONTH1 BUT THEY RRE ESTABLISHED TENANCIES. NEITHER

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,

1

OF THE DECLARATIONS INDICATE THAT THERE IS A TENANCY THAT

2

WILL con^ TO AN END AND THAT REQUIRES AFFIRPUTIVE ACTION BY

3

THE LANDLORD TO RENEW.

4

BACK TO THE QUESTION OF THE TENANTS BEING CONCERNED

5

AND THE LEVERAGE THAT WOULD BE UPSET. NOW, CLEARLY THERE IS

6

A PUBLIC POLICY ISSUE HERE. AND ONE OF OUR PURWSES T O M Y IS

7

NOT TO DEBATE THE PUBLIC POLICY. BUT I WOULD SIMPLY NOTE

8 THAT THE EVIL, THE PROBLEM, THE HARM, THE IRREPARABLE INJURY

9

THAT THE PLAINTIFFS TALK ABOUT, WHICH IS PEOPLE WHO ARE HERE

( 10

IN AN UNDOCUMENTED STATUS.

I

I

AND I RMEUBER A STATEMENT A NUHBER OF YEARS AGO BY

A POLICE OFFICER IN SAN DIEW ABOUT THE PROBLEM, IF YOU
-- HAVE IF SOMEONE'S IN THE UNITED STATES, BUT OUTSIDE THE

LAW, AND DOESN'T FEEL U)EIFORTABLE HAVING RECOURSE WITH THE

LAW, OR BEING RETALIATED AGAINST.

THERE ARE CERTAINLY TWO DIFFERENT, VERY COMPETING

1 PUBLIC POLICY ISSUES ABOUT HOW TO DEAL WITH THAT PROBLEM.
17

I

ONE PUBLIC POLICY IS. WELL, WHEN THEY ARE HERE, PLEASE REMOVE

ANY POSSIBILITY THAT THEY WOULD BE AFFECTED BY THE NATURE OF

THEIR ImIGRATIOU STATUS.

MY CLIENT, THE CITY, CHOSE TO ACT UPON IT, A

DIFFERENT VIEW, WHICH IS THAT THE WAY TO DEAL WITH THE

PROBLEM LONG-TERM IS TO PREVENT THE CREATION OF NEW TENANCIES

25

I

WHO PUT PEOPLE IN THE POSITION WHERE THEY CAN BE EXPLOITED. THE COURT: WAS THAT DISCUSSED AT THE CITY COUNCIL

COMPUTER-AIDED TRANSCRIPTION

54

MEETING?

nu. GARRETT: YOUR HONOR, IT'S STATED IN THE

ENDINGS IN THE ORDINANCE. AND AS MR. LINCOLN WILL STATE,

WHRT IS APPROPRIATE DETERMINATION FQR LEGISLATIVE INTENT.

IT'S ENOVGH POR ME TO SAY THAT THERE WERE FIVE VERY

DIFFERENT MEMBERS OF THE CITY COONCIL, JUST LIKE THERE ARE

435 VERY DIFFERENT MEMBERS OF THE HOUSE OF REPRESENTATIVES.
( 1 8 AND IN NEITHER CASE, YOU CAN TAKE THE INDIVIDUAL VIEWS OF OHE
PERSON WHO SPEAKS AT THE MEETING AS REFLECTIVE OF THE

ORDINANCE WHICH WAS ADOPTED BY THE COLLECTIVE.

IN CLOSING ON THE HARM ISSUE, Y W R HONOR, I THINK

THAT'S THE ISSUE IN FRONT OF THE COURT TODAY. 1.n GURPRISED

AND HAPPY THAT THE COURT IS SO WILLING TO DELVE INTO THE

MERITS OF THE CASE, AND PERHAPS YOU'LL DECIDE THE MERITS OF

THE CASE TODAY.

BUT WHAT I'M USED TO IN A TRADITION T.R.O. HEARING

IS PDCUSING ON INJURY AND H A W TO REAi PEOPLE, AND I BELIEVE

THAT THE WAY THAT THE PLAINTIFFS HAVE PRESENTED THEIR CASE

INDICATES THAT THIS IS MORE ABOUT AN IDEOLOGICAL STATEMENT

AHD #ORE ABOUT CREATING CONFUSION THAN A C T U W Y PROTECTING

REAL PEOPLE WHO HAVE REAL CONCERNG.

THE CMIRT: BEFORE YOU SIT WWN, COUNSEL, WITH

RESPECT TO BALANCING THE HARDSHIP. WHAT IS THE HARDSHIP OF

I 24

THE CITY WAITING THREE TO POUR MONTHS TO TAKE TkIS ACTION?

1

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HONOR, AND THAT IS, THE EVIL THAT THE LEGISLATION IS DESIGNED TO ADDRESS, AND THAT THE DE UJS RIOS AND CONSUELO MARTINEZ DECLARATIONS OF THE PLAINTIFFS TALK ABOUT, WHICH IS THAT YOU HAVE PEOPLE WHO ARE IN A POSITION IN THE CITY TO BE EXPLOITED BECAUSE OF THEIR ONWCUMENTED STATUS.
AND, ADMITTEDLY, THE CITY, THIS ORDINANCE IS NOT
-- GOING TO IT'S GOING TO WORK OVER TIME. IT'S W I N G TO
REDUCE THE NUMBER OF THOSE TENANCIES. THERE IS NOT GOING TO BE AN IMMEDIATE CHANGE. BUT THE CITY WOULD LIKE TO GET STARTED ON T~IATPROCESS.
AND SO BY D E ~ Y I N GTHE IMPLEMENTATION OF THE ORDINANCE, WE DELAY THE EFFECT OF THAT LEGISLATIVE PROCE8S.
THE COURT: WHAT'S THE PREJUDICE7 IN THAT THIS IS 2006, I WOULD ASSUME THIS ISSUE HAS BEEN PERCEIVED BY THE CITY OF ESCONDIDO FOR A NUMBER OF YEARS UAYBE. I HAVEN'T READ THE ENTIRE FILE. I mN'T HAVE A TRANSCRIPT.
BUT WHAT'S THE PREJUDICE IN STAYING THE EFFECTIVE DATE OF THE ORDINANCE m R 90, 120 DAYS OR SO?
MR. GARRETT: WELL, YOUR HONOR, THE SHORT ANSWER TO YOUR QUESTION IS, THERE IS NO ACTUAL PREJUDICE DTHER THAN WHAT I'VE JUST DESCRIBED, WHICH IS THE FRUSTRATION OF THE LEGISLATIVE PURPOSE, AND I WANT TO BE VERY CLEAR ABOUT THAT.
-- IT'S A SHORT IT'S A LEGISLATIVE PROCESS THAT WORKS OVER
TIME. THE ONLY OTHER THING I WOULD MENTION IS THAT THERE

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IS A STI6MA ATTACHED TO A T.R.O. BEING GRANTED. IN FACT, I THINK PART OF THE REASON FOR THE T.R.O. BEING SOUGHT IS NOT
-- 80 MUCH TO PROTECT INDIVIDUALS, BUT TO SORT OF TO CREATE
THE HIGHLY-PUBLICIZED VICTORY THAT A T.R.O. IS GRANTED, AND SO ANY TIME THAT A PRIVATE INDIVIDUAL HAS A
T.R.O. GRANTED AGAINST THEM, OR A CITY OR AN AGENCY, THERE IS A STIGMA ATTACHED TO THAT, THAT S W H O W THEY DID SOMETHING WRONG.
THE COURT: THANK YOU, COUNSEL. MR. LINCOLN. KR. LINCOLN: MAY IT PLERSE THE COURT, DON LINCOLN FQR THE CITY OF ESCONDIDO. ONE OF THE ISSUES THAT I'D LIKE TO ADDRESS IS THE POWER OF THE CITY W A G E R UNDER THE ESCONDIDO WRH OF GOVERNMENT. I HAVE 60ME PROVISIONS HERE FROH THE ESCONDIDO WVNICIPAL CODE. UNFQRTUNATELY, I DON'T HAVE COPIES. I CAN READ THEn INTO THE RECORD. SECTION 2-50: THE CITY MRNAGER SHALL BE THE ADMINISTRATIVE HEAD OF THE GOVERNMENT OF THE CITY UNDER THE DIRECTION AND CONTROL OF THE COUNCIL, EXCEPT AS OTHERWISE PROVIDED. SECTION 2.52: THE CITY W A G E R SHALL SEE THAT ALL LhWS AND O R D I W C E S OF THE CITY ARP; W L Y ENFORCED AND THAT ALL FRANCHISES, PERMITS AND PRIVILEGES GRANTED BY THE CITY ARE FAITHFULLY PERFOWED AND OBSERVED.

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1

UNDER THE C I T Y OF ESCONDIDO FORH O F GOVERNMENT, I T

2

I S THE C I T Y W A G E R , NOT THE MRYOR, NOT THE CITY COUNCIL, BUT

3

THE C I T Y MANAGER WHO SEES THAT THE LAWS AND ORDINANCES ARE

4

ENFORCED.

T H I S I S THE TYPE OF MEHORANDUH, T H I S I S THE TYPE O F

A W I C E THAT, WHENEVER A LAW I S PMSED, THAT THE CITY MANAGER

TAKES CARE O F AND ISSUES.

I T ' S INTERESTING THAT THE VERY ITEM THAT THE CODRT

TM)K J U D I C I A L NOTICE OF, JUST AT THE COMMENCEMENT O F T H I S

HEARING, WAS T H I S REFERENCE TO THE FEDERAL REGISTER. AND I

THINK, I N SOME RESPECTS, REVIEW O F THAT KIND O F HELPS

UNDERSTAND WHAT HAPPENS HERE, TOO.
-- I F I N THAT PARTICULAR REFERENCE, THERE WAS A

QUESTION O F HOW TO INTERPRET ONE O F THE ACTS, THE WORDS, HOW

DOES AN ENTITY KNOW THAT AN ALIEN I S NOT LAWFULLY PRESENT7

THE WORD "KNOW" OR "KNOWS" WAS NOT DEFINED I N THE

LEGISLATION.
-- THE NOTICE WAS HOW THEY THE REGULATION GAVE

I

UEANING TO THAT WORD. AND THEN THEY DESCRIBE THAT I N THE
-- CONTEXT O F THAT PARTICULAR LEGISLATION, YRWWING'' MEANS

AND THEN THEY GO ON, ONLY WHEN AN DNLAWEUL PRESENCE I S A

FINDING O F FFICT OR CONCLUSION O F LAW THAT I S MADE BY AN

ENTITY A S PART O F A FORMAL DETERPIINATION, ET CETERA.

THAT WASN'T WHAT THE LEGISLATION SAID. THAT'S WHAT

T H I S REGUIATION SAID. AGAIN, THE PEOPLE WHO ISSUED T H I S

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58

1

REGULATION WERE DOING THE SAME SORT O F ACTION WITH THE

2

FEDERAL LAW A S THE CITY W A G E R WAS DOING WITH THE CITY

I 3

ORDINANCE.

1

4

THE COURT: I S THE AOTHORITY THE SAME'IN EACH

5

INSTANCE7

6

-- MR. LINCOLN: YES. THE CITY WELL, ACTUALLY, THE

7

-- CITY IJANRCER, ALTHOUGH HE DOES I T ' S TKUE, HE DOES NOT HAVE

b

THE S P E C I F I C AUTHORITY, AS MENTIONED I N THE VISTA ORDINANCE,

9

HE HAS THE OSTENSIBLE AUTHORITY AND, I N FACT, HAS BEEN DOING

10

-- THAT A S PART O F H I S AS PART O F THE PROCESS.

11

THAT I S WHAT THE C I T Y MANAGER O F THE C I T Y O F

12

ESWNDILM DOES, IS ISSUE THIS TYPE OF R E G ~ T I O N .

13

41 1 4

OFF.

-- THE CODRT: COUNSEL EXCUSE ME FOR CUTTING YOU

15

COUNSEL, ONE O F MY CONCERNS I S THE NATURE AND SCOPE

16

OF THE MEMORANDUM.

17

MR. LINCOLN: YES.

18

THE COURT: WHETHER OR NOT THE MEMORRNDUM SIMPLY

19

-- IMPLEMENTS THE CITY'S LEGISLATION, THE ORDINANCE

20

MR. LINCOLN: YES.

21

-- THE CODRT:

OR WHETHER OR NOT I T AMENDS I T .

22

BECAUSE I T IMPhCTS SUBSTANTIVE ASPECTS O F THE ORDINANCE.

23

MR. L I N C O W : WELL, YOUR HONOR, AGAIN, TAKING THE

24

-- FIRST AND I ' M TURNING TO EXHIBIT B, TO CITY MANAGER

25

P H I L L I P S ' DECWUVLTION. HE STARTS O F F BY, ONE O F THE KEY

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I 59
INTERPRETATIONS, PROSPECTIVE ONLY. AND HE LOOKS AT, AND HE, I N FACT, POINTS TO THE LRNGUAGE O F THE ORDINANCE AS THE B A S I S FUR H I S INTERPRETATION.
AS WAS POINTED OUT BY COUNSEL, THERE I S NOTHING I N THE ORDINANCE THAT SAYS I T ' S RETROACTIVE, AND, I N FACT, NORHALLY ORDINANCES OR LAWS ONLY HAVE PROSPECTIVE EFFECT.
-- T H I S I S CLEARLY I T DOESN'T SAY I N THE ORDINANCE, WHETHER
I T ' S PROSPECTIVE, BUT I T CERTAINLY DOESN'T SAY I T ' S
RETROSPECTIVE. AND T H I S WAS A LOGICAL INTERPRETABATSEIDON
ON THE PARTICOLRR LANGUAGE.
-- NOW, THE C I T Y W A G E R AND, AGAIN, THERE I S N ' T A
DECLARATION PROH HIM, BUT I ' M SURE THAT AT SOME POINT, I F T H I S CASE WNTINDES, THERE WILL BE A I.OOK AT THE RECORD OF WHAT WENT ON I N FRONT OF THE CITY CODNCIL AND SOUE OF THE STATEMENTS. THERE ARE CLERR STATEMENTS BY SOME O F THE C I T Y COUNCIL MMBERS DURING THE COURSE O F T H I S THAT THEY DID NOT INTEND T O THROW ANYBODY OUT.
THE COURT: WAS THAT THE MINORITY VIEW OR THE MAJORITY VIEW?
MR. LINCOLN: YWR HONOR, I T I S MY UNDERSTANDING
-- THAT THAT THAT ONE OF THE INDIVIDUALS WHO WAS I N THE
THREE-PERSON MAJORITY S A I D THOSE WORDS. HE CERTAINLY DIDN'T
-- INTEND TO GET YOU KNOW, THROW ANYBODY OUT. -- NOW, AGAIN
THE COURT: I DON'T KNOW THAT THAT HATTER9. I ' M
I COMPUTER-AIDED TRANSCRIETION

1

60

JUST ASKING, ALL RIGHT.

MR. LINCOLN: A LOGICAL CONCLUSION, AGAIN, THE CITY

MANAGER USED THAT ALSO IN COMING UP WITH H I S INTERPRETATION.

HE WAS THERE. HE WAS PRESENT. I WASN'T, BUT HE WAS. THE SECOND ITEM, THE SAFE HARBOR. I THINK THAT WAS

ALSO MENTIONED. THAT'S CLEARLY IN THE ORDINANCE. THERE I S A
-- SAFE HARBOR THAT SAYS THE ORDINANCE DOES TALK ABOUT, AND

TIU\T I S SECTION 1 6 ( E ) ( 2 ) ( I ) .

UPON THE REQUEST OF A DWELLING OWNER, SUBJECT TO

-- T H I S SECTION, THE CITY S H W AND, AGAIN, I T REFERS TO THE

I 1

S P E C I F I C VERIFICATION ZANGUAGE FROM THE U.S. CODE, UNDER
-- SECTION 1 3 7 3 C VERIFY WITH THE FEDERRt GOVERNMENT THE

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LAWFUL IMMIGRATION STATUS.

THE NEXT SEHTENCE, THE PENALTIES I N T H I S SECTION

SHALL NOT APPLY I N TRE CASE O F OCCUPANTS WHOSE STATUS AS AN

ALIEN HAS BEEN VERIFIED. T H I S I S A SAFE HARBOR. I F THE

LANDLORD GOES AND V E R I F I E S WITH THE CITY, DSING THE SYSTEn OF

FEDERAL VERIFICATION, HE KNOWS. HE KNOWS THAT T H I S PERSON I S
-- A I A W N L HAS I A W N L IUUIGRATION STATUS.

THE COURT: WHERE I S THE HEARING, COUNSEL? WHERE I S

THE HEARING FUR THE TENANT7 MR. LINCOW: THE HEARING FUR THE TENANT7

THE COURT: THERE ARE DECISIONS BEING W E HERE.

THERE I S A COMPLAINT THAT COMES I N THAT'S NOT VERIFIED. THE

C I T Y N O T I F I E S THE W D L O R D TO OBTAIN DATA. THE INFURMATION

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61

)

IS 8 W T OFF TO SOKEMPE IN WASHINGTON D.C. AND THEN ALL OF A 1

2 SUDDEN, THE PERSON IS LAEELED AN IUECRI. ALIEN, AND THE

3 LANDLORD NEEDS TO DO SOMETHING ABOUT THAT. WHERE IS THE

4 HEARING?

5

NOW, WHEN I M O K TO THE FEDERAL REGISTER THAT I HAVE

6 TAKEN JVDICIAL NOTICE OF, THE REGISTER INDICATES THAT, FIRST,

7

-- YOU APPLY THAT THE STATE OR W A L AGENCY CAN APPROACH THE

B

SAVE PRCGRAU, AS YOU IDENTIFY IT, AND Y W LAY OUT THE MANUAL

9 IN Y W R EXHIBIT 81. THE m L AGENCY CAN APPRaRCH THE SAVE

10 PROGRAU FOR DETERMINATION AS TO THE STATUS OF AN ALIEN,

11 WHETHER IT'S UNMCOUENTED OR MCUMENTED, I GDESS.

12

MR. LINCOLN: YES.

13

-- THE COURT: ALL RIGHT. El)R THE BENEFIT W H M A N

14 ALIEN IS APPLYING FOR OR IS A RECIPIENT OF PEDERAL BENEFITS.

15 THAT'S WHAT THE C.F.R. SAYS.

16

MR. LINCOLN: THAT'S CORRECT.

n

THE CODRT: OKAY. FIRST QUESTION IS, WHERE IS THE

18

FEDERAL BENEFIT THAT THE CITY IS ATTEHPTING TO ENSURE IT'S

19 GIVING TO THE RIGHT PERSON, WHEN WE'RE DEALING WITH A PRIVATE

20 LANDOWNER WHO'S RENTING TO AN INDIVIWAL? WHERE IS THE

21

FEDERAL BENEFIT IN THAT, TO APPLY TO SAVE FOR VERIFICATION7

22

MR. LINCOLN: FIRST OF ALL, THE SAVE IS NOT LIMITED

23 JUST TO THAT. ALTHOUGH IT IS TRUE THAT'S HOW IT C W E N C E D .

24 AND IT WAS ORIGINALLY IOR FEDERAL PUBLIC BENEFITS. LATER

25 EXPANDED TO INCLUDE STATE AND LOCAL PUBLIC BENEFITS.

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62

THE COURT: YES.

MR. LINCOLN: BUT THERE IS A PROVISION THAT ALLOWS

IT TO BE USED FOR OTHER PURWSES.

THE COURT: OTHER IEGITIMATE, U w m L PURPOSES OF THE

CITY?

-- EIR. LINCOLN: lWR EXAMPLE AND, AGAIN, THIS IS THE

SAVE VERIFICATION ENTITLEMENT THAT WAS ATTACHED TO THE CITY'S

DECLARATION WA8 A 2000. WAS DATED 2000. THAT WAS BEEURE

9/11.

Ilo

I SINCE 9/11, THAT WHOLE SY3TEn HAS NOW COME UNDER THE

1 DEPARTMENT OF RWELAND SECURITY. THEY HAVE ISSUED NEW
11

I

REGULRTIONS. 1 DON'T HAVE A COMPLETE SET OF THE REGOIJLTIONS.

THEY ARE AVAILABLE ONLINE, AND I CAN GIVE THAT CITE:
-- WWW.USCIS. THAT'S THE NEW

THE COURT: WHY WEREN'T THEY INCLUDED IN YOUR

PLEADINGS7

MR. GARRETT: NO, THEY WERE NOT, YOIIR HONOR.

THE COIIRT: WHY WEREN'T THEY INCLUDED IN YOUR

PLEADINGS? I MEAN, I'VE DIGESTED ALL THIS INFORMATION BASED

UPON THE PLERDINGS. .

MR. LINCOLN: I APOLOGIZE, YOUR HONOR. THIS

ACTUALLY CANE IN RESPONSE TO THE JVDICIAL NOTICE ISSUE, WHICH

I BELIEVE CAME AFTER OUR PLEADINGS WERE FILED. I WAS LOOKING

UP TO DETERMINE.
-- ANYWAY, IN THIS IN THIS PARTICULAR D O C W T , IT

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63

1 DOES POINT OUT THAT IT GOES BEYOND THESE OTHER ITEMS. KlR

2

-- EXAUPLE, IT WILL BE USED IN THE ONE PROVISION IS THE

3 ROUTINE MRIFIlXTION OF I d W N L STATUS THROUGH THE SAVE

4 PROGRRM OF ALL NONCITIZEN APPLICANTS FOR A DRIVER'S LICENSE.

5

THERE IS GOING TO BE -- UNDER THE REAL 1.0. ACT OF 2005.

6

-- IT'S ALSO USED UNDER OTHER THERE IS A LIST OF

7 OTHER AGENCIES THAT USE IT.

8

THE COURT: DOES IT HAVE A DESIGNATION FOR

9 LANDLORD/TENANT, OR TENANCIES?

I0

MR. LINCOLN: THE CLOSEST I CAN FIND IS IT'S USED BY

11 THE PALM BEACH COUNTY PROPERTY APPRAISER. I'M NOT EXACTLY

12 SURE WHAT THAT'S m R . THERE IS A LIST OF VARIOUS SOURCES

13 THAT ALREADY USE IT.

I4

IT'S ALRWLDY BEING USED KlR DRIVER'S LICENSE

15 AGENCIES, SOCIAL SECURITY AMINISTPATION. IT'S BEING USED BY

If, CITY OF NEH YOIm HUMAN RESOURCES AOHINISTRATION. HAZ-P(RT

17 PROGIWS. IT HAS A MUCH WIDER USAGE THAN IT ORIGINALLY HAD.

IS

IN ADDITION -- AND, AGAIN, WE WEREN'T ABLE TO FULLY

19 RESEARCH WHETHER OR NOT THIS 2000 FEDERRL REGISTER IS STILL

20 IN EFFECT. THE REASON I SAY THAT IS THE FEDERAL REGISTER

21 REFERRED TO THE USE FOR ONLY A SPECIFIC NUMBER OF AGENCIES

22 THAT ARE REWIRED TO NAKE THIS NOTIFICATION M, AT THAT TIME,

23 I.N.S. FMlR TIMES A YEAR.

24

AND IT SAYS IN THE NOTICE THAT VARIOUS AGENCIES

25 SHOULD SPECIFICALLY NOTE, NO OTHER ENTITY IS REQUIRED TO

COMPUTER-AIDED TRANSCRIFTION

0
,

1 REPORT THAT PARTICULRR THING, ABOUT WOWING.

2

THE COURT: YES.

3

MR. LINCOLN: SO THAT WAS KlR A PARTICULAR PURPOSE,

4 FOR A P A R T I C U a REPORT, FRM PARTICULAR AGENCIES. WE ARE

5

-- NOT IT DOES NOT APPEAR TO BE APPLICABLE TO ALL THE OTHER

6 USES OF THIS SAVE PROGIW.

7

AND THE SAVE PROGRAM, AGAIN, IT'S A LITTLE WARD TO

8 DESCRIBE. AND WE AREN'T QUITE SDRE OURSELVES HOW IT'S GOING
-- 9 TO WORK, BUT IT IS WEB BASED. IT DOES HAVE ONE OF THE

10 QUESTIONS IS THE RESPONSE TIME. THE RESPONSE TIME FOR

11 INITIAL VERIFICATION IS THREE TO FIVE SECONDS. FOR

12 ADDITIONAL VERIFICATION, WHERE THEY GO THROUGH AND W UORE,

I3 IT'S THREE TO FIVE WORKDAYS. AN0 THEN THERE IS EVEN A
'
14 FURTHER STEP THAT THEY UP TO 20 WORXING DAYS.

15

IT IS A PROCESS THAT IS USED BY NOW MANY, M Y , MANY

16 AGENCIES TO DETERMINE. m R THE PURPOSES OF THOSE AGENCIES,

17 WHETHER OR NOT A PERSON IS A LEGAL RESIDENT OF THE UNITED

18 STATES.

19

-- THE COURT: NOW, THOSE PURPOSES I DON'T KNOW IF

20 YOU'VE HAD MUCH TIKE TO PERUSE THIS, BUT THOSE PURWSES, ARE

21 THEY PDR PUBLIC BENEFITS, OR FOR ANY OTHER PURPOSES THE CITY

22 DETERMINES APPROPRIATE?

23

MR. LINCOLN: THEY CLEARLY STARTED OUT TO BE JVST

24 STATE AND LOCAL BENEFIT AND mDERAL PUBLIC BENEFIT. BUT IT'S 25 MY UNDERSTANDING THAT THEY HAVE GONE BEYOND THAT, AND, AGAIN,

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COHPUTER-AIDED TRANSCRIPTION

ARE BEING USED, AS I MENTIONED, WILL BE USED FOR DRIVER'S
-- LICENSE OR STATE ISSUE
THE COURT: THAT'S A PUBLIC BENEFIT. A DRIVER'S LICENSE IS A PUBLIC BENEFIT TO PROTECT THE PUBLIC ON THE HIGHWAY.
-- BUT WITH RESPECT TO I SEE LANDLORD/TENANT IN
NONPUBLIC HOUSING TO BE NOT PUBLIC BENEFIT. CORRECT ME IF I'M WRONG WITH THAT.
HR. LINCOLN: YOUR HONOR, THAT'S CORRECT. IT.IS A NONPUBLIC BENEFIT. I DO NOT W O W . I DO NOT KNOW THE ANSWER 'IV YOUR QUESTION.
THE COURT: THANK YOU. MR. LINCOLN: JUST BRIEnY RESPONDING TO SOME OF THE CASES THAT THEY CITED. THEY CITED THE CARMONA CASE, WHICH
-- IS 'AS THEY DESCRIBED IT, HAD TO DO WITH WHETHER A
LEGISLATOR OR SOMEONE WHO DRAFTED LEGISLATION COULD GIVE Zdl
-- OPINION. AGAIN, THERE IS A LOT OF LEGISLATIVE A LOT OF
HISTORY AS TO WHEN YOU CAN AND CANNOT USE THE STATEMENTS.0F A LEGISLATOR.
BUT THIS IS NOT THE STATEMENTS OF A LEGISLATOR. THIS IS NOT THE STATMENT OF A SINGLE CITY COUNCILMAN OR MEUBER WHO ENACTED THIS ORDINANCE. THIS IS THE STATEMENT, THE OPINION, THE INTERPRETATION MEMORANDUM OF THE CITY HANAGER, WHO WAS CHARGED UNDER THE CITY OF ESCONDUX) ORDINANCES WITH ENFORCING THAT LAW.
CCUPUTER-AIDED TRANSCRIPTION

THE COURT: WHAT'S YOUR TAKE ON PLAINTIFFS' POSITION THAT, YOU KNOW, THE MEHORRNDOn SHOULD BE GIVEN LITTLE WEIGHT,

I

IF ANY, BECAUSE IT WA9, I TAKE IT FROM THE PLAINTIFFS,

CREATED IN LIGHT OF THIS LITIGATION?

MR. LINCOLN: WELL, CLEARLY IT WAS CREATED TO ANSWER

BOnE QUESTIONS. AND THE QUESTIONS WERE RAISED IN THIS

'

LITIGATION.

I

ONE OF THE PROBLEMS THAT THEY HAVE RAISED IS THE

1

CONFUSION OVER THIS ORDINANCE. AND LOOKING AT THE ORDINANCE.

IN CONNECTION WITH THE ORDINANCE BEING ATTACKED IN THIS CASE,

AtQ IN CONNECTION WITH THE ORDINANCE GOING INTO EFFECT, THERE

HAD TO BE S0HE DECISIONS MADE.

THERE IS NO QUESTION THAT THE TIMING OF THIS

DECISION WAS THAT IT WAS MADE LAST MEEK, WHICH IS A UEEK

BEFORE THE ORDINANCE WA9,GOING TO GO INTO EFFECT. AND WAS

DELIVERED FROM THE CITY HANAGER TO THE BUSINESS LICENSE

1 DIVISION, WHICH IS EXACTLY THE N O W WAY IN WHICH THIS TYPE
17

I

OF INTERPRETATION WOULD COME OUT.

THIS PROBABLY WILL NOT BE THE LAST INTERPRETATION.

THERE WILL BE OTHER ISSUES THAT ARISE. THERE WILL BE

QUESTIONS THAT ARE NOT DIRECTLY SET FORTH IN THE ORDINANCE,

AND THERE WILL BE QUESTIONS OF HOW THE ORDINANCE IS TO BE

INTERPRETED. WE ANTICIPATE THAT THERE WOULD BE ADDITIONAL

MEMORANDUM ISSUED BY THE CITY MANAGER.

ALL I CAN SAY IS THAT WE BELIEVE THAT THIS

CCUPUTER-AIDED TPANSCRIPTION

NENORANDVH WILL BE ENFORCED. THAT THIS IS THE WAY WE, THE CITY, INTENDS TO INTERPRET IT, ASSUMING IT W E S INTO FORCE

THE COURT: WHAT IS YOUR TAKE ON THE RIGHTS, IF ANY, OF THE TENANT HAVING A SAY WITH RESPECT TO BEING IDEWTIFIED AS UNWCUMENTED PRIOR TO AN EVICTION HEARING?
MR. LINCOLN: IT'S INTERESTING THAT, IDENTIFIED AS BEING UNDOCUMENTED. I THINK WE QUOTED, OR AT LEAST MADE REPERENCE IN OUR MEMORANDUM TO AN OPINION FROM THE DEPARlUENT OF HOUSING, I BELIEVE IT WAS; YES.
THE 0.9. DEPARTUENT OF HOUSING AND URBAN DEVELOPMENT HAS STATED, ACTUALLY IN RESPONSE TO 60nE QUESTIONS THAT AROSE
-- AlTER 9/11, AS TO THEY WERE ASKED WHETHER OR NOT YOU CAN
ASK HOUSING APPLICANTS, AND THEY WEREN'T JUST TALKING ABOUT FEDERAL HOUSING, ASKING HOUSING APPLICANTS TO PROVIDE DOCDHENTATION OF THEIR CITIZENSHIP DURING THE SCREENING PROCESS.
AND THEY SAID, YOU KNOW, AT LEAST THAT'S NOT GOING TO VIOLATE THE FAIR HOUSING ACT. THAT'S ALL THAT THEY OPINED ON. BUT THEY WERE ASKED, WOULD IT VIOLATE THE FAIR HOUSING ACT. AND THEY SAID, NO.
THEY INDICATED THAT THIS IS THE TYPE OF THING THAT A LRNDLORD, DWELLING UNIT OWNER CAN ASK. JUST AS HE NOW ASKS PEOPLE, WHEN THEY ENTER IN, FOR CREDIT AND OTHER THINGS. HE CAN ASK THIS QUESTION. AT LEAST THAT WAS THE OPINION OF THE

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COMPUTER-AIDED TRANSCRIPTION

68

1 HOUSING AND U R E M DEVELOPMENT.

2

I THINK THAT THAT IS THE TYPE OF QUESTION THAT THE

I -- CITY AUTHORIZES TO BE AND AGREES WOULD BE THE SAFE HARBOR.
4 IF A DWELLING UNIT OUNER, IN A PRE-SCREENING, SOMEONE WANTS

I

(5 TO RENT, AND THEY SAY, OKAY, WE NEED YOUR CREDIT RECORDS, WE

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1 6

NEED YOUR REPERENCES, AND, OH, BY THE WAY, UNDER THE CITY'S

1

ORDINAMCE, WE DON'T WANT TO BE ACCUSED OF HARBORING, JUST

8HOW US YOU'RE A CITIZEN, SHOW THAT YOU'RE A UCAL IMMIGRANT.

THE COURT: HOW WOULD THAT PLAY OUT IF THERE WAS A

LAWSUIT AND THAT TENANT, THAT PROSPECTIVE TENANT SUED
-- UNDER STATE HELL, UNDER CALIFORNIA CONSTITUTION OR THE

U.S. CONSTITUTION FOR REFUSING HWSING? HOW WOULD THAT PLAY

OUT?

WOULD THERE BE AN EXCUSE, THAT IT'S A CITY

ORDINANCE? WOULD THE LANDLORD BE EXEMPT FRan LIABILITY, OR

WOULD THE WINDLORD GET TO BRING THE CITY IN BECAUSE IT'S

FOLLOWING THE CITY'S DICTATES?

MR. LINCOLN: FIRST OF ALL, I THINK THAT, TO THE

EXTENT THAT THE CALIFORNIA CONSTITUTION WAS QUOTED A9 GIVING

RIGHTS TD ALIENS, I THINK THAT TO THE EXTENT THAT THAT'S

TRUE, I THINK IT DOES GIVE RIGHTS TO ALIENS. BUT IT DOES NOT

122

GIVE THE RIGHT TO HARBOR ILLEGAL ALIENS. THAT IS A FEDERRL

I

23 LAW. AND TO THE EXTENT THAT THE CALIFORNIA CONSTITUTION

24

WOULD BE INTERPRETED OF DOING THAT, IT WOULD BE PREEMPTED.

25

-- THE FEDERAL LAW IS YOU CANNOT GIVE YOU CANNOT

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69

HARBOR ILLEGAL ALIENS.

THE COURT: SO YOU'RE SAYING THAT IF A PROSPECTIVE

TENANT WAS DENIED A RENTAL UNIT BECAUSE OF HIS OHLAWFUL
-- STATDS, AND HE SUED HE SDED THE LANDLORD. THE LANDLORD

WOULD HAVE TO DEFEND BY SAYING THAT HE HAD A RIGHT NOT TO

LWE IN ORDER TO AVOID SUFFPAGE UNDER THE LEAL DRDINXNCEP

MR. LINCOLN: YES.

THE COURT: ALL RIGHT. WHO PAYS FOR THAT LAWSUIT

WHEN HE'S F O W W I N G CITY LAW?

10

-- MI. LINCOLN: WELL, I THINK

11

THE COURT: WOULCPJ'T THAT BE AN INJURY THAT HE CAN

12

CONTEMPLATE, PROSPECTIVELY?

13

MR. LINCOLN: IF THERE WAS A SUIT BY THE PROSPECTIVE

14

-- TENANT AGAINST THE YOU'RE SAYING THAT THERE IS A SUIT BY

15 THE PROSPECTIVE TENANT AGAINST THE LANDLORD?

l6

THE COURT: AGAINST THE LANDLORD WHO IS ATTEMPTING

17

TO ABIDE BY THE ORDINANCE. THE LANDLORD IS SUED.

18

MR. LINCOLN: YES.

19

THE COURT: AND THE lAUDLORD IS OUT OF W N E Y TO

20

DEFEND THE LAWSUIT, BECAUSE OF THE CITY ORDINANCE. WHAT

21

-- PROVISIONS I MEAN, ISN'T THAT A LOSS OF PROPERTY OR

22

DEPRIVATION WITHOUT A HFMING?

23

ISN'T THAT A LOSS, ISN'T THAT A DEPRIVATION, EVEN

24

THOUGH THE CITY ISN'T IHVOLVED, BECAUSE THEY ARE FOLLOWING

25

THE CITY'S DICTATES?

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71
AS AN EXCUSE FOR THE DISCRIMINATION, THE ALLEGED DISCRIIINATION. THEY ARE ODT OF POCKET. THEY CAN BE OUT OF POCKET EVERY OTHER DAY.
AND WHAT DOES THE CITY DO ABOUT THAT? WHY ISN'T THAT A DEPRIVATION OF PROPERTY TO A LANDLORD BORNE PROSPECTIVELY, EVEN IF THIS ORDINANCE 18 VIEWED PROSPECTIVELY?
-- MR. LINCOLN: WELL, FIRST OF ALL, IF AT THE POINT -- AT WHICH HE WOULD BE SUED BECAUSE HE DENIED THE IF HE WAS
USING THE SAFE HARBOR, IF HE WAS UBING THE SAFE HARBDR, HE WOULD HAVE GOTTEN FROM THE FEDERAL GOVERNMENT A STATEMENT THAT THIS WAS, IN FACT, AN ILLEGAL IWI(1GPANT.
-- THE COURT: SO BUT HE'S STILL SUED. HE'S STILL
SUED BY THE PERSON WHO IS DENIED THE HOUSING. AND HE'S BEING SUED BECAUSE OF THE CITY ORDINANCE. '
MR. LINCOLN: BUT --
THE COURT: THE LANDLORD IS BEING SUED BECAUSE HE OR SHE FOLLOUED THE CITY ORDINANCE.
-- MR. LINCOLN: WELL
-- THE COURT: EVEN IF IT'S DISMISSED M Y S E IT WILL -- BE. I'M NOT JUDGING THAT BUT THERE IS OUT-OF-POCKET
COSTS. AND IT COULD HAPPEN EVERY DAY. IF THE LANDLORDS IN THE CITY OF ESCONDIM) HAD THE
CHILLING EFFECT OF SUFFERING LOSS OF RENTS AND SUCH, ON ONE HAND, AND SUITS ON THE OTHER, IF THEY DENIED OCCUPANCY, THEY
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70
-- MR. LINCOLN: I'M TRYING TO PIT IT INTO THE

THE CO~RT: THIS GOBS MORE TO HARM, IRREPARABLE

HARM.

MR. LINCOLN: YEAH.

THE CODRT: EXCUSE P(E. THE MATTER JUST CAHE UP IN

m MIND.

I8 .

MR. LINCOLN: YEAN. CIVIL RIGHTS ANALYSIS.

I'M TRYING TO FIT IT INTO THE

I

I MEAN, THERE IS, AS

ITSELF SAID, WHERE TEXAS

WAS GOING TO DENY RIGHTS TO UNDOCUMENTED SCHWLCHILDWI --

THE COURT: YES.

-- MR. LINCOLN:

THEY HELD THEY COULOW'T DENY THEM.

BUT THEY DID IT, NOT BECRDSE OF PREEMPTION, BUT RATHER A

DENIAL OF EQUAL PROTECTION. AND THE EQUAL PROTECTION, THEY

RERLLY LIMITED TO THE FACT THAT THEY WERE KIDS. I MEAN, THE

LANGUAGE IN THERE IS PRETTY CLEAR.

UNDOCUMENTED STATUS IS NOT IRRELEVANT TO ANY PROPER

LEGISLATIVE GOAL. HERE, THE DIFFERENCE ISr IT WAS DIRECTED

AGAINST CHILDREN.

THE COURT: I UNDERSTAND THAT. I UNDERSTAND THAT,

COUNSEL. MAYBE NE CAN GET BACK TO THAT U S E IN A MOMENT.

BUT WITH RESPECT TO THE ONE AT ISSUE, IF A LANDLORD .

IS SDED BECAUSE THE LANDLORD IS FOLLCWING PROSPECTIVELY THE

CITY ORDINANCE, THEY HAV6 GOT TO HIRE A LAWYER, THEY HAVE GOT

TO FILE MOTIONS TO DISMISS, EASED UPON THE CITY ORDINANCES,

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72
ARE OUT-OF-POCKET EITHER WAY AS A RESULT OF THE ORDINANCE, EVEN GOING FORWARD, WOULDN'T YOU SAY?
HR. LINCOLN: TO SOME EXTENT, IT'S THE SAME QUESTION AS IN THE FIELD OF EMPLOYMENT.
THE CODRT: EXCUSE ME. EXCUSE ME. UR. GARRETT, IF YOU'D LIKE TO RESPOND TO THAT.
m. GARRETT: I HAVE A SHORT ANSWER. HOPENLLY i~
WILL BE THE SAME AS MR. LINCOLN. THE COURT: I'LL LEAVE IT DP TO YOU. THIS IS THE
AREA THAT YOU ADDRESSED, AND WITH RESPECT, YOU MRY ADDRESS THIS QUESTION IF YOU'D LIKE.
MR. GARRETT: THE ANSWER TO YOUR QUESTION, YOUR HONOR, IS, YES, THE lAUDLORD COULD SUFFER COST PROn IT, AND THAT WOULD BE A CONSEQUENCE OF THE ORDINANCE. BUT IT'S NO DIFFERENT THAN ANY OTHER MUNICIPAL REGULATION OF THE BUSINESS OF BEING A LANDLORD.
FOR EYRMPLE, IF THE CITY INSPECTORS SAY THAT THE UNIT THAT YOU'VE RENTED TO THIS PERSON IS SUBSTANDARD, DOESN'T HAVE THE PROPER VENTILATION OR THE PLDMBING THAT WE REQUIRE, YOU CAN'T RENT THIS UNIT. THE LANDLORD THEN EVICTS THE TENANT, OR SAYB, I CAN'T RENT THE UNIT TO YOU, THE TENANT, BECAUSE IT'S SUBSTANDARD. THE T E W T SUES AND SAYS, YOU DISCRInINATED AGAINST ME. IT WAS IMPROPER.
ANYBODY CAN BE SUED. THEY KAY SUFFER CONSEQUENCES OF THAT, FROW BEING A LANDLORD. BUT THE FACT IS, THE CITY

73

STILL HAS TO HAVE THE POWER TO REGULATE THE LANDLORDS'

BUSINESS, HAS THE ABILITY TO DO THAT.

THE COURT: AND THE CITY IS IMMUNE FRffl SUIT, I

WOULD ASSOHE, IF IT'S ENFORCING THE REGULATIONS IN THAT
. REGARD7

IIR. GARRETT: WELL, ANYONE CAN FILE A LAWSUIT AT ANY

TIME. AS MR. LINCOLN CAN TELL Y W , HB'B DEFENDED MANY

LAWSUITS THAT HAVE BEEN PILED AGAINST THE CITY OF ESCONDIDO

ON A NUMBER OF THINGS.

BUT I THINK OUR POSITION WOULD BE THAT IT WOULD NOT

BE A RECOVERABLE COST. AND THE CITY FEELS, AS A POLICY

MATTER, IT'S APPROPRIATE TO PUT LANDLORDS IN THAT POSITION1

BECAUSE THEY ARE RELYING EXCLUSIVELY ON THE DOCUMENTATION

THAT COMES FROM THE FEDERAL GOVERNMENT BY FEDERAL STATUTE,
-- IIR. LINCOLN WILL TELL YOU

THE COURT: 1373.

-- MR. GARRETT:

THEY HAVE TO RESPOND TO ALL

INQUIRIES FROM LOCAL AGENCIES. AND THAT'S THE SAHE STATUTE

THAT WILL ALLOW PEOPLE TO BE DENIED DRIVER'S LICENSES, TO
-- ALLOW DENY A NUMBER OF OTHER PRIVILEGESI AN0 THAT'S WHAT

THE CITY IS UTILIZING.,

SO, YES, THE LANDLORD, IN THE BUSINESS OF BEING A

LANDLORD, SUFFERS THE POSSIBILITY THAT HE COULD BE SUED BY

24

TENANTS AS A RESULT OF DECISIONS HE HAS TO MAKE, TO IMPLEMENT

25

THE CITY'S REGULATION OF HIS BUSINEBB.

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2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

THE COURT: AND I ASSOME, THEN, SIR, THE LANDLORD MULD NOT BE AN AGENT OF THE c I n TO BE IHHUWE ~9 A CITY OFFICIAL UIGHT BE COR UNDERTAKING THE SAM3 CONDUCT7
MR. GARRETT: I CAN SAY THAT MOST DEFINITELY. PEOPLE IN A REGULATED C m U N I T Y DO NOT B E C W THE AGENTS OF THE CITY BY VIRTUE OF THAT REGULATION.
THE COURT: THANK ZOO, SIR. MR. LINWLN: JUST VERY BRIEFLY. IN RESPONSE TO THE POINT ABOUT,WHETHER OR NOT THIS
ORDINANCE MEETS THE DECI\HRS TEST, THE CITY, OF COURSE,
DISAGREES. WE BELIEVE THAT THE FIRST PRONG IS, IS IT AN INVALID REGULATION OF INMIGRATION ONLY APPLIES IF WE'RE THE ONES DETERHINING, IF THE CITY IS THE ONE THAT'S DETEWINING. HERE, UNDER THE ORDINANCE, IT'S CLEAR IT'S NOT THE CITY DETERMINING, BUT IT'S A FEDERAL DETERMINATION.
THE REFERENCE HE MADE TO THE HINES CASE, THAT WAS A
-- CASE WHERE THERE WAS A PARTICULAR THERE WAS A COMPLETE
PARALLEL SYSTEM SET UP BY THE STATE OF PENNSYLVANIA. HERE, WE'RE USING THE FEDERAL SYSTEM. AND IT'S ONLY UPON VERIFICATION BY THE FEDERAL GOVERNMENT THAT ACTION WILL BE TAKEN.
UNDER THE SECOND PRONG, THE QUESTION IS WHETHER CONGRESS CLeRRLY INTENDED TO OCCUPY THIS FIELD. AOLIN, TO SOME EXTENT, IT DEPENDS ON WHRT FIELD YOU SAY IT IS, YOU DEFINE. IF THE FIELD IS LFNDLORO/TENANT RELATIONSHIPS,

.. .

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75
CERTAINLY THAT'S AN AREA THAT HAS HISTORICALLY BEEN LEFT TO
-- STATE AND LCCAL CONTROL. CLEARLY M Y , MANY QUESTIONS
MANY CASES ON THAT. IF IT'S A BLIGHT, AGAIN, IT'S BEEN LEFT TO THE LOCAL CONTROLLER.
HERE, THERE ARE VERY FEW FEDERAL CLAUSES THAT AFFECT
-- THE RELATIONSHIP BETWEEN
THE COURT: EXCUSE ME. IN THAT REGARD, I HAVE TO ASK THIS QUESTION AGAIN. MAYBE YOU'VE ADDRESSED IT.
CAN THE LOCAL GOVERNMENT IMPOSE A, LANDLbRD/TENANT FAUSE OF ACTION, OR ADD A CAUSE COR EVICTION, THAT'S NOT CONTAINED IN STATE LAW?
MR. LINCOLN: I MN'T BELIEVE SO. THE COURT: SO IS BEING AN ILLEGAL ALIEN A CAUSE FOR
-- A CONVICTION IN STATE LAW CADSE FOR EVICTION? M C O S E ME.
MR. LINCOLN: THAT IS A QUESTION WHICH, YOUR HONOR, WILL BE, I THINK, EXTENSIVELY BRIEFED IN THE NTURE. THE
-- ARGUUENT WOULD BE THAT THERE IS IT'S AN ILLEGAL CONTRACT.
-- IF HARBORING AND YOU CAN HARBOR WITHOUT INTENT.
IF HARBORING IS ILLEGAL, THW ~ 1 0 sLE~ASES SAY YOU CW*T ENGAGE IN ILLEGAL CONDUCT. AND .IF THAT'S ILLEGAG CONDUCT, THE ANSWER IS IT MAY BE. WE DON'T KNOW. WE AREN'T TRYING TO CHANGE AND DECIDE LANDLORD/TENFlNT LAW OH THIS.
ALL WE'RE SAYING IS THAT IF YOU DO THAT, YOU HAVE TO W SOMETHING. YOU HAVE TO AT LEAST TRY. AND THAT'S WHAT
-- THE UNDER THE INTERPRETATION MR40, REHEHBER. ONE OF THE
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76
RESPONSES WITHIN THAT TEN-DAY PERIOD IS THAT THEY ARE COhXENCING PROCEEDINGS. REHEHBER, THERE HAS ALREADY BEEN A DETERMINATION BY THE FEDERAL GOVERNMENT OF ILLEGAL STATUS1 AND NOW, WITH THE.ILLEGAL STATUS, THEY ARE C W E N C I N G THIS PROCEDURE.
WHETHER THE STATE COURTS WILL UPHOLD IT OR NOT,
-- THAT'S THAT HAS NOT BEEN DECIDED, I DON'T THINK. WE THINK
IT'S SOMETHING CERTAINLY ARGUABLY THAT THEY SHOULD. FINALLY, THE QUESTION UNDER DECANAS IS, IS THE
ORDINANCE AN OBSTACLE TO THE ENFORCEMENT OF FEDERAL IHMIGRATION WMI? THE ORDINANCE COULDN'T SAY IT ANY CLEARER.
IT SAYS, IN THE CONSTRUCTION PROVISION, THAT THE' REQUIREMENTS OF THIS SECTION SHALL BE IMPLEMENTED IN A MANNER N L L Y CONSISTENT WITH P E D E W LRW, RELATING TO IHMIGRATION. IT CLEXRLY IS NOT INCONSISTENT AND IS HARMONIOUS WITH THE FEDERAL LAW.
YOUR HONOR, WE BELIEVE THAT THEY ARE 100KING AT THE PROBABILITY OF SUCCESS ON THE WRITS. THAT THE LAW DOES UEET THE REQUIREMENTS. THAT IT IS NOT PREEMPTED. IT IS NOT CONTRARY TO DOE PROCESS OR EQUAL PROTECTION. AND THAT THIS, THEREFORE, WHEN PEEKING AT THE MERITS, WHICH IS WHAT WE UNDERSTAND THE COURT DOES ON A T.R.O., YOU SHOULD FIND THAT THIS ORDINANCE MEETS THOSE TESTS.
THE COURT: THANK YOU, COUNSEL. IS THERE A REPLY7
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MR. TENCER: THANK YOU, YOUR HONOR.

THE COURT: MR. TENCER.

MR. TENCER: I T ' S INTERESTING, YOUR HONOR, THAT

MR. LINCOLN I N H I S ARGtIMENT STATED THhT THE PRACTICE O F THE

CITY AND THE C I T Y MANAGER I S TO ISSUE THESE INTERPRETIVE

MEMORANDUMS. THAT EVIDENCE I S NOT BEFORE T H I S COVRT.

DORING THE ARGUMENT, I WENT AND TOOK THE TIME TO

READ THE DECLARATION O F MIL PHILLIPS. AND NOWHERE I N THAT

( 9

DECLhRRTIDN DOES HE STATE THAT I T ' S H I S PRACTICE TO I S S U E

THESE INTERPRETIVE MEUORRNDUUS. WHILE THAT FACT WHILE I N

ARGUMENT I S NOT A FACT THAT'S BEFORE THIS COURT.

AND I CAN REPRESENT TO T H I S WURT THAT I PERSONALLY,

HY CO-COUNSEL SPENT A LOT O F TIME ON THE ESCONDIDO C I T Y

WEBSITE. WE'VE SPENT A IJJT O F TIME LOOKING AT THEIR CODES.

AND I F I T WOULD PLEASE THE COURT, I ' V E GOT A COPY O F THE

CITY ARTICLE OF THE

HANAGER OF ESWNDIDOTHAT ms ALL OF THE

ORDINANCES THAT PERTAIN TO H I S RESFONSIBILITIES AND RULES.
-- AN0 I CAN HAND I T UP TO THE COURT

THE COURT: NO. JUST SHARE WITH ME WHAT YOU THINK

MR. TENCER: THANK YOU, YOUR HONOR. W K I N G AT THE CITY WEBSITE, THERE I S NOT A SINGLE P U C E THAT YOU WILL FIND AN INTERPRETIVE m O . THERE I S NOT T H I S INTERPRETIVE MEHO. THERE I S NOT AN INTERPRETIVE MEMO WITH RESPECT TO ANY OTHER ORDINANCE PASSED BY THE CITY O F

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79

1

THE CRIMINAL A C T I V I T I E S O F SOME ILLMiRL ALIENS.

2

THAT'S NOT DEALING WITH LANDLORDS, YOUR HONOR.

3

THAT'S DWLLING WITH ILLEWLL ALIENS AND THE ADVERSE EFFECTS

4

THEREOF.

5

MR. GARRETT ALSO WENT ON TO ARGUE THAT THE ORDINANCE

6

AS WRITTEN, WITH RESPECT TO THE INTERNAL MMORANWH, I S I N ,

7

SECTION A. I T ONLY A P P L I E S TO LETS, LEASE OR RENT O F A

8

WELLING UNIT, AND, THEREFORE, I T ONLY APPLIES ,IN THE FUTURE,

9

TO FUTURE LEASES, LETS OR RENTS. BUT THE ORDINANCE DOESN'T

10

STOP THERE.

?l

I T ALSO SAYS, TO SUFFER OR PERMIT THE OCCUPANCY.

12

AND THAT WOULP OCCUR A S O F TOPK)RFlOW, I F THE ORDINANCE GOES

13

INTO EFFECT. I F THERE I S AN ILL-

ALIEN LIVING I N A HOUSE,

14

WHETHER HE I S THE TENANT ON THE LEASE, WHETHER HE I S A GUEST

15

OR SHE I S A GUEST, OR WHETHER THEY ARE A RELATIVE STAYING I N

16

T H I S PROPERTY, THAT WOULD BE TO SUFFER OR TO PERMIT.

17

NOW, THE CITY REPRESENTS THAT THEY ARE NOT GOING TO

18

ENFORCE T H I S ORDINANCE, ACCORDING TO THE INTERNAL UEMORANWM,

19

TO CURRENT TENANCIES. BUT NOWHERE DO THEY EXPLAIN THAT THAT

-- WOULD HOW THE CITY WOULD FIGURE THAT OUT.

SO I F YOU THINK OF A SCENARIO, YOU GET A COMPLAINT

ON A SATURDAY, AND THE COMPLAINT I S A SIGNED COMPLAINT. A S

REQUIRED, AND WHATEVER THE INFURMATION I S THAT I S SUFFICIENT,

NE DON'T REALLY KNOW. NE KNOW WHAT I T ' S SUPPOSED TO NOT DO,

WHICH I S I T ' S NOT SUPPOSED TO BE BASED SOLELY OR PRIMARILY ON

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ESWNDIDO.

S O TO THE EXTENT THAT I T ' S MEANT TO CLARIFY SOME

CONNSION OUT THERE, I WOULD SUBMIT THAT THE C I T Y I S NOT

W I N G A VERY GOOD JOB OF DISSEMINATING I T S CLRRIFICATION PIEUO

M THE FAIR C I T I Z E N S OF THE CITY O F ESCONDIDO.

-- THE ORDINANCE SECTIONS O F WITH RESPECT TO THE

CITY MRNAGER, ONLY TO THE EXTENT THAT YOU INTERPRET I T TO

I

ALLOW FOR T H I S INTERPRETATION MEMO TO BE GIVEN THE POWER.
-- I T ' S CERTAINLY NOT EXPLICIT. THEY WANT DEFENSE ARGUES

THAT I T I S EXPLICIT I N PRWISIONS O F THIS OROINANCE.

BUT EVEN I F THE POWER TO INTERPRET I S I M P L I C I T , YOU

A L 9 0 HAVE TO GET TO THE POINT THAT I T ' S I M P L I C I T THAT THAT

INTERPRETATION HAS BINDING EFFECT ON THE CITY AND ON I T S

PEOPLE I N ORDER TO BE ABLE TO AFFORD ANY WEIGHT OR EFFECT TO

THAT INTERPRETATIONj ASSUMING THRT YOU COULD OVERCOME THE

PRDBLM THAT WE'VE ALRERDY MENTIONED, AND THAT I S , THAT I T

WAS DONE AFTER THE LITIGATION. AND AS DEFENSE COUNSEL

RECOGNIZED, I T WAS DONE IN RESPONSE TO THE SERIOUS I S S U E S

THhT WERE RAISED BY T H I S LAWSUIT.

SECOND, YOUR HONOR, MR. GARRETT OFFERS THAT T H I S

1

I ORDINANCE I S A tRNDLOR0 ORDINANCE. WELL, THAT'S NOT *HAT THE

ORDINANCE SAYS. I N FACT, I N PARAGRAPH 4 O F THE ORDINANCE, I T

SAYS THAT THE STATE AND FEDERAL GOVERNMENT LACKS THE

RESOURCES TO PROPERLY PROTECT THE CITIZENS O F ESCONDIW FROU

THE ADVERSE EFFECTS O F THE HARBORING OF ILLEGAL ALIENS AN0

NATIONAL ORIGIN, ETHNICITY OR RILCE, BUT I T DOESN'T SAY THAT I T CAN'T BE A WiJOR FACTOR. C E R T l l n a Y I T DOESN'T SAY THAT.
AND SO THEY GET T H I S C M P U I N T , AN0 THEY NOW REQUIRe OF THE LANDLORD TO RESPOND WITHIN FIVE DAYS WITH IDENTIFYING INFOPMATION. THEY DON'T GIVE THE C Q M P W N T TO THE 7 ANDLORD, BECAUSE I T ' S NOT REQUIRED. BUT THEY SAY, MR. LANDLORD, YOU NEED TO TURN OVER T H I S INFORMATION. AN0 THE LANDLORD SAYS, I WN'T. I T ' S A CURRENT TENANCY. I DON'T NEED TO RESPOND TO You.
I T DOESN'T SAY THAT. WHAT I T SAYS I S I F YO0 DOU'T RESWND I N FIVE DAYS, YOU'RE IN VIOLATION O F T H I S ORDINANCE.
-- AND NOT ONLY THAT, I F YOU DON'T ON THE SIXTH M Y , I F YO0
-- DON'T RESPOND, YOU'RE NOW I N VIOLATION I T ' S YOUR SECOND
VIOLATION. AND, THEREFORE, YOU'RE SUBJECT TO F I N E S O F UP TO $1,000 AN0 S I X W T H S I N JAIL. AN0 YOU'RE SUBJECT TO THOSE FINE9 EVERY SINGLE M Y THEREAFTER THAT YOU DO NOT RESPOND T O OUR REQUEST O F T H I S SIGNIFICANT INFORHRTION ABOUT T H I S PERSON.
AN0 THE I N F O M T I O N THAT THEY L9K FOR I S INFORWATION I N THE SAVE DATABASE. WHICH THEY HAVEN'T PUBLISHED WHAT THE
-- SAVE DATABASE R E W I R E S . I T ' S BUT I CAN REPRESENT TO THE
COURT THAT ONE OF THE THINGS I T W E S REQUIRE I S NATIONAL ORIGIN. WHAT COUNTRY ARE YOU FROM. AND UNDER THE FAIR HOUSING LAWS, YWR HONOR, THAT'S AN ILLEGAL QUESTION TO ASK. THEY CANNOT ASK THAT QUESTION.
COMPUTER-AIDED TRANSCRIPTION

WE DIMI'T GET INTO W D S E ISSUES FOR PURPOSES OF THE

T.R.O., BECAUSE IT WASN'T GERMANE. BUT NOW THAT THEY SAY

THEY ARE W I N G TO RELY UPON IT, I CAN REPRESENT THAT THAT IS

AN ILLEGAL QUESTION. AGAIN, POTTING THE WIDLORD, ON

SATURMY, IN A DIFFICULT PLACE. .EITHER VIOLRTING THE FAIR

HOUSING LAWS OR NOT FOLLY RESPDNDING AS REQOIRED UNDER THE

1 1 7

IUTERPRETIVE MEMO, OR ANY OTHER DEFINITION AS THIS ORDINANCE

IS WRITTEN, TO THE INEWU4ATION THAT THE CITY OF ESCONDIW

SAYS IT'S WING TO REQUIRE or THE IANDLORDS.

THAT, I WOULD SAY TO YOU, IS AN IRREPARRBLE HARM,

THAT PUTS A LANDLORD BE~wEENA ROCK AND A HARD PLACE. HE'S

EITHER COMPLYING WITH THE FAIR HOUSING LAWS OR COMPLYING WITH

THIS ORDINANCE.

I BELIEVE MY CO-COUNSEL HAS A FEW POINTS AS WELL,

YOUR HONOR.

THE COURT2 THANK YOU, COUNSEL.

MR. MANSFIELD: YOUR HONOR, JUST TWO QUICK POINTS.

IN RESPONSE TO COLLOQUY THAT YOU ENGAGED IN BOTH

WITH MR. LINCOLN AND MR. GARRETT, THE QUESTION WAS RAISED
-- ABOUT WHAT IMPACT THIS HAD WHAT IMPACT THIS WOULD HAVE ON

A V D m R D , IF THE LANDLORD'S DEFENSE WAS, WELL, I HAD THIS

ORDINANCE.

AND I ULTIMATELY BELIEVE THAT THE CITY RECOGNIZED,

OR ACCEPTED THE PROPOSITION THAT THE LANDLORD WOULD BE

EXPOSED TO A LITIGATION RISK AND POTENTIAL LOSS A8 A RESULT

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0 .,\

2'I
3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

I ONLY RAISE THIS BECAUSE THE COLUMBIA BASIN OFTHAT.

I

APARTMENT ASSOCIATION DECISION FRON THE NINTH CIRCUIT, CITED

IN OUR BRIEF, SPECIFICALLY ADDRESSES THAT ISSUE. WHERE THERE

WAS A LANDLORD WHO WAS REQUIRED, UNDER A LDCAL ORDINANCE, TO

TAKE CERTAIN ACTIONS THAT POTENTIALLY COULD VIOLRTE THE

RIGHTS OF THE TENANTS.

AND IN THAT DECISION, THE COURT SPECIFICALLY SAID,

IMPERMISSIBLY THRFATENING LANDLORDS WITH THE DEPRIVATION OF

PROPERTY AND CIVIL PENALTIES IF THEY ARE UNWILLING TO VIOLATE

THE FOURTH AMENDMENT RIGHTS OF THEIR TENANTS, GIVES RISE TO

STANDING TO SEEK INJUNCTIVE RELIEF.

THIS CASE WENT ON TO SAY THAT ENFORCEMENT OF THE

O R D I N ~ ~ CEEXPOSES THE m D m R D s TO THE RISK or LITIGATION,

AND SPECIFICALLY NOTED THAT THE EXPOSURE OF A LANDLORD TO THE

RISK OF LITIGATION, PUTTING THFH IN THAT ROCK AND A HARD

PLACE, WHERE THEY EITHER H A M TO VIOLATE THE ORDINANCE OR

VIOLRTE THE CONSTITUTIONAL RIGHTS OF ANOTHER, WAS FOUND TO BE

SUFFICIENT TO CREATE STANDING.

AND SPECIFICALLY SAID THAT WHERE IT'S LIKELY THESE

INJURIES WILL BE REGRESSED BY A DECLARATION OF THE ORDINANCE

AS UNCONSTITDTIONAL, THAT CREATES STANDING SUFFICIENT TO

CHALLENGE THE STATUTE ISSUES.

SO I THINK THAT, BASED ON THAT COLLOQUY, THE

COLUMBIA BASIN APARTMENT ASSOCIATION CASE IS ON POINT, AND

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SPECIFICALLY RECOGNIZES THEIR STANDING AND THEIR ABILITY TO

CHALLENGE THIS ORDINANCE.
-- MY FINAL POINT IS IF WE WE'VE HAD A LOT OF TALK

ABOUT THE SAVE DATABASE AND WHAT IT REQUIRES AND WHAT IT

WESN'T. I'D ONLY ASK THE COURT TO LOOK AT PAGE 3-5 OF THE

EXHIBIT B ATTACHED TO MR. PHILLIPS' DECLRRRTION, WHICH

PROVIDES A LIST OF THE TYPE OF INFORHRTION THAT WOULD BE

REQUIRED PROH A TENANT. THEIR ALIEN NUMBER, THEIR DATE OF

BIRTH, THEIR COUNTRY OF BIRTH, THEIR SOCIAL SECURTTY NUMBER,

THEIR DATE OF ENTRY, THE18 I.N.S. STATUS.

IT'S THE TYPE OF INFORURTION THAT, IF YOU RECALL

FROW THE AMICUS BRIEF, THE ONLY REASON W D L O R D S GET THIS

INFORMATION IS BECAUSE IF'S PROTECTED UNDER THE FAIR CREDIT

REPORTING ACT; SO THEY ARE FACED WITH VIOLATING THE FAIR

I

CREDIT REPORTING ACT.

THE AMICUS NOTED THAT WE ONLY GET THIS DATA PURSUANT

TO THE FAIR CREDIT REPORTING ACT, AND SO, THEREFORE, WE

EITHER HAVE TO VIOLATE THE FAIR CREDIT REPORTING ACT, BY

PROVIDING THIS VERY DATA, OR VIOLRTE THE ORDINANCE, BECAUSE

THAT'S WHAT THEY C U I M THEY NEED IN ORDER TO RESPOND TO THE

ORDINANCE.

AND THEN I'D FINALLY NOTE ONE POINT. AT THE VERY

END OF THAT EXHIBIT, THERE IS A QUESTION AND ANSWER. IT'S ON

PRGES H1 AND HZ.

IN HI. THE QUESTION IS RAISED, IS THE APPLICANT AN

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ILLEGAL NONCITIZEN WHEN SECONDARY VERIFICATION IS REQUESTED? ANSWER: NO. A REQUEST FOR SECONDARY VERIFICATION
MERELY MEANS THE PRESENT CLASSIFICATION IN THE MnMUTER MThBRSE INDICATES SOMETHING OTHER THAN THEY ARE A LEGAL
THE OTHER QUESTION WAS, WHAT SAFEGUARDS EXIST TO PREVENT BENEFITS BEING ISSUED BY ISSUING AGENCY? AND THE ANSWER SAYS, IN MOST CASES, A BENEFIT IS NOT DENIED, DELAYED. REDUCED OR TERMINATED W E D SOLELY ON THE RESPONSE FRO(( PRIMARY. THAT'S WHAT THE SECONDARY VERIFICATION RESPONSE IS FOR.
THE POINT ALL OF THAT BEING, JUST BECAUSE YOU GET A RESPONSE FRO(( THE SAVE DATABASE W E S NOT SAY THIS PERSON IS AN ILLEGAL ALIEN. IT SPECIFICALLY MERELY SAYS THE DOCUMENTATION WE HAVE DOESN'T INDICATE THAT. THAT'S THE IMPORTANCE OF THE FEDERAL REGISTER, WHERE IT SAYS THAT'S NOT THE WRPDSE. YET, THAT'S THE PURPOSE THEY WANT TO USE IT FOR, AND THAT'S WHY THERE IS A PROBLEPI.
V D THAT'S WHY, IRRESPECTIVE OF THE INTERPRETATION HENO, THE STATUTE IS PREEMPTED UNDER FEDERAL LAW. AND NO MATTER HOW YO0 INTERPRET IT, AT LEAST AT THIS POINT IN THE W E , THERE IS SUBSTANTIAL, SERIOUS QUESTIONS ABOUT THE CONSTITUTIONALITY OF THE STATUTE. AND BECAUSE IT'S GOING TO GO INTO EFFECT IN ABOUT SEVEN HOURS, WE RESPECTNLLY REQUEST W E COURT ISSUE A TEMPORARY RETRAINING ORDER.
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8 5

1

THANK YOU. UNLESS THE COURT HAS ANY QUESTIONS.

THE COURT: NO QUESTIONS.

I

I S THERE A QUICK RESPONSE?

I

MR. GARRETT: YES, YWR HONOR.

THE COURT: SURE. YOU MAY.

MR. GARRETT: VERY QUICKLY, YOUR HONOR. I HAVE FOUR

POINTS.

THE POINT WAS MADE THAT THE INTERPRETATION MEHD FROM

11 1

THE MANAGER HAS BEEN HIDDEN SWEPWLCE. I T I S ON THE WEBSITE.

I JUST CHECKED ON NY BLACKBERRY, AND I WAS ABLE TO PULL I T UP

I ON THE INTERNET BROWSER THAT'S THERE; SO I T ' S THERE. AND THE

CITY I S NOT AFRAID O F I T . AND I F YOU GO TO THE CITY'S U I N PAGE, I T ' $ LISTED RIGHT THERE.

I .

THE COURT: I S I T A PRRCTICE TO WRITE WENOFSNDUHS, OR I S T H I S THE ONLY ONE?

MR. GARRETT: I T I S A PRACTICE TO WRITE I(PKIRANWMS.

I T I S VERY FREQUENTLY, THE C I T Y W A G E R INSTRUCTS H I S

DEPARTMENT HOW TO PERFORM VARIOUS FUNCTIONS. JUST AS THE

PRESIDENT SENDS MEMORANDUMS TO VARIOUS MEMBERS OF THE
EXECUTIVE BRANCH. SPECIFIEALLY, TD DO INTERPRETIVE

MEMORANDUM. THERE ARE HRNY OTHERS.

23

I

-- AND I WOULD I HAVE TO CONCEDE TO THE PLAINTIFFS,
HOWEVER, THAT'S NOT I N OUR PAPERS. BECAUSE I T WAS NOT A

I

POINT THAT WAS MADE I N THEIR PAPERS, BECAUSE WE BROUGHT UP THE INTERPRETATION MEHOPANDOH I N OURS.

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-.!PHE COURT: AND I DID NOT GIVE THEN AN OPPORTUNITY
TD REPLY.

!(R. GARRETT: THAT'S CORRECT.

!IOUR HONOR, ON THE HENUNGS QUESTION, YOU ASKED A
QUESTION :[ THINK O F ME, AIlD I THINK WE GAVE YOU A VERY POOR

ANSWER.

YOU ASKED, WHERE ARE THE HEARINGS I N THIS, AND I S N ' T

( THERE A PllOBLEM OR A HARH THAT COULD HAPPEN BECAVSE PEOPLE
8

1 9

ARE NOT BRING GIVEN HEARINGS OVER THESE VARIOUS ISSUES,

I
I

THINGS ARE BEING TAKEN AWAY PROH T H W , CONSEQUENCES ARE

HAPPENING4 WHY AREN'T THERE HEARINGS INVOLVED?

I: THINK WE HAVE A BETTER ANSWER TO YOUR QUESTION ON

PAGE 17 01' OUR PAPERS. THERE ARE RXALLY TWO SETS O F HEARINGS

THAT ARE BOING ON.

F I R S T O F ALL, REMEMBER THIS I S AN ORDINANCE THAT

REGULATES LANDLORDS. THERE I S NOT A SINGLE CLAUSE, PHRASE OR

SECTION WHICH PURPORTS TO I N F L I C T A PENALTY ON A TENANT OR DO

ANYTHING THAT DIRECTS A TENANT TO DO ANYTHING OR NOT. THE

ONLY PENALTY AND THE ONLY REGULATION I S OF THE LRNDLORD.
-- SO THE LANDLORD THE CONSEQUENCES THE LANDLORD

SUFFERS I S EITHER --THERE ARE REALLY TWO CONSEQUENCES. ONE

THAT I S A PRE-HEARING DEPRIVATION. AND THAT I S THE PROVISION

OF THE ORDINANCE WHICH SAYS THE UNDLORD ULN'T COLLECT RENT

I F H E ' S I N VIOLATION OF THE ORDINANCE I N THAT PARTICLILAB

DWELLING UNIT.

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-- BDT HE'S GIVEN POR THAT PARTICUUR ITEH THAT I S -- DEPRIVED W D THE ORDINANCE PROVIDES THAT GOES INTO EFFECT
RIGHT AWAY. THERE I S NO DEULYED EFFECTIVENESS ON THAT. THE LANDLORD HAS THE ABILITY, AS WE C I T E I N OUR PAPERS, TO FIRST OF ALL A P P W THE DETERHINATION THAT HE'S I N VIOLATION O F THE ORDINANCE TO THE C H I E F O F THE PLANNING AND BUILDING, I BELIEVE THE ORDINANCE PROVIDES FOR. AND I T ' S CITED I N W R PAPERS.
' I F THAT'S NOT SUFFICIENT, HE HAS THE RIGHT TO APPEAL
THE DETEMINATION THAT HE'S I N VIOLATION O F THE ORDINANCE AND SUSPENSION OF THE BUSINESS LICENSE TO THE FULL CITY COUNCIL. THAT'S THE N O W PROCEDURE THAT'S ALWAYS BEEN I N EFFECT FOR SUSPENSION OF BUSINESS LICENSES.
SO IN THAT SITUATION, IF THE LANDLORD FEELS THAT THE CITY HAS MADE A HISTAKE, HAS DONE SOMETHING WRONG, HE DOESN'T HAVE TO EVICT TENANTS, HE DOESN'T HAVE TO DO ANYTHING ELBE. HE DOES FACE THE JEOPARDY OF PERHAPS HAVING TO LET THE PERSON LIVE THERE RENT FREE DURING THE PENDENCY OF THE PROCEEDINGS, BUT HE DOES HAVE SUCCESSIVE APPEAL.
AS OVR PAPERS POINT OUT FROM THE CITY COUNCIL, O F COURSE, WE C I T E NUMEROUS CASES. THE LANDLORD ALSO HAS THE RIGHT TO THEN APPEAL V I A HANaAHUS T O SUPERIOR COURT, ARGUING THAT THE CITY COUNCIL HAD MADE AN INCORRECT DECISION.
AND BEFORE I GET TO THE SECOND SET O F HEARINGS, LET ME MENTION ONE THING. THERE WA3 A H A M THAT WAS MENTIONED BY
I WPUTER-AIDED TRANSCRIPTION

NR. GARRETT, THAT HE BELIEVES THAT SOHUiOU HE MIGHT BE POUND

I N VI0WLT:tON. AND THERE WOULD BE A PROBLEM, AND HOW CAN HE

TRUST THI!3 INTERPRETATION MEIIO, BECAUSE I T ' S GOING TO BE

YANKED OUT RIGHT I N FRONT O F HIM, AND THEN HE'LL SUFFER ALL'

THESE CON!IEQUENCES.

6

![. WOULD SUBMIT THAT Ii" SOHECUE AT THE CITY D I D

7

ANYTHING WHICH I S I N VIOLATION OF THE INTERPRETATION

8

WORANDUM, AND THEN ATTEMPTED TO ENFORCE AGAINST

9

MR. GARRETT, AT S W E POINT, MR. GARRETT I S GOING TO HAVE AN

10

IRONCLAD IlEFENSE THAT HE ACTED I N ACCORDANCE WITH THE

' 11

INTERPRETJVION OF THE C H I E F EXECUTIVE OFFICER OF THE CITY.

I2

$10 THE HARM THAT WAS DESCRIBED, THAT MR. GARRETT

13

MIGHT FACE: A PRDBLW BASED ON THE FACT O F T H I S

14

INTERPRETATION, CIUI'T BELIEVE T H I S INTERPRETATION OR NOT,

15

WITHIN THAT APPEAL STRUCTURE, THE CITY I S REALLY STUCK WITH

16

THEIR OWN INTERPRETATION.

17

THERE I S A SECOND S E T O F HEARINGS THAT WE DESCRIBED

18

THAT ARE AVAILABLE, AND THESE ARE TO THE TENANTS. AND,

19

OBVIOUSLY, I F THE TENANT BELIEVES THAT THE LANDLORD DOESN'T

20

-- HAVE CAUSE: TO EVICT HIM, AS WE'VE SAID ALL ALONG AND I

21

BELIEVE P I A I N T I F F S AGREE NOW. THERE I S NOTHING I N THE

22

ORDINANCE WHICH INTENUS TO PREEMPT STATE WLW.

23

AS MR. LINCOLN CLEARGY SAID IN RESPONSE TO YOUR

24

HONOR'S QUESTION, THE ORDINANCE DOESN'T ADD AN ADDITIONAL

25

CAUSE OF ACTION. WITHIN THE STATE COURT PROCEDURE, THERE

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WILL BE A HEARING I N FRCHT O F A STATE COURT JUDGE AS TO

W T H E R OR NOT THE LANDWRD HAS GROONDS TO EYICT THE TWANT.

THE COURT: THAT WWLD INCLUDE A DETERMINATION OF

WHETHER OR NOT THE PERSON I S A C T D W Y AN ILLEGAL ALIEN,

RIGHT, BECAUSE THAT'S TRE B A S I S O F THE EVICTION?

7

I

MR. GARRETT: WELL, LET ME SAY F I R S T , YOUR HONOR,
WOULD INCLUDE THE DETERIIINATION O F WHETHER OR NOT THE

IT

I

~RNDLORD HASA BASIS m R EVICTING THE TENANT.
-- THE COURT: YEW. BUT ATENANT I F YOU'RE SAYING

THAT T M EVICTION PROCEEDING I S THE TEXANT'S HEARING, Q W T E ,

UNQUOTE, AND THE TENANT HR9 A RIGHT TO CONFRONT THE EVIDENCE,

A S TO THE CAUSE O F THE EVICTION, THE TENANT COULD SAY, NUMBER

ONE, I T ' S NOT A VIOLATION O F STATE LAW8 AND THE STATE JUDGE WWLD HAVE TO DEAL WITH W T .
SECONDLY, I F HE SAYS, PROVE ran AN r L L e m ALIEN.

WHOSE BURDEN I S I T 7 A PIECE O F PAPER FROM SAVE I S P R W F TO

SATISEY A COORT THAT THE PERSON I S ILLEGAL. HOW DOES THAT TENANT DEAL WITH THAT ON A CONFRONTATION BASIS?
-- MR. GARRETT: WELL, I THINK I N THE W E WAY LDR

EXAMPLE, MR. LINCOLN USED THE EXAMPLE THAT I F A LEASE HAS A PROVISION THAT SAYS, NO E W N WiY L I V E I N THE S I T E . YOU

CJW'T BE CONVICTED O F A FELONY, OR YOU CAN'T BE COHMITTING A

CRIME WITHIN THE DWELLING UNIT. YOU CAU'T BE SELLING DRUGS.
-- THAT IS FOR EXAUPLE, THERE I S A CLIIUSE I N
UR. GARRETT'S LEASE AGREEMENT, ATTACHED TO H I S DECLARATION I N

I

I

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90

-- THIS CASE, WHICH THAT'S

HE HAS THAT PROVISION, THAT YOU

CAN'T SELL DRUGS.

THE W R T : YES. BlPT STATE C W R T J U f f i E S DEAL WITH THOSE 'THINGS ALL THE TIME. BUT NOW WE'RE GETTING TO THE RElW WHERE A STATE JUDGE I S DECIDING FEDERAL I M I G R A T I O N

I

( LAMS, 1\9 TO WHO I S ILLEGAL AN0 WHO I S NOT. A PERSON CEN BE
6

I

1 7

UNDOCUMENTED AND WVE A RIGHT TO BE HERE.

I.

A STATE COORT JUffiE I S NOW I N A POSTURE O F

DETERMINING WHETHER OR NOT THE TENANT I S ACTUALLY AN ILLEGAL

ALIEN UNDER ?EDERAL LAW BEkVRE HE CAN PROCEED WITH THE

EVICTION8 RIGHT?

UR. GARRETT: YES, YOUR HONOR. BUT I GUESS I W N ' T

SEE THE WANMRY, BECAUSE CONGRESS HAS SPOKEN VERY

DEFINITtVELY AN0 RAS SAID, I N SECTION 1373, THE I~IGRATION

AND NATllRALIZATION SERVICE HAS AN OBLIGATION TO RESPOND TO

INQDIRIES AND PROVIDe REQUESTED VERIFICATION OR STATUS

117

INFORHATION. AND THEY HAVE TO RESPOND TO ANY INQOIRY BY A

I

1%

F E D E W , STATE OR lOCRL GOVERNMENT AGENCY SEEKING TO VERIFY

19

OR ASCElrTAIN THE C I T I Z E N S H I P OR IUUIGRAT1,ON STATUS OF ANY

r 20
21
22

INDIVIDUAL WITHIN THE JURISDICTION OF THE AGENCY FOR ANY
PORPOSE AUTHORIZED BY LAW.
NOW --

23

THE CDURT: THAT'S TROE. BUT THE QUESTION' IS, BUT

24

THE HEARING I S FOR THE TENANT AT T H I S POINT8 NDT THE

25

LANDWRD. THE HEARING I S FUR THE TENANT. THE UNITED STATES

1
\__i

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I

COIJPOTER-AIDED TRANSCRIPTION

91

1

1

m m n e m WOULD NOT EXPEL, REMOVE OR DEPORT AN ALIEN WITHOUT

2

HIM OR HER VOLUNTARILY DOING SO, WITHOUT A HEARING WHERE THE

3

OOVERNMENT HAS THE BURDEN OF SHOWING THAT THE PERSON I S

4

ACTUALLY I U E W L L .

5

WHERE I S THAT PROCESS I N THE LRNDLORD/TENRNT LAW

6

BEFORE A SUPERIOR COURT JUDGE?

7

-- MR. GARRETT: WELL, YOUR HONOR, WHAT HAPPENED I F

%

-- I T , I N FACT, BECOMES A FACT QUESTION I N A LITIGATION AND

9

-- T H I S CAN HAPPEN I N ANY LITIGATION WHAT SOMEONE'S

10

DOCUMENTED STATUS I S , CONGRESS HAS PROVIDED THERE I S ONE

11

UECHANISM FOR DOING THAT. IT DOESNIT HAVE m BE A

12

LANOLORDITENANT LAW. THERE CAN BE A CONTRACT BETUEEN TWO

13

PRIVATE PARTIES.

14

AND 'IN THAT SITUATION. THE COURT IS GOING TO HAVE TO

15

MAKE A DETERHINATION OF WHETHER OR NOT THAT PERSON I S I N THE

16

-- UNITED STATES UNDER THE DEFINITION AND I N OUR CASE, I T ' S

17

NOT J U S T WHETHER OR NOT THEY ARE AN ILLEGAL ALIEN. I T I S

18

WETHER OR NOT THEY HAVE AVTHORIZEO PRESENCE WITHIN THE

19

UNITED STATES I N OUR ORDINANCE.

20

-- NOW, I F THE STATE COURT JUDGE I N THAT SITUATION

21

AND, AGAIN, WE'RE NOT THE STATE COURT JUDGE. WE'RE NOT I N

22

FRONT O F YOU. YOU'RE NOT RESTRAINING US. BUT LET'S SAY THAT

23

THE JUDGE DOES THAT, AN0 HE DOES THAT I N A WAY WHICH I S

24

INCONSISTENT WITH FEDERAL LAW AND PREEMPTED UNDER

OR

25

WHATEVER, THERE I S A REMEDY O F APPEAL.

41

92

YOU CAN SAY TO THE JUDGE, J U S T AS THE

CASE

STARTED I N STATE COORT AS WELL. AND I T WENT UP TO THE 0 . 8 .

SUPREME COURT, AND THE STATE COURTS I N THAT SITUATION HELD

THAT THE ORDINANCE WAS PREEMPTED.

THE COURT: SO THOSE CASES WOULD BE RF&3VED TO

FEDERRL COURT?

MR. GARRETT: NOT NECESSARILY REMOVED, YOUR HONOR.
-- BUT I F I T I S A ODESTION I T BECOHES A QUESTION OF FBDERhI.
-- LAW WHETHER SOMEONE HAS WHAT THEIR IMHIGRATION STATUS I S .

THE STATE COURT CAN DETERMINE THAT AND HAS TO DO THAT I N

ACCORDANCE WITH FEDERAL IRW.

JUST AS I F THE QUESTION I S , WAS THE TENANT DEALING

1l34

I

DRUGS, WAS THE TENANT CONVICTED O F SELLING DRUGS. TRE EVIDENCE O F THE CONVICTION WOULD BE PROVIDED, AND YOU'D HILVE

TO GO TO THE FEDERAL CQVERNHENT FUR THAT I F I T WAS A FEDERAL

17
I19
20 (

S O I HEAN, THERE ARE QUESTIONS O F PROOF AND VERACITY O F SOURCES WHENEVER Y W ' R E ASKING ABOUT S W E O N E ' S GOVERNMENT STATUS OR GOVERNMENT RECORD I N ANOTHER SITUATION. AND, P R E S W L Y , R E W N ' T HAVE TO BE THE GUARANTORS O F THE U L T I M T E COHPLETE EFFICRCY OF THE PROCESS.

THE QUESTION YOU ASKED I S , WAS THERE A HEARING, WILL

THERE BE AN OPPORTUNITY FOR W E PROCESS FOR BOTH S I D E S .

HOPEFULLY ALL THESE EXCELLENT LAWYERS W I L t BE RIGHT THERE FUR

EVERY TENANT WHO FACES T H I S SITUATION I N LRNDWRDITENANT

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COMPUTER-AIDED TRANSCRImION

SITUATIONS, TO PW(S SURE THAT THEY ARE KIT UNJUSTLY EVICTED

BECAUSE OF THEIR STATUS.

AND, AGAIN, I W O W 0 REMIND THE COURT THAT THE

PIAINTIFFS HAVE SAID IN THEIR DECWRATIONS THAT THESE LEASES

OF THE TWO PEOPLE THAT ARE IN FRONT OF YOU, OR AT L W S T ONE

OF THEM, THAT THE LEASE DOESN'T ALLOW FOR THE EVICTION UNDER

LANDU)RD/TENANT LAW.

AND I HOPE WE WERE C W R . THE ORDINANCE DOESN'T ADD
-- Tf3 THAT. AND WE'RE NOT IF THAT'S THE POSITION, THEN THE

JEOPARDY SITUATION THAT YOU'VE TALKED ABOUT SIMPLY DOESN'T

EXIST, BECAUSE IT'S ONLY WHERE A TENANT ENTERS INTO A LEASE

WHICH EXPRESSLY GIVES THE IJWDLORD THE ABILITY TO EVICT THAT

TENANT AS A RESULT OF THEIR IlMIGRATION STATUS, DOES THE

ISSUE ARISE IN THE FIRST INSTANCE UNDER THE PLAINTIFFS' VIEW

OF THE LAW.

THE COURT: THANK YOU, MR. WLRRETT.

COUNSEL, I APPRECIATE YOUR INPUT. I'M W I N G TO TAKE

A RECESS TO REVIEW THE BIDDING. I'LL TAKE A RECESS FOR AT LEAST 20 MINUTES.

ALL RIGHT. WE'RE IN RECES.8.

•

(RECESS, 5:20 P.M. TO 5:58 P.M.)

THE COURT: FIRST I'D LIRE TO THANK COUNSEL FOR YOUR

INPUT IN THIS MATTER. THE PLEADINGS WERE INMRMATIVE, AS

WELL AS THE ORAL ARGUMENT. I MUST SAY THAT, YOU IRIOW, THE

COURT HAS SPENT CONSIDEPABLE TIME ON THE PLEADINGS, AND

I

I

COHPUTER-AIDED TRANSCRIPTION

95
INJUNCTIVE RELIEF. AND UNDER THE ALTERNATIVE TEST, THE PLAINTIFF MUST SHOW EITHER A COMBINATION OF LIKELIHOOD OF SUCCESS ON THE MERITS OR THE POSSIBILITY OF IRREPARRBLE HARM, OR THAT SERIOUS QUESTIONS W TO THE MERITS AND THE BALANCE OF M D S H I P S TIPS SHARPLY IH THE UOVING PARTY'S FAVOR. '
WITH THAT, I HOVE TO THE ORDINANCE. HERE IN THE FIRST INSTANCE, IT APPEARS TO THE COURT THAT THE PLAINTIFFS CHALLENGE THE VALIDITY OF THE ORDINANCE AS WELL AS THE
-- MEMORANDhI. THE MEMORANDUM WAS HAD NOT BEeN FILED AT THE
TIME PLAINTIFFS FILED ITS HOTION. I'VE ACCEPTED PLAINTIFFS' RESPONSE OR REPLY TO THE OPPOSITION CONTAINING EVIDENCE OF THE HEMORANWU HERE IN OPEN COORT.
-- IN THE PLEADINGS WE HAVE NOT DISCUSSED THE ISSUE
AT LENGTH HERE, BUT IN THE PLWLDINGS, THE PLAINTIFFS CHALLENGE THE CITY'S ORDINANCE BASED UPON A LACK OF RATIONALIZATION BEHIND THE EXERCISE OF THE POLICE POWER THAT IS THE SUBJECT MATTER HERE.
THE PLAINTIFFS ALLEGE THAT THIS IS NOT A WIDLORD/TENANT ORDINANCE.' THIS IS AN ORDINANCE AKIN TO ONE OF STEPPING INTO THE SHOES OF THE STATE AND FEDERAL GOVERNUENT TO DERL'WITH THE PROBLM OF THE HARBORING OF UNDOCUMENTED ALIENS.
THAT ISSUE ASIDE, THE SECOND ARGUMENT HERE THAT PLAIUTIFFS HAVE RAISED HERE IN OPEN COORT IN REPLY TO THE
-- MFJ40RANDUH. IS THAT THE MEHORANWH THAT THE CITY MANAGER
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YOU'VE AHPLIFILO YOUR POSITIONS HERE ON OW& ARGUUENT. HERE IS THE CODRT'S TAKE ON THIS HATTER. WE ALL
-- KNOW THAT THE CITY WUNCIL IS GOVERNED IS CHARGED WITH THE
GOVERNANCE OF THE CITY AND IS TO ACT IN A MANNER TO REnECT THE WILL OF THE PEOPLE, AND THUS TO PROVIDE A SAFE AND HEALTHY ENVIRONHENT, AWJNG OTHER THINGS, FOR THE PEOPLE OF THE CITY OF ESCOdDIW.
FOR THESE REASONS AND CTHERB, LEGISLATIVE IIEASURES, SUCH AS ORDINANCES BY A CITY COUNCIL, SHOULD BE PRESUMED VALID. H W V E R , THE EXERCISE OF THIS POLICE POWER M S T F W WITHIN STATUTORY CONSTITUTIONAL CONSTRAINTS. AND THE COURT MUST TRY, ACCORDING TO THE CABE LAWS, TO CONSTRUE AN ORDINANCE TO AVOID CONSTITUTIONAL PROBLEUS.
WE'RE HERE TODAY BECAUSE THE PLAINTIFPS HAVE FILED A MOTION EUR A TEMPORARY RESTRAINING ORDER. UNDER THE TRADITIONAL TEST, A PARTY, THE PLAINTIFF, MUST SHOW A STRONG LIKELIHOOD OF SUCCESS ON THE MERITS, THE POSSIBILITY OF IRREPARABLE INJURY TO PLAINTIFF IF THE PRELIMINARY RELIEF IS NOT GRANTED, IF THE TEMPORARY RELIEF IS NOT GRANTED, AND A BALANCE OF HARDSHIPS FAVORING THE PLAINTIFF, AN0 IN CERTAIN CASES, THE AWANCeWEHT OF THE eVBLIC INTEREST.
WHERE THE PARTY DEMONSTRATES THAT A POBLIC INTEREST IS INVOLVED, THE DISTRICT COURT MUST ALSO EXAMINE WHETHER THE PUBLIC INTEREST FAVORS THE PLAINTIFF.
THERE IS AN ALTERNATIVE TEST UNDER RULE 65 FOR
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96 HAD NO AUTHORITY TO ISSUE THIS MEMORANDUUI THAT THE PIWORANDUM WAS ISSUED AFI'ER THE LAWSUIT WAS FILED AND FQR PURPOSES 'PO CHALLENGE THE CONTENTIONS MADE BY PLAINTIFFS IN THIS LAWSIJIT. AND IN THAT REGARD, THE COURT SHOULD GIVE IT LESS CREDI2NCE, IH THAT IT WAS PREPARED EUR PURPOSES OF LITIWLTION.
:IN THE COURT'S MIND, THERE IS A SERIOUS QUESTION REGARDING THE VALIDITY OF THE MENORANOUM. IN RICHARDSON, IN THE RICHAItDSOU CASE BY THE NINTH CIRCUIT, THE RICHARDSON COURT FOUND THAT WHILE THE CITY CANNOT DELEGATE ANY PART OF ITS GOVERNMENT POWER, IT MAY DELEGATE ADMINISTERIAL OR AWINISTRJLTIVE NNIXIONS TO ITS OFFICIALS.
IN THE NINTH CIRCUIT CASE OF SANTA MONICA W D S , THE UINTH CIR(:UIT HELD THAT A LIMITING INSTRUCTION OR UEHORAND[m THROUGH AN AIXIINISTRATIVE INSTRUCTION OR MEm) M Y AFFECT CONSTITUTXONAL ANALYSIS, IF THE CONSTRUCTION IS MADE EXPLICIT BY THE TEXTURAL INCORPORRTION, SUCH THAT IT BINDS JUDICIAL AND AM1NI:STRATIVE CONSTRUCTION OR WELL-ESTABLISHED PRACTICE.
IN THAT REGARD, HERE THE COURT FINDS THAT THERE IS NO EVIDWI(:E, VIA DECWRATIONS OR OTHERWISE, THAT THE CITY W A G E R OR THE CITY OF ESCONDIW HAD A WELL-ESTABLISHED PRACTICE <IF PREPARING W S TO INTERPRET ITS ORDINANCES.
!iLCONDLY, THERE IS NO TEXTURAL INCORPORATION, BINDING JUDICIAL OR ADMINISTRATIVE CONSTRUCTION CONTAINED IN THE ORDINANCE. THE CITY HAS PRESENTED TO THE COURT TWO
COMPUTER-AIDED TRANSCRIPTION

PROVISIONS FROH STATE GOVERNMDJT REPLECTINQ THAT THE CITY W A G E R IS THE ACMINISTRRTIVE HEAD OF THE CITY AND MUST DULY CNFQRCE ORDINANCES.
THE ENFQRCEPWT OF AN ORDINANCE AS AN EXECUTIVE SORT OF FWCTION, OR TO AMINISTRATE AS THE HEAD OF A CITY, AS AN EXECUTIVE SORT OF FONCTION, W E 9 NOT GIVE THE CITY MANAGER, IN THE COURT'S VIEW, THE AUTHORITY TO LEGISLATE OR TD INTERPRET TO THE POINT OF LEGISLATING A PARTICULAR ORDINANCE.
IN THE COURT'S VIEW, THE INTERPRETIVE M M O R R N D M IN THIS CASE GOES BEYOND THE ALHINISTRATIVE RESPONSIBILITY OF A CITY W A G E R , IN THE ABSENCE OF ANY EVIDENCE Cr'HERWISE IN THE RECORD, AND IT MOVES TCUARDS DELVING INTO THE ARER OF AMENDING SUBSTANTIVE PROVISIONS IN THE ORDINANCE.
IN THAT REGARD, THE CITY HANAGER HA3 STEPPED INTO THE ROLE OF CITY COUNCIL TO W MORE LEGISLATING THAN INTERPRETING OR IMPLPHENTING A LEGISLATIVE DOCUPIENT. THE COURT FINDS THERE IS SERIOUS QUESTIONS WITH RESPECT TO TAE VALIDITY OF THE INTERPRETIVE MEMORANDM.
THE W U R T LOOKS TO THE MERITS OF THIS CASE. I'D LIKE TO FOCUS ON TWO AT THIS JUNCTURE: DUE PROCESS AND THE SUPREHACY CLADSE.
PLAINTIFFS ASSERT THAT THE ORDINANCE FACIALLY DEPRIVES PLAINTIFFS OF DUE PROCESS, IN THAT THE ORDINANCE FAILS TO PROVIDE EITHER LANDLORDS OR TENANTS WITH NOTICE AND AN OPPORTUNITY TO BE HEARD BEFORE THE DEPRIVATION OF PROPERTY
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99 THE SECTION 10 PROGRRII. THEN IT WOULD BE MORE PUBLIC-ASSISTED HOUSING, BECAUSE THE FEDERAL GOVERNMENT OR THE STATE OR LOCAL GOVERNMENT RRS A PART IN ENSURING A PLACE
F ~ TRHAT TENANT TO LIVE.
THERE IS NOTHING IN THE RECORD TO SUGGEST THAT A TENANT BEING HOUSED BY A PRIVATE lANDOWNER IN A LANDLORD/TENANT CAPACITY EQUATES TO A PUBLIC BENEFIT THAT WOOLD PERMIT THE CITY TO UTILIZE THE SAVE PROGRAN TO OBTAIN DATA.
AND, ALSO, THE P R O W , THE REG REFLECTS THAT IT'S UPON THE CTTY TO MAKE A DETERMINATION OF ILLEGAL STATUS OF THE ALIEN AND PRESENT THAT INmRMATION TO THE FEDERAL GOVERNMENT, AS OPPOSED TO THE CITY SENDING INFORMATION TO THE FEDERAL GOVERNMENT FQR DETERMINATION IF A PERSON IS AN UNDOCUMENTED ALIEN.
DEFENSE COUNSEL IS RIGHT, THAT THE REG THAT I'VE TAKEN JUDICIAL NOTICE OF IS THE FEDERAL GOVERNMENT'S INTERPRETATION OF THE STATUTE, SECTION 1373lA) OF TITLE 8. BUT THE REG SAYS WHAT IT SAYS.
AND THE OTHER INFOlU4ATION PRESENTED TO THE COURT, NOT SUBMITTED IN THE PAPERS, WAS THAT THE SAVE PWX;RAM SYSTEM HAS BEEN UTILIZED FQR OTHER WBtIC BENEFITS, DRIVING PRIVILEGES AND SUCH. BUT THOSE ARE PUBLIC BENEFITS. THAT'S A PRIVILEGE, TO DRIVE ON THE PUBtIC HIGHWAYS. THE STATE HAS AN INTEREST IN REGULATING THAT PUBLIC BENEFIT, THAT
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OR LIBLRTY. THE DEFENDANT ASSERTS THAT THERE IS A

BOBSTAYTIAL PROCESS THAT MUST BE COMPLETED PRIOR TO

ENRYRCI'NENT.

IN THE COURT'S VIEW, THE RECORD DOES NOT BEAR THAT

OUT. IN THE COURT'S VIER. THE SUBSTANTIAL PROCESS REFERRED

TO BY THE DEFENDANT MAY NOT CONTAIN THE CONSTITUTIONALLY

ACCEPTABLE NOTICE AND HEARING COMPONENT. IT HAY NOT PROVIDE

m R NOTICE AND OPPORTUNITY TO BE HEARD AT A MEANINGFUL TIME
-- AND IN AMEANINGNL MANNER, AS PRESCRIBED EVEN IN A

POST-DEPRIVATION HEARING, AS PRESCRIBED BY THE U.S. SUPREME

COURT IN THE JAMES DANIEL GOOD CASE.

ALSO, THE PROVISIONS RELIED UPON BY THE D E m D A N T

REFLECT'I THAT THE FOWAL DETERMINATION AS TO A PERSON'S

STATUS 1:N THE UNITED STATES WILL BE MADE BY THE FEDERAL

'

GOVERHMEUT. THE EVIDENCE OF RECORD W E S NOT BEAR THAT OUT.

THE EVIDENCE OF RECORD REFLECTS, FROM THE FEDERAL REGISTER,
-- THAT THE SAVE PROGRAM SYSTEM SEVERAL REASONS.

FIRST, THE SAVE PROGW'S SYSTEM IS NOT A FINDING OF

FACT OR CONCLUSION OF LAW WITH RESPECT TO THE STATUS OF AN

ALIEN IN THE UNITED STATES. THAT'S A FEDERAL REGULATION THAT

SAYS THAT.

THAT SAME REGULATION REnECTS THAT THE SAVE PROGRAU

IS FOR TllE DETEWINATION OF PUBLIC BENEFITS. THERE COULD BE

A PUBLIC BENEFIT IF A TENANT WAS IN A HOUSING FACILITY THAT

WAS SUPPORTED OR ASSISTED THROUGH THE SECTION 8 P R O W OR

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PRIVILEGE.
-- THE COURT CANNOT SAY THERE IS NO EVIDENCE IN THE -- RECORD TO SUGGEST OTHERWISE THAT IT'S A PRIVILEGE TO LIVE
IN W E CITY OF ESCONDIW, AND THAT THE CITY OF ESWNDIM) CAN CONTROL WHO LIVES THERE WITHOUT VIOLATING OTHER
-- WNSTITUTIONAL PRINCIPLES, IN LIGHT OF THE REG IN LIGHT OF
THE ORDINANCE PRESENTED TO THE COURT. BEYOND THAT, T W ONLY HEARING REFERRED TO IN THE
ORDINANCE IS THE AOHINISTRATIVE HEARING} A PRKESS THAT APPEARS TO OCCUR WITHOUT AU INITIAL DUE-PROCESS HEARING. AmIN, THIZ DEFENDANT ASSERTS THAT A POST-DEPRIVATION HERRING IS CONSTITUTIONAL. AND IT NAY BE, UNDER THE RIGHT CIRCUMSTANCES. AND THE DEFENDANT ALSO ASSERTS THAT ALONG WITH THE A P P E W T E OPPORTUNITIES PERMITTING THE PROPERTY OWNER TO CONTEST, AS WELL AS THE PRROTECTONS UNDER CALIFQRNIA'S EVICTION LAW. THERE WILL BE NO WE-PROCESS VIOLATION.
-- FIRST, THERE IS NOTHING IN THE RECORD TO INDICATE
AND THE RECORD IS UNCLERR, AS TO WHETHER OR NOT THAT POST-DEPRIVATION HEARING WOULD BE HELD AT A MEANINGFOL TIME AND IN A MEANINGFUL MANNER. AND THE RECORD IS DEVOID OF ANY CONMENT OR SUGGESTION ABOUT THE DUE-PROCESS RIGHTS OF TENANTS IN THAT PROCESS.
AND WITH THE CONSTITUTIONAL TEST BEING THE THREAT AND HARM OF A CONSTITUTIONAL VIOLATION, A9 FAR AS IRREPARABLE
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1

HAW I S CONCERNED, THE HEARING, THE EVICTICU PROCEEDING THAT

1 I WRY OCCUR TWO TO FOUR WEEKS A m E R THE I N I T I A L NOTICE T W T THE
2

1 3

LANDLORD NEEDS DATA IROn A TENANT, I S NOT T M T THAT HEARING

1

I S AT A MEANINGFUL TIME AND TO BE HELD I N A HERNINGFUL

MRNNER. AS SUCH. THERE ARE SERIOUS QUESTIONS THAT ARISE WITH

RESPECT TO THE WE-PROCESS COMWNE?mS O F THE ORDINANCE.

WITH RESPECT TO THE SUPR!NXY CLAUSE, WE KNOW UNDER DECANAS VS. BICA, 8-I-C-A, THAT THE SUPREHG COURT HAS LAID

DOWN THREE TESTS TO DETERMINE WHETHER OR NOT A STATE OR LOCAL

IRW I S PREEMPTED BY FEDERAL LAW. I ' L L FOCUS ON THE LRST TWO.

12

I

THE SECOND TEST I S WHERE THE LOCAL LAW ATTEMPTS TO OPERATE I N AN AREA OCCUPIED BY THE FEDERAL GOVERNMENT.

111 3

T M T ' S PREEMPTION BY OCCUPATION. AND THE THIRD, WHERE THE LOCAL W TENDS TO BURDEN OR C O N n I C T WITH THE FEDERA2 LAW.

I

THE COURT FINDS THAT THERE I S SERIOUS QUESTIONS TO

BE RESOLVED ON THE MERITS WITH RESPECT TO THE SUPREHILCY

CLAUSE I N THESE TWO AREAS.

I NOTE THAT THE DEFENDANT C I T E S TO AUTHORITY

CONCERNING LOCAL LAWS INVOLVING EMPLOYMENT-RELATED CASES.

PLAINTIFF SUGGESTS THAT HARBORING I S DIFFERENT, I N T U T

CONGRESS HAS A FEDERAL STATUTE MRKING HARBORING A CRIME.

DECANAS W A 3 AN EMPLOYMENT W E . THERE ARE FEDERAL STATUTES THAT AFFECT AN0 PROHIBIT MRBORING UNDOCUMENTED

I

ALIENS. AS SUCH, THE COURT FINDS THAT THERE IS A SERIOUS

QUESTION TO BE ADDRESSED A S M WHETHER OR NOT THERE I S

.

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PREEMPTION I N HARBORING CASES BY OCCUPATION OF THE FIELD.

WITH RESPECT TO PREEMPTION BY BURDENING OR

C O N n I C T I N G WITH FEDERAL LAW, AGAIN, THE DEFENDANTS POINT TO
-- THE SYSTEMATIC~ I E NVERIFICATION m R ENTITLDIENTS PROGRAM

WHICH WE'VE REFERRED TO HERE AS THE SAVE PROGRAW, A COPY O F

WHICH I S ATTACHED A9 EXHIBIT 81 O F THE DEFENDANT'S
.-- PLEADINGS AS A M E R I N WHICH THE GOVERNMENT WILL VERIFY

1 8

WHETHER OR NOT A PERSON I S UNDOCUWdNTED.

I

ACCORDING TO THE DEFENDANT'S ORDINANCE, THE C I T Y

WILL SEND THE IDENTIFICATION DATA TO THE SAVE PROGRAM AND TRY

M GET SAVE TO VERIFY THE STATUS O F THE ALIENS. AS WE KNOW

FROn THE FEDERAL REGISTER, THAT'S NOT HOW THE P R O O M WORKS,

NUMBER ONE.

AND, NUMBER TWO, I T ONLY WORKS FOR PUBLIC AGENCIES

WHEN THE PUBLIC AGENCIES ARE INQUIRING WITH RESPECT TO PUBLIC

BENEFITS FOR AN INDIVIDUAL, TO DETERMINE WHETHER OR NOT AN

INDIVIDUAL I S E L I G I B L E POR PUBLIC BENEFITS; THAT I S , NOT AN

UNDOCUMENTED ALIEN. SO THERE ARE TWO POINTS O F SIGNIFICANCE

THAT BEG DISCUSSION HERE.

1 I N LIGHT O F THE EVIDENCE BEFORE THE COURT, THE SAVE

21

PROGRAM ONLY A S S I S T S STATE AND LOCAL GOVERNMENTS WITH THE

1 2 2

VERIFICATION O F IMMIGRATION STATUS OF PERSONS WHO APPLY FOR

I
1 I

,,.

OR ARE REC1:PIENTS O F FEDERAL OR OTHER PUBLIC BENEFITS. THE

DEFENDANTS HAVE NOT SHOWN THAT THE ORDINANCE A P P L I E S TO

ALLEGED ILLEGAL ALIENS APPLYING FOR FEDERAL OR OTHER PUBLIC

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BENEFITS. SECONDLY, THE REGULATION REQUIRES THAT APPLICATIONS
W R VERIFICATION O F STATUS O F INDIVIDUALS BE PRESENTED TO THE FEDERAL GOVERN ME^ A ~ E RTHERE HM BEEN A P O ~ L DETERPIINATION AND FINDINGS O F FACT AND CCUCLUSIONS O F LAW MADE A3 TO THE UNLAWFUL STATUS O F THAT PERSON.
HERE, THE ORDINANCE STATES THAT THE C I T Y WILL SUBMIT
THE IDENTIFICATION' OOCUMENTSTO THE FEDS POR THE FEDS m Y)MAKE
T M T DETERMINATION O F ILLEGAL STATUS. I T APPEARS THAT THE ORDINANCE MAY IMPERMISSIBLY BURDEN THE I.N.S. BY SUGGESTING TO THE I . N . 8 . TO MAKE A DETERHINATION, WHEN THE REG I S CLEAR THAT THE LOCAL AGENCY I S TO CONDUCT A FACT-FINDING I N A WRNAL MRTTER.
ACCORDING TO THE EVIDENCE BEFORE THE COURT, I T APPERRS THAT THE ORDINANCE CONFLICTS WITH FEDERAL REGS AND
TWT THE ORDINANCE, AS ~ L ASL THE n w , REQUIRE I.N.S. TO
VERIFY INFORWRTION, AS OPPOSED TO I T BEING THE OTHER WAY AROUND. A3 SUCH, I T APPEARS THAT THERE ARE SERIOUS QUESTIONS PRESENTED A S TO WHETHER OR NOT THE LOCAL LAW BURDENS OR CONFLICTS WITH FEDERAL LAW IM THIS REGULATED AREA.
HARDSHIP. I N LIGHT O F THE COURT'S CONCERNS REGARDING THE VALIDITY O F THE INTERPRETIVE MMORANDUM, THE COURT FINDS THE EXISTING L W W ARE IMPACTED BY THE ORDINANCE, AND THE PLAINTIFFS WILL SUFFER IRREPARABLE HAW.
THE COURT ALSO FINDS THAT EVEN I F THE HEMORANDUU WAS
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-- VALID, I S EVENTUALLY POUND TO BE VALID I'M NOT FINDING I T
INVALID AT T H I S POINT. I HAVE 8ERIOUS CONCERNS ABOUT THE VALIDITY O F THE MEMORANDUM.
I N THE EVENT THE COURT WOULD HRKE A FINDING AT T H I S TIME THAT THE MEMORANDUN WAS VALID, THE COURT FINDS THAT THERE I S IRREPARABLE HRRH LAID UPON LANDLORDS AND TENANTS, ECONOMIC W G E S AND SUCH, THAT W L D J U S T I F Y IRREPARABLE HAW.
BUT THE ALTERNATIVE TEST THAT THE COURT U T I L I Z E S
-- HERE I S THE ONE WHERE THERE EXISTS WHETHER OR NOT THERE
EXISTS SERIOUS QUESTIONS THAT GO TO THE W R I T S O F T H I S ACTIDN, NUMBER ONE. AND, NUMBER TWO, WHETHER OR NOT THE BRLRNCE O F HARDSHIPS T I L T SHARPLY I N THE PLAINTIFFS' FAVOR.
UNDER T H I S TEST, THE COURT FINDS THAT THERE ARE SERIOUS QUWTIONS GOING TO THE MERITS OF T H I S ACTION, AND THE W C E O F HARDSHIPS T I P SHARPLY I N THE P L R I N T I F F S ' FAVOR. THE DEFENDANTS PRESENTED NO SIGNIFICAUT EVIDENCE THAT A DELAY UNTIL T H I S FINAL HEARING I S HELD WOULD PREJUDICE THE C I T Y I N ANY MATERIAL WAY.
IT IS SUFFICIENT POR THE PLAINTIFF TO ESTABLISH A SIGNIFICANT THREAT O F IRREPARABLE INJURY, IRRESPECTIVE O F THE WGNITUDE O F THE INJURY, AND NEED NOT SHOW ACTUAL HARM, THAT THE P L A I N T I F F S WILL SUFFER ACTUAL HRRII. WHILE SPECULATION I S N ' T ENOUGH, THERE HAS TO BE A SIGNIFICANT THREAT O F IRREPARABLE INJDRY TO THE CONSTITUTIONAL RIGHTS O F THE
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PLRINTIFFS. THE COURT FINDS THAT THE PLRINTIFFS HAVE SHOWN THAT HERE.
IN sun, THE PLAINTIFFS HAVE ESTABLISHED THE SERIOUS
QUESTIONS THAT SURROUND THE UERITS OF THE CITY'S ACTIONS, AND THAT HARDSHIPS TIP SHARPLY IN PLAINTIFFSo FAVOR. AS SUCH, THE CODRT ORDERS THAT THE HOTION POR TEMPORARY RESTRAINING
ORDER IS GIVUITED. NOW, .THE COURT WILL 188UE A WRITTEN ORDER WITHIN THE
NEXT TWO BUSINESS DAYS THAT WILL INCORPORATE THIS ORAL RULING. AND IN THAT WRITTEN ORDER, THE COURT WILL SET DATES
THE COURT ANTICIPATES THAT THAT HEARING WILL OCCUR WITHIN THE NEXT 90 TO 120 M Y S TO ALLEVIATE ANY ALLEGED HRRH BY THE CITY IN THIS DELAY.
THAT'S THE COURT'S ORDER. WE'RE IN RECESS. (PROCEEDINGS CONCLUDED AT 6 1 2 0 P.M.)
CERTIFICATION I HEREBY CERTIFY THAT I AN A W L Y APPOINTED, QUALIFIED AND ACTING OFFICIAL COURT REPORTER FOR THE UNITED STATES DISTRICT COURT1 THAT THE FOREGOING IS A TRUE AND CORRECT TRANSCRIPT OF THE PROCEEDINGS HAD IN THE APOREWENTIONED CAUSE) THAT SAID TRANSCRIPT IS A TRDE AND
CORRECT TRAHSCRIPTION OF MP STENOGRAPHIC NOTES1 AND THAT THE
FORMAT USE0 HEREIN COHPLIES WITH THE RULES AND REQUIREMENTS OF THE UNITED STATES JWDICIAL 'CONFE&QlCE.
DATED: DECWBER 4, 2006

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