UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

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4 i 0 6 C V 0 1 48 7 E R w STEPHANIE REYNOLDS, FLORENCE )
S'TREETER, JACQUELINE GRAY, THE M m o p o L r r A N ST. Louis

EQUAL HOUSING OPPOR'I'UNITY

1

- .

Complainants, and JAMES ZHANG,
Intervenor,

1
) Cause No.
1

CITY OF VALLEY PARK, MO, JEFFERY WHITTEAKER, in his official capacity as Mayor of the City of Valley Park, MO, and JOHN BRUST, DANIEL ADAMS, RANDY HELTON, DON CARROLL, MICHAEL PENNISE, ED WALKER, STEVE DRAKE, and MIKE WHITE, in their official capacity as Aldermen of the City of Valley Park, MO,
Defendants.
NOTICE OF REMOVqL
To t h e Honorable Judges of the Unlted States District Court for the
Eastern Division of the Eastern Distrlct of Missouri:

Removing parties, City of Valley Park, Missouri, Jeffery Whitteaker, John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, and Mike White, by their undersigned attorney, respectfully show this Court:
1. Removing parties are the Defendants in the above-entitled action.
2. On September 22, 2006, the above-entitled action was commenced against removing parties in the Circuit Court of St. Louis County, Missouri, and is now pending in that Court.
3. On September 22, 2006, removing parties were served with a Summons and Petition at 320 Benton, Valley Park, Missouri, by serving a clerk of the City of Valley Park who accepted service for the City of Valley Park and the Mayor and Board of Aldermen, in the County of St. Louis, Missouri. This notice is filed within thirty (30) days after such service.
4. That Defendant, City of Valley Park, Missouri, is a Missouri municipal corporation of the fourth class; that the individual Defendants are members of the Board of Aldermen and are all residents of Valley Park, Missouri. The individual Plaintiffs are residents of the State of Missouri. The Metropolitan Equal Housing Opportunity Council is a Missouri corporation with its principal place of business in Missouri.
5 . That the above-entitled action is a suit for declaratory judgment and injunctive relief seeking attorney fees and arises under art. VI, cl. 2
(Supremacy Clause); art. I,5 8, cl. 4 (Naturalization); art. I, 5 8, cl. 3
(Commerce) of the United States Constitution and the 8th and 1 4 ~ ~

Amendments to the United States Constitution and 42 U.S.C. §€j 3601-19 (Fair Housing Act) in that Plaintiffs seek a determination as t o the constitutionality of Ordinance No. 1715 enacted September 26, 2006, by the City of Valley Park, Missouri, as more fully appears in the copy of the Complaint and Intervening Petition which is attached as a portion of Exhibit A, the complete file within the St. Louis County, Missouri, Circuit Court.
6. This Court has origindl jurisdiction of the action pursuant t o 28
U.S.C. €j1331 and removal of the action is proper pursuant t o 28 U.S.C. 5
WHEREFORE, removing parties pray that the above-entitled action be removed from the Circuit Court of St. Louis County, Missouri, t o this Court.
k09 Chesterfield Business Parkway kesterfield, MO 63005-1233 636-530-1515 636-530- 1556 (FAX) emartin772@aol.com Attorney for Defendants

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

'4 0 6 C V 0 1 4 8 7 ~R W STEPHANIE REYIVOLDS, FLORENCE

STREETER, JAcQuELIIVE GRAY,

I

THE METROPOLITAN ST. LOUIS

1

-

EQUAL HOUSING OPPORTUNITY

1

COUNCIL, INC.,

1

Complainants,

j

and JAMES ZHANG,
Intervenor,

) I n the Circuit Court of the County ) of St. Louis, State of Missouri
) Cause No. 06CC-003802
) Division 13

CITY OF VALLEY PARK, MO,

JEFFERY WHITTEAKER, in his official

capacity as Mayor of the City of

Valley Park, MO, and JOHN BRUST,

DANIEL ADAMS, RANDY HELTON,

DON CARROLL, MICHAEL PENNISE,

ED WALKER, STEVE DRAKE, and

MIKE WHITE, in their official capacity 1

as Aldermen of the City of Valley

1

Park, MO,

1

1

Defendants.

1

NOTICE OF FILING OF NOTICE OF REMOVAL

Pursuant t o 28 U.S.C. 5 1446(d), Defendants, City of Valley Park,

Missouri, Jeffery Whitteaker, John Brust, Daniel Adams, Randy Helton, Don

Carroll, Michael Pennise, Ed Walker, Steve Drake, and Mike White, give

notice t o the Circuit Court of St. Louis County, Missouri, and t o Linda

\
Martinez, Kathy A. Wisniewski, Elizabeth Ferrick, John Young, and Rhiana Sharp, Bryan Cave LLP; John J. Ammann and Susan McGraugh, Saint Louis University Legal Clinic; Samuel R. Bagenstos and Karen Tokarz, Washington University School o f Law, Civil Rights & Community Justice Clinic; Marie A. Kenyon, Catholic Legal Assistance Ministry; Jesus Ituarte, Ituarte and Schulte LLC; Anthony B. Rarnirez, Anthony B. Ramirez, P.C.; Fernando Bermudez, Green Jacobson & Butsch P.C.; Anthony E. Rothert, American Civil Liberties Union o f Eastern Missouri; Ricardo Meza and Jennifer Nagda, Mexican American Legal Defense and Educational Fund; Margo Schlanger, Washington University School of Law, Civil Rights & Community Justice Clinic; Lee Gelernt and Omar C. Jadwat, American Civil Liberties Union Foundation Immigrants' Rights Project; and Jennifer Chang, Attorneys for Plaintiffs, Stephanie Reynolds, Florence Streeter, Jacqueline Gray, The Metropolitan St. Louis Equal Housing Opportunity Council, Inc.; Alan J. Baker, Attorney for Intervenor, James Zhang, that Defendants have filed a Notice o f Removal, removing the above-captioned action t o the United States District Court for the Eastern District of Missouri, Eastern Division. A copy of the Notice of Removal is attached t o this Notice.

October 10 ,2006

10&,,~hesterfielBdusiness Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
Attorney for Defendants

CFRTIFICATE OF SERVICE
I,Eric M. Martin, Attorney for Defendants, City of Valley Park, Missouri, Jeffery Whitteaker, John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael P nise, Ed Walker, Steve Drake and Mike White, certify that
on October /&, 2006, a true copy of the foregoing Notice of Filing of
Notice of Removal was served by mail, postage prepaid, directed to:
Linda Martinez Kathy A. Wisniewski Elizabeth Ferrick John Young Rhiana Sharp Bryan Cave LLP One Metropolitan Square St. Louis, MO 63102
John J. Ammann Susan McGraugh Saint Louis University Legal Clinic 321 North Spring St. Louis, MO 63108
Samuel R. Bagenstos Karen Tokarz Washington University School of Law,
Civil Rights & Community Justice Clinic One Brookings Drive, CB 1120 St. Louis, MO 63130
Marie A. Kenyon Catholic Legal Assistance Ministry 321 N. Spring Avenue St. Louis, MO 63108
Jesus Ituarte Ituarte and Schulte LLC 2200 Pestalozzi Street St. Louis, MO 63118
Anthony 6. Ramirez Anthony 8. Ramirez, P.C. 1015 Locust Street, Suite 735 St. Louis, MO 63101

Fernando Bermudez Green Jacobson & Butsch P.C.
7733 Forsyth Blvd., Suite 700 St. Louis, IYO 63105
Anthony E. Rothert American Civil Liberties Union of
Eastern Missouri
4557 Laclede Avenue St. Louis, MO 63108
Ricardo Meza Jennifer Nagda Mexican American Legal Defense
and Educational Fund
11 E. Adams; Suite 700 Chicago, I L 60603
Margo Schlanger Washington University School of
Law, Civil Rights & Community Justice Clinic
One Brookings Drive, CB 1120 St. Louis, MO 63130
Lee Gelernt Omar C. Jadwat American Civil Liberties Union Foundation
Immigrants' Rights Project
125 Broad Street, 1 8 F~loo~r New York, NY 10004
Jennifer C. Chang
39 Drumm Street San Francisco, CA 94111
Alan 3. Baker
1620 S. Hanley St. Louis, MO 63144

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

STEPHANIE REYNOLDS, et al.,

)

)

Plaintiff(s),

)

)

vs.

)

)

CITY OF VALLEY PARK, MO, et al.,

)

)

Defendant(s).

)

Case No. 4:06CV01487 ERW

MEMORANDUM AND ORDER This matter comes before the Court upon Plaintiffs’ Emergency Motion to Remand and for an Award of Attorneys’ Fees [doc. #8]. I. PROCEDURAL BACKGROUND Plaintiffs in this action filed suit in the Circuit Court of St. Louis County on September 22, 2006, alleging that Ordinance No. 1708, passed by the City of Valley Park Board of Aldermen, was invalid, and to enjoin enforcement of that ordinance. Defendants in this action are the City of Valley Park, the Mayor of the city of Valley Park, and the eight Board of Aldermen in their official capacities. Plaintiffs sought to invalidate the Ordinance, seeking relief under the Missouri Declaratory Judgment Act.1 On September 25, 2006, the State court entered a Temporary

1Missouri Declaratory Judgment Act Provides: Any person interested under a deed, will, written contract or other writings constituting a contract, or whose rights, status or other legal relations are affected by a statute, municipal ordinance, contract or franchise, may have determined any question of construction or validity arising under the instrument, statute, ordinance, contract or franchise and obtain a declaration of rights, status or other legal relations thereunder. Mo.Rev.Stat. § 527.020 (2006) (emphasis added).
1

Restraining Order enjoining the enforcement of Ordinance No. 1708. The State Court further ordered expedited discovery, and scheduled a hearing on a preliminary injunction for November 1, 2006. On September 26, 2006, the City of Valley Park repealed portions of Ordinance No. 1708, and passed Ordinance No. 1715 (“the ordinance”), which addressed similar subject matter as Ordinance No. 1708. Plaintiffs then filed an amended petition in state court seeking to invalidate the ordinance, and seeking a modification of the Temporary Restraining Order to enjoin enforcement of Ordinance No. 1715, the state court so modified the Temporary Restraining Order. On October 6, 2006, Defendants filed a motion to modify the state court’s discovery schedule, which was granted. Defendants filed a notice of removal on October 10, 2006. Following the notice of removal, Plaintiffs filed a timely motion to remand, on October 16, 2006. This motion has been fully briefed by the parties, and a hearing was held before this Court on November 3, 2006. II. FACTUAL BACKGROUND
The ordinance in question placed requirements on landlords and employers to ensure that all residents and employees were legally present within the United States. In their State Court Petition, Plaintiffs averred that the ordinance was invalid because it: 1) violates the Supremacy Clause of the United States Constitution, Art. VI, Cl. 2, in that it encroaches on the federal government’s exclusive power to regulate immigration; 2) violates the Eighth and Fourteenth Amendments to the United States Constitution in that it imposes excessive fines; 3) violates the due process clause of the Fourteenth Amendment of the United States Constitution; 4) is preempted by, and violates, the provision of the Fair Housing Act, 42 U.S.C. § 3601-19; 5) is repugnant to Article I, § 10 of the United States Constitution in that it impairs obligations made under contracts; 6) exceeds the Defendants’ authority to enact legislation under Mo.Rev.Stat. §
2

79.110; 7) is repugnant to Article I, § 2 of the Missouri Constitution; 8) compels a violation of Mo.Rev.Stat. § 441.060, 9) violates Mo.Rev.Stat. § 79.470; 10) violates Article I, § 21 of the Missouri Constitution; 11) is void as an arbitrary and unreasonable exercise of delegated authority; 12) violates the due process guarantees of Art. I, § 10 of the Missouri Constitution, and 13) is repugnant to Art. I, § 13 of the Missouri Constitution in that it impairs the obligations made under contracts.2 No evidence or facts have been provided by either party of any specific enforcement action taken by the City of Valley Park against the Plaintiffs. III. FEDERAL JURISDICTION
A. STANDARD FOR FEDERAL JURISDICTION “Federal courts are courts of limited jurisdiction. They possess only that power authorized by Constitution and statute.” Kokkonen v. Guardian Life Ins. Co., 511 U.S. 375, 377 (1994). If a federal court takes action in a dispute over which it lacks subject matter jurisdiction, that action is a nullity. See Am. Fire & Cas. Co. v. Finn, 341 U.S. 6, 17-18 (1951); Hart v. Terminex Int’l, 336 F.3d 541, 541-42 (7th Cir. 2003) (stating that it was “regrettable” that the case had to be dismissed for lack of subject matter jurisdiction “rendering everything that has occurred in [the] eight years [of litigation] a nullity”). A claim may be removed to federal court only if it could have been brought in federal court originally; thus, the diversity and amount in controversy requirements of 28 U.S.C. § 1332 must be met, or the claim must be based upon a federal question pursuant to 28 U.S.C. § 1331. Peters v. Union Pac. R.R. Co., 80 F.3d 257, 260 (8th Cir. 1996). The party invoking jurisdiction bears the burden of proof that the prerequisites to
2These reasons for invalidating the ordinance are taken from Plaintiffs’ Memorandum in Support of their Emergency Motion to Remand, 3. Defendant relies on Plaintiffs’ statement in support of their arguments in favor of federal court jurisdiction. Def. Memo. in Opp. To Pl. Emergency Mot. to Remand, 2-3. As the parties agree on the reasons asserted by the Plaintiffs for invalidating the ordinance, this Court relies on Plaintiffs’ statements.
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jurisdiction are satisfied. Green v. Ameritide, Inc., 279 F.3d 590, 595 (8th Cir. 2002); In re Bus. Men’s Assurance Co., 992 F.2d 181, 183 (8th Cir. 1993).
Removal statutes must be strictly construed because they impede upon states’ rights to resolve controversies in their own courts. Nichols v. Harbor Venture, Inc., 284 F.3d 857, 861 (8th Cir. 2002). Although a defendant has a statutory right to remove when jurisdiction is proper, the plaintiff remains the master of the claim and any doubts about the propriety of removal are resolved in favor of remand. See In re Bus. Men’s, 992 F.2d at 183; McHugh v. Physicians Health Plan of Greater St. Louis, 953 F. Supp. 296, 299 (E.D. Mo. 1997). If “at any time before final judgment it appears that the district court lacks subject matter jurisdiction,” the case must be remanded to the state court from which it was removed. 28 U.S.C. § 1447(c) (2006).
In addition to the substantive requirements for removal to federal court, the party seeking removal must comply with certain procedural requirements. A defendant has a right to remove “any action brought in State court of which the district courts of the United States have original jurisdiction.” 28 U.S.C. § 1441(a). A defendant must file a notice of removal in the district court within thirty days of being served with the initial pleading. 28 U.S.C. § 1446(b). The time limit is mandatory and is strictly construed in favor of state court jurisdiction. See McHugh, 953 F. Supp. at 299 (internal citations omitted). If a defendant fails to timely file a notice of removal, the defendant’s right to remove is foreclosed. Id. Strictly construing the removal rules “promote[s] expedited identification of the proper tribunal.” Id.
B. DISCUSSION There is no suggestion that this is a diversity action, therefore removal is predicated upon 28 U.S.C. § 1331, which states “[t]he district court shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States.” Defendants seek to
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have this action heard in federal district court, whereas Plaintiffs seek to have the case remanded back to state court, where they originally filed their petition. Plaintiffs provide three bases for their motion to remand: 1) there is no subject matter jurisdiction, 2) Defendants waived their right to remove, and 3) even if this Court does have jurisdiction, it should abstain from hearing the case, pending the outcome of the state court action. Defendants disagree with all three arguments, with the most emphasis placed on this Court’s jurisdiction. This Court does not reach the Plaintiffs’ last two arguments as the Court finds that it lacks subject matter jurisdiction and therefore must remand to state court.
As noted above, this Court only has the authority to hear those cases authorized by the Constitution and statutes of the United States, or those cases where there is diversity of citizenship. Kokkonen, 511 U.S. at 377. Specifically, this Court must have been able to hear the action in the first instance. Peters, 80 F.3d at 260 (“A claim may be removed only if it could have been brought in federal court originally.”). The same analysis is used in actions brought in federal court originally and those removed to federal court. See e.g. Gramble & Sons Metal Products, Inc. v. Durue Engineering & Manufacturing, 545 U.S. 308, 312 (2005) (“[Defendant] was entitled to remove the quiet title action if [plaintiff] could have brought it in federal district court originally, 28 U.S.C. § 1441(a), as a civil action ‘arising under the Constitution, laws or treaties of the United States.’” (quoting 28 U.S.C. § 1331)). The Supreme Court has said a case “arises under” federal law “if in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law.” Franchise Tax Bd. of California v. Construction Laborers Vacation Trust, 463 U.S. 1, 9 (1983). Notwithstanding the numerous Supreme Court decisions addressing the issue of removal, it is not always a clear question. The Court has described the issue of a federal question as having “no
5

single, precise definition;. . . rather, the phrase arising under masks a welter of issues regarding the interrelation of federal and state authority and the proper management of the federal judicial system.” Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 808 (internal citations omitted); see also Grumble, 545 U.S. at 314 (“These considerations have kept us from stating a ‘single, precise, all-embracing’ test for jurisdiction over federal issues embedded in state-law claims between nondiverse parties.”). The Court follows this admission of the confusing nature of federal question jurisdiction by stating that “[t]he vast majority of cases that come within this grant of jurisdiction are covered by Justice Holmes’ statement that a ‘suit arises under the law that creates the cause of action.’” Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 808 (internal citations omitted). In order for Defendants to defeat Plaintiffs’ motion to remand they must prove either that federal law creates the cause of action (the majority of cases as stated by Justice Holmes), or in the alternative, that the state law claim necessarily raises a substantial federal issue. Id. The later alternative creates the more complex question; the complexity is further compounded in the present case by the procedural posture as a suit for a declaratory judgment.
Plaintiffs argue that this case arises solely under state law, and therefore removal was inappropriate, specifically, they suggest that each of the federal law bases for invalidating the ordinance are theories, not claims. Defendants, however, argue that each “theory” proposed by the Plaintiffs for invalidating the ordinance is a separate claim, and therefore if any one of them necessarily involves a question of federal law, then the case was properly removed. Much of the parties discussion during the hearing on this matter, revolved around the language used by the Supreme Court in their decisions on removal jurisdiction; whether the case involves a number of different claims, causes of action, or theories, and whether this is determinative of the question of federal jurisdiction. Although this Court notes it is important to be accurate in the use of
6

terminology, and understands that there is a distinction between theories and claims, the emphasis by the parties on linguistics is unnecessary.3 This case requires the Court to determine whether the case could have originally been brought in federal court, which requires a showing by Defendants that Plaintiffs’ complaint arises under the laws of the United States. Green, 279 F.3d at 595. To determine if such a showing has been made this Court looks at whether the Plaintiff is obliged to prove the applicability and correctness of a proposition of federal law in order to receive relief for their claim. Franchise Tax Bd., 463 U.S. at 9 (“[F]or purposes of § 1331 an action arises under federal law if in order for the plaintiff to secure the relief sought he will be obliged to establish both the correctness and the applicability to his case of a proposition of federal law.” (Internal quotations omitted)). Whatever the parties call the theories alleged by Plaintiffs, the question of whether they are necessary for Plaintiffs to secure the relief sought, remains the same. This Court holds that Defendants have failed to meet their burden. Plaintiffs could receive the desired relief without reference to federal law.
1. FEDERAL LAW CREATES THE CAUSE OF ACTION Plaintiffs’ primary argument is that their petition in state court arose solely under Missouri law, namely the Missouri Declaratory Judgment Act. Pl. Memo. of Law in Sup. of their Emergency Mot. to Remand, 1, however, this argument is not entirely persuasive. One way Defendants can show this case is properly before this Court is to show that the well-pleaded complaint actually states a cause of action under federal law. Plaintiffs are seeking a declaration that the ordinance is invalid, under a variety of theories, some of which rely on federal law, some
3The Supreme Court uses the term “claim” to refer to the type of action that is being brought by the plaintiff, and uses “theory” to address those arguments made by the plaintiff in support of their claim. Claim and “cause of action” appear to be used interchangeably, and may rely upon common law, or have a statutory basis. See e.g. Gramble, 545 U.S. at 314 (“state law claim”).
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which rely solely on state law. Id. Defendants argue that Plaintiffs’ state law action contains five distinct claims under federal law.4 Defendants further argue that these are distinct federal questions that require the interpretation of federal law or the United States Constitution. Def. Memo. of Law in Opp. to Pl. Emergency Mot. to Remand, 3. This Court finds that each of the federal questions that are presented by the Plaintiffs’ state court complaint are theories under a single state claim, and therefore do not provide the basis for federal question jurisdiction. However, the Plaintiffs are also mistaken in their belief that the single claim is a declaratory judgment claim; rather it is a claim to invalidate the city ordinance.
Numerous Supreme Court decisions emphasize the importance of the well-pleaded complaint rule. See e.g. Franchise Tax Board, 463 U.S. at 9-10; Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 808. The rule states that “the question of whether a claim ‘arises under’ federal law must be determined by reference to the ‘well-pleaded complaint.’ A defense that raises a federal question is inadequate to confer federal jurisdiction.” Merrell Dow Pharmaceuticals, 478 U.S. at 808. Defendants argue that the Plaintiffs’ well-pleaded complaint asserts claims arising under federal law. In arguments before this Court, the Defendants asserted that many of the Plaintiffs’ arguments alleging preemption by federal law, could have been brought originally in Federal court, and that Plaintiffs would not have had to provide any additional basis for federal
4“Plaintiffs concede that their amended petition not only presents one federal law claim, but that it present [sic] five distinct claims under federal law: 1. A claim that the Ordinance in question is preempted by federal immigration laws and therefore violates the Supremacy Clause of the U.S. Constitution. 2. A claim that the Ordinance violates the Eighth and Fourteenth Amendments of the U.S. Constitution. 3. A claim that the Ordinance violates the Due Process Clause of the Fourteenth Amendment to the U.S. Constitution. 4. A claim that the Ordinance is preempted by the federal Fair Housing Act, 42 U.S.C. §§ 3601-19, and therefore violates the Supremacy Clause. 5. A claim that the Ordinance violates the Contracts Clause of Article I, § 10 of the U.S. Constitution.” Def. Memo. in Opp. to Pl. Emergency Mot. to Remand, 2-3.
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jurisdiction.5 This is a dubious argument, even assuming that Plaintiffs could have raised the preemption “claims” in federal court, it is not clear that they could have done so at the present time, and in the present procedural posture. The better reasoned argument is that Plaintiffs’ claim is the ordinance is invalid, and they are seeking relief under the Missouri Declaratory Judgment Act.
The first issue to decide is the basis for Plaintiffs’ action in state court. Unlike Plaintiffs’ assertions, the Missouri Declaratory Judgment Act does not “enlarge the jurisdiction of the court over subject matter or parties, but merely opens the doors of the court to certain potential defendants or plaintiffs at a stage prior to that justifying an action for other traditional relief.” Farmers Ins. Co., Inc. v. Miller, 936 S.W.2d 104, 106 (Mo.App., 1996); see also Hardware Center, Inc. v. Parkedge Corp., 618 S.W.2d 689, 694 (Mo.App., 1981) (“The Act does not enlarge the jurisdiction of the court over subject matter or parties.”). The Missouri Act is not one of substance, but rather is a procedural statute, allowing Missouri Courts to hear an action at an earlier point in time than would otherwise be available. In the present case, the Plaintiffs must have some other cause of action, or claim, than simply seeking a declaration; they must prove that they “are sufficiently affected so as to insure [sic] that a justiciable controversy is presented to the court.” Farmers Ins. Co., Inc., 936 S.W.2d at 106. In this case they are seeking to prevent the enforcement of a local ordinance, by requesting a declaratory judgment that the ordinance is invalid. Clearly the Plaintiffs would have a justiciable controversy once the ordinance was
5Defendants seem to be arguing that if even one of the Plaintiffs’ “claims” is based on a federal cause of action, then the remaining claims would be valid before this Court on the basis of supplemental jurisdiction. However, Defendants did not specifically invoke this Court’s supplemental jurisdiction in their notice of removal. As this is not decisive of the case, the Court does not decide whether Defendants failure to invoke this Court’s supplemental jurisdiction is fatal, as the Plaintiffs would have the Court rule.
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enforced against them, and it is not this Court’s role to interpret at what point the Missouri Declaratory Judgment Act provides a justiciable controversy in Missouri Courts. However, it does require this Court to determine what the underlying action is, in order to determine if it involves a federal question. The underlying action cannot be one for a declaratory judgment, as asserted by the Plaintiffs, as the Missouri Declaratory Judgment Act enlarges the forms of relief, not the jurisdiction over subject matter. The relief sought by Plaintiffs is for a declaratory judgment; the subject matter is the validity of a local city ordinance.
As the claim asserted by Plaintiffs is not for a declaratory judgment, this Court must then determine whether each reason presented by Plaintiffs for invalidating the ordinance are separate claims. Plaintiffs present a plethora of reasons why the city ordinance is invalid, many of which raise questions of state law, which if decided in Plaintiffs favor would invalidate the ordinance, without the need to address the remaining federal bases for invalidation. As federal jurisdiction requires the presence of a necessary federal question, the presence of independent state law bases for invalidation, prevent the federal questions from being necessary. Franchise Tax Bd., 463 U.S. at 9. It is important to note that even when the plaintiff’s well-pleaded complaint raises only state law claims, a federal question may still exist, if plaintiff’s state law claims are preempted by federal law. In order for a state law action to be removable on the basis of preemption, the state cause of action must be completely preempted by federal law, the defense of preemption is not sufficient. Gaming Corporation of America v. Dorsey & Whitney, 88 F.3d 536, 542-543 (8th Cir. 1996) (“A federal defense, including the defense that one or more claims are preempted by federal law, does not give the defendant the right to remove to federal court. Complete preemption provides an exception to the well-pleaded complaint rule and is different from preemption used only as a defense.”). “Complete preemption can arise when Congress intends that a federal
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statute preempt a field of law so completely that state law claims are considered to be converted into federal causes of action.” Id. at 543. Defendants point to Plaintiffs’ complaint, and assert that Plaintiffs’ argument that the local ordinance is directed at regulating immigration, renders their claims preempted under federal law. Def. Memo. in Opp. to Pl. Emergency Mot. to Remand, 4. Defendants further argue that if one claim is preempted under federal law, then the entire case is removable to federal court. Gaming Corporation of America, 88 F.3d at 543 (“[T]he presence of even one federal claim gives the defendant the right to remove the entire case to federal court.”).
Before deciding the question of whether Plaintiffs’ claims are preempted because they allege violation of the federal immigration laws, this Court must determine whether Plaintiffs’ claims are actually in the nature of defenses, because preemption as a defense is not a sufficient basis for removal. Gaming Corporation of America, 88 F.3d at 542-543. Plaintiffs’ action was brought as a declaratory judgment, which although does not provide a new cause of action, it does change the procedural posture of the case. Plaintiffs argue that the posture of the case requires this Court to look at the threatened action as the claim, which must arise under federal law in order for this court to have subject matter jurisdiction. Plaintiffs further argue that the reasons for invalidation, presented in their state law complaint, are actually in the nature of defenses. Since removal cannot be based on anticipated federal defenses, Plaintiffs argue the case should be remanded, as the only federal questions arise as defenses. See Merrell Dow Pharmaceuticals, 478 U.S. at 808. “[A] suggestion of one party that the other will or may set up a claim under the Constitution or laws of the United States does not make the suit one arising under the Constitution or those laws.” Skelly Oil Co. v. Phillips Petroleum Co., 339 U.S. 667, 672 (1950). The Court in Skelly Oil, is adamant, that the Declaratory Judgment Act is not
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intended to allow purely state law claims to be heard in federal court on the basis of what would otherwise be a federal defense. 339 U.S. at 673 (“It would turn into the federal courts a vast current of litigation indubitably arising under State law, in the sense that the right to be vindicated was state-created, if a suit for a declaration of rights could be brought into the federal courts merely because an anticipated defense derived from federal law.”). In this case the threatened action would be the enforcement of the ordinance against Plaintiffs. The Eighth Circuit has held that
[w]here the complaint in an action for declaratory judgment seeks in essence to assert a defense to an impending or threatened state court action, it is the character of the threatened action, and not of the defense, which will determine whether there is a [sic] federal question jurisdiction in the District Court. Postscript Enterprises, Inc. v. Westfall, 771 F.2d 1132, 1137 (8th Cir. 1985). It is clear that if the City of Valley Park sought to enforce the ordinance against the Plaintiffs, they could not do so in federal court, regardless of the defenses raised by Plaintiffs. This supports Plaintiffs’ argument that the federal issues raised in this case are in the nature of defenses, rather than claims. This Court holds that because this is a declaratory judgment action, the threatened action, in this case enforcement of the ordinance, is determinative of federal question jurisdiction, and in this case it does not raise a federal question. Therefore this Court is not required to address the question of whether federal immigration law completely preempts a state law on immigration. Even assuming that the federal issues raised by Plaintiffs are claims, which this Court holds they are not, this case still could not have been brought in federal court, because the Federal Declaratory Judgment Act requires an actual case or controversy. Public Service Commission of Utah v. Wycoff Co., 344 U.S. 237, 242 (1952) (“This Act was adjudged constitutional only by interpreting it to confine the declaratory remedy within conventional ‘case or controversy’ limits.”). See also Skelly Oil Co., 339 U.S. at 671 (“Congress enlarged the range of remedies
12

available in the federal courts but did not extend their jurisdiction.”). There is no evidence in the present case that the Defendants have taken action to enforce the ordinance against the Plaintiffs. Regardless of whether the Plaintiffs’ claim is valid in state court at this early stage, before any enforcement action has been taken,6 the case could not have been brought in federal district court under the Federal Declaratory Judgment Act. Both parties in the hearing agreed that the present case is not ripe, and therefore this Court would not have original jurisdiction under the Federal Declaratory Judgment Act. The Supreme Court has held that “to be cognizable in federal court, a suit. . . must be a real and substantial controversy admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts.” North Carolina v. Rice, 404 U.S. 244, 246 (1971). See also, Lake Carriers’ Ass’n v. MacMullan, 406 U.S. 498, 506 (1972). Specifically in the context of declaratory judgments, the Eighth Circuit has described ripeness as requiring an examination of both “the fitness of the issues for judicial decision and the hardship to the parties of withholding court consideration.” Nebraska Public Power Dist. v. MidAmerican Energy Co., 234 F.3d 1032, 1038 (2000), see also Gopher Oil Co. v. Bunker, 84 F.3d 1047, 1050 (1996). In the present case, Plaintiffs seek a declaration that the ordinance passed by the city of Valley Park is invalid. However, they have provided no concrete evidence that the ordinance has been enforced, or that there was a specific threat of enforcement against any of the Plaintiffs. Under the federal case or controversy requirements, Plaintiffs have not asserted facts that distinguish this from an advisory opinion. Case County v. U.S., 570 F.2d 737 (1978) (“A justiciable controversy is thus
6The Parties disagree over whether the Defendants have attempted to enforce the ordinance. In the hearing, Plaintiffs argued that there had been no enforcement against the specific Plaintiffs in the case. Defendants responded that the state court’s temporary restraining order, stated that it was to prevent further enforcement of the action. The Court assumes for purposes of this analysis that there has been no enforcement action against the specific Plaintiffs.
13

distinguished from a difference or dispute of a hypothetical or abstract character; from one that is academic or moot.”). The Eighth Circuit further emphasizes that there must be a controversy which is “admitting of specific relief through a decree of a conclusive character.” Id. It is not clear that in the present case a decree by this Court would have any immediate effect, as there was no attempt to enforce, or threat to enforce the ordinance in question. As stated above, ripeness is a question of timing. It may be that at some point in the future this case becomes justiciable, but as the parties agreed in the hearing, it is not presently justiciable in federal court.
Additional support for this Court’s holding is found in Wycoff, which emphasizes that “[i]t is state courts which have the first and the last word as to the meaning of state statutes, . . . we have disapproved anticipatory declarations as to state regulatory statutes. . ..” Id. at 247. The court in Wycoff was concerned with the interference that a federal declaratory judgment could have with the state court proceedings regarding state legislation. Although the case at bar is of a slightly different posture, the same concern exists. It would not be the place of this Court, through original or removal jurisdiction, to declare a state statute unconstitutional or in violation of federal law, before the statute had been enforced against any individual, and before the state court had had the opportunity to address the legality of the statute.
2. NECESSARILY INVOLVES FEDERAL QUESTION As Defendants are unable to show that Plaintiffs’ complaint is based on a federal cause of action, the Court must next address whether the “plaintiffs right to relief depend[s] necessarily on a substantial question of federal law.” Merrell Dow Pharmaceuticals Inc. v. Thompson, 478 U.S. 804, 807 (1986) (emphasis in original) (quoting Merrell Dow Pharmaceuticals Inc. v. Thompson, 766 F.2d 1005, 1006 (6th Cir. 1985)). An early Supreme Court decision addressing the question of arising under jurisdiction stated that “[t]o bring a case within the statute, a right or immunity
14

created by the Constitution or laws of the United States must be an element, and an essential one, of the plaintiff’s cause of action.” Gully v. First Nat. Bank in Meridian, 299 U.S. 109, 112 (1936) (emphasis added). The essential element “must be such that it will be supported if the Constitution or laws of the United States are given one construction or effect, and defeated if they receive another.” Id. The Court, in even more exacting language, stated that “[a] suit to enforce a right which takes its origin in the laws of the United States is not necessarily, or for that reason alone, one arising under those laws, for a suit does not so arise unless it really and substantially involves a dispute or controversy respecting the validity, construction or effect of such a law, upon the determination of which the result depends.” Id. at 114 (emphasis added). The Supreme Court has also stated that this alternate method of finding federal court jurisdiction is a “special and small category” of cases; further supporting this Court’s finding that the present case does not fall within this category. Empire Healthchoice Assurance, Inc. v. McVeigh, 126 S.Ct. 2121, 2136 (2006).
In the present case it is undisputed that the Plaintiffs are raising objections to the ordinance based on their rights under the United States Constitution and the laws of the United States.7 Even assuming that Plaintiffs’ arguments are not defenses, which entirely disposes of this case, these federal defenses, or theories of invalidation, are not required in order for their claim to be successful. As stated above, Plaintiffs do not assert five separate federal claims, as Defendants would have us find, but rather theories in support of their claim. As Plaintiffs stated numerous times in their briefs and in the hearing before this Court, Plaintiffs can receive the desired relief, a declaration that the ordinance is invalid, without a determination of any federal issues in the case.
7Plaintiffs’ Emergency Motion to Remand, 1 (Plaintiffs state that they allege “alternate federal theories” in support of their action for declaratory judgment.).
15

Pl. Memo. in Sup. of their Emergency Mot. to Remand, 6. In other words, the result does not depend on the determination of a federal question. Defendants were quick to respond that the action will likely involve the reference to federal law, based on the Plaintiffs’ numerous federal grounds for invalidating the ordinance. It may be that the state court will find the ordinance valid under Missouri state law and will then need to turn to federal law, however the requirement is not whether federal law may arise in the case, but rather that federal law is an essential element; here it is not. Gully, 299 U.S. at 112.
C. CONCLUSION Defendants have failed to meet their burden that Plaintiffs’ well-pleaded complaint arises under federal law. Green, 279 F.3d at 595. The Defendants have failed to persuade this Court that the Plaintiffs’ complaint raises a cause of action created by federal law, or in the alternative that the “vindication of a right under state law necessarily turn[s] on some construction of federal law.” Merrell Dow Pharmaceuticals, Inc., 478 U.S. at 808. Plaintiffs are challenging the validity of a local ordinance, and provide numerous theories for why the ordinance should be invalidated. They do not state a claim under federal law, in fact, both parties agreed that the present case could not have been brought in federal court under the Federal Declaratory Judgment Act. Furthermore, the federal questions that may be involved in the ensuing litigation, are in the nature of defenses to what would normally be an action to enforce the ordinance against the Plaintiffs. Even assuming that Plaintiffs’ theories are not in the nature of defenses, Plaintiffs can succeed on their claim without proving any federal question; Plaintiffs’ recovery does not necessarily depend on a construction of federal law. Therefore Plaintiffs’ motion to remand is granted. IV. Attorneys’ Fees
16

Federal statute provides that “[a]n order remanding the case may require payment of just costs and any actual expenses, including attorney fees, incurred as a result of the removal.” 28 U.S.C. § 1447(c). The Supreme Court in Martin v. Franklin, discussed at length when it is appropriate to award costs after it is determined that the federal court lacked jurisdiction, and the case is remanded. 126 S.Ct. 704 (2005). Fee shifting in remand cases is not automatic, but rather is intended only “to deter removals sought for the purpose of prolonging litigation and imposing costs on the opposing party. . ..” Id. at 711. The fee shifting provision should not be used to “undermin[e] Congress’ basic decision to afford defendants a right to remove as a general matter. . ..” Id. at 711. In looking at the Congressional intent in enacting the removal provision, the Supreme Court dictates that “awarding fees should turn on the reasonableness of the removal. Absent unusual circumstances, courts may award attorney’s fees under § 1447(c) only where the removing party lacked an objectively reasonable basis for seeking removal.” Id.
Both parties cite to the above case in support of their brief arguments that attorneys fees are or are not appropriate. The Plaintiffs have not provided this Court with any evidence that the Defendants were motivated by a desire to delay litigation, or to impose additional costs on the Plaintiffs. The Defendants had numerous well reasoned arguments in support of their notice of removal and in opposition to Plaintiffs’ motion to remand. The facts of this case do not show that Defendants lacked an objectively reasonable basis for seeking removal, and therefore the Congressional desire to afford Defendants a right to remove lead this Court to deny Plaintiffs’ request for attorneys fees. Accordingly,
IT IS HEREBY ORDERED that Plaintiffs’ Emergency Motion to Remand [doc. #8] is GRANTED.
17

IT IS FURTHER ORDERED that Plaintiffs’ Motion for an Award of Attorneys’ Fees [doc. #8] is DENIED.
IT IS FURTHER ORDERED that Defendants Burst, Adams, Helton, Carroll, Pennise, Walker, Drake, and White’s Motion to Dismiss is DENIED as moot. Dated this 15th day of November, 2006.
____________________________________ E. RICHARD WEBBER UNITED STATES DISTRICT JUDGE
18

 
 Case 4:07-cv-00881-ERW Document 50 Filed 08/09/2007 Page 2 of 2

r

For File Stamp Only

l

. ~ . / :/::t:lJ) 7

Date
07CC

CJO,'{J-DcUt:.:.. -tCILED

Case Number

yr-

SO ORDERED

Attorney

Fax No.

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

BILL NO. 1896

ORDINANCE NO. 1745

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

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

 
 BILL NO. 1851

ORDINANCE NO. 1708

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

AN ORDINANCE RELATING TO ILLEGAL IMMIGRATION WITHIN THE CITY OF VALLEY PARK, MO

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

WHEREAS, the Board of Aldermen of the City of Valley Park finds that illegal immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, and destroys our neighborhoods and diminishes our overall quality of life; and

WHEREAS, the City of Valley Park is empowered and mandated by the people of the City of Valley Park to abate the nuisance of illegal immigration by aggressively prohibiting and punishing the acts, policies, people and businesses that aid and abet illegal aliens;

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

Section One

DEFINITIONS.

Whenever used in this chapter, the following terms shall have the following meanings:

“City” means the City of Valley Park, Missouri;

“Contract employer” means any person who obtains the services of one or more individuals through a day labor agency; and

“Vehicle” means a vehicle as defined in State or Missouri Vehicle Code as the same now reads or may hereafter be amended.

Section Two

BUSINESS PERMITS, CONTRACTS OR GRANTS.

Any for-profit entity, including acts committed by its parent company or subsidiaries, that aids and abets illegal aliens or illegal immigration shall be denied approval of a business permit, the renewal of a business permit, city contracts or grants for a period not less that five (5) years from its last offense.

A. Aiding and abetting shall include, but not be limited to, the hiring or attempted hiring of illegal aliens, renting or leasing to illegal aliens, or funding or aiding in the establishment of a day laborer center that does not verify legal work status.

B. Any act that aids and abets illegal aliens within the United States, not just within the City limits, will constitute a violation.

Section Three

RENTING TO ILLEGAL ALIENS.

A. Illegal aliens are prohibited from leasing or renting property. Any property owner or renter/tenant/lessee in control of property, who knowingly allows an illegal alien to use, rent or lease their property shall be in violation of this section.

B. Any person or entity that violates this section shall be subject to a fine of not less than Five Hundred Dollars ($500.00).

ENGLISH ONLY.

Section Four

A. The City of Valley Park declares that English is the official language of the City.

B. Unless explicitly mandated by the federal government, the State of Missouri or the City of Valley Park, all official city business, forms documents, signage, telecommunication or electronic communication devices will be conducted or written in or utilize English only.

Section Five

SEVERABILITY.

If any part of provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part of provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.

Section Six

This ordinance shall become effective from and after its passage and upon approval by the Mayor.

PASSED AND APPROVED THIS 17TH DAY OF JULY, 2006

 
 I

I

I

THE CITY OF

1

320 BENTON STREET VULEY PARK,MO 63088 (636)225-5171

To: Landlord or Employee

Re: Aiding o r ~ b e t t l nIll~egal Aliens in Violation of Ordinance 1708

Dear Sir:

The city of Valley Park has been notified that there are reasonable grounds t o believe that you may be in violation of Ordlnance No. 1708 in that the follow'ing person('5) employed by you or residing in a residence owned by you'has (have) miled to demonstrate adequate documentation that they
have a legal right t o be present in the United States,

I
I

Therefore, it is requested that you contact this office within ten (10)

days ta pmduce evidence as tn the legal status of

to

be present within the. United States. Your failure to produce such evidence,

or provlde proof that.

is no longer employed or that

you have taken steps to terminate his status as a lessee of yours within that

I

period may subject you to penalties under the ordinance, including fines up
to $f00.00 and Imprisonment up to slx (6)months.

Sincerely Yours,

Mark W. Hagemaister
Pmsecuting Attorney Clty of Valley Park, MO 320 Benton Street Valley Park, MO 63088
Dated:

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

STEPHANIE REYNOLDS, FLORENCE STREETER, JACQUELINE GRAY, and THE METROPOLITAN ST. LOUIS EQUAL HOUSING OPPORTUNITY COUNSEL, INC.,

Plaintiffs,

1

1

1

1

CITY OF VALLEY PARK, MO

1

1

SERVE AT: City Clerk's Office

1

320 Benton Street

1

Valley Park, MO 63088 1

HOLD

1

SERVICE

and at

1

1

Jeremiah Nixon

1

Attorney General

1

207 West High Street

1

Jefferson City, MO 65102 1

1

and

1

1

JEFFERY WHITTEAU?R, in his official 1

capacity as Mayor of the City

1

of Valley Park, MO

1

1

SERVE AT: 79 Guylyn PI.

1

Valley Park, MO 63088 1

HOLD SERVICE

1

and

1

1

JOHN BRUST, in his official capacity as 1

Alderman of the City of Valley Park, MO 1

1

SERVE AT: 530 Leonard Ave.

1

Valley Park, MO 63088 1

HOLD SERVICE

1

and

1

1

Cause No. Division No.

DANIEL ADAMS, in his official capacity ) as Alderman of the City of Valley Park, MO )

)

SERVE AT: 809 Leonard Ave.

)

Valley Park, MO 63088

HOLD SERVICE

and

1

)

RANDY IIELTON, in his official capacity )

as Alderman of the City of Valley Park, MO )

1

SERVE AT: 70 Fernridge Ave.

)

Valley Park, MO 63088 )

HOLD SERVICE

and

) DON CARROLL, in his official capacity ) as Alderman of the City of Valley Park, MO )

)

SERVE AT: 130 Quinwood

)

Valley Park, MO 63088 )

HOLD SERVICE

and

1

1

MICHAEL PENNISE, in his official

capacity as Alderman of the City of

1

Valley Park, MO

1

)

SERVE AT: 80 Inez Ave.

1

Valley Park, MO 63088 1

HOLD SERVICE

)

and

) ED WALKER, in his official capacity as ) Alderman of the City of Valley Park, MO )

)

SERVE AT: 833 Crescent Ridge

1

Valley Park, MO 63088 )

HOLD SERVICE

1

and

1

STEVE DRAKE, in his official capacity ) as Alderman of the City of Valley Park, MO )

)

SERVE AT: 455 Valparaiso

)

Valley Park, MO 63088 1

HOLD SERVICE

and

1

) J. MICHAEL WHITE, in his official capacity)
as Alderman of the City of Valley Park, MO )

)

SERVE AT: 500 Emanuel Ct.

1

Valley Park, MO 63088 )

HOLD SERVICE

1
Defendants.

PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF

For their Petition, Plaintiffs Stephanie Reynolds, Florence Skeeter, Jacqueline Gray, and

The Metropolitan St. Louis Equal Housing Opportunity Commission, state as follows:

INTRODUCTION
1. This action is filed under Mo.R.STAT. 9 527.020, and pursuant to

Mo.R.CIV.P. 87.02, to seek a declaration that Ordinance No. 1708, entitled "An Ordinance

Relating to Illegal Immigration Within the City of Valley Park, MO," enacted by Valley Park,

Missouri on July 17, 2006, is void. It also seeks a temporary, preliminary, and permanent

injunction restraining enforcement of those provisions.

2. For the first time in Missouri history, a political subdivision of this State has

enacted a law which punishes individuals if they fail to exercise an apparently delegated police

power to rid their businesses and rental properties of "illegal aliens," a classification nowhere

defined within the Ordinance granting these powers. The Ordinance also purports to penalize

those who would "aid and abet" an "illegal alien" in any manner, Also, for the first time in this

State, a political subdivision has declared that all of its official business -- whether written or oral
-- must be conducted only in the English language. 3. Ordinance No. 1708: usurps the exclusive federal authority to regulate
immigration; was enacted in excess of Valley Park's delegated authority; is arbitrary and unreasonable; unconstitutionally impairs existing contracts; is so vague and overbroad that it provides no notice of its own scope, therefore violating the constitutional right to due process; impedes interstate commerce; promotes discrimination in housing and violates the Fair Housing Act; and violates the constitutional guarantee of free speech.
4. Attempts to enforce Ordinance No. 1708 have resulted in racial profiling, and it has negatively impacted and stifled the continuation and development of businesses in the Valley Park community. Indeed, the plain wording of Ordinance No. 1708 suggests that any business withn Valley Park that serves food to, sells products to, or otherwise interacts with someone who is found to be an "illegal alien" by the City of Valley Park could be punished under its provisions for "aiding and abetting" such "illegal alien." Similarly, individuals, churches, medical clinics, and legal service providers could be subject to penalties under the Ordinance if the services they provide are somehow construed to "aid and abet" an "illegal alien." Unless enjoined, enforcement of Ordinance No. 1708 will continue to, not only allow, but in fact encourage both police and ordinary residents to racially profile individuals as they attempt to enforce its provisions, and it will continue to degrade the livelihoods of those residing in, and carrying on business in, Valley Park.
5. Plaintiffs herein have standing to challenge the validity of Ordinance No. 1708
under Mo.R.STAT. 527.020 which provides, in relevant party, that "[alny person ... whose rights, status or other legal relations are affected by a ... municipal ordinance ... may have

determined any question of construction or validity arising under the ... ordinance ...and obtain a
declaration of rights, status or other legal relations thereunder." The rights of the Plaintiffs herein have been affected by Ordinance No. 1708, and they thus seek a determination of its validity and a declaration of their rights and legal relations, as well as an injunctio~ito preserve the same. Plaintiffs also have standing because they have suffered, and continue to suffer, irreparable injury-in-fact as a direct result of the enactment and attempted enforcement of Ordinance No. 1708.
PARTIES 6. Stephanie Reynolds is a resident of Valley Park, Missouri, and the owner of multiple rental units in that City, as well as a local convenience store. She has lost business as a direct result of the enactment of Ordinance No. 1708 in that Hispanic tenants have left her properties, and the departure of immigrant residents has resulted in a decrease of her business profits. Stephanie Reynolds does not know what it means to be an "illegal alien" and does not know how to identi@ any such person. She never has based, and currently does not want to base, her decision to lease a property to, or to do business with, an individual upon that individual's race, national origin, or ability to speak English. She is fearful that, as a landlord and business owner, she could be fined, jailed, or denied a business license if a tenant living in her rental properties is determined to be an "illegal alien" by the City of Valley Park, or, likewise, if an employee or customer in her business is determined to be an "illegal alien" by the City of Valley Park. 7. Florence Streeter is the owner of residential and commercial rental units within the City of Valley Park. She also is the owner of rental units outside the Valley Park area. She does not know the legal status of the tenants leasing her properties, and she does not know how

to determine whether an individual is lawfully in the United States. Tenants in the rental units owned by Florence Streeter in Valley Park have moved due to the enactment of Ordinance No. 1708. Since the enactment of the Ordinance, Florence Streeter has had a decline in interest by Hispanics in renting her properties. She is fearful that, as a landlord, she could be fined or jailed if a tenant living in her rental properties is determined to be an "illegal alien" by the City of Valley Park.
8. Jacqueline Gray is a resident of St. Louis County, and owns rental units in Valley Park, Missouri. She does not know how to determine if a prospective tenant is an "illegal alien," and thus has made no attempt to do so in leasing her rental units. Because she does not know how to enforce Ordinance No. 1708 she lives in fear of being fined and possibly sent to jail.
9. The Metropolitan St. Louis Equal Housing Opportunity Council, Inc. ("EHOC") is a Missouri nonprofit corporation. It is a fair housing agency funded by the United States Department of Housing and Urban Development, as well as other sources, to investigate and eliminate housing discrimination and to educate the public about fair housing matters. Because Ordinance No. 1708 promotes discrimination in the provision of housing, it frustrates the organizational mission of the EHOC. Since the enactment of Ordinance No. 1708, the EHOC has been forced to devote significant resources to conducting outreach activities in the Valley Park area, and in its immigrant communities, to ensure people are aware of their fair housing rights, to educate housing providers in Valley Park about their responsibilities under the Fair Housing Act, and to meet with local organizations and individuals concerned about the impact of the ordinance on immigrant communities. These activities have interfered with the EHOC's mission of fair housing, counseling, and education by causing a diversion of its resources.

10. Defendant City of Valley Park, Missouri is a City of the fourth class located in St. Louis County, Missouri.
11. Defendant Jeffi-ey Whitteaker is the mayor of Valley Park, Missouri and was actively involved in, and gave final approval for, the enactment of Ordinance No. 1708.
12. Defendants, John Brust, Daniel Adarns, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, and J. Michael White are alderpersons in Valley Park, Missouri, and were actively involved in, and voted in favor of, the passage of Ordinance No. 1708.
13. At all times alleged herein, Defendant City of Valley Park and the Defendant Mayor and Aldermen were acting under color of state law, and are sued only in their official capacities.
VENUE AND JURISDICTION
14. Jurisdiction in this Court is proper pursuant to Mo.R.STAT. 9 478.220. 15. Venue in this Court is proper in this Court pursuant to Mo.R.STAT. 5 508.010.
ORDINANCE 1708 16. On July 17, 2006, Defendants enacted Ordinance No. 1708. Prior to such enactment, Defendants had done no investigation or research to determine the effects of illegal immigration on crime rates, educational opportunities, neighborhoods, or quality of life. Prior to such enactment, Defendants had no evidence in their possession which related to the effects of illegal immigration on crime rates, educational opportunities, neighborhoods, or quality of life. 17. After the enactment of Ordinance No. 1708, the Defendants admitted that the Ordinance had been enacted as a "preventative measure."

18. Despite the fact that they had done no investigations, and had no evidence,
relating to the effects of illegal immigration on local communities, Defendants enacted
Ordinance No. 1708 which declared and mandated, in full, as follows:
W R E A S , the Board of Alderman of the City of Valley Park finds that illegal immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, and destroys o w neighborhoods and diminishes our overall quality of life; and
WHEREAS the City of Valley Park is empowered and mandated by the people of the City of Valley Park to abate the nuisance of illegal immigration by aggressively prohibiting and punishing the acts, policies, people and businesses that aid and abet illegal aliens;
NOW, THEREFORE, BE IT ORDERED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
DEFINITIONS.
Whenever used in this chapter, the following terms shall have the following meanings:
"City" means the City of Valley Park, Missouri;
"Contract employer" means any person who obtains the services of one or more individuals through a day labor agency; and
"Vehicle" means a vehicle as defined in State or [sic] Missouri Vehicle Code as the same now reads or may hereafter be amended.
Section Two
BUSINESS PERMITS, CONTRACTS OR GRANTS,
Any for-profit entity, including acts committed by its parent company or subsidiaries, that aids and abets illegal aliens or illegal immigration shall be denied approval of a business permit, the renewal of a business permit, city contracts or grants for a period not less that [sic] five (5) years from its last offense.

A. Aiding and abetting shall include, but not be limited to, the hiring or attempted hiring of illegal aliens, renting or leasing to illegal aliens, or funding or aiding in the establishment of a day laborer center that does not verify legal work status.
B. Any act that aids and abets illegal aliens within the United States, not just within the City limits, will constitute a violation.
Section Three
IiENTING TO ILLEGAL ALIENS.
A. Illegal aliens are prohibited from leasing or renting property. Any property owner or renterltenantllessee in control of property, who knowingly allows an illegal alien to use, rent or lease their property shall be in violation of this section.
B. Any person or entity that violates this section shall be subject to a fine of not less than Five Hundred Dollars ($500.00).
Section Four
ENGLISH ONLY.
A. The City of Valley Park declares that English is the official language of the City.
B. Unless explicitly mandated by the federal government, the State of Missouri or the City of Valley Park, all official city business, forms documents, signage, telecommunication or electronic communication devices will be conducted or written in or utilize English only.
Section Five
SEVERABILITY.
If any part of [sic] provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competentjurisdiction, such part of [sic] provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.

Section Six This ordinance shall become effective fiorn and afier its passage and upon approval by the Mayor. WHY AN AWAFtD OF DECLARATORY AND INJUNCTIVE RELIEF IS PROPER 19. Ordinance No. 1708, enacted by Valley Park, Missouri on July 17, 2006, should be declared void and unenforceable, and a temporary, preliminary, and permanent injunction restraining enforcement of those provisions should be entered to effectuate this declaration, for the following reasons:
(a) Ordinance No. 1708 violates the Supremacy Clause of the United States Constitution, art. VI, cl. 2. The power to regulate immigration is vested exclusively in the federal government pursuant to the Constitution's grant to the Federal government of the power to "establish a uniform Rule of Naturalization,"
(US. Const. art. I, 5 8, cl. 4), and "to regulate Commerce with foreign Nations."
U.S. Const. art. I, $ 8, c1. 3. The Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States. 8 U.S.C. 1101, et seq. These Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. The federal immigration scheme is comprehensive and includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States. Under this federal scheme,

certain categories of non-citizens, and certain individual non-citizens, are allowed to remain in the United States, even though they may not have valid immigrant (permanent) or non-immigrant (temporary) status. Ordinance No. 1708 encroaches on the federal government's exclusive power to regulate immigration, attempts to legislate in fields which are completely occupied by the federal government, and conflicts with federal laws, regulations, policies and objectives. The Ordinance is thus preempted;
(b) Ordinance No. 1708 was enacted in violation of the limited powers delegated to the City of Valley Park by the Missouri legislature. More specifically, a city's authority to exercise police power must come from a specific delegation by the state. Pursuant to Mo.R.STAT. $ 79.110, the City of Valley Park has the power to enact only those ordinances "not repugnant to the constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same." No authority has been delegated to the City of Valley Park to regulate immigration. Furthermore, Ordinance No. 1708 is repugnant to the Constitution of the State of Missouri, including those provisions set forth below and, in addition, Article I, $ 2 which guarantees "all persons" in this State the "right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry" and that "all persons" will be given "equal rights and opportunity under the law." In addition,

there is no basis to conclude that the Ordinance is expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce, or the health of the inhabitants of Valley Park;
(c) Ordinance 1708 is invalid on its face and in violation of RSMo. 79.470 in that it exceeds the maximum punishment which the board of aldermen in a class four city is authorized to impart. RSMo. 79.470 authorizes the aldermen of a fourth class city to set the punishment of a municipal ordinance violation at "not exceeding a fine of five hundred dollars." The Ordinance, which dictates that a violation of its provisions will result in a "fine of not less than Five Hundred Dollars ($500)" therefore permits the city of Valley Park to impose a greater punishment upon a person convicted of violating the Ordinance at an amount greater than that designated permissible by state law. The Ordinance therefore authorizes the imposition of a fine in excess of the statutorily allowed maximum fine and, in fact, fails to restrict a municipal judge's discretion in imposing a fine on a person convicted of violating the Ordinance. By doing so, this Ordinance clearly violates the 8th and 14th Amendments to the United States Constitution and Article I Section 21 of the Constitution of the State of Missouri which prohibit the imposition of excessive fines and unusual punishment.
(d) Ordinance No. 1708 is void as arbitrary and unreasonable, because the express requirements of the ordinance bear no substantial or rational relationship to the health, safety, peace, comfort or general welfare of the residents of the City of Valley Park. There is no evidence that illegal immigration leads to higher crime rates or deterioration of schools and neighborhoods. Thus,

Ordinance No. 1708 is not a legitimate exercise of the police power granted to the City of Valley Park;
(e) Ordinance No. 1708 is repugnant to Article I, 5 13 of the Constitution of the State of Missouri, and Article I, 4 10 of the United States
Constitution in that it impairs obligations made under contracts. To avoid prosecution under Ordinance No. 1708 a property owner who has entered into a contract for the lease of rental property with someone who is deemed to be an "illegal alien" by the City of Valley Park must breach that lease or be subject to the penalties provided under the Ordinance;
(f) Ordinance No. 1708 violates Article I, $ 10 of the Constitution of the State of Missouri, as well as the Fourteenth Amendment of the United States Constitution, which guarantee that no person shall be deprived of "life, liberty, or property without due process of law." Ordinance No. 1708 does not provide sufficient procedural due process safeguards to protect the liberty and property interests of individuals like Plaintiffs, and is so vague and overbroad that persons of common intelligence must guess at its meaning. For example, the Ordinance is devoid of any definition of specified terms set forth therein such as "aiding and abetting," "illegal alien," and "illegal immigration." The Ordinance thus lacks explicit standards necessary to avoid arbitrary and discriminatory application by those enforcing its provisions. Yet, individuals like Plaintiffs, are subject to fines and confinement if they fail to recognize the meaning of these terms as they are understood by the City of Valley Park. The vagueness of the various terms used throughout the ordinance will lead to differing applications of the law by different

persons. As such, the Ordinance fails to afford any process by which individuals like Plaintiffs can ensure they are not subject to the loss of liberty or property for a violation;
(g) Ordinance No. 1708 violates the Commerce Clause of the United States Constitution, art. I, tj 8, cl. 3, under which Congress is granted the right to regulate interstate commerce. Under the Commerce Clause, state and local governments are prohibited from enacting ordinances that discriminate against or unduly burden interstate commerce. Ordinance 1708 imposes penalties on forprofit entities and their parent companies and subsidiaries for acts that "aid and abet" illegal aliens anywhere in the United States. It directly burdens interstate commerce by virtue of the fact that it purports to have extraterritorial reach which attempts to control conduct occurring wholly outside the boundaries of the City of Valley Park and the State of Missouri, and by virtue of the fact that it requires local businesses with out-of-state operations, their parent companies and subsidiaries to conduct their out-of-state commerce in such a way to ensure that they do not "aid and abet" "illegal aliens" as those phrases are understood by the City of Valley Park. Furthermore, under Ordinance No. 1708, local businesses with out-of-state operations, their parent companies and subsidiaries are required to monitor all actions of the entity in the United States and determine whether such actions constitute a violation of "aiding and abetting" "illegal aliens" under the Valley Park Ordinance. These burdens are clearly excessive in relation to the putative local benefits;

(h) Ordinance No. 1708 violates the Fair Housing Act, 42 U.S.C.
$5 3601-19, which prohibits housing practices that discriminate on the basis of,
inter alia, race, color, and national origin. Ordinance No. 1708 puts individuals, like Plaintiffs, in a predicament, whereby they must choose between facing a potential punishment for leasing property to a person who may be an "illegal alien," and a potential punishment for refusing to lease to a person based on his apparent heritage when that person cannot prove that he is not an "illegal alien" as that classification is understood by the City of Valley Park;
(i) Ordinance No. 1708 is preempted by the Fair Housing Act whch expressly provides that "the 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." 42 U.S.C. $ 3615. Ordinance No. 1708 promotes discriminatory housing practices by requiring lessors to demand that tenants prove they are not an "illegal alien" as that classification is understood by the City of Valley Park;
G ) Ordinance No. 1708 violates the First Amendment to the United
States Constitution which provides that States "shall make no law ... abridging
the freedom of speech." By offering such protection, the First Amendment serves to ensure that all persons can effectively participate in and contribute to our system of government. By requiring that all city business, both oral and written, "be conducted or written in or utilize English only," the Ordinance impairs the ability of non-English speaking individuals to participate in and contribute to our system of government. The English only requirement harms many people of

various heritages who are legally residing in Valley Park, and effectively gags non-English speaking individuals from receiving information from and providing information to the City of Valley Park, and its officials, employees and agents. It is thus detrimental to the health, safety, economic, social, and cultural interests of both the residents of the City of Valley Park and others who may seek assistance there. The "English only" provision serves no legitimate governmental function. 20. By being subject to the imposition of an invalid and unconstitutional ordinance, Plaintiffs have been irreparably injured in their businesses and livelihoods, and will continue to be until such time as Ordinance No. 1708 is declared void and invalid, and an injunction is entered enjoining its enforcement.
PRAYER FOR RELIEF FOR REiLIEF Plaintiffs respectfully request that this Court declare Valley Park Ordinance
No. 1708, entitled "AnOrdinance Relating to Illegal b i g r a t i o n Within the City of Valley Park,
MO," enacted by Valley Park, Missouri on July 17, 2006, void, and that it enter a temporary, preliminary, and permanent injunction restraining enforcement of its provisions to effectuate this fmding, and that this Court award Plaintiffs their costs and attorneys' fees incurred herein.
Respectfully submitted,

Respectfully submitted, BRYAN CAVE LLP

By:

Imn~artinez@,bryancave.com Kathy A. Wisniewski, #38716 kawisniewski@bryancave.com Elizabeth Ferrick, #5224 1 elizabeth.ferrick@bryancave.com John Young, #50539 j ftounq@,bry~~~cave.com Rhiana Sharp, #56539 rhiana.sharp@brvancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020

\\3

SAINT LOUIS UNIVERSITY LEGAL CLINIC

amrnanniiOSLU.edu w Susan McGraugh, #37430 mcgraugh@,SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY
By: 'Samuel R. ~agknstoJ#, 57058 (M0.S.Ct.R. 13.06) srba~enstos@wulaww. ustl .edu Karen Tokarz, #27516 tokarz(ilaw.wust1.ed.u One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
By: Marie A. Kenyon, #36060 kenyonm@,SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
Fax: 3 14-865-5401

ANTHONY B. RAMIREZ, P. C.

By:

1

Anthon~Raniirez@,rarnirezlawfirn~c.omw 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778

G m E N JACOBSON & BUTSCH P.C.

By:
Bermudez@,stlouislatv.com 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 (314) 862-6800 Facsimile: 314-862-1606
AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI

ton~@,aclu-em.0r.q 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635 Facsimile: (314) 361-3135

OF COUNSEL: (Pro Hac Vice Applications Pending)
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
Ricardo Meza rnleza@,maldef.org7 Jennifer Nagda inagda@,maldef.org 11 E. Adams; Suite 700
Chicago, IL 60603
(312) 427-0701 Facsimile: (312) 427-0691
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Margo Schlanger mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: 314-935-5356
AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT Lee Gelernt Omar C. Jadwat
7 OJadwat@aclu.or
125 road Street, 8" Floor
New York, NY 10004 (2 12) 549-2620 Facsimile: (212) 549-2654
and
Jennifer C. Chang 39 Drurnm Street San Francisco, CA 94111 (415 ) 343-0770 Facsimile: (415) 395-0950

 
 IN THE CIRCUIT COURT OF T H C~OUNTY OF ST. LOUIS STATE OF MISSOURI

S T E P W I E REYNOLDS, FLORENCE )

STREETER, JACQUELINE GRAY,

THE METROPOLITAN ST. LOUIS

)

EQUAL HOUSING OPPORTUNITY

1

COUNSEL, INC.,

)

)

Plaintiffs,

)

)

1

)

CITY OF VALLEY PARK, MO,

JEFFERY WHITTEAKER, in his official

capacity as Mayor of the City of

)

Valley Park, MO, and JOHN BRUST,

1

DANIEL ADAMS,

HELTON, )

DON CARROLL, MICHAEL PENNISE,

ED WALKER, STEVE DRAKE, and

1

MIKE WHITE, in their official capacity as )

Aldermen of the City of Valley Park, MO

) Defendants.

Cause No. Division No,

PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER COME NOW Plaintiffs, and pursuant to Mo.RC1v.P. 92.02, move this Court to enter a temporary restraining order ("TRO) enjoining Defendants and their agents &om enfbrcing the provisions of Valley Park Ordinance No. 1708, entitled "An Ordinance Relating to Illegal Immigration Within the City of Valley Park, MO," which was enacted on July 17, 2006. (A true and accurate copy of Ordinance No. 1708 is attached hereto as Exhibit A). Unless a TRO is entered, Plaintiffs will suffer irreparable harm as they: lose business and tenants due to enforcement o f the ordinance; are forced to choose between breaching valid contracts and acting discriminatorily,on the one hand, or violating Ordinance No. 1708, on the other; face uncertainty

as to which of their actions could be deemed to be "aiding and abetting" an "illegal alien";" continue to be racially profiled and harassed; and divert resources fiom other programs to provide outreach activities to immigrants in the Valley Park community who, whether in this country legally or not, remain confused and fearful.
In support of their Motion, Plaintiffs submit the affidavits of Stephanie Reynolds and Florence Streeter, attached hereto as ExhibitsB and C, respectively. Plaintiffs will file additional affidavits in support of their Motion prior to any scheduled hearing. Additionally, Plaintiffs state as follows:
1. On July 17, 2006, the City of Valley Park, Missouri passed Ordinance No. 1708, which punishes individuals if they fail to exercise an apparently delegated police power to rid their businesses and rental properties of "illegal aliens," a classification nowhere defined within the Ordinance granting these powers. Under the plain wording of Ordinance No. 1708, any business within Valley Park that serves food to, sells products to, or otherwise interacts with someone who is found to be an "illegal alien" by the City of Valley Park could be punished under its provisions for "aiding and abetting" such "illegal alien." Similarly, individuals, churches, medical clinics, and legal service providers could be subject to penalties under the Ordinance if the services they provide are somehow construed to "aid and abet" an "illegal
alien." Ordinance 1708 also declares that all of Valley Park's official business -- whether written or oral -- must be conducted only in the English language.
2. Plaintiffs herein are owners of rental property and businesses in Valley Park, and a fair housing agency funded by the United States Department of Housing and Urban
I! Notably, under the plain language of Ordinance No. 1708 any for-profit business who happens to serve food to, sell products to, or provide service to an "illegal alien" is subject to punishment for "aiding and abetting."

Development, which is charged with investigating and eliminating housing discrimination, and educating the public about fair housing matters. Each Plaintiff has a protectable interest in seeking a declaration of the lawfklness of the Ordinance.
3. Plaintiffs have suffered, and will continue to suffer serious and irreparable harm if Defendants continue to enforce Ordinance No. 1708. There is no adequate remedy at law to protect Plaintiffs from the harm, damage, and injury that they are enduring. By way of example only, as property owners who have entered into contracts for the lease of rental property, Plaintiffs are faced with actually proving that their tenants are not "illegal aliens" under threat of penalty, or they must breach a lease with their tenant and demand their irnmediate evacuation from their leased property.
4. Entry of a TRO is the only way to prevent irreparableharm to Plaintiffs. 5. The likelihood of success on the merits favors Plaintiffs. Ordinance No. 1708: usurps the exclusive federal authority to regulate immigration; was enacted in excess of Valley Park's delegated authority; is arbitrary and unreasonable; unconstitutionally impairs existing contracts; is so vague and overbroad that it provides no notice of its own scope, therefore violating the constitutional right to due process; impedes interstate commerce; promotes discrimination in housing and violates the Fair Housing Act; and violates the constitutional guarantee of free speech. 6. Finally, the balance of equities and the public interest favor injunctive relief. Plaintiffs and other residents, business owners, and landlords in Valley Park are being subjected to unlawful harassment and racial profiling, while the putative benefits of the Ordinance are illusory.

7. Plaintiffs seek a waiver of the requirement of a bond or that bond be set at $1 because
there is no risk of financial harm to the Defendants from prohibiting enforcement of a new law
that is unconstitutional. Defendants have stated the purpose of the law was "preventative" and
thus have not stated there is any harm to be corrected by the ordinance.
WHEREFORE, Plaintiffs respectively request that this Court enter a temporary
restraining order enjoining Defendants and their agents from enforcing the provisions of Valley
Park Ordinance No. 1708, entitled "An Ordinance Relating to Illegal Immigration Within the
City of Valley Park, MO," which was enacted on July 17,2006.
Respectfully submitted,
BRYAN CAVE LLP
By:
lmartinez@,bryancave.com Kathy A. Wisniewski, #38716 kawisniewski@,bryancave.com Elizabeth Ferrick, #5224 1 elizabeth. ferrick@,bryancave.com John Young, #50539 jfyoun~@,bn/ancave.com Rhiana Sharp, #56539 rhiana.sharp@,bryancave.com One Metropolitan Square St. Louis, MO 63102 (3 14) 259-2000 Facsimile: (314) 259-2020

UNIVERSITY LEGAL CLINIC
B
Susan McGraugh, #37430 mcgrau~h@,SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (3 14) 977-3334
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY

By:
srba~enstos@,wulaw.wustl.edu Karen Tokarz, #275 16 tokarz@,wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (3 14) 935-9097 Facsimile: (314) 935-5356

CATHOLIC LEGAL ASSISTANCE MINISTRY

By:

Ifinc?'q

Marie A. Kenyon, #3606b

kenvonm@S LI.J.edu

321 N. Spring Avenue

St. Louis, MO 63108

(314) 977-3993

Facsimile: (314) 977-3334

By:
ANTHONY B. W I R E Z , P. C.
By:
1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
GREEN JACOBSON & BUTSCH P.C.
By: Fernando Bermudez, #39943 Bennudez@stlouislaw.com 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 (3 14) 862-6800 Facsimile: 314-862-1606
AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI-
By: ton~@~clu-ern.org 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635 Facsimile: (314) 361-3135

OF COUNSEL: (Pro Hac Vice Applications Pending)

MEXICAN AMERICAN LEGAL DEFENSE

AND EDUCATIONAL FUND

Ricardo Meza

rmeza@maldeforg7

Jennifer Nagda

j

v

11 E. Adams; Suite 700

Chicago, IL 60603

(3 12) 427-070 1

Facsimile: (312) 427-0691 (Fax)

WASHINGTON UNKVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Margo Schlanger mschlailger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (3 14) 935-9097 Facsimile: 314-935-5356
AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT Lee Gelernt Omar C. Jadwat OJadwat@aclu.org 125 Broad Street, 18thFloor New York, NY 10004 (212) 549-2620 Facsimile: (212) 549-2654
and
Jennifer C. Chang 39 Drurnm Street San Francisco, CA 94111 (415 ) 343-0770 (415) 395-0950 ( f a )

BILL NO. 1851

ORDINANCE NO. 1708

AN ORDINANCE RELATING T O ILLEGAL IMMIGRATION WITHIN THE CITY O F VALLEY PARK, MO

WHEREAS, the Board of Aldermen of the City of Valley Park finds that illegal immigration leads to higher crime rates, contributes to overcrowded ciassrooms and failing schools, and destroys our neighborhoods and diminishes our overall quality of life; and
WHEREAS, the City of Valley Park is empowered and mandated by the people of the City of Valley Park to abate the nuisance of illegal immigration by aggressively prohibiting and punishing the acts, policies, people and businesses that aid and abet illegal aliens;
NOW, THEREFORE, BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
DEFINITIONS.
Whenever used in this chapter, the following terms shall have the following meanings:
"City" means the City of Valley Park, Missouri;
"Contract employer" means any person who obtains the services of one or more individuals through a day labor agency; and
"Vehicle" means a vehicle as defined in State or Missouri Vehicle Code as the same now reads or may hereafter be amended.
Section Two
BUSINESS PERMITS, CONTRACTS OR GRANTS.
Any for-profit entity, including acts committed by its parent company or subsidiaries, that aids and abets illegal aliens or illegal immigration shall be denied approval of a business permit, the renewal of a business permit, city contracts or grants for a period not less that five (5) years from its last offense.

A. Aiding and abetting shall include, but not be limited to, the hiring or attempted hiring of illegal aliens, renting or leasing to illegal aliens, or funding or aiding in the establishment of a day laborer center that does not verify legal work status.

B. Any act that aids and abets illegal aliens within the United States, not just within the City limits, will constitute a violation.

Section Three

RENTING TO ILLEGAL ALIENS.

A. Illegal aliens are prohibited from leasing or renting property. Any property owner or renter/tenant/lessee in control of property, who knowingly allows an illegal alien to use, rent or lease their property shall be in violation of this section.

B. Any person or entity that violates this section shall be subject to a fine of not less than Five Hundred Dollars ($500.00).

ENGLISH ONLY.

Section Four

A. The City of Valley Park declares that English is the oecial language of the City.

B. Unless explicitly mandated by the federal government, the State of Missouri or the City of Valley Park, all official city business, forms documents, signage, telecommunication or electronic communication devices will be conducted or written in or utilize English only.

Section Five

If any part of provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competentjurisdiction, such part of provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.
Section Six
This ordinance shall become effective from and after its passage and upon approval by the Mayor.

PASSED AND APPROVED THIS 17" DAY OF JULY, 2006

AFFIDAVIT Before me, the undersigned authority, personally appeared Stephanie Reynolds, who, being by me duly sworn, deposed as follows: 1. My name is Stephanie Reynolds. I am 35 years old and am presently a resident of Valley Park, MO. 2. The information in this affidavit is a summary of some of the information and events I have knowledge about relating to the City of Valley Park Ordinance 1708 ("Ordinance") and matters discussed in this affidavit. The information in this affidavit is not meant to encompass all of the events I have witnessed or have personal knowledge of at this time. 3. I have ownership interest in multiple rental units in Valley Park. The rental units include both single and multi-family units ("rental units"). I also have ownership interest in a convenience store that sells packaged foods, prepared food and is issued a liquor license ("store"). 4. I acquired my ownership interest in the rental units over a period of time. I acquired certain rental units during which time they were occupied with tenants who had unexpired leases. When I purchased the rental units, I honored unexpired leases and did not require the particular tenants to provide me additional documentation. 5. I am aware that all individuals who seek to rent property in Valley Park must obtain an occupancy permit from the City of Valley Park. 6 . I am aware that Valley Park has city council meetings every first and third Monday of the month. I attempt to attend as many of the regularly scheduled city council meetings as my schedule allows. 7. On July 17, 2006, I attended a regularly scheduled city council meeting. Prior to

my arrival at the meeting, I was unaware of what was to be discussed by the alderman and mayor. During this City Council meeting, I recall hearing a discussion relating to a land issue after which I recall a vote on the Ordinance which related to "Illegal aliens." The Ordinance, which I later found out was Ordinance 1708, was voted upon and passed on July 17,2006.
8. I am not familiar with immigration laws. I am unaware of what it means to be an "Illegal alien" and have never been provided any information about how I could determine whether or not an individual is an "illegal alien" by any official from the City of Valley Park. I do not have any training regarding the rights or abilities of individuals to reside in the United States.
9. As I read the Ordinance, it is very vague. There is no d e f ~ t i o nof the ternls such as "illegal alien" and the term "aiding and abetting" does not appear to have any limits as to what conduct can be included. The Ordinance is very broad and I can't tell what I have to do to follow the law.
10. In the evening of August 7, 2006, I was approached by a St. Louis County Police Officer ("Officer"). During this time, the Officer asked me questions about a particular family who was leasing one of my rental units. Specifically, the Officer asked me how much rent I charged the particular family and whether or not the family had a lease. In addition, the Officer asked me to provide him my name and social security number, which I did. Based upon these questions, I believed that I was being investigated for violating the Ordinance. Therefore, I asked the Officer what would happen (to me) next. In response, the Officer stated he would "give it to the prosecutor," and further stated, "the guys upstairs didn't think about [that]."
11. As a result of this incident, I made inquiries into whether or not I was under

investigation by the St. Louis County Police for violating the Ordinance. As a result of my

inquiries, I was able to determine that there had been a report created regarding the incident of

August 7, 2006 and that the report had been assigned number 06-67596 ("Report"). As of

today, I have not been able to obtain a copy of the Report.

12. I am concerned that I will be prosecuted with violating the Ordinance, which I

understand carries a fine of at least $500 and may includejail time.

13. Since the Ordinance was passed, some tenants have moved out of my rental units.

In addition, since the ordinance was passed, I have kept my store open longer. My livelihood

has suffered and will continue to suffer under the Ordinance.

14. I have never hinged my decision to rent or not rented any of my rental units to

particular individuals based upon their race, national origin or ability to speak English. I am not

aware of what makes an individual an "alien" or an "illegal alien."

The undersigned swears that the matters set for in the foregoing affidavit are true and correct

)A according to the undersigned's best knowledge and belief. Subject to the p

false affidavit or declaration.

. \

/

Affiant

A / Subscribed and sworn to before me the undersigned Notary Public this

day of

@%+$e~!.,'

,2006.

r)

I

otary Public

My Commission Expires:

AFFIDAVIT Before me, the undersigned authority, personally appeared Florence Streeter, who, being by me duly sworn, deposed as follows: 1. My name is Florence Streeter and I am 45 years old. 2. The information in this affidavit is a summary of some of the information and events I have knowledge about relating to the City of Valley Park Ordinance 1708 ("Ordinance"). The information in this affidavit is not meant to encompass all of the events I have witnessed or have knowledge of at this time. 3. I own several rental units in Valley Park, as well as a commercial rental space which includes a tenant that conduct business both in Valley Park and in surrounding communities. I also own several rental units in neighboring Fenton and Pacific, Missouri, as well as rental units in Jefferson and Franklin County, Missouri. 4. I am aware that Valley Park has regularly scheduled city council meetings. I try to attend as many meetings as I can. On July 17,2006, I attended a regularly scheduled city council meeting. I was unaware of what was to be discussed by the aldermen and mayor. During the meeting, I remember a vote relating to an Ordinance which referenced "illegal aliens." The Ordinance, which I later found out was Ordinance 1708, was voted upon and passed at that meeting. 5. In the weeks since the passage of this Ordinance, I have read the Ordinance, and I do not understand the terms in the Ordinance. The language is vague to me, including the meaning of the terms used in the ordinance such as "illegal alien." The term is not defined. There is also no definition of "aiding and abetting" and there appears to be no limit as to what is included in that term. I do not see how the City of Valley Park could enforce such a discriminatory practice, especially since the city itself has supplied all tenants with occupancy permits.
EXHIBIT C

6. I have never based my decision to rent or not rent any of my rental units to any particular individual based either upon race, national origin or ability to speak English. I do not know the legal status of any of my tenants, and in general as a business practice I do not inquire as to any tenant's immigration status. I am in fact not even aware how to go about checking an individual's immigration status, and I am in no way familiar with U.S. Immigration Law. At no time since the passage of this Ordinance have I ever been given any instruction by the City of Valley Park or otherwise as to the specifics of Immigration Law.
7. Up until August of 2006, I had 2 separate Hispanic families living in my properties in Valley Park.
8. In August, 2006, I was told by one of these Hispanic tenants he and his f m i l y were moving out of Valley Park because a Hispanic friend of his in Valley Park had the police come to his door late at night demanding to see his "papers."
9. I found this especially surprising because in the past my units are rarely if ever vacated, and I attribute this tenant's exodus as a direct result of this ordinance. Fortunately, I was able to place this family in one of my other units in Fenton, MO.
10. After the unit was vacated it sat empty for approximately 1 month. 11. In the time it took to re-rent the unit, I was also surprised by the lack of interest among Hispanics in my property compared to the level of interest before the Ordinance was passed. 12. 1 noticed that I did not have a single Hispanic family look at the vacant unit, while in the past I have always had at least one Hispanic family tour a vacant unit when units do become available. 13. Since the passage of this ordinance, I have in fact been contacted by several Hispanic families that were looking for units specifically outside of Valley Park because of this Ordinance.

14. I also learned that another of my Hispanic tenants was approached by the police who also demanded to see his paperwork.
15.1regret that this community has taken such unlawhl and discriminatoryactions, and I feel that if this Ordinance is not revoked my business will suffer further loss. I feel the reputation of Valley Park has and will continue to suffer, which in turn will bring my property value down. I also am worried about the potential implications for landlords in Valley Park being forced to enforce Immigration Law as a form of discriminationagainst Hispanics.
16. Because of my ownership interest in commercial and residential real estate, I believe I I could be fined or even go to jail for violating this Ordinance.

The undersigned swears that the matters set for in the foregoing affidavit are true and correct according to the undersigned's best knowledge and belief. Subject penalties of making a false affidavit or declaration.

Subscribed and sworn to before me the undersigned Notary Public this ,2006.

dayof

My Commission Expires:

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

STEPHANIE REYNOLDS, FLORENCE )

STREETER, JACQUELINE GRAY, and )

THE METROPOLITAN ST. LOUIS

1

i EQUAL HOUSING OPPORTUNITY

COUNSEL, INC.,

1

Plaintiffs,

1

1

1

1

CITY OF VALLEY PARK, MO,

1

JEFFERY WHITTEAKER, in his official 1

capacity as Mayor of the City of

1

Valley Park, MO, and JOHN BRUST, 1

,DANIELADAMS, RANDY HELTON, 1

DON CARROLL, MICHAEL PENNISE, 1

ED WALKER, STEVE D m , and

1

J. MICHAEL WHITE, in their official 1

capacity as Aldermen of the City of

1

Valley Park, MO

1)

1

Defendants.

1

JOAN M. GlLMER ClRCUlTCLERK, ST.LOUIS COUNTY
Cause No. 06-CC-3802 Division No. 42

TEMPORARY RESTRAINING ORDER

This cause came on for a hearing on Plaintiffs' Motion for a Temporary Restraining

Order. Defendants received notice on Friday, September 22, 2006, by telephone, facsimile, and

service of a copy of the Petition and Motion. Both Plaintiffs and Defendants appear by counsel.

The Court has considered the Motion for a Temporary Restraining Order, the Memorandum in

Support thereof, Plaintiffs' Petition for Injunctive and Declaratory Relief, and the arguments of
counsel, and based thereon hereby Orders that Plaintiffs' Motion is GRANTED. The Court

finds and concludes that:

1. Valley Park Ordinance No, 1708 is being enforced in the City of Valley Park,

Missouri;

2. Plaintiffs are likely to succeed on the merits of their claim that Ordinance

No. 1708 is void to one or more of the following reasons: (

'

v

e federal

e ~mmigration,and is thus p r e e m p r e I y

., aria-

(2) it was enacted in excess of Valley Park's delegated

authority, and i-gnant

to the Missouri ~ o n s t i t u t i ai)t is so vague and overbroad that it

provides no notice of its own scope, therefore violating the state and federal constitutional right

to due process; (4) it impairs existing contracts in violation of both the Missouri and United

-- States Constitutions; (5) it impedes interstate commerce, and thus violates the Commerce Clause

of the United States Constitution, aort. I,i 5 8', cl6. 3; (

. ..

in nousinpnd-

e-s,

1 and is preempted by, the Fair Housing ~ c ta;nd

. .

3. Plaintiffs each have a protectable interest that has suffered and will continue to suffer irreparable injury by the enforcement of Ordinance No. 1708. Entry of a temporary restraining order is warranted to prevent this immediate and irreparable injury.
4. Defendants will suffer no harm by the entry of a temporary restraining order, and the public interest weighs in favor of entering one.

ACCORDINGLY, THE COURT HEREBY ORDERS THAT: Defendants City of Valley Park,Missouri, Jeffe~yWhitteaker, John Brust, Daniel Adams,
Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, and J. Michael White are hereby enjoined from enforcing Ordinance No. 1708. This Order shall be binding upon 'Defendants and their agents, including any police officials operating in the City of Valley Park who are acting under contract with, or as agents of, that City.

It is further ORDERED that the bond required by Missouri Rule 92.02, shall be waived.

This Order shall remain in effe-cA& t --v+

,:;., Z & r ,

ioo6, unless

extended in accordance with the Missouri Rules of Civil Procedure.

The hearing on Plaintiffs' Motion for a Preliminary Injunction is scheduled for

SO ORDERED this 25th day of September, 2006, at

40 p.m.:

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

STEPHANIE REYNOLDS, FLORENCE )

STREETER, JACQUELINE GRAY, and )

THE METROPOLITAN ST. LOUIS

)

EQUAL HOUSING OPPORTUNITY

)

COUNSEL, INC.,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF VALLEY PARK, MO,

)

JEFFERY WHITTEAKER, in his official )

capacity as Mayor of the City of

)

Valley Park, MO, and JOHN BRUST,

)

DANIEL ADAMS, RANDY HELTON, )

DON CARROLL, MICHAEL PENNISE, )

ED WALKER, STEVE DRAKE, and

)

J. MICHAEL WHITE, in their official

)

capacity as Aldermen of the City of

)

Valley Park, MO

)

)

Defendants.

)

Cause No. 06-CC-3802 Division No. 13

FIRST AMENDED PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF

For their First Amended Petition, Plaintiffs Stephanie Reynolds, Florence Streeter,

Jacqueline Gray, and The Metropolitan St. Louis Equal Housing Opportunity Commission, state

as follows:

INTRODUCTION

1. This action is filed under MO.R.STAT. § 527.020, and pursuant to

MO.R.CIV.P. 87.02, to seek a declaration that the following two Ordinances are void:

(1) Ordinance No. 1708, enacted on July 17, 2006, entitled “An Ordinance Relating to Illegal

Immigration Within the City of Valley Park, MO” (a copy of which is attached hereto as

Exhibit A); and (2) Ordinance No. 1715, enacted on September 26, 2006, originally entitled “An

Ordinance Repealing Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof With The Same Subject,” and re-titled by oral motion on the day of enactment as “An Ordinance Repealing Sections 1, 2, 3, and 4 of Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment and Harboring of Illegal Aliens in the City of Valley Park, MO” (a copy of which is attached hereto as Exhibit B). The Petition also seeks a temporary, preliminary, and permanent injunction restraining enforcement of those Ordinances.
2. For the first time in Missouri history, a political subdivision of this State is attempting to regulate immigration into the United States by attacking it at the local level based on expressed concerns related “to the security and safety of the homeland.”
3. Ordinance No. 1708 and Ordinance No. 1715 are both directed at regulating immigration. The bolded heading of Ordinance No. 1708 states that it is an Ordinance “Relating to Illegal Immigration.” And, although Defendants attempted to avoid the obvious by a last minute change to the heading of Ordinance No. 1715, its “Title” as set forth in the body of the Ordinance expressly indicates that it is an “Illegal Immigration Relief Act Ordinance.” Ordinance No. 1715 also expressly states that it was implemented because of, inter alia, “concerns to the security and safety of the homeland.”
BACKGROUND 4. On Monday September 25, 2006, this Court granted Plaintiffs (and Intervenor) their requested Temporary Restraining Order (“TRO”), enjoining enforcement of Ordinance No. 1708. (A copy of the Temporary Restraining Order is attached hereto as Exhibit C). 5. The day after the TRO was issued, Defendants repealed Sections One, Two,
2

Three, and Four of the patently unconstitutional and unlawful Ordinance No. 1708, and passed the equally unlawful (though much more complex) replacement Ordinance No. 1715. Defendant Mayor Jeffery Whitteaker signed Ordinance No. 1715 on September 26, 2006, rendering it effective by its terms.
6. The passage of Ordinance No. 1715, which is a newly titled but factually and legally similar law, merely serves to circumvent and/or frustrate the temporary restraining order entered by this Court. Ordinance No. 1715, like Ordinance No. 1708, is constitutionally and statutorily infirm, rendering further immediate injunctive relief proper. Specifically, enforcement of Ordinance No. 1715 should be enjoined until the scheduled November 1 preliminary injunction hearing in this matter.
7. This Court has already found that enforcement of Ordinance No. 1708 will cause irreparable harm to Plaintiffs. Ordinance No. 1715—which is effectively aimed at the same conduct as Ordinance No. 1708, i.e., penalizing employers and landlords who employ, or provide housing to, “illegal aliens”—will likewise immediately and irreparably harm Plaintiffs who will continue to lose their tenants and their customer bases, as well as the goodwill they have developed with customers and tenants over long periods of time.
8. Plaintiffs herein have standing to challenge the validity of Ordinance No. 1708 and Ordinance No. 1715 under MO.R.STAT. 527.020 which provides, in relevant party, that “[a]ny person … whose rights, status or other legal relations are affected by a … municipal ordinance … may have determined any question of construction or validity arising under the … ordinance … and obtain a declaration of rights, status or other legal relations thereunder.” The rights of the Plaintiffs herein have been affected by Ordinance No. 1708 and Ordinance No. 1715, and they thus seek a determination of their validity and a declaration of their rights, as
3

well as an injunction to preserve the same. Plaintiffs also have standing because they have suffered, and continue to suffer, irreparable injury-in-fact as a direct result of the enactment and attempted enforcement of Ordinance No. 1708 and Ordinance No. 1715.
9. The provisions of Ordinance No. 1708, and Ordinance No. 1715: infringe the constitutionally granted federal immigration power, which the United States Supreme Court has repeatedly held is reserved to the federal government; conflict with federal immigration law; were enacted in excess of Valley Park’s delegated authority; promote discrimination in housing, thus violating the federal Fair Housing Act; are preempted by the federal Fair Housing Act; unconstitutionally impair existing contracts; and violate Missouri’s landlord and tenant statute.
PARTIES 10. Stephanie Reynolds is a resident of Valley Park, Missouri, and the owner of multiple rental units in that City, as well as a local convenience store. She does not know the legal status of the tenants leasing her properties, and she does not have the necessary resources and legal expertise to determine whether a tenant or prospective tenant is lawfully present in the United States, and thus not an “illegal alien” under the terms of Ordinance No. 1708 or Ordinance No. 1715. She has lost business as a direct result of the enactment of Ordinance No. 1708, and she will continue to lose business due to the enactment of Ordinance No. 1715, in that Hispanic tenants have left her properties, and the departure of immigrant residents has resulted in a decrease of her business profits. Stephanie Reynolds has never based, and currently does not want to appear as though she is basing, her decision to lease a property to, or to do business with, an individual upon that individual’s race, or national origin. Stephanie Reynolds does not want to lose the goodwill she has established with her tenants by sharing their identifying information with law enforcement officials as could be required under Ordinance
4

No. 1715. She is fearful that, as a business owner, she may lose her business license, temporarily or permanently, if one of her employees is deemed to be an “unlawful worker” by the City of Valley Park. Likewise, as a landlord, she is fearful of losing her tenants, her occupancy permits, the rent and fees she is legally entitled to collect, and that a fine of $250 per day could be imposed on her if one of her tenants is deemed to be an “illegal alien.” Ordinance No. 1715 places Stephanie Reynolds in the untenable position of needing to verify the immigration status of potential tenants without the resources to do so, and at risk of violating the antidiscrimination provisions of the federal Fair Housing Act.
11. Florence Streeter is the owner of residential and commercial rental units within the City of Valley Park. She does not know the legal status of the tenants leasing her properties, and she does not have the necessary resources and legal expertise to determine whether a tenant or prospective tenant is lawfully present in the United States, and thus not an “illegal alien” under the terms of Ordinance No. 1708 or Ordinance No. 1715. Florence Streeter has lost tenants as a result of the enactment of Ordinance No. 1708, and she runs the risk of continuing to lose tenants as a result of the enactment of Ordinance No. 1715. Furthermore, since the time Defendants first attempted to regulate immigration through a local Valley Park Ordinance, Florence Streeter has noted, and continues to note, a decline in interest by Hispanics in renting her properties. Florence Streeter does not want to lose the goodwill she has established with her tenants by sharing their identifying information with law enforcement officials as could be required under Ordinance No. 1715. As a landlord, she is fearful of losing her tenants, her occupancy permits, the rent and fees she is legally entitled to collect, and that a fine of $250 per day could be imposed on her if one of her tenants is deemed to be an “illegal alien.” Ordinance No. 1715 places Florence Streeter in the untenable position of needing to verify the immigration
5

status of potential tenants without the resources to do so, and at risk of violating the antidiscrimination provisions of the federal Fair Housing Act.
12. Jacqueline Gray is a resident of St. Louis County, and owns rental units in Valley Park, Missouri. She does not want to lose the goodwill she has established with her tenants by sharing their identifying information with law enforcement officials as could be required under Ordinance No. 1715. As a landlord, she is fearful of losing her tenants, her occupancy permits, the rent and fees she is legally entitled to collect, and that a fine of $250 per day could be imposed on her if one of her tenants is deemed to be an “illegal alien.” Ordinance No. 1715 places Jacqueline Gray in the untenable position of needing to verify the immigration status of potential tenants without the resources to do so, and at risk of violating the antidiscrimination provisions of the federal Fair Housing Act.
13. The Metropolitan St. Louis Equal Housing Opportunity Council, Inc. (“EHOC”) is a Missouri nonprofit corporation. It is a fair housing agency funded by the United States Department of Housing and Urban Development, as well as other sources, to investigate and eliminate housing discrimination and to educate the public about fair housing matters. Because Ordinance No. 1708 and Ordinance No. 1715 promote discrimination in the provision of housing, it frustrates the organizational mission of the EHOC. Since the enactment of Ordinance No. 1708, and as will continue under Ordinance No. 1715, the EHOC has been forced to devote significant resources to conducting outreach activities in the Valley Park area, and in its immigrant communities, to ensure people are aware of their fair housing rights, to educate housing providers in Valley Park about their responsibilities under the Fair Housing Act, and to meet with local organizations and individuals concerned about the impact of the ordinance on
6

immigrant communities. These activities have interfered with the EHOC’s mission of fair housing, counseling, and education by causing a diversion of its resources.
14. Defendant City of Valley Park, Missouri is a City of the fourth class located in St. Louis County, Missouri.
15. Defendant Jeffrey Whitteaker is the mayor of Valley Park, Missouri and was actively involved in, and gave final approval for, the enactment of Ordinance No. 1708 and Ordinance No. 1715.
16. Defendants, John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, and J. Michael White are alderpersons in Valley Park, Missouri, and were actively involved in, and voted in favor of, the passage of Ordinance No. 1708 and Ordinance No. 1715.
17. At all times alleged herein, Defendant City of Valley Park and the Defendant Mayor and Aldermen were acting under color of state law, and thus are sued only in their official capacities.
VENUE AND JURISDICTION 18. Jurisdiction in this Court is proper pursuant to MO.R.STAT. § 478.220. 19. Venue is proper in this Court pursuant to MO.R.STAT. § 508.010.
THE ENACTMENT OF ORDINANCE 1708 & ORDINANCE NO. 1715 20. On July 17, 2006, Defendants enacted Ordinance No. 1708. Defendants declared that Ordinance No. 1708 was necessary to address higher crime rates, overcrowded classrooms and failing schools, neighborhood destruction, and a diminishing overall quality of life Prior to enactment of Ordinance No. 1708, Defendants had done no investigation or research to determine the effects of illegal immigration on crime rates, educational opportunities,
7

neighborhoods, or quality of life. Prior to such enactment, Defendants had no evidence in their possession which related to the effects of illegal immigration on crime rates, educational opportunities, neighborhoods, or quality of life.
21. After the enactment of Ordinance No. 1708, the Defendants admitted that the Ordinance had been enacted solely as a “preventative measure,” and that they had no knowledge as to whether any “illegal aliens” resided or lived in Valley Park.
22. On September 26, 2006, Defendants enacted Ordinance No. 1715. On information and belief, with few exceptions, Defendants copied Ordinance No. 1715 from proposed legislation pending in a different city in a different state; indeed, in listing the ills of “illegal immigration” Defendants referred to “fiscal hardship” on “our hospitals” even though Valley Park has none. Defendants declare in Ordinance No. 1715 that it is being enacted because “illegal aliens harm the health, safety and welfare of authorized US workers and legal residents in the City of Valley Park” and that “illegal immigration” leads to “higher crime rates,” “burdens public services,” “diminishes [] overall quality of life” and “provides concerns to the security and safety of the homeland.”
23. Defendants enacted Ordinance No. 1715 without having done any investigation or research to determine the effects of illegal immigration on crime rates, public services, quality of life, or homeland security. Prior to such enactment, Defendants had no evidence in their possession which related to the effects of illegal immigration on crime rates, public services, quality of life, or homeland security. On information and belief, defendants and other officials of the City of Valley Park have received no training and have no expertise in making determinations of immigration status or in interpreting immigration documentation.
8

WHY AN AWARD OF DECLARATORY AND INJUNCTIVE RELIEF IS PROPER 24. Ordinance No. 1708 (to the extent any of its provisions remain valid) and
Ordinance No. 1715 should be declared void and unenforceable, and a modified temporary restraining order should be entered adding a provision to enjoin the enforcement of Ordinance No. 1715. In addition, a preliminary and permanent injunction should be entered restraining enforcement of both Ordinance No. 1708 and Ordinance No. 1715. Such relief is justified for the following reasons:
(a) Ordinance No. 1708 and Ordinance No. 1715 violate the Supremacy Clause of the United States Constitution, art. VI, cl. 2. The power to regulate immigration is vested exclusively in the federal government pursuant to the Constitution’s grant to the Federal government of the power to “establish a uniform Rule of Naturalization,” (U.S. Const. art. I, § 8, cl. 4), and “to regulate Commerce with foreign Nations” (U.S. Const. art. I, § 8, cl. 3). The Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States. 8 U.S.C. § 1101, et seq. These Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. The federal immigration scheme is comprehensive and includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme applicable to those who assist individuals who are not lawfully in the United States. Ordinance No. 1708 and Ordinance No. 1715 encroach on the federal
9

government’s exclusive power to regulate immigration, attempt to legislate in fields which are completely occupied by the federal government, and, additionally or alternatively, conflict with federal laws, regulations, policies and objectives. Both Ordinances are thus preempted;
(b) Ordinance No. 1708 and Ordinance No. 1715 were enacted in violation of the limited powers delegated to the City of Valley Park by the Missouri legislature. A city’s authority to exercise police power must come from a specific delegation by the state. Pursuant to MO.R.STAT. § 79.110, the City of Valley Park has the power to enact only those ordinances “not repugnant to the constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same.” No authority has been delegated to the City of Valley Park to regulate immigration. Furthermore, Ordinance No. 1708 and Ordinance No. 1715 are repugnant to the Constitution of the State of Missouri, including those provisions set forth below and, in addition, Article I, § 2 which guarantees “all persons” in this State the “right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry” and that “all persons” will be given “equal rights and opportunity under the law.” Ordinance No. 1715 is also repugnant to the laws of this State in that, in order to avoid penalties under its provisions, a landlord who is found renting to an “illegal alien” must evict such a person within five (5) days. This five day notice period
10

compels a violation of MO.R.STAT. § 441.060, which requires that a landlord give a tenant in possession of property on a month-to-month lease notice of at least thirty (30) days, and it compels a violation of general Missouri contract law which requires that a landlord fulfill his lease obligations. In addition, there is no basis to conclude that the Ordinance is expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce, or the health of the inhabitants of Valley Park;
(c) Ordinance No. 1708 and Ordinance No. 1715 violate MO.R.STAT. § 79.470 in that the contemplated penalties exceeds the maximum punishment which the board of aldermen in a class four city is authorized to impart. A fourth class city is limited to imposing penalties for violation of a municipal ordinance at an amount “not exceeding” $500.00. Both Ordinances allow for penalties, the value of which clearly exceeds this limitation. For example, Ordinance No. 1715 allows for the indefinite suspension of business licenses, occupancy permits, and the collection of rent, the value of which could greatly exceed the limitation imposed by state law for violation of an ordinance enacted by a fourth class city. By doing so, Ordinance No. 1708 and Ordinance No. 1715 clearly violate the Eighth and Fourteenth Amendments to the United States Constitution and Article I Section 21 of the Constitution of the State of Missouri.
(d) Ordinance No. 1708 and Ordinance No. 1715 are void as arbitrary and unreasonable, because the conduct they seek to regulate bears no substantial or rational relationship to the health, safety, peace, comfort or general welfare of the residents of the City of Valley Park. There is no evidence that illegal
11

immigration impacts crime rates, public services, quality of life, or homeland security. Thus, Ordinance No. 1708 and Ordinance No. 1715 are not a legitimate exercise of the police power granted to the City of Valley Park;
(e) Ordinance No. 1708 and Ordinance No. 1715 violate Article I, § 10 of the Constitution of the State of Missouri, as well as the Fourteenth Amendment of the United States Constitution, which guarantee that no person shall be deprived of “life, liberty, or property without due process of law.” For example, Ordinance No. 1708 provides no notice of who is an “illegal alien” or what conduct might be deemed to be “aiding and abetting.” And, Ordinance No. 1715 is based on text found nowhere within the Ordinance itself, in that, for its main provisions, it merely references by citation to code provisions parts of the complex federal law governing immigration. The Ordinance, having incorporated federal law, cannot be understood by persons of common intelligence, and thus Ordinance No. 1715 gives no fair warning of what the law intends. Both Ordinance No. 1708 and Ordinance No. 1715 lack explicit standards necessary to avoid arbitrary and discriminatory application by those enforcing its provisions. As such, the Ordinance No. 1708 and Ordinance No. 1715 fail to afford due process by which individuals like Plaintiffs can ensure they are not subject to the loss of liberty or property for a violation;
(f) Ordinance No. 1708 and Ordinance No. 1715 are preempted by the Fair Housing Act, 42 U.S.C. §§ 3601–19, which expressly provides that “the 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
12

under this subchapter shall to that extent be invalid.” 42 U.S.C. § 3615. Ordinance No. 1708 and Ordinance No. 1715 promote discriminatory housing practices. Because a landlord has no way to determine whether a potential tenant is an “illegal alien” “pursuant to United States Code Title 8, section 1373(c)” at the time of leasing a property, the Ordinances put landlords, like Plaintiffs, in a predicament, whereby they must choose between: leasing property to a person who looks like he may be an “illegal alien” and accepting the risk that he will not be able to fulfill his lease term upon enforcement of the Ordinances; and refusing to lease to someone who looks as though he may be an “illegal alien” based on his apparent heritage. Ordinance No. 1715 thus promotes the practice of refusing to lease property based on apparent national origin;
(g) Ordinance No. 1708 and Ordinance No. 1715 themselves violate the Fair Housing Act, which prohibits housing practices that discriminate on the basis of, inter alia, race, color, and national origin. The Ordinances have at least a disparate impact on people of Mexican or other Latino heritage as well as on those who, by virtue of their skin color or other features, are believed to be of Mexican or other Latino heritage, and are likely to have a similar disparate impact on members of other minority ethnic groups;
(h) Ordinance No. 1708 and Ordinance No. 1715 are repugnant to Article I, § 13 of the Constitution of the State of Missouri, and Article I, § 10 of the United States Constitution in that they impair obligations made under contracts. To avoid prosecution under Ordinance No. 1708 and Ordinance No. 1715, a property owner who has entered into a contract for the lease of rental
13

property with someone who is deemed to be an “illegal alien” must breach that lease or be subject to the penalties provided under the Ordinance; 25. By being subject to the imposition of invalid and unconstitutional Ordinances, Plaintiffs have been irreparably injured in their businesses and livelihoods, and will continue to be until such time as Ordinance No. 1708 and Ordinance No. 1715 are declared void and invalid, and an injunction is entered enjoining their enforcement.
PRAYER FOR RELIEF FOR RELIEF Plaintiffs respectfully request that this Court declare Valley Park Ordinance No. 1708 and Ordinance No. 1715 void, and that it enter a modified temporary restraining order enjoining the provisions of Ordinance No. 1715, and, in addition, that it enter a preliminary and permanent injunction restraining enforcement of the provisions of the Ordinances, and that this Court award Plaintiffs their costs and attorneys’ fees incurred herein.
14

Respectfully submitted,
BRYAN CAVE LLP
By: __________________________________________ Linda Martinez, #30655 lmartinez@bryancave.com Kathy A. Wisniewski, #38716 kawisniewski@bryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick@bryancave.com John Young, #50539 jfyoung@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannjj@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
15

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Samuel R. Bagenstos, #57058 (Mo.S.Ct.R. 13.06) srbagenstos@wulaw.wustl.edu Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte_j@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
16

GREEN JACOBSON & BUTSCH P.C. Fernando Bermudez, #39943 Bermudez@stlouislaw.com 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 (314) 862-6800 Facsimile: 314-862-1606
AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI
Anthony E. Rothert, #44827 tony@aclu-em.org 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635 Facsimile: (314) 361-3135
OF COUNSEL: (Pro Hac Vice Applications Pending)
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
Ricardo Meza rmeza@maldef.org7 Jennifer Nagda jnagda@maldef.org 11 E. Adams; Suite 700 Chicago, IL 60603 (312) 427-0701 Facsimile: (312) 427-0691
17

AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT Lee Gelernt Omar C. Jadwat OJadwat@aclu.org 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2620 Facsimile: (212) 549-2654
and Jennifer C. Chang 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 Facsimile: (415) 395-0950
CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of the First Amended Petition was forwarded, via facsimile and hand-delivery, on this 27th day of September, 2006, to: Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
__________________________________________
18

 
 IN THE CIRCUIT COURT OF THE CITY OF ST. LOUIS STATE OF MISSOURI

STEPHANIE REYNOLDS, FLORENCE )

STREETER, JACQUELINE GRAY,

)

CARLOS CISNERO, and

)

THE METROPOLITAN ST. LOUIS

)

EQUAL HOUSING OPPORTUNITY

)

COUNSEL, INC.,

)

)

Plaintiffs,

)

)

v.

)

)

CITY OF VALLEY PARK, MO,

)

JEFFERY WHITTEAKER, in his official )

capacity as Mayor of the City of

)

Valley Park, MO, and JOHN BRUST,

)

DANIEL ADAMS, RANDY HELTON, )

DON CARROLL, MICHAEL PENNISE, )

ED WALKER, STEVE DRAKE, and

)

MIKE WHITE, in their official capacity as )

Aldermen of the City of Valley Park, MO )

)

Defendants.

)

Cause No. 06-CC-3802 Division No. 13

PLAINTIFFS’ MOTION FOR AN AMENDED TEMPORARY RESTRAINING ORDER

COME NOW Plaintiffs, and pursuant to MO.RCIV.P. 92.02, move this Court to modify

the temporary restraining order (“TRO”) granted in this matter on September 25, 2006. (A copy

of the TRO is attached hereto as Exhibit A). The existing TRO enjoins Defendants and their

agents from enforcing the provisions of Valley Park Ordinance No. 1708, entitled “An

Ordinance Relating to Illegal Immigration Within the City of Valley Park, MO,” enacted on July

17, 2006 (hereinafter referred to as the “July” Ordinance and attached as Exhibit B). Yesterday,

the day after this Court’s entry of the TRO, Defendants enacted Ordinance No. 1715, originally

entitled “An Ordinance Repealing Ordinance No. 1708 Relating to Illegal Immigration Within

the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof with the Same

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Subject,” and retitled by oral motion on the day of enactment as “An Ordinance Repealing Sections 1, 2, 3, and 4 of Ordinance No. 1708 Relating to Illegal Immigration Within the City of Valley Park, MO, and Enacting a New Ordinance in Lieu Thereof Relating to the Employment and Harboring of Illegal Aliens in the City of Valley Park, MO” (hereinafter referred to as the “current” or “September” Ordinance, attached as Exhibit C). As the title indicates, the current Ordinance has repealed much of the July Ordinance (and what it has not repealed remains enjoined under the prior TRO). It has not, however, cured the manifest constitutional and statutory infirmities that caused this Court to enter the TRO, and therefore the Plaintiffs ask that that TRO be modified to enjoin the September as well as the July Ordinance until the hearing for a preliminary injunction in this matter, already scheduled for November 1, 2006.
The passage of Ordinance No. 1715, which is a newly titled but factually and legally similar law, merely serves to circumvent and/or frustrate the temporary restraining order entered by this Court. Just like its predecessor, the September Ordinance self-evidently seeks to regulate immigration into the United States and into the City of Valley Park. Its provisions: infringe the immigration power, which the United States Supreme Court has repeatedly held is reserved to the federal government; conflict with federal immigration law; were enacted in excess of Valley Park’s delegated authority; promote discrimination in housing and violate the federal Fair Housing Act; unconstitutionally impair existing contracts; and conflict with the state law governing landlords and tenants.
As with its predecessor, enforcement of the September 25 Ordinance will immediately and irreparably harm the Plaintiffs. Unless a TRO is entered, Plaintiffs will suffer irreparable harm as they: lose business and tenants due to enforcement of the ordinance; are forced to choose between breaching valid contracts and acting discriminatorily and in violation of federal
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law, on the one hand, or risking violation of the Ordinance, on the other; and divert resources from other programs to provide outreach activities to immigrants in the Valley Park community who, whether in this country legally or not, remain confused and fearful. See Affidavits of Stephanie Reynolds, Florence Streeter, Jacqueline Gray, Willie Jordan, and Thomas Gorski, attached hereto as Exhibits D, E, F, G, H, and I, respectively.
Plaintiffs will file affidavits in support of their Motion prior to any scheduled hearing. Additionally, Plaintiffs state as follows:
Operation of the September Ordinance 1. The current Ordinance subjects to substantial financial penalties any entity1 who employs an “unlawful worker” and any property owner who allows an “illegal alien” to use, rent, or lease housing within Valley Park. 2. The definition of “unlawful worker” is a technical one; the Ordinance states: “"Unlawful worker" means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including, but not limited to, a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).” 3. 8 U.S.C. § 1324a(h)(3) in turn defines an “unauthorized alien” only by reference. It states that the term “means, with respect to the employment of an alien at a particular time, that the alien is not at that time either (A) an alien lawfully admitted for permanent residence, or (B) authorized to be so employed by this chapter or by the Attorney General.” 4. The law incorporated by reference in 8 U.S.C. § 1324a(h)(3) and in turn by the
1The ordinance uses the language “business entity,” but defines that term so broadly as to cover any entity of any type. See September Ordinance, Section 3(a): "Business entity" means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.”
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September Ordinance, which governs whether a particular non-citizen is authorized to be employed within the United States, is extremely complex. Many documents may be used to prove immigration and employment status under federal law, including court decisions, letters from federal immigration authorities, and passport inserts. In addition, many persons authorized to remain and work in the U.S. (including U.S. citizens) may not possess identification documents clearly so stating. See, e.g., 71 Fed. Reg. 16,333 (Mar. 31, 2006) (extending validity of certain employment authorization documents past the expiration dates indicated on their face).
5. The current Ordinance specifies that when the City receives an employment-related complaint (from any city official or other city entity or resident), the next step is to “request identity information from the business entity regarding any persons alleged to be unlawful workers.” The alleged violator must provide such identity information under penalty of suspension of its business license. September Ordinance at § 4(b)(3).
6. Next, without using any specified procedure whatsoever, the City—not the federal government—must determine the federal employability status of challenged workers. Compare September Ordinance at § 4(b) to § 5(b)(3).
7. On notice from the City that an employee is an “unlawful worker” the employer must “correct [the] violation” within three days, or have its business license suspended, for up to 20 days (on a second or subsequent offense).
8. The September Ordinance subjects property owners to a similar regulatory regime, forbidding them to rent or lease or otherwise allow their property to be used by an “illegal alien.”
9. The September Ordinance defines “illegal alien” to mean: 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,
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subsection 1373(c), that the person is an alien who is not lawfully present in the United States. September Ordinance, § 3(d). 10. Thus the Ordinance contemplates that federal officials will determine the immigration status of challenged residents, but that city officials will determine the immigration status of challenged workers. 11. The Ordinance gives a property owner notified that her tenant is deemed “illegal” just five days to evict that tenant, or face suspension of her occupancy permit and suspension of her right to charge rent. On a second or subsequent violation, such a property owner is subject to a fine of $250 per day. See September Ordinance §§ 5(a)(2); 5(b)(8). 12. The September Ordinance leaves in place the July Ordinance’s declaration that all of Valley Park’s official business—whether written or oral—must be conducted only in the English language. Thus the TRO as to that provision of the July Ordinance remains in effect.
Likelihood of Success on the Merits 13. Plaintiffs are likely to prevail on the merits of their claim. Like its predecessor, already enjoined by this Court, the September Ordinance’s provisions: infringe the immigration power, which the United States Supreme Court has repeatedly held is reserved to the federal government; conflict with federal immigration law; were enacted in excess of Valley Park’s delegated authority; promote discrimination in housing and violate the federal Fair Housing Act; unconstitutionally impair existing contracts. In addition, the September Ordinance adds a new legal infirmity; it conflicts with the state law governing landlords and tenants. Plaintiffs’ success on any one of these claims will invalidate the Ordinance. 14. Immigration Preemption: Plaintiffs are likely to prevail on their claim that the September Ordinance is void because it usurps the exclusive federal authority to regulate
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immigration. More particularly, the immigration power is constitutionally reserved to the federal government, which has fully occupied the field, and which has enacted statutes flatly inconsistent with the September Ordinance.
a. The United States Supreme Court has declared that the “[p]ower to regulate immigration is unquestionably exclusively a federal power.” DeCanas v. Bica, 424 U.S. 351, 354 (1976). States, and a fortiori municipalities, may not arrogate to themselves the regulation of immigration—even when states seek merely to “complement” federal law “or enforce additional or auxiliary regulations.” Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941) (invalidating Pennsylvania alien registration law). The September Ordinance, like the July Ordinance, is unlawful for this reason.
b. Moreover, when Congress occupies a field, state law in that area is preempted. See, e.g., Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 372 (2000). In this area, any state laws that add to Congress’s “comprehensive legislative plan for the nation-wide control and regulation of immigration and naturalization” (Takahashi v. Fish & Game Comm’n, 334 U.S. 410, 419 (1948), are therefore preempted. See, e.g., Hines, 312 U.S. at 67; League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 776 (C.D. Cal.) (“Congress has fully occupied the field of immigration regulation through enactment and implementation of the INA [Immigration and Nationality Act].”)
c. Finally, even if constitutional preemption and “field” preemption were not each themselves wholly sufficient to doom the statute, the September Ordinance would still be preempted because it acts “as an obstacle to the accomplishment and
6

execution of the full purposes and objectives of Congress” in the area of
immigration. Hines, 312 U.S. at 67. It conflicts with:
i. Congress’ considered provision of discretion to specifically designated agencies and officials responsible for administering the immigration laws, see, e.g., 8 U.S.C. § 1229b (providing for cancellation of removal in the discretion of the Attorney General);
ii. the extensive federal procedures for determining immigration status, see, e.g., 8 U.S.C. §§ 1154, 1228-1252, 1255-1259;
iii. the specific federal statute that governs the employment of undocumented workers—the Immigration Reform and Control Act (“IRCA”), 8 U.S.C. §§ 1324a-1324b. The September Ordinance undermines IRCA’s careful balance between the important goals of reducing employment of individuals who lack work authorization; creating a workable system for employers and employees; and avoiding harassment of, or discrimination against, employees. See H.R. Rep. 99-682(I), 1986 U.S.C.C.A.N. at 5664-66. For example whereas IRCA prohibits employers from seeking additional proof of immigration status once certain specified documents are presented that “reasonably appear to be genuine” (even if those documents turn out to be forged or otherwise flawed), see 8 U.S.C. § 1324b(a)(6); see also Getahun v. OCAHO, 124 F.3d 591, 596 (3d Cir. 1997), under the September Ordinance employers who wish to avoid future enforcement actions (with their highly disruptive potential) must undertake precisely the kind of searching inquiry prohibited by federal law.
15. Fair Housing Act Preemption: The September Ordinance also conflicts with the Fair
Housing Act, 42 U.S.C. § 3601, et seq. (“FHA”). Landlords who wish to comply with the
September Ordinance, either simply because it purports to be the operative law, or because they
want to avoid the disruption and high business costs of losing tenants mid-tenancy, should a
violation be found, have no way to know which of their tenants are “illegal aliens.” The only
course open to them is to avoid renting to would-be tenants who somehow seem foreign-born.
Yet this conduct would violate federal law; the FHA prohibits housing practices based on inter
alia, race, color, and national origin, including refusing to rent based on such criteria. See
42 U.S.C. § 3604. This untenable position indicates the illegal conflict, and federal fair housing
7

law trumps. See 42 U.S.C. § 3615 (“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”); Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 873 (2000) (state law is preempted if it “stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress”).
16. Exceeding Delegated Powers: Plaintiffs are also likely to prevail on the merits of their separate claim that the September Ordinance is void because Defendants exceeded their power in enacting it. See State ex rel. Curators of Univ. of MO v. McReynolds, 193 S.W.2d 611, 612 (Mo. en banc 1946) (“It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied.”) (quoting Dillon, Municipal Corporations § 237 (1911)); see also Premium Std. Farms, Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234, 238 (Mo. en banc 1997) (same). The September Ordinance rests on the same naked assertions of public need that flawed its predecessor; as Plaintiffs have previously briefed, its own supporters declare it “preventative” rather than curative. The TRO that enjoined operation of the July Ordinance on this basis should be extended to the September Ordinance.
17. Impairment Of Contract Obligations: Plaintiffs are also likely to succeed on the separate ground that the September Ordinance is repugnant to Article I, § 13 of the Constitution of the State of Missouri, and Article I, § 10 of the United States Constitution both of which
8

prohibit the passing of any law impairing contract obligations. The Ordinance clearly impairs obligations made under contracts. To avoid prosecution under its provisions a property owner who has entered into a contract for the lease of rental property with someone who is deemed to be an “illegal alien” must breach that lease or be subject to penalty. This constitutional infirmity remains from the July Ordinance, and was among this Court’s specified bases for the existing TRO, which should therefore remain in effect.
18. For similar reasons, the September Ordinance runs afoul of the state law governing landlords and tenants. It requires that landlords evict tenants deemed “illegal” within five days; even though far more time is needed for a lawful eviction under MO.R.STAT. § 441.060 (attached as Exhibit []), which requires that a landlord give a tenant in possession of property on a month-to-month lease notice of at least thirty days; and it compels a violation of general Missouri contract law which requires that landlords fulfill their lease obligations.
Irreparable Harm and the Balance of the Equities 19. Plaintiffs are owners of rental property and businesses in Valley Park, and a fair housing agency funded by the United States Department of Housing and Urban Development, which is charged with investigating and eliminating housing discrimination, and educating the public about fair housing matters. Each Plaintiff has a protectable interest in seeking a declaration of the lawfulness of the Ordinance. 20. As this Court has already found, Plaintiffs have suffered, and will continue to suffer serious and irreparable harm if Defendants enforce Ordinances aimed at regulating immigration in the ways that both the July and September Ordinances do. There is no adequate remedy at law to protect Plaintiffs from the harm, damage, and injury that they are enduring. By way of example only, as property owners who have both apartments with tenants and empty apartments
9

they are currently looking to rent, plaintiffs must decide whether and how to screen their tenants, risking noncompliance with either the September Ordinance or the Fair Housing Act. If one of their tenants should turn out to be an “illegal alien,”—a legal judgment they are not able or qualified to make—they must breach a lease with that tenant and demand his or her immediate evacuation from their leased property or risk city sanction. Entry of a TRO is the only way to prevent irreparable harm to Plaintiffs.
21. Finally, as the Court has already found, the balance of equities and the public interest favor injunctive relief. Plaintiffs and other residents, business owners, and landlords in Valley Park are being subjected to ongoing diminution of their livelihoods and threat of severe sanction and while the putative benefits of the Ordinance are illusory.
WHEREFORE, Plaintiffs respectively request that this Court modify the temporary restraining order entered on September 25, 2006, to enjoin Defendants and their agents from enforcing the provisions of Valley Park Ordinance No. 1715 and 1708, enacted on September 26, 2006 and July 17, 2006.
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Respectfully submitted,
BRYAN CAVE LLP
By: __________________________________________ Linda Martinez, #30655 lmartinez@bryancave.com Kathy A. Wisniewski, #38716 kawisniewski@bryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick@bryancave.com John Young, #50539 jfyoung@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannjj@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Samuel R. Bagenstos, #57058 (Mo.S.Ct.R. 13.06) srbagenstos@wulaw.wustl.edu Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger, pro hac vice (granted 9/25/2006) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
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CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte_j@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
GREEN JACOBSON & BUTSCH P.C. Fernando Bermudez, #39943 Bermudez@stlouislaw.com 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 (314) 862-6800 Facsimile: 314-862-1606
AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI
Anthony E. Rothert, #44827 tony@aclu-em.org 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635 Facsimile: (314) 361-3135
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OF COUNSEL: (Pro Hac Vice Applications Pending)
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
Ricardo Meza rmeza@maldef.org7 Jennifer Nagda jnagda@MALDEF.org 11 E. Adams; Suite 700 Chicago, IL 60603 (312) 427-0701 Facsimile: (312) 427-0691 (Fax)
AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT Lee Gelernt Omar C. Jadwat OJadwat@aclu.org 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2620 Facsimile: (212) 549-2654
and
Jennifer C. Chang 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 (415) 395-0950 (fax)
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing was forwarded, via facsimile and hand-delivery, on this 27th day of September, 2006, to:
Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233
__________________________________________
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 AFFIDAVIT
Before me, the undersigned authority, personally appeared Stephen H. Legomsky, who, being by me duly sworn, deposed as follows:
1. My name is Stephen H. Legomsky. I am the Charles F. Nagel Professor of International and Comparative Law at the Washington University School of Law, in St. Louis, Missouri.
2. I have been actively involved in immigration law for more than 30 years. I was the student director of my law school immigration clinic. My subsequent doctorate at Oxford University was specifically on the subject of immigration law. I served for almost two years as the Chief of the central legal staff division of the U.S. Court of Appeals for the Ninth Circuit that handled all of the court's immigration cases, and for more than 20 years I have taught the immigration law course at the Washington University School of Law. I am the author of the book "Immigration and Refugee Law and Policy" (now in its fourth edition), which has been adopted as the required text for immigration law courses at 157 U.S. law schools as of fall 2006, and I am also the author of two other books, published by the Oxford University Press, one of which is also on the subject of immigration. I have chaired the immigration law section of the Association of American Law Schools, the Law Professors Committee of the American Immigration Lawyers Association, and the Refugee Committee of the American Branch of the International Law Association. I have testified before Congress and have been a consultant to President Clinton's transition team, to the first President Bush's Commissioner of Immigration, to the Administrative Conference of the United States, to the United Nations High Commissioner for Refugees, and to several foreign governments, on immigration issues. I have had teaching or research appointments in immigration law and related fields at Oxford University, Cambridge University, and other institutions in the United States, Mexico, New Zealand, Switzerland, Germany, Italy, Austria, . , Australia, and Suriname.
3. I have read carefully the provisions of Valley Park Ordinance No. 1715, enacted on September 26,2006.
4. I have no financial interest of any kind in the outcome of the present litigation.
5. Based on my experience in the field of immigration law, I can attest to the complexity of the U.S. immigration laws generally and, in particular, to the exceptional complexity of the provisions that govern which aliens are permitted to be present in the United States and which aliens are permitted to work.
6. The basic federal statute that governs United States immigration law is the Immigration and Nationality Act of 1952, as amended many times. The version of the Act that I assign to the students in my immigration law course is an abbreviated, excerpted version. Even with the

edited deletions it runs more than 500 printed pages. The accompanying regulations, issued by a myriad of federal administrative agencies located in the Departments of Homeland Security, Justice, State, Labor, and Health and Human Services, total more than 1000 additional pages. There are, in addition, lengthy subordinate rules published for the internal guidance of the employees of the Departments of Homeland Security, Justice, and State. All of these sources, in turn, are frequently interpreted by published and unpublished decisions of the Board of Immigration Appeals and the federal courts. My law students spend the entirety of a 3-credit, 42class-hour course, studying art of this body of law. Most of the law they study relates to the various immigration statuses, the legal conditions attached to the various statuses, and the substantive criteria and procedures for determining whether a given alien is removable.
7. Among the most complex aspects of U.S. immigration law is the multiplicity of different immigration statuses and immigration documents that the law requires. These statuses include lawful permanent resident, conditional permanent resident, refugee, asylee, parolee, special status under any of a number of ad hoc congressional enactments, and 22 different "nonimmigrant", or temporary visitor, categories laid out in 8 U.S.C. section 1101(a)(15). The latter 22 categories are then subdivided into a total of 76 current subcategoriesestablished by the U.S. Department of State, in 22 C.F.R. section 4 1.12 (2005). Each of these subcategories carries its own separate documentation.
8. Even a person who is not in possession of a valid immigration document might well be present lawfully. For example, the laws that govern the transmission of United States citizenship from parent to child have changed repeatedly over the years, and most of those changes have been non-retroactive, with the result that an immigration lawyer who wishes to determine a person's citizenship must often check even long repealed citizenship laws. Even a person who is indisputably an alien rather than a U.S. citizen has the right to remain in the United States while his or her removal proceedings, which often last months and sometimes even years, are pending. The same is true of the person who has arrived in the United States without documents and is in the process of applying for asylum or for a remedy called "withholding of removal" under 8 U.S.C. sections 1158 or 1251(b)(3). They too are permitted to remain during the pendency of their cases. From time to time the federal executive branch also issues blanket grants of permission to remain, particularly to individuals who have been granted "temporary protected status" under 8 U.S.C. section 1254a because of disturbed conditions in their countries of origin. Moreover, the facts that determine whether a person is unlawfully present are frequently murky; there can be disputes concerning whether the person was inspected upon entry, whether the person's entry document was genuine or counterfeit, or whether the representations the person made to secure entry were true or fraudulent. Finally, even if a person is an alien who is deportable for failure to comply with the immigration laws, the Immigration and Nationality Act contains several provisions, scattered throughout the statute, that delegate to various officials the discretion, in various circumstances, to waive particular grounds of removal and allow the person to remain in the United States. These include asylum, cancellation of removal, withholding of removal, adjustment of status, registry, and other miscellaneous waivers, as laid out in 8 U.S.C. sections 1158, 1229b, 1251(b)(3), 1255, and 1259.

9. Apart from the substantive complexity that arises from the multiple statuses and documents, the federal immigration laws establish a complex and careful set of procedures designed to assure that an alien is not erroneously identified as unlawfully present. It is not simply a matter of a single federal official unilaterally deciding that someone's presence is unlawful. The process begins with a "Notice to Appear" that informs the alleged alien of his or her procedural rights and the time and place of the hearing, alleges specific facts, and alleges the specific statutory removal grounds. There follows an evidentiary hearing before an "immigration judge," who receives testimony and other evidence from both the alien and the U.S. government and then decides (a) whether the person fits within one of the unlawful presence or other removal grounds and (b) if so, whether the person is eligible for any of the forms of statutory discretionary relief and, if so, whether on all the facts the favorable exercise of discretion is warranted. Either the alien or the government may appeal the immigrationjudge's decision to the Board of Immigration Appeals. If the Board of Immigration Appeals orders the alien removed, the alien has the right to obtain judicial review in the relevant U.S. court of appeals.
10. Given both the substantive complexities and the careful federally mandated procedures for making these difficult determinations, the procedure contemplated by section 3(E) of the Valley Park ordinance for determining whether a given individual is an "illegal alien" is both unreliable and incompatible with the federal procedures described above.
11. It would be even more dificult for a landlord reliably to determine in advance whether it will be permissible to rent his or her property to a prospective tenant.
12. The same dificulties exist, on a larger scale, with respect to the determinations of whether individuals are "unlawful workers." The various immigration statuses summarized above differ not only with respect to permitted duration of stay, but also with respect to whether employment is authorized. Sometimes employment is automatically authorized by virtue of the status category, sometimes it is discretionary, and sometimes it is prohibited. The regulations that govern employment are therefore lengthy and complex. The relevant rules are scattered throughout 8 C.F.R. section 214.2 (2006), which currently spans more than 100 pages (pages 235-48 of 8 C.F.R. (2006)). Without the federal input that the Ordinance requires for the analogous purposes of unlawful leasing of property, the difficulties are accentuated further.
13. Moreover, to minimize racial and national origin discrimination, Congress in 8 U.S.C. section 1324b(a)(6) has prohibited employers from askingjob applicants for more or different documents than the law requires. The Valley Park ordinance, by penalizing employers (and landlords) for employing or renting to anyone later determined to be an "illegal alien," not only permits, but gives employers and landlords every incentive to perform, the kinds of searching inquiries that federal law specifically prohibits.
The undersigned swears that the matters set forth in the foregoing affidavit are true and correct

according to the undersigned's best knowledge and belief, subject to the penalties of making a false affidavit or declaration.
-/4+ Affiant
EXHIBIT I

 
 / 7 / 5 ORDINANCE NO.
AN ORDINANCE REPEALING SECTIONS ONE, TWO, THREE AND FOUR OF ORDINANCE NO. 1708 RELATING TO ILLEGAL IMMIGRATION W I T H I N THE CITY OF VALLEY PARK, MO, AND ENACTING A NEW ORDINANCE I N LIEU THEREOF
RELATING TO THE EMPLOYMENT OF AND HARBORING OF ILLEGAL ALIENS
W I T H I N THE CITY OF VALLEY PARK, MO
BE I T ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Sections One, Two, Three and Four of Ordinance No. 1708 are hereby repealed.
Section Two
FINDINGS AND DECLARATION OF PURPOSE.
The people of the City of Valley Park find and declare:
A. That state and federal law require that certain conditions be met before a person may be authorized to work 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 i n the City of Valley Park.
C. That unlawful employment, the harboring of illegal aliens in dwelling units in the City of Valley Park, and crime committed by illegal aliens harm the health, safety and welfare of authorized US workers and legal residents in the City of Valley Park. Illegal immigration leads t o higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services, increasing

their costs and diminishing their availability to legal residents, and diminishes our overall qualify of life and provides concerns to the security and safety of the homeland.
D. That the City of Valley Park is authorized to abate public nuisances and empowered and mandated by the people of Valley Park 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 Untied States Code Title 8, subsection 1324(a)(l)(A) prohibits the harboring of illegal aliens. The provision of housing t o illegal aliens is a fundamental component of harboring.
F. This ordinance seeks to secure t o those lawfully present in the United States and this City, whether or not they are citizens of the United States, the right to live in peace free of the threat of crime, t o enjoy the public services provided by this City without being burdened by the cost of providing goods, support and services t o aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the State of Missouri.
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 Three
DEFINITIONS.
When used i n this chapter, the following words, terms and phrases shall have the meanings ascribed to them herein, and shall be construed so as to be consistent with state and federal law, including federal immigration law:
A. 'Business entity" means any person or group of persons performing or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.

(1) The term business entity shall include, but not be limited to, self-employed individuals, partnerships, corporations, contractors, and subcontractors.

(2) The term business entity shall include any business entity that possesses a business license, any business entity

that is exempt by law from obtaining such a business

license, and any business entity that is operating

unlawfully without such a business license.

-

B. "City" means the City of Valley Park, Missouri.

C. "Contractor" means a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include, but not be limited to, a subcontractor, contract employee, or a recruiting or staffing entity.

D. "Illegal Alien" means an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq. The City shall not conclude that a person is an illegal alien unless and until an authorized representative of the City has verified with the federal government, pursuant to United States Code Title 8, subsection 1373(c), that the person is an alien who is not lawfully present in the United States.

E. "Unlawful worker" means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including, but not limited to, a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).

F. "Work" means any job, talk, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including, but not limited to, all activities conducted by business entities.

G. "Basic Pilot Program" means the electronic verification of work
authorization program of the Illegal Immigration Reform and Immigration responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and operated by the United States Department of Homeland Security (or a successor program established by the federal government.)

Section Four
BUSINESS PERMITS, CONTRACTS, OR GRANTS.
A. It is unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to pelform work in whole or part within the City. Every business entity that applies for a business license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.
B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a
written signed complaint to the Valley Park Code Enforcement Office submitted by any City 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 Valley Park Code Enforcement Office shall, within three (3) business days, request identify information from the business entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which fails, within three (3) business days after receipt of the request, t o provide such information.
(4) The Valley Park Code Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.
(5) The Valley Park Code Enforcement Office shall not suspend the business license of a business entity if prior t o 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 (1) business day after a legal representative of the business entity submits, at a City office designated by the City Attorney, a sworn affidavit stating that the 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 Valley Park Code Enforcement Office, in addition t o the prescribed affidavit, documentation acceptable t o the City Attorney which confirms that the business entity has enrolled in and will participate in the Basic Pilot Program for the duration of the validity of the business permit granted to the business entity.
(7) For a second or subsequent violation, the Valley Park
Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty (20) days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Valley Park Code Enforcement Office shall reinstate the business permit. The Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents t o the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. I n the case of an unlawful worker disqualified by state law not related to immigration, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.
C. All agencies of the City shall enroll and participate in the Basic Pilot Program.
D. As a condition for the award of any City contract or grant to a business entity for which the value of employment, labor or, personal services shall exceed $10,000, the business entity shall provide documentation confirming its enrollment and participation in the Basic Pilot Program.

Section Five
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 t o 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 Valley Park Code Enforcement 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 Valley Park Code Enforcement Office with identity data needed to obtain a federal verification of immigration status, beginning three (3) days after the owner receives written notice from the Valley Park Code Enforcement Office.
B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a
written signed complaint t o the Valley Park 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 Valley Park 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 Valley Park 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) I f after five (5) 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 t o correct a violation of this section, the Valley Park Code Enforcement Office shall suspend the occupancy permit for the dwelling unit.
(5) For the period of suspension, the owner of the dwelling unit shall not be permitted t o collect any rent, payment, fee, or any other form of compensation from, or on behalf of any tenant or occupant in the dwelling unit. I n addition, the City of Valley Park shall not issue occupancy permits for any properties owned during the suspension period.
(6) The denial or suspension shall terminate one (1) business day after a legal representative of the dwelling unit owner submits to the Valley Park Code Enforcement Office 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.
(7) The Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents t o the appropriate federal enforcement agency, pursuant t o 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 a

fine of Two Hundred Fifty Dollars ($250.00) for each separate violation. The suspension provisions of this section applicable t o a first violation shall also apply.

(9) Upon the request of a dwelling unit owner the Valley Park 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 Six

CONSTRUCTION AND SEVERABILITY

A. The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens and aliens.

B. I f any parts of or any provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part or such provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter shall not be affected thereby.

Section Seven

This Ordinance shall become effective from and after its passage and

upon approval by the Mayor.

&fl PASSED AND APPROVED THIS

DAY OF

/

,2006.

ATTEST:
7".-~< MARG RITE WILBURN
City Clerk

 
 INTHE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS
STATE OF MISSOURI

STEPHANIE REYNOLDS, FLORENCE )

STREETER, JACQUELINE GRAY, and j

THE METROPOLITAN ST. LOUIS

1

EQUAL HOUSING OPPORTUNITY 1

COUNSEL, INC.,

1

1

Plaintiffs,

1

1

1

1

CITY OF VALLEY PARK, MO,

1

JEFFERY WHITTEAKER, in his official

capacity as Mayor of the City of

Valley Park, MO, and JOHN BRUST,

DANIEL ADAMS, RANDY HELTON,

DON CARROLL, MICHAEL PENNISE,

ED WALKER, STEVE DRAKE, and

J. MICHAEL WHITE, in their official

capacity as Aldermen of the City of

Valley Park, MO

Cause No. 06-CC-3802
Division No. 1.5

Defendants.

AMENDED TENIPORARY RESTRAINING ORDER

This cause came on for a hearing on Plaintiffs' Motion for an Amended Temporary

Restraining Order. The Court, on September 25, 2006, issued a Temporary Restraining Order

enjoining Defendants from enforcing Ordinance No. 1708, but is advised by Counsel from both

parties that the Valley Park City Council last night, September 26, 2006, approved a new

Ordinance addressing the same topic as Ordinance No. 1708.

Plaintiffs today have filed a Motion for An Amended Temporary Restraining Order and

Amended Complaint seeking to enjoin the enforcement of the new ordinance. Plaintiffs'

Counsel notified Defendants' Counsel by phone of their intention to bring this Motion for

Amended Temporary Restraining Order before this Court at 3:00 p.m. this date.

Both Plaintiffs and Defendants appear now by counsel. The Court has considered the Motion for an Amended Temporary Restraining Order, the Amended Complaint, the previously filed Memorandum in Support, and all affidavits, evidence and arguments.
Wherefore, the Court, being advised in the premises, hereby finds and orders: 1. On September 26, 2006, less than 30 hours after this Court entered its Temporary Restraining Order enjoining Defendants from enforcing Ordinance 1708 which ostensibly relates to illegal immigration, the City Council of Valley Park, without debate among its members and without an opportunity for comment from the public, unanimously adopted a new ordinance addressing the same issues as Ordinance No. 1708. 2. Plaintiffs are likely to succeed on the merits of their claim that the new ordinance, Bill No. 1858, also known as Ordinance No. 1715, is void for one or more of the following reasons: (1) it usurps the exclusive federal authority to regulate immigration, and is thus preempted by federal law under the Supremacy Clause, U.S. Const., art. VI, cl. 2; (2) it was enacted in excess of Valley Park's delegated authority, and is repugnant to the Missouri Constitution; (3) it is so vague and overbroad that it provides no notice of its own scope, therefore violating the state and federal constitutional right to due process; (4) it impairs existing contracts in violation of both the Missouri and United States Constitutions; (5) it impedes interstate commerce, and thus violates the Commerce Clause of the United States Constitution, art. I, § 8, cl. 3; (6) it promotes discrimination in housing and hence violates, and is preempted by, the Fair Housing Act; and (7) it violates the constitutional guarantee of free speech set forth in the First Amendment to the United States Constitution. 3. Plaintiffs each have a protectable interest that has suffered and will continue to suffer irreparable injury by the enforcement of Bill No. 1858, also known as Ordinance

No. 1715. Entry of a temporary restraining order is warranted to prevent this immediate and irreparable injury.
4. Defendants will suffer no harm by the entry of a temporary restraining order, and the public interest weighs in favor of entering one.

ACCORDINGLY, THE COURT HEREBY ORDERS THAT: A. Defendants City of Valley Park, Missouri, Jeffery Whitteaker, John Brust, Daniel
Adarns, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, and J. Michael White are hereby enjoined from enforcing Bill No. 1858, also known as Ordinance No. 1715, as well as any portions of Ordinance No. 1708 still in effect. This Order shall be binding upon Defendants and their agents, including any police officials operating in the City of Valley Park who are acting under contract with, or as agents of, that City.
B. It is further ORDERED that the bond required by Missouri Rule 92.02 shall be set at $250. The bond posted previously by Plaintiffs shall satisfy bond for this Order.
C. This Order shall remain in effect through November 1, 2006, unless extended in accordance with the Missouri Rules of Civil Procedure. Counsel for Defendants has stipulated to the extension of the Order past the 15-day period.
D. The hearing on Plaintiffs' Motion for a Preliminary Injunction is scheduled for November 1,2006,2006 at 9:00 a.m.

SO ORDERED this 27h day of September, 2006, at 4'L:VZ) p.m.:

-Barbara Circuit Judge

Wallace

 
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ATTYNA, CLOSED, REMAND
U.S. District Court Eastern District of Missouri (LIVE) (St. Louis) CIVIL DOCKET FOR CASE #: 4:06-cv-01487-ERW

Reynolds et al v. Valley Park, MO, City of et al

Date Filed: 10/10/2006

Assigned to: Honorable E. Richard Webber

Jury Demand: None

Case in other court: St. Louis County Circuit Court, 06CC-003802 Nature of Suit: 443 Civil Rights:

Cause: 42:405 Fair Housing Act

Accomodations

Jurisdiction: Federal Question

Plaintiff Stephanie Reynolds

represented by Anthony B. Ramirez ANTHONY B. RAMIREZ, P.C. 1015 Locust Street Suite 735 St. Louis, MO 63101 314-621-5237 Fax: 314-621-2778 Email: aramirezpc@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Anthony E. Rothert AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI 4557 Laclede Avenue St. Louis, MO 63108 314-361-3635 Fax: 314-361-3135 Email: tony@aclu-em.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Fernando Bermudez GREEN AND JACOBSON, P.C. 7733 Forsyth Boulevard Suite 700 St. Louis, MO 63105 314-862-6800 Fax: 314-862-1606 Email: bermudez@stlouislaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jesse Itauarte ITUARTE AND SCHULTE, LLC 2200 Pestalozzi Street St. Louis, MO 63118 US 314-865-5400

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Fax: 314-865-5401 LEAD ATTORNEY ATTORNEY TO BE NOTICED
John J. Ammann ST. LOUIS UNIVERSITY LEGAL CLINIC
321 N. Spring Avenue St. Louis, MO 63108 314-977-2778 Fax: 314-977-3334 Email: ammannjj@slu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Tokarz WASHINGTON UNIVERSITY SCHOOL OF LAW CIVIL JUSTICE CLINIC One Brookings Drive Campus Box 1120 St. Louis, MO 63130 314-935-9097 Fax: 314-935-5356 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathy A. Wisniewski BRYAN CAVE LLP 211 N. Broadway Suite 3600 St. Louis, MO 63102-2750 314-259-2000 Fax: 314-552-8523 Email: kawisniewski@bryancave.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Martinez BRYAN CAVE LLP 211 N. Broadway Suite 3600 St. Louis, MO 63102-2750 314-259-2000 Fax: 314-259-2020 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marie Kenyon CATHOLIC LEGAL ASSISTANCE MINISTRY 321 N. Spring Avenue St. Louis, MO 63108 US

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Plaintiff Florence Streeter

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314-977-3993 Fax: 314-977-3334 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R. Bagenstos WASHINGTON UNIVERSITY SCHOOL OF LAW CIVIL JUSTICE CLINIC One Brookings Drive Campus Box 1120 St. Louis, MO 63130 314-935-9097 Fax: 314-935-5356 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan W. McGraugh ST. LOUIS UNIVERSITY LEGAL CLINIC
321 N. Spring Avenue St. Louis, MO 63108 314-977-2778 Fax: 314-977-3334 Email: mcgraugh@slu.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony B. Ramirez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fernando Bermudez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jesse Itauarte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John J. Ammann (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Plaintiff Jacqueline Gray

Karen Tokarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathy A. Wisniewski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marie Kenyon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R. Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan W. McGraugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony B. Ramirez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fernando Bermudez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jesse Itauarte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John J. Ammann (See above for address) LEAD ATTORNEY

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Plaintiff
Metropolitan St. Louis Equal Housing Opportunity Council

ATTORNEY TO BE NOTICED
Karen Tokarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathy A. Wisniewski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marie Kenyon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R. Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan W. McGraugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Anthony B. Ramirez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Anthony E. Rothert (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Fernando Bermudez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Jesse Itauarte (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
John J. Ammann

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(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Karen Tokarz (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kathy A. Wisniewski (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Linda Martinez (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Marie Kenyon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Samuel R. Bagenstos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Susan W. McGraugh (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

V. Defendant Valley Park, MO, City of

represented by Eric M. Martin 109 Chesterfield Business Parkway Suite 210 Chesterfield, MO 63005 636-530-1515 Fax: 636-530-1556 Email: emartin772@aol.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kris W. Kobach UNIVERSITY OF MISSOURI-KANSAS CITY SCHOOL OF LAW 5100 Rockhill Rd. Law 1-200 Kansas City, MO 64110 US

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Defendant Jeffery Whitteaker in his official capacity as Mayor of the City of Valley Park, MO
Defendant John Brust
Defendant Daniel Adams

913-638-5567 Fax: 816-235-5276 Email: kobachk@umkc.edu LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis J. Leonatti LEONATTI AND BAKER P.C. 123 E. Jackson Street P.O. Box 758 Mexico, MO 65265-0758 573-581-2211 Fax: 573-581-6577 Email: lou@leonatti-baker.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric M. Martin (See above for address) ATTORNEY TO BE NOTICED
represented by Eric M. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

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Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Randy Helton

Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Don Carroll

Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Michael Pennise

Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Louis J. Leonatti

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Defendant Ed Walker
Defendant Steve Drake
Defendant Mike White in their official capacity as Aldermen of the city of Valley Park, MO

(See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eric M. Martin (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Kris W. Kobach (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Louis J. Leonatti (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Eric M. Martin (See above for address) ATTORNEY TO BE NOTICED

Date Filed

#

Docket Text

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09/25/2006 09/27/2006 09/27/2006 10/10/2006
10/10/2006 10/10/2006 10/10/2006 10/11/2006
10/12/2006 10/12/2006 10/12/2006 10/12/2006 10/12/2006 10/12/2006

TEMPORARY RESTRAINING ORDER . Signed by St. Louis County Circuit Court Judge Barbara W. Wallace on 9/25/06. (Document is attached to Notice of Removal as Exhibit-State Court File (1))(KLK) (Entered: 10/12/2006)
AMENDED TEMPORARY RESTRAINING ORDER . Signed by St. Louis County Circuit Court Judge Barbara Wallace on 9/27/06. (Document is attached to Notice of Removal Exhibit-State Court File (1))(KLK) (Entered: 10/12/2006)
FIRST AMENDED PETITION FOR DECLARATORY AND INJUNCTIVE RELIEF filed by Stephanie Reynolds, Florence Streeter, Jacqueline Gray, and Metropolitan St. Louis Equal Housing Opportunity Council. (Document is attached to Notice of Removal Exhibit-State Court File (2))(KLK) (Entered: 10/12/2006)
1 NOTICE OF REMOVAL from St. Louis County Circuit Court, case number 06CC3802, Filing fee $ 350.00 with receipt number S2007-232. Non-Jury Demand filed by John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, Valley Park, MO, City of, and Jeffery Whitteaker. (Attachments: #(1) Civil Cover Sheet #(2) Original Filing Form #(3) State Court File (1) #(4) State Court File (2) #(5) State Court File (3))(KLK) (Entered: 10/12/2006)
2 NOTICE OF FILING NOTICE OF REMOVAL filed by Defendants John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, Valley Park, MO, City of, and Jeffery Whitteaker Sent To: Pltffs Atty. (KLK) (Entered: 10/12/2006)
3 DISCLOSURE OF CORPORATION INTERESTS CERTIFICATE by Defendant City of Valley Park, MO. (KLK) (Entered: 10/12/2006)
Receipt # S2007-000232 in the amount of $350.00 for CIVIL FILING FEE, CIVIL FILING FEE-PART 2, CIVIL FILING FEE-PART 3 on behalf of CITY OF VALLEY PARK. (CSW,) (Entered: 10/12/2006)
5 NOTICE OF FILING NOTICE OF REMOVAL filed by Defendants John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, City of Valley Park, MO and Jeffery Whitteaker. Sent To: St. Louis County Circuit Court and Executed by State Court Clerk. (CDD, ) (Entered: 10/13/2006)
4 Emergency MOTION to Compel And Memorandum In Support by Plaintiffs Stephanie Reynolds, Florence Streeter, Jacqueline Gray, Metropolitan St. Louis Equal Housing Opportunity Council. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Wisniewski, Kathy) (Entered: 10/12/2006)
11 Letter to attorney Samuel R. Bagenstos from Clerk re: application for admission to practice law. (KLK) (Entered: 10/17/2006)
12 Letter to attorney Jesus Itauarte from Clerk re: application for admission to practice law. (KLK) (Entered: 10/17/2006)
13 Letter to attorney Marie A. Kenyon from Clerk re: application for admission to practice law. (KLK) (Entered: 10/17/2006)
14 Letter to attorney Linda Martinez from Clerk re: application for admission to practice law. (KLK) (Entered: 10/17/2006)
15 Letter to attorney Karen Tokarz from Clerk re: application for admission to practice law. (KLK) (Entered: 10/17/2006)

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Page 11 of 14

10/13/2006
10/13/2006 10/13/2006 10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/16/2006 10/17/2006

Docket Text ORDER: Emergency Motion to Compel [doc. #4] will be heard before this Court on this date at 10:00 a.m. So Ordered by Judge E. Richard Webber. (BAB) Modified on 10/13/2006 - sent by regular mail with ECF registration forms to: Samuel R. Bagenstos WASHINGTON UNIVERSITY SCHOOL OF LAW CIVIL JUSTICE CLINIC One Brookings Drive Campus Box 1120 St. Louis, MO 63130 Jesse Itauarte ITUARTE AND SCHULTE, LLC 2200 Pestalozzi Street St. Louis, MO 63118 Marie Kenyon CATHOLIC LEGAL ASSISTANCE MINISTRY 321 N. Spring Avenue St. Louis, MO 63108 Linda Martinez BRYAN CAVE LLP 211 N. Broadway Suite 3600 St. Louis, MO 63102-2750 Karen Tokarz WASHINGTON UNIVERSITY SCHOOL OF LAW CIVIL JUSTICE CLINIC One Brookings Drive Campus Box 1120 St. Louis, MO 63130. (BDC). (Entered: 10/13/2006)
6 ENTRY of Appearance by Louis J. Leonatti for Defendants John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, Valley Park, MO, City of, Jeffery Whitteaker. (Leonatti, Louis) (Entered: 10/13/2006)
7 Minute Entry for proceedings held before Judge E. Richard Webber: In Court Hearing held on 10/13/2006. Oral Stipulations were made on the record in open court. (Court Reporter: D. Kriegshauser.) (FTR Gold yes or no: no.) (proceedings started: 11:05 a.m.) (proceedings ended: 11:35 a.m.) (BDC) (Entered: 10/13/2006)
Docket Text ORDER: Pursuant to the agreement of the parties discussed at the October 13, 2006 Hearing before this Court, Plaintiffs' Emergency Motion to Compel [doc. #4] is DENIED, as moot. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to Samuel Bagenstos, Jesse Itauarte, Marie Kenyon, Linda Martinez, Karen Tokarz and Louis Leonatti on 10/16/2006 (MCB). (Entered: 10/16/2006)
ORDER RECEIPT: (see receipt) Mon Oct 16 09:09:21 CDT 2006 (MCB, ) (Entered: 10/16/2006)
8 MOTION to Remand Case to State Court and For an Award of Attorneys' Fees by Plaintiffs Stephanie Reynolds, Florence Streeter, Jacqueline Gray, Metropolitan St. Louis Equal Housing Opportunity Council. (Wisniewski, Kathy) (Entered: 10/16/2006)
9 MEMORANDUM in Support of Motion re 8 MOTION to Remand Case to State Court and For an Award of Attorneys' Fees filed by Plaintiffs Stephanie Reynolds, Florence Streeter, Jacqueline Gray, Metropolitan St. Louis Equal Housing Opportunity Council. (Attachments: # 1 Exhibit A# 2 Exhibit B# 3 Exhibit C# 4 Exhibit D)(Wisniewski, Kathy) (Entered: 10/16/2006)
10 MOTION to Expedite Briefing and Decision on Motion to Remand by Plaintiffs Stephanie Reynolds, Florence Streeter, Jacqueline Gray, Metropolitan St. Louis Equal Housing Opportunity Council. (Wisniewski, Kathy) (Entered: 10/16/2006)
Docket Text ORDER: By agreement of all parties and this Court, Motion to Expedite Briefing [doc. #10] is GRANTED. Defendants' Response in Opposition to Motion to Remand [doc. #8] shall be filed no later than October 20, 2006. Any Reply by Plaintiffs shall be filed no later than October 23, 2006. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 10/16/2006)
ORDER RECEIPT: (see receipt) Tue Oct 17 09:26:11 CDT 2006 (MCB, ) (Entered: 10/17/2006)

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10/17/2006 10/18/2006 10/18/2006 10/19/2006
10/20/2006 10/20/2006
10/20/2006 10/20/2006 10/23/2006 10/24/2006
10/25/2006 10/25/2006

ORDER RECEIPT: (see receipt) Tue Oct 17 11:21:56 CDT 2006 (KLK) (Application for Admission letters sent) (Entered: 10/17/2006)
16 MOTION for Leave to Appear Pro Hac Vice Kris W. Kobach by Defendants John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, Valley Park, MO, City of, Jeffery Whitteaker. (BAK, ) (Entered: 10/18/2006)
Receipt # S2007-000453 in the amount of $100.00 for ATTORNEY ADM. FEE PHV on behalf of KOBACH, KRIS. (CSW,) (Entered: 10/18/2006)
Docket Text ORDER: Motion for Leave to Appear Pro Hac Vice [doc. #16] is GRANTED. Kris W. Kobach shall be admitted pro hac vice for the purpose of representing Defendants in this matter. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non-registered attorneys on 10/19/2006 (BAK, ). (Entered: 10/19/2006)
17 MOTION for Protective Order Individual Defendants Motion for a Protective Order Limiting the Scope of Inquiry on Depositions of the Individual Defendants by Defendant Valley Park, MO, City of. (Leonatti, Louis) (Entered: 10/20/2006)
18 MEMORANDUM in Support of Motion re 17 MOTION for Protective Order Individual Defendants Motion for a Protective Order Limiting the Scope of Inquiry on Depositions of the Individual Defendants Defendants' Memorandum in Support of Their Motion for Protective Order Concerning the Depositions of the Individual Defendents filed by Defendant Valley Park, MO, City of. (Leonatti, Louis) (Entered: 10/20/2006)
19 MOTION for Leave to Exceed Page Limit for Memoranda by Defendants John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, Valley Park, MO, City of, Jeffery Whitteaker. (Kobach, Kris) (Entered: 10/20/2006)
20 MEMORANDUM in Opposition re 8 MOTION to Remand Case to State Court and For an Award of Attorneys' Fees filed by Defendants John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, Valley Park, MO, City of, Jeffery Whitteaker. (Kobach, Kris) (Entered: 10/20/2006)
21 REPLY to Response to Motion re 8 MOTION to Remand Case to State Court and For an Award of Attorneys' Fees filed by Plaintiffs Stephanie Reynolds, Florence Streeter, Jacqueline Gray, Metropolitan St. Louis Equal Housing Opportunity Council. (Wisniewski, Kathy) (Entered: 10/23/2006)
Docket Text ORDER: Motion for Leave to Exceed Page Limit [doc. #19] is GRANTED. Defendants' Response in Opposition [doc. #20] to Plaintiffs' Motion to Remand consisting of nineteen (19) pages is accepted for filing by this Court. So Ordered by Judge E. Richard Webber. (BAB) Notification sent to non-registered attorneys on 10/25/2006 (BAK, ). (Entered: 10/24/2006)
22 MOTION to Dismiss Party John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake and Jay Michael White by Defendant Valley Park, MO, City of. (Leonatti, Louis) (Entered: 10/25/2006)
23 MEMORANDUM in Support of Motion re 22 MOTION to Dismiss Party John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake and Jay Michael White filed by Defendant Valley Park, MO, City of. (Leonatti, Louis) (Entered: 10/25/2006)

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10/27/2006 10/30/2006
11/01/2006
11/01/2006 11/01/2006 11/01/2006
11/02/2006 11/02/2006 11/03/2006 11/03/2006 11/03/2006
11/06/2006

24 Defendants' ANSWER to Complaint Plaintiffs' First Amended Petition by Valley Park, MO, City of.(Leonatti, Louis) (Entered: 10/27/2006)
25 MEMORANDUM in Opposition re 17 MOTION for Protective Order Individual Defendants Motion for a Protective Order Limiting the Scope of Inquiry on Depositions of the Individual Defendants filed by Plaintiff Stephanie Reynolds. (Attachments: # 1 Exhibit 1# 2 Exhibit 2# 3 Exhibit 3# 4 Exhibit 4)(Wisniewski, Kathy) (Entered: 10/30/2006)
Docket Text ORDER: A Telephone Motion Hearing will be held TODAY at 2:00 P.M. on Defendants' Motion for Protective Order [doc. #17]. Counsel shall contact chambers as soon as possible to advise the Court of the names of counsel to participate in this telephone conference. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 11/01/2006)
Docket Text ORDER: Counsel for all parties shall appear before this Court for an in-court Hearing on Plaintiffs' Motion to Remand [doc. #8] on November 3, 2006, at 1:30 p.m. in Courtroom 12 South of the U.S. District Court. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 11/01/2006)
ORDER RECEIPT: (see receipt) Wed Nov 1 08:51:49 CST 2006 (MCB, ) (Entered: 11/01/2006)
26 Minute Entry for proceedings held before Judge E. Richard Webber : Motion Hearing held on 11/1/2006 re 17 MOTION for Protective Order Individual Defendants Motion for a Protective Order Limiting the Scope of Inquiry on Depositions of the Individual Defendants filed by Valley Park, MO, City of,. Parties present (by phone) for motion hearing. Arguments heard from both sides. Order to follow. (Court Reporter or FTR Gold Operator initials: D. Kriegshauser) (FTR Gold yes or no: no) (proceedings started: 2:02 p.m.) (proceedings ended: 2:53 p.m.) (JMW) (Entered: 11/02/2006)
27 MEMORANDUM AND ORDER granting in part and denying in part 17 Motion for Protective Order Signed by Judge E. Richard Webber on 11/2/06. (BAK, ) (Entered: 11/02/2006)
ORDER RECEIPT: (see receipt) Thu Nov 2 17:30:54 CST 2006 (BAK, ) (Entered: 11/02/2006)
28 MOTION for Reconsideration Plaintiffs' Emergency Motion for Reconsideration of Order of 11/02/06 Regarding Defendants' Motion for a Protective Order by Plaintiff Stephanie Reynolds. (Wisniewski, Kathy) (Entered: 11/03/2006)
Docket Text ORDER: Plaintiffs' Emergency Motion for Reconsideration [doc. #28] has been considered by the Court and is DENIED. So Ordered by Judge E. Richard Webber. (BAB) (Entered: 11/03/2006)
29 Minute Entry for proceedings held before Judge E. Richard Webber : In Court Hearing held on 11/3/2006 re: Plaintiffs' Motion to Remand Case to State Court [#8]. Counsel heard. Matter taken under submission. (Court Reporter or FTR Gold Operator initials:D. Kriegshauser.) (proceedings started: 1:30 p.m..) (proceedings ended: 3:20 p.m.) (MCB) (Entered: 11/03/2006)
30 RESPONSE in Opposition re 22 MOTION to Dismiss Party John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake and Jay Michael White Plaintiffs' Opposition to Aldermen Defendants' Motion to Dismiss filed by Plaintiff Stephanie Reynolds. (Wisniewski, Kathy) (Entered: 11/06/2006)

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11/14/2006 11/15/2006

31 REPLY to Response to Motion re 22 MOTION to Dismiss Party John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake and Jay Michael White filed by Defendants John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, Mike White, Valley Park, MO, City of, Jeffery Whitteaker. (Kobach, Kris) (Entered: 11/14/2006)
32 MEMORANDUM AND ORDER IT IS HEREBY ORDERED that Plaintiffs' Emergency Motion to Remand [doc. #8] isGRANTED. IT IS FURTHER ORDERED that Plaintiffs' Motion for an Award of Attorneys' Fees[doc. #8] is DENIED.IT IS FURTHER ORDERED that Defendants Burst, Adams, Helton, Carroll, Pennise,Walker, Drake, and White's Motion to Dismiss is DENIED as moot. Signed by Judge E. Richard Webber on November 15, 2006. (certified copy sent to Joan M. Gilmer, Clerk, Circuit Court of the County of St. Louis, State of Missouri, 7900 Carondelet, St. Louis, MO 63105 this date.)(MCB) (Entered: 11/15/2006)

PACER Service Center
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Description: Docket Report Search Criteria: 4:06-cv-01487-ERW

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11/17/2006

 
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09/22/06 01 0 2 0 3 0 4 05 06
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DIRECT FILING, PETITION AND COVER SHEET FILED, CASE

WAS S

ASSIGNED TO DIV 39

MARIE A. KENYON ENTERS APPEARANCE FOR PLAINTIFF(S) #1

STEPHANIE REYNOLDS

KAREN L. TOKARZ CO-COUNSEL ENTERS APPEARANCE FOR

JRENN

PLAINTIFF (S) #3 JACQUELINE GRAY

CASE REASSIGNED TO JUDGE SANDRA FARRAGUT-HEMPHILL DIV CCART

42 DUE TO DISQUALIFICATION ON 09/22/2006

COPY OF NOTICES FILED AND MAILED THIS DAY, TO THE

PARTIES OF RECORD.

PURSUANT WILLIAM

TO LOCAL RULE 28, STAGE APPROVED ON

SSEPPETCEIMABLEPRR2OC2E,S2S00S6ERV.ER

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FERNANDO BERMUDEZ CO-COUNSEL ENTERS APPEARANCE FOR

JRENN

PLAINTIFF (S) #1 STEPHANIE REYNOLDS

LINDA M. MARTINEZ CO-COUNSEL ENTERS APPEARANCE FOR

PLAINTIFF(S) #4 THE METROPOLITAN ST LOUIS EQUAL HOUSING

OPPORTUNIT

ANTHONY B. RAMIREZ CO-COUNSEL ENTERS APPEARANCE FOR

PLAINTIFF (S) #1 STEPHANIE REYNOLDS

JOHN J. AMMANN CO-COUNSEL ENTERS APPEARANCE FOR

PLAINT1FF (S) #2 FLORENCE STREETER

JESUS ITUARTE CO-COUNSEL ENTERS APPEARANCE FOR

PLAINTIFF (S) #3 JACQUELINE GRAY

ANTHONY E. ROTHERT ENTERS APPEARANCE FOR PLAINTIFF(S)

#4 THE METROPOLITAN ST LOUIS EQUAL HOUSING OPPORTUNIT - - - - -

09/25/06 01

PLAINTIFF'S MEMORANDUM IN SUPPORT OF THEIR MOTION

KAME

FOR/TO A TEMPORARY RESTRAINING ORDER, FILED.

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MOTION TO DISQUALIFY JUDGE, FOR CAUSE (MOTION #1)

ABESM

FILED BY DEFENDANT (S) #1 CITY OF VALLEY PARK MO

0 3

DEFENDANT(S) #1 CITY OF VALLEY PARK MO MOTION TO

DISQUALIFY JUDGE, FOR CAUSE (MOTION #1) WITHOUT TRIA L

DENIED

APPLICATION OF CITY OF VALLEY PARK, MISSOURI TO

DISQUALIFY JUDGE FOR CAUSE IS ASSIGNED TO DIV. 1 FOR

HEARING. JUDGE CAROLYN WHITTINGTON

JUDGE ROBERT S. COHEN, DIV 01

COURT REPORTER: JANE CAREY

0 4

CASE REASSIGNED TO JUDGE BARBARA W WALLACE DIV 13 DUE JRENN

TO DISQUALIFICATION ON 09/25/2006

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CSCHE

JUDGE BARBARA W. WALLACE, DIV 13

07

CASE SET BY COURT 11/01/2006 09:OOAM DIV 13

JUDGE BARBARA W. WALLACE, DIV 13

08

PLTFS MOTION FOR EXPEDITED DISCOVERY SCHEDULE FILED.

09

ALAN J. BAKER ENTERS APPEARANCE FOR INTERVENING

JRENN

PLAINTIFF(S) #1 JAMES ZHANG

10

ERIC M. MARTIN ENTERS APPEARANCE FOR DEFENDANT(S) #1

CITY OF VALLEY PARK MO

11

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JUDGE BARBARA W. WALLACE, DIV 13

12

MOTION FOR LEAVE TO INTERVENE FILED AND GRANTED.

JUDGE BARBARA W. WALLACE, DIV 13

13

PARTIES ALLOWED TO TAKE DEPOS UPON USUAL NOTICE BUT

NEED NOT WAIT FOR ANSWER PERIOD TO EXPIRE.

JUDGE BARBARA W. WALLACE, DIV 13

-----

09/27/06 01
0 2
03 0 4

COPY OF NOTICES FILED AND MAILED THIS DAY, TO THE PARTIES OF RECORD. MOTION FOR AMENDED TRO ORDER (MOTION #2) FILED BY PLAINTIFFS
FIRST AMENDED PETITION FILED. AMENDED TRO ORDER APPROVED AND FILED.
JUDGE BARBARA W. WALLACE, DIV 13

JRENN CSCHE
-----

09/28/06 01 0 2
10/10/06 01

CASE DEPOSIT, DATED 9/26/2006, CHECK NUMBER 743127, AMOUNT OF $364.00 FOR CIVIL F/F. CASE DEPOSIT, DATED 9/26/2006, CHECK NUMBER 67663, AMOUNT OF $250.00 FOR CK TRO 09-25-06.
CERTIFIED COPY OF LEGAL FILE PREPARED FOR ERIC MARTIN

V0119
-----
DPLOU

06CC-003802 L REYNOLDS, STEPHANIE ETAL VS
CITY OF VALLEY PARK MO ETAL

PG: 02

 
 I N THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI

STEPHANIE REYNOLDS, et al., Plaintiffs,
v. CITY OF VALLEY PARK, MO, et al.,
Defendants.

1 1 1
) Cause No. 06CC-3802
1
) Division 13
)
1 1

Pursuant to Rule 44.01(b), Defendants move the Court ex parte for an

order enlarging the time to file a responsive pleading t o the Petition from

October 23, 2006, t o October 30, 2006, and for an order enlarging the time

&3

to answer

t o Interrogatories and Requests for Production of

documents directed t o Defendants from October 19, 2006, t o October 26,

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This Motion is made prior to the expiration of time of the period

originally prescribed and is based upon the complicated nature of the

Constitutional issues raised and the large number of Defendants joined by

Plaintiffs. In addition, Defendants' counsel is a sole practitioner with other,.

/

matters pending as opposed t o Plaintiffs' team of 19 lawyers.

/

- 3 9 cKM%.-Eb:
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' ~ u s i n e s sParkway
hesterfield, MO 63005-1233 30-1515
636-530-1556 (FAX) emartin772@aol.com Attorney for Defendants

I N THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI

STEPHANIE REYNOLDS, e t al., Plaintiffs,
v. CITY OF VALLEY PARK, MO, et al.,
Defendants.

1 j 1
) Cause No. 06CC-
1
) Division 13
)
1 1

ORDER GRANTING DEFENDANTS' REQUEST TO ENLARGE TIME TO FILIS:

The Defendants' ex parte Motion for Enlargement of Time within which

the Defendants may file a responsive pleading and/or respond t o

Interrogatories and Request for Production of Documents being submitted to

the Court and the Court being duly advised in the premises, now grants such

Motion,

I T I S THEREFORE ORDERED by the Court that the time within

Defendants must file a responsive pleading to the Amended Petition and

respond to discovery through answers or objections t o Interrogatories and

response t o Request for Production is hereby enlarged by granting

Defendants an additional seven (7) days, a responsive pleading t o the

Amended Petition due October 30, 2006, and answers & . .

to

Interrogatories and response or objections to Request for Production due

October 26, 2006. rc* 9 :OOy ..+ 0 . ! ? 3 d r ~-3s

% k X h /.e$ N.12. d 5 .~ 1 0 p . m

D c - -10, -6
Date

JUDGE ~ R O L Y NWHI~TINVON
Presiding Judge

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

STEPHANIE REYNOLDS, et al.

)

)

Plaintiffs,

)

)

and

)

)

JAMES ZHANG,

)

Cause No. 06-CC-3802

)

Intervenor,

)

Division No. 13

)

v.

)

)

CITY OF VALLEY PARK, MO, et al.

)

)

Defendants.

)

PLAINTIFFS' MOTION FOR JUDGMENT ON THE PLEADINGS AND SUPPORTING MEMORANDUM

Plaintiffs Stephanie Reynolds, Kobasa, Inc. (d/b/a Valley Deli), Florence Streeter, Cash

Flo Properties, LLC, Jacqueline Gray, Windhover, Inc., and The Metropolitan St. Louis Equal

Housing Opportunity Commission, pursuant to MO.R.ClV.P. 55.27(b), move this Court to enter

judgment in their favor as a matter of law, and to declare Valley Park Ordinance No. 1708 and

Valley Park Ordinance No. 1715 void and unenforceable. Plaintiffs also request, pursuant to

MO.REv.STAT. § 527.080 and MO.R.ClV.P. 87.10, that this Court enter an order making the

temporary injunction enjoining enforcement of those Ordinances permanent.

As more fully explained in the following Memorandum, it is clear, based on the plain

language of the Ordinances, that they are void because they conflict with, and thus are repugnant to, Missouri state law. lI

liIn this Motion Plaintiffs raise only two of the many grounds outlined in the Petition for voiding the Ordinances at issue. Plaintiffs file this Motion reserving their right, (in the event this Motion does not fully resolve the validity of the Ordinances and Plaintiffs' right to injunctive relief), to pursue the additional grounds entitling them to judgment.

MEMORANDUM IN SUPPORT
FACTS The facts relevant to this Motion are not in dispute. Defendants admit in their Answer the existence of Valley Park Ordinance No. 1708 and Valley Park Ordinance No. 1715, and the relative dates of enactment of those Ordinances. (Defendants' Answer to Plaintiffs' Second Amended Petition, ~~ 22, 24). Defendants also admit that each Ordinance "speak[s] for itself." Id. Plaintiffs agree, for purposes of this Motion (only), that each Ordinance does speak for itself.
ARGUMENT "[A] motion for judgment on the pleadings should be sustained if, from the face of the pleadings, the moving party is entitled to judgment as a matter of law." Madison Block Pharmacy, Inc. v. United States Fidelity & Guaranty Co., 620 S.W.2d 343, 345 (Mo. banc 1981). Because "[t]he interpretation of an ordinance is a question of law" (State ex reI. Sunshine Enterprise of Missouri, Inc. v. Bd. of Adjustment of the City of St. Ann, 64 S.W.3d 310, 312 (Mo. banc 2002)), this case is particularly well-suited for disposition by a motion for judgment
on the pleadings. Cj Madison Block, 620 S.W.2d at 345 (where sole issue was construction of contract which was a question oflaw, resolution by judgment on the pleadings was appropriate).
I. THE LIMITED POWERS GRANTED TO VALLEY PARK. A municipality can legislatively regulate its citizens only where: the power is "granted in
express words"; or it is "necessarily or fairly implied in or incident to" an express power; or it is "essential to the declared objects and purposes" of the municipality." State ex reI. Curators of Univ. of MO v. McReynolds, 193 S.W.2d 611, 612 (Mo. en banc 1946) (citation omitted); see also Premium Std. Farms, Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234, 238 (Mo.
2

en banc 1997) (same). "Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied." Id. (emphasis added)
As a fourth class city and its legislative body, Defendants can enact and enforce only those ordinances which are "not repugnant to the constitution and laws of this state," and which are "expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof." MO.R.STAT. § 79.110. II. THE STANDARDS FOR DETERMINING A CONFLICT.
Missouri Supreme Court precedent provides the guidelines for resolving whether a municipal ordinance conflicts with state law:
A municipal ordinance must be in harmony with the general law of the state and is void if in conflict. In determining whether an ordinance conflicts with general laws, the test is whether the ordinance permits that which the statute forbids and prohibits, and vice-versa. The powers granted a municipality must be exercised in a manner not contrary to the public policy of the state and any provisions in conflict with prior or subsequent state statutes must yield. Morrow v. City of Kansas City, 788 S.W.2d 278, 281 (Mo. banc 1990) (citations omitted); see also State ex reI. Drury Displays, Inc. v. City of Columbia, 907 S.w.2d 252, 256 (Mo.App. 1995) ("A municipal ordinance must be consistent with the general law of the state, and the ordinance is void if the two are in conflict"). III. THE ORDINANCES CONFLICT WITH MISSOURI LAW. The express provisions of both Ordinance No. 1715 and Ordinance No. 1708 make clear that they are not in harmony with, indeed they directly conflict, MO.R.STAT. § 79.470. In addition, the provisions of Ordinance No. 1715 conflict with MO.R.STAT. § 441.060 and MO.R.STAT. § 441.233. Because these Ordinances are "repugnant to the '" laws of this state" as expressly prohibited by MO.R.STAT. § 79.110, they are void.
3

A. The Ordinances Directly Conflict With Statutorily Authorized Punishments.

Under Missouri law a fourth class city, (like Valley Park), can penalize a person for an

ordinance violation only by imposing a fine of not more than $500 and/or a sentence of no more

than 90 days in jail. MO.R.STAT. § 79.470. Fourth class cities, (like Valley Park), are not

authorized to prohibit the collection of rent or compensation as punishment for an ordinance

violation. Id. Nor is such a city allowed to "sentence" a business to foregoing a business permit,

or renewal of a business permit, for a period of "not less than five (5) years." Id. Nor can it

summarily suspend a validly-issued business permit or occupancy permit for an ordinance

violation.

2 /

Id.

Ordinance No. 1715 is void because it expressly provides for these penalties

which are not authorized by Missouri law, e.g., it provides that a violation can be punished by

denial or suspension of a business license and occupancy permit, and by prohibiting the

collection of rent, fees, and compensation. See Ordinance No. 1715, §§ 4.B.(3), (4), (6), (7);

Ordinance No. 1715, §§ 5.B.(4), (5), (6), (8). Likewise Ordinance No. 1708 is void because it

expressly provides that a violation of its provisions will result in the denial of a business permit

(or its renewal) for "not less than five (5) years." See Ordinance No. 1708, § 2.

The monetary value of the fines imposed by Ordinance No. 1708 and No. 1715 likewise

make clear that they are void due to the imposition of unauthorized penalties. Indeed, in direct

violation of the $500 maximum fine authorized by Missouri law for an ordinance violation

(MO.R.STAT. § 79.470), Ordinance No. 1708 expressly provides that a violation of its provisions

shall be punished by a fine of "not less than Five Hundred Dollars ($500.00)." See Ordinance

21Although municipalities can deny business licenses/permits for reasons set for in a license/permit ordinance itself (provided there are adequate safeguards for a due process hearing, which the Ordinances here do not provide), suspension of an already-issued license is prohibited without provision of a prior hearing. See, e.g., Davis v. City of Kinloch, 752 S.W.2d 420, 423-24 (Mo.App. 1988).
4

No. 1708, § 3.B. (emphasis added). And, by authorizing punishments which include the indefinite suspension of business licenses/permits, occupancy permits, and the collection of rent, Ordinance No. 1715 likewise violates the $500 fine limit imposed by MO.R.STAT. § 79.470, as the value of such penalties could greatly exceed this limitation.
Ordinance No. 1708 and Ordinance No. 1715 are not in harmony with, and are repugnant to, MO.R.STAT. § 79.470. Accordingly, judgment should be entered in favor of Plaintiffs declaring the Ordinances void, and the temporary injunction enjoining their enforcement should be made permanent.
B. The Ordinances Directly Conflict With Missouri Landlord-Tenant Laws. Even if this Court were to find that Ordinance No. 1715 is in harmony with the penalty authorizations in Missouri statutory law (which it is not), that Ordnance should still be declared void as a matter of law because it directly conflicts with Missouri landlord-tenant law. Missouri statutes governing landlord-tenant relationships forbid and prohibit a landlord from evicting a tenant without 30 days notice. MO.R.STAT. § 441.060. And, if the tenant refuses to leave voluntarily upon the 30th day, Missouri law forbids the landlord from removing the tenant's belongings from the premises without "judicial process." MO.R.STAT. § 441.233. In direct conflict with these mandates, Ordinance No. 1715 severely penalizes a landlord who refuses to evict a tenant within 5 days of being given notice that the City of Valley Park has unilaterally decided that the tenant is an "illegal alien." See Ordinance No. 1715, § 5.B.(4). Thus, it is clear that Ordinance No. 1715: is not in harmony with Missouri law; compels actions that are contrary to the public policy of this State (eviction within 5 days); and permits (in fact, compels) that which the State statute forbids (i.e., eviction on less than 30 days notice).
5

Plaintiffs are thus entitled to judgment as a matter of law on Ordinance No. 1715 for the additional reason that it is not in harmony with, and is repugnant to, Missouri landlord-tenant statutes. Accordingly, judgment should be entered in favor of Plaintiff declaring Ordinance No. 1715 void, and the temporary injunction enjoining its enforcement should be made permanent.
CONCLUSION FOR RELIEF, for the reasons outlined herein, Plaintiffs respectfully request that this Court grant their Motion for Judgment on the Pleadings, and that this Court enter a judgment declaring Ordinance No. 1708 and Ordinance No. 1715 void, and, pursuant to MO.REv.STAT. § 527.080 and MO.R.Crv.P. 87.10, enter an order making the temporary injunction enjoining enforcement of those Ordinances permanent.
Respectfully submitted,
By: 1m. inez b Kathy A. Wi kawisniewski b ancave.com Elizabeth Ferrick, #52241 elizabeth. ferrick@bryancave.com John Young, #50539 jfyoung@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
6

SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannii@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring S1. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw. wustl.edu Margo Schlanger (pro hac vice) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 S1. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLU.edu 321 N. Spring Avenue S1. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte j@sbcglobal.net 2200 Pestalozzi Street S1. Louis, MO 63118 (314) 865-5400
7

ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
GREEN JACOBSON & BUTSCH P.e. Fernando Bermudez, #39943 Bermudez@stlouislaw.com 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 (314) 862-6800 Facsimile: 314-862-1606
AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI
Anthony E. Rothert, #44827 tony@aclu-em.org 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635 Facsimile: (314) 361-3135
OF COUNSEL:
MEXICAN AMERICAN LEGAL DEFENSE AND EDUCATIONAL FUND
Ricardo Meza rmeza@maldef.org7 Jennifer Nagda jnagda@maldef.org 11 E. Adams; Suite 700 Chicago, IL 60603 (312) 427-0701 Facsimile: (312) 427-0691
8

AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS' RIGHTS PROJECT Lee Gelemt Omar C. Jadwat OJ adwat@ac1u.org 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2620 Facsimile: (212) 549-2654
and Jennifer C. Chang 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 Facsimile: (415) 395-0950
9

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of Plaintiffs' Motion for Judgment on the Pleadings and Memorandum in Support was forwarded, via e-mail and firstclass mail, on this 20th day of February, 2007, to: Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin772@aol.com Louis J. Leonatti Leonatti & Baker, P.C. P.O. Box 758 Mexico, MO 65265 Lou@Leonatti-Baker.com Kris W. Kobach University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk@umkc.edu Counselfor Defendants and by facsimile and first-class mail to: Alan Baker Attorney at Law 1620 South Hanley St. Louis, MO 63144 Counselfor Intervenor
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PAGE 13

BILL NO. 1866

ORDINANCE NO. 1721

***************
AN ORDINANCE REPEALING SECTION 510.020 SUBSECTION 103.6.1 OF THE PROPERTY
MAINTENANCE CODE RELATING TO INSPECTIONS AND OCCUPANCY PERMITS
AND ENACTING A NEW ORDINANCE IN LIEU THEREOF RELATING TO THE SAME SUBJECT MATTER
***************

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Section 510.020 Subsection 103.6.1 of the Code of Ordinan<;es is hereby repealed.
Section Two
A new section to be known as "Section 510.020 Subsection 103.6.1, Appli<;ations and Inspections" is hereby adopted as follows:
(a) It shall be unlawful for any owner or agent of real property containing a dwelling unit or units to permit or allow any person to occupy the dwelling unit or part thereof for any purpose until a certificate of occupancy has been issued by the Building Commissioner. Every owner, agent or manager of any dwelling unit shall inform the City whenever any portion of the building or dwelling unit becomes vacant, or that a change of occupancy in the building or unit is imminent, and the owner, manager or agent shall apply for an occupancy permit on such forms provided by the City. The City shall review the application, which shall set forth names, ages, dtizenships, and relationships for each proposed occupant, together with such identifying information that shall be required by the City. The Building Commissioner, consistent with federal law and Ordinance 1715, shall not issue an occupancy permit and will deny the same if any alien unlawfully present in the United States is a proposed occupant of the dwelling unit or units, and no Inspection shall be performed. When an alien Is a proposed occupant, the Building Commissioner shall verify with the federal government whether the alien is lawfully present in the

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United states, pursuant to 8 USC § 1373(c). The BUilding Commissioner shall make no independent judgment of the legal status of any allen. If the unit contains no proposed occupant who is an alien unlawfully present in the United states, an inspection shall be performed under the provisions of this article and, if compliance with this section is made, an occupancy permit shall be granted to the owner or his agent setting forth the occupants' names, relationships, and number of occupants allowable at the premises.
(b) It shall be unlawful for any owner, agent or manager of a dwelling unit or units to knowingly make any false statements in the application for occupancy as to the names, ages, citizenship, relationships, identification or number of occupants who will occupy the premises.
(c) This section shall only apply prospectively, to occupancies commenCing after the effective date of this ordinance.
(d) If the federal government notifies the City of Valley
Park that it is unable to verify whether a proposed occupant who is an alien is lawfully present in the United states, the City of Valley Park shall not deny the occupancy permit on that baSiS, and an inspection shall be performed.
(e) Any owner of real property containing a dwelling unit who is denied an occupancy permit, or any proposed occupant who is unable to lease a dwelling unit because the City of Valley Park has denied an occupancy permit concerning the occupant, may challenge the denial of the occupancy permit before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right of appeal to the st. Louis County Circuit Court. The determination of whether an alien is lawfully present in the United States shall only be made by the federal government. The Board of Adjustment may take judicial notice of any verification of the individual's status previously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to 8 USC § 1373(c).
Section Ibreg
This Ordinance shall become effective from and after its passage and upon approval of the Mayor and upon the termination of any restraining orders or injunctions which are now in force in Cause No. 06CC-3802 now
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pending in St. Louis County, Missouri in Division 13, and shall be applicable only to changes in occupancies made after the effective date hereof.
PASSED this 5th day of February, 2007.
APPROVED this )ltf'!!:day of February, 2007.

ATTEST:
~(.?it!e: Ulta&u~
I MAR ERITE WILBURN City Clerk

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BILL NO. 1868

ORDINANCE NO. 1723

***************
AN ORDINANCE AMENDING BILL 1866, PROPOSED ORDINANCE 1721, PERTAINING TO THE
PROPERTY MAINTENANCE CODE RELATING TO INSPECTIONS AND OCCUPANCY PERMITS BY CLARIFYING SECTION TWO AND SECTION THREE THEREOF

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

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section Ong
Section Two of Bill 1866, proposed Ordinance 1721, is hereby amended by deleting the language in brackets and substituting in lieu thereof the language in bold:
A new section to be known as "Section 510.020 Subsection 103.6.1, Applications and Inspections" is hereby adopted as follows:
(a) It shall be unlawful for any owner or agent of real property containing a dwelling unit or units to permit or allow any person to occupy the dwelling unit or part thereof for any purpose until a certificate of occupancy has been issued by the Building Commissioner. Every owner, agent or manager of any dwelling unit shall Inform the City whenever any portion of the building or dwelling unit becomes vacant, or that a change of occupancy in the building or unit is imminent, and the owner, manager or agent shall apply for an occupancy permit on such forms provided by the City. The City shall review the application, which shall set forth names, ages, cltlzenships, and relationships for each proposed occupant, together with such identifying information that shall be required by the City. The Building Commissioner, consistent with federal law [and Ordinance 1715] and Ordinance 1122, shall not issue an occupancy permit and will deny the same If any alien unlawfully present in the United states is a proposed occupant of the dwelling unit or units, and no inspection shall be performed. When an alien is a proposed occupant, the Building Commissioner shall verify with the federal government whether

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the alien is lawfully present in the United States, pursuant to 8 USC § 1373(c). The Building Commissioner shall make no independent judgment of the legal status of any alien. If the unit contains no proposed occupant who Is an alien unlawfully present in the United States, an inspection shall be performed under the provisions of this article and, if compliance with this section is made, an occupancy permit shall be granted to the owner or his agent setting forth the occupants' nameS, relationships, and number of occupants allowable at the premises.
(b) It shall be unlawful for any owner, agent or manager of a dwelling unit or units to knowingly make any false statements in the application for occupancy as to the names, ages, citizenship, relationships, identification or number of occupants who will occupy the premises.
(c) This section shall only· apply prospectively, to occupancies commencing after the effective date of this ordinance.
(d) If the federal government notifies the City of Valley Park that it is unable to verify whether a proposed occupant who is an alien is lawfully present in the United States, the City of Valley Park shall not deny the occupancy permit on that baSis, and an inspection shall be performed.
(e) Any owner of real property containing a dwelling unit who is denied an occupancy permit, or any proposed occupant who is unable to lease a dwelling unit because the City of Valley Park has denied an occupancy permit concerning the occupant, may challenge the denial of the occupancy permit before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right of appeal to the St. Louis County Circuit Court, The determination of whether an alien is lawfully present in the United States shall only be made by the federal government. The Board of Adjustment may take judiCial notice of any verification of the individual's status previously provided by the federal government and may request the federal government to provide automated Or testimonial verification pursuant to 8 USC § 1373(c).
Section Two
Section Three of Bill 1866, proposed Ordinance 1721, is hereby amended by deleting Section Three and inserting in lieu thereof a new Section Three as follows:

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This Ordinance shall become effective from and after its passage and upon approval by the Mayor; provided, however, the City shall not enforce the provisions of Section Two as it pertains to the identification by citizenship of proposed occupants, the verification of alien status by City officials, the grant or denial of an occupancy permit based on the Immigration status of an occupant and the false statement on applications as to citizenship until the termination of any restraining orders or injunctions now In force in Cause No. 06CC-3802 now pending in St. Louis County, Missouri, Division 13.
Section Three
This Ordinance shall be come effective from and after its passage and upon approval by the Mayor.
PASSED this 11t~ day of FebrUary, 2007.
APPROVED this I~day of February, 2007.

ATTEst:
z?2~~
'MARG ERITE WILBURN City Clerk

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BILL NO. 1867

ORDINANCE NO. 1722

********************
AN ORDINANCE REPEALING ORDINANCE NO. 1715 RELATING TO ILLEGAL IMMIGRATION WITHIN THE CITY OF VALLEY PARK, MO, AND ENACTING A NEW ORDINANCE IN LIEU THEREOF
RELATING TO THE EMPLOYMENT OF ILLEGAL ALIENS WITHIN THl! CITY OF VALLEY PARK, MO
********************

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Sections One, Two, Three and Four of Ordinance No. 1708 are hereby repealed.
Section Two
FINDINGS AND DECLARATION OF PURPOSE,
The people of the City of Valley Park find and declare:
A. That state and federal law require that certain conditions be met before a person may be authorized to work In this country.
B. That unlawful workers and illegal aliens, as defined by this Ordinance and state and federal law, do not normally meet such conditions as a matter of law when present in the City of Valley Park.
C. That unlawful employment of, and crime committed by, illegal aliens harms the health, safety and welfare of authorized US workers and legal residents in the City of Valley Park. 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 costs and diminishing their availability to legal residents, and diminishes our overall qualify of life and provides concerns to the security and safety of the homeland.

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D. That the City of Valley Park is authorized to abate publiC nuisances and empowered and mandated by the people of Valley Park 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. This Ordinance seeks to secure to those lawfully present In the United States and this City, whether or not they are citizens of the United States, the right to live In peace free of the threat of crime, to enjoy the public services provided by this City without being burdened by the cost of providing goads, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their econom ic and socia I well being imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the Constitution and Laws of the United States and the State of MissourI.
F. The City shall not construe this Ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal assistance to any person.
Section Three
DEFINITIONS.
When used in this chapter, the following words, terms and phrases shall have the meanings ascribed to them herein, and shall be construed so as to be consistent with state and federal law, including federal immigration law:
A. "Business entity" means any person or group of persons performing or engaging In any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for profit.
(1) The term business entity shall include, but not be limited to, self-employed individuals, partnerships, corporations, contractors, and subcontractors.
(2) The term business entity shall include any business entity that possesses a business license, any business entity that is exempt by law from obtaining such a business license, and any business entity that is operating unlawfully without such a business license.
B. "City" means the City of Valley Park, Missouri.
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C. "Contractor" means a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include, but not be limited to, a subcontractor, contract employee, or a recruiting or staffing entity.
D. "Illegal Alien" means an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq. The City shall not conclude that a person is an Illegal alien unless and until an authorized representative of the City has verified with the federal government, pursuant to United States Code Title 8, subsection 1373(c), that the person is an alien who is not lawfully present In the United States.
E. "Unlawful worker" means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, Including, but not limited to, a minor disqualified by nonage, or an unauthorized alien as defined by United states Code Title 8, subsection 1324a(h)(3).
F. "Work" means any job, talk, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including, but not limited to, all activities conducted by bUSiness entitles.
G. "Basic Pilot Program" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and operated by the United States Department of Homeland Security (or a successor program established by the federal govern ment.)
Section Four
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 license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.
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B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Valley Park Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
(2) A complaint which alleges a violation 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 Valley Park Code Enforcement Office shall, within three (3) bUSiness days, request identify information from the bUSiness entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which falls, within three (3) bUSiness days after receipt of the request, to provide such information.
(4) The Valley Park Code Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.
(5) The Valley Park Code Enforcement Office shall not suspend the business license 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 (1) business day after a legal representative of the business entity submits, at a City office deSignated by the City Attorney, a sworn affidavit stating that the 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.
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(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 Valley Park Code Enforcement Office, in addition to the prescribed affidavit, documentation acceptable to the City Attorney which confirms that the business entity has enrolled in and will participate in the Basic Pilot Program for the duration of the validity of the business permit granted to the business entity.
(7) For a second or subsequent violation, the Valley Park Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty (20) days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Valley Park Code Enforcement Office shall reinstate the business permit. The Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. In the case of an unlawful worker disqualified by state law not related to immigration, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.
C. All agencies of the City shall enroll and partiCipate in the Basic Pilot Program.
D. As a condition for the award of any City contract or grant to a business entity for which the value of employment, labor or, personal services shall exceed $10,000, the business entity shall provide documentation confirming its enrollment and partiCipation in the 6asic Pilot Program.
Section Five
IMPLEMENTATION AND PROCESS
A. Prospective Application Only. The default presumption with respect to Ordinances of the City of Valley Park - that such Ordinances apply only prospectively - shall pertain to the provisions of this Ordinance, which shall apply only to employment contracts, agreements to perform service or work, and agreements to provide a certain product in exchange for valuable consideration that are entered into or renewed after the date that this Ordinance becomes effective and any judicial Injunction prohibiting Its implementation is removed.
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S, Correction of Violations Employment of Unlawful Workers, The correction of a violation with respect to the employment of an unlawful worker shall include any of the following actions:
(1) The business entity terminates the unlawful worker's employment.
(2) The business entity, after acquiring additional information from the worker, requests a secondary or additional verification by the federal government of the worker's authorization, pursuant to the procedUres of the Basic Pilot Program. While this verification Is pending, the three business day period described in Section 4,8.(4) shall be tolled.
(3) The business entity attempts to terminate the unlawful worker's employment and such termination is challenged in a Court of the State of Missouri. While the business entity pursues the termination of the unlawful worker's employment in such forum, the three business day period described in Section 4,6(4) shall be tolled.
C. procedure If VerificatiQn is Delayed. If the federal government notifies the City of Valley Park that it is unable to verify whether an employee Is authorized to work in the United States, the City of Valley Park shall take no further action on the complaint until a verification from the federal government concerning the status of the individual is received. At no point shall any city official attempt to make an independent determination of any alien's legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c).
D. Deference to Federal Determinations of Statys. The determination of whether a tenant of a dwelling is lawfully present in the United States, and the termination of whether a worker is an unauthorized alien shall be made by the federal government, pursuant to United States Code Title 8, Subsection 1373(c). A determination of such status of an individual by the federal government shall create a rebuttal presumption as to that individual's status in any judicial proceedings brought pursuant to this Ordinance. The Court may take judicial notice of any verification of the individual previously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to United States Code Title 8, Subsection 1373(c).

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E. Venue fpr Judicial process. Any business entity subject to a complaint and subsequent enforcement under this Ordinance, or any employee of such a business entity, may challenge the enforcement of this Ordinance with respect to such entity or individual before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right of appeal to the St. Louis County Circuit Court. Such an entity or individual may alternatively challenge the enforcement of this Ordinance with respect to such entity or individual in any other Court of competent jurisdiction in accordance with applicable law, subject to all rights of appeal.
Section Six
CONSTRUCTION AND SEVERABILITY
A. The requirements and obligations of this section shall be implemented in a manner fully consistent with federal law regulating immigration and protecting the civil rights of all citizens and aliens.
B. If any parts of or any provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, such part or such provision shall be suspended and superseded by such applicable laws or regulations, and the remainder of this Chapter Shall not be affected thereby.
Section Seven
This Ordinance shall become effective from and after its passage and upon approval by the Mayor.
PASSED this 5th day of February, 2007.
APPROVED this J~day of February, 2007.

ATTEST:
/ MARGJERITl E W~ ILBUR& N ~
City Clerk
7
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02/21/2007 15:27 5352250543

CITY OF VALLEY PARK

PAGE 02

BILL NO. 1869

ORDINANCE NO. 1724

***************
AN ORDINANCE AMENDING BILL 1867, PROPOSED ORDINANCE 1722, PERTAINING TO THE EMPLOYMENT OF ILLEGAL ALIENS BY ADDING LANGUAGE TO SECTION SEVEN
THEREOF CLARIFYING THE EFFECTIVE DATE
***************
BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Section Seven of Bill 1867, proposed Ordinance 1722, is hereby amended by deleting Section Seven therefrom and, in lieu thereof, inserting a new Section Seven as follows:
This Ordinance shall become effective from and after its passage and approval by the Mayor in repealing Ordinance 1708 and Ordinance 1715, provided that the enforcement of the provisions contained within Sections Two, Three, Four, Five and Six shall be effective upon the termination of any restraining orders or injunctions now in force in Cause No. 06CC-3802 now pending in St. Louis County, Missouri, in Division 13.
Section Two
This Ordinance shall be come effective from and after its passage and upon approval by the Mayor.
PASSED this 11th day of February, 2007.
APPROVED this l'-tp/lt day of February, 2007.

ATTE~T:
'11l~e,z.re: U"tJ& (''L MAR ERITE WILBURN City Clerk
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 MAR-12-2007 14:19

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3146156260 f'.002

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

STEPHANIE REYNOLDS, et at.

)

)

MAR 1 2 2007

Plaintiffs,

)

)

and

)

JOAN M. GILMER
CIRCUIT Q.fRI(. ST.LOUIS COUNlY

)

JAMES ZHANG.

)

Cause No. 06-CC·3802

)

Intervenor.

) Division No. t 3

)

v.

)

)

CITY OF VAILEY PARK. MO. et al. }

)

Defendants.

)

FINDINGS OF FACT. CONCLUSIONS OF I.AW, ORDER AljD JUDGMENT

This matter is before the Court on Plaintiffs' Motion for Judgment on the Pleadings and

Defendants' Motion to Dismiss Attorney Fee Claim. The Motions were called, heard and taken

under submission on February 26,2007. The parties submitted a Joint Stipulation of Facts, and

the Court finds there is no significant factual dispute. On March 1.2007. the Court took further

submissions, argument and testimony on the limited issues raised in Plaintiffs' Motion for

Judgmcnt on the Pleadings and Defendants' Motion to Dismiss Attorney Fee Claim. The Court

having heard the arguments ofcounsel. having read the memoranda and case law submitLed,

having reviewed the evidence adduced and being now fully advised. enters the following

Findings ofFact, Conclusions ofLaw, Order and Judgment.

FlNDINCS OF FACT

1. Plaintiffs filed this case under the Missouri Declaratory Judgment Act, section

527.010, RSMo.• et seq., seeking to have City of Valley Park Ordinance No. 1708 and Ordinanoe

No. 17lS declared void and unenforceable, and asking the Court for a temporary, preliminary.

::!14I:il~I:I~I:IU

1'.UU::!

and pennanent injunction enjoining enforoement of those Ordinances. Plaintiffs also assert a right to an award of att0111eys fees based on "unusual circ:umstances."
2. Defendants have filed a Motion to Dismiss for Failure to State a Claim or Cause of Action for Award of Attorney's Fees asserting that in litigation against a political subdivision of the State. attorneys' fees cannot be awarded as "costs" under the Declaratory Judgment Act.
3. Ordinance No. 1708. enacted on July 16. 2006. prohibits any "for-profit entity" from "aid[ingJ and abet[ting] illegal aliens or illegal immigration" and purports to penalize those who commit such acts by denying: business permits; the renewal of business permits; and city contracts and grants "for a period of not less that [sic] five (5) years from its last offense."
4. Ordinance No. 1708 also prohibits property owners or others ''in control of property" from "leasing or renting" property to an "illega] alien" and purports to penalize those who commit such acts by a "fmc of not less than Five Hundred Dollars ($500.00)."
S. On September 26,2006, this Court entered a Temporary Restraining Order enjoining enforcement of Ordinanee No. 1708. By agreement of the parties that order was continued until such time as this Court ordered it tenninated. and it remains in effect today.
6. On September 26, 2006, just hours after this Court entered its Order enjoining enforcement of Ordinance No. 1708, Defendant City of Valley Park enacted Ordinance No. 171 S, which expressly stated that "Sections One, Two, Three and Four of Ordinance No. 1708 are hereby repealed," leaving only the severability section ofthat Ordinance still viable.
7. Ordinance No. 1715 makes it "unlawful for any business entity to recruit, hire for employment, or continue to employ. or to permit. dispatch, or inslruct any person who is an unlawful worker to perfonn work in whole or part within the City," and provides that a violation of this provision which is not corrected ''within three (3) business days after notification of the
2

MAR-12-2007 14:20

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3146158280 P.004

violation by the Valley Park Code Enforcement Office" shall be punished by an indefinite and automatic suspension of that entity's business license.
8. Ordinance No. 1715 also makes it ''unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit," and provides that a violation of this provision which is not corrected "after five (5) business days following receipt of written notice from the City that a violation has occurred" shall be punished by the suspension of the occupancy permit for the dwelling unit, and that during the period of such suspension the
offending party "shall not be permitted to collect any rent, payment, fee, or other fom of
compensation from, or on behalf of any tenant or ooeupant in the dwelling unit," and "[i]n addition, the City of Valley Park shall not issue occupancy pennits for any properties owned during the suspension period."
9. On September 27, 2006, this Court entered a l'emporary Restraining Order enjoining enforcement of Ordinance No. 1715. By agreement oftbe parties that order was continued until such time as this Court ordered it terminated, and it remains in effect today.
10. Defendant has represented to this Court that it recently repealed Ordinance No. 171 S, and admitted into evidence the new ordinances only for the purpose of its argument on mootness. Plaintiffs have not amended their pleadings to put the issue of the validity of the new ordinances before the Court.
11. Defendant City of Valley Park is a city of the fourth class located in St. Louis
County. Missouri.
12. Missouri statules set forth the penalties and limitations which can be imposcd for an ordinance violation by a fourth class cily:

3

MAR-12-2007 14:20

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314615B2BO t'.UUb

For all ordinance violations the board of aldcrmcn may impose penalties not exceeding a fine of five hundred dollars and costs, or ninety days' imprisonment, or both the fine and imprisonment.

MO.R.STAT. § 79.470.

13. Missouri statutes set forth the parameters under which a tenant can be evicted from a

leased unit:

A tenancy at will or by sufferance, or fOT less than one year, may be
terminated by the person entitled to the possession by giving one month's notice, in writing. to the person in possession, requiring the person in possession to vacate the premises.

*

•

Except as otherwise provided by law. all contracts or agreements for the leasing renting or occupation of stores, shops, houses, tenements or other buildings in cities, towns or villages ... not made in writillg, signed by the parties thereto, or their agents. shall be held and taken to be tenancies from month to month. and all such tenancies may be tenninated by either party thereto. or the party's agent, giving to the other party. or the party's agent, one month's notice, in writing. of the party's intention to terminate such tenancy.

MO.R.STAT. § 441.060.

... a landlord or its agent who removes or excludes a tenant or the tenant's personal property from the premises without judicial process and court order, or causes such removal or exclusion, or causes the removal of the doors or locks to such premises. shall be deemed guilty of forcible entry and detainer ...

MO.R.STAT. § 441.233.

14. In their Motion Plaintiffs assert the Ordinances at issue are void because they conflict

with Missouri state law.

4

MAR-12-2007 14:20

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3146108:&8U

t".UUb

CONCLUSIONS OF J~AW 1. This Court has previously considered the issue of standing and detennined Plaintiffs
have standing to challenge the validity of Ordinance No. 1708 and Ordinance No. 1715 under the Missouri Declaratory Judgment Act.
2. Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, the Court finds and concludes under R.E.)., Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo. banco 2004), and Northeastern Florida Chapter of the
Assoc. General Contractors of AIDcrica v. City of Jacksonville, 508 U.S. 656, 661-62 (1993). this
case is not moot. When a party files suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing thc ordinance. rd. Furthermore, the Court finds the new ordinances are "sufficiently similar" to the old ordinances in that they are directed at the same class of people and conduct and include some of the same penalties. Given that the
substanoe of the new ordinances is the same, the Court concludes the challenged conduct will
\
continue, City of Jacksonville. supra. 508 U.S. at 662-63 and n. 3. 3. "(A] motion for judgment on the pleadings should be sustained if, from the face of the
pleadings, the moving party is entitled to judgment as a matter of law," Madison Block Pharmacy. Inc. v. United States Fidelity & Guaranty Co., 620 S. W .2d 343, 345 (Mo. bane 1981). Beoause "[t]he interpretation of an ordinance is a question of law," State ex reI. Sunshine pntemrise of Missouri. Inc. v, Bd. of Adjustment of the City orst. Ann, 64 S.W.3d 310, 312
(Mo. bane 2002). this case is particularly well-suited for disposition by a motion for judgment on
the pleadings. 4. A municipality can legislatively regulatc its citizens only where the power is "granted
in express words," is "necessarily or fairly implied in or incident to" an express power, or is
5

MAR-12-2007 14:21

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3146158280 P.007

"essential to the declared objects and purposes" of the municipality. State ex reI. Curators of University of Missouri v. McReynolds. 193 S.W.2d 611, 612 (Mo. banc 1946); Prcmiun'l Std. Fanns. Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234, 238 (Mo. banc 1997).
5. "Any fair. reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied." rd.
6. As a fourth class city, Defendant City of Valley Park can enact and enforce only those ordinances which are "not repugnant to the constitution and laws of this state." MO.R.STAT. § 79.110.
7. "A municipal ordinance must be in harmony with the general law of the state and is void if in conflict. In determining whether all ordinance conflicts with general laws, the test is
whether the ordinance pennits that which the statute forbids and prohibits, and vice-versa. The powers granted a municipality must be exercised in a manner not contrary to the public policy of the state and any provisions in oonflict with prior or subsequent state statutes must yield." Morrow v. City of KaTlsas City. 788 S.W.2d 278. 281 (Mo. banc 1990).
8. The express provisions of both Ordinance No. 1708 and Ordinance No. 1715 arc not in hannony with and conflict with MO.R.STAT. § 79.470.
9. Ordinance No. 1708 conflicts with MO.R.STAT. § 79.470 in that it provides for a fine of "not less than Five Hundred Dollars ($500.00)," and the loss of a business permit (or its renewal) for a violation of its provisions. These penalties are either expressly prohibjted by, or not authorized by. the governing state statute.
10. Ordinance No. 1715 conflicts with MO.R.STAT. § 79.470 in that it penalizes a violation of its provisions by suspending existing occupancy pcrmits, rcfusing the issuance of any new occupancy pennits, prohibiting the collection of rent or compensation, and by forcing a
6

MAR-12-2007 14:21

STLOUIS-CO-21 JUDICIAL

3146158280 l:'.UUtJ

business to forego a business permit, or renewal of a business permit, for a period of '*not less than five (5) years." These types of penalties are not authorized by the governing statute. In addition, the monetary value of such penalties exceeds the $500 maximum fine authorized by Missouri l.a.w for an ordinance violation under MO.R.STAT. § 79.470.
11. The express provisions of Ordinance No. 1715 also conflict with. and are not in hannony with, MO.R.STAT. § 441.060 and MO.R-STAT. § 441.233. While the Ordinance provides penalties for any landlord who does not evict. within five days, a tenant found to be an "illegal alien.:~ Missouri state law forbids and prohibits a landlord from evicting a tenant without at least 30 days notice (MO.R.STAT. § 441.060), and requires a landlord to use "judicial process" before forcing any eviction (Mo.R.STAT. § 441.233).
12. When the invalid provisions of an ordinance are so "connected and interdependent" with those which might be valid "that it cannot be presumed the legislature would have enacted one without the other," the entire ordinance should be declared void. Stine v. Kansas City, 458 S.W.2d 601. 608 (Mo.App. 1970); see also, MissoYD Association of C]ub Executives, Tnc. v. State ofMissouri. 208 S.W.3d 885. 888-89 (Mo. bane 2006).
13. This Court finds and concludes the penalty provisions of Ordinance No. 1708 and Ordinance No. 1715 are invalid due to conflicts with Missouri state law, leaving the remaining provisions ineffectual due to lack of any means of redress. Accordingly. the Ordinances are void in their entirety.
14. Generally. courts have broad discretion to award anorneys fees as costs in an action brought under the Missouri Declaratory Judgment Act, section 527.100. RSMo., upon proof of "special" or "unusual circumstances." See, David Ranken, Jr. Technical Institute v. Boykins, 816 S.W.2d 189, 193 (Mo.banc 1991).
7

MAR-1Z-Z007 14:Z1

STLOUIS-CO-Z1 JUDICIAL

::I 1461o1:I:i:I:W l'.UU::I

IS. However. in litigation against a political subdivision of the State of Missouri. the Court finds and concludes under BaumH v. Howard County. 660 S.W.2d 702 (Mo. 1983) and Tillis v. City of Branson, 975 S.W.2d 949 (Mo.App. S.D. 1998), that attorneys' fees cannot be awarded to a prevailing party as "costs" under the Act.
16. Plaintiffs contend their request for attorneys' fees is viable since Defendant City of Vallcy Park is covered by insurance alld cite MO.R.sTAT § 537.610, which provides that a governmental unit Umaypurchase liability insurance for tOrt claims...[and] [sJovereign immunity for the state ofMissouri and its political subdivisions is waived onIy to the maximum amount of and only for the pu.rposes covered by such policy of insurance." The Court concludes Defendant City ofVaJIey Park's insurance coverage is not relevant in that Plaintiffs have not alleged a tort and the statute is addressed. by its own terms, to the waiver of sovereign immunity.
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Judgment on the Pleadings is GRANTED. Judgment is hereby entered in favor of Plaintiffs and against Defendant City of Valley Park, and Ordinanoe No. 1708 and Ordinance No. 1715 are declared void. Pursuant to MO.R:EV.S1."A'r. § 527.080 and MO.R.CIV.P.87.10, this Court orders that the temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance No. 1715 are hereby made permanent. Defendants' Motion Lo Dismiss for Failure to State a Claim or Cause of Action for Award of Attorneys Fees is GRANTED.
SO ORDERED:

~~

Date

Barbara W. Wallace. Judge

cc: Attorneys ofRecord

8

TOTAL P.OOS

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

STEPHANIE REYNOLDS, et al. )

)

Plaintiffs,

)

)

and

)

)

JAMES ZHANG,

)

)

Intervenor,

)

)

v.

)

)

CITY OF VALLEY PARK, MO, et al.)

)

Defendants.

)

Cause No. 06-CC-3802 Division No. 13

_________________________________________________
PLAINTIFFS’ TRIAL BRIEF _________________________________________________

TABLE OF CONTENTS TABLE OF CASES ........................................................................................................................ ii I. STATE LAW ISSUES.........................................................................................................1
A. The Ordinances Conflict With Missouri Statutes ....................................................2 B. Defendants Exceeded Their Delegated Authority (Pet. ¶ 26(b)) .............................4 C. Ordinance No. 1715 Was Enacted in Violation of
The Sunshine Act (Pet. ¶ 26(d))...............................................................................5 II. CONSTITUTIONAL PREEMPTION ISSUES (Pet. ¶¶ 26(a), 26(f)).................................6
A. The Housing Provisions of the Ordinances..............................................................7 B. The Employment Provisions of the Ordinances.....................................................11 III. MISCELLANEOUS CONSTITUTIONAL ISSUES ........................................................15 A. Ordinance No. 1715 Unconstitutionally Compels Testimony (Pet. ¶ 26(g)).........15 B. Interference With Constitutional Rights of “All Persons” (Pet. ¶ 26(b)) ..............15
i

TABLE OF AUTHORITIES
CASES Page
American Ins. Assoc. v. Garamendi, 539 U.S. 396 (2003)..............................................................8 Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341 (2001).............................................11 Campbell v. City of Frontenac, 527 S.W.2d 643 (Mo. App. 1969).................................................4 Chy Lung v. Freeman, 92 U.S. 275 (1875)......................................................................................6 Committee for a Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503 (Mo. banc. 2006) .................1 Collins Foods Int’l, Inc. v. I.N.S., 948 F.2d 549 (9th Cir. 1991)...................................................13 Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) ..................................................8, 13 Davis v. City of Kinloch, 752 S.W.2d 420 (Mo. App. 1988) ..........................................................3 DeCanas v. Bica, 424 U.S. 351 (1976) .....................................................................................7, 11 Geier v. American Honda Motor Co., 529 U.S. 861 (2000)............................................................8 Getahun v. OCAHO, 124 F.3d 591 (3d Cir. 1997)........................................................................13 Henderson v. Mayor of City of New York, 92 U.S. (2 Otto) 259 (1875)........................................7 Hines v. Davidowitz, 312 U.S. 52 (1941)........................................................................................7 Jones v. City of Jennings, 595 S.W.2d 1 (Mo. App. 1979) .............................................................5 Morrow v. City of Kansas City, 788 S.W.2d 278 (Mo. banc 1990) ................................................2 Northeastern Florida Chapter of the Assoc. General Contractors of America v. City of
Jacksonville, 508 U.S. 656, 661-62 (1993) ...........................................................................1 Olympic Drive-In Theatre, Inc. v. City of Pagedale, 441 S.W.2d 5 (Mo. 1969) ........................4, 5 Plyler v. Doe, 457 U.S. 202 (1982) .................................................................................................9 Premium Std. Farms, Inc. v. Lincoln Township of Putnam Cty.,946 S.W.2d 234
(Mo. en banc 1997) ...............................................................................................................1 Reitman v. Mulkey, 387 U.S. 369 (1967)......................................................................................11
ii

R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo. banc. 2004) ................................................1
State ex rel. Broadway-Washington Associates, Ltd. V. Manners 186 S.W.3d 272 (Mo. banc 2006 ...........................................................................................6
State ex rel. Curators of Univ. of MO v. McReynolds, 193 S.W.2d 611 (Mo. en banc 1946) ...............................................................................................................1
State ex rel. Drury Displays, Inc. v. City of Columbia, 907 S.W.2d 252 (Mo. App. 1995) ....................................................................................................................2
Union Cemetery Ass’n v. Kansas City, 161 S.W. 261 (Mo. 1913) .............................................4, 5
Weinschenk v. State, 203 S.W. 3d 201 (Mo. 2006).......................................................................10
STATUTES
Mo.R.Stat. §79.110 ..............................................................................................................1, 2, 4, 5
Mo.R.Stat. §79.470 ..................................................................................................................... 3, 4
Mo.R.Stat. §441.060 ........................................................................................................................2
Mo.R.Stat. §441.233 ........................................................................................................................2
Mo.R.Stat. §610.010 ........................................................................................................................5
Mo.R.Stat. §610.011 ........................................................................................................................6
Mo.R.Stat. §610.020.1 .....................................................................................................................6
Mo.R.Stat. §610.027 ........................................................................................................................6
8 U.S.C.§ 1101(a)(15)....................................................................................................................12 § 1154.................................................................................................................................8 § 1158.................................................................................................................................7 § 1182(d)(5) ......................................................................................................................7 § 1228-1252 .......................................................................................................................8 § 1229b, c...........................................................................................................................7 § 1255-1259 ...................................................................................................................7, 8 § 1324...............................................................................................................................14 § 1324a.............................................................................................................................14 § 1324a (h)(2) ..................................................................................................................11 § 1324a (a) (3), (b) ...........................................................................................................13
iii

§ 1324 (b) (6) ...................................................................................................................13 § 1373(c) .......................................................................................................................... 9 § 1228-1252 .......................................................................................................................8 42 U.S.C. §2000e et seq.................................................................................................................14 42 U.S.C. § 3604............................................................................................................................11 42 U.S.C. § 3615............................................................................................................................11 8 C.F.R. § 214.2 .............................................................................................................................12 22 C.F.R. § 41.12 ...........................................................................................................................12 65 FR 58301-01 (2000)....................................................................................................................9
OTHER AUTHORITIES Brennan Center for Justice, Citizens without Proof (Nov. 2006)..................................................10 Charles Gordon et al., 7 Immigration Law & Procedure, Ch. 93 (Rev. Ed. 2001)........................10 Immigration and Refugee Law and Policy, 634-635 (4th Ed. 2005)...............................................8 H.R. Rep. 99-682(I), 1986 U.S.C.C.A..N. at 5666 ........................................................................13 U.S. Dept. of Justice Office of Insp. General, Follow-up Report,.................................................10
Report No. I-2002-006, April 2002 Basic Pilot Program Extension and Expansion Act of 2003 (Public Law 108-156) .....................14 Illegal Immigrant Reform and Immigrant Responsibility Act §§ 401, 402(a),
Pub. L. No. 104-28, Div. C (Sept. 30, 1996) .......................................................................14
iv

Plaintiffs bring this case seeking: a declaration that Valley Park Ordinance No. 1708 and Ordinance No. 1715 are void and unenforceable; and a permanent injunction enjoining their enforcement.1/ Plaintiffs base their claim on many grounds, some state others federal, some a matter of state law, others of constitutional proportions. This Court need not address the constitutional issues if the Ordinances can otherwise be declared void. See, e.g., Committee for a Healthy Future, Inc. v. Carnahan, 201 S.W.3d 503, 505 fn.1 (Mo. banc 2006) (“Decisions regarding constitutional questions will be avoided if the case can be fully determined without reaching them”). Thus, Plaintiffs present their state law arguments first, followed by those involving constitutional issues. I. STATE LAW ISSUES
A municipality can legislatively regulate its citizens only where: the power is “granted in express words”; or it is “necessarily or fairly implied in or incident to” an express power; or it is “essential to the declared objects and purposes” of the municipality.” State ex rel. Curators of Univ. of MO v. McReynolds, 193 S.W.2d 611, 612 (Mo. en banc 1946) (citation omitted); see also Premium Std. Farms, Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234, 238 (Mo. en banc 1997) (same). “Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied.” Id.
As a fourth class city, Defendant Valley Park can enact only those ordinances which are “not repugnant to the constitution and laws of this state,” and which are “expedient for the good
1/Defendants declared in the midst of this litigation that they have repealed Ordinance No. 1708 and Ordinance No. 1715. Even if Defendants did effectively repeal the Ordinances (Plaintiffs take no position on this issue), Plaintiffs are entitled to have those Ordinances declared void on any or all of the grounds raised in the Second Amended Petition. See, e.g., R.E.J., Inc. v. City of Sikeston, 142 S.W.3d 744 (Mo. banc. 2004); Northeastern Florida Chapter of the Assoc. General Contractors of America v. City of Jacksonville, 508 U.S. 656, 661-62 (1993).

government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof.” MO.R.STAT. § 79.110.2/
A. The Ordinances Conflict With Missouri Statutes. Ordinance No. 1715 and Ordinance No. 1708 are void because they are “repugnant to the … laws of this state” as expressly prohibited by MO.R.STAT. § 79.110. The issue of whether a conflict with state law voids the Ordinances is one of law which can be resolved without evidence. Missouri Supreme Court precedent provides the guidelines for resolving whether a conflict exists: A municipal ordinance must be in harmony with the general law of the state and is void if in conflict. In determining whether an ordinance conflicts with general laws, the test is whether the ordinance permits that which the statute forbids and prohibits, and vice-versa. The powers granted a municipality must be exercised in a manner not contrary to the public policy of the state and any provisions in conflict with prior or subsequent state statutes must yield. Morrow v. City of Kansas City, 788 S.W.2d 278, 281 (Mo. banc 1990) (citations omitted); see also State ex rel. Drury Displays, Inc. v. City of Columbia, 907 S.W.2d 252, 256 (Mo.App. 1995) (“A municipal ordinance must be consistent with the general law of the state, and the ordinance is void if the two are in conflict”). Conflict With Landlord Tenant Law (Pet. ¶ 26(c)): Missouri landlord-tenant law forbids and prohibits a landlord from evicting a tenant without 30 days notice. MO.R.STAT. § 441.060. And, if the tenant refuses to leave voluntarily upon the 30th day, Missouri law forbids the landlord from removing the tenant’s belongings from the premises without “judicial process.” MO.R.STAT. § 441.233. In direct conflict with these mandates, Ordinance No. 1715 compels a landlord to evict a tenant within 5 days of being given notice that the City of Valley Park has unilaterally decided that tenant is an “illegal alien,” or the landlord will be subject to severe penalties. See Ordinance No. 1715, § 5.B.(4). Thus, it is clear that Ordinance No. 1715: is not in harmony with Missouri
2/Per the Court’s Order, the most pertinent authorities, as well as the relevant portions of all articles and government publications cited in this Trial Brief, are included in Plaintiffs’ Appendix, which is submitted herewith.
2

law; compels actions that are contrary to the public policy of this State (eviction within 5 days); and permits (in fact, compels) that which the State statute forbids (i.e., eviction on less than 30 days notice).
Direct Conflict With Statutorily Authorized Punishments(Pet. ¶ 26(e)): Under Missouri law a fourth class city, like Valley Park, can penalize a person for an ordinance violation only by imposing a fine of not more than $500 and/or a sentence of no more than 90 days in jail. MO.R.STAT. § 79.470. Fourth class cities, like Valley Park, are not authorized to prohibit the collection of rent or compensation as punishment for an ordinance violation. Id. Nor is such a city allowed to “sentence” a business to foregoing a business permit, or the renewal of a business permit, for a period of “not less than five (5) years.” Id. Nor can a city summarily suspend a validly-issued business permit or occupancy permit for an ordinance violation.3/ Id. Ordinance No. 1715 is void because it expressly provides for these penalties which are not authorized by Missouri law, e.g., it provides that a violation can be punished by denial or suspension of a business license and occupancy permit, and by prohibiting the collection of rent, fees, and compensation. See Ordinance No. 1715, §§ 4.B.(3), (4), (6), (7); Ordinance No. 1715, §§ 5.B.(4), (5), (6), (8). Likewise, Ordinance No. 1708 is void because it expressly provides that a violation of its provisions will result in the denial of a business permit (or its renewal) for “not less than five (5) years.” See Ordinance No. 1708, § 2.
The monetary value of the fines imposed by Ordinance No. 1708 and Ordinance No. 1715 likewise render the Ordinances void due to the imposition of unauthorized penalties. Indeed, in direct violation of the $500 maximum fine authorized by Missouri law for an ordinance violation (MO.R.STAT. § 79.470), Ordinance No. 1708 expressly provides that a violation of its provisions
3/Although municipalities can deny business licenses/permits for reasons set forth in a license/permit ordinance itself (provided there are adequate safeguards for a due process hearing, which the Ordinances here do not provide), suspension of an already-issued license is prohibited without provision of a prior hearing. See, e.g., Davis v. City of Kinloch, 752 S.W.2d 420, 423-24 (Mo.App. 1988).
3

shall be punished by a fine of “not less than Five Hundred Dollars ($500.00).” See Ordinance No. 1708, § 3.B. (emphasis added). And, by authorizing punishments which include the indefinite suspension of business licenses/permits, occupancy permits, and the collection of rent, Ordinance No. 1715 likewise violates the $500 fine limit imposed by MO.R.STAT. § 79.470, as the value of such penalties could greatly exceed this statutory limitation.
B. Defendants Exceeded Their Delegated Authority (Pet. ¶ 26(b)). The issue of whether Defendants exceeded their delegated authority to enact legislation that is “expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof” (MO.R.STAT. § 79.110), by enacting Ordinance No. 1708 and Ordinance No. 1715, is a both a purely legal question, and a mixed question of fact and law. As a purely legal matter, the statute authorizing fourth class cities to enact legislation does not authorize regulation of immigration. MO.R.STAT. § 79.110. Nor does it allow a fourth class city to enact legislation for the declared purpose of “the security and safety of the homeland.” Id.; see also Ordinance No. 1715, § 2.C. Yet, this is the stated direct goal of the Ordinances. Because the Ordinances regulate in an unauthorized area, they should be declared void due to Defendants lack of authority to enact them. Even if, based on the face of the Ordinances, it could be said that they do not seek to regulate in an unauthorized area (which it cannot), the facts admitted to by Defendants make clear that Defendants exceeded their delegated authority in enacting them. In the Ordinances, Defendants declare that their alleged authority to “abate public nuisances” encompasses the right to regulate “illegal immigration.”4/ But, while a city has “the power to pass ordinances for the prevention of nuisances, and their abatement, [] the city has no power to declare that to be a nuisance which is not so at common law or by statute, or which is not in fact a nuisance.” Olympic Drive-In Theatre, Inc.
4/See Ordinance No. 1715, § 2.D; see also Ordinance No. 1708 “WHEREAS” clause. 4

v. City of Pagedale, 441 S.W.2d 5, 9 (Mo. 1969) (citations omitted); see also Campbell v. City of Frontenac, 527 S.W.2d 643, 645 (Mo.App. 1975) (same); Union Cemetery Ass’n v. Kansas City, 161 S.W. 261, 271-73 (Mo. 1913) (rejecting ordinance aimed at cemetery based on nothing more than bald declaration it constituted a “nuisance”).
“Illegal aliens” have never, under either the common law or any statute, been declared to be a “nuisance.” Thus, Defendants’ attempt to regulate, as a “nuisance,” this distinct group of people is improper unless Defendants had evidence to prove this group is in fact a nuisance. And, the standard for determining whether in fact this is so is one of reasonableness, and involves a determination of whether the enacting legislative body had a factual predicate for concluding the subject of the ordinance was, in fact, a nuisance. See Olympic Drive-In, 441 S.W.2d at 10; Union Cemetery, 161 S.W. at 272-73.
Here, the evidence at trial will unequivocally prove that Defendants had no such evidence; indeed the evidence will prove that before passing the Ordinances Defendants did not know of a single “illegal alien” who ever lived or worked in Valley Park, they read no studies about illegal immigration, and they did no investigations to determine whether the Ordinances were necessary for “the good government of the city, the preservation of peace and good order, [or] the benefit of trade and commerce and the health of the inhabitants thereof.” Having failed to do so, Defendants acted outside the authority delegated to them under MO.R.STAT. § 79.110. See Olympic Drive-In, 441 S.W.2d at 8-10; Union Cemetery, 161 S.W. at 272-73. In fact, Defendants’ lack of any due diligence prior to enacting the Ordinances makes clear the Ordinances resulted from an “arbitrary and capricious” exercise of Defendants’ legislative power in that their enactment was a “willful and unreasoning action, without consideration of and in disregard of the facts and circumstances.” Jones. v City of Jennings, 595 S.W.2d 1, 3 (Mo.App. 1979). The Ordinances are thus void. Id.
5

C. Ordinance No. 1715 Was Enacted In Violation Of The Sunshine Act (Pet. ¶ 26(d)).
The Missouri Open Meetings Act (a/k/a Sunshine Act), MO.R.STAT. § 610.010, et seq., requires, with limited exceptions, that: actions and deliberations of public governmental bodies be open to the public (MO.R.STAT. § 610.011); allow for attendance by the public (id.); and be preceded by notice “reasonably calculated to advise the public of the matters to be considered” (MO.R.STAT. § 610.020.1). The Act is to be “liberally construed” to effectuate Missouri’s “public policy … that meetings, records, votes, actions, and deliberations of public governmental bodies be open to the public.” MO.R.STAT. § 610.011 (emphasis added). A violation of the Act need be proved only by a preponderance of the evidence, and upon such proof a plaintiff is entitled to both monetary sanctions up to $5,000 per defendant and a declaration that any ordinance enacted in violation of the Act is void. See MO.R.STAT. § 610.027. Defendants are presumed to have knowledge of the provisions of the Sunshine Act. See, e.g., State ex rel. Broadway-Washington Associates, Ltd. v. Manners, 186 S.W.3d 272, 275 (Mo. banc 2006).
Whether Defendants violated the Sunshine Act requires presentation of evidence. The evidence here will show that there was no notice (nor any minutes) of any meeting advising the public that changes were being contemplated to Ordinance No. 1708. Nor was there any notice (or minutes) advising that Ordinance No. 1715 was being contemplated, or indicating a discussion of its substance was to, or had, occurred. Yet, there will be both direct and circumstantial evidence that modifications to No. 1708 were repeatedly discussed by and among members of the legislative body. Remarkably, Defendants would have the public (and this Court) believe that Ordinance No. 1715 appeared out of thin air, with no debate over whether Ordinance No. 1708 should be modified and/or what the substance of Ordinance No. 1715 should be. II. CONSTITUTIONAL PREEMPTION ISSUES (Pet. ¶¶ 26(a), 26(f))
For over 100 years, the United States Supreme Court has emphasized that the power to
6

regulate immigration is exclusively federal. There are two reasons for this. First, a single state could otherwise “embroil us in disastrous quarrels with other nations.” Chy Lung v. Freeman, 92 U.S. 275, 280 (1875). Second, “the laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco.” Henderson v. Mayor of City of New York, 92 U.S. (2 Otto) 259, 273 (1875).
Local laws concerning immigration and foreign nationals are invalid under the Supremacy Clause of the United States Constitution if they (1) are conflict preempted because they “burden[] or conflict[] in any manner with any federal laws or treaties,” or “[stand] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress;” (2) are field preempted because they are an attempt to legislate in a field occupied by the federal government, or (3) attempt to regulate immigration, which is “unquestionably exclusively a federal power.” DeCanas v. Bica, 424 U.S. 351, 354, 362, 363 (1976). A. The Housing Provisions Of The Ordinances.
Field Preemption: Most basically, Defendants’ effort to decide which non-citizens can live where is simply beyond their authority. Permitting or barring residency of non-citizens is the core of immigration regulation, and Congress has entirely occupied the relevant field, leaving no room for contrary or even supplemental regulation by states, much less by cities. In Hines v. Davidowitz, 312 U.S. 52, 66-67 (1941), which invalidated Pennsylvania’s state alien-registration law, the Supreme Court explained:
[W]here the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation … states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations. (emphasis added). Deciding which foreign nationals may live within our nation’s borders and for how long – whether as of right for some immigration statuses, or as a matter of discretion for
7

congressionally specified federal officials5/ – is a federal decision, governed by a comprehensive
federal network of substantive and procedural statutes and regulations. The process of determining
who can stay and who must go involves (as the Ordinances do not) notice, a hearing with the opportunity to present evidence and argument, administrative appeal, and judicial review.6/ Thus,
the grave decision to expel a person from the United States is not permissibly made by one federal
official or even one federal agency, let alone by a local municipality. Our nation has only one set of
borders. When the federal government has not acted to deport someone, whatever that person’s
formal immigration status, individual cities may not countermand that federal decision and create a checkerboard of residency exclusions.7/
Conflict preemption: Even if it were permissible for Defendants to regulate residency for
non-citizens (which it is not), under the Supremacy Clause such regulation may not conflict with
federal requirements. See, e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000). Here,
the housing provisions of the Ordinances conflict irreconcilably with numerous provisions of both
federal immigration and federal housing law.
For example, considering federal immigration law, Ordinance 1715 puts landlords and other
regulated entities in a completely untenable position because landlords, who would surely wish to
avoid the disruption and high cost of losing tenants mid-lease term due to an Ordinance violation,
5/See 8 U.S.C. §§ 1158, 1182(d)(5), 1229b, 1229c, 1255, 1259; 8 C.F.R. § 241.6 (2006) (discussing asylum, voluntary departure, parole, cancellation of removal, adjustment of status, registry, stays of removal, etc.).
6/See, e.g., 8 U.S.C. §§ 1154, 1228-1252, 1255-1259; see also Stephen H. Legomsky, Immigration and Refugee Law and Policy 634-645 (4th Ed. 2005) (providing overview of deportation process).
7/As the Supreme Court explained when invalidating a Massachusetts statute touching on foreign relations: [T]he fact of a common end hardly neutralizes conflicting means … and the fact that some companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of pressure to employ … Sanctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions here undermines the congressional calibration of force. Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 379-380 (2000); see also American Ins. Assoc. v. Garamendi, 539 U.S. 396 (2003).
8

have no way to know which of their would-be tenants are “illegal aliens.” The Ordinance does
offer protection from liability for landlords if, prior to leasing, they ask the City’s Code
Enforcement Office to, “pursuant to the United States Code Title 8, section 1373(c), verify with the
federal government the lawful immigration status” of a would-be tenant. See Ordinance No. 1715
§ 5.B(9). However, this provision miscomprehends both the nature of the federal regime governing
non-citizen residency and the availability of federal assistance. Indeed, federal immigration status
is simply not susceptible to the kind of determinative answer Ordinance 1715 suggests. As one
justice of the United States Supreme Court has explained:
Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country, perhaps even as a citizen. Indeed, even the Immigration and Naturalization Service cannot predict with certainty whether any individual alien has a right to reside in the country until deportation proceedings have run their course. See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254 (1976 ed. and Supp.IV).
Plyler v. Doe, 457 U.S. 202, 241 (1982) (Powell, J., concurring) (emphasis added).
It is for this very reason that the federal executive branch itself has definitively declared that
the federal government’s “Systematic Alien Verification for Entitlements” (SAVE) program – the
program implementing the federal statute referenced in the Ordinance, i.e., 8 U.S.C. § 1373(c) –
does not authoritatively establish any non-citizen’s immigration status:
for purposes of the requirement [that governmental entities report when they ‘know’ an alien is not lawfully present in the United States] … an entity will ‘know’ that an alien is not lawfully present in the United States only when the unlawful presence is a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review … In addition, that finding or conclusion of unlawful presence must be supported by a determination by the Service or the Executive Office of Immigration Review, such as a Final Order of Deportation. A Systematic Alien Verification for Entitlements (SAVE) response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion of law that the individual is not lawfully present.
65 FR 58301-01 (2000) (emphasis added).
9

Determining who is a citizen is by no means a simple matter.8/ And, SAVE’s databases,
which are geared towards determining eligibility for various federal aid programs, include no
information whatsoever about citizenship status. Moreover, the SAVE program’s databases are
riddled with error, as numerous federal reports have found. See, e.g., U.S. Department of Justice
Office of Inspector General, Follow-up Report on INS Efforts to Improve the Control of
Nonimmigrant Overstays, Report No. I-2002-006, April 2002 ("According to an official from the
INS's Statistics Office, the unreliability of nonimmigrant information continues to be a problem …
To compound the difficulty in identifying overstays, the Statistics Office no longer receives updates
on visa extensions or adjustments of status. Therefore, some aliens appear to be overstays when
they are legally in the United States. The Statistics Office Official acknowledged that current Form
I-94 data is not reliable for … determining with certainty whether an alien who appears to be an overstay is actually an overstay.").9/ In short, Defendants’ attempt to clothe the residency
requirements of its Ordinances in federal authority is a mirage. The federal method for deciding
who may live within our nation’s borders has both substantive and procedural components that
conflict with the casual approach of Ordinance No. 1715 (and, in the case of Ordinance No. 1708,
the nonexistent approach). Because the Ordinances conflict with federal immigration law, they are
preempted.
The Ordinances are preempted for the additional reason that they conflict with the
provisions of the Fair Housing Act, which forbids national origin discrimination in housing. Again,
8/A national study recently determined that 7% of voting-age American citizens do not have ready access to documentation to demonstrate that status, and only 66% of voting-age American women have any documentary proof of citizenship that includes their current surname. Brennan Center for Justice, Citizens without Proof (November 2006). The Missouri Supreme Court recently found, in a different context, that between 3 and 4% of Missouri citizens lack a government-issued photo identification. Weinschenk v. State, 203 S.W.3d 201, 206 (Mo. 2006). Moreover, citizenship status may be legally complex, particularly for the citizens by descent born abroad. See, e.g., Charles Gordon et al., 7 Immigration Law & Procedure, ch. 93 (Rev. Ed. 2001).
9/There is a separate federal database called the “Basic Pilot Program,” but it contains information only about authorized workers, not about the millions of other lawfully present aliens. This program is discussed below.
10

the problem is that landlords who wish to avoid a mid-tenancy eviction must – but cannot – know in
advance which of their tenants are “illegal aliens.” The only course readily open to them is to avoid
renting to would-be tenants who somehow look or sound foreign-born. Yet, such conduct would
violate the Fair Housing Act, which prohibits housing practices, including leasing, based on, inter
alia, race, color, and national origin. See 42 U.S.C. § 3604. Landlords are thus placed in an
untenable position in which the requirements of local law push them inexorably to violate federal
law. Such a conflict is illegal; federal fair housing law trumps. See Reitman v. Mulkey, 387 U.S.
369 (1967) (striking down results of a California referendum that encouraged, but did not mandate,
private race discrimination); 42 U.S.C. § 3615 (“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”).
B. The Employment Provisions Of The Ordinances.
The employment provisions of Ordinance No. 1708 and Ordinance No. 1715 are likewise
barred by the conflicts they create with federal law. The Supreme Court explained the appropriate
analysis in DeCanas v. Bica, 424 U.S. 351 (1976). In that decision, the Court remanded the case
before it to California’s state courts, instructing them to examine whether California’s employer
sanction statute was “unconstitutional because it ‘stands as an obstacle to the accomplishment and
execution of the full purposes and objectives of Congress in enacting the INA.” 424 U.S. at 363. Any conflict, of course, dooms the non-federal regulation under the Supremacy Clause.10/ The
10/The analysis is unchanged by the Immigration and Nationality Act’s express preemption clause, 8 U.S.C. § 1324a(h)(2), which provides:
The provisions of this section preempt any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens. This section dispositively preempts Ordinance 1708, which did indeed seek to impose federally forbidden sanctions. But it does not save whatever regulation of immigration a state or local government chooses to attempt, simply because the enforcement is via licensing. As the Supreme Court has held, “neither an express preemption provision nor a saving clause ‘bar[s] the ordinary working of conflict preemption principles.’” Buckman Co. v. Plaintiffs’ Legal Committee, 531 U.S. 341, 352 (2001) (citation omitted).
11

employment provisions of the Ordinances at issue here establish obstacles to federal goals, and expressly conflict with federal law.
Defendants’ Lack of Expertise: The Ordinances authorize Defendant City of Valley Park to make determinations of work eligibility entirely on its own, without recourse to federal authorities. But the multiplicity of different immigration statuses and immigration documents are much too complex for local administration. These statuses include lawful permanent resident, conditional permanent resident, refugee, asylee, parolee, special status under any of a number of ad hoc congressional enactments, and 22 different “nonimmigrant,” or temporary visitor, categories laid out in 8 U.S.C. § 1101(a)(15), subdivided into 76 current subcategories, 22 C.F.R. § 41.12. Each of these subcategories requires different documentation. Sometimes employment is automatically authorized by virtue of the status category, sometimes it is discretionary, and sometimes it is prohibited. The regulations issued by both the Department of Homeland Security and the Department of State to govern employment are therefore lengthy and complex. See 8 C.F.R. § 214.2 (spanning more than 100 pages); 22 C.F.R. § 41. Local officials simply lack the capacity to administer this complex regulatory regime.
National origin discrimination and document abuse: The federal statute that governs employment of non-citizens is the Immigration Reform and Control Act (“IRCA”). IRCA is simultaneously an immigration control statute and an antidiscrimination statute. It forbids the employment of “unauthorized aliens,” but it maintains a careful balance between the important goals of reducing employment of individuals who lack work authorization; creating a workable system for employers and employees; and avoiding harassment of, or discrimination against, employees. The Ordinances are entirely inconsistent with IRCA’s text and the balance it strikes. Unlike the Ordinances at issue here, in IRCA “Congress intended to minimize the burden and the risk placed on the employer in the [employment authorization] verification process,” Collins Foods
12

Intern., Inc. v. I.N.S., 948 F.2d 549, 554 (9th Cir. 1991). Thus under IRCA – but not under the Ordinances – employers have a complete affirmative defense to sanctions if they verify that an employee has documentation satisfying requirements promulgated by the Attorney General. 8 U.S.C. § 1324a(a)(3), (b). As the authoritative Committee report accompanying IRCA explained, “An effective verification procedure, combined with an affirmative defense for those who in good faith follow the procedure, is essential. Otherwise, the system cannot both be effective and avoid discrimination.” H.R. Rep. 99-682(Part I) at 60, 1986 U.S.C.C.A.N. at 5664; see also, e.g., Collins Foods, 948 F.2d at 552. Defendants’ attempt to deprive employers of their federal affirmative defense, standing alone, is enough to preempt the employment provisions of the Ordinances. See Crosby, 530 U.S. 363 (discussed at fn.6, supra).
And, the conflicts only multiply. The federal government affirmatively forbids employers to “request, for purposes of satisfying the requirements of section 1324a(b) of this title … more or different documents than are required under such section or refusing to honor documents tendered that on their face reasonably appear to be genuine” (even if those documents turn out to be forged or otherwise flawed). 8 U.S.C. § 1324(b)(6); Getahun v. OCAHO, 124 F.3d 591, 596 (3d Cir. 1997). Violation of this provision is labeled “document abuse,” and classed as a type of unlawful discrimination. The Ordinances here, by contrast, strongly encourage employers to seek more definitive evidence of work authorization than the federally acceptable documents, under penalty of sanctions if an employee is later deemed an “unlawful worker” by the City. Even though the Ordinances state that those sanctions come into play only after the City makes the relevant determination, the inescapable reality is that employers are less likely to hire and invest in a worker who might need to be fired on three days notice at any time. Just as the Ordinances’ housing provisions encourage violation of the Fair Housing Act, the employment provisions unlawfully encourage document abuse, federally banned under IRCA, 8 U.S.C. § 1324(b)(6), and national
13

origin discrimination, federally banned under IRCA, 8 U.S.C. §1324, and the federal fair employment law, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.
The Pilot Program: Rather than offering employers the federally required safe harbor of document compliance, Ordinance No. 1715 substitutes a more limited defense – employer participation in the federal work authorization database known as the Basic Pilot Program. See Ordinance No. 1715 § 4.B(6)(b). In doing so, Defendants thereby illegally seek to substitute for congressional policy their own ideas about employer best practices. For example, Ordinance No. 1715 imposes severe pressure on employers, and in many instances requires them to use the federal work authorization database known as the Basic Pilot Program. But, Congress has expressly designated the Basic Pilot Program as voluntary and experimental. See Illegal Immigration Reform and Immigrant Responsibility Act §§ 401, 402(a), Pub. L. No. 104-28, Div. C (Sept. 30, 1996); Basic Pilot Program Extension and Expansion Act of 2003 (Public Law 108-156), both codified at 8 U.S.C. § 1324a. Congress’s hesitancy to require broad participation in the Pilot Program marks the federal government’s own acknowledgement that the Program has overwhelming problems, combining a lack of capacity with unacceptable inaccuracy. Therefore, Congress not only set out its own extremely limited list of employers required to participate, it actually went so far as to mandate that “Except as specifically provided in subsection (e), the Secretary of Homeland Security may not require any person or other entity to participate in a pilot program.” Id. at § 401(a). The federally required participants are completely different from those specified in the Ordinances. Id. at § 402(e). Defendants’ attempt to do what federal law prohibits even the Secretary of Homeland Security from doing – mandating employer participation in the federal Basic Pilot Program – is incompatible with federal law. The Ordinances are thus preempted.
14

III. MISCELLANEOUS CONSTITUTIONAL ISSUES A. Ordinance No. 1715 Unconstitutionally Compels Testimony (Pet. ¶ 26(g)). Under Ordinance No. 1715, a landlord is required to provide “the identity data needed to
obtain a federal verification of immigration status,” which Defendant City of Valley Park will then use to determine if that landlord is in violation of the Ordinance. See Ordinance No. 1715 § 5.B(3). If a violation is found to have occurred (based on the information supplied by the landlord and checked with other sources), the landlord is open to severe penalties. Id. at § 5.B. By mandating that a landlord provide information which could directly lead to his “conviction” for an Ordinance violation, Ordinance No. 1715 violates the Constitutions of both the United States and the State of Missouri. Every individual has a right to protection from compelled testimony as guaranteed by the 5th and 14th Amendments to the United States Constitution and Article I Section 19 of the Constitution of the State of Missouri. For this separate reason, Ordinance No. 1715 is void.
B. Interference With Constitutional Rights Of “All Persons” (Pet. ¶ 26(b)). The Missouri Constitution, Article I, § 2, guarantees “all persons” in this State the “right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry” and that “all persons” will be given “equal rights and opportunity under the law.” The Ordinances trample on these rights in that they deprive persons deemed by Defendants to be “illegal aliens” of their right to housing choices they would otherwise have gained through their own industry, and to housing and employment opportunities equal to those of other persons. For this additional reason, the Ordinances are void.
15

Respectfully submitted,
BRYAN CAVE LLP
By: __________________________________________ Linda Martinez, #30655 lmartinez@bryancave.com Kathy A. Wisniewski, #38716 kawisniewski@bryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick@bryancave.com John Young, #50539 jfyoung@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannjj@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
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CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte_j@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
GREEN JACOBSON & BUTSCH P.C. Fernando Bermudez, #39943 Bermudez@stlouislaw.com 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 (314) 862-6800 Facsimile: 314-862-1606
AMERICAN CIVIL LIBERTIES UNION OF EASTERN MISSOURI
Anthony E. Rothert, #44827 tony@aclu-em.org 4557 Laclede Avenue St. Louis, MO 63108 (314) 361-3635 Facsimile: (314) 361-3135
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OF COUNSEL: MEXICAN AMERICAN LEGAL DEFENSE
AND EDUCATIONAL FUND Ricardo Meza rmeza@maldef.org7 Jennifer Nagda jnagda@maldef.org 11 E. Adams; Suite 700 Chicago, IL 60603 (312) 427-0701 Facsimile: (312) 427-0691
AMERICAN CIVIL LIBERTIES UNION FOUNDATION IMMIGRANTS’ RIGHTS PROJECT Lee Gelernt Omar C. Jadwat OJadwat@aclu.org 125 Broad Street, 18th Floor New York, NY 10004 (212) 549-2620 Facsimile: (212) 549-2654
and Jennifer C. Chang 39 Drumm Street San Francisco, CA 94111 (415) 343-0770 Facsimile: (415) 395-0950
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CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and correct copy of Plaintiffs’ Trial Brief was forwarded, via first-class mail, on this 22nd day of February, 2007, to: Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin772@aol.com Louis J. Leonatti Leonatti & Baker, P.C. P.O. Box 758 Mexico, MO 65265 Lou@Leonatti-Baker.com Kris W. Kobach University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk@umkc.edu Counsel for Defendants
Alan Baker Attorney at Law 1620 South Hanley St. Louis, MO 63144 Counsel for Intervenor
__________________________________________
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 DOCUMENTS REQUIRED TO APPLY FOR A VALLEY PARK OCCUPANCY PERMIT
Valley Park requires the following documentation for all applicants over the age of 18 applying for Occupancy.
1. Proof of Lawful Presence 2. Proof of Identity (including proof of name changes)
1. Proof of Lawful Presence for U.S. Citizens (for Non-U.S. Citizens see Non-U.S. Citizens Proof of Lawful Presence section on next page)
U.S. Citizen
One of the following: • U.S. Birth Certificate (certified with embossed or raised seal issued by
state or local government) • U.S. Passport (valid or expired) • Certificate of Citizenship • Certificate of Naturalization • Certificate of Birth Abroad
U.S. Citizens who have previously verified lawful presence, and the department's record indicates such verification, will not be required to present proof of lawful presence.
Non-U.S. Citizen - See Non-U.S. Citizen Proof of Lawful Presence section on next page
2. Proof of Identity (including proof of name changes)
U.S. Citizen or Non-U.S. Citizen
• Provide Social Security Number, if one has been assigned; or • If a Social Security Number has not been assigned, the applicant must present a letter from the Social Security Administration (SSA) regarding the status of the applicant's Social Security Number.
Proof of Name Change: One of the following:
If the name on the document you present for proof of lawful presence does not match your current name, present one of the documents below showing your current name.
• U.S. Passport (valid or expired) • Social Security Card/Medicare Card • Certified Marriage License • Certified Divorce Decree • Certified Court Order • Certified Adoption Papers or Amended Birth Certificate

Proof of Lawful Presence for Non-U.S. Citizens

Immigration Status

Eligible for a Permit

Required Documents

All applicants must present the appropriate Immigration and Naturalization Service (INS), United States Citizenship and Immigration Services (USCIS), or other U.S. governmental documents, which indicate their current status or applicant status.

Lawful Permanent Resident (Resident Aliens)

YES

All documents must be valid at the time of application. Applicants will receive a license, nondriver license, or instruction permit with an expiration date equal to the expiration date of the immigration document (not to exceed the term of the license, nondriver license or permit). Applicants whose immigration documents indicate an expiration date, as "Duration of Stay" will be issued a one-year license, nondriver license, or permit
_ One of the following:
• 1-551 card (Resident Alien Card) • Passport stamped "Approved 1551"
• Passport stamped ·Processed for 1-551"
• Re-entry Permit 1-327

Refugee

YES

• 1-94 stamped ·Processed for 1-551" Expiration dates do not indicate the expiration of legal permanent resident status.
_ One of the following: • Employment AuthOrization
Document 1-6888 or 1-766 • Refugee Travel Document 1-571 • Reception and Placement
Assurance Form • Passport • 1-94 stamped as Refugee

Immigration Status

Expiration date of documents does not indicate the loss of Refugee status.

Eligible for

Required Documents

a Permit

Asylee

YES

Persons granted withholding of deportation or removal

YES

Cuban/Haitian entrants

YES

_ One of the following: • Employment
Authorization Document 1-6888 or 1-766
• Refugee Travel Document 1-571
• Passport • 1-94 stamped as Asylee
Expiration date of documents does not indicate the loss of Asylee status. _ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport

Parolees Conditional entrants

YES YES

Self-petitioning abused spouses or children, parents of abused children, or children of abused spouses

YES

Lawful temporary residents

YES

Temporary Protected Status

YES

Persons granted deferred enforcement departure (DED)

YES

Persons granted family unity

YES

Persons granted deferred action status

YES

Persons under an order of supervision

YES

_ One of the following:

t

• Employment

Authorization Document 1-6888 or

1-766

• Passport

• 1-94 stamped as parolee

_ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport • 1-94 stamped as Conditional Entrant

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport

_ Immigration documentation indicating status, and _ One ofthe following:
• Employment Authorization Document 1-6888 or 1-766
• Passport

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766

I
Persons granted extended voluntary departure YES

• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-688B or 1-766
• Passport

Immigration Status

Eligible for a Permit

Required Documents

Applicants for adjustment of YES status

Persons in removal or
deportation proceedings

YES

Persons granted a stay of YES deportation

Persons granted voluntary YES departure

A-1 Ambassador, public minister, career diplomatic or consular officer, or immediate family

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1688B or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1688B or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1638B or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1688B or 1-766
• Passport
NO - Individuals with an "An status can only be issued a Drivers license from the U.S. State Department.

A-2 Other foreign govemment official or employee, or immediate family

NO - We cannot issue a product to an A-2 except for a foreign military official and/or their dependents. Applicants must present proof of aSSignment.

_ Passport, _1-94, _ Assignment Orders

A-3

YES

Attendant, servant. or

personal employee of A-lor

A-2, or Immediate family

8-1

NO

Temporary Visitor for business

8-2

NO

Temporary Visitor for pleasure (tourist)

C-1

NO

Alien in transit through the U.S.

C-2

NO

Alien in transit to U.N Headquarters district.

Travel limited to 25 mile radius of Columbus

Circle in New York

C-3

NO

Foreign govemment official coming to U.N.,

immediate family, attendants. servants. or other

personal employees of official in transit through

U.S.

D-1

NO

Alien crewmen

_ Passport,
_1-94, _ Written verification showing proof of employment, and
- Letter from U.S. State
Department stating applicant can be issued a MO Leamer's Permit, MO Driver's License orMOID
Card

Immigration Status

Eligible for a Permit

Required Documents

E-1 Treaty-trader, spouse or child
E-2 Treaty-investor, spouse or child
F-1 Foreign academic student

YES YES YES

F-2 Spouse or child of F-1

YES

G-1 Principal Resident representative of a recognized foreign government to an intemational organization, staff or immediate family

_ Passport, _1-94, and _ Written verification showing proof of employment
_ Passport, _1-94. and _ Written verification showing proof of employment _ Passport, _1-94. _1-20, and
Written verification of attendance at the school listed on the 1-20
_ Passport, _1-94, and _ 1-20 of F-1 , and _ Written verification of attendance
of school listed on the 1-20 of F-1
NO - Individuals with a "G" status can only be issued a Drivers License from the U.S. State Department.

I G-2

YES

Other representative of recognized foreign

member govemment to an intemational

organization, or immediate family

G-3 Representative of non-recognized nonmember foreign government to an international organization, or immediate family

YES

G-4

YES

International organization officer or employee,

or immediate family

G-5 Attendant, servant. or personal employee of G-1, G-2, G-3 or G-4, or immediate family

YES

H-1 B Alien in a Specialty Occupation (Profession)

YES

H-1 C

YES

Nurses in Health Professional Shortage Areas

Immigration Status

_ Passport, _1-94, _ Written verification showing proof of employment, and _ Letter from U.S. State Department stating applicant can be issued a MO Learner's Permit, MO Drivers License or MO 10 Card
_ Passport, _1-94. _ Written verification showing proof of employment, and _ Letter from U.S. State Department stating applicant can be issued a MO Leamer's Permit, MO Drivers License or MO 10 Card _ Passport, _1-94, _ Written verification showing proof of employment. and _ Letter from U.s. State Department stating applicant can be issued a MO Leamer's Permit, MO Drivers License or MO 10 Card _ Passport. _1-94, _ Written verification showing proof of employment, and _ Letter from U.S. State Department stating applicant can be issued a MO Leamer's Permit, MO Drivers License or MO ID Card _ Passport, _1-94, and _ Written verification showing proof of employment
_ Passport, _1-94, and _ Written verification showing proof of employment

Eligible for a Permit

Required Documents

H-2 A Temporary Worker Performing Agricultural Services unavailable in the United States.
H-2 B Temporary Worker Performing Other Services unavailable in the United States
H-3 Alien trainees

YES YES YES

H-4 Spouse or Child of Alien Classified H-1 AlB, H-2 AJB, or H-3

YES

_ Passport, _1-94, and
- Written verification
showing proof of employment
_ Passport, _1-94, and
- Written verification
showing proof of employment _ Passport,
- 1-94. and Written verification showing proof of em'plo'yment _ Passport, _1-94, and
Written verification showing proof of

,

employment of H

I Representative of foreign information media, spouse and child

YES

J-1 Exchange visitor (may be student, trainee. workltravel, au pair, etc,)

YES

J-2 Spouse or child of J-1

YES

K-1 Fiancee of U,S citizen
K-2 Child of K-1
K-3 Spouse of U.S, citizen
K-4 Child ofK-3
L-1 A Intracompany Transferee (Executive, Managerial. and Specialized Knowledge Personnel Continuing Employment with International Firm or Corporation

YES YES YES YES YES

L-1 B Intracompany Transferee (Managerial Capacity)

YES

L-2 Spouse or child of L-1 A or L-1 B

YES

_ Passport, _1-94, and
Written verification showing proof of employment _ Passport, _1-94. _ Written verification showing proof of employment or attendance at school. and
IAP-66 or OS-2019 _ Passport. _1-94,
- Written verification
showing proof of employment or attendance of J-1 • and
- IAP-66 or OS-2019 of the
J-1 _ Passport. and
- 1-94
_ Passport, and 1-94
_ Passport. and 1-94
_ Passport, and
- 1-94
_ Passport. _1-94. and _ Written verification showing proof of employment
_ Passport, _1-94, and _ Written verification showing proof of employment _ Passport. _1-94. and _ Written verification showing proof of employment of L-1

Immigration Status
M-1 Vocational Student or other Non-academic student
M-2 Spouse or child of M-1

Eligible fora Permit
YES
YES

Required Documents
_ Passport, _1-94. _1-20. and _ Written verification of attendance at the school listed on the 1-20 _ Passport. _1-94. _1-20, and _ Written verification of attendance of the school listed on the 1-20 of M-1

NATO 1-7 North American Treaty Organization Representatives and dependents
N-8 Parent of an Alien Classified SK·3 or SN·3

YES YES

N-9 Child of N-8 or of an SK·1. SK-2. SK-4. SN-1. SN-2 or SN-4

YES

0-1 Alien with extraordinary ability in the sciences, arts. education, business. athletics. arts, motion picture, or TV industry
0-2 Alien who accompanies and assists in artistic or athletic performances of 0-1 principal
0-3 Spouse or child of 0-1 or 0-2

YES YES YES

P-1 Athlete who competes individually or part of a team at intemationally recognized level or entertainer who is part of a group that has received international recognition as outstanding for a sustained and substantial period of time (includes support personnel of entertainment groups)

YES

_ Passport, _1-94, and _ Orders of principal
_ Passport, _1-94. and _ Written verification showing proof of employment _ Passport. _1-94, and
- Written venfication
showing proof of employment of N-8 _ Passport, _1-94, and
- Written verification
showing proof of employment
_ Passport. _1-94, and - Written verification showing proof of employment _ Passport, _1-94. and
Written verification showing proof of employment of 0 _ Passport, _1-94, and
- Written venficatton
showing proof of employment

P-2 Individual artist or entertainment group in reciprocal exchange program between US and foreign-based organizations engaged in temporary exchange of artists or entertainers (includes essential support personnel)

YES

P-3 Individual or group artist or entertainer and accompanying aliens who are integral to the group's performance or will perform, teach, or coach under a culturally unique commercial or noncommercial program (includes essential support personnel).

YES

_ Passport.
- 1-94. and Written verification showing proof of employment
_ Passport, _1-94. and
- Written verification
showing proof of employment

Immigration Status
P-4 Spouse or child of P-1, P-2 or P-3
0-1 International cultural exchange visitor (no derivative classification for dependents)

Eligible for a Permit

Required Documents

YES YES

_ Passport, _1-94, and _ Written verification showing proof of employment of P _ Passport, _1-94. and _ Written verification showing proof of employment

Q-2 Participant from Ireland under the Irish peace process cultural and training program
Q-3 Spouse or child of Q-2

YES YES

R-1 Minister or religious worker

YES

R-2 Spouse or child of R-1

YES

S-5 S-6 Witness or informant
S-7 Qualified family member of S-5 or S-6
T-1 Victim of human trafficking
T-2 Spouse of T-1
T-3 Child ofT-1
T-4 Parent of T-1
TN-1 NAFTA professional (Canada)

YES
YES YES YES YES YES YES

TN-2 NAFTA professional (Mexico)

YES

TD Spouse or Child of NAFTA Professional

YES

V-1 Spouse of a legal permanent resident alien
V-2 Child of a legal permanent resident alien
V-3 Child of a V-1 or V-2

YES YES YES

_ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proofofemploymentofQ-2 _ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proof of employment of R-1 _1-94,
_1-94,
- 1-94
- 1-94
- 1-94
- 1-94
_ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proof of employment of TN _ Passport,
- 1-94
_ Passport,
- 1-94
_Passport, 1-94

Immigration Status

Eligible for a Permit Required Documents

WB

NO

Visitor for business (visa waiver program)

WT

NO

Visitor for pleasure (tourist in visa waiver program)

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

STEPHANIE REYNOLDS;

)

FLORENCE STREETER;

)

CASH FLO PROPERTIES, LLC;

)

JAMES ZHANG, and

)

THE METROPOLITAN ST. LOUIS

)

EQUAL HOUSING OPPORTUNITY

)

COUNCIL, INC.,

)

)

Plaintiffs,

)

)

)

v.

)

)

CITY OF VALLEY PARK, MO

)

)

SERVE AT: City Clerk's Office

)

320 Benton Street

)

Valley Park, MO 63088 )

)

and at

)

)

Jeremiah Nixon

)

Attorney General

)

207 West High Street

)

Jefferson City, MO 65102 )

)

and

)

)

JEFFERY WHITTEAKER, in his official )

capacity as Mayor of the City

)

of Valley Park, MO

)

)

SERVE AT: 79 Guylyn PI.

)

Valley Park, MO 63088

)

HOLD SERVICE

)

and

)

)

Cause No. Division:

JOHN BRUST, in his official capacity as )

Aldennan of the City of Valley Park, MO )

)

SERVE AT: 530 Leonard Ave.

)

Valley Park, MO 63088

)

HOLD SERVICE

)

and

)

)

DANIEL ADAMS, in his official capacity )

as Aldennan of the City of Valley Park, MO )

)

SERVE AT: 809 Leonard Ave.

)

Valley Park, MO 63088 )

HOLD SERVICE

)

and

)

)

RANDY HELTON, in his official capacity )

as Aldennan of the City of Valley Park, MO )

)

SERVE AT: 70 Fernridge Ave.

)

Valley Park, MO 63088

)

HOLD SERVICE

)

and

)

)

DON CARROLL, in his official capacity )

as Aldennan of the City of Valley Park, MO )

)

SERVE AT: 130 Quinwood

)

Valley Park, MO 63088

)

HOLD SERVICE

)

and

)

)

MICHAEL PENNISE, in his official

)

capacity as Aldennan of the City of

)

Valley Park, MO

)

)

SERVE AT: 80 Inez Ave.

)

Valley Park, MO 63088

)

HOLD SERVICE

)

and

)

)

2

ED WALKER, in his official capacity as )

Alderman of the City of Valley Park, MO )

)

SERVE AT: 833 Crescent Ridge

)

Valley Park, MO 63088 )

HOLD SERVICE

)

and

)

)

STEVE DRAKE, in his official capacity )

as Alderman of the City of Valley Park, MO)

)

SERVE AT: 455 Valparaiso

)

Valley Park, MO 63088 )

HOLD SERVICE

)

and

)

)

J. MICHAEL WHITE, in his official capacity)

as Alderman ofthe City of Valley Park, MO )

)

SERVE AT: 500 Emanuel Ct.

)

Valley Park, MO 63088 )

HOLD SERVICE

)

)

Defendants.

)

PETITION FOR DECLARATORY RELIEF AND A TEMPORARY, PRELIMINARY, AND PERMANENT INJUNCTION

For their Petition, Plaintiffs Stephanie Reynolds, Florence Streeter, Cash Flo

Properties, LLC, James Zhang, and The Metropolitan St. Louis Equal Housing Opportunity

Commission, state as follows:

INTRODUCTION

1. This action is filed under the Missouri Declaratory Judgment Act, MO.R.STAT.

§ 527.010, et seq., and the Missouri Open Meetings Act (a/kJa Sunshine Law), MO.R.STAT.

§ 610.010, et seq. Plaintiffs seek a declaration that City of Valley Park, Missouri Ordinance

No. 1721, and its amendments as set forth in Ordinance No. 1723 and Ordinance No. 1725, are

void. (Copies of the Ordinances are attached hereto as Exhibits A, B, and C, respectively).

3

Plaintiffs also seek a temporary, preliminary, and permanent injunction restraining enforcement of Ordinance No. 1721, and its amendments as set forth in Ordinances No. 1723 and No. 1725. 11
2. Ordinance No. 1721 is another in a continuous stream of Ordinances enacted by Defendants in an attempt to chase "illegal aliens," and in particular those of Hispanic descent, out of the City of Valley Park. The original Ordinances - No. 1708, and its successor Ordinance No. 1715 - were identical in intent and substantially similar in form to Ordinance No. 1721. Ordinances No. 1708 and Ordinance No. 1715 have been declared void, and their enforcement has been permanently enjoined, by this very Court.
3. Ordinance No. 1721 is clearly directed at regulating immigration as it purports to deny an occupancy permit to anyone who attempts to occupy a dwelling unit in the City of Valley Park who is an "alien unlawfully present in the United States." The fact that the Ordinance is directed specifically at those of Hispanic heritage is evident in light of public comments made by Defendant Jeffrey Whitteaker, the mayor ofthe City of Valley Park, who was the impetus for the enactment of Ordinances directed at "illegal aliens." Defendant Whitteaker has publicly stated that Valley Park's Ordinances are aimed at alleviating "overcrowding" which occurs when "Cousin Puerto Rico and Taco Whoever" move into dwelling units occupied by "one guy and his wife that settle down here, [and] have a couple of kids."
BACKGROUND 4. On July 17, 2006, Defendants enacted Ordinance No. 1708, the provisions of which provided penalties for any business employing an "illegal alien" and for any landlord who leased property to an "illegal alien." (A copy of Ordinance No. 1708 is attached hereto as
IIUnless otherwise noted, all references to Ordinance No. 1721 from this point forward are intended to also include the amendments to that Ordinance as set forth in Ordinance No. 1723 and Ordinance No. 1725.
4

Exhibit D). On September 26, 2006, the enforcement of Ordinance No. 1708 was enjoined by entry of a temporary restraining order entered by the Circuit Court of St. Louis County in Cause No.06-CC-3802. That temporary restraining order was made permanent on March 12,2007. (A copy of the judgment and permanent injunction is attached hereto as Exhibit E).
5. On September 26, 2006, within hours of when enforcement of Ordinance No. 1708 was temporarily enjoined, Defendants enacted Ordinance No. 1715, which purported to repeal the enjoined Ordinance No. 1708 and to enact new provisions directed at "illegal immigration." (A copy of Ordinance No. 1715 is attached hereto as Exhibit F). The provisions of Ordinance No. 1715 provided penalties for any business employing an "illegal alien" and for any landlord who leased property to an "illegal alien." On September 27,2006, the enforcement of Ordinance No. 1715 was enjoined by entry of a temporary restraining order entered by the Circuit Court of St. Louis County in Cause No. 06-CC-3802. That temporary restraining order was made permanent on March 12,2007. (Exhibit E).
6. On February 5, 2007 - just three weeks prior to the scheduled trial wherein the validity of Ordinances No. 1708 and 1715 was to be determined - Defendants "passed" Ordinance No. 1721 in its original (pre-amended) form. As originally enacted, Ordinance No. 1721 expressly stated that it would become effective only if, and when, the injunctions restraining enforcement of Ordinances No. 1708 and No. 1715 were terminated.
7. On February 11, 2007 - only six days after enacting the original version of Ordinance No. 1721 and expressly declaring that it would become effective only if the enforcement of Ordinances No. 1708 and No. 1715 was not permanently enjoined - Defendants amended Ordinance No. 1721 by passage of Ordinance No. 1723 which purported to make the provisions of Ordinance No. 1721 effective immediately upon being signed by the mayor, but
5

expressly stating that the originally enacted Ordinance No. 1721 would be enforced only if, and when, the injunctions restraining enforcement of Ordinances No. 1708 and No. 1715 were terminated. The mayor signed Ordinance No. 1723 on February 14, 2007.
8. On February 27,2007 - only twenty-two days after passing the original version of Ordinance No. 1721, and only thirteen days after its first amendment (Ordinance No. 1723) was signed into law - Defendants passed and signed into law Ordinance No. 1725, which yet again purported to effectuate an amendment of Ordinance No. 1721. The purpose of Ordinance No. 1725 was to make Ordinance No. 1721 effective and enforceable immediately, regardless of whether the injunctions restraining Ordinances No. 1708 and No. 1715 were terminated. Passage of this second amendment to Ordinance No. 1721 came only one day after a court hearing was held in which the Court indicated its inclination to make the injunctions restraining enforcement of Ordinances No. 1708 and No. 1715 permanent.
9. As amended by Ordinances No. 1723 and No. 1725, Ordinance No. 1721 now effectively reads as follows:
AN ORDINANCE REPEALING SECTION 510.020 SUBSECTION 103.6.1 OF THE PROPERTY MAINTENANCE CODE RELATING TO
INSPECTIONS AND OCCUPANCY PERMITS AND ENACTING A NEW ORDINANCE IN LIEU THEREOF RELATING TO THE SAME SUBJECT
MATTER BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One Section 510.020 Subsection 103.6.1 of the Code of Ordinances is hereby repealed.
6

Section Two
A new section to be known as "Section 510.020 Subsection 103.6.1, Applications and Inspections" is hereby adopted as follows:
(a) It shall be unlawful for any owner or agent of real property containing a dwelling unit or units to pennit or allow any person to occupy the dwelling unit or part thereof for any purpose until a certificate of occupancy has been issued by the Building Commissioner. Every owner, agent or manager of any dwelling unit shall infonn the City whenever any portion of the building or dwelling unit becomes vacant, or that a change of occupancy in the building or unit is imminent, and the owner, manager or agent shall apply for an occupancy pennit on such fonns provided by the City. The City shall review the application, which shall set forth names, ages, citizenships, and relationships for each proposed occupant, together with such identifYing infonnation that shall be required by the City. The Building Commissioner, consistent with federal law and Ordinance 1722, shall not issue an occupancy pennit and will deny the same if any alien unlawfully present in the United States is a proposed occupant of the dwelling unit or units, and no inspection shall be perfonned. When an alien is a proposed occupant, the Building Commissioner shall verifY with the federal government whether the alien is lawfully present in the United States, pursuant to 8 USC § 1373(c). The Building Commissioner shall make no independent judgment of the legal status of any alien. If the unit contains no proposed occupant who is an alien unlawfully present in the United States, an inspection shall be perfonned under the provisions of this article and, if compliance with this section is made, an occupancy pennit shall be granted to the owner or his agent setting forth the occupants' names, relationships, and number of occupants allowable at the premises.
(b) It shall be unlawful for any owner, agent or manager of a dwelling unit or units to knowingly make any false statements in the application for occupancy as to the names, ages, citizenship, relationships, identification or number ofoccupants who will occupy the premises.
(c) This section shall only apply prospectively, to occupancies commencing after the effective date of this ordinance.
(d) If the federal government notifies the City of Valley Park that it is unable to verifY whether a proposed occupant who is an alien is lawfully present in the United States, the City of Valley Park shall not deny the occupancy pennit on that basis, and an inspection shall be perfonned.
7

(e) Any owner of real property containing a dwelling unit who is denied an occupancy permit, or any proposed occupant who is unable to lease a dwelling unit because the City of Valley Park has denied an occupancy permit concerning the occupant, may challenge the denial of the occupancy permit before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right of appeal to the St. Louis County Circuit Court. The determination of whether an alien is unlawfully present in the United States shall only be made by the federal government. The Board of Adjustment may take judicial notice of any verification of the individual's status previously provided by the federal government and may request the federal government to provide an automated or testimonial verification pursuant to 8 USC § 1373(c).
Section Three
This Ordinance shall become effective from and after its passage and upon approval by the Mayor.
10. Defendants expressly stated, both in documents filed with the St. Louis County
Circuit Court and via testimonial evidence presented to that Court, that the intent of Ordinance
No. 1721 (as compared to Ordinance No. 1715) is to ensure that the burden of proving whether a
prospective tenant is legally within the United States is no longer on landlords and building
owners, and that the onus is on Defendant City of Valley Park to prove that a person is not
lawfully present in this Country.
11. Defendants enacted Ordinance No. 1721 as part of the "Property Maintenance
Code Relating to Inspections and Occupancy Permits" without having done any investigation or
research to determine whether a person's immigration status has any effect on the health, safety
or welfare of the residents of the City of Valley Park as affected by its buildings and structures,
as is required for ordinances enacted pursuant to a property maintenance code. Prior to such
enactment, Defendants had no evidence in their possession which suggested that a person's
immigration status does affect the health, safety or welfare of the residents of the City of Valley
8

Park as affected by its buildings and structures, as is required for ordinances enacted pursuant to a property maintenance code.
12. Ordinance No. 1721 expressly indicates that its provisions are to be implemented consistent with Valley Park Ordinance No. 1722, an Ordinance which is not enforceable due to the fact that it is substantially similar to the pennanently enjoined Ordinance No. 1715, and the fact that, by its own tenns, it wiIl not become effective until and unless the pennanent injunction restraining enforcement of Ordinance No. 1715 is tenninated.
PARTIES 13. Stephanie Reynolds is a resident of Valley Park, Missouri, and owns dwelling units, including multiple rental units, in that City. Stephanie Reynolds does not know the immigration status of the prospective tenants and buyers who seek to lease or buy any of her properties, and she does not have the necessary resources and legal expertise to detennine whether a prospective tenant or buyer is lawfully present in the United States. Ordinance No. 1721, as currently being enforced by Defendant City of Valley Park, mandates that Stephanie Reynolds inquire into, and investigate, the immigration status of those to whom she might seek to sell or rent her dwelling units. This mandate, combined with the mayor's public statements about Hispanics generally, puts Stephanie Reynolds in jeopardy of being accused of violating the antidiscrimination provisions of the federal Fair Housing Act. Stephanie Reynolds has never based, and currently does not want to appear as though she is basing, her decision to lease or sell a property upon an individual's race or national origin. Stephanie Reynolds does not want to lose the goodwill she has established with prospective tenants by demanding the intrusive and irrelevant infonnation required by Ordinance No. 1721. She is fearful that she will be denied occupancy pennits for her rental properties. As a result of the enactment of Ordinance No. 1721,
9

Stephanie Reynolds is at risk of losing business due to a diminished prospective client base and the resulting inordinate delay in getting approval for tenants to move into dwelling units.
14. Florence Streeter is the owner of residential rental units within the City of Valley Park, and, as the sole owner of Cash Flo Properties, LLC, she is the owner of additional residential rental units, as well as commercial rental units in that locale. Florence Streeter does not know the immigration status of the prospective tenants and buyers who seek to lease or buy any of her properties, and she does not have the necessary resources and legal expertise to determine whether a prospective tenant or buyer is lawfully present in the United States. Ordinance No. 1721, as currently being enforced by Defendant City of Valley Park, mandates that Florence Streeter inquire into, and investigate, the immigration status of those to whom she might seek to sell or rent her dwelling units. This mandate, combined with the mayor's public statements about Hispanics generally, puts Florence Streeter in jeopardy of being accused of violating the antidiscrimination provisions of the federal Fair Housing Act. Florence Streeter has never based, and currently does not want to appear as though she is basing, her decision to lease or sell a property upon an individual's race or national origin. Florence Streeter does not want to lose the goodwill she has established with prospective tenants by demanding the intrusive and irrelevant information required by Ordinance No. 1721. She is fearful that she will be denied occupancy permits for her rental properties. As a result of the enactment of Ordinance No. 1721, Florence Streeter is at risk of losing business due to a diminished prospective client base and the resulting inordinate delay in getting approval for tenants to move into dwelling units.
15. Cash Flo Properties, LLC is a limited liability corporation existing under the laws of the State of Missouri, and is the record owner of both commercial and residential rental units in the City of Valley Park. As a result of the enactment of Ordinance No. 1721, Cash Flo
10

Properties, LLC is at risk of losing business due to a diminished prospective client base and the resulting inordinate delay in getting approval for tenants to move into dwelling units.
16. James Zhang is the owner of residential rental units within the City of Valley Park. James Zhang does not know the immigration status of the prospective tenants and buyers who seek to lease or buy any of his properties, and he does not have the necessary resources and legal expertise to determine whether a prospective tenant or buyer is lawfully present in the United States. Ordinance No. 1721, as currently being enforced by Defendant City of Valley Park, mandates that James Zhang inquire into, and investigate, the immigration status of those to whom he might seek to sell or rent his dwelling units. This mandate, combined with the mayor's public statements about Hispanics generally, puts James Zhang in jeopardy of being accused of violating the antidiscrimination provisions of the federal Fair Housing Act. James Zhang has never based, and currently does not want to appear as though he is basing, his decision to lease or sell a property upon an individual's race or national origin. James Zhang does not want to lose the goodwill he has established with prospective tenants by demanding the intrusive and irrelevant information required by Ordinance No. 1721. He is fearful that he will be denied occupancy permits for his rental properties. As a result of the enactment of Ordinance No. 1721, James Zhang is at risk of losing business due to a diminished prospective client base and the resulting inordinate delay in getting approval for tenants to move into dwelling units.
17. The Metropolitan St. Louis Equal Housing Opportunity Council, Inc. ("EHOC") is a Missouri nonprofit corporation. It is a fair housing agency charged with investigating and eliminating housing discrimination and educating the public about fair housing matters. Because Ordinance No. 1721 promotes discrimination in the provision of housing, it frustrates the organizational mission of the EHOC. The enactment of previous Ordinances substantially
11

similar in substance to Ordinance No. 1721 i.e., Ordinance No. 1708 and Ordinance No. 1715forced the EHOC to devote significant resources to conducting outreach activities in the Valley Park area, and in its immigrant communities. The EHOC conducted these outreach activities in an effort to: ensure people were aware of their fair housing rights; educate housing providers in Valley Park about their responsibilities under the Fair Housing Act; and meet with local organizations and individuals concerned about the impact of the Ordinances on immigrant communities. These activities interfered with the EHOC's mission of fair housing, counseling, and education by causing a diversion of its resources. The EHOC anticipates that enforcement of Ordinance No. 1721 will result in the need for similar outreach activities.
18. Defendant City of Valley Park, Missouri is a City of the fourth class located in
st. Louis County, Missouri.
19. Defendant Jeffrey Whitteaker is the mayor of Valley Park, Missouri and was actively involved in, and gave final approval for, the enactment of Ordinance No. 1721. As mayor, Defendant Jeffrey Whitteaker is charged with enforcing the provisions of Ordinance No. 1721.
20. Defendants, John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, and J. Michael White are alderpersons in Valley Park, Missouri, and were actively involved in, and voted in favor of, the passage of Ordinance No. 1721.
21. At all times alleged herein, Defendant City of Valley Park and the Defendant Mayor and Aldermen were acting under color of state law, and thus are sued only in their official capacities.
12

VENUE AND JURISDICTION 22. Jurisdiction in this Court is proper pursuant to MO.R.STAT. § 478.220. 23. Venue is proper in this Court pursuant to MO.R.STAT. § 508.010.
INTERPRETATION AND ENFORCEMENT OF ORDINANCE NO. 1721 24. On February 28, 2007 - the day after Ordinance No. 1721 became effective and enforceable - Plaintiffs, Florence Streeter and Stephanie Reynolds requested that Defendant City of Valley Park provide to them the necessary forms and instructions to comply with the requisites of Ordinance No. 1721 so that they could obtain occupancy permits for their properties. Despite the fact that Ordinance No. 1721 was, on that day, both effective and enforceable, Defendant City of Valley Park could provide no forms or direction to Plaintiffs as to how to comply with that Ordinance, as there was no plan in place for its implementation. 25. On March 2, 2007, Plaintiffs, Florence Streeter and Stephanie Reynolds again requested that Defendant City of Valley Park provide to them the necessary forms and directions for applying for an occupancy permit under Ordinance No. 1721. On that day, Defendant City of Valley Park provided to Plaintiffs a one page form which required that a landlord or property owner provide to the City of Valley Park basic information about the location of the dwelling unit at issue, and, with respect to the prospective occupants of the premises, the names, birthdates, social security numbers, and relationships of those in the household, and whether the person applying for the occupancy permit claimed to be a citizen of the United States. The form also required that the potential occupantlbuyer provide a copy of his/her driver's license. (An example of the Application for Residential Occupancy Permit is attached hereto as Exhibit G).
13

26. On March 7, 2007, Plaintiff Florence Streeter submitted to Defendant City of Valley Park a completed Application for Residential Occupancy Permit, along with a copy of the driver's license of the applicant, Ramon Gallardo. (Exhibit G).
27. On March 9, 2007, when Plaintiff Florence Streeter asked Defendant City of Valley Park whether the Application for Residential Occupancy Permit submitted for Ramon Gallardo had been approved, she was told that Defendant City of Valley Park had determined it needed a new system for the application process and thus could not give her an answer on the approval of the Gallardo application.
28. On March 12, 2007, when Plaintiff Florence Streeter gave Defendant City of Valley Park a second Application for Residential Occupancy Permit, along with the driver's license for the applicant, she was told that the application would not be processed until she provided a driver's license for the other adult who was listed as a member of the household. She was also told that, because the Defendant City of Valley Park could not utilize the federal system it anticipated using for the occupancy permit application process, it had developed a new application system. Plaintiff Florence Streeter was provided with a nine page document entitled "Documents Required to Apply for a Valley Park Occupancy Permit" outlining the requirements for this "new" application system. (A copy ofthe document is attached hereto as Exhibit H).
29. The "Documents Required to Apply for a Valley Park Occupancy Permit" requires a landlord to provide, for every member of the household of a prospective tenant/buyer, "Proof of Lawful Presence" and "Proof of Identity." The documents listed as being necessary to satisfY the requirements differ for those who are a citizen of the United States and those who are not, and thereby effectively puts the onus on the landlord and applicant to prove lawful presence in the United States. (Exhibit H).
14

30. Upon infonnation and belief, Defendant City of Valley Park and Defendant Mayor Jeffery Whitteaker first attempted to enforce the provisions of Ordinance No. 1721 by asking the federal government to check on the immigration status of prospective tenantslbuyers, but were told that federal databases could not be used to verify whether prospective tenantslbuyers were lawfully present in the United States.
31. After being notified by the federal government that it would not, or could not, verify whether any prospective occupant of a dwelling unit was lawfully present in the United States, Defendant City of Valley Park and Defendant Mayor Jeffrey Whitteaker, without any notice or further legislative debate, devised the scheme set forth in the "Documents Required to Apply for a Valley Park Occupancy Pennit," under which, in direct contravention of the express provisions of Ordinance No. 1721, a landlord cannot obtain an occupancy pennit for, or an inspection of, a residential dwelling unit until such time as he submits "Proof of Lawful Presence" in the United States for each potential occupant of that dwelling unit. These actions of Defendant City of Valley Park and Defendant Mayor Jeffrey Whitteaker effectively negated that provision of Ordinance No. 1721 which declares that when "the federal government notifies the City of Valley Park that it is unable to verify whether a proposed occupant who is an alien is lawfully present in the United States, the City of Valley Park shall not deny the occupancy pennit on that basis, and an inspection shall be perfonned."
GENERAL ALLEGATIONS OF INVALIDITY 32. Ordinance No. 1721 is constitutionally and statutorily infinn, and was enacted in violation of numerous laws governing legislative enactments by fourth class cities, like Valley Park. Thus, temporary, preliminary, and pennanent injunctive relief is proper. 33. Ordinance No. 1721 will-like its predecessor Ordinances No. 1708 and No. 1715
15

- cause irreparable hann to Plaintiffs, including but not limited to: a diminishing potential client base for the rental and other businesses owned by Plaintiffs; a loss of tenants and customers; and a loss of goodwill developed with customers and tenants over long periods of time.
34. Plaintiffs herein have standing to challenge the validity of Ordinance No. 1721 under MO.R.STAT. 527.020 which provides, in relevant part, that "[a]ny person ... whose rights, status or other legal relations are affected by a ... municipal ordinance ... may have determined any question of construction or validity arising under the ... ordinance ... and obtain a declaration of rights, status or other legal relations thereunder." The rights and status of Plaintiffs are affected by Ordinance No. 1721. For example, the Ordinance forces Plaintiffs to conduct their businesses in a predetermined manner, which is contrary to their normal practices. The Ordinance also impacts the potential client pool who may otherwise decide to rent or buy from Plaintiffs. Furthermore, the potential disparate impact that could result from the Ordinance leaves landlords and tenants confused about their rights and obligations to such a point that they will seek outreach services in unusual numbers from such agencies as the EHOC. Plaintiffs thus seek a determination of the validity of Ordinances No. 1721, and a declaration of their rights and status, as well as injunctive relief to preserve the same. Plaintiffs also have standing because they have suffered, and continue to suffer, irreparable injury-in-fact as a direct result of the enactment and enforcement of Ordinance No. 1721.
35. The provisions of Ordinance No. 1721: infringe the constitutionally granted federal immigration power which the United States Supreme Court has repeatedly held is reserved to the federal government, and conflict with federal immigration law; were enacted in excess of Valley Park's delegated authority; are arbitrary and unreasonable; are being enforced inconsistently with the intent of the legislative body which enacted them; serve no legitimate
16

purpose; interfere with business expectancies; were enacted for a discriminatory purpose, have a discriminatory impact, and promote discrimination in housing, all in violation of the federal Fair Housing Act; are preempted by the federal Fair Housing Act; and were enacted in violation of the Missouri Open Meetings Act (a/k/a Sunshine Act).
COUNT I
DECLARATORY JUDGEMENT ACT CLAIM (Against Defendant City of Valley Park)
36. Ordinance No. 1721 should be declared void and unenforceable, and a temporary, preliminary and permanent injunction should be entered enjoining its enforcement for the following reasons:
(a) Ordinance No. 1721 violates the Supremacy Clause of the United States Constitution, art. VI, cl. 2, and federal immigration law. The power to regulate immigration is vested exclusively in the federal government pursuant to the Constitution's grant to the Federal government of the power to "establish a uniform Rule of Naturalization," (U.S. Const. art. I, § 8, cl.4), and "to regulate Commerce with foreign Nations" (U.S. Const. art. I, § 8, cl. 3). The Federal government has established a comprehensive system of laws, regulations, procedures, and administrative agencies that determine, subject to judicial review, whether and under what conditions a given individual may enter, stay in, and work in the United States. 8 U.S.C. § 1101, et seq. These Federal immigration laws also include provisions directed at other classes of individuals, such as those who employ or assist immigrants. The federal immigration scheme is comprehensive and includes sanctions, documentation, and anti-discrimination provisions directly applicable to employers, as well as a criminal and civil scheme
17

applicable to those who assist individuals who are not lawfully in the United States. Ordinance No. 1721 encroaches on the federal government's exclusive power to regulate immigration, attempts to legislate in fields which are completely occupied by the federal government, and, additionally or alternatively, conflicts with federal laws, regulations, policies and objectives. The Ordinances are thus preempted;
(b) The provisions of, and the means employed for enforcing, Ordinance No. 1721, by which a property owner is required to provide information and documents relating to a prospective tenant or buyer's citizenship, bear no rational or reasonable relationship to the purpose or intent of the Valley Park Property Maintenance Code. By its express terms, the provisions of that Code apply only to "existing residential and nonresidential structures and all existing premises ..." The intent of the Code is "to ensure public health, safety and welfare insofar as they are affected by the continued occupancy and maintenance ofstructures and premises." The Valley Park Property Code, by its terms, is not intended to regulate, or limit, the specific people, or any specific classes of people, who can occupy a dwelling unit. Furthermore, whether a dwelling occupant is lawfully in the United States or otherwise has no bearing on the structure itself;
(c) Ordinance No. 1721 serves no legitimate purpose, and impedes the business operations of Plaintiffs. By its express terms, an occupancy permit and inspection cannot be denied if the federal government has indicated that it "is unable to verify whether a proposed occupant who is an alien is lawfully present
18

in the United States." Furthermore, the Ordinance expressly mandates that "[t]he determination of whether an alien is unlawfully present in the United States shall only be made by the federal government." The federal government has already informed Defendants that it is unable to verify whether any proposed occupant is lawfully present in the United States. Thus, Ordinance No. 1721 serves no legitimate purpose;
(d) Ordinance No. 1721 was enacted in violation of the limited powers delegated to the City of Valley Park by the Missouri legislature. A city's authority to exercise police power must come from a specific delegation by the State. Pursuant to MO.R.STAT. § 79.110, the City of Valley Park has the power to enact only those ordinances "not repugnant to the constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same." No authority has been delegated to the City of Valley Park to regulate immigration. Furthermore, Ordinance No. 1721 is repugnant to the Constitution of the State of Missouri, including those provisions set forth below and, in addition, Article I, § 2 which guarantees "all persons" in this State the "right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry" and that "all persons" will be given "equal rights and opportunity under the law." In addition, Defendants had no factual basis for enacting Ordinance No. 1721, and thus there is nothing to support the notion that
19

the Ordinance is expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce, or the health of the inhabitants of Valley Park;
(e) The provisions of, and the means employed for enforcing, Ordinance No. 1721, interfere with the legitimate business expectancies of Plaintiffs. Under the Ordinance, as stated and enforced, a land owner cannot have a property inspected for compliance with legitimate Code requirements until after: first, the landowner provides voluminous documentation to Defendant City of Valley Park identifying the specific individual(s) who will occupy each property leased or purchased, and proving that each of them is lawfully present in the United States; and second the City approves each specific individual who has applied to occupy the property. The process of identification of specific individuals and their approval for occupancy has taken multiple days, after which an inspection is then done and, if any legitimate Code violations are found, the process is delayed further while the Code violations are corrected and a reinspection occurs. Due to the inordinate time involved in Defendant City of Valley Park approving specific individuals for occupancy prior to allowing a property inspection, Plaintiffs have been, and will continue to be, damaged by the loss of prospective tenants. And, once a prospective tenant is lost the process must start over;
(f) The means employed for enforcing Ordinance No. 1721 unreasonably interfere with the property rights of Plaintiffs. Defendant City of Valley Park cannot enforce Ordinance No. 1721 as originally contemplated
20

because there is no means for the "Building Commissioner" to fulfill his duty of "verify[ing] with the federal government whether [a prospective tenant or property buyer] is lawfully present in the United States pursuant to 8 USC § 1373(c)." As a result, Defendant City of Valley Park has, contrary to prior representations made in Court documents and Court testimony, put the onus on property owners to supply voluminous documentation from which a determination of legal status can be made. The process is contrary to that contemplated by the Ordinance itself. It is thus not a legitimate exercise of police power;
(g) Ordinance No. 1721 was enacted for a discriminatory purpose. Defendant Mayor Jeffery Whitteaker, who admittedly was the sole impetus for Valley Park's enactment of ordinances directed at "illegal aliens," has publicly admitted that Valley Park's "illegal alien" ordinances are directed at a specific class of people based on their national origin, i.e., those of Hispanic descent. Ordinance No. 1721 thus violates the Fair Housing Act, 42 U.S.C. §§ 3601-19;
(h) Ordinance No. 1721 has a discriminatory impact. The Ordinance provides for a procedure whereby only those persons who are not citizens of the United States are subject to a verification process with respect to their lawful presence in this Country. As a result of the inordinate amount of time involved in the verification process, not only are non-citizens more likely to lose housing opportunities, property owners are more likely to avoid renting/selling to them to avoid the lengthy and cumbersome verification process. Ordinance No. 1721 thus violates the Fair Housing Act, 42 U.S.C. §§ 3601-19;
21

(i) Ordinance No. 1721 is preempted by the Fair Housing Act, 42 U.S.C. §§ 3601-19, which expressly provides that "the law of a State, a political subdivision, or other such jurisdiction that purports to require or pennit any action that would be a discriminatory housing practice under this subchapter shall to that extent be invalid." 42 U.S.C. § 3615; and
0) Ordinance No. 1721 violates Article I, § 10 of the Constitution of
the State of Missouri, as well as the Fourteenth Amendment of the United States Constitution, which guarantee that no person shall be deprived of "life, liberty, or property without due process of law." The Ordinance lacks explicit standards necessary to avoid arbitrary and discriminatory application by those enforcing its provisions, and the means employed to enforce its provisions cause unreasonable and unwarranted delay resulting in a loss of tenants and potential property buyers. 37. By being subject to the imposition of an invalid and unconstitutional Ordinance, Plaintiffs have been, and continues to be in danger of being, irreparably injured in their businesses, livelihoods, and good names, and they will continue to be so until such time as Ordinance No. 1721 is declared void and invalid, and an injunction is entered enjoining its enforcement. There is no adequate remedy at law which will protect Plaintiffs from the loss of goodwill, loss of business opportunities, and diversion of resources that have resulted, and will result, from threatened or actual enforcement of Ordinance No. 1721. 38. The circumstances of this case warrant an award of attorneys' fees due to unusual circumstances, and as authorized by MO.REv.STAT. § 527.100. Such circumstances include, but are not limited to: Defendant's seriatim enactment of multiple unconstitutional and unlawful ordinances, including Ordinance No. 1721; the fact that the multiple Ordinances were enacted
22

based on nothing more than a radio broadcast, and without any analysis or investigation into the legality of the Ordinances or whether any circumstances existed to justifY such an enactment; Defendant City of Valley Park and Defendant Jeffery Whitteaker's usurpation of the legislative role by employing enforcement mechanisms that are directly contrary to the expressed intent of Ordinance No. 1721; and Defendant's public campaign to collect money for payment of attorneys' fees thereby creating a res out of which such fees can be paid to Plaintiffs.
39. Upon information and belief, Defendant City of Valley Park has an insurance policy providing coverage for any award of attorneys' fees made herein, and. thus under MO.REv.STAT. § 537.610, has no immunity from such an award.
COUNT II VIOLATIONS OF THE MISSOURI OPEN MEETINGS ACT
(Against All Defendants) 40. Ordinance No. 1721 was enacted in knowing violation of the Missouri Open Meetings Act (a!k!a Sunshine Law), MO.R.STAT. § 610.010, et seq., which requires, with limited exceptions, that actions and deliberations of public governmental bodies be open to the public, allow for attendance by the public, and be preceded by notice reasonably calculated to advise the public of the matters to be considered. The Open Meetings Act also requires that a journal of meetings be taken and retained. 41. Defendants knowingly violated the Open Meetings Act by discussing and deliberating the enactment Ordinance No. 1721 (and its amendments), without proper and adequate notice to the public, without allowing for public access, and without recording or journaling these events.
23

42. As a result of Defendants violations of the Missouri Open Meetings Act, Ordinance No. 1721 is void and unenforceable, Plaintiffs are entitled to a monetary penalty of $5,000 from each Defendant, and to an award of attorneys' fees.
PRAYER FOR RELIEF FOR RELIEF Plaintiffs respectfully request that this Court declare Valley Park Ordinance No. 1721, and its amendments as set forth in Ordinances No. 1723 and No. 1725, void, and that it enter a temporary, preliminary and permanent injunction restraining enforcement of the provisions of those Ordinances, and that under the Missouri Open Meetings Act, MO.R.STAT. § 610.027.3 this Court impose against each and every Defendant monetary penalties as provided for therein. Plaintiffs further pray for an award of attorneys' fees, and for their costs incurred herein.
Respectfully submitted,
B nez,# 0655
I artinez b ancave.com
athy At Wisniewski, #38716
kawisnie\vski@bryancave.com Elizabeth Ferrick, #52241 elizabeth. ferri ck@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
24

SAINT LOUIS UNIVERSITY LEGAL CLINIC
By: John ~. Am ann, #34308 ammannji@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
By: K en Tokarz, tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice to be filed) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
By:
Marie A. Kenyon, #360'
kenyonm@SLD.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
25

ITUARTE AND SfHULTE LLC

By:

\ (
\

!\\

\" '

ANTHONY B. RAMIREZ, P. C.
By: ~ e ~~ /J!r Anthony .. Ramirez, # 0169 AnthonyRamirez@ramirezlawfinn.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778 Attorneysfor Plaintiffs, Stephanie Reynolds Florence Streeter, and The Metropolitan St. Louis Equal Housing Opportunity Counsel, Inc. and ALAN BAKER
Attorney at Law 1620 South Hanley st. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314 Attorneyfor PlaintiffJames Zhang
26

02/21/2007 16:27 6362250643

CITY OF VALLEY PARK

PAGE 13

BILL NO. 1866

ORDINANCE NO. 1721

***************
AN ORDINANCE REPEALING SECTION 510.020 SUBSECTION 103.6.1 OF THE PROPERTY
MAINTENANCE CODE RELATING TO INSPECTIONS AND OCCUPANCY PERMITS
AND ENACTING A NEW ORDINANCE IN LIEU THEREOF RELATING TO THE SAME SUBJECT MATTER
***************

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section Oni
Section 510.020 Subsection 103.6.1 of the Code of Ordinances is hereby repealed.
Section Two
A new section to be known as USection 510.020 Subsection 103.6.1, Applications and Inspections" is hereby adopted as follows:
(a) It shall be unlawful for any owner or agent of real property containing a dwelling unit or units to permit or allow any person to occupy the dwelling unit or part thereof for any purpose until a certificate of occupancy has been issued by the Building Commissioner. Every owner, agent or manager of any dwelling unit shall inform the City whenever any portion of the building or dwelling unit becomes vacant, or that a change of occupancy in the building or unit is imminent, and the owner, manager or agent shall apply for an occupancy permit on such forms provided by the City. The City shall review the applicationr which shall set forth names, ages, cltizenships, and relationships for each proposed occupant, together with such identifying information that shall be required by the City. The Building Commissioner, consistent with federal law and Ordinance 1715, shall not Issue an occupancy permit and will deny the same if any alien unlawfully present in the UnIted States is a proposed occupant of the dwelling unit or units, and no Inspection shall be performed. When an alien Is a proposed occupant, the Building Commissioner shall verify with the federal government whether the alien is lawfully present in the

1
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CITY OF VAlLEY PARK

PAGE 14

United States, pursuant to 8 USC § 1373(c). The Building Commissioner shall make no Independent judgment of the legal status of any aHen. If the unit contains no proposed occupant who is an alien unlawfully present in the United States, an inspection shall be performed under the provisions of this article and, if compliance with this section is made, an occupancy permit shall be granted to the owner or his agent setting forth the occupantsl names, relationships, and number of occupants allowable at the premises.
(b) It shall be unlawful for any owner, agent or manager of a dwelling unIt or units to knowingly make any false statements in the application for occupancy as to the names[ ages, citizenship, relationships, identification or number of occupants who will occupy the premises.
(c) This section shall only apply prospectively, to occupancies commencing after the effective date of this ordinance.
(d) If the federal government notifies the City of Valley Park that it is unable to verify whether a proposed occupant who is an alien is lawfully present in the United States, the City of Valley Park shall nat deny the occupancy permit on that baSiS, and an inspection shall be performed.
(e) Any owner of real property containing a dwelling unit who is denied an occupancy permit, or any proposed occupant who is unable to lease a dwelling unit because the City of Valley Park has denied an occupancy permit concerning the OCCUpant, may challenge the denial of the occupancy permit before the Board of Adjustment of the City of Valley Park,
Missouri, subject to the right of appeal to the st. Louis County
Circuit Court. The determination of whether an alien is lawfully present in the United States shall only be made by the federal government. The Board of Adjustment may take judicial notice of any verification of the individual's status preVIously provided by the federal government and may request the federal government to provide automated or testimonial verification pursuant to S USC § 1373(c).
Section Tbre@
This Ordinance shall became effective from and after its passage and upon approval of the Mayor and upon the termination of any restraining orders or injunctions which are now In force in Cause No. 06CC-3802 now
2
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CITY OF VALLEY PARK

PAGE 15

pending In St. Louis County, Missouri In Division 13, and shall be applicable only to changes in occupancies made after the effective date hereof.
PASSED this 5th day of February, 2007.
APPROVED this I~day of FebruaryI 2007.

ATTEST:
~CI2Mfi::Uu~
F MAR ERITE WILBURN City Clerk

3
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02/21/2007 16:27 6362250643
"

CITY OF VALLEY PARK

PAGE 03

BILL NO. 1868

ORDINANCE NO. 1723

***************
AN ORDINANCE AMENDING BILL 1866, PROPOSED ORDINANCE 1721, PERTAINING TO THE
PROPERTY MAINTENANCE CODE RELATING TO INSPECnONS AND OCCUPANCY PERMITS BY CLARIFYING SECTION TWO AND SECTION THREE THEREOF

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

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
!legion Ong
Section Two of Bill 1866, proposed Ordinance 1721, is hereby amended by deleting the language in brackets and substituting in lieu thereof the language in bold:
A new section to be known as "Section 510.020 Subsection 103.6.1,
Applications and Inspections" is hereby adopted as follows;
(a) It shall be unlawful for any owner or agent of real
property containing a dwelling unit or units to permit or allow
any person to occupy the dwelling unit or part thereof for any purpose until a certificate of occupancy has been issued by the Building Commissioner. Every owner, agent or manager of any dwelling unit shall Inform the City whenever any portion of the building or dwelling unit becomes vacant, or that a change of occupancy in the building or unit is imminent, and the owner, manager or agent shall apply for an occupancy permit on such forms provided by the City. The City shall review the application, which shall set forth names, ages, cltlzenships, and relationships for each proposed occupant, together with such
identifying information that shall be required by the City. The
Building Commissioner, consistent with federal law [and
Ordinance 1715] and Ordinance 1122, shall not issue an occupancy permit and will deny the same If any alien unlawfully
present in the United States is a proposed occupant of the dwelling unit or units, and no inspection shall be performed. When an alien is a proposed occupant, the Building Commissioner shall verIfy with the federal government whether

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CITY OF VALLEY PARK

PAGE 05

This Ordinance sharr become effective from and after its passage and upon approval by the Mayor; prOVided! however, the City shall not enforce the provisions of Section Two as It pertains to the identification by citizenship of proposed occupantst the verification of alien status by City officials, the grant or denial of an occupancy permIt based on the Immigration status of an occupant and the false statement on applications as to citizenship until the termination of any restraining orders or injunctions now In force in Cause No. 06CC-3802 now pending in St. Louis County, Missouri, Division 13.
section Three
ThiS Ordinance shall be come effective from and after its passage and upon approval by the Mayor.
PASSED this I1tll day of February, 2007.
APPROVED this I~day of February, 2007.

ATTEST:
~~~ 'MARGERiTE WILBURN
City Clerk

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0%/27/2007 11:10 FA! 636 S30 1SS6

J RONALD LACEY. ATl'ORNEY

Ial 001

BIL.L. NO. 1871

ORDINANCE NO. 1725
***************

AN ORDINANCE AMENDING ORDINANCE 1723 PERTAINING TO THE EFFECTIVE DATES Of
THE PROPERTY MAINTENANCE CODe PROVIDING THAT THE ENFORCEMENT OF ORDINANCE 1721 . SHALL BECOME EFfECTIVe IMMEDIATELY

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

BE IT ORDAINED BY THE BOARD. Or ALDERMEN OF THE CITY OF
VAu.EY PARK, MISSOURI, AS FOLLOWS:

SectiDn Oo@

Section Two of Ordinance 1723 Is hereby amended by deleting Section
Two in Its entirety and, In lieu thereof, Inserting a new Sectlon Two as 1 follows: .

Section Three of Ordinance 1721 Is hereby amended by deleting Section Three therefrom and, in lieu thereof, lnsertlng a new Section Three as follows:

This Ordinance shall become effective from and after Its
passage and upon approval by the Mayor.

Section Two

This Ordinance shall become effective from and after its passage and

upon approval by the Mayor.

.

PASSED this d'l~ day of Februaryf 2007.
APPROvep this~day of FebruarYl 2007.

ATTEST:
4 MAZ ~LB~ UR~ N ~
City Clerk

EXHIBITC

/
'. ~.

BILL NO. 1851

ORDINANCE NO. 1708
•••••••••••••••••••••••••••••••••••

AN ORDINANCE RELATING TO lL-I;;EGAL-IMMIGRAlI0N-WITI1IN THE CITY OF VALLEY PARK, MO
••• **.*••••*.*.****.****••••***•••*

WHEREAS, the Board ofAldermen ofthe City of Valley Park finds that illegal immigration leads to higher crime rates, contributes to overcrowded classrooms and failing schools, and destroys our neighborhoods and diminishes our overall quality of life; and

WHEREAS, the City of Valley Park is empowered and mandated by the people of the City of Valley Park to abate the nuisance ofillegal immigration by aggressively prohibiting and punishing the acts, policies, people and businesses that aid and abet illegal aliens;

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

Section One

DEFINITIONS.

Whenever used in this chapter, the following terms shall have the following meanings:

"City" means the City of Valley Park, Missouri;

"Contract employer" means any person who obtains the services of one or more individuals through a day labor agency; and

"Vehicle" means a vehicle as defined in State or Missouri Vehicle Code as the same now reads or may hereafter be amended.

Section Two

BUSINESS PERMITS, CONTRACTS OR GRANTS.

Any for-profit entity, including acts committed by its parent company or subsidiaries, that aids and abets illegal aliens of illegal immigration shall be denied approval ofa business permit, the renewal of a business permit, city contracts or grants for a period not less that five (5) years from its last offense.

EXHIBITD

A. Aiding and abetting shall include, but not be limited to, the hiring or attempted hiring ofillegal aliens, renting or leasing to illegal aliens, or funding or aiding in the establishment ofa day laborer center that does not verifY legal work status .
.··B. Any act that aids aria aoetsUIegaliiHens wffflfntlie United States, not just
within the City limits, will constitute a violation.

Section Three

RENTING TO ILLEGAL ALIENS.

A. IIJegal aliens are prohibited from leasing or renting property. Any property owner or renter/tenantllessee in control ofproperty, who knowingly allows an illegal alien to use, rent or lease their property shall be in violation ofthis section.

B. Any person or entity that violates this section shall be subject to a fine of not less than Five Hundred Dollars ($500.00).

ENGLISH ONLY.

Section Four

A. The City of Valley Park declares that English is the official language of the City.

B. Unless explicitly mandated by the federal government, the State of Missouri or the City ofValley Park, all official city business, fonns documents, signage, telecommunication or electronic communication devices will be conducted or written in or utilize English only.

Section Five

SEVERABILITY.

Ifany part ofprovision ofthis 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.

Section Six

This ordinance shall become effective from and after its passage and upon approval by the Mayor.

· .'
PASSED AND APPROVED THIS 17TH DAY OF JULY, 2006

MAR-12-2007 14:24

STLOUIS-CO-21 JUDICIAL

3146158280 P.002

FILED IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURl

STEPHANIE REYNOLDS, et al.

)

)

MAR 1 2 2007

Plaintiffs)

)

)

and

)

JOAN M. GILMER
OIMUIT Ol.ERK, ST. LOUIS COIJN1Y

)

JAMES ZHANG,

) Cause No. 06-CC-3802

)

Intervenor,

) Division No. 13

)

v.

)

)

CITY OF VALLEY PARK, MO, et aI. )

)

Defendants.

)

FINDINGS OF FA,~T~ CONCLUSIONS OF LAW, ORDER AND JUDGMENT

This matter is before the Court on Plaintiffs' Motion for Judgment on the Pleadings and

Defendants' Motion to Dismiss Attorney Fee Claim. The Motions were called, heard and taken

under submission on February 26, 2007. The parties submitted a Joint Stipulation of Facts, and

the Court finds there is no significant factual dispute. On March 1,2007, the Court took further

submissions, argument and testimony on the limited issues raised in Plaintiffs' Motion for

Judgment on the Pleadings and Defendants' Motion to Dismiss Attorney Fec Claim. The Court

having heard the arguments ofcounsel, having read the memoranda and case law submitted,

having reviewed the evidence adduced and being now fully advised, enters the following

Findings ofFact, Conclusions ofLaw, Order and Jud£,rmenL

FINDINGS QF FA.CJ.:

1. Plaintiffs filed this case under the Missouri Declaratory Judgment Act) section

527.010, RSMo., et seq., seeki11g 10 have City of Valley Park Ordinance No. 1708 and Ordinance

No. 1715 declared void and unenforceable, and asking the Court for a temporary, preliminary,

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EXHIBITE

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3146158280 P.003

and permanent injunction enjoining enforcement of those Ordinances. Plaintiffs also assert a right to an award ofattorneys fees based on "unusual circumstances."
2. Defendants have filed a Motion to Dismiss for Failure to State a Claim or Cause of Action for Award of Attorney's Pees asserting that in litigation against a political subdivil$ion of the State, attorneys' fees cannot be awarded as "costs" under the Declaratory Judgment Act.
3. Ordinance No. 1708, enacted on July 16, 2006, prohibits any "for-profit entity" from "aid[ing] and abet[ting] illegal aliens or illegal immigration" and purports to penalize those who commit such acts by denying: business permits; the renewal of business permits; and city contracts and grants "for a period ofnot less that [sic] five (5) years from its last offense."
4. Ordinance No. 1708 also prohibits property owners or others "in control of property" from "leasing or renting" property to an "illegal alien" and purports to penalize those who commit such acts by a ~4fine ofnot less than Five Hundred Dollars ($500.00).)'
5. On September 26,2006, this Court entered a Temporary Restraining Order enjoining enforcement of Ordinance No. 1708. By agreement of the parties that order was continued until such time as this Court ordered it terminated, and it rcmains in effect today.
6. On September 26, 2006, just hours after this Court entered its Order enjoining enforcement ofOrdinancc No. 1708, Defendant City of Valley Park enacted Ordinance No. 1715, which expressly stated that "Sections One, Two, Three and Four of Ordinance No. 1708 are hereby repealed," leaving only the severability section of that Ordinance stilI viable.
7. Ordinance No. 1715 makes it "unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct <my person who is an unlawful worker to perform work in whole or part within the City," and provides that a violation of this provision which is not corrected ~~thin three (3) business days after notification of the
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violation by the Valley Park Code Enforcement Office" shall be punished by an indefinite and automatic suspension of that entity's business license.
8. Ordinance No. 1715 also makes it ''unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwellitlg unit/' and provides that a violation of this provision which is not corrected "after five (5) business days following receipt of written notice from the City that a violation has occurred" shall be punished by the suspension of the occupancy pem)it for the dwelling unit, and that during the period of such suspension the offending party <ishall not be permitted to collect any rent) payment, fcc, or other form of compensation from, or on behalf of any tenant or occupant in the dwelling unit," and "[1]n addition. the City of Valley Park shall not issue occupancy permits for any properties owned during the suspension period."
9. On September 27, 2006, this Court entered a Temporary Restraining Order enjoining enforcement of Ordinance No. 1715. By agreement of the paTties that order was continued until such time as this Court ordered it terminated, and it remains in effect tOday.
10. Defendant has represented to this Court that it recently repealed Ordinance No. 1715. and admitted into evidence the new ordinances only for the purpose of its argument on mootness. Plaintiffs have not amended their pleadings to put the issue of the validity of the new ordinances before the Court.
11. Defendant City of Valley Park is a city of the fourth class located in St. Louis County, Missouri.
12. Missouri statutes set forth the penalties and limitations which can be imposed for an ordinance violation by a fourth class city:

3
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For all ordinance violations the board of aldennen may impose penalties not exceeding a fine of five hundred dollars and costs~ or ninety days' imprisonmcnt, or both the fine and imprisonment.

MO.R.STAT. § 79.470.

13. Missouri statutes set forth the parameters under which a tenant can be evicted from a

leased unit:

A tenancy at will or by sufferance, or for less than one year, may be tcnninated by the person entitled to the possession by giving one month's notice, in writing, to the person in possession, requiring the person in possession to vacate the premises.

*

*

Except as otherwise provided by law, all contracts or agreements for the leasing renting or occupation of stores, shops) houses, tenements or other buildings in cities, towns or villages ... not made in writing. signed. by the parties thereto, or their agents, shall be held and taken to be tenancies from month to month., and all such tcnancies may be terminated. by either party thereto, or thc party's agent, giving to the other party, or the party's agent, one month's notice, in writing, of the party's intention to terminate such tenancy.

MO.R.STAT. § 441.060.

. .. a landlord or its agent who removes or excludes a tenant or the tenant's personal property from the premises without judicial process and court order, or causes such removal or exclusion. or causes the removal of the doors or locks to such premises, shall be deemed guilty of forcible entry and detainer ...

MO.R.STAT. § 441.233.

14. In their Motion Plaintiffs assert the Ordinances at issue are void because they conflict

with Missouri state law.

4
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CONCLUSIONS OF LAW 1. This Court has previously considered the issue of standing and determined Plaintiffs have standing to challenge the validity of Ordinance No. 1708 and Ordinance No. 1715 under the Missouri Declaratory Judgment Act. 2. Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, the Court finds and concludes under R.EJ., Tnc. v. City of Sikeston, 142 S.W.3d 744 (Mo. banco 2004), and Northeastern Florida Chapter of the Assoc. General Contractors of Amcrica v. City of Jacksonville, 508 U.S. 656, 66l-62 (1993), tills case is not moot. When a party flJes suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing the ordinance. Id. Furthermore, the Court finds the new ordinances are "sufficiently similar" to the old ordinances in that they are directed at the same class of people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct wjll continue. City of Jacksonville) sUflra, 508 U.s. at 662-63 and n. 3. 3. "[AJ motion for judgment on the pleadings should be sustained if. from the face of the
pleadings, the moving party is entitled to judgment as a matter of law." Madison Block Pharmacy, Inc. v. United Statcs Fidelity & Guaranty Co.• 620 S.W.2d 343. 345 (Mo. bane 1981).
Because "[t]he interpretation of an ordinance is a question of law," State ex reI. Sunshine Enterprise of Missouri, Inc. v. Bd. of Adjustment of the City of St. Ann, 64 S.W.3d 310,312 (Mo. banc 2002), this case is particularly well-suited for disposition by a motion fOT judgment on the pleadings.
4. A municipality can legislatively regulate its citizens only where the power is "granted
in express words," is unecessarily or fairly implied in or incident to" an express power, or is
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"essential to the declared objects and purposes" of the municipality. State ex rel. Curators of Univcrsi1Y of Missouri v. McRemolds. 193 S.W.2d 611, 612 (Mo. banc 1946); Premium Std. Fanns,Jnc. v. Lincoln Township of Putnam Cty.• 946 S.W.2d 234.238 (Mo. bane 1997).
5. "Any fair, reasonable doubt concerning the existence of power is resolved. by the courts against the corporation and the power is denied." Id.
6. As a fourth class city, Defendant City of Valley Park can enact and enforce only those ordinances which are Hnot repugnant to the constitution and laws of (his state." MO.R.5TAT. §79.110.
7. "A municipal ordinance must be in hannony with the general1aw of the state and is void if in conflict. In determining whether an ordinance conflicts with general laws, the test is whether the ordinance permits that which the statute forbids and prohibits. and vice-versa. The powers granted a municipality must be exercised in a manner not contrary to the public policy of the statc and any provisions in conflict with prior or subsequent state statutes must yield." Morrow v. Cit~ofKansas City. 788 S.W.2d 278,281 (Mo. bane 1990).
8. The express provisions of both Ordinance No. 1708 and Ordinance No. 1715 are not in harmony with and conflict with MO.R.STAT. § 79.470.
9. Ordinance No. 1708 conflicts with MO.R..STAT. § 79.470 in that it provides for a fine of "not less than Five Hundred Dollars ($500.00)," and the loss of a business pennit (or its renewal) for a violation of its provisions. These penalties are either expressly prohibited by, or not authorized by, the governiI1g state statute.
10. Ordinance No. 1715 conflicts with MO.R.STAT. § 79.470 in that it penalizes a violation of its provisions by suspending existing occupancy pennits, refusing the issuance of any new occupancy permits) prohibiting thc collection of rent or compensation, and by forcing a
6
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business to forego a business permit, or renewal of a business permit, for a period of "not less than five (5) years." These types of penalties are not authorized by the governing statute. ill addition, the monetary value of such penalties exceeds the $500 maximum fine authorized by Missouri law for an ordina.tlce violation under MO.R.STAT. § 79.470.
11. The express provisions of Ordinance No. 1715 also conflict with, and are not in hannony with, MO.R.sTAT. § 441.060 and MO.R.STA'l'. § 441.233. While the Ordinance provides penalties for any landlord who does not evict, within five days, a tenant found to be an "illegal alien," Missouri state law forbids and prohibits a landlord from evicting a tenant without at least 30 days notice (MO.R.STAT. § 441.060), and requires a landlord to use '1udicial process" before forcing any eviction (MO.R.STAT. § 441.233).
12. When the invalid provisions of an ordinance are so "connected and interdependent" with those which might be valid "that it cannot be presumed the legislature would have enacted one without the other," the entire ordinance should be declared void. Stine v. Kansas City, 458 S.W.2d 601, 60$ (Mo.App. 1970); see also, Missouri Association of Club Executives, Inc. v. State of Missouri, 208 S.W.3d 885,888-89 (Mo. bane 2006).
13. This Court fmds and concludes the penalty provisions of Ordinance No. 1708 and Ordinance No. 1715 are invalid due to cont1icts with Missouri state law, leaving the remaining provisions ineffectual due to lack of any means of redress. Accordingly, the Ordinances are void in their entirety.
14. Generally, courts have broad discretion to award attorneys fees as costs in an action brought under the Missouri Declaratory Judgment Act, section 527.100, RSMo., upon proof of "special" or "unusual circumstances:' See, David Ranken, Jr. Technical Institute v. Boykins, 816 S.W.2d 189, 193 (Mo.bane 1991).
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15. However~ in litigation against a political subdivision of the State of Missouri, the Court finds and concludes under Baumli v. Howard County, 660 S.W.2d 702 (Mo. 1983) and Tillis v. City of Branson, 975 S.W.2d 949 (Mo.App. S.D. 1998). that attorneys' fees cannot be awarded to a prevailing party as "costs'; under the Act.
16. Plaintiffs contend their request for attorneys' fees is viable since Defendant City of Valley Park is covered by insurance and cite MO.R.sTAT § 537.610, which provides that a governmental unit "may purchase liability insurance for tort claims...[and] [s]overeign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance." The Court concludes Defendant City ofVaIley Park's insurance coverage is not relevant in that Plaintiffs have not alleged a tort and the statute is addressed, by its own tenns, to the waiver of sovereign immunity.
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Judgment on the Pleadings is GRANTED. Judgment is hereby entered in favor of Plaintiffs and against Defendant City of Valley Park, and Ordinance No. 1708 and Ordinance No. 1715 are declared void. Pursuant to Mo.REv.STAT. § 527.080 and MO.R.erv.p.87.10) this Court orders that the temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance No. 1715 are hereby made permanent. Defendants' Motion to Dismiss for Failure to State a Claim or Cause of Action for Award of Attorneys Fees is GRANTED.
SO ORDERED:

Date cc: Attorneys of Record

Barbara W. Wallace, J udgt:

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'l'OTAT. P.()()~

« ..... •'."' •• _".J ....,," ....... ~~ .... " ............ " .. ,.... '., , .

IgS 'BILL NO. ' •

~

I'll ORDINANCE NO.

S

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

AN ORDINANCE REPEALING

SECTIONS ONE, TWO, THREE AND FOUR OF

L

ORDINANCE NO. 1708 RELATING TO ILLEGAL

IMMIGRATION WITHIN THE CITY OF VALLEY PARK, MO,

AND ENACTING A NEW ORDINANCE IN UEU THEREOF

RELATING TO THE EMPLOYMENT OF AND

HARBORING OF ILLEGAL AUENS

WITHIN THE CITY OF VALLEY PARK, MO

*******~************
,,'
BE IT' ORDAINED BY THE BOARD OF ALDERMEN OF THE CI1Y OF
, VALLEY PARK, MISSOURI, AS FOLLOWS:

Section One

Sections One, TWO, Three and Four of ,'Ordinance No. 1708 are hereby

repealed.

'

, Section Two

FINDINGS AND DECLARATION OF PURPOSE.

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

A. That state and federal law require that certain conditions be met before a person may be authorized to work 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 Jaw when present in the CIty of Valley Park.

C. That unlawful employment, the harboring of Illegal aliens In, ,dwelling units in the City of Valley Park, and crime committed by Illegal aliens harm the health, safety and welfare of authorized""US workers and legal residents in the City of Valley Park. 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, IncreaSI~nig_ _ _ _ _ _,

1
EXHIBITF

their costs and diminishing their avaflabllity to legal residents, and diminishes our overall qualify of life and provIdes concerns to the security and safety of the homeland.
D. That the City of Valley Park Is authorized to abate public nuisances and empowered and mandated by the people of Valley Park 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 Untied States Code Title 8, subsection 1324(a)(1)(A) prohibits the harborlng of illegal aliens. The provision of housing to i!legal 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 of crime, to enjoy the public services provided by this City without being burdened by the cost of providing goodsl support and services to aliens unlawfully present in the United States; and to , be free of tn~ debilitating effects on their economic and social well beil)9, Imposed by the influx of illegal aliens to the fullest extent that these goals can be achieved consistent with the ConStitution and Laws of the United States and the State of
Mis~:6u'ri . ) ...... ~'.y ....
G. Th.~ City shall not construe this ordinance to prohibit the ·fij)cjering of emergency medical care, emergency assistance, or :,:J.~!g'al assIstance to any person.
:".'
. Section Three
DEFINITIONS.
When used In this chapterl the following words, terms and phrases shall have the meanings ascribed to them herein, and shall be construed so as to be consistent with state and federal law, including federal immigratIon law:
A. "Business entity" means any person or group of persons performing or engagIng in any actlvltyl enterprIse, profession, or' occupation for gain1 benefit, advantage, or livelihood, whether for profit. or not for profit.
2

(1) The term business entity shall Include, but not be limited to, self-employed Individuals, partnerships, corporations, contractors, and subcontractors.

(2) The term business entity shall Include any business entity that possesses a business license, any business entity that is exempt by Jaw from obtaining such a business license, and any business entity that Is operating unlawfully without such a business license.

B. "City" means the City of Valley Park, Missouri.

C. "Contractor" mea"ns a person, employer, subcontractor or business entity that enters Into an agreement to perform any " ~ervice or work or to provide a certain produ~ 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" m~ans 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 untJl 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 workerll means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including, but not limited to, a minor disqualified by nonage, or an unauthorIzed alien as defined by United States Code Title 8, subsection 1324a(h)(3).

"F. "Work" means any job, talk, employment, labor, personal
services, or any other actIvity for which compensation"" Is
provIded, expected, or due, IncludIng, but not limited to, all" activities conducted by business entitles.

G. \\Basic Pilot Program" means the electronic verification of work

authorization program of the Illegal Immigration Reform and

Immigration responsibility Act of 1996, P.L. 104-208, Division C1 " Section 403(a); United States Code Title 8, subsection 1324a,

and operated by the United States Department of Homeland

Security (or a successor program established by the federal

" government.)

"

3

Section FQUt
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 license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, .affirming that they do not knowIngly utilize the services or hire any person who is an unlawful worker.
B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be Initiated by means of a written signed compla1nt to the Valley Park Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall Include an allegation which describes the alleged vlolator(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 Valley Park Code Enforcement Office shall, within three (3) business dayst request identify information from the business entity regardIng any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall' suspend the buSiness permit of any business entity which fails, within three (3) buSiness days after: receipt of the request, to provide. such Information.
(4) The Valley Park Code Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of .the violation by the Valley Park Code Enforcement Office.
(5) The Valley Park Code Enforcement Office shall not suspend the business license of a business entity if prior . to the date of the violation, the business entity had verified the work authorization of the alleg~d unlawful
4

J.~. -- ..... ....--.-....~,
If
r
I
i

worker(s) using the Basic Pilot Program.

(6) The suspension shall termInate one (l) business day after a legal representative of the busIness entity submits, at a City .office designated by the City Attorney, a sworn affidavit stating that the 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 th~ Valley Park Code Enforcement Office, In addition to the prescribed affidavit, documentation acceptab.le· to the City Attorney which confirms' that the business entity has enrolled in and will participate In the Basic Pilot Program for the duration of the validity of the business permit granted to the business entity.

(7) For a second or subsequent violation, the Valley Park Code Enforcement Office shall suspend the business permit of a business entrty for a period of twenty (20) days. After the (:!nd of the suspension period, and upon receipt of the presclibed affidaVit, the Valley Park Code Enforcement Office shall reinstate the bUSiness permit. The Valley Park Code Enforcement Office shall forward the affidavit, compla[ntl and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8,' section 1373. In the: case of an unlawful worker disqualified by. state law .not related to Immigration, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and assocIated documents to the appropriate state enforcement agency.

C. All agencies of the City shall enroll and participate In the BaSic Pilot Program.

D. As a condition for the award of any City contract or grant to a

. bUSiness entity for which the value of employment, l;;Jbor or,

personal services shall exceed $10,000, the business entity shall

provide documentation confirming its enrollment and partlcipa·

tion In the Basic Pilot Program.

.

" ....
5

Section Fiye

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 allen In the dwelling l!nlt, knowing or In reckless dIsregard of the fact that an allen 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 alten has come to, entered, or remains In the United States in violation of lawI shall be deemed to constitute harboring. To suffer or permit the occupancy of the dwelling unit by an illegal allen, 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 busrness day after receipt of a notice of violation from the Valley Park Code Enforcement 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 Valley Park Code Enforcement Office with Identity data needed to obtain a federa I verification of immigration status, beginning three (3) days after the owner receives written notice from the Valley Park Code Enforcement Office.

B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.

(1) An enforcement action shall be initiated by means of a·

written signed complaint to the Valley Park Code

Enforcement Office submitted by any 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

6
/

1 ,

on the basis of national origin, ethnlclty, or race shall be deemed Invalid and shall not be enforced.
(3) Upon receipt of a valid written complaint, the Valley Park 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 Valley Park 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 (5) business days following receipt of written notice from the City that a violation h.as occurred and that the Immigration status of any alleged Illegal allen 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 Valley Park Code Enforcement Office shall· suspend the occupancy permit for 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 l or on behalf of any tenant or occupant in the dwelling unit. In addition, the City of Valley Park shall not Issue occupancy permits for any properties owned during the suspension period. .
(6) The denial or suspension shall terminate one (1). busIness day after a legal representative of the dwelling unit owner submits to the Valley Pi;lrk Code Enforcement Office cit sworn affidavit stating that each· and ev.ery 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.
(7) The Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373.
(8) Any dwelling unit owner who commits a second or subsequent vIolation of thIs section shall be subject to a
7

,I

fine of Two Hundred Fifty Dollars ($250.00) for each separate violation. The suspension provisions of this section applicable to a first violation shall also apply.

(9) Upon the request ora dwelling unit owner the Valley Park

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 pres'ent in the United States has been

verified.

.

Section Six

CONSTRUCTION AND SEVERABIUTY

A. The requirements and obligations of this section shall be

Implemented In a manner fully consIstent with federal law

regulating Immigration and protecting the clvH rights ofal!

citizens and aliens.

'

"
B. If any parts of or any provision of this Chapter is In conflict or
inconsistent with applicable provisions of federal or state statutes, or is otherwise held to be Invalid or unenforceable by' any court ,of competent juri~dlction, such part or such provision shall be suspended and s4~ded by such applicable laws or regulations, and the re~:Uwef6f this Chapter shall not be
affected thereby.

Section Seven

This OrdInance shall become effectIve from and after its passage and

upon approval by the Mayor.

~~AY 5'~, PASSEP AND APPROVED THIS

OF

2006 •

.ATTEST:
~~
MARGRITE WILBURN City Clerk
8

DATE
. ~-
--;-_ _ _ _ _ _ _ _ _ (Date)

?~PerSOIlj9ousehOld~--:l Total Children 5
~t ~ifrenting list ~e of property owner below) lUJleofProperty Owner and Address .-;0::..-s-_A-.;,_/:..;.;.<«",,---+<~«~~--";_~'-"'-____"---_ _ _ _ __
,;." "

jgnature ofApplicant (s):
CERTIFY THAT I AM THE < (ATIQN TO BE TRUE AND

<

<

ABOVE INFORAND BELIEF: ..,-,-,<,-,n Jl:JJUJJ"-""'"

EXHIBITG

Ll ~ l . l' ~hU..f\ 'tfup~\,).\.~;j;1-;0'
DOCUMENTS REQUIRED TO APPLY FOR A VALLEY PARK OCCUPANCY PERMIT
Valley Park requires the following documentation for all applicants over the age of 18 applying for Occupancy.
1. Proof of Lawful Presence 2. Proof of Identity (including proof of name changes)
1. Proof of Lawful Presence for U.S. Citizens (for Non-U.S. Citizens
see Non-U.S. Citizens Proof of Lawful Presence sect/on on next page)
U.S. Citizen
One of the following: • U.S. Birth Certificate (certified with embossed or raised seal issued by
state or local government) • U.S. Passport (valid or expired) • Certificate of Citizenship • Certificate of Naturalization • Certificate of Birth Abroad
U.S. Citizens who have previously verified lawful presence, and the departmenfs record indicates such verification, will not be required to present proof of lawful presence.
Non-U.S. Citizen - See Non-U.S. Citizen Proof of Lawful Presence section
on next page
2. Proof of Identity (including proof of name changes) U.S. Citizen or Non-U.S. Citizen
• Provide Social Security Number, if one has been assigned; or • If a Social Security Number has not been assigned, the applicant must present a letter from the Social Security Administration (SSA) regarding the status of the applicant's Social Security Number.
Proof of Name Change: One of the following:
If the name on the document you present for proof of lawful presence does not match your current name, present one of the documents below showing your current name.
• U.S. Passport (valid or expired) • Social Security Card/Medicare Card • Certified Marriage License • Certified Divorce Decree • Certified Court Order • Certified Adoption Papers or Amended Birth Certificate
EXHIBITH

Proof of Lawful Presence for Non-U.S. Citizens

Immigration Status

Eligible for a Permit

Required Documents

All applicants must present the appropriate Immigration and Naturalization Service (INS), United States Citizenship and Immigration Services (USCIS), or other U.S. governmental documents, which indicate their current status or applicant status.

Lawful Permanent Resident (Resident Aliens)

YES

All documents must be valid at the time of application. Applicants will receive a license, nondriver license, or Instruction permit with an expiration date equal to the expiration date of the immigration document (not to exceed the term of the license, nondriver license or permit). Applicants whose immigration documents indicate an eXpiration date, as "Duration of Stay" will be issued a one-year license, nondrlver license, or permit.
_ One of the following:
• 1-551 card (Resident Alien Card) • Passport stamped "Approved 1551"
• Passport stamped ·Processed for 1-551"
• Re-entry Permit 1-327

Refugee

YES

• 1-94 stamped 'Processed for 1-551" Expiration dates do not indicate the expiration of legal permanent resident status.
_ One of the following: • Employment Authorization
Document 1-6888 or 1-766 • Refugee Travel Document 1-571 • Reception and Placement
Assurance Form
• Passport • 1-94 stamped as Refugee

Immigration Status

Expiration date of documents does not indicate the loss of Refugee status.

Eligible for

Required Documents

a Permit

Asylee

YES

Persons granted withholding of deportation or removal

YES

CUban/Haitian entrants

YES

_ One of the following: • Employment
Authorization Document 1-6888 or 1-766
• Refugee Travel Document 1-571
• Passport • 1-94 stamped as Asylee
Expiration date of documents does not indicate the loss of Asylee status. _ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-688B or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment AuthOrization Document 1-688B or 1-766
• Passport

Parolees Conditional entrants

YES YES

Self-petitioning abused spouses or children, parents of abused children, or children of abused spouses

YES

Lawful temporary residents

YES

Temporary Protected Status

YES

Persons granted deferred enforcement departure (OED)

YES

Persons granted family unity

YES

Persons granted deferred action status

YES

Persons under an order of supervision

YES

_ One of the following: • Employment
Authorization Document 1-6888 or 1-766
• Passport • 1-94 stamped as parolee
_ One of the following: • Employment
Authorization Document 1-6888 or 1-766
• Passport • \-94 stamped as Conditional Entrant
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-688B or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One ofthe following:
• Employment Authorization Document 1-6888 or 1-766

Persons granted extended voluntary departure YES

• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-688B or
1·766
• Passport

Immigration Status

Eligible for a Pennit

Required Documents

Applicants for adjustment of YES status

Persons in removal or deportation proceedings

YES

Persons granted a stay of YES deportation

Persons granted voluntary YES departure

A-1 Ambassador, public minister, career diplomatic or consular officer, or immediate family

_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-
6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-
6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One of the following:
• Employment Authorization Document 1-
6888 or 1-766
• Passport
_ Immigration documentation indicating status, and _ One ofthe following:
• Employment Authorization Document 1-
6888 or 1·766
• Passport
NO - Individuals with an "A" status can only be issued a Drivers License from the U.S. State Department.

A-2 Other foreign govemment official or employee. or immediate family

NO - We cannot issue a product to an A-2 except for a foreign military official and/or their dependents. Applicants must present proof of assignment.

_ Passport. _1-94, _ Assignment Orders

A-3 Attendant, servant, or personal employee of A-1 or A-2, or immediate family

YES

B-1

NO

Temporary Visitor for business

B-2

NO

Temporary Visitor for pleasure (tourist)

C-1

NO

Alien in transit through the U.S.

C-2

NO

Alien in transit to U.N. Headquarters district.

Travel limited to 25 mile radius of Columbus

Circle in New York

C-3

NO

Foreign govemment official coming to U.N.,

immediate family, attendants, servants, or other

personal employees of official in transit through

U.S.

0-1

NO

Alien crewmen

_ Passport, _'-94, _ Written verification showing proof of employment, and _letter from U.S. State Department stating applicant can be issued a MO leamer's Permit, MO Driver's license orMO 10 Card

Immigration Status

Eligible for a Pennit

Required Documents

E-1 Treaty-trader, spouse or child
E-2 Treaty-investor. spouse or child
F-1 Foreign academic student

YES YES YES

F-2 Spouse or child of F-1

YES

G-1 Principal Resident representative of a recognized foreign government to an intemational organization, staff or immediate family

_Passport. _1-94, and _ Written verification showing proof of emplo}'l11~nt
_Passport, _1-94, and _ Written verification showing proof of employment
_ Passport, _1-94, _'-20, and
- Written verffication of attendance
at the school listed on the 1-20
_ Passport, _1-94, and _ 1-20 of F-1, and _ Written verification of attendance
of school listed on the 1-20 of F-1
NO - Individuals with a "G" status can only be issued a Drivers license from the U.S. State Department.

G-2 Other representative of recognized foreign member govemment to an intemational organization. or immediate family

YES

G-3 Representative of non-recognized nonmember foreign government to an international organization. or immediate family

YES

G-4 International organization officer or employee.
or immediate family

YES

G-5 Attendant. servant. or personal employee of G-l. G-2. G-3 or G-4. or immediate family

YES

H-l B Alien in a Specialty Occupation (Profession)

YES

H-l C

YES

Nurses in Health Professional Shortage Areas

_ Passport. _1-94. _ Written verification showing proof of employment. and _letter from U.S. State Department stating applicant can be issued a 11.40 learner's Permit. MO Drivers license or 11.40 10 Card _ Passport.
_1-94. _ Written verification showing proof of employment. and _letter from U.S. State Department stating applicant can be issued a 11.40 leamer's Permit. MO Drivers License or 11.40 10 Card
_ Passport. _1-94. _ Written verification showing proof of employment. and _letter from U.S. State Department stating applicant can be issue<i a 11.40 leamer's Permit, 11.40 Drivers License or MO 10 Card
_Passport. _'-94. _ Written verification showing proof of employment. and _letter from U.S. State Department stating applicant can be issued a 11.40 leamer's Permit, MO Drivers License or 11.40 10 Card _ Passport.
_'-94. and _ Written verification shOwing proof of employment
_Passport. _1-94. and _ Written verification showing proof of employment

Immigration Status

Eligible for a Pennit

Required Documents

H-2 A Temporary Worker Performing Agricultural Services unavailable in the United States.
H-2 B Temporary Worker Performing Other Services unavailable in the United States
H-3 Alien trainees

YES YES YES

H-4 Spouse or Child of Alien Classified H-l NB, H-2 NB, or H-3

YES

_ Passport. _1-94. and
- Written verification
showing proof of employment _ Passport. _1-94. and
- Written verification
showing proof of employment
_ Passport. _1-94. and _ Written verification showing proof of emplo)ll!lent _ Passport.
_'-94. and _ Written verification showing proof of

employment of H

I

YES

Representative of foreign information media. spouse

and child

J-1

YES

Exchange visitor (may be student. trainee. worKftravel,

au pair, etc.)

J-2

YES

Spouse or child of J-1

K-1 Fiancee of U.S. citizen
K-2 Child of K-1
K-3 Spouse of U.S. citizen
K-4 Child ofK-3
L-1 A Intracompany Transferee (Executive, Managerial, and SpecialiZed Knowledge Personnel Continuing Employment with International Firm or Corporation

YES YES YES YES YES

L-1 B Intracompany Transferee (Managerial Capacity)

YES

l-2 Spouse or child of l-1 A or l-1 B

YES

_ Passport.
_'-94. and _ Written verification showing proof of employment _ Passport. _1-94, _ Written verification showing proof of employment or attendance at school, and
lAP-66 or OS-2019 _ Passport, _1-94. _ Written verification showing proof of employment or attendance of J-1, and _IAP-66 or OS-2019 ofthe J-1 _ Passport, and
- 1-94
_ Passport. and
- 1-94
_ Passport, and 1-94
_ Passport, and
- 1-94
_Passport, _1-94. and _ Written verification showing proof of employment
_ Passport, _1-94, and
- Written verification
showing proof of employment _Passport, _'-94. and _ Written verification showing proof of em!>loyment of l-1

Immigration Status
M-1 Vocational Student or Other Non-academic student
M-2 Spouse or child of M-1

Eligible
fora
Penni!
YES
YES

Required Documents
_ Passport. _1-94. _ 1-20, and _ Written verification of attendance at the school listed on the 1-20 _ Passport. _1-94. _1-20. and _ Written verification of attendance of the school listed on the 1-20 of M-1

NATO 1-7 North American Treaty Organization Representatives and dependents
N-B Parent of an Alien Classified SK-3 or SN-3

YES YES

N-9 Child of N-8 or of an SK-1. SK-2. SK-4. SN-1. SN-Z or SN-4

YES

0-1 Alien with extraordinary ability in the sciences. arts, education. business, athletics. arts. motion picture, or TV industry
0-2 Alien who accompanies and assists in artistic or athletic performances of 0-1 principal
0-3 Spouse or child of 0-1 or 0-2

YES YES YES

P-1 Athlete who competes individually or part of a team at internationally recognized level or entertainer who is part of a group that has received intemational recognition as outstanding for a sustained and substantial period of time (includes support personnel of entertainment groups)

YES

_ Passport. _ 1-94, and
Orders of principal
_ Passport. _1-94. and _ Written verification shOwing proof of emplOYment
_Passport. _1-94. and _ Written verification showing proof of employment of N-8 _ Passport, _1-94. and _ Written verification showing proof of employment
_ Passport. _1-94, and _ Written verification shOwing proof of employment
_Passport, _ 1-94, and _ Written verification showing proof of employment of 0 _ Passport. _1-94, and _ Written verification showing proof of employment

P-2 Individual artist or entertainment group in reciprocal exchange program between US and foreign-based organizations engaged in temporary exchange of artists or entertainers (includes essential support personnel)

YES

P-3 Individual or group artist or entertainer and accompanying aliens who are integral to the group's performance or will perform. teach. or coach under a culturally unique commercial or noncommercial program (includes essential
support personnel).

YES

_Passport. _1-94, and
- Written verification
showing proof of employment
_ Passport, _1-94, and
- Written verification
showing proof of employment

Immigration Status
P-4 Spouse or child of P-1, P-Z or P-3
0-1 International cultural exchange visitor (no derivative classification for dependents)

Eligible for a Permit

Required Documents

YES YES

_Passport. _1-94. and _ Written verification shOwing oroof of employment ofP
_Passport. _1-94. and _ Written verification showing proof of employment

Q-2 Participant from Ireland under the Irish peace process cultural and training program
Q-3 Spouse or child of Q-2

YES YES

R-1

YES

Minister or religious worker

R-2 Spouse or child of R-1

YES

S-5 S-6 Witness or informant
S-7 Qualified famity member of S-5 or S-6
T-1 Victim of human trafficking
T-2 Spouse ofT-1
T-3 Child ofT-1
T-4 Parent ofT-1
TN-1 NAFTA professional (Canada)

YES
YES YES YES YES YES YES

TN-2 NAFTA professional (Mexico)

YES

TD Spouse or Child of NAFTA Professional

YES

V-1 Spouse of a legal permanent resident alien
V-2 Child of a legal permanent resident alien
V-3 Child of a V-1 or V-2

YES YES YES

_ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proofofemploymentofQ-2 _ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proof of employment of R-1 _1-94,
_1-94,
- 1-94
- 1-94
- 1-94
- 1-94
_ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proof of employment _ Passport, _1-94, and _ Written verification showing proof of employment of TN _ Passport, _1-94
_ Passport,
- 1-94
_Passport, 1-94

Immigration Status

Eligible for a Permit Required Documents

WB

NO

Visitor for business (visa waiver program)

wr

NO

Visitor for pleasure (tourist in visa waiver program)

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

STEPHANIE REYNOLDS;

)

FLORENCE STREETER;

)

CASH FLO PROPERTIES, LLC;

)

JAMES ZHANG, and

)

THE METROPOLITAN ST. LOUIS

)

EQUAL HOUSING OPPORTUNITY

)

COUNCIL, INC.,

)

)

Plaintiffs,

)

)

)

v.

)

)

CITY OF VALLEY PARK, MO;

)

JEFFERY WHITTEAKER; JOHN BRUST;)

DANIEL ADAMS; RANDY HELTON; )

DON CARROLL; MICHAEL PENNISE; )

ED WALKER; STEVE DRAKE; and

)

MIKE WHITE,

)

)

Defendants.

)

Cause No. D'/ C- t. - 0 0 1'1.. 0-0 ' '. Division: \) I

PLAINTIFFS' MOTION FOR A TEMPORARY RESTRAINING ORDER

COME NOW Plaintiffs, and pursuant to MO.RCIv.P. 92.02, move this Court to enter a

temporary restraining order ("TRO") enjoining enforcement of Valley Park Ordinance No. 1721,

and its amendments as set forth in Valley Park Ordinances No. 1723 and 172SY Ordinance

No. 1721 is another in a series of Ordinances enacted by Defendants seeking to prohibit property

owners from renting (and now selling) property to anyone who the City of Valley Park

determines to be an "alien unlawfully present in the United States." Valley Park Ordinance

No. 1708 and Ordinance No. 1715 - similar in form, and identical in intent, to Ordinance

IIUnless otherwise noted, all references to Ordinance No. 1721 from this point forward are intended to also include the amendments to that Ordinance as set forth in Ordinance No. 1723 and Ordinance No. 1725.

1

No. 1721 - were declared void by the Circuit Court of St. Louis County on March 12, 2007, and their enforcement has been permanently enjoined. Enforcement of Ordinance No. 1721 should likewise be enjoined because its provisions: infringe the constitutionally granted federal immigration power which the United States Supreme Court has repeatedly held is reserved to the federal government, and conflict with federal immigration law; were enacted in excess of Valley Park's delegated authority; are arbitrary and unreasonable; are being enforced inconsistently with the intent of the legislative body which enacted them; serve no legitimate purpose; interfere with business expectancies; were enacted for a discriminatory purpose, have a discriminatory impact, and promote discrimination in housing, all in violation of the federal Fair Housing Act; are preempted by the federal Fair Housing Act; and were enacted in violation of the Missouri Open Meetings Act (alkla Sunshine Act).
A TRO is necessary because continued enforcement of Ordinance No 1721 will immediately and irreparably harm Plaintiffs in the following ways: rental/sales of properties have been, and will continue to be, inordinately delayed due to the verification procedures mandated by the Ordinance; Plaintiffs will be put at risk of being accused of violating federal fair housing laws as the applications of prospective tenantslbuyers who claim to be United States citizens are processed immediately, while those from a different national origin are delayed days and perhaps even weeks due to the procedures being employed to enforce Ordinance No. 1721; and Plaintiffs risk losing the goodwill they have developed over many years in their rental/property businesses. See Affidavits of Stephanie Reynolds, Florence Streeter, and Mira Tanna, attached hereto as Exhibits A, B, and C, respectively. For these reasons, as more fully detailed below, Plaintiffs respectfully request that this Court enter a temporary restraining order enjoining enforcement of Ordinance No. 1721.
2

PROVISIONS OF ORDINANCE NO. 1721 Ordinance No. 1721 was enacted as a provision of Valley Park's "Property and Maintenance Code." By its express terms, the provisions contained in that Code are intended to apply to "existing residential and nonresidential structures and all existing premises ..." The intent of the Code is "to ensure public health, safety and welfare insofar as they are affected by the continued occupancy and maintenance ofstructures and premises." Ordinance No. 1721 is not aimed at existing structures or premises; nor does it address the health, safety and welfare of the public insofar as these things are affected by structures and premises. Instead, Ordinance No. 1721: (1) mandates that when any household member of a potential lesseelbuyer is not a United States citizen a verification process must be followed before the landlord can have the premises inspected to ensure compliance with Code mandates and before the potential lesseelbuyer will be eligible for an occupancy permit; and (2) prohibits the Building Commissioner from conducting an inspection and issuing an occupancy permit if any member of the household of a potential lesseelbuyer is found to be an "alien unlawfully present in the United States." Under Ordinance No. 1721, if a potential lesseelbuyer admits on an occupancy application that one of his household members is not a United States citizen, the Building Commissioner is mandated to "verify with the federal government whether the alien is lawfully present in the United States." The Ordinance provides that "[t]he determination of whether an alien is lawfully present in the United States shall only be made by the federal government." If the federal government cannot verify that the alien is in this Country illegally, the Building Commissioner is required to perform an inspection of the premises, and he cannot deny an occupancy permit once the premises passes the inspection.
3

Defendants have repeatedly stated, in both court proceedings and publicly, that the intent of the legislature in enacting Ordinance No. 1721 (in lieu of its predecessors) was to take the burden off of landlords/sellers to prove a tenantlbuyer is lawfully in the United States, and to put the burden on the City of Valley Park to prove that a prospective tenantlbuyer is not lawfully in the United States. Despite this expressed intent, Defendant City of Valley Park and Defendant Mayor Jeffrey Whitteaker have concocted an enforcement scheme under which the burden effectively remains on landlords/sellers to prove, not only that a prospective tenantlbuyer is in this Country legally, but also to prove that every person who will live in the household of that prospective buyer/tenant is in this Country legally. As part of that enforcement scheme, landlords/sellers must provide the information listed in the mandate issued by Defendant City of Valley Park and Defendant Mayor Jeffrey Whitteaker entitled "Documents Required to Apply for a Valley Park Occupancy Permit." That mandate expressly indicates that a landlord/seller must provide, for every member of the household of a prospective tenantlbuyer, "Proof of Lawful Presence" and "Proof ofIdentity." See Exhibit H to Petition.
LIKELIHOOD OF SUCCESS ON THE MERITS Plaintiffs are likely to prevail on the merits of their claim on one or more of the following grounds: Immigration Preemption: Plaintiffs are likely to prevail on their claim that Ordinance No. 1721 is void because it usurps the exclusive federal authority to regulate immigration. More particularly, the immigration power is constitutionally reserved to the federal government, which has fully occupied the field. The United States Supreme Court has declared that the "[p]ower to regulate immigration is unquestionably exclusively a federal power." DeCanas v. Bica, 424 U.S. 351, 354 (1976). States, and a fortiori municipalities, may not arrogate to themselves the
4

regulation of immigration - even when states seek merely to "complement" federal law "or enforce additional or auxiliary regulations." Hines v. Davidowitz, 312 U.S. 52,66-67 (1941) (invalidating Pennsylvania alien registration law).
Moreover, when Congress occupies a field, state law in that area is preempted. See, e.g., Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 372 (2000). In this area, any state laws that add to Congress's "comprehensive legislative plan for the nation-wide control and regulation of immigration and naturalization" (Takahashi v. Fish & Game Comm'n, 334 U.S. 410, 419 (1948)), are therefore preempted. See, e.g., Hines, 312 U.S. at 67; League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 776 (C.D.Cal.) ("Congress has fully occupied the field of immigration regulation through enactment and implementation of the INA [Immigration and Nationality Act].")
Finally, even if constitutional preemption and "field" preemption were not each themselves wholly sufficient to doom the statute, Ordinance No. 1721 would still be preempted because it acts "as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress" in the area of immigration. Hines, 312 U.S. at 67. It conflicts with: Congress' considered provision of discretion to specifically designated agencies and officials responsible for administering the immigration laws, see, e.g., 8 U.S.C. § 1229b (providing for cancellation of removal in the discretion of the Attorney General); and the extensive federal procedures for determining immigration status, see, e.g., 8 U.S.c. §§ 1154, 1228-1252, 12551259;
Lack Of Anv Rational Or Reasonable Relationship To Statutory Scheme: The provisions of, and the means employed for enforcing, Ordinance No. 1721 - by which a property owner is required to provide information and documents proving a prospective tenant or buyer's
5

citizenship or lawful presence - bear no rational or reasonable basis to the purpose or intent of the Valley Park Property Maintenance Code. The Code is directed at ensuring that buildings and structures are safe for human habitation; not at regulating who can occupy a building or structure. Whether a potential occupant is lawfully in the United States or otherwise has no bearing on the safety of any structure or building. Ordinance No. 1721 is therefore void. See Jones. v City of Jennings, 595 S.W.2d 1, 3 (Mo.App. 1979) (ordinances enacted "without consideration of and in disregard of the facts and circumstances" are void);
Lack OfLegitimate Purpose: The clear and unequivocal intent of Ordinance No. 1721 as expressly stated in the Ordinance itself and as testified to by the City of Valley Park in other judicial proceedings - is to put the burden on the City to prove that a prospective tenantlbuyer is not legally in the United States, and to relieve the property owner of any obligation to prove that a prospective tenantlbuyer is legally in this Country. And, under the Ordinance, the only way that the City of Valley Park can prove that a prospective tenantlbuyer is unlawfully in this Country is by obtaining such information from the federal government. But, upon information and belief, the City of Valley Park has already been informed that the federal government cannot disclose to Valley Park whether any person is lawfully in the United States for the purposes outlined in the Ordinance. Thus, requiring a property owner to provide voluminous information relating to a person's citizenship and/or legal status serves no purpose, whatsoever, other than to harass the landowner and prospective tenantlbuyer. Indeed, under the terms of the Ordinance, even if a prospective tenantlbuyer stated he was not in this Country legally, Defendant City of Valley Park could not deny an occupancy permit based on that admission because the federal government will not verify that fact;
Exceeding Delegated Powers: Plaintiffs are also likely to prevail on the merits of their
6

separate claim that Ordinance No. 1721 is void because Defendants exceeded their delegated powers in enacting it. "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied." State ex reI. Curators of Univ. of MO v. McReynolds, 193 S.W.2d 611, 612 (Mo. en banc 1946) (quoting Dillon, Municipal Corporations § 237 (1911); see also Premium Std. Farms, Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234,238 (Mo. en banc 1997) (same). Defendants have been delegated no power to regulate immigration. Nor have they been delegated any power which could conceivably be interpreted to allow them to use the "Property and Maintenance Code" to prohibit a specific class of people from occupying buildings in Valley Park. Furthermore, Defendants lacked any factual basis for justifying the enactment of Ordinance No. 1721;
Interference With Legitimate Business Expectancies: Under Ordinance No. 1721, as stated and enforced, a land owner cannot have a property inspected for compliance with legitimate Code requirements until after: first, the landowner provides voluminous documentation to Defendant City of Valley Park identifying the specific individual(s) who will occupy each property leased or purchased, and proving that each of them is lawfully present in the United States; and second the City approves each specific individual who has applied to occupy the property. The process of identification of specific individuals and their approval for occupancy has taken multiple days, after which an inspection is then done and, if any legitimate
7

Code violations are found, the process is delayed further while the Code violations are corrected and a re-inspection occurs. The inordinate delay resulting from the means employed for enforcing Ordinance No. 1721 interferes with the legitimate business expectancies of Plaintiffs;
Improper Use Of Police Power: Defendant City of Valley Park cannot enforce Ordinance No. 1721 as originally contemplated because there is no means for the "Building Commissioner" to fulfill his duty of "verify[ing] with the federal government whether [a prospective tenant or property buyer] is lawfully present in the United States pursuant to 8 USC § 1373(c)." As a result, Defendant City of Valley Park has, contrary to prior representations made in Court documents and Court testimony, put the onus on property owners to supply voluminous documentation from which a determination of legal status can be made. This employed means of enforcement not only unreasonably interferes with the property rights of Plaintiffs, it is contrary to that contemplated by the Ordinance itself. It is thus not a legitimate exercise of police power;
Improper Purpose In Enactment: Plaintiffs are also likely to prevail on their contention that Ordinance No. 1721 is void because it was enacted for a discriminatory purpose. In prior deposition testimony, all Defendants admitted that Defendant Mayor Jeffery Whitteaker was the sole impetus for Valley Park's enactment of ordinances directed at "illegal aliens." And, Defendant Whitteaker has publicly admitted that Valley Park's "illegal alien" ordinances are directed at a specific class of people based on their national origin, i.e., those of Hispanic descent. More specifically, Defendant Whitteaker has publicly stated that Valley Park's Ordinances are aimed at alleviating "overcrowding" which occurs when "Cousin Puerto Rico and Taco Whoever" move into dwelling units occupied by "one guy and his wife that settle down here, [and] have a couple of kids." Because Ordinance No. 1721 was enacted for a
8

discriminatory purpose, it violates the Fair Housing Act, 42 U.s.c. §§ 3601-19; Improper Discriminatory Impact: Ordinance No. 1721 is also void because it has a
discriminatory impact. The Ordinance provides for a procedure whereby only those persons who are not citizens of the United States are subject to a burdensome verification process, and they are required to undergo this verification process even if they are in this Country lawfully. This verification process results in an inordinate delay in the issuance of occupancy permits. Thus, not only are non-citizens more likely to lose housing opportunities, property owners are more likely to avoid renting/selling to them to avoid the lengthy and cumbersome verification process. This discriminatory impact constitutes a separate and independent violation of the Fair Housing Act, 42 U.S.C. §§ 3601-19;
Fair Housing Act Preemption: Ordinance No. 1721 also conflicts with the Fair Housing Act, 42 U.S.C. § 3601, et seq. ("FHA"). The FHA expressly provides that "the 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." 42 U.S.C. § 3615. Because of it discriminatory origins and its discriminatory impact, Ordinance No. 1721 is preempted by the FHA. See 42 U.S.C. § 3615; Geier v. American Honda Motor Co., Inc., 529 U.S. 861, 873 (2000) (state law is preempted if it "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress");
Due Process Violations: Ordinance No. 1721 is also void because the means employed to enforce it violate Article I, § 10 of the Constitution of the State of Missouri, as well as the Fourteenth Amendment of the United States Constitution, which guarantee that no person shall be deprived of "life, liberty, or property without due process of law." The means employed to enforce the Ordinance has caused unreasonable and unwarranted delays. These delays, in turn,
9

result in a loss of tenants and potential property buyers. IRREPARABLE HARM AND THE BALANCE OF THE EQUITIES
In prior court proceedings involving these exact same parties, at the temporary injunction phase of the litigation, the Circuit Court of St. Louis County was faced with the identical issue of: Will Plaintiffs be irreparably harmed if a temporary injunction is not entered enjoining enforcement of ordinances which penalize them in their rental business if their tenants or prospective tenants are unlawfully present in the United States? In that prior court proceeding, the Court answered this issue in the affirmative, and granted Plaintiffs a temporary injunction. The Court subsequently made that temporary injunction permanent when it entered a final judgment in favor of Plaintiffs and against Defendants. See Exhibit E to Petition. Under principles of issue preclusion, Defendants are thus barred from contesting the element of irreparable harm here. See, e.g., Woods v. Mehlville Chrysler-Plymouth, Inc., 198 S.W.3d 165, 168 (Mo.App. 2006).
Even if issue preclusion were not applicable here (which it is), entry of a temporary injunction would still be warranted because it is clear that, without one, Plaintiffs will be irreparably harmed. Plaintiffs are property owners in Valley Park who regularly lease residential dwelling units, and a fair housing agency which is charged with investigating and eliminating housing discrimination and educating the public about fair housing matters. There is no adequate remedy at law to protect Plaintiffs from the burdensome and unwarranted practices being utilized by Defendants to enforce Ordinance No. 1721. If Ordinance No. 1721 continues to be enforced under the current scheme, Plaintiffs will suffer: a loss of prospective tenantslbuyers due to the inordinate delays caused by Ordinance No. 1721; and a loss of good will in their rental businesses due to having to seek burdensome verification of citizenship status
10

and/or lawful presence. Such damages cannot be compensated by monetary awards.
Finally, the balance of equities and the public interest favor injunctive relief. Plaintiffs
and their prospective tenants are being subjected to ongoing diminution of their livelihoods and
threat of severe sanction, while the putative benefits of the Ordinance are illusory.
WHEREFORE, Plaintiffs respectively request that this Court enter a temporary
restraining order ("TRO") enjoining enforcement of Valley Park Ordinance No. 1721, and its
amendments as set forth in Valley Park Ordinances No. 1723 and 1725.
Respectfully submitted,
By: arti ez, #30655
1m inez Kathy A. sniewski, #38716 kawisniews i@bryancave.com Elizabeth Ferrick, #52241 elizabeth. ferrick@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square st. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannji@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
11

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice to be filed) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLD.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte j@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfinn.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
Attorneys for PlaintiffS, Stephanie Reynolds Florence Streeter, and The Metropolitan St. Louis Equal Housing Opportunity Counsel, Inc.
and
12

ALAN BAKER
Attorney at Law 1620 South Hanley St. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314 Attorneyfor Plaint~ffJames Zhang
13

Exhibit A AFFIDAVIT Before me, the undersigned authority, personally appeared Stephanie Reynolds, who, being by me duly sworn, deposed as follows: 1. My name is Stephanie Reynolds. I am a resident of the City of Valley Park Missouri. 2. I am a business owner and landlord in the City of Valley Park, Missouri. My husband, William, and I are the sole owners of the Valley Deli Convenience Store, under our company KOBASA, Inc. We are also, individually, the owners of 18 rental units within the City of Valley Park. 3. This affidavit summarizes information I have obtained and events I have witnessed with regard to ordinances in the City of Valley Park concerning illegal immigrants and the new process for obtaining occupancy permits. The information in this affidavit is not meant to encompass all of the events I have witnessed or information I have knowledge of at this time. 4. On Tuesday February 27,2007, before Ordinance 1721 became enforceable, I submitted an occupancy permit application for my property on 314 St. Louis Avenue. For this application I was required to submit the name, driver's license number, and dates of birth for the potential occupants ofthis property. On this evening, following the submission of my occupancy permit application, the City of Valley Park voted to make Ordinance 1721 enforceable. 5. On the following day, February 28,2007, I went to City Hall and requested an updated occupancy permit application form and instructions, for the purpose of conforming to the new requirements under Ordinance 1721. I was informed by City officials that they did not have a new form, or directions, for compliance with the new ordinance.

6. On Friday March 2, 2007, I returned to City Hall and renewed my request for the new occupancy form and any accompanying instructions. I was provided with a form titled "Application for Residential Occupancy Permit." It required me to provide the City with the names, birth dates, social security numbers, and relationships of prospective tenants, and whether they claimed to be U.S. citizens. The form also directed me to provide a copy of the prospective tenant's driver's license. I asked Roxanne Ruppel, a City official, ifthere was any further instruction she could provide to me. She said that she "did not know how it works," that she had not yet spoken with IeffSchaub, the City's Building Commissioner and Inspector, and that they would "figure it out later."
7. Also on March 2nd, after speaking with Roxanne, I spoke to IeffSchaub. I asked Mr. Schaub about the procedure for approving the occupancy permit. He said that it "wouldn't take long to check everybody" and that they would check everything "through the computer," and that Cassy Kollmeyer, the City Court Clerk, "would take care of it." He told me that the City would be "on a learning curve for the next week or so," but that the only time delay would be if the "computer system" went down. He also told me to be sure to send applicants to City Hall with "someone who knows how to speak English, because we don't have any interpreters and we don't need any interpreters." He further informed me that "English is the language up here," under previous immigration ordinance 1708. I also asked Mr. Schaub what the procedure entails ifI were to sell a home, as opposed to renting it. He told me I could sell a house "just like usual," and that the new owners would have to obtain the occupancy permit. If the owner were "to come back illegal" the City would not grant them the occupancy permit. He was, however, unable to

explain the repercussions if someone were to have already purchased a house and then became unable to obtain the occupancy permit.
8. On Monday March 12, 2007, at approximately 11 :00 am, I received a call from my employee at the Valley Deli that there were 3 police cars at the home of one of my tenants of Hispanic origin, who lives at 316 St. Louis Avenue, two doors down from the Deli. When I arrived at the tenant's house, the police were no longer there. I then proceeded to City Hall to inquire why the police had been to my tenant's house, where I met Officer Templeton. I asked Officer Templeton what had happened, and he responded that he'd received a call that "someone suspicious was walking around the house" and that the caller was "afraid this person would break into the house."
9. At around 4:00 pm this same day, March 12, I was at the Valley Deli and witnessed an officer writing down the license plate number of one of my regular customers of Hispanic origin. When my customer left the Deli, I witnessed that he was immediately pulled over by the officer in front of City Hall, a block away. The officer proceeded to ask my customer ifhe "was from Mexico," and ifhe "had papers." The officer's badge number was 3575, and car number was H538. It is my belief that these March 12th incidents were directly related to both the passage of immigration ordinances with the City of Valley Park and to the ruling issued against the City on that same day by the St. Louis County Court, regarding my challenge to the City'S previous immigration ordinances.
10. I have spoken with leffSchaub on several occasions about the occupancy permit process. On each occasion he has relayed to me that the City "has a computer program to run the information through" in order to determine the citizenship status of a tenant. Valley Park has

otherwise provided me with no instructions or guidance about how to submit applications for tenants beyond what appears on the "Application for Residential Occupancy Permit" form.
11. I have read Ordinance 1721 regarding illegal aliens. I find it to be unclear and difficult to understand.
12. Ordinance 1721 has interfered with my ability to rent my property, and has caused KOBASA, Inc. and me to lose additional business due to bad will created by both the City of Valley Park and City officials in relation to the immigration ordinances, due to a diminished prospective client base, and due to the delay in time usually needed to rent my property. I fear that my customers have been and will continue to be intimidated by the police and city officials, further resulting in a direct loss of income to my store.
13. In recent months, I have had one tenant vacate their rental unit as a direct result of the immigration ordinances enacted in the City of Valley Park. I have also lost potential tenants as a direct result of the enactment of these ordinances, and further have difficulty renting unoccupied units because of a decreased interest in renting in Valley Park on the part of prospective tenants.
14. I have never based my decision whether to rent to a prospective tenant upon their race, national origin, or ability to speak English. As a general business practice I do not inquire into the legal status of my tenants or applicants. Further, I am not even aware as to how I might verify an individual's immigration status, and I am not familiar with immigration law.
15. I am dismayed by the unlawful and discriminatory actions of the City of Valley Park and its officials. I feel that if Ordinance 1721 is not repealed, I will continue to lose business and revenue as both a landlord and as a business-owner and operator in the City of

Valley Park. I am also concerned that landlords in Valley Park will be forced to discriminate against Hispanics in attempting to comply with City immigration ordinances.
16. Because I am a business owner and a landlord I worry that I will be penalized with fines, jail time and an inability to obtain the necessary permits from the City because of these ordinances and their effect, and because of the practices of the City of Valley Park.

The undersigned swears that the matters set forth in the foregoing affidavit are true and correct according to the undersigned's best knowledge and belief. Subject to the penalties of making a false affidavit or declaration.

STATE OF MISSOURI

)

C~ ) SS. OF ST. LOUIS )

Stephanie Reyolds, of lawful age and being first duly sworn upon her oath, states that she has read same and that the statements contained therein are true and correct to the best of her knowledge, information and belief

l ofQ~ _____Subscribed and sworn to before me this day

,2007.

(Y"O, ~U-(jrn; f

•

I...--

Notary PubliC-Notary Seal State of Missouri, Jefferson County My Commission expires Aug 2. 2008

Exhibit B AFFIDAVIT Before me, the undersigned authority, personally appeared Florence Streeter, who being by me duly sworn, deposed as follows: 1. My name is Florence Streeter and I am 46 years old. 2. This affidavit summarizes information I have obtained and events I have witnessed with regard to ordinances of the City of Valley Park regarding illegal immigrants and the new process for obtaining occupancy permits. The information in this affidavit is not meant to encompass all of the events I have witnessed or information I have knowledge of at this time. 3. I am the sole owner of Cash Flo, LLC, properties. Cash Flo Properties and I, as an individual, own several rental units in Valley Park, as well as a commercial rental space which includes a tenant which conducts business in Valley Park and surrounding communities. I also own several rental units in neighboring Fenton and Pacific, Missouri, as well as rental units in Jefferson and Franklin Counties, in Missouri. 4. I have applied for numerous residential occupancy permits in the past from officials at the Valley Park City Hall. In my experience, occupancy permits are issued within one business day following the application being made at City Hall. 5. On February 28,2007, the day after Ordinance 1721 became enforceable, I requested that the City of Valley Park provide me with forms and instructions to be able to apply for an occupancy permit for my properties under the new law. City officials could not provide me with any forms or directions about how to comply with the new ordinance.

6. On March 2, 2007, I again requested that City officials provide me with the necessary forms and directions to apply for an occupancy permit. A city official provided me with a one page form labeled "Application for Residential Occupancy Permit" which required me to provide the City with basic information about the property, and the names, birthdates, social security numbers, and relationships of those in the household, and whether the person applying for the occupancy permit claimed to be a U.S. citizen. The form also required me to provide a copy of the prospective tenant's driver's license.
7. On Wednesday, March 7,2007, I submitted to City Hall an "Application for Residential Occupancy Permit," along with a copy of the driver's license of the prospective tenant, Ramon Gallardo. The application was for occupancy of a property which I own at 701 Benton Street in Valley Park.
8. Since I had not heard about approval of my application yet as of Friday, March 9, I went to City Hall that day. Roxanne Ruppel, who is the Assistant to the Mayor of Valley Park, told me the City h~d to purchase a "new system" but that they would have it up and running shortly and that she would have an answer on the permit for me by the end ofthe day. I understood the "new system" to be one that would tell the City a person's legal status. Then at 3:30 p.m. on March 9 Roxanne left a message on my phone that she would not have an answer that day.
9. On Monday, March 12, I went to City Hall to check on the status of the application. I was told by a city official that the "system" Valley Park had purchased could only be used by employers checking a person's legal status and that they discovered it could not be used to check

on prospective tenants. Because the application for the occupancy permit for the first family was not being approved, at that time, 1 submitted a second Application for Residential Occupancy Permit, along with the driver's license for a different applicant. A city official told me the application would not be processed until 1provided a driver's license for the other adult who was listed as a member of the household. 1was told that the City could not utilize the federal system it wanted to use to check the legal status of applicants and that the City was adopting a new application system. 1 was handed a document entitled, "Documents Required to Apply for a Valley Park Occupancy Permit." This is a nine page document and 1 do not understand its purpose or the wording of the document.
1O. When 1 submitted the second application for the second family, officials initially indicated it would not be a problem as the application indicated that applicant was a United States citizen.
11. During my most recent visit to City Hall, Roxanne Ruppel stated to me, regarding the new application system, "I know it's confusing." She also stated, "I don't understand it either."
12. In recent months, 1 have had two vacancies in residential rental property in Valley Park. 1 eventually rented the units for $100 less than the original rent. 1was forced to do so to attract tenants because the pool of renters interested in renting in Valley Park has decreased since the City began adopting ordinances regulating illegal aliens.
13. Ordinance Number 1721 has interfered with my ability to rent my property, and will cause Cash Flo Properties and me to lose additional business due to a diminished prospective client base and due to the delay in the time usually needed to rent my property.

14. I have read the Ordinances 1721 regarding illegal aliens. The language is vague to me and I don't understand it.
15. I have never based my decision to rent or not rent any of my property to any particular individual based upon race, national origin or ability to speak English. I do not know the legal status of my tenants or applicants, and in general as a business practice I do not inquire as to any tenant's immigration or legal status. I am in fact not even aware how to go about checking an individual's immigration status, and I am not familiar with U.S. Immigration law.
16. Valley Park has provided me with no instructions or guidance about how to submit applications for tenants, other than handing me the forms attached to this affidavit.
17. I am appalled at the unlawful and discriminatory actions of Valley Park and its officials. I feel that if these Ordinances are not repealed, my business will suffer further loss. I feel the reputation of Valley Park will continue to suffer, which in turn will bring down the value of my properties. I am also concerned that landlords in Valley Park will be forced to discriminate against Hispanics if they must abide by these ordinances.
18. Because of my ownership interest in commercial and residential real estate, I fear penalties, including jail, fines, and inability to obtain necessary permits from the City due to the effect of these ordinances and the practices of the City of Valley Park.

The undersigned swears that the matters set forth in the foregoing affidavit are true and correct according to the undersigned's best knowledge and belief Subject to the penalties of making a false affidavit or declaration.

c1~.TE;F MlSSOURl

)

) SS.

,

OF ST. LOUIS

)

Florence Streeter, of lawful age and being first duly sworn upon her oath, states that she has read same and that the statements contained therein are true and correct to the best of her knowledge, information and belief.

~ Of~ _ _ _ _ _Subscribed and sworn to before me this day

,2007.

~~

My commission expires:

-

JULIE LOCKHART

~

Notary Public-Notary Seal

~

State of Missouri, Jefferson County

My Commission Expires Aug 2, 2008

Exhibit c
AFFIDAVIT Before me, the undersigned authority, personally appeared Mira Tanna, who, being by me duly sworn, deposed as follows: 1. My name is Mira Tanna. I am Assistant Director of the Metropolitan st. Louis Equal Housing Opportunity Council (EHOC). 2. EHOC is a nonprofit corporation organized under the laws of Missouri; it is charged by its bylaws with ensuring equal access to housing for all peoples through education, counseling, investigation, and enforcement. 3. In our view, the intent of the Valley Park ordinance relating to illegal immigration is to exclude and dissuade Hispanics from residing within the City. Remarks made by Mayor Whitteaker are evidence of his intent to exclude Hispanics, even legal residents and U.S. citizens, such as Puerto Ricans, from Valley Park. Further, tenants and potential homeowners who face scrutiny over their immigration status are likely to avoid living in Valley Park; even where the City may otherwise be their chosen home. 4. It is also our view that the ordinance promotes discrimination in the provision of housing, thereby frustrating our organizational mission. Out of fear of prosecution, landlords are likely to refuse to rent to a prospective tenant who is not proficient in English, or whose appearance indicates that they might be foreign born. In our experience, individual immigrants who have been injured as a result of housing discrimination, including as it relates to the passage of this Ordinance, are often unable to vindicate their own rights because of limited English proficiency, out of fear, or out of a lack of confidence in reporting their complaint to a governmental authority.

5. We believe that Ordinance 1721 has a disparate impact on persons based on their national origin. Persons who are U.S. citizens are granted occupancy permits immediately, provided the unit passes inspection; whereas non U.S. citizens must go through a lengthy verification process before the unit can be inspected and an occupancy permit can be acquired. This procedure could result in the delay or loss of housing to non-citizens legally present in the United States.
6. The Valley Park ordinance relating to illegal immigration has caused us to devote scarce resources to conducting outreach and educational activities in the Valley Park area and in the immigrant communities to ensure people are aware of their fair housing rights, to educating housing providers in Valley Park as to their responsibilities under the Fair Housing Act, and to meeting with local organizations and individuals concerned about the impact of the ordinance on immigrant communities. EHOC staff met and spoke to real estate agents, members of the St. Louis Association of REALTORS, and to landlords in Valley Park concerning this ordinance. EHOC staff produced flyers and leafleted at religious services in the immigrant community and met with various community organizations concerned about this issue. EHOC staff met with members of the Department of Justice Community Relations Service to attempt to resolve the issue without recourse to litigation. EHOC staff contacted residents of Valley Park by telephone and email to educate them about this issue. EHOC staff contacted international student offices at various colleges and universities in the area. EHOC staff sent out newsletters (print and electronic), sent a letter to the editor and provided educational information on our website related to this ordinance in Valley Park. EHOC intends to conduct future outreach, educational and enforcement activities now that the ordinance has taken effect.

7. The ordinance has further frustrated our mission by reducing the amount of time and resources we have available to dedicate to the investigation of fair housing complaints, and to the adequate counseling of complainants. As a result, we have further diverted focus from planned audits.

The undersigned swears that the matters set forth in the foregoing affidavit are true and

correct according to the undersigned's best knowledge and belief. Subject to the penalties of

making a false affidavit or declarations

~v~

Affiant

STATE OF MISSOURI ) ~ )SS.
CITY OF ST. LOUIS\ ) )
/'~~flawful age and being first duly sworn upon her oath,
states that she has read same and that the statements contained therein are true and correct to the
best of her knowledge, information and belief.

F Subscribed and sworn to before me this !,,-\.i1'-day of 0

,2007.

My commission expires:

ALYSSA M. OWENS

Notary Public - Notary Seal

State of Missouri

Commissioned for St. Louis City

My Commission ~l(pires: March 05,2011

Number'

7

~\'n' Ow<M.LJ
Notary Public

 
 APR-05-2007 13:42
.,

STLOUIS-CO-21 JUDICIAL

3146158280 P.002

IN THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI
21st JUDICIAL CIRCUIT

Stephanie Reynolds, et aI., Plaintiffs,
vs City of Valley Park, Mo, et aI.,
Defendants.

)
) April 5, 2007 ) ) 07CC-1420 ) ) Division 7
)
) )

. ta Onl
APR 0 5 Z007 1I/"IlUlfJlOl~AfNRK,M1I.1.QL/IO.MUIISiRCOUNTV

TEMPORARY RESTRAINING ORDER
This matter comes before the court on Plaintiffs' Motion for a Temporary Restraining Order with notice to counsel for Defendants. Defendants consent to hearing of plaintiffs' motion on April 5, 2007. Plaintiffs appear by counsel. Defendants appear by counsel. The court having considered Plaintiffs' Motion for a Temporary Restraining Order and exhibits attached thereto, and the court having taken judicial notice of the court file in Cause Number 06CC-3802, and the court having further considered argument of counsel and Supreme Court Rul2 92, and the court being advised in the premises finds and concludes that:
1. Valley Park Ordinance No. 1721, as amended in Ordinance Numbers 1723 and 1725, is being enforced in the City of Valley Park, Missouri.
2. Plaintiffs have demonstrated that immediate and irreparable injury. lOSS, or damage will result in the absence of relief and that plaintiffs are likely to succeed on the merits of their claim that Ordinance Number 1721, as amended, is void, for one or more of the following reasons: (1) the ordinance usurps exclusive federal authority to regulate immigration, and is thus preempted by federal law under the Supremacy Clause, U.S. Const., Art. VI, C1.2; (2) the ordinance bears no rational or reasonable relationship to the purpose or intent of the Valley
Page 2of 6received on 4/5/20071 :45:51 PM [Central Daylight Time[ for 5528523,

APR-05-2007 13:42

STLOUIS-CO-21 JUDICIAL

3146158280 P.003

Park Property Maintenance Code; (3) the ordinance serves no legitimate purpose and impedes the operation of plaintiffs' businesses; (4) the ordinance was enacted in violation of the limited powers delegated to the City of Valley Park by the Missouri Legislature; (5) the ordinance interferes with plaintiffs' property rights; (6) the ordinance promotes discrimination in housing and violates, and is preempted by, the Fair Housing Act; and, (7) the ordinance deprives plaintiffs of property rights without due process because it imposes a condition precedent, I.e., a determination by the federal government as to whether a proposed occupant of property is an alien lawfully present in the United States, that at best, creates unreasonable delay in the process of obtaining a permit to occupy property, and at worst, prevents a final decision as to whether or not an inspection of property will be done and whether or not a permit will issue.
Plaintiffs' request for a temporary restraining order is granted. WHEREFORE, it is Ordered and Adjudged that Defendants City of Valley Park, Missouri, Jeffrey Whitteaker, John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Drake, and J. Michael White are enjoined and prohibited from enforcing the provisions of Ordinance Number 1721, as amended, that are set out in bold face and lined through on Exhibit A to this Temporary Restraining Order. Exhibit A is attached to and incorporated herein by this reference as if fully set out. This Order shall be binding upon Defendants, their agents and all people acting at Defendants' direction, including housing inspectors and police officials of the City of Valley Park who are acting under contract with, or as agents of, the City of Valley Park, Missouri.

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APR-05-2007 13:42

STLOUIS-CO-21 JUDICIAL

3146158280 P.004

This Temporary Restraining Order is issued at 1: 15 p.m. on April 5, 2007 and shall expire 15 days from the date and time of its issuance, subject to such extension as may be granted by this court. Plaintiffs shall post bond in the amount of $250.00. Defendants shall show cause in Division 31 on April 20, 2007 at 9:00 a.m. as to why this temporary restraining order should not be extended.
Done this 5th day of April, 2007 at 1:15 p.m. SO ORDERED:
Carolyn C. W ittington, Presiding J

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APR-05-2007 13:42

STLOUIS-CO-21 JUDICIAL

3146158280 P.005

BILL NO. 1876

ORDINANCE NO . ./.7.;;1.9

"'** ** *"'''''''''''''''''' *'"
AN ORDXNANCE AMENDING SECTION 510.0l0,
SUBSECTION 103.6.1, OF THE PROPERTY MAINTENANCE CODE OF THE
CITY Of VALLEY PARK, MISSOURI,
RELATING TO INSPECTIONS
*****"'*****"'***

BE IT OReAINED BY THE BOARD OF A1.DERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:

ielction One

Language in bold letters i$ hereby deleted from Section 510.020, Subsection 103.6.1., and new letters or section numbers shall be delineated
in brac:kets [ J as follows:

(a) It shall be unlawful for any oWner or agent of real

property containing a dwelling unit or units to permit or allow

any person to occupy the dwelling unit or part thereof for any

purpose until a certificate of occupancy has been issued by the

Building Commissioner. Every owner, agent or manager of any

dwelling unit shall inform the City whenever any portion of the

building or dwelling unit becomes vacant, or that a change of

occ:upancy in the building or unit is Imminent [and an Inspection

may occur, and thereafter the] .ltd the owner, manager or

agent shall apply for an occupancy permit on such forms

provided by the City. The City shall review the application,

which shall set forth names, ages, eitill8"shi11"1 and

relationships for each proposed occupant, together with such

identifying information that shall be required by the City. :f+l.e

alillleii"l Co",,,,i,si.fter, e."si!lte"t wi~ ..derel lew 11'11111

!JB"'. eriline,,!!!. lj7:1:5, 9hall ..et i_He aft eeetll'lu,ey ,.PI'I'Iit and

will de", Ule

if aftY alien ttfllet»ftllly ,rasaftt jft ttle

Y"ifleilt Aetas is a I'l'el'e,ed eeel:tl'..."t ef the dwellinG ....it

Sf 1:11'1It&; ...d It" iMllMeti"It 9h.1I be l'el'ferMeei. Whel'l lUI
alie" is • I!POf,W)Sed MetlPB"" the a"Udi". ("",,,,issi."e•
...all verif\.1 with the federal leve,nM•.,t w"eth@. dte

l)7c.c . i-l.;.o
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:.;-,/r--I!6! 7 /l
-reA fbM-tt-'( {? es~ftl;Jt4
<0/tbetL. "'/-5-0'7

APR-05-2007 13:43

STLOUIS-CO-21 JUDICIAL

3146158280 P.006

aliall is lawflflly presallt III the ",,,ita" States, I'lIIrStlallt tel 8 USC !Ii U73(e). The Bltilelill, Ca......i'!liolter shall m.he
ft. II. il'lel.,e.ulellt judgment., the legal !ltatas eo' al'lY aliel'l.
If 'he ullit ealttaills I'I'OIul!Je" aeOM"allt who is all alietl
tI"lawfwll·,. 1" esellll ill the Yllilleill States, CAln inspection
shall be performed under the provisions of this article and, if
compliance with this section Is made, an occupancy permit shall be granted to the owner or his agent setting forth the
occupants' names, relationships, and number of occupants
allowable at the premises.

(b) It shall be unlawful for any owner, agent or manager Of a dwelling unit or: units to knowingly make any false statements in the application for occupancy as to the names, ages, eitl.e..shiJti relationships, identification Or number of occupants who will occupy the premises.

. (c) This section shall only apply prospectively, to occupancies commencing after the effective date of this ordinance.
iii' (,.~ If I!tle fe"e181 leve""",e"t "olllifies the Gity
Valley parle th" III 19 tlft.hle-tle \r...."I~ whether a 1'I'01'8se4
".u,a,,' who is aft alien isulew#ully ,,'exlit ill the Y"itecl
Stal!e&, the Eil!y of \falle')' Park shall "at 4el'l, tJote .ee"l'a"t!Y ",."""it eft thet basis, BII" al"l iftspeetioft $tielf
he ,e!'fe, med.

fe}[d] Any owner of real property containing a dwelling

unit who is denied an occupancy permit, or any proposed

occupant who Is unable to lease a dwelling unit because the City

of Valley Park has denied an occupancy permit concerning the

occupant, may challenge the denial of the occupancy permit

before the Board of Adjustment of the City of Valley Park,

Missouri, subject to the right of appeal to the St. Louis County

.11'-; Circu it Court. 'Fha det......j".!!i.II af whet:her a" alie" is

10""1:111, !!Ires.I"I' i" the Yllite" states "hall

It. Macle

"" the fed.ral 18",e.II.......'" The aeal'cI af AtIj"9VrIel'lt May teke Jwelieial ...ti.e til 8ft, 'Per.fieatie.. ., t!he

i.uliviehllil's MM\ts lS.alfie.sl" ,.evided tty the fede..'

,ave••"...", B"tI "'ay ref/UMe the feeleral ••vel'l,,,,e..1 to

I'P8\1ide 81:11toMateel IlIr le!JIII'I'I...ial verifiea'i." I'ltl"!u.ft' •
8 lIse § f:Sfste)-1

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rOTAI. P.OOr.

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

STEPHANIE REYNOLDS, et al.
Plaintiffs, v. CITY OF VALLEY PARK, MO,
Defendant.

)

)

)

)

)

Cause No.: 07CC-001420

)

)

Division: 31

)

)

)

PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM OF LAW IN SUPPORT
Plaintiffs, pursuant to Mo.R.c!v.P. 74.04, hereby move this Court to enter judgment in their favor and against Defendant City of Valley Park. Plaintiffs move for a judgment declaring Valley Park Ordinance No. 1721, and its amendments set forth in Valley Park Ordinances Nos. 1723, 1725, and 1730,1 void, and making permanent the temporary injunction entered in this cause enjoining Defendants from enforcing Ordinances Nos. 1721, 1723, 1725, and 1730.2 In support of their Motion, Plaintiffs submit the following Memorandum of Law.
MEMORANDUM IN SUPPORT

Valley Park Ordinance No. 1721 is yet another in a series of Ordinances enacted by Defendant City of Valley Park, Missouri aimed at chasing "illegal aliens" out of its community.

The Circuit Court of S1. Louis County, the Honorable Barbara Wallace, Judge Presiding, has

IThe last amendment (i.e., 1730) was made during the pendency of this case, while Ordinance No. 1721 was the subject of a temporary restraining order entered by this Court. Defendant's passage of Ordinance No. 1730 acted to modify the rewritten version of Ordinance No. 1721 as adopted by this Court. Defendant's actions in passing Ordinance No. 1730 are thus contemptuous.
2As used herein, all further references to "Ordinance No. 1721" are intended to include all amendments to that Ordinance.
2618530.1

already entered a permanent injunction enjoining the first two Ordinances passed by Defendant. Enforcement of Ordinance No. 1721 should, like its predecessors, be permanently enjoined. I. ORDINANCE NO. 1721 IS VOID UNDER STATE LAW.
A. Ordinance No. 1721 Has No Rational Or Reasonable Basis In Fact Or Law. It is axiomatic that to be valid a legislative enactment must be reasonable in light of the sUlTounding facts and circumstances. See, e.g., Miller v. City of Town & Country, 62 S.W.3d 431, 437 (Mo.App. 200 1) ("The test of the validity of an exercise of police power is reasonableness"); Jones. v City of Jennings, 595 S.W.2d 1, 3 (Mo.App. 1979) (ordinances enacted "without consideration of and in disregard of the facts and circumstances" are void). The undisputed facts here prove that Defendant had no reasonable or rational basis for enacting Ordinance No. 1721. For one thing, it was enacted without any means for enforcing its provisions. And, for another, Defendant admits that Ordinance No. 1721 bears no relation, whatsoever, to the purpose underlying the statutory scheme of which it is a part. Without any means of enforcement (let alone a reasonable or rational one), or any reasonable or rational relation to the purpose of the statutory scheme, Ordinance No. 1721 is clearly void.
1. There Is No Means Of Enforcement The plain language of Ordinance No. 1721 allows for only one conclusion: unless there are federal databases and agencies available which Valley Park can use to verify a person's immigration status, Ordinance No. 1721 is unenforceable. (Facts,-r,-r 1, 16-18).3 And, Defendant has unequivocally admitted that it enacted Ordinance No. 1721 without having the ability to access any federal data base or agency for such a purpose. (Facts,-r,-r 21-28). Even today (more than three months after enactment), Defendant still has no authority to access federal databases to enforce
3References to "Facts" herein are to Plaintiffs' Uncontroverted Material Facts in Support of Their Motion for Summary Judgment, which is filed simultaneously herewith. References to specific paragraphs of those "Facts" are intended to include the evidence cited for each of those paragraphs.
2

Ordinance No. 1721 as intended. Id. The fact that Defendant enacted Ordinance No. 1721 without first assuring that it would have some means to enforce its provisions, standing alone, is sufficient to show that there was no reasonable or rational basis for its enactment.
The unreasonable and irrational nature of Defendant's legislative act is further borne out by the fact that the "contemplated" (but not realized) means of enforcing Ordinance No. 1721 is a fantasy. Defendant admits that it envisions only two means as an enforcement mechanism for Ordinance No. 1721: the federal SAVE (Systematic Alien Verification for Entitlements) database; and the LESC (Law Enforcement Support Center) database. (Facts ~ 22). But, the City of Valley Park has not been authorized to use the SAVE database (Facts ~~ 24, 25), and the LESC cannot be used for the purpose of enforcing Ordinance No. 1721. (Facts ~~ 26-28); see also http://www.ice.gov/pi/news/factsheets/081204Iesc.htm (noting that the LESC system "operates 24 hours a day, 365 days a year, to supply real-time assistance to law enforcement officers who are investigating or have arrested foreign-born individuals involved in criminal activity" (emphasis added)).
And, even if Defendant could get authorized to use the SAVE database (and there is no evidence that it ever Will),4 that system simply does not provide the fool-proof information necessary to ensure that persons lawfully in this Country are not chased out of the City of Valley Park under the guise of Ordinance No. 172l. See, e.g., 65 FR 58301-01 (2000) ("A [SAVE] response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion of law that the individual is not lawfully present"). Indeed, the SAVE system is not intended to be used as the judge and jury
4See http://W\vw.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d la/?vgnext oid=7 Icf58f9 If08eO IOVgnVCM IOOOOOOecd I90aRCRD&vgnextchannel=919 I9c7755cb90 I OVgn VCM 1000 0045f3d6al RCRD ("To join the SAVE Program and acquire access to VIS-CPS to perform immigration status verification, an agency must first establish a Memorandum of Understanding (MOU) with the SAVE Program, and then establish a purchase order with the SAVE Program contractor to pay for VIS-CPS transaction fees. Access to SAVE is subject to USCIS resource limitations or other legal or policy criteria").
3

with respect to a person's immigration status, but only as a means of providing information with respect to eligibility for public benefits.
When a Defendant enacts legislation without first assuring that there is some means to enforce it as intended, the irrationality and unreasonableness of its actions is self-evident. Ordinance No. 1721 should be declared void, and its enforcement should be permanently enjoined.
2. There Is No Rational Or Reasonable Relation To The Statutory Scheme Ordinance No. 1721 was enacted as part of the Property Maintenance Code of Valley Park. (Facts ~ 1). That Code exists to ensure the structural integrity of buildings and premises, and to regulate the ill-effects that dilapidated buildings can have on the people living in them. (Facts ~~ 24). Yet, Defendant admits that Ordinance No. 1721 has no bearing, whatsoever, on the physical condition of buildings. (Facts ~~ 8-12). Indeed, as Defendant admits, nowhere else, other than in Ordinance No. 1721, does the Property Maintenance Code attempt to regulate which specific persons can and cannot inhabit a dwelling. Id. These admissions make clear that the provisions of, and the means employed for enforcing, Ordinance No. 1721 bear no rational or reasonable basis to the purpose or intent of the Valley Park Property Maintenance Code. Thus, for this additional reason, Ordinance No. 1721 is void. B. Enforcement of Ordinance No. 1721 Allows For, And Has Resulted In, An
Improper Exercise Of Police Power. Generally, unless a legislative body retains an enforcement power for itself, it must provide specific standards or rules for enforcement of ordinances so as to avoid the arbitrary exercise of discretion. State ex reI. Ludlow v. Guffey, 306 S.W.2d 552, 557 (Mo. 1957); see also State ex reI. Manchester Improvement CO. Y. City of Winchester, 400 S.W.2d 47, 48 (Mo. 1966). While the need for specific standards is somewhat more lax when an ordinance is to be enforced by a code official, some standards are still required because code personnel do not have unlimited authority. Eastern Missouri Laborers' Dist. Council Y. City of St. Louis, 5 S.W.3d 600, 603 (Mo.App. 1999).
4

Standards of enforcement should be specific even for code enforcement officials unless the subject of the ordinance requires the exercise of discretion to protect the public health and safety, Id.
The provisions of Ordinance No. 1721 governing verification of a person's immigration status do not concern the public health and safety insofar as a code enforcement officer's duties in issuing occupancy permits. Thus, those provisions are void unless there are sufficient standards and guidelines to prevent their arbitrary and unreasonable enforcement. Id. As history demonstrates, enforcement of Ordinance No. 1721 has already been unreasonable and arbitrary due to a lack of specificity.
Defendant has expressly delegated the power to issue or deny occupancy permits under Ordinance No. 1721 to the "Building Commissioner." (Facts ~~ 1, 6, 38). The fact that the Building Commissioner exercises unbridled discretion in deciding how to enforce Ordinance No. 1721 is borne out by both the plain language of the Ordinance itself, and the testimony as to its enforcement in actual practice. Ordinance No. 1721 indicates that, for each proposed occupant of a dwelling unit, a landlord and prospective tenant are required to submit an occupancy permit application which includes the names, ages, citizenships, and any other "identifying information" that the enforcement officer, in his discretion, decides to require. (Facts ~~ 1, 6). In practice, this discretion to request any other "identifying information" deemed desirable, has resulted in issuance of a nine page form entitled "Documents Required to Apply for a Valley Park Occupancy Permit," which, by its own terms, requires a landlord and tenant to produce "Proof of Lawful Presence" and "Proof ofIdentity." (Facts ~~ 30-32).
This exercise of unbridled discretion in enforcement has, in practice, negated the very purpose for which Defendant claims to have enacted Ordinance No. 1721. Defendant has repeatedly stated that Ordinance No. 1721 was enacted for the purpose of taking the onus off of landlords and tenants to prove a prospective tenant's immigration status, and putting that onus on
5

the City of Valley Park. (Facts,r 7). However, in practice Ordinance No. 1721 does exactly the opposite: it mandates proof of lawful presence from landlords and prospective tenants. (Facts ~'r 29-32). Because Ordinance No. 1721 is devoid of adequate standards and guidelines to ensure that it is not enforced contrary to its stated intent it is void. Its enforcement should be permanently restrained.
C. Ordinance No. 1721 Serves No Legitimate Purpose. Ordinance No. 1721 cannot be enforced as originally contemplated because there is no means for the "Building Commissioner" to fulfill his duty of "verify[ing] with the federal government whether [a prospective tenant or property buyer] is lawfully present in the United States pursuant to 8 USC § 1373(c)." (Facts ~~ 1, 6, 16, 22-28). Thus, requiring a property owner to provide voluminous information relating to a person's citizenship andlor legal status serves no purpose, whatsoever, other than to harass the landowner and prospective tenant/buyer. Indeed, under the terms of the Ordinance, even if a prospective tenant/buyer stated he was not in this Country legally, Defendant City of Valley Park could not deny an occupancy permit based on that admission because the federal government will not verify that fact. Because the Ordinance serves no legitimate purpose, it is void. D. Defendant Exceeded Its Delegated Powers In Enacting Ordinance No. 1721. "It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the declared objects and purposes of the corporation - not simply convenient, but indispensable. Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied." State ex reI. Curators of Univ. of MO v. McReynolds, 193 S.W.2d 611, 612 (Mo. en banc 1946) (quoting Dillon, Municipal Corporations
6

§ 237 (1911); see also Premium Std. Farms. Inc. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234,238 (Mo. en banc 1997) (same).
Defendants have not been delegated power to regulate immigration. Nor have they been delegated any power which could conceivably be interpreted to allow them to use the "Property and Maintenance Code" to prohibit a specific class of people from occupying buildings in Valley Park. Accordingly, for these additional reasons, Ordinance No. 1721 should be declared void, and its enforcement should be permanently enjoined. II. ORDINANCE NO. 1721 IS VOID UNDER FEDERAL LAW.
For over 100 years, the United States Supreme Court has emphasized that the power to regulate immigration is exclusively federal. There are two reasons for this. First, a single state could otherwise "embroil us in disastrous quarrels with other nations." Chy Lung v. Freeman, 92 U.S. 275, 280 (1875). Second, "the laws which govern the right to land passengers in the United States from other countries ought to be the same in New York, Boston, New Orleans, and San Francisco." Henderson v. Mayor of City of New York, 92 U.S. (2 Otto) 259, 273 (1875).
Local laws concerning immigration and foreign nationals are invalid under the Supremacy Clause of the United States Constitution if they: (1) are field preempted because they are an attempt to legislate in a field occupied by the federal government, (2) are conflict preempted because they "burden[] or conflict[] in any manner with any federal laws or treaties," or "[stand] as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress"; or (3) attempt to regulate immigration, which is "unquestionably exclusively a federal power." DeCanas v. Bica, 424 U.S. 351,354,362,363 (1976). Anyone of these flaws would render a local ordinance invalid. See League of United Latin American Citizens v. Wilson, 908 F.Supp. 755, 768 (C.D. Cal. 1995); Villas at Parkside Partners v. City of Farmers Branch, 2007 WL 1498763, **4-5 (N.D. Tex.) Ordinance No. 1721 violates federal law on all three counts.
7

A. Ordinance No. 1721 Is Void Because it Attempts to Regulate Immigration and Due To Field Preemption.
Most basically, Defendants' effort to decide which non-citizens can live where is simply
beyond their authority. Permitting or barring residency of non-citizens is the core of immigration
regulation, reserved to Congress by the Constitution. Moreover, Congress has entirely occupied the
relevant field, leaving no room for contrary or even supplemental regulation by states, much less by cities. In Hines v. Davidowitz, 312 U.S. 52,66-67 (1941), which invalidated Pennsylvania's state
alien-registration law (a law that, similar to Ordinance No. 1721, required noncitizens to register
with local authorities), the Supreme Court explained:
[W]here the federal government, in the exercise of its superior authority in this field, has enacted a complete scheme of regulation ... states cannot, inconsistently with the purpose of Congress, conflict or interfere with, curtail or complement, the federal law, or enforce additional or auxiliary regulations.
(emphasis added). Deciding which foreign nationals may live within our nation's borders and for
how long - whether as of right for some immigration statuses, or as a matter of discretion for congressionally specified federal officials5 - is a federal decision, governed by an extraordinarily
complex and comprehensive federal network of substantive and procedural statutes and regulations
(discussed below). Congress has frequently adjusted the relevant rules, and may soon do so again.
See Comprehensive Immigration Reform Act, S.2611 (currently under consideration). Our nation
has only one set of borders. When the federal government has not acted to deport someone,
whatever that person's formal immigration status, individual cities may not countermand that federal decision and create a checkerboard of residency exclusions.6
5See 8 U.S.C. §§ 1158, 1182(d)(5), 1229b, 1229c, 1255, 1259; 8 C.F.R. § 241.6 (2006) (discussing asylum, voluntary departure, parole, cancellation of removal, adjustment of status, registry, stays of removal, etc.).
6As the Supreme Court explained when invalidating a Massachusetts statute touching on foreign relations:
8

Similarly, the federal government has decided, comprehensively, what kind of associations
with aliens, legal and illegal, should be penalized, and the magnitude of that penalty. Among the aspects of the field which are regulated exclusively by the federal government is "harboring" of
certain aliens, including what constitutes harboring, when it is unlawful, and what the penalties are. See 8 U.S.C. § 1324(a)(1)(A)(iii). The federal statute forbids only harboring with "knowing" or
"reckless disregard" of the alien's unlawful immigration status. Id. See Garrett v. City of Escondido, 465 F.Supp.2d 1043, 1056 (S.D.Cal. 2006) (noting, in granting a restraining order against enforcement of a similar ordinance, that "federal statutes [that] specifically provide for fines
and criminal penalties for the harboring of illegal aliens" cause "this Court [to] find[] serious concerns in regards to the field preemption of the Ordinance by existing federal statutes.")
B. Ordinance No. 1721 Is Void Under Principles of Conflict Preemption. Even if it were permissible for Defendant to regulate residency for non-citizens (which it is
not), under the Supremacy Clause such regulation may not conflict with federal requirements. See,
e.g., Geier v. American Honda Motor Co., 529 U.S. 861 (2000). Ordinance No. 1721 is void
because it conflicts irreconcilably with numerous provisions of federal immigration law. The Ordinance seeks to place itself under the aegis of federal law by emphasizing that "The Building Commissioner shall make no independent judgment of the legal status of any alien." (Facts ~~ 1, 6, 16). The Building Commissioner is instructed to "verify with the federal government whether the alien is lawfully present in the United States, pursuant to 8 U.S.C. § 1373(c)." Id.
[T]he fact of a common end hardly neutralizes conflicting means ... and the fact that some companies may be able to comply with both sets of sanctions does not mean that the state Act is not at odds with achievement of the federal decision about the right degree of pressure to employ ... Sanctions are drawn not only to bar what they prohibit but to allow what they permit, and the inconsistency of sanctions here undermines the congressional calibration of force. Crosby v. Nat'l Foreign Trade Council, 530 U.S. 363, 379-380 (2000); see also American Ins. Assoc. v. Garamendi, 539 U.S. 396 (2003).
9

The form the City has promulgated to implement the requirement in Ordinance No. 1721 that the federal government verify legal status - the "Documents Required to Apply for a Valley Park Occupancy Permit" - is both confusing and in conflict with federal law governing residence. 7 (Facts ~~ 31, 32). More important, however, this provision in the Ordinance miscomprehends both the nature of the federal regime governing non-citizen residency and the availability of federal assistance. Federal immigration status is simply not susceptible to the kind of routine and determinative answer Ordinance No. 1721 suggests. No single federal official can unilaterally decide or discover whether someone's presence is unlawful. Rather, the federal immigration laws establish a complex and careful set of procedures designed to assure that an alien is not erroneously identified as unlawfully present. The process of determining who can stay and who must go involves (as the Ordinances do not) written notice, a hearing with the opportunity to present evidence and argument, administrative appeal, and judicial review.s Moreover, aliens frequently have the right to remain in the United States during removal proceedings, which often last months and sometimes even years, and during the pendency of asylum applications or for "withholding of removal." See 8 U.S.C. §§ 1158, 1251(b)(3). This right would be rendered illusory if states or local governments could simply deny aliens a place to live even though they have not yet been ordered deported.
Congress had a good reason to set up such an elaborate procedure. Both the facts and the law that determine whether a person is unlawfully present are frequently murky; there can be
7The "Documents Required to Apply for a Valley Park Occupancy Permit" form provides that individuals in certain legal immigration statuses (e.g., A-I diplomatic visa holders, B-1 and B-2 temporary visitors, and visitors who have entered the United States lawfully under the Visa Waiver Program) are not "eligible for a permit." (Facts ~~ 31, 32). But federal immigration law expressly allows those individuals to live in the United States for a temporary period, typically lasting at least several months. See 8 U.S.C. § 1187.
8/See, e.g., 8 U.S.C. §§ 1154, 1228-1252, 1255-1259; see also Stephen H. Legomsky, Immigration and Refugee Law and Policy 634-645 (4th Ed. 2005) (providing overview of deportation process).
10

disputes concerning whether the person was inspected upon entry, whether the person's entry
document was genuine or counterfeit, or whether the representations the person made to secure
entry were true or fraudulent. Moreover, Congress has chosen to delegate to various officials
involved in the proceedings the discretion, in various circumstances, to waive particular grounds of
removal and allow the person to remain in the United States. These include asylum, cancellation of
removal, withholding of removal, adjustment of status, registry, and other miscellaneous waivers.
See 8 U.S.C. §§ 1158, 1229b, 1251(b)(3), 1255, 1259.
As one justice of the United States Supreme Court has explained:
Until an undocumented alien is ordered deported by the Federal Government, no State can be assured that the alien will not be found to have a federal permission to reside in the country, perhaps even as a citizen. Indeed, even the Immigration and Naturalization Service cannot predict with certainty whether any individual alien has a right to reside in the country until deportation proceedings have run their course. See, e.g., 8 U.S.C. §§ 1252, 1253(h), 1254 (1976 ed. and Supp.IV).
Plyler v. Doe, 457 U.S. 202, 241 (1982) (Powell, J., concurring) (emphasis added); see also id. at
236 (Marshall, J., concurring) ("[T]he structure of the immigration statutes makes it impossible for
the State to determine which aliens are entitled to residence, and which eventually will be
deported").
It is for this very reason that the federal executive branch itself has definitively declared that
the federal government's "Systematic Alien Verification for Entitlements" (SAVE) program - the
program implementing the federal statute referenced in the Ordinance, i.e., 8 U.S.C. § 1373(c) -
does not authoritatively establish any non-citizen's immigration status:
[F]or purposes of the requirement [that governmental entities report when they 'know' an alien is not lawfully present in the United States] ... an entity will 'know' that an alien is not lawfully present in the United States only when the unlawful presence is a finding of fact or conclusion of law that is made by the entity as part of a formal determination that is subject to administrative review ... In addition, that finding or conclusion of unlawful presence must be supported by
11

a determination by the Service or the Executive Office of Immigration Review, such as a Final Order of Deportation. A Systematic Alien Verification for Entitlements (SA VE) response showing no Service record on an individual or an immigration status making the individual ineligible for a benefit is not a finding of fact or conclusion oflaw that the individual is not lawfully present.
65 FR 58301-01 (2000) (emphasis added).
Moreover, even if the SAVE databases could, as a matter of federal law, determine the
lawful status of an alien (which they cannot), the existence of those databases would nonetheless be
insufficient to save Ordinance No. 1721. First, the federal government has not so far granted access
to Valley Park to the SAVE databases, (Facts ~~ 23, 24, 25), and there is no proof (other than rank
hearsay) it ever wil1.9 Second, even if access were available, SAVE's databases are incomplete as
far as recording lawful presence in the United States, because they are actually geared towards
determining eligibility for various federal aid programs. Third, the SAVE databases include no
information whatsoever about citizenship status. And, finally, the SAVE program databases are
riddled with error, as numerous federal reports have found. 10
In short, Defendants' attempt to clothe the residency requirements of its Ordinances in
federal authority is a mirage. The federal method for deciding who may live within our nation's
borders has both substantive and procedural components that conflict with the casual approach of
9See Garrett v. City of Escondido, 465 F.Supp.2d 1043, 1057 (S.D.Cal. 2006) (in case involving similar ordinance in which local officials proclaimed they would use the SAVE system, the court noted its "serious concerns regarding the burden this Ordinance will place on federal regulations and resources," and that it was "unclear to this Court ... whether Defendant would be entitled to use the SAVE program where the Ordinance seeks to regulate landlord-tenant relationships outside of the scope of a public benefit").
lOSee, e.g., U.S. Department of Justice Office of Inspector General, Follow-up Report on INS Efforts to Improve the Control of Nonimmigrant Overstays, Report No. 1-2002-006, April 2002 ("According to an official from the INS's Statistics Office, the unreliability of nonimmigrant information continues to be a problem ... To compound the difficulty in identifYing overstays, the Statistics Office no longer receives updates on visa extensions or adjustments of status. Therefore, some aliens appear to be overstays when they are legally in the United States. The Statistics Office Official acknowledged that current Form 1-94 data is not reliable for ... determining with certainty whether an alien who appears to be an overstay is actually an overstay").
12

Ordinance No. 1721. And the programs the federal government has implemented to regulate access to monetary public benefits are not intended to and cannot properly be used to report unlawful presence in the United States. The Ordinance is thus preempted. II
Even if Ordinance No. 1721 did not conflict with federal immigration law (which it does), it would still be preempted because it conflicts with the provisions of the Fair Housing Act, 42 U.S.C. § 3604, which forbids national origin discrimination in housing. The problem is that landlords naturally wish to find a tenant and get necessary permits speedily. Ordinance No. 1721 disrupts this normal progression when a tenant is a non-citizen of the United States because its verification process puts landlords at risk of finding out, days or weeks later, that no occupancy permit will be granted for the prospective non-citizen tenant if his immigration status cannot be verified. The only way to avoid this disruption is to decline renting to any would-be tenant who somehow looks or sounds foreign-born - conduct that violates the Fair Housing Act. See 42 U.S.C. § 3604. Landlords are thus placed in an untenable position in which the requirements of local law push them to violate federal law. Such a conflict is illegal; federal fair housing law trumps. See Reitman v. Mulkey, 387 U.S. 369 (1967) (striking down results of a California referendum that encouraged, but did not mandate, private race discrimination); 42 U.S.C. § 3615 ("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").
II Defendant's suggestion that they can use the Law Enforcement Service Center, known as "LESC" in lieu of SAVE is simply wrong. Access to LESC is available to police authorities, not building commissioners, and its databases are not available to be used for non-law-enforcement purposes such as Valley Park proposes. See, e.g., 62 FR 26555-03 (describing Law Enforcement Support Center Database as relevant for "Immigrants that have the status of legal permanent resident and/or United States citizen and who are either the subject of an investigation, or have been an'ested, charged with and/or convicted of criminal or civil offenses which could render them deportable or excludable under the provisions of immigration and nationality laws."); see also Facts ~~ 26,27,28.
13

III. PLAINTIFFS WILL SUFFER IRREPARABLE HARM UNLESS ENFORCEMENT OF ORDINANCE NO. 1721 IS PERMANENTLY ENJOINED. Once this Court declares Ordinance No. 1721 void, the need for a permanent injunction to
avoid irreparable harm is clear. Indeed, the Circuit Court of St. Louis County, Honorable Barbara Wallace presiding, faced with the issue of whether to enter a permanent injunction to restrain the enforcement of prior similar Valley Park Ordinances aimed at "illegal aliens" answered the question "yes," and entered a final judgment permanently enjoining enforcement of those Ordinances. Under principles of issue preclusion, Defendant is thus barred from contesting the element of irreparable harm here. See, e.g., Woods v. Mehlville Chrysler-Plymouth, Inc., 198 S.W.3d 165,168 (Mo.App. 2006).
Even if issue preclusion were not applicable here (which it is), entry of a permanent injunction would still be warranted because Defendant should be precluded from enforcing a void ordinance regardless of the circumstances. There is no adequate remedy at law to protect Plaintiffs from the burdensome and unwarranted practices being utilized by Defendant to enforce Ordinance No. 1721. If Ordinance No. 1721 continues to be enforced under the current scheme, Plaintiffs will suffer: a loss of prospective tenantslbuyers due to the inordinate delays caused by Ordinance No. 1721; and a loss of good will in their rental businesses due to having to seek burdensome verification of citizenship status and/or lawful presence. Such damages cannot be compensated by monetary awards.
14

CONCLUSION
WHEREFORE, Plaintiffs respectively request that this Court enter judgment in their favor
and against Defendant City of Valley Park, and that this Court make permanent the temporary
restraining order now in place which enjoins enforcement of Valley Park Ordinance No. 1721, and
its amendments as set forth in Valley Park Ordinances No. 1723, 1725, and 1730.
Respectfully submitted,
BRYAN CAVE LLP
By: Linda Martinez, #30655 lmartinez@bryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick((i)bryancave.com Rhiana Sharp, #56539 rhiana.sharp((i)brvancave.com One Metropolitan Square S1. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski, #38716 kwisniewski@uselaws.com 100 South Fourth Street Suite 900 S1. Louis, MO 63102 (314) 621-6115 Facsimile: (314) 621-7151
SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannji@SLU.edu Susan McGraugh, #37430 mcgraugh((l)SLU .edu 321 North Spring S1. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
15

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz0{wulaw. \vustl.edu Margo Schlanger (pro hac vice) mschlanger0{wulaw. wustl.ed u One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm0{SLU .edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte j0{sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez0{ramirezlawfim1.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
Attorneysfor Plaintiffs, Stephanie Reynolds Florence Streeter, and The Metropolitan St. Louis Equal Housing Opportunity Counsel, Inc.
and
16

ALAN BAKER Attomey at Law 1620 South Hanley St. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314 Attorneyfor PlaintiffJames Zhang
17

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing document was served via U.S. mail, postage prepaid, on the 31st day of May on the following counsel of record: Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin 772(a),aol.com Kris W. Kobach University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk(a),umkc.edu Counselfor Defendants
18

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

STEPHANIE REYNOLDS, et al.
Plaintiffs, v. CITY OF VALLEY PARK, MO
Defendant.

)

)

)

)

)

Cause No.: 07CC-001420

)

)

Division: 31

)

)

)

PLAINTIFFS' UNCONTROVERTED MATERIAL FACTS IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT

Plaintiffs, pursuant to Missouri Rule of Civil Procedure 74.04(c)(1), submit the following

statement of uncontroverted material facts in support of their Motion for Summary Judgment:

l. Valley Park Ordinance No. 1721 was enacted as part of Valley Park's Property

Maintenance Code, § 510.010, et seq. See Certified Copy of Ordinance No. 1721, submitted

herewith as Exhibit A; see also Transcript of Deposition of Valley Park Building Commissioner

Jeff Schaub, taken April 26, 2007 ("Schaub Depo"), attached hereto as Exhibit B, pp. 36.

2. The Valley Park Property Maintenance Code expressly adopts the International

Property Maintenance Code, 2003 Edition, subject to limited additions, insertions, and changes

as set forth in §510.020. See Valley Park Property Maintenance Code, attached hereto as
Exhibit c. 1

3. The International Property Maintenance Code, 2003 Edition, states that it is

intended to apply to "all existing residential and nonresidential structures and all existing

premises." See International Property Maintenance Code, 2003 Edition, submitted herewith as

IPlaintiffs have requested that Defendant provide them with a certified copy of both the Valley Park Property Maintenance Code and the International Property Maintenance Code, and will submit those certified copies to the Court at, or before, the summary judgment hearing.

2618842.1

Exhibit D, § 101.2.
4. The International Property Maintenance Code states that its intent is "to ensure
public health, safety and welfare insofar as they are affected by the continued occupancy and
maintenance of structures and premises." Exhibit D, § 101.3.
5. Valley Park Ordinance No. 1721 has been amended three times, and these
amendments are reflected in Valley Park Ordinances No. 1723, 1725, and 1730. See Certified
Copies of Ordinances No. 1723 and 1725, and Copy of Ordinance No. 1730, attached hereto, respectively, as Exhibits E, F, and G.2
6. Accounting for all of its Amendments (as set forth in Ordinances No. 1723, 1725, and 1730), Valley Park Ordinance No. 1721 3 reads as follows:
AN ORDINANCE REPEALING SECTION 510.020 SUBSECTION 103.6.1 OF THE PROPERTY MAINTENANCE CODE RELATING TO
INSPECTIONS AND OCCUPANCY PERMITS AND ENACTING A NEW ORDINANCE IN LIEU THEREOF RELATING TO THE SAME SUBJECT
MATTER
BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Section 510.020 Subsection 103.6.1 of the Code of Ordinances is hereby repealed.
Section Two
A new section to be known as "Section 510.020 Subsection 103.6.1, Applications and Inspections" is hereby adopted as follows:
(a) It shall be unlawful for any owner or agent of real property containing a dwelling unit or units to permit or allow any person to occupy the dwelling unit or part thereof for any
2Plaintiffs have requested that Defendant provide them with a certified copy of Ordinance No. 1730, and will submit the certified copy to the COUli at, or before, the summary judgment hearing.
3 As used herein, all further references to "Ordinance No. 1721" are intended to include all amendments to that Ordinance.
2

purpose until a certificate of occupancy has been issued by the Building Commissioner. Every owner, agent, or manager of any dwelling unit shall inform the City whenever any portion of the building or dwelling unit becomes vacant, or that a change of occupancy in the building or unit is imminent and an inspection may occur, and the owner, manager or agent shall apply for an occupancy permit on such forms provided by the City. The City shall review the application, which shall set forth nan1es, ages, citizenships, and relationships for each proposed occupant, together with such identifying information that shall be required by the City. The Building Commissioner, consistent with federal law and Ordinance No. 1722, shall not issue an occupancy permit and will deny the same if any alien unlawfully present in the United States is a proposed occupant of the dwelling unit or units. When an alien is a proposed occupant, the Building Commissioner shall verify with the federal government whether the alien is lawfully present in the United States, pursuant to 8 USC § 1373(c). The Building Commissioner shall make no independent judgment of the legal status of the alien. If the unit contains no proposed occupant who is an alien unlawfully present in the United States, an inspection shall be performed under the provisions of this article and, if compliance with this section is made, an occupancy permit shall be granted to the owner or his agent setting forth the occupants' names, relationships, and number of occupants allowable at the premises.
(b) It shall be unlawful for any owner, agent or manager of a dwelling unit or units to knowingly make any false statements in the application for occupancy as to the names, ages, citizenship, relationships, identification or number of occupants who will occupy the premises.
(c) This section shall only apply prospectively, to occupancies commencing after the effective date of this ordinance.
(d) If the federal government notifies the City of Valley Park that it is unable to verify whether a proposed occupant who is an alien is lawfully present in the United States, the City of Valley Park shall not deny the occupancy permit on that basis, and an inspection shall be performed.
(e) Any Ovvner of real property containing a dwelling unit who is denied an occupancy permit, or any proposed occupant who is unable to lease a dwelling unit because the
3

City of Valley Park has denied an occupancy permit concerning the occupant, may challenge the denial of the occupancy permit before the Board of Adjustment of the City of Valley Park, Missouri, subject to the right of appeal to the St. Louis County Circuit Court. The determination of whether an alien is unlawfully present in the United States shall only be made by the federal government. The Board of Adjustment may take judicial notice of any verification of the individual's status previously provided by the federal government and may request the federal government to provide an automated or testimonial verification pursuant to 8 USC § 1373(c).
Section Three
This Ordinance shall become effective from and after its passage and upon approval by the Mayor.
See Exhibits A, E. F, G.
7. The intent of the legislature of Valley Park in enacting Ordinance No. 1721 (in
lieu of its predecessors) was to take the burden off of property owners to prove a tenant is
lawfully in the United States, and to put the burden on the City of Valley Park to prove that a
prospective tenant is not lawfully in the United States. See Transcript of Hearing Before
Honorable Barbara Wallace, attached hereto as Exhibit H, pp. 72-74; Transcript of Mayor Jeffery
Whitteaker, taken April 26, 2007 ("Mayor Depo"), attached hereto as Exhibit I, pp. 56-57.
8. Ordinance No. 1721 does not regulate the condition of existing structures or
premIses. Exhibit A; see also Schaub Depo, pp. 54-55; Mayor Depo, pp. 36-38.
9. Ordinance No. 1721 does not address the health, safety and welfare of the public
insofar as these things are affected by structures and premises. Exhibit A; see also Schaub Depo,
pp. 54-55; Mayor Depo, pp. 36-38.
10. Other than as provided for in Ordinance No. 1721, the Valley Park Property
Maintenance Code relates to the regulation of people only insofar as how many people can
occupy a specific premises. Schaub Depo, pp. 36-37.
4

11. Other than as provided for in Ordinance No. 1721, the Valley Park Property Maintenance Code has no provisions relating to the immigration status of residents of any particular premises. Schaub Depo, pp. 36-37.
12. When a dwelling unit meets all physical building code requirements, the satisfactory condition of the building does not diminish based solely on the fact that the person living there may be in the United States illegally. Schaub Depo, pp. 54-55.
13. Under Ordinance No. 1721, if a potential lessee states on an occupancy application that he is a citizen of the United States, an occupancy pennit is issued immediately if the proposed dwelling unit has passed an inspection. Exhibit A; Mayor Depo, pp. 59-62; Transcript of Deposition of Roxanne Ruppel ("Ruppel Depo"), taken April 26, 2007, attached hereto as Exhibit J, pp. 38-40,44.
14. Under Ordinance No. 1721, if a potential lessee states on an occupancy application that he or one of his household members is not a United States citizen, the Building Commissioner is required to verify his immigration status with the federal government before issuing an occupancy permit. Exhibit A; Mayor Depo, pp. 59-62; Ruppel Depo, pp. 38-40,44.
15. When a person states on an occupancy pennit application that he or one of his household members is not a United States citizen, the Building Commissioner is required to verify, with the federal government, the immigration status of the non-United States citizen even if that person states that his presence in the United States is entirely lawful. Exhibit A; Mayor Depo, pp. 59-62; Ruppel Depo, pp. 38-40,44.
16. Under Ordinance No. 1721 only the federal government can make the detennination of whether an alien is lawfully present in the United States. Exhibit A; Ruppel Depo, p. 43.
5

17. If the federal government cannot, or will not, verify whether an alien is in this Country legally, an occupancy permit must be issued if the property has passed an inspection. Exhibit A.
IS. The enforceability of Ordinance No. 1721 is dependent on being able to use a federal database. Schaub Depo, p. 66.
19. Ordinance No. 1721 became effective and enforceable on February 27, 2007. Mayor Depo, p. 6S.
20. The City of Valley Park enforced Ordinance No. 1721 until its enforcement was retrained by issuance of a temporary restraining order on April 5, 2007.
21. Prior to enacting Ordinance No. 1721, the City of Valley Park had established no system for verifying with the federal government whether a person is in the United States legally or illegally. Schaub Depo, pp. 41, 43, 60; Ruppel Depo, pp. 3S-40, 42-43.
22. The only two programs that Valley Park would use to verify with the federal government whether a person is in the United States legally is the SAVE program or the LESe program. Mayor Depo, pp. 60-61, SO; Schaub Depo, pp. 2S, 37, 40-41; Ruppel Depo, pp. 34-35, 46-48.
23. The City of Valley Park has never successfully used either the SAVE program or the LESC program to verify any person's legal status. Mayor Depo, p. 80; Schaub Depo, pp. 3738,43-44,49,60; Ruppel Depo, p. 42, 45-46, 48, 59-60.
24. During the time that Ordinance No. 1721 was effective and being enforced, the City of Valley Park did not have the authorization to use the federal SAVE program. Ruppel Depo, pp. 42-43, 47-50, 52-55, 59-60.
25. As of today, the City of Valley Park (itself) does not have the ability to ask the
6

federal government to detennine whether a person is in the United States legally. Schaub Depo, pp. 41, 43, 60; Ruppel Depo, pp. 49-50, 52-55, 59-60.
26. Only law enforcement officials can use the federal LESC database to check on the legal status of individuals. Schaub Depo, pp. 60-61; Ruppel Depo, pp. 43-44.
27. Law enforcement officials are not involved in issuing occupancy pennits. Schaub Depo, p. 60.
28. Law enforcement officials will not use the LESC system to check the legal status of potential occupants of dwelling units in the City of Valley Park. Affidavit of S1. Louis County Chief of Police Jerry Lee, attached hereto as Exhibit K.
29. The Mayor of Valley Park left it up to the Building Commissioner to develop the forms and procedures for implementing Ordinance No. 1721. Mayor Depo, pp. 79-80.
30. During the time that Ordinance No. 1721 was effective and being enforced, if a person indicated on an application for an occupancy pennit that they were not a United States citizen, the City of Valley Park required some type of documentation indicating a person's lawful immigration status. Ruppel Depo, pp. 40-41, 67-68, 71, 73-74, 79.
31. The documents a person could produce as proof of lawful presence in the United States were listed in a 9 page document entitled "Documents Required to Apply for a Valley Park Occupancy Permit." Schaub Depo, pp. 14-16 & Exhibit 2, thereto; Ruppel Depo, p. 68, 71, 73-74; see also Certified Copy of Documents Required to Apply for a Valley Park Occupancy Permit, attached hereto as Exhibit L.
32. The document entitled "Documents Required to Apply for a Valley Park Occupancy Pennit" indicates a landlord and/or prospective tenant should provide, for every member of his household, "Proof of Lawful Presence" and "Proof of Identity." Schaub Depo,
7

pp. 14-16 & Exhibit 2, thereto; Exhibit L. 33. When a prospective tenant reveals on an occupancy pennit application that he is
not a citizen of the United States, under Ordinance No. 1721 the Building Commissioner is charged with verifying with the federal government whether that person is lawfully present in the United States. Exhibit A.
34. The "Building Commissioner" for the City of Valley Park is Jeff Schaub. 35. Jeff Schaub does not know what the documents are which are listed on the "Documents Required to Apply for a Valley Park Occupancy Pennit." Schaub Depo, pp. 16-20. 36. If a person gave Jeff Schaub one of the documents listed on "Documents Required to Apply for a Valley Park Occupancy Pennit" relating to that person's legal status he would not know what they were. Schaub Depo, pp. 16-20. 37. There is no one employed by the City of Valley Park who has been trained to recognize the documents listed on "Documents Required to Apply for a Valley Park Occupancy Pennit." Schaub Depo, p. 20-22. 38. The person in Valley Park who has taken responsibility for actually checking on the legal status of potential occupants of dwelling units in the City of Valley Park is Roxanne Ruppel, the Valley Park administrative assistant and assistant to the mayor. Schaub Depo, pp. 21, 27, 60; Ruppel Depo, pp. 8, 77-78. 39. Roxanne Ruppel does not know what the documents are which are listed on the "Documents Required to Apply for a Valley Park Occupancy Pennit." Ruppel Depo, pp. 69-7l. 40. If a person gave Roxanne Ruppel one of the documents listed on "Documents Required to Apply for a Valley Park Occupancy Permit" relating to that person's legal status she would not know what they were. Ruppel Depo, pp. 69-71.
8

41. The process Valley Park would use to verify with the federal government whether

a person is in the United States legally would take 12 to 15 days. Mayor Depo, pp. 60-61.

Respectfully submitted,

BRYAN CAVE LLP

0a By:

~J.

Linda artinez, #30655

lmartinez@brvancave.com

Elizabeth Ferrick, #52241

elizabeth.ferrick@bryancave.com

Rhiana Sharp, #56539

rhiana. sharp@brvancave.com

One Metropolitan Square

S1. Louis, MO 63102

(314) 259-2000

Facsimile: (314) 259-2020

SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski, #38716 kwisniewski(a)uselaws.com 100 South Fourth Street Suite 900 S1. Louis, MO 63102 (314)621-6115 Facsimile: (314) 621-7151
SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannjj(a)SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring S1. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334

9

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 S1. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonmlalSLU .edu 321 N. Spring Avenue S1. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte ilalsbcdobal.net 2200 Pestalozzi Street S1. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirezlalramirezlawfirm.com 1015 Locust Street, Suite 735 S1.Louis,MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
Attorneys for Plaintiffs, Stephanie Reynolds Florence Streeter, and The Metropolitan St. Louis Equal Housing Opportunity Counsel, Inc.
and
10

ALAN BAKER Attorney at Law 1620 South Hanley St. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314 Attorney for PlaintiffJames Zhang
11

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing document was served via U.S. mail, postage prepaid, on the 31st day of May on the following counsel of record: Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin772@aol.com Kris W. Kobach University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk@umkc.edu Counsel for Defendants
12

 
 AFFIDAVIT
Before me, the undersigned authority, personally appeared Jerry Lee, who, being by me duly sworn, deposed as follows:
1. I am the St. Louis County Chief of Police and as such am familiar with the procedures and protocols of the St. Louis County Police Department.
2. The St. Louis County Police Department has access to the Law Enforcement Support Center (LESe), a national enforcement operations facility administered by U.S. Immigration and Customs Enforcement (ICE). LESC is the single national point of contact that provides timely immigration status and identity information to local, state, and federal law enforcement agencies on aliens suspected, arrested, or convicted of criminal activity.
3. The St. Louis County Police Department has access to LESC pursuant to a signed agreement with the federal government which allows for the use of LESC only for certain designated purposes.
4. The St. Louis County Police Department accesses the LESC to inquire as to a person's legal or citizenship status only in instances where a person is arrested or detained for a criminal offense.
5. The St. Louis County Police Department will not access the LESC in order to assist a municipal housing inspector to determine the legal or citizenship status of a potential renter or home purchaser. Such use of the LESC is not authorized by the Police Department's agreement with the federal government.
6. In the event that a municipal housing inspector was to request such services, we would refer them to the proper federal authorities.
Exhibit K

The undersigned swears that the matters set for in the foregoing affidavit are true and

correct according to the undersigned's best knowledge and belief. Subject to the

penalties ofmaking a false affidavit or declaration.

~

Affiant Subscribed and sworn to before me the Notary public this ~ day of
--"-tJt~~++------,, 2007.
Notary Public
My commission expires:
1/'3/',).0015'

 
 07/19/2007 17:40 FAX 636 530 1556

J RONALD LACEY, ATTORNEY

Ii!J 002

IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATe OF MISSOURI

STEPHANIE REYNOLDS, et. aI., Plaintiffs,
v. CITY OF VALLEY PARK, MISSOURI, et ai.,
Defendants.

) ) ) Cause No. 07CC-1420
)
) Division 31 ) ) )
) )

MOTION OF DEFENDANTS TO DISMISS PLAINTIFF'S PETITION FOR DECLARATORY RELIEF AND TEMPORARY, PRELIMINARY, AND PERMANENT INJUNCTION COME NOW Defendants City of Valley Park, Missouri, and for their motion state as follows: 1. That on July 16, 2007, the City of Valley Park, Missouri passed and approved Ordinance 1735, which became effective on that date. 2. That Ordinance 1735 amended Ordinance 1721 (as amended) by deleting all of the controversial provisions pertaining to citizenship, illegal immigration, and aliens. A certified copy of Ordinance 1735 is attached hereto as Exhibit A. 3. That from the effective date of Ordinance 1735, July 16, 2007, all matters before this Court are now mooted, and there remain no issues for this Court to enter a Judgment of Declaratory Relief as there is no longer a
case or controversy or justicible issue before the Court. C.c. Dillon v. City of
Eureka, 12 S.W.3d 322 (Mo. 2000). See also Automobile Club of Missouri v. r;;ity of St. Louis, 334 S.W.2d 355 (Mo. 1960).

1
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07/19/2007 17:40 FAX 636 530 1556

J RONALD LACEY, ATTORNEY

Ii!J 003

WHEREFORE, premises considered, Defendants pray this Court order Plaintiff's Petition dismissed.

ERI M. MARTIN, MBEN 27466 109 hesterfield Business Parkway Chester leld, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
Attorney for Defendant City of Valley Park, Missouri
CERTIFICATE OF SERVICE
I certify J~ab-a copy of the foregoing was mailed, first-class postage prepaid, this ~day of July, 2007, to;
Linda Martinez, Kathy A. Wisniewski Elizabeth Ferrick, Rhiana Sharp Bryan Cave LLP One Metropolitan Square St. Louis, MO 63102
John J. Ammann Susan McGraugh Saint Louis University Legal Clinic 321 North Spring St. Louis, MO 63108
Karen Tokarz Margo Schlanger Washington University School of Law,
Civil Rights & Community Justice Clinic One Brookings Drive, CB 1120
st. Louis, MO 63130
Marie A. Kenyon Catholic Legal ASSistance Ministry 321 N. Spring Avenue St. Louis, MO 63108
2
Page 3of 8received on 7/19/2007 4:35:37 PM [Central Daylight Time] for 5528020.

07/19/2007 17:40 FAX 636 530 1556

J RONALD LACEY, ATTORNEY

Jesus Ituarte Ituarte and Schulte LLC 2200 Pestalozzi Street St. Louis, MO 63118
Anthony B. Ramirez Anthony B. Ramirez, P.C. 1015 Locust Street, Suite 735 St. Louis, MO 63101
Alan J. Baker
Attorney at Law 1620 S. Hanley St. Louis, MO 63144

Ii!J 004

3
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07/19/2007 17:41 FAX 636 530 1556

J RONALD LACEY, ATTORNEY

EXHIBIT A

») STATE OF MISSOURI
»)
ST. LOllS COUNTY»)

Ii!J 005

I, Marguerite Wilburn, City Clerk within and for the City of Valley Park, St. Louis County, Missouri, do hereby certifY that the foregoing constitutes a ful~ true, and complete copy of Ordinance 1735 passed by the Board of Aldermen on the 16th day ofJuly 2007 and approved by the Mayor on the 16th day ofJuly 2007 as fully as the same appears ofrecord in my office in the Book ofOrdinances of said City.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affix the seal ofthe City of Valley Park, Missouri, at my office in said City, this 19th day of July 2007.
~~e !d~ :te: . ar erite tlburn.,. Ctty Clerk

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07/19/2007 17:41 FAX 636 530 1556 07/12/2007 17:54 FAl 838 530 1556

J RONALD LACEY, ATTORNEY J RONALD LACEY. ATTORNEY

Ii!l 006
1(l]022

5?8Lf . BILLNO.!

OR.OINANCE No,.I,za. I)

********************
AN ORDINANCE AMENDING SECTION 510.020,
. SUBSECTION 103.6.1 (ORDINANCIil1721, AS AMENDED), BY DELETING CERTAIN PROVIS:EONS
.' PERTAINING TO CITIZENSHIP AND ILLEGAL. ALIENS CONTAINED WITHIN THE VALLEY P A R K , . PROPERTY MAINTENANCE CODe

."....." .. < ..... ..' ...........•......... ' ' . ,

..
BE rr .ORDAINED BY THE BOAR.D OF ALDERMEN OF THE CITY OF

. VAL.l.EY PARK, MISSOURI, as follows:

,'"

'

"

,

"

. Section DOi

.Set:;tlon.51Q.020, Subsection 103.6.1 (Ordinance 1721, as amended), Is hereby amended by deleting provisions as follow in bold and adding letters, numbers, or language in [brackets]: .

. (al . Itshall be unlawful for any owner or agent of real
property containing a dwelling unit or units to permit or allow
any person to QCcuPY the dwelllnQ unit or part thereof for any purpose until a certificate of occupancy has been Issued by the Building Commissloner~.. every owner, agent or manager of any
'. dwelling unit shall Inform the City whenever any portion Qf the
building or dwelling unit becomes. vacant, or that ill change of
occ:upancy in the building or unit is immInent end an inspection
may .occur and the owner, menager or agent shall apply for an
occupancy permit en such forms prOVided by the City. The City
shall review the application, whiCh shall set forth names, ages, . citizenshlps, and relationships for each proposed occupent,
together with such identifying Information that shall be reqUired
by the City. The Building Commissioner, consistent with
·federa' law. and Ordinance 1722, shall not issue an occupancy permit and will deny the same if any allen unlawfullV present in the United States Is a proposed occupant of the dwelling unit or units, and no inspection
shall be performed. When an alien Is a proposed occupant, the Building Commi1.sioner shall verify with the
federllli government whether the anen is lawfully present in the united States, pursuant to 8 usc § U73(C). The Building Commissioner shall make no independent

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07/19/2007 17:41 FAX 636 530 1556

07/i2/2007 17:114 F;U 636 530 ~S&6

,

'

",

"

,

J RONALD LACEY, ATTORNEY J RONALD LACEY. AnORN.EY

Ii!J 007 li!Jou

judgment Qf the legal status of any alien. If the unit

. contains no proposed occupant who Is an alien unlawfully

. present In the .United States, IIIn [An] inspection shall be

performed under th.;l provisions of this article and, if compliance

with this section 1$ made, an occupancy permit shail be granted

to the owner or hiS agent setting forth the occupants' names,

. .. relatlonshipS,ane! number of occupants allowable at the

. ··premlses.

. ..

..

(b) .. It shall be unlawful for any owner, agent or

manager of a dwelling unit or units to knOwingly make any false

statements in the application for occupancy as to the names,

ages, citizenship, relationships, Identification or .number of

......• occupants w~owill occupy the premises.

,

'

"

", "

"

,

"

,

.

(c)· This section shall only apply prospectively, to

accl,lpancies commencing after the afflictive date of this

.ordinance. .

.. .

.

(d) If the federill government notifies the City Of

Vallev Park that It is unable to verity whether a proposed

OCCIJpant who is an allen is lawfully present In the United

States, the City of Vaney .Park shall not deny the

occupancy· permit on tha~ baSiS, and an Inspection shall

be performed. ..

.. .

.

Hc)]Ce) Any owner [or agent] of real property containing a

dwelling unit. who. IS denied <In Qccupanc:y permit, or any

.proposed occupant who Is unable to lease a dwelling unit

... because the City of Valley Park hal denied an occupancy

. permit concerning the occupant, may challenge the denial of

i the occupancy permit before the Board of Adjustment of the

qty of Valley Park, Missouri, subject to the right of appeal to the

St. l.ouis County Circuit Court. The determination of

. whether an alien is lawfully present In the United States

. shall only be made by the federal government. The BOlrd

of Adjustment may take judicial notice of any verification

of the Individual's status previously provided by the

federal government and may .request the federal

government to .provide automated or testimonial

verifit;atlon.

.

Section Two

ThIs Ordinance shall become effective from and after Its passage and

upon approval by the Mayor.

.

2
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07/19/2007 17.:42 FAX 636 530 1556 07/12/2007 17:55 PA.X 636.530. lU6

J RONALD LACEY, ATTORNEY J RONALD UCEY, ATTORNEY

Ii!l 008
Ii!1024

PASSED AND APP~OVEO THIS .1~AY O~ 12007.

3
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 IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI

STEPHANIE REYNOLDS, et al.
Plaintiffs,
v.
CITY OF VALLEY PARK, MO, Defendant.

)

)

)

)

)

Cause No.: 07CC-001420

)

)

Division: 31

)

)

)

PLAINTIFFS' OPPOSITION TO DEFENDANTS' MOTION TO DISMISS

The Honorable Barbara Wallace has already expressly and unequivocally held that the

Defendants in this case cannot moot a legal action challenging an ordinance by repealing it. For

this reason alone, Defendants' Motion to Dismiss - which is based entirely on the notion that this

case has been "mooted" by Defendants' repeal of the ordinance challenged in this case - is

entirely frivolous. Furthermore, both the Missouri Supreme Court and the United States

Supreme Court precedent makes clear that Defendants' act of repeal does not moot this case.

I. PROCEDURAL HISTORY

The City of Valley Park has repeatedly passed and repealed a series of ordinances that

attempt to prohibit property owners from leasing or renting property to illegal aliens (See Ord.

Nos. 1708,1715,1721,1723,1725 and 1730). Plaintiffs initially filed suit against Valley Park

challenging Ordinance 1708 (Reynolds v. City of Valley Park, Reynolds v. City of Valley Park,

Cause No. 06-CC-3802, Circuit Court of St. Louis County, Missouri (March 13, 2007)("Valley

Park I")(Exh. 1 attached)). Valley Park I was heard by the Honorable Barbara Wallace in

Division 13 of this Court. Id. Just hours after Judge Wallace issued a temporary injunction

enjoining Valley Park from enforcing Ordinance 1708, Valley Park repealed it and passed

1

Ordinance 1715 in its place. Plaintiffs chose to amend their pleadings to challenge the validity of Ordinance 1715 as welL Id. Upon Plaintiffs' motion, the Court also enjoined Valley Park from enforcing Ordinance 1715. Id. ~ 9.
Just weeks before the trial in Valley Park I, the City repealed Ordinance No. 1715 and passed Ordinance No. 1721. Id. ~ 10. As originally enacted, Ordinance No. 1721 expressly stated that it would become effective only if, and when, the injunctions restraining enforcement of Ordinances No. 1708 and No. 1715 were terminated. After two subsequent amendments (Ordinance No. 1723 and No. 1725), Ordinance No. 1721 became effective and enforceable immediately, regardless of whether the injunctions restraining Ordinances No. 1708 and No. 1715 were terminated.
In pretrial briefing in Valley Park I, the City argued that the Plaintiffs' challenges to Ordinances No. 1708 and No. 1715 were "moot" because the ordinances had been repealed. Id. ~ 10. In her order permanently enjoining Valley Park from enforcing Ordinances No. 1708 and No. 1715, Judge Wallace rejected Valley Park's mootness argument holding that "[w]hen a party files suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing the ordinance." Id. ~ 2 (citing R.EJ., Inc. v. City of Sikeston, 142 S.W.2d 744 (Mo. banco 2004) and Northeastern Florida Chapter of the Assoc. General Contractors of America v. City of Jacksonville, 508 U.S. 656, 661-62 (1993). The Court then addressed the substance of Plaintiffs' challenges to the repealed ordinances and ruled that both Ordinances No. 1708 and No. 1715 were in conflict with various Missouri statutes. Id. ~~ 8-l3.
After Judge Wallace entered judgment against Defendants in Valley Park I, Plaintiffs filed this lawsuit challenging Ordinance No. 1721 (as amended) and seeking a permanent injunction restraining enforcement of its provisions. The Court entered a temporary restraining
2

order prohibiting enforcement of Ordinance 1721 until final resolution of this action. During the pendency of the TRO, Valley Park passed and approved Ordinance 1730, yet another amendment to Ordinance 1721.
Most recently, on July 16, Valley Park passed and approved Ordinance 1735 which, according to Defendants, amends Ordinance 1721 "by deleting all of the controversial provisions pertaining to citizenship, illegal immigration, and aliens." (Def. Mot. ~ 2). Defendants have now filed a motion to dismiss Plaintiffs' Petition asserting, as they did unsuccessfully in Valley Park I, that this case is "moot" because they repealed Ordinance No. 1721. Id.
H. ARGUMENT A. Defendants Are Collaterally Estopped from Arguing that this Lawsuit is
Moot Because Judge Wallace Decided this Issue in Valley Park I. Collateral estoppel, also known as issue preclusion, precludes relitigation of an issue previously decided and incorporated into an earlier judgment. Woods v. Mehlville ChryslerPlymouth, 198 S.W.3d 165, (Mo. App. 2006). Once a party litigates an issue and loses, it cannot waste the court's or litigant's time or resources relitigating the issue in a subsequent proceeding. Id. For an issue to be precluded by the doctrine of collateral estoppel: (1) it must be identical to an issue decided in a prior adjudication; (2) the prior adjudication must have resulted in a judgment on the merits; (3) the party against whom the doctrine is being asserted must have been a party or was in privity with a party to the prior adjudication; and (4) the party against whom the doctrine is asserted must have had a full and fair opportunity to litigate the issue in the prior adjudication. Johnson v. Missouri Dept. of Health and Senior Services, 174 S.W.2d 568, (Mo. App. 2005) (citing James v. Paul, 49 S.W.3d 678,682 (Mo. banco 2001); see also Woods, 198 S.W.3d at 168.
3

All four of these requirements are met here and Defendants are collaterally estopped from arguing that repealing an ordinance moots a pending lawsuit challenging that ordinance. To begin with, Defendants' mootness argument in Valley Park I is identical to the argument asserted in their motion to dismiss in this case. In Valley Park I, Defendants repealed Ordinances No. 1708 and No. 1715 shortly before trial and argued that Plaintiffs' challenge was moot and there was no need for the Court to enter judgment (Exh. 1 ~ 10). Judge Wallace issued a final order and judgment in that case holding, in relevant part, that Valley Park could not unilaterally moot a pending lawsuit by repealing an ordinance. Id. ~ 2. Here, Defendants raise the identical issue to this Court asserting that Plaintiffs' challenge to Ordinance No. 1721 should be dismissed because Valley Park repealed the ordinance, and, as a result, all matters before the Court are moot (Def. Mot. ~~ 2-3). There is simply nothing to distinguish Defendants' mootness argument in Valley Park I from that asserted here. Moreover, the remaining requirements of collateral estoppel are clearly met. Defendants cannot dispute that Judge Wallace already decided this issue in her final order and judgment in Valley Park I; that they were named defendants in Valley Park I; or that they fully briefed and argued the mootness issue before Judge Wallace issued the final order and judgment inValley Park 1. This Court has already flatly rejected Valley Park's strategy of repealing ordinances to dodge legal consequences. Defendants are thus collaterally estopped from relitigating the frivolous "mootness" issue at the cost of Plaintiffs and their counsel.
B. The Law is Clear that Valley Park Cannot Moot this Litigation by Repealing Ordinance No. 1721.
Even if Defendants were not collaterally estopped from relitigating the mootness issue (which they clearly are), Judge Wallace's final order and judgment in Valley Park I was factually and legally sound. Both the Missouri Supreme Court and the United States Supreme Court have expressly held that a defendant cannot unilaterally moot pending litigation by repealing the
4

ordinance at issue. See R.EJ., Inc. v. City of Sikeston, 142 S.W.2d 744 (Mo. banco 2004) and
Northeastern Florida Chapter of the Assoc. General Contractors of America V. City of
Jacksonville, 508 U.S. 656,661-62 (1993)).
In R.EJ., the plaintiff filed a petition asking the trial court "to declare that a zoning
ordinance ... was void and unenforceable." 142 S.W.3d at 744. Before the case reached trial,
the city which enacted the ordinance repealed it. Id. The city then filed a motion to dismiss, as
moot, the case wherein the plaintiff sought to have the ordinance declared "void and
unenforceable," and the trial court granted the motion. Id. The R.E.J. court framed the issue
before it as: "[W]hether [plaintiff] was entitled to a determination of whether the ordinance was
'void and unenforceable." Id. at 745. In holding that the repeal of the ordinance did not moot
the plaintiff s right to such a determination, the Missouri Supreme Court stated:
Black's defines 'repeal' as the 'abrogation or annulling of a previously existing law,' and it means to 'revoke, abolish, annul, to rescind or abrogate by authority.' Black's Law Dictionary 1299 (6th ed. 1990). In contrast, something that is void is 'null; ineffectual; nugatory; having no legal force or binding effect ... an instrument or transaction which is wholly ineffective, inoperative, and incapable of ratification and which thus has no force or effect so that nothing can cure it. Id. at 1573. The difference is clear: a valid ordinance can establish enforceable rights and obligations. Once repealed, although the statute becomes prospectively ineffective, its previous effect is not necessarily invalidated. However, to declare a statute 'void' means that it never had the authority to create any legal rights or responsibilities whatsoever.
The repeal of ordinance 5405 did not render [plaintiffs] Sunshine Law claim moot insofar as the repeal did not bestow [plaintiff] with the relief sought and authorized pursuant to the statute. The trial court erred in granting the city's motion to dismiss.
Id. at 745-46.
As in R.EJ., here Defendants filed this case asking the court "to declare that a
[immigration] ordinance ... was void and unenforceable." Here, as in R.E.J., the repeal of
Ordinance No. 1721 did not render Plaintiffs' claim moot "insofar as the repeal did not bestow
5

[Plaintiffs] with the relief sought and authorized" by both the Declaratory Judgment Act and the
Missouri and United States Constitution.
If the Missouri Supreme Court's opinion in R.EJ. could be said to leave any doubt about
Plaintiffs' right to have the Ordinances declared void and unenforceable despite their repeal
(which it does not), this Court need not look far to resolve that doubt. The United States
Supreme Court has repeatedly held that the act of repealing an ordinance does not moot an action
seeking to void it on the grounds it is unconstitutional. In Northeastern Florida, for example, the
plaintiff filed an action seeking declaratory and injunctive relief asserting that an ordinance
passed by a municipality was unconstitutional. After judgment was entered, and while the case
was in the appellate process, the municipality repealed the ordinance and (like here) enacted a
new one which was different, but directed at the same subject matter as the one repealed. The
municipality then sought dismissal of the case claiming it was moot. Rejecting that argumentfor
the second time, the United States Supreme Court stated:
In their brief on the merits, respondents reassert their claim that the repeal of the challenged ordinance renders the case moot. We decline to disturb our earlier ruling, however; now, as then, the mootness question is controlled by City of Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283, 71 L.Ed.2d 152, 102 S.Ct. 1070 (1982), where we applied the 'well settled' rule that 'a defendant's voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice. Id., at 289. Although the challenged statutory language at issue in City of Mesquite had been eliminated while the case was pending in the Court of Appeals, we held that the case was not moot, because the defendant's 'repeal of the objectionable language would not preclude it from reenacting precisely the same provision if the District Court's judgment were vacated.' Ibid.
This is an a fortiori case. There is no mere risk that [defendant] will repeat its allegedly wrongful conduct; it has already done so. Nor does it matter that the new ordinance differs in certain respects from the old one. City of Mesquite does not stand for the proposition that it is only the possibility that the selfsame statute will be enacted that prevents a case from being moot; if that were the rule, a defendant could moot a case by repealing the challenged statute and replacing it with one that differs only in some insignificant respect ...
6

Northeastern Florida, 508 U.S. at 661-62 (emphasis in original). This case is indistinguishable from Northeastern Florida. While Defendants here, as
there, have already repealed one ordinance (in fact, three) directed at "illegal immigration" they have repeated their wrongful conduct by enacting new ones, and, there is no indication that Defendants will ever stop enacting such ordinances. In fact, after the Board of Alderman passed Ordinance No. 1735, the Mayor himself insisted: "I am not a quitter, and I'd do all this again tomorrow." (Suburban Journal, Valley Park Mayor Considers Vetoing Immigration Bill, July 23, 2007 (Exh. 2 attached). Absent a permanent injunction (either voluntary or imposed by this Court after its hearing on Plaintiffs' Motion for Summary Judgment) Plaintiffs will be exposed to the very real threat that Valley Park will reenact Ordinance No. 1721 or another substantially similar ordinance. As Valley Park I, the Missouri Supreme Court and United States Supreme Court precedent makes clear: this case is not moot.
III. CONCLUSION For all the foregoing reasons, Defendants' Motion to Dismiss Valley Park's Petition should be denied.
Respectfully submitted, BRYAN CAVE LLP
By: Linda MMtlllez, #30655 Imartinezrmbryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com
7

One Metropolitan Square S1. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski, #38716 kwisniewski@uselaws.com 100 South Fourth Street Suite 900 S1. Louis, MO 63102 (314) 621-6115 Facsimile: (314) 621-7151 SAINT LOUIS UNIVERSITY LEGAL CLINIC John J. Ammann, #34308 ammannji@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU .edu 321 North Spring S1. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
8

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice) mschlangerlal,wulaw.wustl.edu One Brookings Drive, CB 1120 S1. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonmlal,SL U .edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte jlal,sbcglobal.net 2200 Pestalozzi Street S1. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 S1. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
Attorneys for Plaintiffs, Stephanie Reynolds Florence Streeter, and The Metropolitan St. Louis Equal Housing Opportunity Counsel, Inc.
and
9

ALAN BAKER
Attorney at Law 1620 South Hanley St. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314 Attorneyfor PlaintiffJames Zhang
10

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing document was served via u.S. mail, postage prepaid, on the 25th day of July on the following counsel of record: Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin772@aol.com Kris W. Kobach University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk@umkc.edu Counsel for Defendants
11

MAR-12-2007 14:24

STLOUIS-CO-21 JUDICIAL

3146158280 P.002

FILED lN THE CIRCD1T COURT OF THE COUNTY OF ST. LOUIS STATE OF MISSOURI

STEPHANIE REYNOLDS, et al.

)

)

MAR I 2 2007

Plaintiffs)

)

)

and

)

JOAN M. GILMER
OIRCUIT CI.eRK. ST.I.OUIS COl/NTY

)

JAMES ZHANG,

)

Cause No. 06·CC·3802

)

Intervenor,

) Division No. 13

)

v.

)

)

CITY OF VALLEY PARK, MO, et al. )

)

Defendants.

)

FINDINGS OF FA~.T. CONCLUSIONS OF LAW, ORDER AND JUDGMENT

This matter is before the Court on Plaintiffs' Motion for Judgment on the Pleadings and

Defendants' Motion to Dismiss Attorney Fee Claim. The Motions were called, heard and taken

under submission on February 26,2007. The parties submitted a Joint Stipulation of Facts, and

the Court .finds there is no significant factual dispute. On March 1, 2007, the Court took further

submissions, argument and testimony on the limited issues raised in Plaintiffs' Motion for

Judgment on the Pleadings and Defendants' Motion to Dismiss Attorney Fee Claim. The Court

having heard the arguments of counsel, having read the memoranda and case Jaw submitted,

having reviewed the evidence adduced and being now fully advised, enters the following

Findings ofFact, Conclusions of Law, Order and Judgment.

FINDINGS OF FAG!;

1. Plaintiffs filed this case under the Missouri Declaratory Judgment Act, section

527.010, RSMo., et seq., seeking to have City o[ValleyPark Ordinance No. 1708 and Ordinance

No. 1715 declared void and unenforceable, and asking the Court for a temporary, preliminary,

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Exhibit 1

MAR-12-2007 14:24

STLOUIS-CO-21 JUDICIAL

3146158280 P.003

and pennanent injunction enjoining enforcement of those Ordinances. Plaintiffs also assert a right to an award of attorneys fees based on "unusual circumstances."
2. Defendants have filed a Motion to Dismiss for Failure to State a Claim or Cause of Action for Award of Attorney's Fecs asserting that in litigation against a political subdivision of the State, attorneys' fees cannot be awarded as "costs" under the Declaratory Judgment Act.
3. Ordinance No. 1708, enacted on July 16, 2006, prohibits any "for-profit entity" from "aid[ing] and abet[ting] illegal aliens or illegal immigration" and purports to penalize those who commit such acts by denying: business pennits; the renewal of business permits; and city contracts and grants "for a period of not less that [sic] five (5) years from its last offense."
4. Ordinance No. 1708 also prohibits property owners or others "in control of property" from "leasing or renting" property to an "illegal alien" and purports to penalize those who commit such aets by a "fine of not less than Five Hundred Dollars ($500.00).~)
5. On September 26, 2006, this Court entered a Temporary Restraining Order enjolIiiIig enforcement of Ordinance No. 1708. By agreement of the parties that order was continued until such time as this Court ordered it tenninated, and it remains in effect today.
6. On September 26, 2006, just hours after this Court entered its Order enjoining enforcement of Ordinance No. 1708, Defendant City of Valley Park enacted Ordinance No. 1715, which expressly stated that "Sections One, Two, Three and Four of Ordinance No. 1708 are hereby repealed," leaving only the severability section of that Ordinance still viable.
7. Ordinance No. 1715 makes it "unlawful for any business entity to recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City," and provides that a violation of this provision which is not corrected "within three (3) business days after notification of the
2
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MAR-12-2007 14:24

STLOUIS-CO-21 JUDICIAL

3146158280 P.004

violation by the Valley Park Code Enforcement Office" shall be punished by an indefInite and automatic suspension of that entity's business license.
8. Ordinance No. 1715 also makes it "unlawful for any person or business entity that owns a dwelling unit in the City to harbor an illegal alien in the dwelling unit/' and provides that a violation of this provision which is not corrected "after five (5) business days following receipt of written notice from the City that a violation has occurred" shall be punished by the suspension of the occupancy pem'lit for the dwelling unit, and that during the period of such suspension the offending party "shall not be permitted to collect any rent, payment, fce, or other fonn of compensation from, or on behalf of any tenant or occupant in the dwelling unit," and "[i]n addition, the City of Valley Park shall not issue occupancy permits for any properties owned during the suspension period."
9. On September 27, 2006, this Court entered a Temporary Restraining Order enjoining enforcement of Ordinance No. 1715. By agreement of the parties that order was continued until such time as this Court ordered it terminated, and it remains in effect today,
10. Defendant has represented to this Court that it recently repealed Ordinance No. 1715. and admitted into evidence the new ordinances only for the purpose of its argument on mootness. Plaintiffs have not amended their pleadings to put the issue of the validity of the new ordinances before the Court.
11. Defendant City of Valley Park is a city of the fourth class located in SL Louis County, Missouri.
12. Missouri statutes set forth the penalties and limitations which can be imposed for an ordinance violation by a fourth class city:

3
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MAR-12-2007 14:24

STLOUIS-CO-21 JUDICIAL

3146158280 P.005

For all ordinance violations the board of aldermen may impose penalties not exceeding a fine of five hundred dollars and costs, or ninety days' imprisonment, or both the fine and imprisonment.

MO.R.STAT. § 79.470.

13. Missouri statutes set forth the parameters under which a tenant can be evicted from a

leased unit:

A tenancy at will or by sufferance, or for less than one year, may be terminated by the person entitled to the possession by giving one month's notice, in writing, to the person in possession, requiring the person in possession to vacate the premises.

*

*

Except as otherwise provided by law, all contracts or agreements for the leasing renting or occupation of stores, shops, houses, tenements or other buildings in cities, towns or villages ... not made in writing, signed by the parties thereto, or their agents, shall be held and taken to be tenancies from month to month, and all such tenancies may be terminated by either party thereto, or the party's agent, giving to the other party, or the party's agent, one month's notice, in writing, of the party's intention to terminate such tenancy.

MO.R.STAT. § 441.060.

... a landlord or its agent who removes or excludes a tenant or the tenant's personal property from the premises without judicial process and court order, or causes such removal or exclusion, or causes the removal of the doors or locks to such premises. shall be deemed guilty of forcibJe entry and detainer ...

MO.R.STAT. § 441.233.

14. In their Motion Plaintiffs assert the Ordinances at issue arc void because they conflict

with Missouri state law.

4
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MAR-12-2007 14:25

STLOUIS-CO-21 JUDICIAL

3146158280 P.006

CONCLUSIONS OF LAW 1. This Court has previously considered the issue of standing and determined Plaintiffs have standing to challenge the validity of Ordinance No. 1708 and Ordinance No. 1715 under the Missouri Declaratory Judgment Act. 2. Without deciding whether Defendant City of Valley Park has effectively repealed
Ordinance No. 1708 and Ordinance No. 1715) the Court finds and concludes under R.EJ., Tnc. v.
City of Sikeston, 142 S.W.3d 744 (Mo. banco 2004), and Northeastern Florida Chapter of the Assoc. General Contractors of America v. City of Jacksonville, 508 U.S. 656, 661-62 (1993), this ease is not moot. When a party files suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing the ordinance. rd. Furthennore, the Court finds the new ordinances are ~'sufficiently similar" to the old ordinances in that they are directed at the same class of people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct \;I;/ill continue. City of Jacksonville, suam. 508 U.S. at 662-63 and n. 3.
3. "(AJ motion for judgment on the pleadings should be sustained if. from the face of the
pleadings, the moving party is entitled to judgment as a matter of law." Madison Block
Pharmacv, Inc. v. United States Fidelity & Guaranty Co., 620 S.W.2d 343, 345 (Mo. bane 1981). Because "[t]he interpretation of an ordinance is a question of law," State ex reI. Sunshine Enterprise of Missouri, Inc. v. Bd. of Adjustment of the City ofSt. Ann, 64 S.W.3d 310,312 (Mo. bane 2002), this case is particularly well-suited for disposition by a motion for judgment on the pleadings.
4. A municipality can legislatively regulate its citizens only where the power is "granted in express words," is Hnecessarily or fairly implied in or incident to" an express power, or is
5
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STLOUIS-CO-21 JUDICIAL

3146158280 P.007

"essential to the declared objects and purposes" of the municipality. State ex reL Curators of Unlversity of Missouri v. McReynolds, 193 S.W.2d GIl, 612 (Mo. bane 1946); Premium Std. Farms,Jne. v. Lincoln Township of Putnam Cty., 946 S.W.2d 234, 238 (Mo. bane 1997).
5. "Any fair, reasonable doubt concerning the existence of power is resolved by the courts against the corporation and the power is denied." Id.
6. As a fourth class city, Defendant City ofVallcy Park can enact and enforce only those ordinances which are "'not repugnant to the constitution and laws of ihis state." MO.R.STAT. §79.110.
7. "A municipal ordinance must be in harmony with the general law of the state and is void if in conflict. In determining whether an ordinance conflicts with general laws, the test is whether the ordinance penuits that which the siatute forbids and prohibits, and vice-versa. The powers granted a municipality must be exercised in a manner not contrary to the public policy of the state and any provisions in conflict with prior or subsequent state statutes must yield." Morrow v. City orKansas City, 788 S.W.2d 278, 281 (Mo. bane 1990).
8. The express provisions of both Ordinance No. 1708 and Ordinance No. 1715 are not in harmony with and conflict with MO.R.STAT. § 79.470.
9. Ordinance No. 1708 conflicts with MO.RSTAT. § 79.470 in that it provides for a fine of "not less than Five Hundred Dollars ($500.00)," and the loss of a business pennit (or its renewal) for a violation of its provisions. These penalties are either expressly prohibited by, or not authorized by, the governing state statute.
10. Ordinance No. 1715 conflicts with MO.R.STAT. § 79.470 in that it penalizes a violation of its provisions by suspending existing occupancy permits, refusing the issuance of any new occupancy pennits) prohibiting the collection of rent or compensation, and by forcing a
6
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STLOUIS-CO-21 JUDICIAL

3146158280 P.008

business to forego a business pennit, or renewal of a business permit) for a period of ''not less than five (5) years." These types of penalties are not authorized by the governing statute. In addition, the monetary value of sueh penalties exceeds the $500 maximum fine authorized by Missouri law for an ordinance violation under Mo.R.sTA1'. § 79.470.
11. The express provisions of Ordinance No. 1715 also conflict with, and are not in
harmony with, MO.R.sTAT. § 441.060 and Mo.RSTAT. § 441.233. While the Ordinance
provides penalties for any landlord who does not evict, within five days, a tenant found to be an
"illegal alien," Missouri state law forbids and prohibits a landlord from evicting a tenant without at least 30 days notice (MO.R.STAT. § 441.060), and requires a landlord to use 'judicial process" before forcing any eviction (MO.R.STAT. § 441.233).
12. When the invalid provisions of an ordinance are so "coIlllected and interdependent"
with those which might be valid "that it cannot be presumed the legislature would have enacted
one without the other," the entire ordinance should be declared void. Stine v. Kansas City, 458 S.W.2d 601, 608 (Mo.App. 1970); see also, Missouri Association of Club Executives, Inc. v. State of Missouri, 208 S.W.3d 885,888-89 (Mo. banc 2006).
13. This Court fmds and concludes the penalty provisions of Ordinance No. 1708 and
Ordinance No. 1715 are invalid due to conflicts with Missouri state law, leaving the remaining
provisions ineffectual due to lack of any means of redress. Accordingly, the Ordinances are void in their entirety.
14. Generally, courts have: broad discretion to award attorneys fees as costs in an action brought under the Missouri Declaratory Judgment Act, section 527.100, RSMo., upon proof of "special" or "unusual circumstances." See, David Ranken, Jr._J:cchnical Tnstitute v. Bovkins,
816 S.W.2d 189, 193 (Mo.bane 1991).
7
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3146158280 P.009

15. However) in litigation against a political subdivision of the State of Missouri) the Court .finds and concludes under .Saum!] v. Howard County, 660 S.W.2d 702 (Mo. 1983) and Tillis v. City of Branson, 975 S.W.2d 949 (Mo.App. S.D. 1998), that attorneys' fees cannot be awarded to a prcvailing party as "costsH under the Act.
16. Plaintiffs contend their request for attorneys' fees is viable since Defendant City of Valley Park is covered by insurance and cite MO.R.sTAT § 537.610, which provides that a govemmental unit "may purchase liability insurance for tort claims... [and] [sJovereign immunity for the state of Missouri and its political subdivisions is waived only to the maximum amount of and only for the purposes covered by such policy of insurance." The Court concludes Defendant City of Valley Park's insurance coverage is not relevant in that Plaintiffs have not alleged a tort and the statute is addressed, by its own terms, to the waiver of sovereign immunity.
IT IS THEREFORE ORDERED that Plaintiffs' Motion for Judgment on the Pleadings is GRANTED. Judgment is hereby entered in favor of Plaintiffs and against Defendant City of Valley Park, and Ordinance No. 1708 and Ordinance No. 1715 are declared void. Pursuant to MO.REv.STAT. § 527.080 and MO.R.erv.p.87.10, this Court orders that the temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance No. 1715 are hereby made permanent. Defendants' Motion to Dismiss for Failure to State a Claim or Cause of Action for Award of Attorneys Fees is GRANTED.
SO ORDERED;

Date cc: Attorneys of Record

Barbara W. Wa11ace, Judge

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Suburban Journals - News

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Valley Park mayor considers vetoing immigration bill

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By Mary Shapiro Monday, July 23, 20072:39 PM COT

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Mayor Jeff Whitleaker is leaning

toward vetoing legislation,

passed July 16 by the Board of

Aldermen, that would remove

part of its law relating to illegal

immigrants, which had banned

landlords from renewing

occupancy permits if they rent to Mary Shapiro photol Valley Park Mayor ,Jeff Whitteaker is shown here in his office at City

those individuals.

Hall with letters and e-mails in support of the city's laws related to illegal immigration.

"1 have until the next board meeting on August 6 to decide if I'll veto the bill," he said.

Whitleaker said that since the laws were passed, the city has spent $89,533 on legal expenses to defend itself against various lawsuits. He told the board, "We're nearly at the
end of the bridge (with lawsuits opposing the laws). Only a small amount of additional money will be spent before the judge makes a ruling, on something could affect the whole country, and I hope we can finish this out."

The board voted 5-3 in favor of the law. John Brust, Don Carroll, Mike Pennise, Ed Walker and Mike White were in favor, while Dan Adams, Randy Helton and Steve Drake were opposed.

In June, the board approved a resolution to not

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Suburban Journals - News

Page 2 of 4

pass any new laws addressing illegal immigration. However, officials will continue their legal defense of three lawsuits challenging the constitutionality of the city's existing illegal-immigration laws.
. City Attorney Eric Martin said the repeal action . July 16 was taken based on advice from special legal counsel "so we can concentrate on provisions of the laws affecting employers (who hire illegal immigrants)."
~ www.trostplastic:s.com Pennise said that while many living outside the _WM#·3P·'·"·"'·P$··,'.cm···lli·cmY··.M&£$W_"".,=_*"P.%____~ city have indicated they support Valley Park's
efforts, "we're not getting enough help from them - and we don't have that kind of money (to continue fighting lawsuits)."
"The federal government has let us down (in not passing effective new laws or by enforcing existing ones) - and our state doesn't care," he said.
Pennise asked aldermen to consider repealing all illegal immigration laws, but the board declined.
"I'm tired of fighting and wasting money," he said.
Carroll agreed. He said, "The federal and state governments should handle this issue, not a city of 6,500 people. We can't keep up financially with those suing us, and we need to put a stop to this by getting out (of litigation) as quick and easy as possible. This is too expensive. It was a good idea, but we can't afford to continue."
White said the city's laws "were started for the right reasons.
"People tell us we're doing the right thing, but they fall away when it's time to financially support us," White said.
Resident Leo Anglo said, "It is irresponsible for the city to expose itself to such an expense. He said repealing illegal immigration laws would allow the city to focus on issues that will have more impact on the city.
Adams, while agreeing with Pennise on the lack of state and federal government help on the issue, asked, "Do we just allow illegal aliens to roam freely, unchecked?
"This issue will affect the ability of my children and grandchildren to find good-paying jobs. It will take small communities to move this issue forward."
Drake said, "This fight is paramount. It's about our community and country."
Whitteaker insisted, "I'm not a quitter, and I'd do all this again tomorrow."
You can contact Mary Shapiro at mshapiro@yourjournal.com.

:: Read Steve h,
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http://suburbanjournals.stltoday.com/articles/2007/07/23/news/sj2tn20070723-0723prLvpillegal.ii 1.txt

712512007

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

STEPHANIE REYNOLDS, et al.
Plaintiffs,
v.
CITY OF VALLEY PARK, MO, Defendant.

)

)

)

)

)

Cause No.: 07CC-001420

)

)

Division: 31

)

)

)

PLAINTIFFS' MOTION FOR RECONSIDERATION OF ORDER OF DISMISSAL OR, ALTERNATIVELY, FOR AN AWARD OF ATTORNEY'S FEES AND COSTS AND MEMORANDUM IN SUPPORT

Plaintiffs move this Court to reconsider the Order of dismissal and judgment entered on

August 3, 2007. Alternatively, in the event this Court denies reconsideration, Plaintiffs move

this Court to enter an order finding that they were the "catalyst" to Defendant's repeal of the

challenged ordinance and are thus entitled to an award of attorneys' fees and costs.

MEMORANDUM

I. THE ORDER OF DISMISSAL IS ERRONEOUS

Plaintiffs respectfully submit that the Order dismissing this case is patently erroneous.

For one thing, the Order is based on an issue (i.e., whether a legal action challenging an

ordinance can be mooted by a repeal of that ordinance) that was finally decided by the Honorable

Barbara Wallace in a nearly identical case between the same parties; thus, under the doctrine of

collateral estoppel, this Court's contradictory finding is clearly erroneous.

Furthermore, this case simply is not moot. Defendant remains free to reenact the same

identical ordinance which it repealed only after months of litigation. Indeed, Defendant refused

to enter a consent judgment making the temporary injunction permanent to ensure that the

ordinance would not be reenacted (the undersigned counsel, by her signature, attests that she discussed this option with Defendant and it was rejected). However, instead of ensuring that this case would end in a non-controversial manner by utilizing this approach, Defendant insisted that the case be dismissed with no injunction preventing reenactment of the repealed ordinance. Defendant's outright refusal to consent to a permanent injunction enjoining enforcement of the current ordinance makes clear that its intent is to preserve the right to reenact the ordinance at its whim. Because Defendant retains such a right this case simply is not moot.
Defendant's recent actions illustrate its intent. Just days after this Court apparently issued its order dismissing this case, Defendant continued its pursuit of immigration ordinances. It called a special meeting of the Board of Alderman (and without providing adequate notice of the meeting as required by MO.REV.STAT. § 610.020.2) proposed passage of Ordinance No. 1736 directed at the employment of "illegal aliens." If enacted, Ordinance No. 1736 will be in direct contravention of a permanent irifunction issued by the Honorable Barbara Wallace prohibiting enforcement of a nearly ordinance and in direct contravention of the City's own June 18 resolution not to approve any new laws addressing illegal immigration. See Ordinance No. 1736 attached as Exhibit A hereto and June 18 Resolution attached hereto as Exhibit B.
Furthermore, and in any event, the Missouri Supreme Court has made clear that when a party files suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing the ordinance. See R.E.J., Inc. v. City of Sikeston, 142 S.W.2d 744 (Mo. banco 2004). For all of these reasons, Plaintiffs respectfully request that this Court reconsider its Order of August 3, 2007, dismissing this case.
2

II. PLAINTIFFS ARE ENTITLED TO AN AWARD OF FEES Alternatively, in the event this Court does not reconsider its Order of dismissal, it should
find that Plaintiffs are entitled to an award of attorneys' fees and costs, and order Plaintiffs to submit a statement of the fees and costs so that an award can be calculated. Plaintiffs were the "catalyst" to the repeal of the challenged ordinance, and thus are the true prevailing parties in this Declaratory Judgment Act case. See Lett v. Citv ofSt. Louis, 24 S.W.3d 157, 164 (Mo.App. 2000) (indicating "catalyst" theory "extends prevailing party status to some plaintiffs even though they have not obtained an enforceable judgment or comparable relief through a consent decree or settlement"). Lawyers for Defendant, the mayor, and alderman all concede that they repealed the "offensive" aspects of the ordinance in response to this litigation. See Selected Newspaper attached hereto as Exhibit C. Alderman Adams candidly admitted: "If we thought we could win, we'd still be going." ld.
And, under the auspices of MO.REv.STAT. § 527.100, courts have broad discretion to award attorneys' fees as costs in an action brought under the Missouri Declaratory Judgment Act, upon proof of "special" or "unusual" circumstances. See, e.g., David Ranken, Jr. Tech. lnst. v. Boykins, 816 S.W.2d 189, 193 (Mo. banc 1991). Notably, at least one court has allowed an award of attorneys' fees in a declaratory judgment act case brought against a municipality MO.REv.STAT. § 527.100. See Law v. City of Maryville, 933 S.W.2d 873, 878 (Mo.App. W.D.1996).
"Unusual circumstances" exist in this case which support an award of attorneys' fees. Indeed, Plaintiffs have become the standard-bearers in combating unconstitutional ordinances aimed at illegal immigrants enacted by local municipalities acting outside the scope of their delegated authority. Defendants have attempted to change the course of the multiple judicial
3

proceedings challenging such ordinances through legislative activities by enacting multiple ordinances governing the same subject matter and/or modifying them each time they are attacked. These tactics have resulted in delay, and have unnecessarily complicated this litigation resulting in the expenditure of exorbitant fees and costs.
Furthermore, it is the public policy of this state, declared through legislative enactment, that those governmental entities covered by insurance should reimburse individuals harmed by the wrongful actions and inactions of those governmental entities. Specifically, Missouri law provides that a governmental unit
... may purchase liability insurance for tort claims ... [and] [s]overeign immunity for the state of Missouri and its political subdivisions is waived only to the maXImum amount of and only for the purposes covered by such policy of msurance. MO.REv.STAT. § 537.610. In other words, if Defendant City of Valley Park has purchased an insurance policy for torts, and one of the "purposes" of that policy is to cover attorney fee claims in a case like this, it is not "immune" from being held accountable for the monetary results of its wrongful conduct. See, e.g., Kunzie v. City of Olivette, 184 S.W.3d 570, 574 (Mo. banc 2006) (in case where the plaintiff brought claims for wrongful discharge and retaliation, court held that "if the city maintains insurance that covers these types of claims, then it will have waived its immunity ... A municipality's procurement of insurance constitutes an absolute and complete waiver of all immunities"). Defendant Valley Park has an insurance policy which provides coverage for any award of attorneys' fees made in this case. See Copy of Insurance Policy, attached hereto as Exhibit D. When a political subdivision purchases insurance that provides coverage for a specific claim, they are waiving any immunity they have from such claim and thereby consenting to be liable to
4

a claimant up to the limits of the insurance purchased. See MO.REV.STAT. § 537.610. Plaintiffs thus are entitled to an award of attorneys fees. III. PLAINTIFFS ARE ENTITLED TO AN AWARD OF COSTS
Plaintiffs brought this action to enjoin enforcement of an unconstitutional ordinance. Plaintiffs effectively succeeded in this effort, in that their efforts have resulted in a repeal of the challenged ordinance. A judgment was entered in favor of Defendant only because it waived the white flag, and surrendered to the relief Plaintiffs were seeking. Plaintiffs are thus the true prevailing party entitled to costs.
CONCLUSION FOR RELIEF Plaintiffs respectfully request that this Court reconsider the Order of dismissal and judgment apparently entered on August 3, 2007. Alternatively, in the event this Court denies reconsideration, Plaintiffs respectfully request that this Court enter an order finding that they are entitled to an award of attorneys' fees and costs.
5

Respectfully submitted,
BRYAN CAVE LLP
By: Linda Martinez, #30655 lmartinez(@'bryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick@brvancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square S1. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski, #38716 kwisniewski@uselaws.com 100 South Fourth Street Suite 900 S1. Louis, MO 63102 (314) 621-6115 Facsimile: (314) 621-7151
SAINT LOUIS UNIVERSITY LEGAL CLINIC JohnJ.Aunmann,#34308 ammannji@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
6

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte j@,Sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400
ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778
Attorneys for Plaint!fjs, Stephanie Reynolds Florence Streeter, and The Metropolitan St. Louis Equal Housing Opportunity Counsel, Inc.
and
7

ALAN BAKER Attorney at Law 1620 South Hanley St. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314 Attorneyfor PlaintiffJames Zhang
8

CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and accurate copy of the foregoing document was served via U.S. mail, postage prepaid, on the 10th day of August on the following counsel of record: Eric M. Martin, Esq. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin772@aol.com Kris W. Kobach University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk@urnkc.edu Counselfor Defendants
9

BILL NO. 1885

ORDINANCE NO. 1736

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

AN ORDINANCE AMENDING ORDINANCE 1722 AS AMENDED BY ORDINANCES 1724 AND 1732 BY MAKING THE ORDINANCE EFFECTIVE IMMEDIAn.LY
BUT STAVING THE ENFORCEMENT OF SECTIONS 2, 3,4,5 AND 6 AND NOT ACCEPTING COMPl.AINTS THEREUNDER UNTIL DECEMBER 1, 2007

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

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

$ecHon One

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

"Section One

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

5ectionJw0

FINDINGS AND DECLARATION OF PURPOSE.

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

At That state and federal law require that certain conditions be met
before a person may be authorized to work in this country• .....-.......... '.
S. That unlawful workers and illegal aliens, as defined by this
Ordinance and state, and federal lawI do not'nonnally meet such conditions as a matter of law When present in the City of Valley Park.

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

1

,.--------

lOO~

XYd(

EXHIBIT
A

.~~8lsg.q [awllltl6gma 1lQU&~1 wv l~:~t:6l00z/O~m uo peA!G~J l10 Za6~d

"

"

endangers the security and safety of the homeland. Employment of
unauthorized aliens reduces the wages of, and may result in the unemployment of, U.S. dtizens and aliens who are authorized to
work in the United States.

D. That the City of Valley Park is authorized to enact ordinances to promote the health, safety, and welfare of its residents and to abate
publIc nuisances, induding the nuisance of illegal immigration, by diligently prohibiting the acts and practIces that facilitate illegal immigration, in a manner conSistent with federal law and the objectIVes of Congress.

E. This Ordinance seeks to secure to those lawfully present in the
United States and this City, whether or not they are citizens of the
United States, the right to live In peace free of the threat of crime,
to enjoy the public services provided by this aty without being burdened by the ca$t of providing "goods, support and ser;vices. to
aliens unlawfully present in the United States, and to be free of the
debilitating effects on their economIc and social well being Imposed by the influx of illegal. aliens, to the fullest extent that these goals can be achieved conSistent with the COnstitution and Laws of the
United States and the state of Missouri.
F. The en:y shall not construe this Ordinance to prohibit the rendering
of emergency medical care, emergency aSSistance, or legal assistance to any person.

§e&tion Threg

DEF!NITIONS.

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, induding federal Immigration law:

A. tlBusiness entitY' means any person or group of persons performing
or engaging in any actMty, enterprisel 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,

$elf-employed individuals, partnerships, corporations,

contractors, and subcontractors.

.

(2) The term business entity shall include any business entity
that possesses a business license! any business entity that is
exempt by law "from obtaining such a business license, and any business entity that is operating unlawfully without such ·a bUSiness Ifcense.
2

600~

YVd Oc:SO LOOZ/Ol/S0

B. ·City~ means the City of Valley Park, Missouri.
C. llContractor" 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 tOt a subcontractor, contract employee, Or a recruiting or staffing entity.
D. "l\IUegaJ 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 govemme,nt, pursuant to United States Code Title St,subsection 1373(c), that the'person is an ~lien who is not lawfully present in the United States.
E. "Unlawful worker" means a person who does not have the legal
light or authorization to work due to an impedIment in any proviSion
of federal, state or local (aw, induding, but not limited to, a minor
disqualified by nonage, or an unauthOrized alien as defined by
United States Code Title 8, subsection 1324a(h)(3).
F. \\Work" means any job, talk, employment, labor, personal services,
or any other activity for whIch compensation is proVided, expected,
or due, incfuding, but not limited to, all activities conducted by
business entities.
G. "Basic Pilot Program" means the electronic verification of work authoriZatien program ef the Illegal Immigration Reform and
Immigration responsibility Act of 1996, P.L. 104-208, Division Ct Sectien 403(a)i United States Code Title 8, subsection 1324a, and
operated by the United States Department of Homeland Security (or
a successor program established by the federal govemment.)
Section FolLt
BUSINESS PERMITS, CONTRACTS, OR GRANTS..
A. It Is unlawful for any business entity to. knowingly recruit, hire for
employment, or continue to emploYI or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City. Every busIness entity that applies for
a business license to. engage In any type of work in the City shall
sign an affidavit, prepared by the aty AttorneyI affirming that they do not knowingly utilize the servIces or hire any persen who is an unlawful WOrker.

£'OO~

:3
XVd TC:60 LOOZ/OT/SO

B. Enforcement: The Valley Park Code Enforcement Office shalf
enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Valley Park Code Enforcement Office submitted by any City offidall business entityI or City
resident. A valid, complaint shall include an allegation which
describes the alleged violator(s) as well as the actions constituting the viOlationI' and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of national ongln, ethnicity, or race shall be deemed invalid and shan not be enforced.
(3) Upon receipt of a valid complaint, the Valley Park Code Enforcement OffIce shallt Within three (3) bUSiness days, request identify information from the business entity regarding any persons alleged to be unlawful workers. The
valley Park Code Enforcement Office shall suspend the
business permit of any business entity which failsr within
three (3) business days after receIpt of the request, to
provide such information•
. .
(4) The Valley Park Code Enforcement Office shall suspend the business license of any bUSiness entity whIch fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.
case (S) In any in which the alleged unlawful worker is alleged to be an unauthorized alieni the Valley Park Code Enforcement Office shall not suspend the business license of the business entity if prior to the date .of the violationr the busIness entIty had verified the work authorization of the alleged unlawful worker using the BaSic Pilot Program.
(6) The suspension shall terminate one (1) business day after a legal representative of the business entity submits/ at a City office designated by the City Attorney, a sworn affidavit stating that the bUSiness entity has corrected the violation, as described in SectIon S.B.
(a) The affidavit shall include a description of the specific measures and actions taken by the bUSiness entity to correct the violation/ and shall include the name, address and other adequate Identifying information of the unlawful workers related to the complaint.

4

voo~

YVd rc:ao Looz;or;so

(b) Where two or more of the unlawful workers are verified .' by the federal government'to be unauthorized aliens, the fegal representative of the business entIty shall submit to the Valley Park Code Enfor:cement Office, in addition to the prescribed affidavit, documentation acceptable to the City Attorney which confirms that the business entity has enrolled in and will participate in the Basi~ Pilot Program for the duration of the validity of the business permit granted to the business entity.
(7) For a second or subsequent Violation, the Valley Park COde Enforcement Office shall suspend the business permit of a business entity for a period of twenty (20) days. After the ·end of the suspension period, and upon receipt of the presCribed affidavit, the Valley Park Code Enforcement Office shall reinstate the business pennit. The Valley Park Code Enforcement Office shall forward the affidavit, complaint, .and
assodated documents to the appropriate federal enforcement agency, pursuant to United States Code 11tIe 8; section 1373. In the case of an unlawful worker disqualified by state. law not
related to immigrationt the Valley Park COde E;:nforcement Office shan forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.
c. All agencies of the City shall enroll and partldpate In the Bastc 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, tabor or, personal services shall exceed $10,000, the business entity shall provide documentation confirming its enrollment and participation in the Basic Pilot Program.
Section Five
IMPLEMENTATION AND PROCESS
A. ProspectIVe Application Only. The default presumption with respect
to Ordinances of the Cty of Valley Pari< - that such Ordinances apply only prospectively - shall pertain to the provisions of this Ordinance, whiCh shall apply only to employment cOntracts, agreements to perfonn service or work, and agreements to provide a certain product In exchange for valuable consideration that are entered into or renewed after the date that this Ordinance becomes effective and any judidal injunction prohibiting its implementation is removed.
B. Corms::tiOQ of Violations-Employment of Unlawful Workers. The correction of a violatIon with respect to the employment of an unlawful worker shalt indude any of the 'following actions:
5

SOOIll

XVd 1C:60 LOOZ/01/80

(1) The business entity. terminates the unlawful worker's employment.

(2) The business entity, after acquiring additional information from, the workerj ' requests a secondary or additional
verlficatton by the federal government of the worker's authorization, pursuant to the procedures of the Basic Pilot
Program. .While this verification is pending, the three
business day period described in Section 4.8.(4) shall be tolled.

(3) The business entity attempts to terminate the unlawful
worker's employment and suCh termination is challenged in a
Court of the State of Missouri. While the business entitY
pursues the termination of the unlawful worker's employment in such forum, the three business day period described in
Section 4.8(4) shall be tolled. '
c. f.r.QCedure if Verification is Delayed. If the federal government notifies the City of Valley Park that it is unable to verify whether an individual is authorized to work in the United States, the City of Valley' Park shall take no further action on the complaint until a verification from the federal govemment concerning the status of the indIvIdual is received. At no point shall any city offiCial attempt to make an independ~nt determination of any alienls legal status, without verification from the federal government, pursuant to United States Code Title 8, Subsection 1373(c).

D. Venue for Judicial Process. Any business entitY subject to a

complaint and subsequent enforcement under this Ordinance, or

any individual employed by or seeldng employment With such a

bUSiness entity who is alleged to be an unlawful worker, may

challenge the enforcement of this Ordinance with respect to such

entitY or individual before the' Board. of Adjustment of the City of

Valley Parkt Missouri, subject to the right of appeal to the St. Louis

County Circuit Court

.

E. Deference to Federal Determinations of Status. The determination of whether an Individual is an unauthorized alien shall be made by the federal government, pursuant to United states Code TItle 8, Subsection 1373(c). The Soard of Adjustment of the aty of Valley Park, Missouri, may take judicial notice of any verification of the individual previously provided by the federal government and may request the federal government to provide automated or testimonial
verification pursuant to United States COde Title 8, Subsection 1373{c).

900~

6 XVd 6C:60 L006/0~/gO

Section Six

CONSTRUCnON 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 dvil tights of all citizens and aliens.

B. If any parts of or any provisIon of this Chapter Is in conflict or
inconsistent with applicable provisions of federal or state statutes,
or Is otherwise held to be invalid or unenforceable by any court of competent jurisdiction, 'such part or such provision shall be
suspended and superseded by such applicable laws or regulations,
and the remainder of this Chapter shall not be affected thereby.

section Seven

This Ordinance shall become effective from and after Its passage and

approval by the Mayor in repealing Ordinances 1708 and 1715, provided that the

enforcement of the provisions contained within Sections Two, Threet Four, Rve

and Six shall be stayed and no complaints thereunder shall be accepted by the

Qty of Valley Park until December 1, 2007.n

.

SectionIwo

This Ordinance shall become effective from and after itS passage and

approval by the Mayor.

.

PASSED this ___ day of ________--', 2007.

APPROVED tf:1iS

day of

, 2007.

ATTEST:
MARGUERITE WILBURN City Clerk

JEFFERY l. WHmEAKER, MAYOR

LOO~

7 YVd Z&:60 LOOZ/OI/SO

~k:J - d IttLUl.

'OH:8ZSS 10j law!! J4~jAea leJlua~J WeI ~S:v~:Z LOOZ/8~/9 uo paA!aaaJ ~ jO ~ a6ed

".i· \' • • • J

•

"l .... I

. ,\~
ResOLUTION NO. Cr 1?-"O.7 ~ ,
"
*********I..,•*• •~' ••"
A RESOLunON RELATING TO FUTURE ORDINANCES ReGARDING ILLEGAL IMMIGRAnON

WHEREAS, the City of Valley Par.k,' ~1~OUrj, is currently engaged In the defen$e of three separate lawsuits challenging the Con$tftut/onallty of fts anti.. Immigration ordinances, and

",

WHEREAS} the City Is committed to defending those adicn! to a

conclusion, however-, foriowing th.e QlJt~(m'le., Q.f the ntigation, the CIty does not

currently desire to Implement further ort1lnances dealing with unlawful

/,,' immigration,

: '

NOW, THEREFOR.E, BE rr RESOLVED BY THE BOARD OF ALDERMEN OF
THE em OF VALLEY PARK, MISSOURI, AS FOLLOWS:

Section 9"1 ", ,

• " ;, ~! (/ •

"

atv The w[ll not knowIngly implement any future actions relatfng to illegal

immigration that wllr engage It In further'lltlgltion.

SectignTwp

This ResQlution passed this _ _ day of June, 2007, by a vote of

_ _ ayes and

na'les.

ATTIST;
MARGUIIUTE WILBURN dtyCerk

JEFFERY l. WHnT!AKER, MAYOR

10/10"d 0S0[+0P[+Pl[

HJltldSI G-1SOd

EXHIBIT
B
Pl _ :'~ _ _ _ _. . .~

· Suburban Journals - News
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I I I I I I I HOME NEWS EDUCATION SPORTS OPINIONS j BUSINESS ENTERTAINMENT LIFE & STYLE STU
NEWS
Valley Park aldermen rescind immigration law
Legal costs factor in decision
By Mary Shapiro Wednesday, March 28,200711:09 AM COT
A controversial law regarding illegal immigration in Valley Park could be dropped.
But Mayor Jeff Whitteaker's signature - or veto - may not ultimately determine whether a vote by the Board of Aldermen to rescind the law leads to opponents dropping a new lawsuit filed March 14 against the city.
Instead, if Whitteaker doesn't sign the ordinance into law, a supermajority of the board - six of the eight members - could override his veto, as early as the board's April 2 meeting. By
the Journal's deadline Monday afternoon, Whitteaker had not signed the legislation.
Some aldermen said they didn't plan to change their votes on the rescinding legislation.
Alderman Don Carroll said Friday, March 23, he felt "there's probably enough of us that could override a veto - but I would hope it doesn't come to that."
But Alderman Mike White said Friday he "didn't feel comfortable answering right now" the question of whether he still supports the rescinding legislation.
Whitteaker would have to explain to the board, as early as April 2, his reasons for not signing the legislation into law.
Hours after public comments by almost two dozen persons, aldermen went into executive session just before 10 p.m. March 19 during the Board of Aldermen meeting, where the rescinding legislation was approved.
Many of the Valley Park speakers were opposed to the legislation regarding hiring and renting to illegal immigrants and its legal costs. Most speakers from other communities were in support of the law.
EXHIBIT
C
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Due to the board meeting room's capacity, some Valley Park residents couldn't get inside before the meeting started at 7 p.m. Residents said those from outside the community unfairly outnumbered them in the meeting room. Altogether, about 70 people were able to get into the board chambers.
At 11 p.m. the board, in open session, voted 7-1, with only Alderman Randy Helton opposed, to pass legislation that would take the city's laws relating to property maintenance codes and inspections back to their pre-July 2006 status.
After July, that status had included provisions mandating proof of citizenship before an occupancy permit could be issued.
St. Louis County Circuit Court Judge Barbara Wallace March 12 struck down the two old laws passed in July by Valley Park to halt anyone in the city employing or renting to illegal aliens. Afterward, one landlord filed a new lawsuit March 14 targeting new laws the city had created in February to replace the old laws Wallace had struck down.
The new lawsuit attempts to halt the enforcement of the laws passed in February. The suit also contends the city's laws would promote housing discrimination, lead to racial profiling and violate federal and state laws.
In September 2006, Wallace had issued a temporary injunction preventing enforcement of the July laws. Three landlords and the Metropolitan St. Louis Equal Housing Opportunity Council were the plaintiffs.
In this month's ruling, Wallace said the old laws can't be enforced because they conflict with state laws and that the city can't levy damaging penalties against businesses. Linda Martinez of the Bryan Cave law firm, an attorney representing plaintiffs in the challenge to the city's laws, said the March judicial ruling had set a precedent on the new laws adopted in February.
She consulted with City Attorney Eric Martin during the Monday board meeting on the wording of the latest, rescinding legislation, something which riled Helton.
"I don't like her saying how we're going to do our enforcing," he told Martin. In regard to the vote on that legislation, Helton said that it "looks like the damnedest joke; it's an embarrassment to me, and I'll vote no."
Whitteaker said he felt the board was rescinding the February law "for the financial future of the city; I don't think it's the board's real desire, but dollars and cents are coming into play."
"And I don't believe (the rescinding) is right for Valley Park or the United States as a whole," he said.
"I don't agree with anybody illegal being in Valley Park," the mayor said. "By no means is that what we're condoning (with the rescinding legislation)."
Whitteaker previously had told those attending the board meeting that the cost of fighting the lawsuits so far had come to about $56,000, with that amount reduced about $8,000

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Page 3 of4

from community donations.
Alderman Dan Adams insisted the issue, to him, was not one of dollars and cents "but for a noble cause; each alderman, from the onset, had supported the ordinances."
"But we went through this process, a ruling was made, and we were unsuccessful," Adams said. "Despite what we tried to do, illegal aliens have been left in a vulnerable spot, still able to be abused (by unscrupulous employers and landlords). And even if we had won in Valley Park, a victory here would not have (affected) Missouri or (elsewhere).
"If we thought we could win, we'd still be going. Also, there has been a racial overtone cast on this issue [lO. and I don't want that under my belt."
Martinez said that if the mayor signs the legislation, the newest lawsuit would be dropped, "because the (rescinding) law effectively brings the city back to the way it was in July before the illegal immigration laws."
"I look forward to the mayor signing it,II Martinez said.
The original laws approved last July said landlords could be fined at least $500 for renting to illegal immigrants and that businesses could be denied business permits; denied the renewal of such permits; and denied city contracts and grants for at least five years for hiring such immigrants.
The February law instead deleted the fine for landlords, replacing that with a provision that no new occupancy permit could be obtained if landlords or property owners are discovered renting to illegal immigrants. Martin said it would not entail revoking any previously issued occupancy permit.
Last year, Valley Park officials also approved legislation making English the city's official language.
Atthe March 19 meeting, residents from Union, High Ridge, Kirkwood, Lonedell, Florissant, Bridgeton, Wildwood, Millstadt, 111., and other communities were among those saying they supported the city's effort to control illegal aliens.
Janet Renner of Wildwood, founder of Missourians Against Illegal Immigration, insisted, "While I'm an outsider here, all of us, wherever we live, are paying an enormous amount for health care, education and crime due to illegal aliens."
Donna Ivanovich of Kirkwood, Missouri state chairman of the Constitution Party, said, "It bothers me some people support those who are breaking the laws of Valley Park. I support Mayor Whitteaker and the board 100 percent."
Leo Anglo of Valley Park said, liMy concern is the financial burden this legislation has created. Some may like the ordinance but not want to bankrupt the city, and Valley Park doesn't have the finances to survive a long, drawn-out legal fight.
"When this is all done, the outside big-money interests supporting both sides of this conflict won't be here. Those left paying the bills and healing the wounds will be those in

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Page 4 of4

Valley Park. This has nothing to do with patriotism but with being prudent financially."

You can contact Mary Shapiro at mshapiro@yourjournal.com.

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News> St Louis City I County> StOry

Valley Park changes strategy on illegal immigrants
By Stephen Deere ST. LOUIS POST-DISPATCH 07/24/2007
VALLEY PARK - The city has abandoned efforts to enforce an ordinance that targets landlords who rent to illegal immigrants, but it will still fight to keep one that prohibits employers from giving them jobs.

YES
He's The Misl Man Misl

For months, the city of 6,500 has wrestled with the costs of defending itself in three lawsuits challenging the ordinances. Thus far, the suits have cost the city more than $80,000.

Sou abu:

On July 16, for the second time in five months, the Board of Aldermen voted to repeal parts of Cha

its housing code that denied occupancy permits to landlords renting to illegal immigrants.

Fort

Mayor Jeffery Whitteaker had vetoed earlier legislation, but this past week decided to sign it.

Whitteaker did not return phone messages seeking comment.

-l..IJwTeacberRatto

Kris Kobach, a University of Missouri-Kansas City law professor who is working for Valley Park, said the mayor's actions reflected a change in legal strategy, "not a concession. "

*:)fUW.Age. Cla~

Kobach said the city still plans to fight a lawsuit in federal court

• AeemrtemriecadnImMortnruttt~otrSl

that challenges Valley Park's right to have an ordinance prohibiting the employment of

illegal immigrants.

·www.hop:eaeademy.oom

Ql1alj1:y .,.l.n«)nlreSSOJr:t ~,~u.J;aJuun

Kobach accused the American Civil Liberties Union and

attorneys from the Bryan Cave

law firm of trying to "bankrupt a small town" with a barrage of lawsuits.

We'l 'slol Bas men Les [Last
ST.L
TOP

"It's a typical strategy for the ACLU," he said, adding that it was less costly for the city to fight for the employment ordinance.

Valley Park landlords have complained that they have no expertise in determining who is in the country illegally and that they could not follow the city's ordinance. They've also said that the ordinance could lead them to discriminate against Hispanic tenants to avoid being penalized.

http://www.stltoday.com/stltoday/news/stories.nsf/stlouiscitycounty/story/667343DEF2EE... 8/10/2007

S'fLtoday - News - St. Louis City I County

Page 2 of2

PAGES MEMBERCENTER PERSONALS

Florence Streeter, a Valley Park landlord and plaintiff in one of the lawsuits, called the development a victory,
"We are no longer put in a position where we have to discriminate," she said,
sdeere@post-dispatch.com I 314-340-8116

..

__ .._._._•••_•._•.._...___.__...,__..__.._.•______,.___._...•__.._.•__.....__. _..____...._••••.•••.••_.w· ..................._... _._•.•_,

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I I I I I I I HOME NEWS EDUCATION SPORTS OPINIONS BUSINESS! ENTERTAINMENT LIFE & STYLE STU

NEWS
Valley Park mayor considers vetoing immigration bill

By Mary Shapiro
Monday, July 23, 20072:39 PM cor

Mayor Jeff Whitteaker is leaning

toward vetoing legislation,

passed July 16 by the Board of

Aldermen, that would remove

part of its law relating to illegal

immigrants. which had banned

landlords from renewing

occupancy permits if they rent to Mary Shapiro photol Valley Park Mayor Jeff VVhitteaker is shown here in his office at City

those individuals.

Hall with letters and e-mails in support of the city's laws related to illegal immigration,

"I have until the next board meeting on August 6 to decide if I'll veto the bill," he said.

Whitteaker said that since the laws were passed, the city has spent $89,533 on legal expenses to defend itself against various lawsuits. He told the board, "We're nearly at the
end of the bridge (with lawsuits opposing the laws). Only a small amount of additional money will be spent before the judge makes a ruling, on something could affect the whole country, and I hope we can finish this out."

The board voted 5-3 in favor of the law. John Brust, Don Carroll, Mike Pennise, Ed Walker and Mike White were in favor, while Dan Adams, Randy Helton and Steve Drake were opposed.

In June, the board approved a resolution to not pass any new laws addressing illegal immigration. However, officials will continue their legal defense of three lawsuits challenging the constitutionality of the city's existing illegal-immigration laws.

City Attorney Eric Martin said the repeal action July 16 was taken based on advice from

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special legal counsel "so we can concentrate on provisions of the laws affecting employers (who hire illegal immigrants)."

Pennise said that while many living outside the city have indicated they support Valley Park's efforts, "we're not getting enough help from them - and we don't have that kind of money (to continue fighting lawsuits)."

"The federal government has let us down (in not passing effective new laws or by enforcing existing ones) - and our state doesn't care," he said.

Pennise asked aldermen to consider repealing all illegal immigration laws, but the board declined.

"I'm tired of fighting and wasting money," he said.

Carroll agreed. He said, "The federal and state governments should handle this issue, not a city of 6,500 people. We can't keep up financially with those suing us, and we need to put a stop to this by getting out (of litigation) as quick and easy as possible. This is too expensive. It was a good idea, but we can't afford to continue."

White said the city's laws "were started for the right reasons.

"People tell us we're doing the right thing, but they fall away when it's time to financially support us," White said.

Resident Leo Anglo said, "It is irresponsible for the city to expose itself to such an expense. He said repealing illegal immigration laws would allow the city to focus on issues that will have more impact on the city.

Adams, while agreeing with Pennise on the lack of state and federal government help on the issue, asked, "Do we just allow illegal aliens to roam freely, unchecked?

"This issue will affect the ability of my children and grandchildren to find good-paying jobs. It will take small communities to move this issue forward."

Drake said, "This fight is paramount. It's about our community and country."

Whitteaker insisted, "I'm not a quitter, and I'd do all this again tomorrow."

You can contact Mary Shapiro at mshapiro@yourjournal.com.

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I> Personal attacks or potentially libelous statements against

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, ·
STATE OF MISSOURI ») »)
ST. Loms COUNTY»)
I, Marguerite Wilburn, City Clerk within and for the City of Valley Park, St. Louis County, Missouri, do hereby certify that the foregoing constitutes a full, true and complete copy of AlG (American International Companies) insurance policy with the City of Valley Park from 111106 to 111107.
IN TESTIMONY WHEREOF, I have hereunto set my hand and affix the seal ofthe City of Valley Park, Missouri, at my office in said City, this 23rd day of February 2007.
EXHIBIT
D

11l1t AMERICAN INTERNATIONAL COMPANIES ~
PUBUC OFFICIALS AND EMPLOYMENT PRACTICES UABILITV POUCY
11 til
MuniPrdM

AlU Insurance Company
BAmerican Home Assurance Company
o American International South Insurance Company o Birmingham Fire Insurance Company of Pennsylvania

.0 Granite State Insurance Company

.

j2g Illinois National Insurance Company
o National Union Fire Insurance Company of Pittsburgh, PA ~ o New Hampshire Insurance Company

(each of the above being a capital stock company)

NOTICE: THIS IS A CLAIMS MADE FORM. EXCEPT TO SUCH EXTENT AS MAY OTHERWISE BE PROVIDED HEREIN, THE COVERAGE OF THIS POUCY IS GENERALLY UMITED TO UABILITV FOR ONLY THOSE CLAIMS THAT ARE FIRST MADE AGAINST THE INSUREDS DURING THE POUCY PERIOD AND REPORTED IN WRITING TO THE INSURER PURSUANT TO THE TERMS HEREIN. PLEASE READ THE POUCY CAREFULLY AND DISCUSS THE COVERAGE THEREUNDER WITH YOUR INSURANCE AGENT OR BROKER.
NOTICE: THE DEDUCTIBLE FOR THIS POUCY SHALL APPLY TO BOTH DAMAGES AND DEFENSE COSTS.

REPLACEMENT OF POLICY NUMBER: 978-28-31

POLICY NUMBER: 494-84-73

DECLARATIONS

ITEM 1. PUBLIC ENTITY: VAllEY PARK, CITY OF

ADDRESS:

320 BENTON STREET VAllEY PARK, NO 63088-1735

ITEM 2.

POLICY PERIOD: FROM: Janua,., 1, 2006

TO: Janua,., 1, 2007

(At 12:01 AM Standard Time at the Address of the Public Entity stated in ITEM 1.)

ITEM 3. LIMIT OF LIABILITY 11,000,000

Aggregate

ITEM 4. (a) DEDUCTIBLE: ;.;11.;;.5.z.;,0;.;.0.;.0_ _ __ (b) DEDUCTIBLE: .:.;12:.;.5.z.:,0;.;.0.;.0_ _ __

Each Wrongful Act other than an Employment Practices Violation
Each Employment Practices Violation

1038221

'<\929 (10/97)

1

ITEM 5.

PREMIUM: _ _ _ _ _ ~13::..1!.:.2~11:...- _ _ _ _ _ _ __

STATE TAX _ _ _ _ __
SBTRAOMKPEIRNGFEFEE.E...i.2.6,.0._~ ~rT~D-:-_......
POLICY FEE ________

ITEM 6.

NAME AND ADDRESS OF THE COMPANY (hereinafter ·Companyj (This policy is issued only by the Insurance company indicated below.)
Illinois National Insupance Company 175 Hatep Stpeet New ropt, NY 10038

ITEM 7.

ADDITIONAL COVERED OPERATIONS

o Port Authority o Transit Authority o Water/Sewer Authority

o Housing Authority o Utility Authority

1038221

68929 (10/97)

2

POLICYHOLDER DISCLOSURE STATEMENT UNDER
TERRORISM RISK INSURANCE ACT OF 2002
You are hereby notified that under the federal Terrorism Risk Insurance Act of 2002 (the "Actj effective November 26, 2002, you now have a right to purchase Insurance coverage for losses arising out of an Act of Terrorism, which Is defined In the Act as an act certified by the Secretary of the Treasury (I) to be an act Of terrorism, (II) to be a violent act or an act that is dangerous to (A) human life; (8) property or (C) infrastructure, (ill) to have resulted In damage within the United States, or outside of the United States In case of an air carrier or vessel or the premises of a U.S. miSSion and (Iv) to have been committed by an individual or individuals acting on behalf of any foreign person or foreign interest, as part of an effort to coerce the civilian population of the United States or to Influence the policy or affect the conduct of the United States Government by coercion. You should read the Act for a complete description of its coverage. The Secretary's decision to certify or not to certify an event as an Act of Terrorism and thus covered by this law is final and not subject to review. There is a $50 billion dollar annual cap on all losses resulting from Acts Of Terrorism above which no coverage will be provided under this policy and under the Act unless Congress makes some other determination.
For your Information, coverage provided by this policy for losses caused by an Act of Terrorism may be partially reimbursed by the United States under a formula established by the Act. Under this formula the United States pays 90% of terrorism losses covered by this law exceeding a statutorily established deductible that must be met .by the insurer, and which deductible is based on a percentage of the insurer's direct earned premiums for the year preceding the Act of Terrorism.
COPY OF DISCLOSURE SENT WITH ORIGINAL QUOTE
,Insured Name: VAllEY PARK, CITY OF

Policy Number: 494-84-73
Policy Period Effective Date From: Janual'Y 1, 2008

To: Janual'Y 1,2007

81285 (1/03)

IN WITNESS WHEREOF, the Company has caused this polley to be signed on the Declarations Page by its President, a Secretary and a duly authorized representative of the Company.

PRESIDENT

AUTHORIZED REPRESENTATIVE

COUNTERSIGNATURE & DATE

COUNTERSIGNED AT

CRC INSURANCE SERVICES INC. 14001 N. DALLAS PARKWAY SUITE /tI100 DAllAS, TX 75240-4350

1038221
68929 (10/97)

..
11(11 AMERICAN INTERNATIONAL COMPANIES ~
PUBLIC OFFICIALS AND EMPLOYMENT PRACTICES L1ABIUTV POLICY
11111
MuniPrdM
In consideration of the premium charged, and in reliance upon the statements in the Application attached hereto and made a part hereof, and subject to the Limit of liability stated in Item 3 of the Declarations and the terms and conditions contained herein, the Company and the Insured agree as follows:
1. INSURING AGREEMENTS
To pay on behalf of the Insured all sums which the Insured shall become legally obligated to pay as Damages resulting from any Claim first made against the Insured during the Policy Period or the Discovery Period (if applicable) and reported to the Company pursuant to the terms of this policy for any Wrongful Act of the Insured in the performance of duties for the public Entity.
2. DEFENSE PROVISIONS
(a) The Company shall, In addition to the Limit of liability, appoint an attorney and defend any Claim against the Insured alleging a Wrongful Act, even if such Claim is groundless, false or fraudulent; and pay on behalf of the Insured Defense Costs.
(b) The Insured shall not admit liability or settle any Claim or Incur any cost or expense without the written consent of the Company. The Company shall have the right to make such investigation and negotiations andl with the written consent of the Public Entity, such settlement of any Claim as the Company deems expedient. If the Public Entity refuses to consent to any settlement recommended by the Company, the Insured shall thereafter negotiate or defend such Claim independently of the Company and the liability of the Company shall not exceed the amount for which the Claim could have been settled plus Defense Costs incurred with the Company's consent up to the date of such refusal.
(c) The Company shall not be obligated to pay any Damages or Defense Costs or to undertake or continue defense of any Claim after the Limit of Liability has been exhausted by payment of Damages or after deposit of the applicable limit of the Company's liability in a court of competent jurisdiction, and in such case the Company shall have the right to withdraw from the further defense thereof by tendering control of said defense to the Insured.
3. DEFINITIONS
(a) "Arising Out Of" means originating from, having its Origin in, growing out of, flowing from, incident to or having connection with, whether directly or indirectly;
(b) "Claim" means a judicial proceeding alleging a Wrongful Act that is filed against an Insured in a court of law or equity and which seeks Damages or other relief. Claim shall also mean an administrative proceeding alleging a Wrongful Act, provided an enforceable award of Damages can be made against an Insured at the administrative proceeding.

68928 (10/97)

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(c)

-Damages· means a monetary judgment or settlement agreed to with the

consent of the Company.

(d)

-Defense Costs" means reasonable and necessary fees, costs, and expenses

incurred by the Company, or incurred by the Insured with the written

consent of the Company, (Including premiums for any appeal bond,

attachment bond, or similar bond but without any obligation to apply for or

furnish any such bond) resulting from the investigation, adjustment, defense,

and appeal of a Claim against any Insured; provided, however, that Defense

Costs do not include salaries of employees or officers of the Company.

(e)

"Employment Practice Violatlon(s)N means any actual or alleged:

(1) wrongful dismissal, discharge or termination (either actual or constructive) of employment, including breach of an implied contract:
(2) harassment (Including sexual harassment whether "quid pro quo", hostile work environment or otherwise);

(3) discrimination, (Including but not limited to discrimination based upon age gender, race, color, national origin, religion, sexual orientation or preference, pregnancy or disability);
(4) Retaliation (including lockouts);

(5) employment-related misrepresentatlon(s) to an employee or applicant for employment with the PubliC Entity;
(6) wrongful failure to employ or promote;

(7) wrongful deprivation of career opportunity, wrongful demotion or negligent employee evaluation, including the giving of negative or defamatory statements in connection with an employee reference;
(8) wrongful discipline;
(9) failure to grant tenure;
(10) failure to provide or enforce adequate or consistent policies and procedure relating to any Employment Practices Violation;
(11) violation of an individual's civil rights relating to any of the above but only if the Employment Practices Violation relates to an employee or applicant for employment with the Public Entity whether direct, indirect, intentional or unintentional.

(1)

"Insured" means the Public Entity and:

(1) all persons who were, now are or shall be lawfully elected or appointed officials or employees while acting for or on behalf of the Public Entity;
(2) commissions, boards, or other units, and members and employees thereof, operated by and under the jurisdiction of such Public Entity and within an apportionment of the total operating budget indicated in the application for this policy;

68928 (10/97)

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(3) volunteers acting for or on behalf of, and at the request and under the direction of, the Public Entity;
(4) officials and employees of the Public Entity appOinted at the request of the Public Entity to serve with an outside tax exempt entity.
(g) "Policy Period" means the period from the inception date of this policy shown in Item 2 of the Declarations to the earlier of the expiration date shown in Item 2 of the Declarations or the effective date of cancellation of this policy.
(h) "Publlc Entity" means the municipality, governmental body, department or unit which is named in Item 1 of the Declarations.
(I) '"Retaliation" means a wrongful act of an Insured relating to or alleged to be in response to any of the following activities: (1) the disclosure or threat of disclosure by an Employee of the Public Entity to a superior or to any governmental agency of any act by an Insured which act is alleged to be a violation of any federal, state, local or foreign law, common or statutory, or any rule or regulation promulgated thereunder: (2) the actual or attempted exercise by an Employee of the Public Entity of any right that such employee has under law, Including rights under workers' compensation laws, the Family and Medical leave Act, the Americans with Disabilities Act or any other law relating to Employee rights; (3) the filing of any claim under the Federal False Claims Act or any other federal, state, local or foreign ·whistle-blower" law; (4) Strikes by Employees of the Public Entity or (5) pOlitical affiliation:
m "'Wrongful Act'" means any actual or alleged breach of duty, neglect; error,
misstatement, misleading statement, omission or Employment Practices Violation by an Insured solely in the performance of duties for the Public Entity.
4. EXTENSIONS
Subject otherwise to the terms hereof, the polley shall cover Claims made against the estates, heirs, or legal representatives of deceased Insureds, and the legal representatives of Insureds in the event of an Insured's incompetency, insolvency or bankruptcy, who Were Insureds at the time the Wrongful Acts upon which such Claims are based were committed.
Subject otherwise to the terms hereof, this polley shall cover Claims made against the lawful spouse (whether such status is derived by reason of statutory law, common law or otherwise of any applicable jurisdiction in the world) of an Insured for all Claims arising solely out of his or her status as the spouse of an Insured, including a Claim that seeks damages recoverable from martial community property, property jOintly held by the Insured and the spouse, or property transferred from the Insured to the spouse; provided, however, that this extenSion shall not afford coverage for any Claim for any Wrongful Act of the spouse, but shall apply only to Claims Arising Out of the Wrongful Acts of an Insured, subject to the pOliCy's terms, conditions and exclusions,
5. EXCLUSIONS
This policy does not apply to any Damages or Claim:

68928 (10/97)

-3-

(a) alleging fraud, dishonesty or criminal acts or omissions; however, the Insured shall be reimbursed for the reasonable amount which would have been collectible under this policy if such allegations are not subsequently proven;
(b) seeking relief or redress in any form other than Damages, or attorney's fees, costs or expenses which the insured shall become obligated to pay as a result of an adverse judgment or settlement for a Claim seeking such relief; however, the Company shall defend such a Claim in accordance with Clause 2, subject to a Policy Period aggregate limit of $100,000. This limit shall be part of the limit of liability stated In Item 3 of the Declarations.
(c) Arising Out Of (1) false arrest, detention or imprisonment, (2) libel, slander
or defamation of character, (3) assault or battery, (4) malicious prosecution or abuse of process, (5) wrongful entry or eviction, or Invasion of any right of privacy, (6) any allegation relating to the foregoing exclUSions 5(c)(1) through 5(c)(5) that an Insured negligently employed, investigated, supervised or retained any person, or based on an alleged practice, custom or policy and including, without limitation, any allegation that the violation of a civil right caused or resulted from such Damages or Claim;
(d) AriSing Out Of (1) bodily injury to, or Sickness, disease, emotional distress or death of any person, (2) damage to or destruction of any property, including the loss of use thereof, (3) any allegation relating to the foregoing exclusions 5(d){1) through 5(d}(2) that an Insured negligently employed, investigated, supervised or retained a person, or based on an alleged practice, custom or policy and including, without limitation, any allegation that the violation of a civil right caused or resulted from such Damages or Claim;
(e) Arising Out Of inverse condemnation, temporary or permanent taking, adverse possession or dedication by adverse use;
(f) AriSing Out of strikes, riots or civil commotions;
(g) AriSing Out Of the failure to effect or maintain any insurance or bond, which shall include, but not be limited to, insurance provided by self-Insurance arrangements, pools, self-insurance trusts, captive insurance companies, retention groups, reciprocal exchanges or any other plan or agreement of risk transfer or assumption; however, the Company will defend such a Claim but without obligation to pay Damages;
(h) Arising Out Of the gaining in fact of any profit or advantage to which the Insured is not legally entitled; the return of taxes, assessments, penalties fines or fees; any award of salary, wages or earnings;
{i} alleging, Arising Out Of, based upon, attributable to, or in any way Involving, directly or indirectly;
(1) the actual, alleged or threatened discharge, dispersal, release or escape of Pollutants, or

68928 (10/97)

-4-

..
(2) any direction or request to test for, monitor, clean up, remove, contain, treat, detoxify or neutralize Pollutants.
"Pollutants" include, but are not limited to, any solid, liquid, gaseous or thermal irritant or contaminant, including smoke, vapor, soot, fumes, acids, alkalis, chemicals, asbestos, lead and Waste. SWaste- includes, but is not limited to, materials to be recycled, reconditioned or reclaimed;
0> AriSing Out Of the planning, construction, maintenance, operation or use of
any nuclear reactor, nuclear waste storage or disposal Site or any other nuclear faCility, or the transportation of nuclear material;
(k) Arising Out Of a breach of fiduciary duty, responsibility or obligation in connection with any employee benefit or pension plan, or to any amount due under any fringe benefit or retirement program; however, the Company will defend such a Claim but will have no obligation to furnish any benefits due or pay Damages;
(I) brought by or on behalf of one Insured against another Insured, however, as respects any Claim alleging an Employment Practices Violation, this exclusion shall only apply to cross-claims or counterclaims brought by one Insured against another Insured;
(m) Arising Out of breach of contract, except this exclusion shall not apply to any Claim alleging an Employment Practices Violation;
(n) Arising Out Of the operation of or activities of any schools, airports, transit authorities, hospitals, clinics, nursing homes or other health care operations, utilities, housing authorities, jails or detention facilities, law enforcement agencies or fire fighting authOrities unless specifically included in Item 7 of the Declarations or by endorsement attached;
(0) for fines, penalties, or punitive, exemplary or the multiplied portion of multiplied Damages; however, only where permitted by law, this policy shall cover, subject to all the terms, conditions and exclusions contained herein, up to $50,000 punitive, exemplary or the multiplied portion of multiplied Damages, as part of and not in addition to the Umit of Uability of the Company otherwise afforded by this policy;
(p) arising from all pending or prior litigation or hearing as well as future Claims Arising Out Of said pending or prior litigation or hearing. If this policy is a renewal of a policy issued by the Company, this exclusion shall only apply with respect to a pending or prior litigation or hearing prior to the effective date of the first policy issued and continuously renewed by the Company;
(q) Arising Out Of, based upon or attributable to the facts alleged, or to the same or related Wrongful Acts alleged or contained, in any Claim which has been reported, or in any circumstances of which notice has been given, under any policy of which this policy is a renewal or replacement or which it may succeed in time;

68928 (10/97)

- 5-

· .

(r) Arising Out Of any Wrongful Act 'prior to the inception date of the first policy Issued by the Company and continuously renewed and maintained, if on or before such date any Insured knew or could have reasonably foreseen that such Wrongful Act could lead to a Claim.
The following exclusions shall also apply to any Claim alleging an Employment Practices Violation(s)
This policy does not apply to any Damages or Claim:
(s) Arising Out Of any obligations pursuant to any worker's compensation, disability benefits, unemployment compensation, unemployment insurance, retirement benefits, SOCial security benefits or similar law; provided, however, this exclUSion shall not apply to a Claim for Retaliation;
(t) ArIsing Out Of any violation of the Employee Retirement Income Security Act of 1974, the Fair Labor Standards Act (except the Equal Pay Act), the National Labor Relations Act, the Worker Adjustment and Retaining Notification Act, the Consolidated Omnibus Budget ReconCiliation Act, the Occupational Safety and Health Act, any rules or regulations of the foregOing promulgated thereunder and amendments thereto or any Similar provisions of any federal, state, local or foreign statutory law or common law; provided however, this exclusion shall not apply to a Claim for Retaliation;
(u) Arising Out Of any costs or liability incurred by any Insured to modify any bUilding, property or facility to make said bUilding, property or facility more accessible or accommodating to any disabled person as mandated by the Americans With Disabilities Act of 1992, and as amended, or any similar federal, state or local law, regulation or ordinance.
6. LIMIT OF LlABIUTV
(a) The total liability of the Company for all Damages arising from all Claims made against the Insured during the Policy Period and during the Discovery Period, if applicable, shall not exceed the limit of liability stated in Item 3 of the Declarations. The inclusion herein· of more than one Insured shall not increase the limit of liability of the Company. The limit of liability stated in Item 3 of the Declarations shall apply to all Claims Arising Out Of the same Wrongful Act or related Wrongful Acts.
(b) If additional Claims are subsequently made which Arise Out Of the same Wrongful Act or series of continuous, repeated or interrelated Wrongful Acts as Claims already made and reported to the Company, then all such Claims, whenever made, shall be considered first made within the Policy Period or the Discovery Period in which the earliest Claim Arising Out Of such Wrongful Act or series of continuous, repeated or interrelated Wrongful Acts was first made and reported to the Company, and all such Claims shall be subject to one such limit of liability.
(c) If two or more policies of public Officials and Employment Practices liability Insurance issued by the Company or any other member company of American International Group, Inc. ("AIGi apply to the same Claim for which the Insured is liable, then the Company shall not be liable under this policy for a greater proportion of Defense Costs and Damages than the liability of the Company under this policy bears to the total liability of the AIG member

68928 (10/97)

-6-

companies under all such applicable valid and collectible insurance issued by the AlG member companies; however, the maximum amount payable under all such policies shall not exceed the limit of liability of that policy referred to above that has the highest applicable limit of liability. In determining the applicable limit of Liability of any policy for purposes of this paragraph, it shall not be a factor that Defense Costs may be payable as part of the limit of liability, In addition to the limit of liability or subject to a sublimit of liability. Nothing contained herein shall be construed to increase the limit of liability of this policy.
7. DEDUCTIBLE
Subject to the limit of liability, exclusions and other terms of this policy, the Company shall only be liable for those Damages and Defense Costs which are in excess of the Deductible stated In Items 4{a) or 4(b) of the Declarations. This Deductible shall apply to each Wrongful Act or Employment Practice Violation or series of continuous, repeated or interrelated Wrongful Acts or Employment Practice Violations and shall be borne by the Public Entity and remain uninsured. The Public Entity shall also be responsible for payment of the Deductible. The Company may direct the Public Entity to make partial or full payment of the Deductible to others.
8. NOTICE/CLAIM REPORTING PROVISIONS
Notice hereunder shall be given in writing to the Company named in Item 6 of the Declarations at the address indicated in item 6 of the Declarations.
If mailed, the date of the mailing shall constitute the date that such notice was given and proof of mailing shall be sufficient proof of notice. A Claim shall be considered to have been first made against an Insured when written notice of such Claim Is received by any Insured, by the Public Entity on the behalf of any Insured or by the Company, whichever comes first.
(a) The Public Entity or the Insureds shall, as a condition precedent to the .obligations of the Company under this policy, give written notice to the Company of any Claim made against an Insured as soon as practicable and either:
(1) anytime during the Policy Period or during the Discovery Period (if applicable)
(2) within 30 days after the end of the Policy Period or the Discovery Period (if applicable), as long as such Claim is reported no later than 30 days after the date such Claim was first made against an Insured.
(b) If written notice of a Claim has been given to the Company pursuant to Clause 8(a) above, then any Claim which Is subsequently made against the Insureds and reported to the Company Arising Out Of the facts alleged in the Claim for which such notice has been given, or alleging any Wrongful Act which is the same as or related to any Wrongful Act alleged In the Claim of which such notice has been given, shall be considered made at the time such notice was given.

68928 (10/97)

-7-

(c) If during the Policy Period or during the Discovery Period (If applicable) the Public Entity or the Insureds shall become aware of any circumstances which may reasonably be expected to give rise to a Claim being made against the Insureds and shall give written notice to the Company of the circumstances and the reasons for anticipating such a Claim, with full particulars as to dates, persons and entities Involved, then any Claim which Is subsequently made against the Insureds and reported to the Company Arising Out Of such circumstances or alleging any Wrongful Act which is the same as or related to any Wrongful Act alleged or contained in such circumstances, shall be considered made at the time such notice of such Circumstances was given.
9. DISCOVERY CLAUSE
(a) Automatic Discovery Period If the Company or the PubliC Entity shall cancel or refuse to renew this policy and the Public Entity does not obtain replacement coverage as of the effective date of such cancellation or non-renewal, the Public Entity shall have the right to a period of sixty (60) days following the effective date of such cancellation or non-renewal In which to give written notice to the Company of any Claim made against the Insured during said 60 day period for any Wrongful Act before the end of the Policy Period. This Automatic Discovery Period shan immediately expire upon the purchase of replacement coverage by the PubliC Entity.
(b) Optional Discovery Period If the Company or the PubliC Entity shall cancel or refuse to renew this policy, the PubliC Entity shall have the right, upon payment of an additional premium of 50% of the total policy premium, to a period of twelve (12) months following the effective date of such cancellation or non-renewal in which to give written notice to the Company of any Claim made against the Insured during said twelve (12) month period for any Wrongful Act before the end of the Policy Period. This right shall terminate, however, unless written notice of such election together with the additional premium due is received by the Company within thirty (30) days after the effective date of cancellation or non-renewal; This clause and the rights contained herein shall not apply to any cancellation resulting from non-payment of premium.
10. CANCELLATION CLAUSE
This policy may be canceled by the Public Entity by surrender of this policy or by giving written notice to the Company stating when thereafter such cancellation shall be effective. This policy may also be canceled by the Company by delivering to the Public Entity or by mailing to the Public Entity by registered, certified, or other first class mall, at the address shown in Item 1 of the Declarations, written notice stating when, not less than thirty (30) days thereafter, the cancellation shall be effective. However, if the Company cancels this policy because the PubliC Entity has failed to pay a premium when due, or has failed to reimburse the Company such amounts as the company has paid as Damages or Defense Costs within the amount of the applicable Deductible, or excess of the Limit of liability, this policy may be canceled by the Company by mailing to the PubliC Entity by registered, certified, or other first class mail, at the address shown in Item 1 of the Declarations, written notice stating when, not less than ten (10) days thereafter,

68928 (10/97)

-8-

the cancellation shall be effective. The mailing of such notice as aforesaid shall be sufficient proof of notice and this policy shall terminate at the date and hour specified in such notice.
If this policy shall be canceled by the Public Entity, the Company shall retain the customary short rate proportion of the premium hereon. If this policy shall be canceled by the Company, the Company shall retain the pro rata proportion of the premium hereon. Payment or tender of any unearned premium by the Company shall not be a condition precedent to the effectiveness of cancellation, but such payment shall be made as soon as practicable.
11. REIMBURSEMENT OF THE COMPANY
If the Company has paid any Damages in excess of the Limit of liability or Damages or Defense Costs within the applicable Deductible, the Insureds, jOintly and severally, shall be liable to the Company for any and all such amounts and, upon demand, shall pay such amounts to the Company.
12. SUBROGATION
In the event of any payment under this policy, the Company shall be subrogated to all the Insured's rights of recovery against any person or organization, and the Insured shall execute and deliver all instruments and papers and do whatever else is necessary to secure such rights for the Company. The Insured shall do nothing to prejudice such rights. Any amount recovered In excess of the total payment by the Company shall be restored to the Insured, less the cost to the Company of recovery.
13. OTHER INSURANCE
Subject to Clause 6(c), such Insurance as is provided under this policy shall apply only as excess over any other valid and collectible insurance, self insurance, or indemnification or any similar agreement, whether such other Insurance or agreement Is stated to be primary, pro rata, contributory, excess, contingent or otherwise.
14. COOPERAnON CLAUSE
The Insured shall cooperate with the Company and, upon the Company's request, assist in making settlements and in the conduct of Claims. The ,Insured shall attend hearings and trials and assist in securing and giving evidence and obtaining the attendance of witnesses. The Insured shall not, except at the Insured's own cost, voluntarily make any payment, assume any obligation or incur any expense.
15. NOTICE AND AUTHORITY
By the acceptance of this policy, the Public Entity agrees to act on behalf of all Insureds with respect to the giving of notice of Claim, the giving or receiving of notice of cancellation or non renewal, the payment of premiums, the receiving of any premiums that may become' due under this policy, consenting to any settlement and exercising the right to the Discovery Period. All Insureds agree that the Public Entity shall act on their behalf.

68928 (10/97)

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16. ASSIGNMENT
Assignment of interest under this policy shall not bind the Company until its consent is endorsed hereon; however, subject otherwise to the terms hereof, this policy shall cover the estate, heirs, legal representatives or assigns of the Insured in the event of the death, bankruptcy or insolvency of the Insured or the Insured being adjudged Incompetent.
17. ACTION AGAINST THE COMPANY
No action shall lie against the Company unless, as a condition precedent thereto, the Insured shall have fully complied with all the terms of this policy, nor until the amount of the obligation of the Insured to pay shall have been finally determined either by judgment against the Insured after actual trial or by written agreement of the Insured, the claimant and the Company.
Any Insured or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No Insured shall have any right under this policy to join the Company as a party to any action against other Insureds or the Public Entity to determine the Insured's liability, nor shall the Company be impleaded by the Insureds or the Public Entity or their legal representatives. Bankruptcy or insolvency of the Insured or the estate of the Insured shall not relieve the Company of any obligation hereunder.
18. REPRESENTATIONS AND SEVERABILITY
In granting coverage under this policy, It is agreed that the Company has relied upon the statements and representations contained In the application for this policy (Including materials submitted thereto and, If this is a renewal application, all such previous policy applications for which this policy is a renewal) as being accurate and complete. All such statements and representations shall be deemed to be material to the risk assumed by the Company, are the basis of this policy and are to be considered as incorporated into this policy.
With respect to such statements and representations, no knowledge or Information possessed by any Insured shall be imputed to any other Insured. If any person who executed the application knew that such statement or representation was inaccurate or incomplete, such statement shall not be imputed to any Insured other than such slgnator and any other Insureds who knew such statement or representation was Inaccurate or incomplete.
19. POLICY TERRITORY
This policy applies to Wrongful Acts committed anywhere in the world provided Claim is made In the United States of America, its territories or possessions, or Canada.
20. HEADINGS
The descriptions in the headings of this policy are solely for convenience, and form no part of the terms and conditions of coverage.

68928 (10/97)

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· .
ENDORSEMENT# 1

This endorsement, effective 12:01 am policy number 494-84-73 issued to VAllEY PARK, CITY OF

Janual'Y 1, 2006

forms a part of

by Illinois National Insul'ance Company

FORMS INDEX ENDORSEMENT

The contents of the Policy is comprised of the following forms:

FORM NUMBER

EDITION DATE

FORM TinE

68929 81285 68928 78859 89644 52151 80959 76409

10197 NuniPl'o Admitted Co. DEC 01103 Tl'ia Dec Disclosul'e FOl'm 10197 NuniPl'o Admitted Co. GUTS 10101 FORNS INDEX ENDORSEMENT 07105 COVERNiE TERRITORY ENDORSENENT (OFAC) 06191 NISSOURI ANENDATORf - CANCELlATIONINONRENEHAL 10/02 FUNGUS AND II1LD EXCLUSION ENDORSENENT 07/00 PUBLIC OFFICIALS AND ENPLOYNENT PRACTICES LIABILITY INTELLECTUAL

78859 (10/01)

END 001
Page 1 of 1

'.
ENDORSEMENT# 2

This endorsement, effective 12:01 am
polley number 494-84-73
Issued to VAllEY PARK, CITY OF

Janua!'y 1, 2006

forms a part of

by Illinois National Insu!'ance Company
THIS ENDORSEMENT CHANGES THE POLICY, PLEASE READ IT CAREFULLY.
COVERAGE TERRITORY ENDORSEMENT
Payment of loss under this polley shall only be made in full compliance with all United States of America economic or trade sanction laws or regulations, including, but not limited to, sanctions, laws and regulations administered and enforced by the U,S. Treasury Department's Office of Foreign Assets Control ("OFACj.

89644 (7/05)

AUTHORIZED REPRESENTATIVE
END 002
Page 1 of 1

ENDORSEMENT# 3

This endorsement, effective 12:01 am
policy number 494-84-73
issued to VALLEY PARK, CITY OF

Janual'Y 1, 2006

forms a part of

by Illinois National Insul'ance Company

MISSOURI AMENDATORY ENDORSEMENT

Wherever used in this endorsement: 1) IIwe", ·us", "our-, and "'nsurer- mean the insurance company which issued this policy; and 2) ·you", "your-, "named Insured", "Flrst Named Insured", and "Insured" mean the Named Corporation, Named Organization, Named Sponsor, Named Insured, or Insured stated in the declarations page; and 3) ·Other Insured(s)" means all other persons or entities afforded coverage under the policy.
CANCELLAnONINONRENBNAL
It Is hereby agreed and understood that the cancellation provision of this policy Is amended to read as follows:
A. CANCELLATION
1. The Arst Named Insured may cancel this policy by mailing or delivering to the
Insurer advance written notice of cancellation.
2. The Insurer may cancel this policy for any of the following reason(s):
a. Nonpayment of premium;
b. Fraud or misrepresentation affecting the policy or In the presentation of a claim thereunder or a violation of any of the terms or conditions of a policy;
c. Changes in conditions after the effective date of the policy which have materially increased the hazards originally Insured;
d. Insolvency of the Insurer; or
e. The Insurer Involuntarily loses reinsurance for the policy.
3. The Insurer will mail or deliver to the First Named Insured, written notice of cancellation at least sixty (60) days before the effective date of cancellation. The notice will contain the reason for the cancellation.
B. NONRENEWAL
1. The Insurer will mail or deliver to the First Named Insured written notice of nonrenewal at least sixty (60) days before the effective date of the nonrenewal.
sam",#-"t;L. 2. The notice will contain the reason for the nonrenewal.
All other terms, conditions and exclusions remain the

52151 (6/91)

END 003

AUTHORIZED REPRESENTATIVE

.' ,~
ENDORSEMENT# 4

This endorsement, effective 12:01 am
policy number 494-84-73
issued to VAllEY PARK, CITY OF

Janua!'y 1,2006

forms a part of

by Illinois National Insu!'ance Company
FUNGUS AND MOLD EXCLUSION ENDORSEMENT
In consideration of the premium charged, it Is hereby understood and agreed that the following amendments to the policy shall apply:
1. The Section of the policy entitled "DEFINITIONS" is hereby amended to add the following at the end thereof:
"Fungus(I)· includes, but is not limited to, any of the plants or organisms belonging to the major group Fungi, lacking chlorophyll, and Including Molds, rusts, mildews, smuts, and mushrooms.
"Mold(s)· includes, but Is not limited to, any superficial growth produced on damp or decaying organic matter or on living organisms, and Fungi that produce Molds.
·Spore(s)· means any dormant or reproductive body produced by or arising or emanating .out of any Fungus(i), Mold(s}, mildew, plants, organisms or microorganisms.
2. The Section of the policy entitled "EXCLUSIONS" is amended to add the following at the end thereof:
This policy does nC?t apply to any Damages or Claim:
(a) alleging, Arising Out Of, based upon, attributable to, or in any way involving, directly or indirectly:
(1) Fungus(I), Mold(s}, mildew or yeast;
(2) Spore(s) or tOxins created or produced by or emanating from such Fungus(l), Mold(s}, mildew or yeast;
(3) substance, vapor, gas, or other emission or organic or Inorganic body or substance produced by or arising out of any Fungus(i), Mold(s), mildew or yeast; or
(4) material, product, building component,. building or structure, or any concentration of moisture, water or other liquid within such material, product, building component, building or structure, that contains, harbors, nurtures or acts as a medium for any Fungus(i), Mold(s), mildew, yeast, or Spore(s) or toxins emanating therefrom,
regardless of any other cause, event, material, product and/or building component that contributed concurrently or in any sequence to such Claim.
All OTHER TERMS, CONDITIONS AND EXCLUSIONS REMAIN UNCHANGED

80959 (10/02)

END 004
Page 1 of 1

ENDORSEMENT# 5

This endorsement, effective 12:01 am
policy number 494-84-73
issued to VAllEY PNlK, CITY OF

JanuaflY 1,2006

forms a part of

by Illinois National Insuflance Company
PUBLIC OFFICIALS AND EMPLOYMENT PRACTICES LIABILITY INTELLECTUAL PROPERTY EXCLUSION ENDORSEMENT
In consideration of the premium charged, it is hereby understood and agreed that Clause 5. EXCLUSIONS is amended to include the following:
This policy does not apply to Damages or Claim:
arising out of any misappropriation of trade secret or infringement of patent, copyright, trademark, trade dress or any other intellectual property right

ALL OTHER TERMS, CONDITIONS AND EXCLUSIONS REMAIN UNCHANGED.

76409 (7/00)

AUTHORIZED REPRESENTATIVE
END 005
1 of 1

'"
Illinois National Insu~ance Company
CLAIM REPORTING INFORMATION SHEET
Reporting Under Policy/Bond Number: _4.:..::9::..!4~-=-84.:...-..:..7=-3_ _ _ _ _ _ _ _ _ _ _ _ __ Type Of Coverage: _ ..!.l/IJ!:.Nw1w=0~97.L.-- _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Insured's Name, As Given On Policy Declaratlon(Face Page):
VAllEY PARK, CITY OF
Contact Person: --------------------------------
TItle: __________________________________________
Phone: J - - - > - - - - _ _ _ _ _ _,Ext _______________
Case or Claimant Name:
If The Party Involed Is Different From '"Insured- Name (As Given On The Polley Declaration) State Relationship: _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __
Insurance Broker/Agent: CRC INSURANCE SERVICES INC. Address: 14001 N. DALLAS PARKWAY
SUITE NlOO I DAllAS, TX 75240-4350 Contact: lORRAINE GAFNEA
- Phone: -------------------------------------
Name Of Underwriter (If Known): ..;..;A.;;;..IG;.;.....;;;.B-'-,...;...;ok..;;...;e;..;..~_S.;;...;e;...;..~..;;..v.;....ic;..;e;..;s_ _ _ _ _ _ _ _ _ _ _ __
Please Provide The Information Requested Above So That We Can Expedite Our Service To You.
Send Notice Of Claims To: Attn: Segmentation 175 Water Street 9th Floor New York, NY 10038

 
 STATE OF MiSSOUR! )))
)))
ST. LOUIS COUNTY)))

I, lVfarguerite Wilburn, City Clerk within and for the City of

Valley Park, S1. Louis

County, Missouri, do hereby certify that the foregoing constitutes a full, true, and

complete copy of Ordinance 1736 passed by the Board of Aldermen on the

9th day of August 2007 and approved by the Mayor on the 9th day of August 2007 as

fully as the same appears of

record in my offce in the Book of

Ordinances of

said City.

IN TESTIMONY WHEREOF, I have hereunto set my hand and affix the sea! of

the

(."..it.v~r.\Jf\.!.al;lp-,J! P~ar~l: "M,.i.ss¡o~u,,\.j.'~:Jt n.H.~' o..f.F'-;""~,'i'n';',',',','i''i'!-rJit''"'''!&thl ;~s 0:tih&r~Ia"Jo.f.Å..U..ob-usL+"-70:0.7

.~.

BILL NO. 1885

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

ORDINANCE NO. 1736

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

BE IT ORDAINED BY THE BOARD OF ALDERMEN OF THE CITY OF VALLEY PARK, MISSOURI, AS FOLLOWS:
Section One
Ordinance 1722, as amended by Ordinance 1724 and Ordinance 1732, is
hereby amended by deleting Section Seven therefrom and, in lieu thereof,
inserting a new Section Seven so that Ordinance 1722, as amended by
Ordinances 1724 and 1732, shall read as follows:
"Section One
Ordinance No. 1715 and sections one, two, three and four of Ordinance
No. 1708 are hereby repealed and the following is enacted in lieu thereof:
Section Two

FINDINGS AND DECLARATION OF PURPOSE.
The people of the City of Valley Park find and declare:
A. That state and federal law require that certain conditions be met
before a person may be authorized to work in this country. .
B. That unlawful workers and illegal aliens, as defined by this
Ordinance and state and federal law, do not normally meet such
conditions as a matter of law when present in the City of Valley
Park.
C. That the unlawful employment of, harboring of, and crimes
committed by, illegal aliens harm the health, safety, and welfare of
residents of the City of Valley Park. Ilegal immigration leads to
higher crime rates, subjects our hospitals to fiscal hardship and our
residents to substandard quality of care, contributes to other'
burdens on public services, increasing their costs and diminishing
their availability, diminishes our overall qualify of life, and
1

endangers the security and safety of the homeland. Employment of
unauthorized aliens reduces the wages of, and may result in the
unemployment of, U.S. citizens and aliens who are authorized to work in the United States.
D. That the City of Valley Park is authorized to enact ordinances to
promote the health, safety, and welfare of its residents and to abate public nuisances, including the nuisance of illegal immigration, by
diligently prohibiting the acts and practices that facilitate illegal immigration, in a manner consistent with federal law and the objectives of Congress.

E. This Ordinance seeks to secure to those lawfully present in the
United States and this City, whether or not they are citizens of the United States, the right to live in peace free of the threat of crime,
to enjoy the public services provided by this City without being
burdened by the cost of providing goods, support and services to aliens unlawfully present in the United States, and to be free of the debilitating effects on their economic and social well being imposed
by the influx of illegal aliens, to the fullest extent that these goals
can be achieved consistent with the Constitution and Laws of the United States and the State of Missouri.
F. The City shall not construe this Ordinance to prohibit the rendering of emergency medical care, emergency assistance, or legal
assistance to any person.
Section Three

DEFINITIONS.

When used in this chapter, the following words, terms and phrases shall

have the meanings ascribed to them herein, and shall be construed so as to be

consistent with state and federal

law, including federal immigration law:

A. "Business entit/' means any person or group of persons performing
or engaging in any activity, enterprise, profession, or occupation for gain, benefit, advantage, or livelihood, whether for profit or not for
profi.

(1) The term business entity shall include, but not be limited to,
self-employed individuals, partnerships, corporations,
contractors, and subcontractors.

(2) The term business entity shall include any business entity
that possesses a business license, any business entity that is
exempt by law from obtaining such a business license, and
any business entity that is operating unlawfully without such a business license.
2

B. "City" means the City of Valley Park, Missouri.

C. "Contractor" means a person, employer, subcontractor or business
entity that enters into an agreement to perform any service or work
or to provide a certain product in exchange for valuable
consideration. This definition shal,1 include, but not be limited to: a subcontractor, contract employee, or a recruiting or staffing entity.

D. "Ilegal Alien" means an alien who is not lawfully present in the
United States, according to the terms of United States Code Title 8,

section 1101 et seq. The City shall not conclude that a person is an

illegal alien unless and until an authorized representative of the City

has verified with the federal government, pursuant to United States

Code Title 8,

subsection 1373(c), that the person is an alien who is

not lawfully present in the United States.

E. "Unlawful worker" means a person who does not have the legal
right or authorization to work due to an impediment in any provision of federal, state or local law, including, but not limited to, a minor
disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).
F. "Work" means any job, talk, employment, labor, personal services, or any other activity for which compensation is provided, expected,
or due, including, but not limited to, all activities conducted by
business entities.
G. "Basic Pilot Program" means the electronic verification of work authorization program of the Ilegal Immigration Reform and Immigration responsibilty Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and
operated by the United States Department of Homeland Security (or
a successor program established by the federal government.)
Section Four

BUSINESS PERMITS, CONTRACTS, OR GRANTS.

A. It is unlawful for any business entity to knowingly recruit, hire for
employment, or continue to employ, or to permit, dispatch, or
instruct any person who is an unlawful worker to perform work in whole or part within the City. Every business entity that applies for a business license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an
unlawful worker.

3

B. Enforcement: The Valley Park Code Enforcement Office shall
enforce the requirements of this section.

(1) An enforcement action shall be initiated by means of a written
signed complaint to the Valley Park Code Enforcement Office
submitted by any City official, business entity, or City
resident. A valid complaint shall include an allegation which
describes the alleged violator(s) as well as the actions
constituting the violation, and the date and location where
such actions occurred.

(2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not
be enforced.

(3) Upon receipt of a valid complaint, the Valley Park Code

Enforcement Office shall, within three (3) business days,
request identify information from the business entity

regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the

business permit of any business entity which fails, within

three (3) business days

after receipt of the request, to

provide such information.

(4) The Valley Park Code Enforcement Office shall suspend the
business license of any business entity which fails to correct a violation of this section within three (3) business days after
notification of the violation by the Valley Park Code
Enforcement Office.

(5) In any case in which the alleged unlawful worker is alleged to
be an unauthorized alien, the Valley Park Code Enforcement
Office shall not suspend the business license of the business entity if prior to the date of the violation, the business entity
had verified the work authorization of the alleged unlawful
worker using the Basic Pilot Program.

(6) The suspension shall terminate one (1) business day after a legal representative of the business entity submits, at a City
office designated by the City Attorney, a sworn affidavit
stating that the business entity has corrected the violation, as
described in Section S.B.
(a) The affidavit shall include a description of the specific
measures and actions taken by the business entity to
correct the violation, and shall include the name,
address and other adequate identifying information of the unlawful workers related to the complaint.

4

Section Six
CONSTRUCTION AND SEVERABILITY
A. The requirements and obligations of this sectiloanw rsehgaullaltibneg implemented in a manner fully consistent with federal immigration and protecting the civil rights of all citizens and aliens.
B. If any parts of or any provision of this Chapter is in conflict or inconsistent with applicable provisions of federal or state statutes,
or is otherwise held to be invalid or unenforceable by any court of
competent jurisdiction, such part or such provision shall be
suspended and superseded by such applicable laws or regulations,
and the remainder of this Chapter shall not be affected thereby.
Section Seven
This Ordinance shall become effective from and after its passage and
approval by the Mayor in repealing Ordinances 1708 and 1715, .provided that the enforcement of the provisions contained within Sections Two, Three, Four, Five and Six shall be stayed and no complaints thereunder shall be accepted by the
City of Valley Park until December 1, 2007."
Section Two
This Ordinance shall become effective from and after its passage and approval by the Mayor.
c) I) 11o.f ..f//:J?t..Æ-O)~o~1' / , 2007.
PASSED this /.X:J7r day
APPROVED this 'jtt~ day of ,l¿r"''-¿ ,2007.

ATTEST:
_//)7
'7 / La-f/'
MARGU /: ITE WILBURN
City Clerk

. ryc¿¿¿"/'L

7

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

STEPHANIE REYNOLDS, et al. Plaintiffs, and JAMES ZHANG, Intervenor, v. CITY OF VALLEY PARK, MO, et al. Defendants.

) ) ) ) ) ) Cause No. 06-CC-3802 ) ) Division No. 13 ) ) ) ) ) ) )

PLAINTIFFS' MOTION FOR ORDER TO SHOW CAUSE AND CONTEMPT Come now Plaintiffs Stephanie Reynolds, Kobasa, Inc., d/b/a Valley Deli, Florence Streeter, Cash Flo Properties, and Metropolitan St. Louis Equal Housing Opportunity Council, by and through Counsel, and for their Motion for Order to Show Cause and Contempt against Defendants, state as follows: 1. Plaintiffs filed a complaint for declaratory and injunctive relief in this action challenging Valley Park Ordinance No. 1708, and later Ordinance No. 1715 after the City repealed Ordinance 1708 and replaced it with Ordinance No. 1715. Both ordinances attempted to regulate the presence of "illegal aliens" in the City of Valley Park by imposing penalties on landlords and businesses. 2. While this litigation was pending, on February 5, 2007, the Board of Aldermen approved, and the Mayor later signed, Ordinances No. 1721 and No. 1722 which purported to

1

repeal Ordinance No. 1715. Ordinance No. 1721 (which was later amended to eliminate wording relating to illegal aliens) attempted to regulate landlords in renting to illegal aliens, and Ordinance No. 1722 attempts to regulate businesses in hiring of illegal aliens. When initially adopted, Ordinance No. 1721 and No. 1722 stated they would not be effective until the lifting of the injunction in this litigation, presumably so as not to be in conflict with the court's rulings regarding the earlier ordinances. There were several subsequent efforts to amend Ordinance No. 1721 and No. 1722 before August 9, 2007, including one ordinance adopted on February II, 2007, (two weeks before the scheduled hearing in this litigation) designed to amend the effective date of Ordinance No. 1721 to purportedly put it into immediate effect. Thereafter, on August 9, 2007, in a meeting called with less than 24 hours' notice, Defendants adopted Ordinance No. 1736, amending the terms of Ordinance No. 1722 to provide that it too was effective immediately. See Ordinance No. 1736, which restates Ordinance 1722 in full, attached hereto as Exhibit A.
3. At the hearing on the Plaintiffs' Motion for Judgment on the Pleadings on March I, 2007, Eric Martin, the Valley Park City Attorney, testified that the "substance" of Ordinance No. 1722 "is virtually identical" to the substance of Ordinance No. 1715. Transcript p.48-49, March 1, 2007. An attorney for the City also admitted that: "The employment provisions have not been changed in any of the statutes and I would not represent to the Court that there is a substantial change in the employment provisions.: Transcript p. 12-14, March 1,2007. Transcript Excerpts are attached hereto as Exhibit B.
4. After adopting Ordinance No. 1721 and No. 1722 on February 5, 2007 (three weeks before the scheduled hearing), Defendants argued that Ordinances No. 1708 and No. 1715 were moot because the City had adopted the new ordinances in place of No. 1708 and No. 1715 which 2

the new ordinances had purportedly repealed. 5. This Court entered its Findings of Facts, Conclusions of Law, Order and Judgment on
March 12,2007, declaring both Ordinances No. 1708 and No. 1715 void for violating Missouri law, and permanently enjoined the Defendants from enforcing either ordinance. The Court's judgment did not rule on the validity of Ordinance No. 1721 or No. 1722.
6. In pertinent part, this Court's Judgment, in addressing Defendants' mootness argument, stated that "the new ordinances are 'sufficiently similar' to the old ordinances in that they are directed at the same class of people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue." Findings of Fact, Conclusions of Law, Order and Judgment, p. 5.
7. The Court specifically held that Ordinance No. 1715 conflicted with Section 79.470 of the Missouri Revised Statutes in that it penalizes a violation by suspending a business' permit to operate.
8. In adopting Ordinance No. 1736 on August 9, 2007, to make Ordinance No. 1722 immediately effective, Defendants have violated the Court's Judgment of March 12,2007, in that the Court had enjoined the City from enforcing a "virtually identical" ordinance, No. 1715. Ordinance No. 1722 and No. 1736 bear the same fatal flaw as Ordinance No. 1715 in that they impose penalties far in excess of that allowed by Missouri law. With respect to the legal flaw that is the subject of the Court's March 12 Judgment, Defendants have effectively simply renumbered and reenacted the Ordinance already held unlawful.
9. Defendants had full knowledge of the contents ofthe Court's Judgment when they adopted Ordinance No. 1722 and Ordinance No. 1736, and acted willfully and in contempt of the Court's Judgment.
3

IO. The Court's Findings of Fact, Conclusions of Law, Order and Judgment has been appealed by the Defendants, with a cross appeal by Plaintiffs of the issue of attorney fees. Briefs have not yet been filed in the appeal.
II. Defendants have not sought a stay of the Court's Judgment. 12. This Court retains jurisdiction to enforce its Judgment while the judgment is being appealed. 13. Plaintiffs have no adequate remedy at law. Wherefore, Plaintiffs pray this Court issue an Order to Show Cause and to find Defendants in contempt for adopting and enforcing Ordinance No. 1722 and Ordinance No. 1736 which are virtually identical to the Ordinance enjoined by this Court, imposing appropriate punishment, enjoining enforcement of Ordinances No. 1722 and No. 1736, for attorney fees and for such other and further relief as may be deemed appropriate.
John . Ammann, #34308 ammannjj@SLD.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
4

BRYAN CAVE LLP Linda Martinez, #30655 Imartinez@bryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski, #38716 kwisniewski@uselaws.com 100 South Fourth Street Suite 900 St. Louis, MO 63102 (314) 621-6115 Facsimile: (314) 621-7151
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
5

ITUARTE AND SCHULTE LLC Jesus Itauarte ituarte~@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400 ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778 Attorneys for Plaintiffs, Stephanie Reynolds, Kobasa, Inc., d/b/a Valley Deli, Florence Streeter, Cash Flo Properties, and Metropolitan St. Louis Equal Housing Opportunity Council.
6

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing document was served via U.S. mail, postage prepaid, on the 16th day of August on the following counsel of record:
ERIC M. MARTIN, ESQ. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin772@aol.com
KRIS W. KOBACH University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk@umkc.edu
LOUIS LEONATTI 123 East Jackson P.O. Box 758 Mexico, Mo. 65265 lou@leonatti-baker.com
Counsel for Defendants
and
ALAN BAKER
Attorney at Law 1620 South Hanley St. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314
Attorney for Intervenor James Zhang
ANTHONY E. ROTHERT American Civil Liberties Union Of Eastern Missouri 454 Whittier Street St. Louis, MO 63108 314-652-3114 Fax: 314-652-3112 Email: tony@aclu-em.org
7

DANIEL J. HURTADO GABRIEL A. FUENTES Jenner & Block LLP 330 North Wabash Avenue Chicago, IL 60611-7603 312-923-2645 Email: dhurtado@jenner.com
FERNANDO BERMUDEZ Green and Jacobson, P.C. 7733 Forsyth Boulevard, Suite 700 St. Louis, MO 63105 314-862-6800 Fax: 314-862-1606 Email: bermudez@stlouislaw.com
OMARC.JADWAT JENNIFER C. CHANG AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 415-343-0770 Fax: 415-395-0950 Email: jchang@aclu.org
Jennifer R. Nagda Ricardo Meza MALDEF 11 E. Adams Street, Suite 700 Chicago, IL 60603 312-427-0701 Fax: 312-427-0691 Email: jnagda@maldef.org
Attorneys for Plaintifft Windhover, Inc and Jacqueline Gray
8

EXHIBIT A

Case 4:0'7-cv-00881-ERW DOCU'llent 54 Filed 08/10/200'7 Page -I of '7

BILL NO. 1885

ORDINANCE NO. 1736

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

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

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

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

Section One

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

"Section One

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

Section Two

FINDINGS AND DECLARATION OF PURPOSE.

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

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

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

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

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

Case 4:07-cv··OOSS1-EFVV Document 54 Filed OS/10/2007 Page 3 of 7
B. "City" means the City of Valley Park, Missouri.
C. "Contractor" means a person, employer, subcontractor or business entity that enters into an agreement to perform any service or work or to provide a certain product in exchange for valuable consideration. This definition shall include, but not be limited to, a subcontractor, contract employee, or a recruiting or staffing entity.
D. "Illegal Alien" means an alien who is not lawfully present in the United States, according to the terms of United States Code Title 8, section 1101 et seq. The City shall not conclude that a person is an illegal alien unless and until an authorized representative of the City has verified with the federal government, pursuant to United States Code Title 8, subsection 1373(c), that the person is an alien who is not lawfully present in the United States.
E. "Unlawful worker" means a person who does not have the legal right or authorization to work due to an impediment in any provision of federal, state or local law, including, but not limited to, a minor disqualified by nonage, or an unauthorized alien as defined by United States Code Title 8, subsection 1324a(h)(3).
F. "Work" means any job, talk, employment, labor, personal services, or any other activity for which compensation is provided, expected, or due, including, but not limited to, all activities conducted by business entities.
G. "Basic Pilot Program" means the electronic verification of work authorization program of the Illegal Immigration Reform and Immigration responsibility Act of 1996, P.L. 104-208, Division C, Section 403(a); United States Code Title 8, subsection 1324a, and operated by the United States Department of Homeland Security (or a successor program established by the federal government.)
Section Four
BUSINESS PERMITS, CONTRACTS, OR GRANTS.
A. It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or part within the City. Every business entity that applies for a business license to engage in any type of work in the City shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker.
3

Case 407-cv-00881-ERW Documellt 54 Filed 08/10/2007 Page 4 of 7
B. Enforcement: The Valley Park Code Enforcement Office shall enforce the requirements of this section.
(1) An enforcement action shall be initiated by means of a written signed complaint to the Valley Park Code Enforcement Office submitted by any City official, business entity, or City resident. A valid complaint shall include an allegation which describes the alleged violator(s) as well as the actions constituting the violation, and the date and location where such actions occurred.
(2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.
(3) Upon receipt of a valid complaint, the Valley Park Code Enforcement Office shall, within three (3) business days, request identify information from the business entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which fails, within three (3) business days after receipt of the request, to provide such information.
(4) The Valley Park Code Enforcement Office shall suspend the business license of any business entity which fails to correct a violation of this section within three (3) business days after notification of the violation by the Valley Park Code Enforcement Office.
(S) In any case in which the alleged unlawful worker is alleged to be an unauthorized alien, the Valley Park Code Enforcement Office shall not suspend the business license of the business entity if prior to the date of the violation, the business entity had verified the work authorization of the alleged unlawful worker using the Basic Pilot Program.
(6) The suspension shall terminate one (1) business day after a legal representative of the business entity submits, at a City office deSignated by the City Attorney, a sworn affidavit stating that the business entity has corrected the violation, as described in Section S.B.
(a) The affidavit shall include a description of the specific measures and actions taken by the business entity to correct the violation, and shall include the name, address and other adequate identifying information of the unlawful workers related to the complaint.
4

Case 4:07-cv-00881-ERW DDcument 54 Fiied OBi10!2007 Page 5 of 7
(b) Where two or more of the unlawful workers are verified by the federal government to be unauthorized aliens, the legal representative of the business entity shall submit to the Valley Park Code Enforcement Office, in addition to the prescribed affidavit, documentation acceptable to the City Attorney which confirms that the business entity has enrolled in and will participate in the Basic Pilot Program for the duration of the validity of the business permit granted to the business entity.
(7) For a second or subsequent violation, the Valley Park Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty (20) days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Valley Park Code Enforcement Office shall reinstate the business permit. The Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to United States Code Title 8, section 1373. In the case of an unlawful worker disqualified by state law not related to immigration, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.
C. All agencies of the City shall enroll and participate in the Basic Pilot Program.
D. As a condition for the award of any City contract or grant to a business entity for which the value of employment, labor or, personal services shall exceed $10,000, the business entity shall provide documentation confirming its enrollment and participation in the Basic Pilot Program.
Section Five
IMPLEMENTATION AND PROCESS
A. Prospective Application Only. The default presumption with respect to Ordinances of the City of Valley Park - that such Ordinances apply only prospectively - shall pertain to the provisions of this Ordinance, which shall apply only to employment contracts, agreements to perform service or work, and agreements to provide a certain product in exchange for valuable consideration that are entered into or renewed after the date that this Ordinance becomes effective and any judicial injunction prohibiting its implementation is removed.
B. Correction of Violations-Employment of Unlawful Workers. The correction of a violation with respect to the employment of an unlawful worker shall include any of the following actions:
5

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

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

ATTEST:
MARGUERITE WILBURN City Clerk

JEFFERY J. WHITTEAKER, MAYOR

7

EXHIBITB

9
1 Honor, was that we were going to argue this mootness issue at ten minutes a side and then both sides would
. 3 put their evidence into the record and then we would ; 4 move on to argument on motion for judgment on the
5 pleadings. I think that was what we outlined. and to : 6 me that seems to make the most sense.
We of course object to any testimonial 8 evidence in this case in particular, because what "9 it's being offered for, considering to what was said ~o in the teleconference that we had, that it's going to 1 be offered for -- to tell this court how it should 2 interpret the statute, which is totally against the 3 law. And it would also require at a minimum some
expert if it was allowed, and this court had a deadline for designation of experts and that has '6 passed, and my understanding is whoever they may call 7 is not somebody they designated. we've had no chance to depose that person.
Again, this is another last minute attempt by the Defendants to pull a surprise on the Plaintiffs so that we're not prepared. This has been the history of this case. We strongly object to any testimonial evidence on the issues that they want to offer it for.
THE COURT: Okay, I'm going to overrule the

11

1

The Jacksonville case, the important part of

2 that is the footnote, footnote 3, which I'm sure the

court has read. And, as you know, there was a

4 various split decision in Jacksonville; it's a 5/4.

5 Footnote 3 says, "At bottom, the dissent differs on7y

6 over the question of whether the new ordinance is

7 sufficiently similar to the repealed ordinance that

8 it is permissib7e to say that the challenged conduct

9 continues, or, as the dissent puts it, whether the

10 ordinance has been sufficient7y a7tered to present a

11 substantially different controversy. It So that the

12 real question on mootness is are you gonna have the

13 same thing before you in the new ordinance or is it

14 substantially different. And we're going to show to

15 the court and in our paragraph 6 of our proposed

16 findings of fact there is a substantial difference in

17 the landlord tenant provisions from new ordinance

18 1721 and 1708 and 1715.

19

counsel exchanged -- Ms. Ferrick asked me if

20 I would provide her with the case we talked about

21 yesterday, or Tuesday. I'm sorry, the smithfield

22 decision, and I gave her that cite, and I gave her

23 the cite to two other cases and I have copies of

24 those for everyone. Smithfield is smithfield Foods,

25 it's an 8th circuit decision that -- 367 F.3d 1061.

10
motion on the objection on the offering of testimonial evidence for this reason: To the extent that the court needs to consider a judgment on the pleadings and needs to have other evidence with regard to the ability to make that judgment, the Court believes it has to take some evidence on this, and, therefore, the Court is not going to deny the Dofendants the right to be in opposition and present ov1dence on their side. But it's a limited field.
MR. LEONATTI: we're not going to present lagal opinion, we're going to present testimony about the difference between the two ordinances.
iHE COURT: Right. So when the questions are asked I suggest you interpose your objections if you have them then to technical questions or legal grounds.
MS. WISNIEWSKI: We assume we'll have the right to cross-examine, Your Honor.
THE COURT: of course. All right. NOW, SO let's start with the argument on the u.S. supreme Court decision. MR. LEONATTI: Mootness. May it please the Court. I'm confident in what we're going to do today because there are good lawyers on both sides and the Court has been very attentive.

12
1 I have a copy of that for the court.

THE COURT: Mr. Martin just handed me one.

Thank you very much.

4

MR. LEONATTI: And Federation of Advertising

Industry Representatives against the city of chicago,

6 which is at 326 F.3d 924, and Lamar Advertising vs

7 the Town of orchard park, which is at 356 F.3d 365.

8

NOW what those cases are doing, Your Honor,

9 is they're interpreting that footnote in the City of

10 Jacksonville. And that's where everybody focuses

11 thei r attention.

12

THE COURT: Are you looking at Headnote 2

13 there, Mootness?

MR. LEONATTI: Yes. And in Smithfield

15 that's a case where the State of Iowa is trying to

16 keep the largest hog producer in the world out of the

17 State of Iowa, and they passed a law, then they

18 repealed it, had a new law, and they determined that

19 there was not a sufficient difference, but they

20 looked to that footnote in the city of Jacksonville

21 case. Page 3 of the opinion says you have to

22 determine if it's sufficiently similar to the

23 repeal ed statute and wi 11 the cha11 enged conduct

24 continue. That's the test: Is it sufficiently

25 similar; will the challenged conduct continue. If it

13
, it's not moot. If it's different then it is The advertising Case against the City of
cago, both of these cases I find quite ironic cause they're billboard cases and they're similar to
City of Eureka case which we provided to the last week decided by Judge price before the But in the Federation of
,Advelrtising Industry case against the City of chicago page 5 of the opinion it notes: As the court has that iT there's a claim for damages that's
11"p"m1;l.g you sti77 have to consider the claim Tor damages, and that's in accord with the City of Sikeston case, and that's why we had this issue still about attorneys fees. But, it also says that there's a presumption; that you do not presume bad faith by the legislative body if there's a reasonable explanation as it why the ordinance was re-enacted. It, again, discusses this footnote from the Northeastern Florida case, talks about the majority opinion on page 7, and in this particular case concerning these billboards it held that there was a substantial difference and granted the argument on mootness. NOW this concerned whether you could advertise alcohol and cigarettes on what I would call public billboards and metropolitan transit, that type

15
1 Court. And without getting into a ratatat-tat, 1715

2 has penalties for noncompliance; 1721 has no

provision for a fine, no type of penalty. 1715

4 requires a complaint; 1721 does not allow a

complaint. 1715 required the landlord to make a

6 judgment about the tenant, frankly; 1721 doesn't

7 requi re deci sion-maki ng. 1721 requi res

8 verification of all tenants - not just certain

9 tenants but all tenants. That's a substantial

10 difference.

11

THE COURT: Can I interrupt you Mr.

12 Leonatti. The new one, if it does not contain

13 penalties for noncompliance, what, so a person could

14 just Violate the ordinance and there's no harm, no

15 foul?

16

MR. LEONATTI: I think, if I recall

17 correctly. we'll have some testimony about that,

18 Judge. There's not a filing of the complaint in

19 municipal court, there's not a fine. You could lose

20 the occupancy permit --

21

THE COURT: I see.

12

MR. LEONATTI: But you WOUldn't be -- And

23 the old ordinance did not have an appeal process.

24 The new ordinance permits an appeal by the landlord

25 to the city's Board of Adjustment.

,.
of thing. But it goes through all of this analysis, talks about deference to the legislative body have to give deference to the legislative body in 13, and then reaches that conclusion.
The lamar Advertising case: Again, another billboard case; again, interpreting the City of Jacksonville case, and it reaches the same conclusion. In this particular case the statute had actually been repealed and they wanted to continue the lawsuit, and the Court again held, frankly, if you put it in layman's language, it really was nothing left to decide. There wasn't a claim for damages, and it noted on page 8 that challenges to statute are routinely found moot when a statute is amended. The exception is the city of Jacksonville case in that footnote.
So what we have to do is determine if
I
there's a similarity between the new ordinance 1721 and the landlord tenant provisions in 1708 and 1715. The employment provisions have not been changed in any of the statutes and I would not represent to the Court that there is a SUbstantial change in the employment provisions. The landlord tenant provision there is a substantial difference, and in paragraph 6 , of our proposed findings we go through those for the

16

1

THE COURT: Did the old ordinance also

2 include the loss of the occupancy permit?

MR. LEONATTI: I believe so.

•

THE COURT: It did didn't it?

MR. LEONATTI: I believe so.

6

So we think those are big distinctions.

7

THE COURT: So the only penalty now under

8 the landlord tenant provision is this loss of the

9 occupancy permit?

10

MR. LEONATTI: Yes. And every tenant gets

11 processed, and you don't get into this $500 for every

12 defense, $250 remedy defense. That's all been

13 eliminated. So I think that is a good -- Don't know

14 if it was ten minutes, but that's a good nutshell of

15 what we're presenting to you.

16

THE COURT: Thank you, sir. All right.

17 Kathy.

18

MS. WISNIEWSKI: Your Honor, I'd like to

19 speak from the podium if that's okay with the Court.

20

THE COURT: Sure.

21

MS. WISNIEWSKI: Judge. we've come a long

22 way in four weeks on this mootness issue. In that

23 short period of time the city of valley park has

24 attempted to control these judicial proceedings

25 through their legislative enactments. only four

city council, correct?
there a question raised in this when 1721 and 1722 would become
IS that objection set forth in :,•••••".".·s Exhibit S?
II It is. Q So as a result of that objection was, I call it the enabling clause or the effective clause for the ordinance, was that modified in Ordinance 1723 and 1724? A It was. as a direct reaction to the correspondence. yes, sir. Q All right. And then the city council has met this week, is that correct? A Yes. sir. Q And passed ordinance No. 1725 which is Exhibit Q? A Yes, sir. Q And did that, again, amend the enabling clause on ordinance No. 1721? A It did. Q All right. And--

1 for purposes of the record, did the City of Valley

park and the Defendants offer to substitute ordinance

3 1721 and 1722 in place of 1708 and 1715 and have the

4 court's preliminary injunction apply to it?

A Yes, sir.

MR. AMMANN: your Honor, I object to that.

7 They can't force us to litigation. Those ordinances

8 and Mr. Martin's opinion about that is irrelevant.

9

THE COURT: How is it relevant?

10

MR. lEONATTI: It's relevant under lamar

11 Advertising vs. Town of orchard park. The last page

12 of the opinion indicates that it would be a

13 preferable procedure to have amended the complaint to

14 certain new ordinances so that matter can be

15 determined by the Court.

16

MR. AMMANN: Well Mr. Martin just said that,

17 I mean, they're adopting things three days ago, so I

18 don't know how we would have had time to amend and

19 have those new ordinances when the effective date --

20 You know, I mean it wasn't even effective until three

21 nights ago.

22

THE COURT: Again, I'll take it for what

23 it's worth. The Court's aware that to amend may have

24 caused a continuance. There were lots of reasons

25 that the plaintiffs had that they didn't want that

46
THE COURT: so Q amended T? MR. LEONATTI: Yes. THE COURT: No, I'm just trying to follow. THE WITNESS: It made the ordinance ijffective immediately. Q (By Mr. leonatti) Prior to that the ordinances had indicated -- 1721, 1722, had indicated that they would not be enforced while there was litigation pending as to 1715 and 1708, right? A That's correct. Q And then there was a change made in that 'language as to 1721, 1722, and that was objected to by Plaintiffs' counsel? A Yes, si r. Q So 23 -- Ordinance 1723 and ordi nance 1724 Was an attempt to clean that up? A Exactly. Q And 1725 is a clear statement that it's to b,c effective when passed? A Yes, sir. Q And we got a lot of ordinances running dfound. That's referring to 1721, the landlord tenant? A Yes, sir. Q All right. NoW as part of the litigation,

48
1 amendment as well. But the Court does know that you

2 all made that offer.

Q (By Mr. leonatti) And as part of that offer

4 did the Defendants offer to have remain open and have

5 litigated the claim that ordinance 1708 and 1715 were

6 alleged to have violated the open meetings law?

A Yes, si r.

Q And that offer was not accepted?

A That's correct.

10

MR. lEONATTI: That's all the questions I

11 have.

12

THE COURT: who's going to do the cross?

13

MR. AMMANN: I am, Your Honor.

14

CROSS EXAMINATION

15

BY MR. AMMANN:

16 Q Mr. Martin, you were born on the 4th of

17 July, is that what I heard?

18 A That's correct.

19 Q My objection went to you having to reveal

20 your age, not your date of birth.

21 A I appreciate that.

12 Q Mr. Martin, you talked about Exhibit T being

23 ordinance 1721, correct?

24 A Yes, sir.

2S Q And just for the court's benefit, 1721 deals

49
"w1th housing and rental properties, correct? A Yes, sir. Q And the new ordinance 1722 deals with
emp layment? A Yes, sir.
Q And business and hiring workers? A Yes, sir. Q Mr. Leonatt; has said, but I want to make sure you're in agreement, that 1722 dealing with employment is virtually identical to 1115 in terms of regarding employment? A There were some amendments made and the amendments included making it prospective only in its application, and I believe an appellate process was set forth. Q But the substance is virtually identical? A Yes, sir. Q You said you drafted 1721, is that correct? A well, as an amalgamation, but principally, yes, sir. Q And other attorneys were helping, correct? A That's correct. Q P-rofessor Kobach from UM Kansas city? A Yes, sir. Q Mr. Leonatti?

51
1 Q So the Mayor, nor the Board of Aldermen,

2 di rected you to draft 1721 or 1722?

A That's correct.

4 Q And was ; t Professor Kobach' s idea to make

the changes?

6 A It was a combination of myself and Mr.

7 Kobach.

8 Q 1721 deals with rental property, as you

9 said, correct?

10 A Yes, sir.

11 Q And it was designed to repeal 1715 insofar

12 as it related to rental property?

13 A Yes, sir.

14

MR. AMMANN: And, Your Honor, 1715, I don't

15 remember what letter it is. If Mr. Leonatti

16 remembers.

17

THE COURT: 1715 is Plaintiffs' Exhibit 6.

" MR. AMMANN: plaintiffs' Exhibit 6. okay.
19 Q". (By Mr. Ammann) So Plaintiffs' Exhibit 6,

20 1715, is the prior ordinance, which do you believe

21 that 1721 and 1722 repealed 1715?

22 A I do.

23 Q And 1721 in its housing aspects deals with

24 illegal aliens, correct?

2S A Yes, sir.

so A I'm not sure. Q primarily Professor Kobach? A Yes. Q And were you sharing drafts with the Mayor as they were being redrafted?
MR. LEONATTI: That might invade attorney privilege, so I object.
MR. AMMANN: Your Honor, they opened the ~ door to how the bill was drafted.
THE COURT: Without revealing -- I'm going 1 to overrule the objection, but I'm not going to -- no
content of discussions. Q (By Mr. Ammann) Did you share the drafts
with the Mayor? A NO, sir. Q Did you share the drafts with the Board of
Aldermen at all? A NO, sir. Q who then, Mr. Martin, was directing you to
make changes or to suggest the language for 1721 and 1722?
A Counsel. Q So it was strictly a discussion among the attorneys? A It was.

" 1 Q And in 1721 the mechanism for checking the
status of someone who's -- their legal status, the 3 mechanism is to check with the federal immigration 4 officials?
A Yes, si r. 6 Q Pardon me? 7 A Yes, si r. 8 Q And in 1721 a landlord faces the inability 9 to rent his or her property out to someone found not 10 to have legal status, is that correct? 11 A That's correct. 12 Q And the purpose of 1721 is to keep illegal 13 aliens from renting dwellings in valley park, is that 14 correct? 15 A Yes, si r. 16 Q And under 1721 it's up to the landlord to 17 apply for occupan<;:y permit, is that correct? 18 A That's correct. 19 Q And it's up to the landlord to provide the 20 city with information about the citizenship status of 21 people who are prospective renters, is that correct? 22 A That's correct. 23 Q And 1721 says the person enforcing that 24 ordinance is the building commissioner, is that 2s correct?

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

STEPHANIE REYNOLDS, et al. Plaintiffs, and JAMES ZHANG, Intervenor, v. CITY OF VALLEY PARK, MO, et al. Defendants.

) ) ) ) ) ) Cause No. 06-CC-3802 ) ) Division No. 13 ) ) ) ) ) ) )

PLAINTIFFS' MEMORANDUM IN SUPPORT OF MOTION FOR CONTEMPT Come now Plaintiffs, by and through their attorneys, and for their Memorandum in
Support of the Motion for Contempt, state as follows:

INTRODUCTION AND FACTUAL SUMMARY The pending Motion for Contempt arises out oflengthy litigation involving the efforts of the City of Valley Park to regulate "illegal aliens" in that St. Louis County municipality. This action started when Plaintiffs filed a complaint for declaratory and injunctive relief challenging a Valley Park ordinance attempting to regulate "illegal aliens" by penalizing landlords and businesses. The original complaint challenged Ordinance No. 1708, and the complaint was amended after the City enacted Ordinance No. 1715, which, like Ordinance No. 1708 imposed penalties on both landlords and businesses for conducting business with illegal aliens.
1

While this litigation was pending, the Board of Aldermen adopted, and the Mayor signed, Ordinance No. 1722 regulating employers. At the time Ordinance No. 1722 was passed it provided that it would not become effective unless and until any injunction entered in this case was dissolved.
On August 9,2007, Valley Park adopted Ordinance No. 1736, which provides that Ordinance No. 1722 is effective immediately. (Plaintiffs believe the Valley Park Board of Aldermen has taken an additional vote to re-approve Ordinance No. 1736 due to questions raised about whether there was adequate notice given prior to the August 9 meeting.) Therefore, the current status is that Ordinance No. 1736 has fully implemented Ordinance No. 1722.
Valley Park's City Attorney testified during the hearing on March 1,2007, in the underlying litigation before this Court, that the "substance" of Ordinance No. 1722 is "virtually identical" to the substance of Ordinance No. 1715. Transcript p. 48-49, March 1,2007. Referring to Ordinances No. 1715 and No. 1722, another attorney representing the City admitted in argument that: "The employment provisions have not been changed in any of the statutes and I would not represent to the Court that there is a substantial change in the employment provisions." Transcript p. 12-14, March 1,2007.
The Court entered its Findings of Fact, Conclusions of Law, Order and Judgment on March 12, 2007, declaring that both Ordinances No. 1708 and No. 1715 were void for violating Missouri law, and permanently enjoined Valley Park from enforcing either ordinance. The Court found that Ordinance No. 1722 is "'sufficiently similar' to the old ordinances in that [it is] directed at the same class of people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the Court concludes the challenged conduct will continue." Judgment, p. 5. The Court's ruling specifically found fault with the penalty
2

provisions of Ordinance No. 1715 which suspend the permit of a business to operate as a penalty for violating the ordinance. Ordinance No. 1722 has the same penalty provisions as the enjoined Ordinance No. 1715.
Valley Park has appealed the court's judgment on the merits, while Plaintiffs have appealed the court' ruling denying attorney fees. The appeal is still pending, and no briefs have yet been filed. Valley Park has not requested a stay of the injunction in this court or the Appellate Court.
ARGUMENT A. This Court Has Jurisdiction to Hear the Motion for Contempt
Defendants appeal of the injunction enjoining enforcement of Ordinance No. 1722 is still pending. No date for argument has yet been set, and no briefs have yet been filed. However, this Court retains jurisdiction to enforce its order, despite the pending appeals. See In Re Marriage of Smith, 721 S.W.2d 782,784 (Mo. App. S.D. 1986); Roberts v. Flowers, 996 S.W.2d 130, 134 (Mo. App. S.D. 1999.) An injunction is not suspended pending an appeal, State ex rei South Missouri Pine Lumber Co. v. Dearing, 180 Mo. 53,79 S.W. 454, 459 (Mo. 1904), and a court can hold a party in contempt for violating an injunction while an appeal is pending. State ex reI. Gray v. Hennings, 185 S.W. 1153 (St. Louis Court App. 1916).
Supreme Court Rule 92.03 allows for a court to suspend or modifY an injunction pending an appeal, but here Valley Park has not requested such a suspension or modification, either from this Court or the Appellate Court. The injunction remains in effect and this Court has the ability to enforce it through contempt proceedings.
The Court can proceed to hear the contempt motion without the need for an order or rule 3

to show cause. Plaintiffs have provided Valley Park with the time and place of the hearing, the essential facts constituting the contempt charge, and a description of the charge as contempt, which is all that is required to proceed to a hearing. Happy v. Happy, 941 S.W.2d 539, 543 (Mo. App. W.D. 1997) "Although a show cause order is an appropriate method of putting the contemnor on notice of contempt, it is not mandatory." 941 S.W.2d at 543. The Court can proceed with a hearing on the merits ofthe contempt motion without a show cause order.
B. Municipalities Can Be Held In Contempt This Court has the authority to hold Valley Park in contempt for the City's adoption,
through its Board of Aldermen and Mayor, of Ordinance No. 1722 as made effective by Ordinance No. 1736. Courts have authority to hold cities in contempt for their actions. Spallone v. United States, 493 U.S. 265, 276 (1990). In Spallone, the Supreme Court held that the city council members in Yonkers, New York, could not be held personally in contempt for failing to adopt an ordinance carrying out the city's obligations in a consent judgment absent extraordinary circumstances, but made clear the City itself could be held in contempt. See also Shakman v. Democratic Organization of Cook County, 533 F.2d 344, 353 (7th Cir. 1976). More specifically, a court can hold a city in contempt for passage of an ordinance that violates an earlier court order. See State ex reI. Adkins et al v. Sobb et aI., 528 N.E.2d 1247 (OH 1988).
A city might avoid contempt for adoption of an ordinance in the face of an earlier court order if the new ordinance is "sufficiently different" from the previous ordinance. Ginsberg v, Kentucky Utilities Co., 83 S,W.2d 497 (KY 1935), Here, however, Defendants have admitted the exact opposite: Ordinance No, 1715 and Ordinance No. 1722 are actually substantially similar. Transcript, p. 12-14,48-49.
4

C. The Two Ordinances in Ouestion Are not Different in Any Material Matter The City should be held in contempt for adopting an ordinance which bears no material difference from the ordinance struck down by the court. Just as res judicata applies to bar a new action against an ordinance that is no different "in any presently material respect" than one struck down earlier, JBK Inc. V. City of Kansas City, Mo., 641 F. Supp. 893, 899 (W.D. Mo. 1986), a City should not be allowed to enact the same defective ordinance by changing its number and adding a few superfluous sections. Here, in ruling that the merits of Ordinance No. 1715 were not moot even in the face of adoption of Ordinance N0.1722, the Court found that the ordinances were "sufficiently similar." This Court's ruling is supported by the Supreme Court's decision in Northeastern Florida Chapter of the Associated General Contractors of America v. City of Jacksonville, Florida, 508 U.S. 656, 124 L.Ed.2d 586 (1993.) In Northeastern Florida, the Court held that a new ordinance replacing an old ordinance according preferential treatment to minority contractors "may have disadvantaged them to a lesser degree than the old one, but insofar as it accords preferential treatment for black-and female owned contracts - and in particular, insofar as its Sheltered Market Plan' is a 'set aside' by another name - it disadvantages them in the same fundamental way." 508 U.S. 656, 662, 124 L.Ed.2d 586, 595. Likewise here, while Ordinance Nos. 1722 and 1736 may contain some cosmetic additions not found in Ordinance No. 1715, it disadvantages employers in the "same fundamental way," by taking their business licenses as punishment, which is the exact basis upon which this Court voided Ordinance No. 1715.
5

CONCLUSION For the foregoing reasons, Plaintiffs pray for an Order holding Defendant in contempt for its willful passage of Ordinances Number 1722 and 1736, and imposing a penalty of $100 per day until such time as these ordinances are repealed or are otherwise no longer in effect.
John J. :Ammann, #34308 ammannjj@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
6

BRYAN CAVE LLP Linda Martinez, #30655 Imartinez@bryancave.com Elizabeth Ferrick, #52241 elizabeth.ferrick@bryancave.com Rhiana Sharp, #56539 rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 (314) 259-2000 Facsimile: (314) 259-2020
SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski, #38716 kwisniewski@uselaws.com 100 South Fourth Street Suite 900 St. Louis, MO 63102 (314) 621-6115 Facsimile: (314) 621-7151
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS & COMMUNITY JUSTICE CLINIC
Karen Tokarz, #27516 tokarz@wulaw.wustl.edu Margo Schlanger (pro hac vice) mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 (314) 935-9097 Facsimile: (314) 935-5356
CATHOLIC LEGAL ASSISTANCE MINISTRY
Marie A. Kenyon, #36060 kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 (314) 977-3993 Facsimile: (314) 977-3334
7

ITUARTE AND SCHULTE LLC Jesus Itauarte ituartej@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 (314) 865-5400 ANTHONY B. RAMIREZ, P. C. Anthony B. Ramirez, #20169 AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 (314) 621-5237 Facsimile: (314) 621-2778 Attorneys for Plaintiffs, Stephanie Reynolds, Kobasa, Inc., d/b/a Valley Deli, Florence Streeter, Cash Flo Properties, and Metropolitan St. Louis Equal Housing Opportunity Council.
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CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and accurate copy of the foregoing document was served via U.S. mail, postage prepaid, on the 18th day of September, 2007, on the following counsel of record:
ERIC M. MARTIN, ESQ. 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 EMartin772@aol.com
KRIS W. KOBACH University of Missouri-Kansas City School of Law 5100 Roackhill Road Kansas City, MO 64110-2499 kobachk@umkc.edu
LOUIS LEONATTI 123 East Jackson P.O. Box 758 Mexico, Mo. 65265 lou@leonatti-baker.com
Counselfor Defendants
and
ALAN BAKER Attorney at Law 1620 South Hanley St. Louis, MO 63144 (314) 647-2850 Facsimile: (314) 647-5314
Attorney for Intervenor James Zhang
ANTHONY E. ROTHERT American Civil Liberties Union Of Eastern Missouri 454 Whittier Street St. Louis, MO 63108 314-652-3114 Fax: 314-652-3112 Email: tony@aclu-em.org
9

DANIEL J. HURTADO GABRIEL A. FUENTES Jenner & Block LLP 330 North Wabash Avenue Chicago, IL 60611-7603 312-923-2645 Email: dhurtado@jenner.com
FERNANDO BERMUDEZ Green and Jacobson, P.C. 7733 Forsyth Boulevard, Suite 700 St. Louis, MO 63105 314-862-6800 Fax: 314-862-1606 Email: bermudez@stlouislaw.com
OMAR C. JADWAT JENNIFER C. CHANG AMERICAN CIVIL LIBERTIES UNION FOUNDATION 39 Drumm Street San Francisco, CA 94111 415-343-0770 Fax: 415-395-0950 Email: jchang@aclu.org
Jennifer R. Nagda Ricardo Meza MALDEF 11 E. Adams Street, Suite 700 Chicago, IL 60603 312-427-0701 Fax: 312-427-0691 Email: jnagda@maldef.org
Attorneys/or Plaintiffi Windhover, Inc and Jacqueline Gray
10

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

STEPHANIE REYNOLDS, et aI., Plaintiffs,
JAMES ZHANG, Intervenorl
v.
CITY OF VALLEY PARK, et aI., Defendants.

) ) ) ) ) ) Cause No. 06-CC-3802 ) ) Division 13 ) ) ) ) )

MOTION OF DEFENDANTS TO DISMISS PLAINTIFFS' MOTION FOR ORDER TO SHOW CAUSE AND CONTEMPT COME NOW Defendants, by and through their counsel, andl for their Motion, state: 1. Plaintiffs' prayer for relief seeks to enjoin Ordinance 1722 which was passed prior to the Court's decree, and its direct successor making it effective, Ordinance 1736. Such request for relief is beyond the jurisdiction of this Court as Plaintiffs seek to expand the final order issued by the Court in March, 2007, which enjoined only the enforcement of Ordinances 1708 and 1715. 2. Plaintiffs' Motion and prayer for relief seeks to place Defendants in contempt by implication and seeks relief beyond that set forth in the decree of the Court. 3. Plaintiffs' prayer does not ask for specific relief as to a per diem money fine or imprisonment.

1

WHEREFORE. premises considered, Defendants pray the Court dismiss Plaintiffs' Motion for Order to Show Cause and Contempt and for such other relief as the Court deems just.
ERIC M. MARTIN, MBEN 27466 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 63'6-530-1556 (FAX) emartin772@aol.com Attorney for Defendants
2

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed, first-class postage

prepaid, this

day of September, 2007, to:

Saint Louis University Legal Clinic John J. Ammann ammannjj@SLU.edu Susan McGraugh mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 314-977-2778 314-977-3334 (FAX)

Bryan Cave LLP Linda Martinez Immartinez@bryancave.com Elizabeth Ferrick elizabeth.ferrick@bryancave.com Rhiana Sharp rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 314-259-2000 314-259-2020 (FAX)

SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski kwisniewski@uselaws.com 100 South Fourth Street, Suite 900 St. Louis, MO 63102 314-621-6115 314-621-7151 (FAX)

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS AND COMMUNITY JUSTICE CLINIC
Karen Tokarz tokarz@wulaw.wustl.edu Margo Schlanger mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 314-935-9097 314-935-5356 (FAX)

3

Catholic Legal Assistance Ministry Marie A. Kenyon kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 314-977-3993 314-997-3334 (FAX)
Ituarte and Schulte LLC Jesus Ituarte ituarte-i@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 314-865-5400 314-865-5401 (FAX)
Anthony B. Ramirez, P.C. Anthony B. Ramirez AnthonyRamirez@ramirezlawfirm.com .1015 Locust Street, Suite 735 St. Louis, MO 63101 314-621-5237 314-621-2778 (FAX)
Alan J. Baker Attorney at Law 1620 S. Hanley St. Louis, MO 63144 314-647-2850 314-647-5314 (FAX)
Anthony E. Rothert tony@aclu-em.org American Civil Liberties Union of
Eastern Missouri 454 Whittier Street St. Louis, MO 63108 314-652-3114 314-652-3112 (FAX)
Daniel J. Hurtado dhurtado@jenner.com Gabriel A. Fuentes Jenner & Block LLP 330 North Wabash Avenue Chicago, IL 60611-7603 312-923-2645
4

Fernando Bermudez Bermudez@stlouislaw .com Green and Jacobson, P.c. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 314-862-6800 314-862-1606 (FAX)

Omar C. Jadwat

Ojadwat@aclu.org

lennifer C. Chang

jchange@aclu.org

American Civil Uberties Union Foundation

39 Drumm Street

San Francisco, CA 94111

415-343-0770

.

415-395-0950 (FAX)

Ricardo Meza rmeza@maldef.org lennifer Nagda jnagda@maldef.org Mexican American Legal Defense
and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603 312-427-0701 312-427-0691 (FAX)

Eric M. Martin

5

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

STEPHANIE REYNOLDS, et aI., Plaintiffs,
JAMES ZHANG, Intervenor,
v.
CITY OF VALLEY PARK, et aI., Defendants.

) ) ) ) ) ) Cause No. 06-CC-3802 ) ) Division 13 ) ) ) ) )

MEMORANDUM IN SUPPORT OF DEFENDANTS' MOTION TO DISMISS PLAINTIFFS'
MOTION FOR ORDER TO SHOW CAUSE AND CONTEMPT
FACTUAL BACKGROUND
1. On July 17, 2006, Ordinance 1708 was enacted by the City of Valley Park. 2. On September 22, 2006, Plaintiffs filed the lawsuit of Reynolds v. Valley Park, 06-CC-3802, in the Circuit Court of the County of St. Louis, seeking invalidation of Ordinance 1708. 3. On September 26, 2006, Ordinance 1715 was enacted by the City of Valley Park. Ordinance 1715 repealed and replaced Ordinance 1708. 4. On September 27, 2006, the plaintiffs in Reynolds amended their petition to seek a declaration that Ordinance 1715 was void and an injunction restraining the enforcement of Ordinance 1715. 5. On February 5, 2007, the Board of Aldermen passed, and on February 14, 2007, the Mayor approved, Ordinance 1722.

1

6. After February 5, 2007, counsel for Defendants contacted counsel for Plaintiffs and offered to stipulate that Plaintiffs could amend their petition to challenge Ordinance 1722 (as well as Ordinance 1721). Defendants sought to allow plaintiffs to address the many new aspects of Ordinance 1722 and give themthe _ opportunity to challenge the current ordinance.
7. After February Sf 2007, counsel for Plaintiffs declined to challenge the validity of Ordinance 1722 and declined to amend their petition to include Ordinance 1722.
B. On March 1, 2007, the Circuit Court of the County of St. Louis (J. Wallace) held a hearing on the questions of whether Ordinances 170B and 1715 were moot, and whether the Court could issue a declaratory judgment regarding particular challenges to those repealed ordinances under state law.
9. At the March 1, 2007, hearing counsel for Plaintiffs reiterated that they. were challenging only the (repealed) Ordinances 170B and 1715.
10. On March 12, 2007, the Circuit Court of the County of St. Louis issued its deCision, holding that "Ordinance No. 170B and Ordinance No. 1715 are declared void." Reynolds v. Valley Park, No. 06-CC-3B02, slip op. at B. The Court did not evaluate the validity of Ordinance 1722 at any point in its eight-page decision and did not enjoin the enforcement of Ordinance 1722. Id.
11. The Defendants had not yet submitted any briefs to the Court concerning the merits of the claim that the employment provisions of the repealed ordinances (170B and 1715) were in violation of state law, at the time of the March 12, 2007, decision by Circuit Court of the County of St. Louis in Reynolds. Nor had
2

any party submitted any briefs to the Court as to whether Ordinance 1722 violated state law in any respect.
12. On March 14, 2007, Jacqueline Gray (a Plaintiff in this matter) filed the lawsuit of Windhover, Inc. and Jacqueline Gray v. Valley Park in the Circuit Court of the County of St. Louis. That case raised similar challenges based on federal and state law against Ordinances 1721 (concerning the rental of apartments to illegal aliens) and 1722 (concerning the employment of unauthorized aliens).
13. On May 1, 2007, the City of Valley Park removed the Windhover case to the U.S. District Court for the Eastern District of Missouri, Case No. 4:07cv00881ERW. And on May 21, 2007, that court denied Wind hover' and Gray's motion to remand. The case is still pending before U.S. District Court for the Eastern District of Missouri.
14. On JuneA, 2007, Defendants substantially modified Ordinance 1722 (via Ordinance 1732) by adding the word "knowingly" to Section 4.A: "It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part within the City." Ordinance 1722 § 4.A.
15. On July 18, Defendants enacted Ordinance 1735, effectively repealing Ordinance 1721 (concerning the rental of apartments to illegal aliens).
16. The obligations imposed by Ordinance 1722 were in effect from its enactment on February 14, 2007. But the enforcement mechanisms were until the Temporary Restraining Order "now in force" on February 14, 2007, was dissolved. The effective date provision read: "This Ordinance shall become effective from and after its passage and approval by the Mayor in repealing Ordinance 1708 and
3

Ordinance 1715, provided that the enforcement of the provisions contained within Sections Two, Three, Four, Five and Six shall be effective upon the termination of any restraining orders or injunctions now in force in Cause No. 06CC-3802 now pending.in St. Louis County, Missouri, in Division. 13." Since th.e temporary. restraining order was neither continued nor terminated, ambiguity existed concerning the date upon which enforcement could begin. On August 9, 2007, the City of Valley Park passed Ordinance 1736, clarifying that Ordinance 1722 was effective immediately but staying the enforcement mechanism therein until December 1, 2007.
15. Two Motions for Summary Judgment regarding Ordinance 1722 are currently pending before the U.S. District Court for the Eastern District of Missouri in the case of Windhover, Inc. and Jacqueline Gray v. Valley Park, Case No. 4:07cv00881-ERW. Those motions raise virtually all of substantive issues that were raised by the Plaintiffs in this case against Ordinances 1708 and 1715.
16. The Judge in Windhover stated on August 10, 2007, his intention to hold a hearing on the Defendant City of Valley Park's Motion for Summary Judgment in the month of September 2007.
ARGUMENT A. Missouri Hospital Association Prohibits this Court from Expanding the
Scope of its March 12,2007, Injunction to Include Ordinance 1722 Through a Contempt Citation
Two cases mandate dismissal of Plaintiffs' Motion. In particular, Missouri Hospital Association v. Air Conservation Commission of Missouri, 900 SW2d 263 (Mo. App. W.D. 1995), makes clear that a court cannot through a contempt proceeding expand the scope of an initial injunction to include a subsequent, but
4

nearly identical, law. In that case, the circumstances were strikingly similar to the case at bar. The Air Conservation Commission of Missouri (ACC) had promulgated new rules that were "essentially identical" to rules that the trial court had enjoined in an earlier proceeding. Id. at 265. In a contempt action, the plaintiff, Missouri Hospital Association, sought a judicial citation penalizing the ACC and prohibiting it from enforcing the new rules. The trial court agreed to do so and expanded the scope of its injunction in the subsequent citation. The trial court originally decreed that Defendant was restrained from enforcing voided rules, to-wit: "10 CSR 106.160 and 10 CSR 10-6.190, as said rules are void and of no force and effect." 900 SW2d at 266. At the contempt hearing, the trial court found the Defendant had proposed a new rule essentially identical to the voided rules. After so finding, the trial court enjoined the state agency from proposing or promulgating identical rules ,andor-dered the payment of attorney fees. Id.,
Only the portion of the order pertaining to the expanded permanent injunction was appealed by the State. The Court of Appeals held that a contempt hearing could not be a platform for broa'dening the earlier injunction. The court noted with respect to the contempt citation: "The restraint against proposing or promulgating essentially identical rules is broader than the restraint against enforcing the voided rules [in the original injunction]." Id. at 266. The Court of Appeals held the trial court exceeded its jurisdiction by imposing a broader restraint than the original injunction in a contempt proceeding. The Court of Appeals stated that the first injunction was final and non-modifiable, and that under any circumstances a civil contempt proceeding is an improper tool by which to seek an injunction against subsequent lawmaking. A contempt proceeding is a separate and
5

distinct proceeding from a petition for an injunction. Therefore, the Court of Appeals struck down the expanded restraints imposed by the new trial court order. In so doing, the Court of Appeals stated that an earlier injunction may not be expanded either expressly or by implication. in a contempt -proceeding:
The trial court's pronouncement in an earlier proceeding may not be expanded by implicationln a contempt proceeding. Carter County R-l School Dist. v. Palmer, 627 S.W.2d 664,665 (Mo. App. 1982). Missouri Hospital Assoc., 900 S.W. 2d at 266. In the case at bar, Plaintiffs are requesting that this Court do exactly thatexpand the scope of this Court's March 12, 2007, injunction (which only mentioned Ordinances 1708 and 1715; \\Ordinance No. 1708 and Ordinance No. 1715 are declared void") to also encompass Ordinance 1722. Plaintiffs now pray for this Court to \\impos[e] appropriate punishment, enjoining enforcement of Ordinances No. 1722 and No. 1736, for attorney fees and for such other and further relief as may be deemed appropriate." Plaintiffs' Motion for Order to Show Cause and Contempt, August 16, 2007. Plaintiffs are asking this court to exceed its authority, in clear violation of Missouri law. Missouri Hospital Association also spelled out an additional problem for Plaintiffs in the case at bar. The appeals court held that "[t]he prayer for relief in a· motion for contempt delineates the scope of the contempt proceedings." 900 S.W.2d at 267. Because plaintiffs in that case removed from their prayer a request for a per diem fine and/or imprisonment, the Court of Appeals held that it was improper for the trial court to issue a contempt order without a sanction for enforcement as it becomes a merely advisory order. The Court of Appeals noted that the motion should have been dismissed when the prayer deleted a request for fines or imprisonment. Finally, the court refused to uphold the trial court's award of
6

attorney fees to the prevailing party against the State, holding that because of the advisory nature of its order and because no specific statute authorizes an award of attorney fees against the State, that portion of the contempt findings would be overturned. Id.
The facts in Missouri Hospital Association, are remarkably similar to the case at bar, including the scope of the first court order which prohibited enforcement of specific regulations but didn't prohibit the fashioning of new similar regulations. However, the Valley Park facts are even more compelling than Missouri Hospital Association in that Valley Park had fashioned its new ordinance prior to the rendition of the March 12, 2007, decree. But the Plaintiffs simply refused to consider it. Further, in Missouri Hospital Association, no prayer seeking fines or imprisonment was requested, in this matter the first time a request for a fine appears is by a memorandum in support of a motion for contempt mailed to counsel for Defendant two days prior to the scheduled hearing.
Another case of considerable relevance here is State ex reI City of Pacific v. Winston V. Buford, 534 SW2d 819 (Mo. App E.D. 1916). In that case, the respondent judge was prohibited from hearing a contempt citation against the City of Pacific for failing to take certain affirmative actions to pay the salary and emoluments due the City marshal after the court had enjoined the impeachment of that elected official. The Court of Appeals declared the such contempt citation would exceed the authority of the trial judge:
By his contempt motion, Albertson would have the Circuit Court cite the City for contempt for "its refusal to set aside and hold for naught its [impeachment] acts ... " As we have previously noted, the judgment of the trial court does not call for such affirmative acts by the City .... If in the contempt proceeding the court were to require such affirmative action, it would violate the established principle that
7

"to support a charge of contempt for disobedience thereof, an order will not be expanded by implication in the contempt proceeding but must be so specific and definite as to leave no reasonable basis for doubt as to its meaning." G v. Souder, 305 S.W.2d 883, 885 (Mo.App. 1957). The court may not by implication include requirements not specified in the original judgment.... If an act is not required, there can be no contempt for failure to perform it. 534 S.W.2d at821 (emphasis added).
The same principle applies in the case at bar. The injunction of March 12, 2007, is
limited to its express terms. Any contempt citation must be based on "specific and
definite" terms in the original injunction. Plaintiffs wrongly ask this Court to exceed
its authority by expanding the reach of that injunction.
However, even assuming arguendo that this Court had the authority to do
what Plaintiffs are asking it to do, Plaintiffs' motion fails on numerous factual
grounds.
B. The Plaintiffs have misrepresented two crucial facts.
There is a particularly salient misstatement in Plaintiffs' Motion to Show
Cause and Contempt: Plaintiffs' erroneous claim that this Court reviewed the
"penalty" provision in Ordinance 1722.
First, Plaintiffs make the following claim regarding Ordinance 1722 in
paragraph 9 of their Motion:
"Defendant had full knowledge of the contents of the court's judgment when they adopted Ordinance No. 1722 and Ordinance No. 1736, and acted willfully and in contempt of the court's judgment."
This claim is obviously erroneous, because the Reynolds judgment had not yet been
rendered when the City enacted Ordinance 1722. The Valley Park Board of
Aldermen passed Ordinance 1722 on February 5, 2007. On February 14, 2007,
Ordinance 1722 was approved by the Mayor. On the same day, Valley Park
8

Ordinance No. 1724 was also enacted, amending the effective date of Ordinance No. 1722. However, the Reynolds court did not rule until March 12, 2007, nearly a month after Ordinance 1722 was enacted. Thus, it would have been impossible for the City to "have full knowledge of the court's judgment" because the Reynolds judgment did not yet exist.
Second, Plaintiffs gravely mischaracterize this Court's order of March 12, 2007. Plaintiffs claim that this Court ruled on the merits of the employment provisions of Ordinance 1715. Tellingly, the Plaintiffs do not cite any specific text in the March 12, 2007, order. Plaintiff's Motion for Order to Show Cause and Contempt, ~ 7. Then Plaintiffs take the next step and deceptively assert that \\Defendants have effectively simply renumbered and reenacted the Ordinance already held unlawful." Id., ~ 8. Neither one of these assertions is true, as a careful reading of this Court's March 12, 2007, order makes clear.
This Court confined itself to the issues of (1) whether Ordinances 1708 and 1715 were moot, (2) whether specific provisions of those ordinances were inconsistent with state law. The only provision concerning business permits that this Court ruled upon was the original provision found in Ordinance 1708, which contained a provision denying approval or renewal of a business permit "for a period of not less than five (5) years from its last offense." Ordinance 1708 § 2. It was this five-year-minimum denial of a business permit that this Court found excessive. In the March 12, 2007, order, this Court stated it clearly: "Ordinance No. 1715 conflicts with MO.R.Stat. § 79.470 in that it penalizes a violation of its provisions by ... forcing a business to forego a business permit, or renewal of a business permit, for a period of 'not less than five (5) years.'" Reynolds v. Valley
9

Park, No. 06-CC-3802, slip op. at 6-7 (~10). (This Court mistakenly indicated that the five-year provision was located in Ordinance 1715, when it was actually located in Ordinance 1708).1 The Reynolds decision is quite clear in this regard. The only provision of Ordinance 1708 or 1715 concerning .business permits that the ReYDolds court held to be unauthorized by state law was the five-year-minimum denial of a business permit found in Ordinance 1708. No such provision exists in Ordinance 1715 or Ordinance 1722. Thus, it is pure fantasy to say that the Court ruled on the completely different employment provisions of Ordinance 1722, which contain no such five-year-minimum denial. Indeed, Ordinance 1722 operates on the principal that a license can only be temporarily suspended during the period that the business entity is knowingly employing an unauthorized alien, after the business entity has been informed of that fact.
c. The Plaintiffs repeatedly declined to seek a ruling on Ordinance 1722.
During the period between the passage of Ordinance 1722 by the Valley Park Board of Aldermen on February 5, 2007, and the hearing before the Circ'uit Court of the County of Saint Louis, counsel for Defendants repeatedly offered to consent to Plaintiffs amending their petition to address Ordinance 1722 (and its companion Ordinance 1721, concerning harboring in rental units). Defendants assumed that Plaintiffs would not wish to seek a ruling on a repealed ordinance when a new and different ordinance was in place. Strangely, Plaintiffs repeatedly declined this
1 This Court also mentioned the same provIsion of Ordinance 1708 in the preceding paragraph of its decision: "Ordinance No. 1708 conflicts with Mo.R.Stat. § 79.470 in that it provides for a fine of 'not less than Five Hundred Dollars ($500.00),' and the loss of a business permit (or its renewal) for a violation of its provisions." Reynolds v. Valley Park, No. 06-CC-3802, slip op. at 6 (~9).
10

invitation and instead pushed forward to seek a ruling on the more vulnerable repealed ordinances. At the March 1, 2007, hearing before this Court, counsel for Defendants reiterated under oath that such an offer had been made to the Reynolds Plaintiffs.,
Q: ... [D]id the City of Valley Park and the Defendants offer to substitute Ordinance 1721 and 1722 in place of 1708 and 1715 and have the Court's preliminary injunction apply to it? A: Yes Sir Q: And that offer was not accepted? A: That's correct. Transcript of Court Proceedings, Circuit Court of the County of Saint Louis, March 1, 2007, at 47-48. During that interchange, Judge Wallace specifically acknowledged that she was aware that the offer had been made by Defendant: "But the court does know that you all made that offer." Id. Counsel for Plaintiffs also made clear at the March 1, 2007, hearing that only Ordinances 1708 and 1715 were before the court: "But the law is clear that this court can and should decide the validity of the entirety of both Ordinances 1708 and No. 1715 on any ground that this court believes that it should be voided." Id. at 18. And that is precisely what the court did, limiting its adjudication only to those Ordinances.
D. This court expressly limited its review to Ordinances 1708 and 1715. During the March 1, 2007, hearing, this Court was quite clear that it was
limiting its inquiry to Ordinances 1708 and 1715. This court stated that it was so limiting itself at the commencement of the hearing: "We're going [to] today have a
11

brief argument on whether or not the court can consider if 1708 and 1715 are void or that the repeal of those two ordinances takes that issue out [of] the court's hands as being moot, and then we're going move to Plaintiffs' motion for judgment.... " Transcript of March 1f 2007 r hearing; S.
Ordinance 1722 was involved only with respect to mootness. Specifically, Defendant had argued that the repeal of Ordinances 1708 and 1715, coupled with their replacement by Ordinances 1721 and 1722, rendered moot any challenge to the validity of the former ordinances. The Reynolds plaintiffs responded that under the precedent of Northeastern Florida Chapter of the Assoc. Gen. Contractors of
America v. City of Jacksonville, 508 U.S. 656 (1993), the court could nonetheless
review the repealed ordinances as long as they were "sufficiently similar" to the new ordinances, and the "challenged conduct" might therefore continue. Id. at 662-63, n.3. Transcript of March 1, 2007, hearing, 19-20. Accordingly, there was some discussion at the March 1, 2007, hearing concerning the scope and nature of Ordinances 1721 and 1722. See id. at 14-25, 48-55.
It is in this respect that Plaintiffs in the case at bar misleadingly quote from this Court's March 12, 2007, order, by omitting important words from their quotation. Plaintiffs offer the following deceptively-altered quotation to suggest that the Reynolds court reviewed the validity of Ordinances 1721 and 1722:
... the court finds the new ordinances [Ordinance No. 1721 and Ordinance No. 1722] are "sufficiently similar" to the old ordinances in that they are aimed at the same people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the court concludes the challenged conduct will continue. Plaintiff's Motion for Order to Show Cause and Contempt, ~ 6. The fragment quoted conceals what this Court was actually concerned about-mootness under the
12

City of Jacksonville precedent. The full text in the Reynolds opinion of March 12,
2007, reads as follows:
Without deciding whether Defendant City of Valley Park has effectively repealed Ordinance No. 1708 and Ordinance No. 1715, the court finds and concludes under R,E.J., Jnc.y. Citv of Sikeston, .142 S. W.3d 744 (Mo. bane. 2004), and Northeastern Florida Chapter of the Assoc. General Contractors of America v. Citv of Jacksonville, 508 U.S. 656, 661-62 (1993), this case is not moot. When a party files suit seeking to void a local ordinance, a defendant cannot unilaterally moot the litigation by repealing the ordinance. Id. Furthermore, the court finds the new ordinances are "sufficiently similar" to the old ordinances in that they are aimed at the same people and conduct and include some of the same penalties. Given that the substance of the new ordinances is the same, the court concludes the challenged conduct will continue. City of Jacksonville, supra, 508 U.S. at 662-63 and n. 3.
Reynolds, Slip op. at 5) (emphasis added). The italicized words were not quoted by
Plaintiffs. They illustrate exactly what this Court was determining -similarity for
the purpose of determining mootness under the City of Jacksonville test. This Court
did not, as Plaintiffs claim, "consider[]" the validity of Ordinance 1722 in any other
respect.
Moreover, Plaintiffs pOintedly fail to quote the following statement of fact
from the Reynolds order: "Defendant has represented to this court that it recently
repealed Ordinance No. 1715, and admitted into evidence the new ordinances only
for the purpose of its argument on mootness. Plaintiffs have not amended their
pleadings to put the issue of the validity of the new ordinances before the court."
Reynolds, slip op. at 3 (~10) (emphasis added). That simple fact-that the validity
of the new ordinances under state law was never before this Court on March 1,
2007-is one that Plaintiffs cannot avoid.
E. This Court did not adjudicate any issue applicable to Ordinance 1722.
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Plaintiffs acknowledge that this Court was aware of Ordinance 1722's enactment, yet it did not enjoin Ordinance 1722. Rather, this Court concluded that repealed Ordinances 1708 and 1715 were not moot and reached the merits of challenges only to the repealed ordinances on three narrow state Jaw grounds.: (1) that the fine of not less than five hundred dollars for knowingly leasing a rental unit to an illegal alien in Ordinance 1708 was excessive; (2) that the provisions of Ordinance 1715 were in conflict with Missouri law requiring 30 days' notice and judicial process before a landlord may evict a tenant; and (3) that certain other provisions in Ordinances 1708 and 1715 (including the minimum-frve-year denial of a business permit in Ordinance 1708) exceeded the authority of the City under state law. Reynolds, slip op. at 6-7 (~~ 9-11).
Plaintiffs deceptively claim that this Court ruled upon the broad question of whether a municipality may suspend a municipal business permit while the permit holder is in violation of federal immigration law by knowingly employing an unauthorized alien. As noted above, the only employment provision that the this Court found to be impermissible under state law was the five-year-minimum denial of a business permit, found in Ordinance 1708 § 2. As the Reynolds order stated, the repealed ordinance conflicted with Missouri law because it "penalizes a violation of its provisions ... by forcing a business to forego a business permit, or renewal of a business permit, for a period of 'not less than five (5) years.'" Reynolds, slip op. at 6-7 (~10). It is important to note that the order specifically quoted the fiveyear-minimum denial of a business permit found in Ordinance 1708 § 2. In the preceding paragraph, this Court equated this five-year-minimum denial to a "loss" of the permit, not merely a suspension of the permit. Reynolds, slip op. at 6 (~ 9).
14

This court did not in any way consider or adjudicate a challenge to the temporary
suspension of a business permit only while the business entity is in violation of
federal law, as Ordinance 1722 § 4.B(4-6) stipulates. Nor did the court consider
the twenty-day suspension for second or subsequent violations under Ordinance
1722 § 4.B(7).
Indeed, only at the very end of the March 1, 2007, hearing did the issue of
the denial of business permits even come up. In the closing minutes of the
hearing, the Court reiterated that it was only considering the merits of challenges to
two aspects of the harboring sections of Ordinances 1708 and 1715:
. THE COURT: All right. So to be clear then, the court did let everyone know that I was concerned about the excessive fines part in 1708 and the more than 30 day-or less than 30 day notice to tenants contained in the 1715, or vice-versa, I'm not sure which. Your position is the court can sever those out?
MR. LEONATTI: Yes.
Transcript of March 1, 2007, hearing, 87-88. This, along with the mootness
question, was all that counsel for Defendant had been notified would be considered
at the March 1, 2007, hearing. Then counsel for Plaintiffs interjected and urged the
Court to also consider adjudicating the five-year-minimum employer provision of
Ordinance 1708:
MS. WISNIEWSKI: Well, Your Honor, first of all, our position is that there's excessive fines for both the employment provision and the housing provision. I mean, again, you know, you come down to what has the State authorized as a punishment that a municipality can dish out. They haven't authorized a municipality to revoke a business license with no notice and then say, We/re never going to give you one for five years. That is not an acceptable penalty.
Transcript of March 1, 2007, hearing, 88 (emphasis in original). It is important to
note that counsel for Plaintiffs made this request to the Court only to speCifically
15

adjudicate the five-year-minimum denial of business permits in Ordinance 1708. See a/so id. at 82. Counsel's reference to the revocation "with no notice" (which is a plausible reading of Ordinance 1708, but not of Ordinance 1715) also indicates that she.was referring to Ordinance 1708. Eleven days later, this Courtfollowed the prompting of counsel for the Plaintiffs and expanded the scope of the Court's review specifically to include the five-year business permit denial provision of Ordinance 1708. Reynolds, slip op. at 6-7. However, the Court did not review the validity of the more complex business permit provisions in Ordinance 1715. Id.
In paragraph 9 of the Court1s conclusions of law, the Court states that "Ordinance No. 1708 conflicts ... in that it provides for a fine of 'not less than Five Hundred Dollars ($500.00),' and the loss of a business permit (or its renewal) for a violation of its provisions." Reynolds, slip op. at 6. Plainly, in this paragraph the Court was referring to Ordinance 1708. Then, in paragraph 10 of the Court~s conclusions of law, the court begins by referring to Ordinance 1715 and its harboring sections, but then plainly refers to the business permit section of Ordinance 1708, saying that it "forc[es] a business to forego a business permit, or renewal of a business permit, for a period of 'not less than five (5) years.'" Reynolds, slip op. at 6-7. Thus, this Court ruled on the rental provisions of both Ordinance 1708 and Ordinance 1715, but on the employment provision of Ordinance 1708 only-just as counsel for Plaintiffs requested. Nowhere does the March 12, 2007, Reynolds order state that the temporary suspension of a business permit during the period that the business entity is violating federal immigration law by knowingly employing an unauthorized alien is inconsistent with state law.
16

E. Ordinance 1722 differs significantly from Ordinances 1708 and 1715. As noted above, this Court only mentioned the five-year denial of business
permits found in Ordinance 1708 § 2. There is no identical provision to be found in Ordinan,ce 1722. It is beyond any doubt that this_Co.uridid not rule on any specific, provision in 1708 or 1715 that is identical to a provision found in Ordinance 1722. Ordinance 1722 differs markedly from the ordinances at issue in Reynolds. Nevertheless, Plaintiffs gloss over these differences and now urge this Court to issue an injunction on regarding Ordinance that has never been briefed before this Court, and has never been the subject of this Court's adjudication.
The specific distinctions between Ordinance 1722 and the earlier Ordinances are numerous. First, nothing in the text of Ordinance 1708 is repeated in the text of Ordinance 1722. Second, and perhaps most importantly, one of the most significant changes between Ordinance 1715 and 1722 (as amended by Ordinance 1732 on June 4, 2007) is the addition of the word "knowingly" in Section 4.A: "It is unlawful for any business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part within the City." Ordinance 1722 § 4.A. Clearly, the addition of a scienter requirement is a significant and farreaching difference in the ordinances. The scope of behavior prohibited by Ordinance 1722 is vastly smaller than the behavior prohibited by Ordinances 1708 and 1715.
Moreover, none of the many provisions in Section 5 of Ordinance 1722 are found in either of the earlier ordinances (Ordinance 1708 and 1715). Section 5.A stipulates that the ordinance applies only prospectively to hires after the effective
17

date of the ordinance. Section 5.B describes in detail three actions that a business entity may take to correct a violation of the ordinance once the business entity is notified of a violation. Section 5.C provides that no enforcement occurs if federal verification of an indhddual's work authorization is delayed forany.reason. Section .. 5.D offers business entities and employees an opportunity to challenge any enforcement action before Board of Adjustment of Valley Park, subject to appeal to the Circuit Court of the County of St. Louis. And Section 5.E requires that all city officials, including the Board of Adjustment, must defer to the federal government's determinations of any alien's work authorization status. Ordinance 1722 §§ 5.A-E. Most im portantly, the specific provisions in Ordinances 1708 that this Court found fault with is not present in Ordinance 1722. Reynolds, slip op. at 6-7.
The impact of these differences in Ordinance 1722 is far-reaching. The knowledge requirement of Section 4.A reduces the scope of potentia! violations considerably. The addition of the provisions of Section 5 significantly affects the duration of any business permit suspension that might occur. If the business entity believes that a mistake has been made regarding the work authorization of an employee, the business entity may seek second and successive verifications of work authorization by the federal government, providing any additional information that the employee offers. During this reverification period, the business entity's permit cannot be suspended. Ordinance 1722 § 5.B.2. This reduces the duration of any suspension of a business permit that might occur. A business permit can only be suspended after the business entity has had the opportunity to pursue reverification of the work authorization of the employee in question.
18

Section 5 of Ordinance 1722 also reduces the scope of possible employees whose employment might lead to the suspension of a business permit. The prospective application restriction of Section 5.A is more than it might appear at first glance, The obligations of Ordinance 1722. only apply to th.e hiring of future. employees. This ensures that no employer is caught unawares and faces the suspension of a business permit for the hiring of an unauthorized alien in the past. This drastically reduces the scope of the suspension of business permits that might occur under Ordinance 1722.
Therefore, Ordinance 1722 not only stands well outside the express terms of this Court's March 12, 2007, order; it also cannot possibly be considered to be implicitly covered by this Court's order-even if this Court possessed the authority to expand an injunction by implication in a contempt cititation (which it does not).
As noted above, Defendants were willing toa!low P!aintiffs to amend their petition to include Ordinance 1722 before the March 1, 2007, hearing. But Plaintiffs would have none of it. They preferred only to litigate the more vulnerable provisions of Ordinances 1708 and 1715. Now Plaintiffs seek to have it both ways. Even though this Court has never adjudicated the merits of Ordinance 1722, Plaintiffs seek an injunction from this Court enjoining its enforcement. Such an order would not only be outside of this Court's authority under clearly established precedent, it would be patently unjust-as the merits of Ordinance 1722 and its materially different provisions have never been briefed or presented to this Court.
For all of these reasons, but particularly because this Court does not possess the authority to do what Plaintiffs ask, Defendants respectfully request that this
19

Court grant Defendants' motion for dismissal of Plaintiffs Motion for Order to Show Cause and Contempt.
ERIC M. MARTIN, MBEN 27466 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com KRIS W. KOBACH, KS 17280 (admitted pro hac vice) Professor of Law University of Missouri-Kansas City 5100 Rockhill Rd. Kansas City, MO 64110-2499 913-638-5567 816-235-5276 (FAX) kobachk@umkc.edu Attorneys for Defendants
20

CERTIFICATE OF SERVICE

I certify that a copy of the foregoing was mailed, first-class postage

prepaid, this

day of September, 2007, to:

Saint Louis University Legal Clinic John J. Ammann ammannjj@SLU.edu Susan McGraugh mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 314-977-2778 314-977-3334 (FAX)

Bryan Cave LLP Linda Martinez Immartinez@bryancave.com Elizabeth Ferrick elizabeth. ferrick@bryancave.com Rhiana Sharp rhiana.sharp@bryancave.com One Metropolitan Square St, Louis, MO 63102 314-259-2000 314-259-2020 (FAX)

SCHLICTER, BOGARD Be. DENTON Kathy A. Wisniewski kwisniewski@uselaws.com 100 South Fourth Street, Suite 900 St. Louis, MO 63102 314-621-6115 . 314-621-7151 (FAX)

WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS AND COMMUNITY JUSTICE CLINIC
Karen Tokarz tokarz@wulaw.wustl.edu Margo Schlanger mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 314-935-9097 314-935-5356 (FAX)

21

Catholic Legal Assistance Ministry Marie A. Kenyon kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 314-977-3993 314-997-3334 (FAX)
Ituarte and Schulte LLC Jesus Ituarte ituarte~ @sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 314-865-5400 314-865-5401 (FAX)
Anthony B. Ramirez, P.C. Anthony B. Ramirez AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 314-621-5237 314-621-2778 (FAX)
Alan l. Baker
Attorney at Law 1620 S. Hanley St. Louis, MO 63144 314-647-2850 314-647-5314 (FAX)
Anthony E. Rothert tony@aclu-em.org American Civil Uberties Union of
Eastern Missouri 454 Whittier Street St. Louis, MO 63108 314-652-3114 314-652-3112 (FAX)
Daniel l. Hurtado
dhurtado@jenner.com Gabriel A. Fuentes Jenner & Block LLP 330 North Wabash Avenue Chicago, IL 60611-7603 312-923-2645
22

Fernando Bermudez Bermudez@stlouislaw.com Green and Jacobson, P.e. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 314-862-6800 314-862-1606 (FAX) Omar C. Jadwat Ojadwat@aclu.org Jennifer C. Chang jchange@aclu.org American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415-343-0770 415-395-0950 (FAX) Ricardo Meza rmeza@maldef.org Jennifer Nagda jnagda@maldef.org Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603 312-427-0701 312-427-0691 (FAX)
Eric M. Martin
23

 
 IN THE CIRCUIT COURT FOR THE COUNTY OF ST. LOUIS

STATE OF

MISSOURI

Stephanie Reynolds et a1., Plaintiffs, and
James Zhang,
Intervener, v. City of Valley Park, Missouri, et a1.,
Defendants.

) )
) Division 13
)
) Cause No. 06-CC-3802 ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS WINDHOVER, INC.'S AND JACQUELINE GRAY'S MEMORANDUM IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE AND CONTEMPT

Plaintiffs Windhover, Inc. ("Windhover") and Jacqueline Gray ("Gray"), by their

counsel, hereby submit this memorandum in support of their Motion for Order to Show Cause

and Contempt ("Contempt Motion").

Plaintiffs Windhover and Gray join in the arguments set forth in Plaintiffs' Memorandum

in Support of Motion for Contempt filed on September 18, 2007 on behalf of Co-Plaintiffs

Stephanie Reynolds et a1. We add the observation that Defendant City of Valley Park (the

"City") is likely to argue vigorously that Ordinance No. 1722 does not fall within the scope of

this Cour's permanent injunction, even though it incorporates wholesale the penalty provision of

Ordinance No. 1715 that this Court held to be invalid. The City can be expected to argue that the

issue of the validity of Ordinance No. 1722 was not before the Court when it issued its

permanent injunction and that, indeed, Plaintiffs chose not to amend their complaint to place the

issue of the validity of Ordinance No. 1722 before the Court.

However, the issue is not whether the Court expressly adjudicated the validity of

Ordinance No. 1722 in its March 12, 2007 Judgment, but whether the activation and enforcement

of Ordinance No. 1722 constitutes a continuation of the same conduct that the Court enjoined.
This Court has already held that Ordinance No. 1722 constitutes a continuation of the conduct embodied in the enjoined ordinances. The Court closely examined Ordinance No. 1722 in concluding that that matter was not moot, despite the alleged repeal of Ordinance No. 1708 and Ordinance No. 1715, because "the new ordinances are 'sufficiently similar' to the old ordinances
in that they are directed at the same class of people and conduct and include some of the same penalties." (March 12, 2007 Judgment at 5.) The Court further stated that "(gJiven that the
substance of the new ordinances is the same, the Court concludes the challenged conduct will continue." (Id.)
If the activation of Ordinance No. 1722 constitutes the continuation of the enjoined conduct, then there can be no question that it violates the permanent injunction. As the Reynolds Plaintiffs point out, the City implicitly recognized that Ordinance No. 1722 fell within the scope of the injunctions in this case by providing that Ordinance No. 1722 would not become effective until any restraining orders or injunctions in this case were terminated. Now, inexplicably, the City has purported to activate Ordinance No. 1722 with the passage of Ordinance No. 1736,
thereby violating the injunction. Accordingly, Plaintiffs respectfully pray for an Order holding the City in contempt ofthis
Court's permanent injunction and clarifying that the enforcement of Ordinance No. 1722, as
amended by Ordinance No. 1736, is permanently enjoined.

Dated: September 19,2007

BY:~~ Respectfully submitted,
Fernando Bermudez, #39943
Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105
(314) 862-6800 (314) 862-1606 facsimile Bermudez((stlouislaw.com
2

Of Counsel:
Mexican American Legal Defense and Educational Fund
Ricardo Meza rmeza((maldef.org Jennifer N agda inagda(cmaldef.org 11 E. Adams; Suite 700 Chicago, Ilinois 60603 (312) 427-0701
(312) 427-0691 facsimile

Anthony E. Rothert, #44827 American Civil Liberties Union
of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tonv((aclu-em.org
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project
125 Broad St., 18th F1.
New York, New York 10004
(212) 549-2620 (212) 549-2654 facsimile
oi adwat(caclu.org
Jennifer C. Chang American Civil Liberties Union Foundation
Imigrants' Rights Project
39 Dru Street
San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile ichang((aclu.org

3

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiffs Motion for Order to Show
Windhover, Inc.'s and Jacqueline Gray's Memorandum in Support of
Cause and Contempt was served via mail and electronic mail on September 19,2007 to:
Eric M. Marin, Esq.
109 Chesterfield Business Parkway
Chesterfield, Missouri 63005-1233

Krs W. Kobach
500 East 52nd Street Kansas City, MO 6411 0 kobachk((umkc.edu
Elizabeth Ferrck Bryan Cave LLP One Metropolitan Square St. Louis, MO 63102 elizabeth.ferrck((bryancave.com
John J. Aman
Saint Louis University Legal Clinic
321 North Spring
St. Louis, MO 63108
ammanii((SLD.edu

Kathy A. Wisniewski Schlicter Bogard & Denton 100 South Fourth Street Suite 900 St. Louis, MO 63012 kwisniewski((uselaws.com

Karen Tokarz

Margo Schlanger

Washington University School of

Law

Civil Rights and Community Justice Clinic

One Brookings Drive, CB 1120

St. Louis, MO 63130

tokarz((wulaw. wust1. edu
mschlanger(cwulaw. wust1. edu

Mare A. Kenyon Catholic Legal Assistance Ministr 321 North Spring Avenue St. Louis, MO 63108 kenyonmGPslu.edu

4

"
Jesus Ituare
Ituare and Schulte LLC 2200 Pestalozzi Street St. Louis, MO 63108
ituare i~sbcgloba1.net
Anthony B. Ramirez Anthony B. Ramirez, P.C. 1015 Locust Street Suite 735 St. Louis, MO 63101 AnthonyRamirez((ramirezlawfirm.com
F~í.5~~
5

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

STEPHANIE REYNOLDS, et al., Plaintiffs,
JAMES ZHANG, Intervenor,
v. CITY OF VALLEY PARK, et al.,
Defendants.

) ) ) ) ) ) Cause No. 06-CC-3802 ) ) Division 13 ) ) ) ) )

DEFENDANTS’ SUPPLEMENTAL MEMORANDUM IN OPPOSITION TO PLAINTIFFS’ MOTION FOR ORDER TO SHOW CAUSE AND CONTEMPT
INTRODUCTION On September 20, 2007, this Court asked Plaintiffs to present analysis of the controlling precedent of Missouri Hospital Association v. Air Conservation Commission of Missouri, 900 S.W.2d 263 (Mo. App. 1995), and explain why the Court would not be bound by the Missouri Hospital Association holding that, “The trial court’s pronouncement in an earlier proceeding may not be expanded by implication in a contempt proceeding.” Id. at 266. Plaintiffs have failed to do so. They have offered no case law qualifying or limiting Missouri Hospital Association. Indeed, Plaintiffs “concede that under Missouri Hospital, as well as other Missouri precedent, the Court cannot, as a sanction for contempt, expand a previously issued injunction to encompass new conduct.” Pl. Supp. Memo, 1, n.1. Having conceded that Missouri Hospital Association is controlling, Plaintiffs offer the implausible argument that they are not really asking this Court to
1

expand its initial injunction. Plaintiffs also attempt to misconstrue Missouri Hospital Association, suggesting without support that its holding might not apply in the case at bar. See Pl. Supp. Memo 5. As is explained below, Plaintiffs’ desperate attempts to escape the shadow of Missouri Hospital Association fail for numerous reasons.
ARGUMENT I. Missouri Hospital Association Prohibits a Court from Expanding the Scope of an
Injunction to Include a Virtually Identical Ordinance, Either Explicitly or Implicitly The core holding of Missouri Hospital Association makes quite clear that a court cannot through a contempt proceeding expand the scope of an initial injunction to include a subsequent, but “essentially identical,” law. 900 S.W.2d at 265. The Court of Appeals in Missouri Hospital Association stated that the trial court’s first injunction was final and non-modifiable, and that under any circumstances a civil contempt proceeding is an improper tool by which to seek an injunction against subsequent lawmaking. “Procedures for contempt and for injunction are distinctly different and involve different requirements for pleading, notice, and proof.” Id. at 267. Therefore, the Court of Appeals struck down the trial court’s expansion of its initial injunction against two specific rules to include subsequent rules that were “essentially identical.” In so doing, the Court of Appeals stated that an earlier injunction may not be expanded either expressly or by implication in a contempt proceeding: The trial court’s pronouncement in an earlier proceeding may not be expanded by implication in a contempt proceeding. Carter County R-1 School Dist. v. Palmer, 627 S.W.2d 664,665 (Mo. App. 1982). Id. at 266 (emphasis added). As the Court of Appeals explained, a subsequent contempt order against the enforcement of “essentially identical” regulations is undeniably an expansion of the
2

original injunction, even if the new rules were nearly identical to the originally enjoined regulations:
The restraint against proposing or promulgating essentially identical rules is broader than the restraint against enforcing the voided rules. The May 1994 injunction [arising from the contempt proceeding] expanded the restraints imposed by the March 1993 injunction, and therefore constituted a second injunction. Id. at 266 (emphasis in original). In the case at bar, Plaintiffs are requesting that this Court do exactly what was prohibited in Missouri Hospital Association—expand the scope of this Court’s March 12, 2007, injunction to cover an ordinance that was not included in the original injunction. The terms of this Court’s March 12, 2007, injunction were quite clear: “Ordinance No. 1708 and Ordinance No. 1715 are declared void. … [T]he temporary restraining orders enjoining enforcement of Ordinance No. 1708 and Ordinance No. 1715 are hereby made permanent.” Reynolds, slip op. at 8. Importantly, in the very same order, this Court expressly declined to include Ordinance 1722 in the injunction, stating that the validity of Ordinance 1722 was not before the Court: Defendant has represented to this court that it recently repealed Ordinance No. 1715, and admitted into evidence the new ordinances only for the purpose of its argument on mootness. Plaintiffs have not amended their pleadings to put the issue of the validity of the new ordinances before the court. Reynolds, slip op. at 3 (¶10) (emphasis added). Plaintiffs now ask this Court to expand the scope of its March 12, 2007, injunction to also encompass Ordinance 1722. In their Motion, Plaintiffs pray for this Court to “impos[e] appropriate punishment, enjoining enforcement of Ordinances No. 1722 and No. 1736, for attorney fees and for such other and further relief as may be deemed appropriate.” Plaintiffs’ Motion for Order to Show Cause and Contempt, August 16, 2007. However, Plaintiffs have asked this Court to exceed its authority; because enjoining an ordinance that is enacted subsequently to the original ordinance constitutes impermissibly “using
3

the contempt power to enforce a future obligation.” Missouri Hospital Association, 900 S.W.2d at 267.
Recognizing that the relief they prayed for in their Motion is prohibited by Missouri Hospital Association, Plaintiffs now attempt to change course in their supplementary memorandum. In a footnote, they state: “Plaintiffs thus withdraw their prayer seeking additional injunctive relief aimed at Ordinances No. 1722 and 1736.” Pl. Supp. Memo, 1, n.1. However, Plaintiffs still demand that the Court “punish the City by ordering a payment of a fine of $100 per day so long as Ordinance No. 1722 (as made effective by Ordinance 1736) remains effective.” Pl. Supp. Memo. 5-6. Plaintiffs are trying in vain to convince themselves (and this Court) that such an order would not expand the scope of the March 12, 2007, injunction to include Ordinance 1722.
Plaintiffs’ change of course has two fatal flaws. The first problem with Plaintiffs’ new request is that they are bound by their original prayer for relief, which plainly asks this Court to change the terms of its original injunction. “The prayer for relief in a motion for contempt delineates the scope of the contempt proceedings.” 900 S.W.2d at 267. Therefore, as a procedural matter, they cannot now recharacterize their prayer for relief in their Motion for Order to Show Cause and Contempt.
However, even if they could alter their Motion at the last moment, they cannot escape the second problem: they are plainly asking for an implicit expansion of the March 12, 2007, injunction. If this Court were to issue an order punishing the City every day that Ordinance 1722 is in effect, this Court would undeniably be expanding the March 12, 2007, injunction to include Ordinance 1722. Although the expansion of the injunction might not be explicit, it would still be implicit. And Missouri Hospital Association makes clear that the implicit expansion of an
4

injunction in a contempt proceeding is just as impermissible as the explicit expansion of an injunction: “The trial court’s pronouncement in an earlier proceeding may not be expanded by implication in a contempt proceeding.” 900 S.W.2d at 266. Plaintiffs’ contorted reasoning cannot escape that fact that, regardless of whether fines or a broader injunction are employed, this Court would be impermissibly expanding the reach of the March 12, 2007, Order by including Ordinance 1722.
II. Plaintiffs’ Attempt to Mischaracterize the Holding of Missouri Hospital Association is Unavailing
Recognizing the absurdity of their argument that they are not really asking this Court to expand the terms of its March 12, 2007, injunction, Plaintiffs resort to misconstruing the holding of Missouri Hospital Association. Plaintiffs brazenly claim that Missouri Hospital Association did not really stand for principle that a court may not explicitly or implicitly expand the scope of an injunction through a contempt proceeding—despite the express statement of the Court to that effect, quoted above. Rather, Plaintiffs declare, Missouri Hospital Association merely stands for the proposition that a contempt motion is incomplete if it does not include fines or imprisonment. Pl. Supp. Memo. 5. This is a shocking misrepresentation of the case.
Plaintiffs ignore the fact that the Missouri Hospital Association decision contains several holdings. It is true that the Missouri Hospital Association Court found that the plaintiffs’ contempt motion was incomplete because it did not include fines or imprisonment, and therefore “provided no means to coerce compliance.” 900 S.W.2d at 267. However, that was only one of several holdings in the case. The Court of Appeals also held that, even if a request for appropriate sanctions had been included, a court’s authority in a contempt proceeding does not extend to future conduct that is not specifically included in the court’s original order:
5

In issuing the second injunction in the contempt proceedings, the trial court exceeded its authority. The trial court may exercise its contempt power only to compel compliance with obligations arising from a pre-existing judgment or decree. Meiners v. Meiners, 858 S.W.2d 788,791 (Mo. App. 1993) Using the contempt power to enforce a future obligation exceeds the trial court’s authority. Id. at 267 (emphasis added). Tellingly, Plaintiffs fail to mention this part of the Missouri Hospital Association opinion. Further underscoring the fact that there were two, independent holdings in Missouri Hospital Association is the Court of Appeals’ statement at the end of the opinion. The Court of Appeals was considering the third issue of whether attorney fees were authorized by any statute applicable to the case. In restating the two distinct flaws in the trial court’s contempt proceeding, the Court of Appeals explained: [T]he trial court abused its discretion in awarding attorney fees for the contempt proceeding that resulted in an advisory order [due to the motion’s lack of sanctions] and in improper issuance of a second, expanded injunction. Id. at 268 (emphasis added). There were two, separate abuses of the contempt proceeding that the trial court committed. And each constituted a separate holding of Missouri Hospital Association. Nowhere in the opinion does the Court of Appeals even suggest that expanding the scope of the original injunction was not an abuse of the trial court’s discretion, in and of itself. Plaintiffs’ implausible assertion that Missouri Hospital Association only applies where a party fails to ask for sanctions simply cannot stand. Moreover, Plaintiffs do not offer a shred of case law supporting their mischaracterization of Missouri Hospital Association. That is because there is no case law supporting their claim. Indeed, Missouri Hospital Association is one opinion in a long line of case law standing for the same principle—that a contempt proceeding cannot penalize actions that are expressly included in the original injunction. None of the other cases even involved the question of whether
6

sanctions were included in the motion for order to show cause and contempt. The following cases also express this core holding of Missouri Hospital Association.
In State ex rel City of Pacific v. Winston V. Buford, 534 S.W.2d 819 (Mo. App E.D. 1976), a case already cited by Defendants in the Memorandum of September 20, 2007, the Court of Appeals declared that a court may not use a contempt citation to compel actions that are not expressly specified in the original judgment:
As we have previously noted, the judgment of the trial court does not call for such affirmative acts by the City.... If in the contempt proceeding the court were to require such affirmative action, it would violate the established principle that “to support a charge of contempt for disobedience thereof, an order will not be expanded by implication in the contempt proceeding but must be so specific and definite as to leave no reasonable basis for doubt as to its meaning.” G v. Souder, 305 S.W.2d 883, 885 (Mo.App. 1957). The court may not by implication include requirements not specified in the original judgment.... If an act is not required, there can be no contempt for failure to perform it. 534 S.W.2d at 821 (emphasis added). In the case at bar, this Court expressly declined to express any opinion on the validity of Ordinance 1722. Ordinance 1722 was not specifically enjoined, so under Buford the City cannot be held in contempt for allowing it to remain in effect. Importantly, in Buford, the party seeking a contempt citation did seek financial sanctions. Id. Thus Plaintiffs’ assertion that the failure to seek sanctions was the only decisive flaw in Missouri Hospital Association is inconsistent with this long line of case law. In 1996, shortly after the Missouri Court of Appeals handed down Missouri Hospital Association, the Court of Appeals cited the Missouri Hospital Association precedent and held: “An enlargement or extension of a permanent injunction, however, may not be made in a civil contempt proceeding.” C.L. Smith Indus. Co. v. Matecki, 914 S.W.2d 873, 876 (Mo. Ct. App. 1996). Then, in 2000, the Missouri Court of Appeals once again stated the core holding of Missouri Hospital Association and Buford:
7

Contempt is available only where a party has been ordered to perform or not to perform a specific act and yet refuses to do so. It is well established that a court may not, in a contempt proceeding, expand by implication an order of a trial court. State ex rel. Mo. Land Reclamation Comm'n v. Calhoun, 34 S.W.3d 219, 220 (Mo. Ct. App. 2000) (citing Buford, 534 S.W.2d at 822). In Calhoun, the Court reiterated that a party cannot be held in contempt unless the conduct in question is unambiguously and specifically enjoined in the original injunction. In that case, the original order rescinded a mining company’s permit, but did not specifically order a halt to mining operations. Therefore, the Court of Appeals held that the company could not be held in contempt for continuing to mine without a permit. Id. at 220. Accordingly, the trial court was held to have “exceeded its jurisdiction” by expanding the scope of the original order, even though the conduct in the original order was very similar to the conduct at issue in the contempt proceeding. Id. at 221. In 2002, in the case of State ex rel. Euclid Plaza Associates, L.L.C. v. Mason, 81 S.W.3d 573, 577 (Mo. App. E.D. 2002), the Court of Appeals yet again reiterated the core holding of Missouri Hospital Association and Buford: Contempt is available only where a party has been ordered to perform or not to perform a specific act and yet refuses to do so. State ex rel. Missouri Land Reclamation Com'n v. Calhoun, 34 S.W.3d 219, 220 (Mo.App. E.D.2000). It is well established that a court may not, in a contempt proceeding, expand by implication an order of a trial court. Id. Before contempt may be found the conduct required by the court order must be “so specific and definite as to leave no reasonable basis for doubt as to its meaning.” Id. (quoting State ex rel. City of Pacific v. Buford, 534 S.W.2d 819, 822 (Mo.App.1976)).
8

In the case at bar there was no “specific and definite” prohibition against the implementation of Ordinance 1722. For this Court to impose fines against the City would violate all of these precedents.1
In none of these cases did the Court of Appeals suggest that the Missouri Hospital Association holding was limited to instances in which the plaintiff failed to include sanctions in its prayer for relief in a contempt motion. Indeed, the Court of Appeals has applied the Missouri Hospital Association holding repeatedly in instances where sanctions were included in the contempt motion. See, e.g., Matecki, 914 S.W.2d at 876; State ex rel. Euclid Plaza Associates, L.L.C., 81 S.W.3d at 577. Plaintiffs have either failed to do their research and are ignorant of this overwhelming body of case law, or they are aware of this case law but have chosen not to mention it in their supplementary memorandum. Either way, their failure to present these cases to the Court is inexcusable.
III. There Was no Subterfuge in the City’s Actions; The City Asked the Plaintiffs to Include Ordinance 1722, but Plaintiffs Refused to do so Plaintiffs cite a number of largely irrelevant cases in their supplementary memorandum—
cases that stand for the unremarkable proposition that parties should not be allowed to disobey a court’s injunction. Plaintiffs then describe the City’s actions as “subterfuge.” See Pl. Supp. Memo. 3-4. As this Court is well aware, nothing could be further from the truth. Defendants openly passed Ordinance 1722, informing both Defendants and this Court of the fact, and
1 This long line of Missouri case law is also consistent with the case law of other states. See, e.g., Cortland United Methodist Church v. Knowles, 2007 WL 1883273 (Ohio App. 2007) (“Appellants are now attempting to use these contempt proceedings to expand the court's declaratory judgment. This they cannot do.”); King County v. Azpitarte, 136 Wash. App. 1021 (2006) (“In contempt proceedings, a court must strictly construe its order and may not expand it by implication beyond the meaning of its terms.”); Garrett v. Garrett, 1998 WL 164906 (Ark. App. 1998) (“In determining whether a party is in contempt of an order, the court cannot expand the order by implication beyond the meaning of its terms.”).
9

Defendants repeatedly invited Plaintiffs to include Ordinance 1722 in their petition. There was no subterfuge or disobedience whatsoever.
During the period between the original passage of Ordinance 1722 by the Valley Park Board of Aldermen on February 5, 2007, and the hearing of March 1, 2007, counsel for Defendants repeatedly offered to consent to Plaintiffs amending their petition to address Ordinance 1722. But Plaintiffs would have none of it. Plaintiffs repeatedly declined this invitation and instead pushed forward to seek a ruling on the more vulnerable, repealed Ordinances 1708 and 1715. At the March 1, 2007, hearing the Court specifically acknowledged that the offer to include Ordinance 1722 had been made by Defendants: “But the court does know that you all made that offer.” Transcript of Court Proceedings, Circuit Court of the County of Saint Louis, March 1, 2007, at 48.
Now Plaintiffs seek to have it both ways. Even though this Court has never adjudicated the merits of Ordinance 1722 and Defendants have never had any opportunity to brief the merits of Ordinance 1722 before this Court, Plaintiffs ask this Court to impose penalties on Defendants as long as Ordinance 1722 remains in effect. Such an order would not only be outside of this Court’s authority under Missouri Hospital Association, it would be grossly unjust. Plaintiffs have an open avenue to challenge Ordinance 1722 on its merits in a separate petition for injunction, without asking a court to exceed its authority through a contempt proceeding. They declined the opportunity to do so in this Court in February and March of 2007. However, some of the Plaintiffs in this case have brought a challenge that will soon be decided in the Federal District Court for the Eastern District of Missouri, Case No. 4:07-cv-00881-ERW.2 That forum (or this Court in March, 2007, had Plaintiffs amended their petition) offers the appropriate
10

procedures and requirements for pleading to evaluate the merits of Ordinance 1722; a contempt proceeding does not. Missouri Hospital Association, 900 S.W.2d at 267.
IV. Plaintiffs Ignore a Crucial Fact: Nothing Has Changed Since March 12, 2007 It is essential that this Court be aware of one crucial fact: Ordinance 1722 was in effect
on March 12, 2007, to the same extent that it is today. Nothing has changed. Therefore, if this Court were to conclude that the City is in contempt of the Order of March 12, 2007, the Court would also have to conclude that the City was in contempt the moment that the order was issued. Plainly, an interpretation of an injunction that creates contempt by its very issuance is both illogical and improper.
What Plaintiffs have failed to mention (or perhaps have failed to notice) is that the express terms of Ordinance 1722’s effectiveness have remained the same. On February 14, 2007, Valley Park Ordinance No. 1724 was enacted, amending the effective date of Ordinance No. 1722. That was the operative language when this Court issued its order on March 12, 2007. It read as follows:
Section Seven This Ordinance shall become effective from and after its passage and approval by the Mayor in repealing Ordinance 1708 and Ordinance 1715, provided that the enforcement of the provisions contained within Sections Two, Three, Four, Five and Six shall be effective upon the termination of any restraining orders or injunctions now in force in Cause No. 06CC-3802 now pending in St. Louis County, Missouri, in Division 13. The operative language today, as amended by Ordinance 1736 on August 9, 2007, is: Section Seven
2 The briefing of the merits in that case was completed on September 27, 2007. Oral arguments will occur in late October or early November 2007.
11

This Ordinance shall become effective from and after its passage and approval by the Mayor in repealing Ordinance 1708 and Ordinance 1715, provided that the enforcement of the provisions contained within Sections Two, Three, Four, Five and Six shall be stayed and no complaints thereunder shall be accepted by the City of Valley Park until December 1, 2007. Ordinance 1722 § 7 (emphasis added). The italicized language is the same in both versions. What Plaintiffs have failed to bring to this Court’s attention is that nothing has changed since February 14, 2007. The effectiveness of the ordinance has two components: (1) legal obligations imposed upon business entities to constrain their behavior, and (2) the enforcement process described in the ordinance. The legal obligations imposed on business entities to follow the terms of Ordinance 1722 began on February 14, 2007, and have been in place ever since. Ordinance 1736 did not change anything. With respect to the second component—enforcement—the enforcement provisions have been suspended ever since February 14, 2007. The only difference now is that there is a future date certain on which enforcement may commence (December 1, 2007) rather than a future uncertain date as described in the original phrasing of Section 7. Plaintiffs have never been clear as to what exactly the City has done to trigger their Motion for Order to Show Cause and Contempt. If it is the fact that the legal obligation to follow Ordinance 1722 is in effect, then that was true on March 12, 2007, when this Court issued its Order. Clearly that cannot be contemptible action by the City—because this Court would have declared that the obligations already in effect under Ordinance 1722 were void. On the other hand, if it is the fact that enforcement may begin on December 1, 2007, rather than an uncertain future date, then Plaintiffs’ Motion for Order to Show Cause and Contempt is not ripe. Enforcement was voluntarily stayed by the City in February, and it is still voluntarily stayed
12

today. No enforcement has occurred to date, and no enforcement can possibly occur until December 1, 2007.
V. Plaintiffs Misconstrue the Statement of Defense Counsel; There are Numerous Significant Differences Between Ordinance 1715 and 1722 In their Supplementary Memorandum, Plaintiffs claim that Ordinance 1722 is virtually
identical to Ordinance 1715 (hoping that this Court will ignore the black letter law in Missouri that a contempt proceeding cannot expand an injunction to include even a virtually identical ordinance). Pl. Supp. Memo. 2-3. The falsity of Plaintiffs’ claim is evident on the face of the ordinances. However, Plaintiffs do not want this Court to actually scrutinize the ordinance texts. Rather, Plaintiffs hang their entire argument on two words by counsel for Defendant, Eric Martin (“Yes, sir.”). As is explained below, Plaintiffs take that statement out of context and twist its meaning entirely.
But the greater flaw in Plaintiffs’ tortured reasoning is that they treat the content of an ordinance as a factual question, rather than a legal question. Consequently, they insist that the content of Ordinance 1722 is found in the testimony of Eric Martin, not in the ordinance itself. Plaintiffs’ approach is plainly absurd. The similarity of two laws is, by definition, a legal question. It is not a factual question that is dependent on witness testimony. The ordinances speak for themselves. This Court need not rely on anyone’s testimony about what is in the ordinances.
That being said, for the sake of argument Defendants will now explain how Plaintiffs have distorted the statement of Eric Martin. In the hearing before this Court on March 1, 2007, Mr. Martin was pressed by Plaintiffs’ counsel to agree that Ordinance 1715 and Ordinance 1722 were “virtually identical,” in the words used by Plaintiffs’ counsel. Mr. Martin objected to this
13

characterization and began to list some of the new provisions that were found in Ordinance 1722, but not in Ordinance 1715. He stated: “There were some amendments made and the amendments included making it prospective only in its application, and I believe an appellate process was set forth.” At that point, Plaintiffs’ counsel interrupted Mr. Martin’s listing of new provisions, insisting: “But the substance is virtually identical.” Mr. Martin responded, referring only to the substance of the sections that were carried over from Ordinance 1715 to 1722, “Yes, sir.” Transcript of Court Proceedings, Circuit Court of the County of Saint Louis, March 1, 2007, at 49.
At the hearing of September 20, 2007, Plaintiffs’ presented a graphic display showing that several whole sections of text were carried over from Ordinance 1715 into 1722. What Plaintiffs attempted to obscure with their display was that many of the repeated sections were of little importance regarding the legal issues in the case. For example, the “Findings and Declaration of Purpose” Section and the “Definitions” Section were extremely lengthy, comprising three entire pages of text, and representing the bulk of the repeated sections. But those three pages are of little importance in addressing the operation of the ordinances. Indeed, radically different ordinances can share the same “Findings and Declarations of Purpose” and “Definitions” sections.
In Plaintiffs’ simplistic view, one need only look at the total number of words in common between two ordinances to determine how similar they are. That is of course incorrect. One word can change the meaning of an entire ordinance. In their display, Plaintiffs either intentionally or negligently failed to acknowledge the most important word that was added to Ordinance 1722: “knowingly.” On June 4, 2007, the City amended Ordinance 1722 (via Ordinance 1732) by adding the word “knowingly” in Section 4.A: “It is unlawful for any
14

business entity to knowingly recruit, hire for employment, or continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part within the City.” Ordinance 1722 § 4.A. Clearly, the addition of a scienter requirement is a significant and far-reaching difference in the ordinances. Where Ordinance 1715 allowed the suspension of a business entity’s license even if the employer had no actual knowledge that an unauthorized alien was on the payroll, Ordinance 1722 requires that knowledge be proven before any suspension can occur.
And even then, a suspension only lasts as long as the knowing violation occurs—which in most cases will result in no suspension at all, because Ordinance 1722 added a whole new section of options allowing a business entity to correct a violation before any suspension takes place. Ordinance 1722 §§ 5.B.1-3. These options were not included in Ordinance 1715. They radically alter the nature of the enforcement mechanism, eliminating any element that Plaintiffs might reasonably characterize as “punitive.” Under Ordinance 1722, a business permit can only be suspended after the business entity has had the opportunity to pursue reverification of the work authorization of the employee in question, as well as any other options that the business entity chooses. These new sections also operate to reduce the duration of any suspension of a business permit that could occur.
Perhaps most importantly, the only employment provision that this Court found to violate state law in its Order of March 12, 2007—the five-year denial of business permits found in Ordinance 1708 § 2—is not included in Ordinance 1722. Indeed, there is not even a remotely similar provision to be found in Ordinance 1722. It is beyond any doubt that this Court did not rule on any specific provision in 1708 or 1715 that is identical to a provision found in Ordinance 1722. There are many other differences that Defendants will not repeat in this Memorandum,
15

differences described in detail in Defendants’ Memorandum of September 20, 2007, at 17-19. Nevertheless, Plaintiffs gloss over these differences and now urge this Court to expand the scope of its injunction to include a different ordinance that has never been briefed before this Court, and has never been the subject of this Court’s adjudication.
In summary, while Ordinance 1722 is similar in limited respects to Ordinance 1715, the enforcement of the two ordinances is radically different. Therefore, it is not accurate to describe them as “virtually identical,” as Plaintiffs suggest. However, assuming arguendo that it were accurate to describe them in this way, Missouri Hospital Association makes quite clear that a court cannot through a contempt proceeding expand the scope of an initial injunction to cover even an “essentially identical” ordinance. 900 S.W.2d at 265. No such judicial authority exists under Missouri law.
CONCLUSION Plaintiffs acknowledge that Missouri Hospital Association and its line of case law is controlling precedent. They have failed to explain why it should not be applied in this case. This Court would plainly exceed its authority if it penalized the City for the fact that Ordinance 1722 is in effect, because this Court expressly declined to rule on Ordinance 1722 on March 12, 2007, and excluded it from its injunction. Moreover, contempt is inappropriate where the City took every step possible to place Ordinance 1722 before the Court, but Plaintiffs refused. Plaintiffs cannot now attempt an end run around the judicial process. Finally, Plaintiffs have failed to explain what exactly has happened to trigger their Motion. The legal obligation to follow Ordinance 1722 was in effect in Valley Park on February 14, 2007; and the legal obligation to follow Ordinance 1722 is in effect today. If Plaintiffs are
16

concerned about its enforcement, no enforcement can occur until December 1, 2007; and Plaintiffs motion is not ripe. So even if this Court had the authority to expand its injunction of March 12, 2007, beyond the Order’s express terms (which it clearly does not), Plaintiffs have not established that anything has occurred in Valley Park that would warrant holding the City in contempt. For all of these reasons, Defendants respectfully request that this Court deny Plaintiffs’ Motion for Order to Show Cause and Contempt.
Respectfully submitted,
/s/ Kris W. Kobach KRIS W. KOBACH, KS 17280 (admitted pro hac vice) Professor of Law University of Missouri—Kansas City 5100 Rockhill Rd. Kansas City, MO 64110-2499 913-638-5567 816-235-5276 (FAX) kobachk@umkc.edu
ERIC M. MARTIN, MBEN 27466 109 Chesterfield Business Parkway Chesterfield, MO 63005-1233 636-530-1515 636-530-1556 (FAX) emartin772@aol.com
Attorneys for Defendants
17

CERTIFICATE OF SERVICE
I certify that a copy of the foregoing was delivered, via electronic mail, this 12th day of October, 2007, to:
Saint Louis University Legal Clinic John J. Ammann ammannjj@SLU.edu Susan McGraugh mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 314-977-2778 314-977-3334 (FAX)
Bryan Cave LLP Linda Martinez lmmartinez@bryancave.com Elizabeth Ferrick elizabeth.ferrick@bryancave.com Rhiana Sharp rhiana.sharp@bryancave.com One Metropolitan Square St. Louis, MO 63102 314-259-2000 314-259-2020 (FAX)
SCHLICTER, BOGARD & DENTON Kathy A. Wisniewski kwisniewski@uselaws.com 100 South Fourth Street, Suite 900 St. Louis, MO 63102 314-621-6115 314-621-7151 (FAX)
WASHINGTON UNIVERSITY SCHOOL OF LAW, CIVIL RIGHTS AND COMMUNITY JUSTICE CLINIC Karen Tokarz tokarz@wulaw.wustl.edu Margo Schlanger mschlanger@wulaw.wustl.edu One Brookings Drive, CB 1120 St. Louis, MO 63130 314-935-9097
18

314-935-5356 (FAX)
Catholic Legal Assistance Ministry Marie A. Kenyon kenyonm@SLU.edu 321 N. Spring Avenue St. Louis, MO 63108 314-977-3993 314-997-3334 (FAX)
Ituarte and Schulte LLC Jesus Ituarte ituarte_j@sbcglobal.net 2200 Pestalozzi Street St. Louis, MO 63118 314-865-5400 314-865-5401 (FAX)
Anthony B. Ramirez, P.C. Anthony B. Ramirez AnthonyRamirez@ramirezlawfirm.com 1015 Locust Street, Suite 735 St. Louis, MO 63101 314-621-5237 314-621-2778 (FAX)
Alan J. Baker Attorney at Law 1620 S. Hanley St. Louis, MO 63144 314-647-2850 314-647-5314 (FAX)
Anthony E. Rothert tony@aclu-em.org American Civil Liberties Union of Eastern Missouri 454 Whittier Street St. Louis, MO 63108 314-652-3114 314-652-3112 (FAX)
Daniel J. Hurtado dhurtado@jenner.com Gabriel A. Fuentes Jenner & Block LLP
19

330 North Wabash Avenue Chicago, IL 60611-7603 312-923-2645
Fernando Bermudez Bermudez@stlouislaw.com Green and Jacobson, P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, MO 63105 314-862-6800 314-862-1606 (FAX)
Omar C. Jadwat Ojadwat@aclu.org Jennifer C. Chang jchange@aclu.org American Civil Liberties Union Foundation 39 Drumm Street San Francisco, CA 94111 415-343-0770 415-395-0950 (FAX)
Ricardo Meza rmeza@maldef.org Jennifer Nagda jnagda@maldef.org Mexican American Legal Defense and Educational Fund 11 E. Adams, Suite 700 Chicago, IL 60603 312-427-0701 312-427-0691 (FAX)
/s/ Kris W. Kobach Kris W. Kobach
20

 
 In the
CIRCUIT COURT
of 51. Louis County, Missouri
Stephanie Reynolds, et al
Plaintiff(s)
vs.
City of Valley Park, et al
Defendant(s)

\J \. 1\, 0...')1l"1"."i1

r F$l File Slam¡i Ony

1

i 0/16/07
Dale
06CC-3802
Case Number 13
Divisio
ORDER

L CIRCUIT ClERK, at LQUI$ 90UNTY

Plaintiff's Motion to Show Cause/Contempt heard and denied.

cc: Parties of record

SO ORDERED
,ItI..,tI.'/',lt,.iß~7/Z;!/ì'-.."'Oì.Jii/ I;"tI.rl-/fL~..fiii-)
Judge ENTERED: ¡ 0(1 ~'i (0'7
(Date) CCOPR47 Rev. 5/95

Attorney Address
inhoe No.
Attoy
Addr
Phone No.

!B No.
Fa NG.
hNm.
~) Fax NG.

 
 IN THE CIRCUIT COURT FOR THE COUNTY OF ST. LOUIS

STATE OF

MISSOURI

Stephanie Reynolds et a1., Plaintiffs, and
James Zhang,
Intervener, v. City of Valley Park, Missouri, et a1.,
Defendants.

) )
) Division 13
)
) Cause No. 06-CC-3802 ) ) ) ) ) ) ) ) ) ) )

PLAINTIFFS WINDHOVER, INC.'S AND JACQUELINE GRAY'S MEMORANDUM IN SUPPORT OF MOTION FOR ORDER TO SHOW CAUSE AND CONTEMPT

Plaintiffs Windhover, Inc. ("Windhover") and Jacqueline Gray ("Gray"), by their

counsel, hereby submit this memorandum in support of their Motion for Order to Show Cause

and Contempt ("Contempt Motion").

Plaintiffs Windhover and Gray join in the arguments set forth in Plaintiffs' Memorandum

in Support of Motion for Contempt filed on September 18, 2007 on behalf of Co-Plaintiffs

Stephanie Reynolds et a1. We add the observation that Defendant City of Valley Park (the

"City") is likely to argue vigorously that Ordinance No. 1722 does not fall within the scope of

this Cour's permanent injunction, even though it incorporates wholesale the penalty provision of

Ordinance No. 1715 that this Court held to be invalid. The City can be expected to argue that the

issue of the validity of Ordinance No. 1722 was not before the Court when it issued its

permanent injunction and that, indeed, Plaintiffs chose not to amend their complaint to place the

issue of the validity of Ordinance No. 1722 before the Court.

However, the issue is not whether the Court expressly adjudicated the validity of

Ordinance No. 1722 in its March 12, 2007 Judgment, but whether the activation and enforcement

of Ordinance No. 1722 constitutes a continuation of the same conduct that the Court enjoined.
This Court has already held that Ordinance No. 1722 constitutes a continuation of the conduct embodied in the enjoined ordinances. The Court closely examined Ordinance No. 1722 in concluding that that matter was not moot, despite the alleged repeal of Ordinance No. 1708 and Ordinance No. 1715, because "the new ordinances are 'sufficiently similar' to the old ordinances
in that they are directed at the same class of people and conduct and include some of the same penalties." (March 12, 2007 Judgment at 5.) The Court further stated that "(gJiven that the
substance of the new ordinances is the same, the Court concludes the challenged conduct will continue." (Id.)
If the activation of Ordinance No. 1722 constitutes the continuation of the enjoined conduct, then there can be no question that it violates the permanent injunction. As the Reynolds Plaintiffs point out, the City implicitly recognized that Ordinance No. 1722 fell within the scope of the injunctions in this case by providing that Ordinance No. 1722 would not become effective until any restraining orders or injunctions in this case were terminated. Now, inexplicably, the City has purported to activate Ordinance No. 1722 with the passage of Ordinance No. 1736,
thereby violating the injunction. Accordingly, Plaintiffs respectfully pray for an Order holding the City in contempt ofthis
Court's permanent injunction and clarifying that the enforcement of Ordinance No. 1722, as
amended by Ordinance No. 1736, is permanently enjoined.

Dated: September 19,2007

BY:~~ Respectfully submitted,
Fernando Bermudez, #39943
Green Jacobson & Butsch P.C. 7733 Forsyth Blvd., Suite 700 St. Louis, Missouri 63105
(314) 862-6800 (314) 862-1606 facsimile Bermudez((stlouislaw.com
2

Of Counsel:
Mexican American Legal Defense and Educational Fund
Ricardo Meza rmeza((maldef.org Jennifer N agda inagda(cmaldef.org 11 E. Adams; Suite 700 Chicago, Ilinois 60603 (312) 427-0701
(312) 427-0691 facsimile

Anthony E. Rothert, #44827 American Civil Liberties Union
of Eastern Missouri 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 (314) 652-3112 facsimile tonv((aclu-em.org
Omar C. Jadwat American Civil Liberties Union Foundation Immigrants' Rights Project
125 Broad St., 18th F1.
New York, New York 10004
(212) 549-2620 (212) 549-2654 facsimile
oi adwat(caclu.org
Jennifer C. Chang American Civil Liberties Union Foundation
Imigrants' Rights Project
39 Dru Street
San Francisco, California 94111 (415) 343-0770 (415) 395-0950 facsimile ichang((aclu.org

3

CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and correct copy of the foregoing Plaintiffs Motion for Order to Show
Windhover, Inc.'s and Jacqueline Gray's Memorandum in Support of
Cause and Contempt was served via mail and electronic mail on September 19,2007 to:
Eric M. Marin, Esq.
109 Chesterfield Business Parkway
Chesterfield, Missouri 63005-1233

Krs W. Kobach
500 East 52nd Street Kansas City, MO 6411 0 kobachk((umkc.edu
Elizabeth Ferrck Bryan Cave LLP One Metropolitan Square St. Louis, MO 63102 elizabeth.ferrck((bryancave.com
John J. Aman
Saint Louis University Legal Clinic
321 North Spring
St. Louis, MO 63108
ammanii((SLD.edu

Kathy A. Wisniewski Schlicter Bogard & Denton 100 South Fourth Street Suite 900 St. Louis, MO 63012 kwisniewski((uselaws.com

Karen Tokarz

Margo Schlanger

Washington University School of

Law

Civil Rights and Community Justice Clinic

One Brookings Drive, CB 1120

St. Louis, MO 63130

tokarz((wulaw. wust1. edu
mschlanger(cwulaw. wust1. edu

Mare A. Kenyon Catholic Legal Assistance Ministr 321 North Spring Avenue St. Louis, MO 63108 kenyonmGPslu.edu

4

"
Jesus Ituare
Ituare and Schulte LLC 2200 Pestalozzi Street St. Louis, MO 63108
ituare i~sbcgloba1.net
Anthony B. Ramirez Anthony B. Ramirez, P.C. 1015 Locust Street Suite 735 St. Louis, MO 63101 AnthonyRamirez((ramirezlawfirm.com
F~í.5~~
5

 
 I

I

I

IN TIIE MISSOURI COURT OF APPEALS EASTERN DISTRICT

I

I

APPEAL NO. ED89659

I

STEPHANIE REYNOLDS, et al.

I

Plaintiffs - Respondents - Cross-Appellants

I

v.

CITY OF VALLEY PARK, MISSOURI, et al.

I

Defendants - Appellants - Cross-Respondents

I

On Appeal from the Circuit Court

I

of the County ofSt. Louis State of Missouri

I

The Honorable Barbara W. Wallace

I

REPLY BRIEF OF APPELLANTS

I

Kris W. Kobach

Louis J. Leonatti

Eric M. Martin

University of Missouri -

Leonatti & Baker, P.C. 109 Chesterfield

I

Kansas City School of Law 123 East Jackson Street Business Parkway

5100 Rockhill Road

P. O. Box 758

Chesterfield, MO

I

Kansas City, MO 64110-2499 Mexico, MO 65265

63005-1233

Phone: 816-235-2390

Phone: 573-581-2211 Phone: 636-530-1515

Fax: 816-235-5276

Fax: 573-581- 6577 Fax: 636-530-1556

I

ATTORNEYS FOR DEFENDANTS-

I

APPELLANTS - CROSS-RESPONDENTS

I

I

I TABLE OF CONTENTS

I

Page No.

I

TABLE OF AUTHORITIES...................................................... 111

I

POINTS RELIED ON....... .... .............................. ... .. .... .. .........

1

ARGIJMENT.......................................................................

2

I

CONCLUSION.....................................................................

11

I

APPENDIX.........................................................................

A41

I

I

I

I

I

I

I

I

I

I

I

I

11

I

I

I

Cases

TABLE OF AUTHORITIES

Page No.

I

City ofMesquite v. Aladdin's Castle, Inc., 455 U.S. 283,

102 S.Ct. 1070 (1982) ..................................................... ..

I

In re the Matter of Myrtle Dunn, 181 S.W.3d 601

(Mo. App. E. D. 2006)..................................................... .
I McNeil-Terry v. Roling, 142 S.W.3d 828 (Mo. App. E. D. 2004) ...

I

Ruggeri v. City of St. Louis, 429 S.W.2d 765 (Mo. 1968)............

1,3,4
9 1,8 1,3,6

I

Thruston v. Jefferson City School District,

95 S.W.3d 131 (Mo. App. W. D. 2003)...................................

1,7,8

I

Code of State Regulations

I

13 C.S.R. 70-35.010 ........................................................ .

8

I

I

I

I

I

I

I

I

I

111

I

I POINT RELIED ON

I

I. THE CIRCUIT COURT'S DECISION DECLARING ORDINANCE

I

NOS. 1708 AND 1715 INVALID SHOULD BE REVERSED AND THE CASE

I

DISMISSED BECAUSE:

A) THE "PUBLIC POLICY" EXCEPTION TO MOOTNESS DOES
I NOT APPLY SINCE THE NEW EMPLOYMENT ORDINANCE IS BEING

I

LITIGATED, AND THE CIRCUIT COURT HAS DISMISSED A SECOND

I

LAWSUIT BROUGHT BY THE RESPONDENTS; AND

I

B) THE APPELLANTS DID NOT WAIVE THEIR ARGUMENT

BY SUBMITTING AN ALTERNATIVE CONCLUSION OF LAW WITH
I THEIR PROPOSED JUDGMENT TO THE CIRCUIT COURT.

I

City o/Mesquite v. Aladdin's Castle, Inc., 455 U.S. 283,

I

102 S.Ct. 1070 (1982)

I

McNeil-Terry v. Roling, 142 S.W.3d 828 (Mo. App. E. D. 2004)

Ruggeriv. Cityo/St. Louis, 429 S.W.2d 765 (Mo. 1968)

I

Thruston v. Jefferson City School District,

I

95 S.W.3d 131 (Mo. App. W. D. 2003)

I

I

I

I

1

I

I

ARGUMENT

I

Respondents accuse the City of Valley Park of "demonstrated proclivity for

I

churning out revised ordinances to elude judicial review ..." [po 22 - Resp. Brief].

I

It is significant that Respondents' Brief never acknowledges:

I

• That the City Council is a legislative body;

• That the City Council has a statutory/legal obligation to exercise its

I

police power to protect public safety;

I

• That the City Council attempted to satisfy the Respondents' criticism

I

of the original ordinances by enacting subsequent amendments;

I

• That Ordinances No. 1708 and 1715 were never enforced and were

repealed.

I

The Respondents eventually admit in a footnote that the legality of the subsequent

I

"employment" ordinance has been upheld by the United States District Court for

I

the Eastern District of Missouri [See Appellants' Appendix, pp. A41-97].

I

Also conspicuous by its absence is any discussion of the municipal

government's obligation and duty to enact and enforce housing standards and

I

building codes. This is an essential function of local government. This is an area

I

which has been purposely left to the jurisdiction of local government in the State of

I

Missouri. Local government is clearly empowered to enact and enforce building

I

codes and occupancy codes.

I

2

I

I

What this case boils down to is the Respondents' desire to keep the

I

controversy alive in an attempt to collect attorney's fees under Missouri's

I

Declaratory Judgment Act.

I

Respondent's Briefdiscusses the grounds requested for relief in their Second

Amended Petition. It should be noted that the Respondents abandoned their
I "federal preemption" argument and state and federal "due process" arguments.

I

Instead, they sought judgment on the pleadings based on the allegation that the

I

City of Valley Park exceeded its statutory authority [po 35 - Resp. Brief].

I

Respondents, recognizing the weakness of that argument, now impliedly argue

state and federal constitutional grounds in an attempt to wedge this appeal into the
I "public policy" exception. This theory was never presented to the Trial Court; in

I

fact, it was abandoned. Respondents now try to raise it for the first time on appeaL

I

Let's discuss Respondents' attempt to keep the controversy alive and avoid

I

the "mootness" issue. Despite the repeal of the housing ordinance and the Federal

Court's decision upholding the "employment" ordinance, Respondents now cite as

I

u.s. authority the decisions in City ofMesquite v. Aladdin's Castle, Inc, 455 283,

I

102 S.Ct. 1070 (1982) and Ruggeri v. City of St. Louis, 429 S. W.2d 765 (Mo.

I

1968).

I

Respondents' argument totally ignores the holding of the United State's

Supreme Court and the footnote in the opinion which sets forth the test to
I

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3

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determine mootness in Mesquite. The City had enacted an ordinance to prohibit

I

the granting of a license for coin-operated amusement establishments to any

I

applicant who had "connections with criminal elements". The City also prohibited

I

children under the age of 17 from being in the establishment. 102 S Ct. at p. 1072,

I

1073. When the U.S. Court of Appeals determined that the term "connections

with criminal elements" was unconstitutionally vague, the City of Mesquite

I

amended the ordinance to eliminate this language. Justice Stevens, writing for the

I

majority, held that:

I

"It is well settled that a defendant's voluntary cessation of a challenged practice does not deprive a federal court

of its power to determine the legality of the practice.

I

Such abandonment is an important factor bearing on the

question whether a court should exercise its power to

I

enjoin the defendant from renewing the practice, but that is a matter relating to the exercise rather than the

existence ofjudicial power." 102 SCt. at p. 1074.
I Footnote Ten (10) of the opinion then discusses the test for mootness. 102 S Ct. at

I

p. 1074, 1075. "A case might become moot if subsequent events make it

I

absolutely clear that the allegedly wrongful behavior could not reasonably be

I

expected to recur ..." 102 SCt. 1074, 1075. As this Reply Brief is being written,

and when the case is argued, the "housing" ordinance has been repealed, there have
I been no attempts to reenact it. The "employment" ordinance has passed

I

constitutional muster in the well-reasoned opinion of U.S. District Judge Webber.

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4

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I Additionally, in what we refer to as Valley Park II, the Circuit Court of st.

I

Louis County has declared a separate Declaratory Judgment action by Respondents

I

moot due to the repeal of the ordinances. It has also denied Respondents' attempt

I

to cite the Appellants for contempt. The contempt citation is based on alleged

violation of the injunction entered by Judge Wallace in the case at bar.
I Respondents claimed that repealing the old ordinances and enacting improved

I

ordinances somehow was a contemptuous act [See Appellants' Appendix, pp. 98-

I

112]. Respondents are now seeking to appeal the Circuit Court's ruling to this

I

Court of Appeals.

This further demonstrates the futility of Respondents' argument. It is
I obvious that the ordinances are moot. The Circuit Court has rendered that

I

decision. The new "employment" ordinance has passed constitutional muster, yet

I

the Respondents, for some reason, want this Court to rule on ordinances which

I

were never enforced and were repealed. What is important is the actual judicial

controversy - not the hypothetical scenario now presented by Respondents.
I In a further distortion, Respondents, at p. 37 of their Brief, claim that

I

Appellants abandoned their argument that the landlord-tenant provisions of

I

Ordinances No. 1708 and 1715 were valid. Counsel for both Appellants and

I

Respondents were asked by the trial court to submit proposed Findings of Fact and

Conclusions of Law. Appellants submitted a proposal upholding the validity of the
I

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5

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I landlord-tenant prOVISIOns and the employment provIsIons. In an alternative

I

submission, Appellants submitted the validity of the employment ordinance [Resp.

I

Supp. Legal File, p. 192, ~ 19].

I

The Missouri Supreme Court's decision in Ruggeri is not clear precedent for

Respondents'theory. It involved the imposition of a 1% daily gross receipts tax on
I hotels, motels, and restaurants. The tax was to support the Convention and

I

Tourism Bureau of the City of St. Louis. The restaurant operators won in the trial

I

court and the ordinance was declared unconstitutional. The ordinance was then

I

repealed, but the new ordinance contained the same tax provisions, thus the Court

proceeded to determine the merits of the issue. This situation is distinguishable
I from Valley Park because significant changes were made in the "housing"

I

ordinance after the initial restraining order was issued. These changes included:

I

• An appeal procedure was added;

I

• All doubts were resolved in favor of the tenant;

• The ordinance operated prospectively only.
I In Ruggeri, the same tax was imposed and given to a non-governmental agency.

I

There were no substantive changes. This clearly distinguishes the case at bar from

I

the City of st. Louis Visitor's Bureau Tax.

I

If Respondents prevail in their argument, they will have succeeded in

convincing this Court that the judicial branch must spend its time deciding matters
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6

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I which have been mooted by a legislative body. Appellants offered to permit the

I

new ordinances to be substituted for the old ordinances so that the Trial Court

I

could rule on the merits of the ordinances which were in effect. Respondents did

I

not accept this suggestion because they knew that the new ordinances satisfied the

complaints lodged by Respondents to their validity. They wanted to manipulate
I the litigation to avoid a decision on an ordinance which was subsequently found to

I

be valid by the federal court.

I

Knowing the weakness of their argument on the "mootness" issue,

I

Respondents now raise for the first time the "public policy" exception. This is a

theory that was never presented to the trial court. They cite three appellate
I decisions for this Court to consider. The case at bar does not satisfy the

I

requirements to fit within the "public policy" exception.

I

The first decision is Thruston v. Jefferson City School District, 95 S. W.3d

I

131 (Mo. App. W. D. 2003). This case involved an appeal by non-tenured school

district employees of the denial of their request that a union representative assist
I them in a grievance procedure. The Court of Appeals dismissed their appeal

I

because they were no longer employed by the School District. "When an event

I

occurs that make a court's decision unnecessary or make granting effectual relief

I

by the court impossible, the case is moot and generally should be dismissed..."

95 S. W.3d at p. 134. The case at bar fits this description since the "housing

I

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7

I

I ordinance" has been repealed and the "employment ordinance" has been upheld by

I

the U.S. District Court.

I

Respondents also rely on the decision in McNeil-Terry v. Roling, 142 S. W.3d

I

828 (Mo. App. E. D. 2004). Respondents designate this decision as the cornerstone

of their argument. It involved the Dept. of Social Services' decision to eliminate
I funding for Medicaid dental services through emergency rule-making. The

I

Department claimed that no controversy existed because it terminated the

I

emergency amendment to 13 C.S.R. 70-35.010. The Court of Appeals considered

I

the matter under the "public policy" exception to the mootness doctrine. It

discussed the established three part test:
I • The issue is of general public interest;

I

• The issue will recur;

I

• The issue will evade appellate review in the future. 142 S. W.3d at p.

I

833.

The Court of Appeals found that the test was satisfied because the controversy was
I likely to recur due to cuts in the State budget, and its conclusion that the issue of

I

the termination of Medicaid benefits would evade review in a future live

I

controversy. This was because there was no pending lawsuit concerning the same

I

Issue.

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8

I

I The Valley Park situation cannot satisfy this third requirement. There was a

I

lawsuit pending in the Circuit Court of St. Louis County contesting the subsequent

I

ordinances, there is an attempt to cite the Appellants for contempt which was

I

denied and is now being appealed, and there is a decision in the U. S. District

Court upholding the "employment" ordinance. The ACLU has already announced
I that it will appeal this decision to the United State Court of Appeals for the Eighth

I

Circuit. Thus, these issues will not avoid appellate review in the future. The third

I

element of the "public policy" exception cannot be satisfied. As a result, a

I

decision by this Court is not necessary and the matter is moot.

The third decision upon which Respondents rely is In re the Matter of
I Myrtle Dunn, 181 S. W.3d 601 (Mo. App. E. D. 2006). This case involved the

I

extreme situation where an Illinois resident with an Illinois guardian sought

I

treatment for chronic schizophrenia by means of a court order in the City of St.

I

Louis. The City Circuit Court denied the request, but the hospital obtained

permission to administer the treatment by means of a court order granted in St.

I

Louis County. The patient obtained the treatment per the court order from St.

I

Louis County. Even though the controversy was over, the Court of Appeals

I

considered the matter under the "public interest" exception because the issue had

I

already recurred, the patient had received two more treatments, and the issue could

I

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9

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I evade appellate review in the future because of the risk to patients waiting for the

I

treatment.

I

The case at bar fails to satisfY the third requirement to avoid dismissal for

I

mootness. It is subject to appellate review for the ordinances which are in effect.

There is pending litigation, and the issues are ripe.
I The question must be asked why the Respondents persist in seeking rulings

I

on ordinances which are no longer in effect, have been revised to provide more

I

procedural safeguards or have been repealed. The obvious answer is either the

I

desire to intimidate the City of Valley Park and other municipalities and/or to seek

attorney's fees in a case in which the lawyers have announced their attention to
I serve in a pro bono capacity.

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10

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CONCLUSION
I The Respondents are asking this Court to render a decision on a

I

controversy which does not exist. The actual controversy involves the new

I

employment ordinance and not the original ordinances which are now before

I

the Court. The ordinance in effect is the subject of litigation in the United

States District Court in which the Appellants have prevailed. This actual/live
I controversy is being appealed to the Eighth Circuit.

I

The matter before the Court should be declared moot. If the Court

I

determines that the judgment on the pleadings was in error, what will Judge

I

Wallace hear on remand? The ordinances don't exist.

If Respondents prevail, ordinances which were repealed in favor of a new

I

constitutional employment ordinance will be declared invalid. Why would a

I

legislative body ever attempt to correct a problem with an ordinance if the

I

Court is going to ignore the correction? Appellants offered to put the real

I

controversy before the trial court by substituting the new ordinances for the old.

Respondents rejected this suggestion. This Court's resources are too precious

I

to be squandered on a controversy which does not exist. The case at bar should

I

be dismissed as moot or in the alternative, judgment on the pleadings should be

I

reversed due to the power of the City of Valley Park to enact and enforce

I

building and occupancy codes.

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11

I

I Respectfully Submitted,
I

I

. E ATTI (#2401

ALL P. BAKER (#36579)

I

LEONATTI & BAKER, P.C. 123 EAST JACKSON STREET

I

P. O. BOX 758 MEXICO, MO 65265

TELEPHONE: 573-581-2211

I

FAX: 573-581-6577

I

ERIC M. MARTIN (#27466) 109 CHESTERFIELD BUSINESS

PARKWAY

I

CHESTERFIELD, MO 63005-1233 TELEPHONE: 636-530-1515

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FAX: 636-530-1556

KRIS W. KOBACH

I

UNIVERSITY OF lVIISSOURI KANSAS CITY SCHOOL OF LAW

I

5100 ROCKHILL ROAD KANSAS CITY, MO 64110-2499

TELEPHONE: 816-235-2390

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FAX: 816-235-5276

I

ATTORNEYS FOR DEFENDANTS/

APPELLANTS/CROSS-

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RESPONDENTS

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Certificate of Compliance
I As required by S. Ct. Rule 84.06, I hereby certify that this brief is

I

proportionally spaced, 14 point type, font is Times New Roman, and contains 2~474 words exclusive of the Table of Contents, Table of Authorities, and

Certificates of Counsel. The software used is Microsoft Word 2003. I relied on

I

my word processor to obtain the count. Also, a CD Rom of this brief is filed with

the written copies. Undersigned counsel further states that a copy of the CD Rom

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has been provided to opposing counsel, that the CDs have been scanned for viruses, and that the CDs are virus-free.

I certify that the information on this form is true and correct to the best of

I

my knowledge and belief formed after a reasonable inquiry.

I

I

I

Certificate of Service

I hereby certify that two (2) copies of Appellants' Brief were mailed,

I

postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief,

scanned for viruses to: Elizabeth Ferrick, Esq., Bryan Cave LLP, One Metropolitan

I

Square, St. Louis, MO 63102; two (2) copies of Appellants' Brief were mailed, postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief,

scanned for viruses to: Karen Tokarz, Esq., Washington University School of

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Law, Civil Rights & Community Justice Clinic, One Brookings Drive, CB 1120, St. Louis, MO 63108; two (2) copies of Appellants' Brief were mailed, postage

I

prepaid this 18th day of March, 2008, along with a CD Rom of the brief, scanned for viruses to: John J. Ammann, Esq., St. Louis University Legal Clinic, 321

North Spring, St. Louis, MO 63108; one (1) copy of Appellants' Briefwas mailed,

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postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief, scanned for viruses to: Eric M. Martin, Esq., 109 Chesterfield Business Parkway,

I

Chesterfield, MO 63005-1233; one (1) copy of Appellants' Brief was mailed, postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief,

scanned for viruses to: Kris W. Kobach, Esq., University of Missouri - Kansas

I

City School of Law, 5100 Rockhill Road, Kansas City, MO 64110-2499.

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13

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I further certify that on the 18th day of March, 2008, ten (10) copies of

Appellants' brief and a CD Rom were filed with the Missouri Court of Appeals for

I

the Eastern District by sending same via Federal Express, standard overnight delivery, to: Laura Thielmeier Roy, Clerk of the Missouri Court of Appeals for the

Eastern District, One Post Office Square, 815 Olive Street, St. Louis, MO 63101.
I

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14

I I I I I I I I I
I APPENDIX
I I I I I I I I I

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APPENDIX

I

Table of Contents

Document
I Memorandum and Order by Judge E. Richard Webber,

Page No.

I

United States District Judge, Eastern District of Missouri, in Case No. 4:07CV00881 ERW, Gray, et al. v.

City of Valley Park, Missouri .....•..•..•••.•.•...•...••........•••...•. A41-A97
I Notice of Appeal in Reynolds & Streeter v. City of Valley Park,

I

Missouri, Case No. 07CC-001420 .................................. .. A98-Al12

Order to Show Cause, Missouri Court of Appeals, Case No.

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ED90604, Reynolds, et al. v. City of Valley Park, Missouri ...•••• Al13

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 1 of 57

I

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI

EASTERN DIVISION
I

I

JACQ"UELINE GRAY, et al.,

) )

Plaintiffts),

)

I

vs.

)

)

Case No. 4:07CV00881 ERW

)

I

CITY OF VALLEY PARK, MISSOURI,

)

)

Defendant( s).

)

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MEMORANDUM AND ORDER

I

This matter comes before the Court on Defendant's Motion for Summary Judgment [doc.

I

#53], Plaintiffs' Motion for Summary Judgment [doc. #73], and Plaintiffs' Motion for Sanctions

I

[doc. #117].

I. BACKGROUND

I

On February 14, 2007, the City ofValley Park (Defendant or "the City") enacted

I

Ordinances No. 1721 and No. 1722. Plaintiffs' filed suit in the Circuit Court of St. Louis County

on March 14,2007, against the Defendant, seeking to invalidate both Ordinances. Ordinance No.

I

1721 addressed landlords leasing to illegal immigrants ("landlord provision") and Ordinance No.

I

1722 addresses the employment ofillegal immigrants ("employment provision"). Defendant filed

a Motion to Remove the case on May 1, 2007. Plaintiffs then filed a Motion to Remand, which
I was denied. Subsequently, the City has repealed Ordinance No. 1721, leaving only Ordinance

I

No. 1722, the landlord provision, at issue in this suit. Plaintiffs' filed a Motion for Preliminary

I

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A Ii 41

1

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 2 of 57

I

Injunction on April 19,2007, which is currently pending. I Plaintiffs also filed a Motion for

Issuance of a Declaration that Valley Park Ordinance No. 1722 is inoperative. On November 19,

I

2007, this Court held a hearing on Plaintiffs' Motion for Summary Judgment, Defendant's Motion

I

for Summary Judgment, and Plaintiffs' Motion for sanctions. The Court will now address each

I

pending motion, in turn.

II. MOTION FOR ISSUANCE OF A DECLARATORY JUDGMENT

I

The Court will very briefly address Plaintiffs' Motion for Issuance of a Declaratory

I

Judgment. Plaintiffs' filed their motion on the basis that Ordinance No. 17222 did not become

effective until an appeal had been taken in the state court case ofReynolds v. City of Valley Park,

I

06-CC-3802, in St. Louis County Circuit Court ("Reynolds"), a case currently before the state

I

court. In an effort to remedy any confusion,3 the Board ofAlderman met at a special meeting on

I

August 9, 2007. In that meeting the Board of Alderman passed Ordinance No. 1736, which

restated the text of Ordinance No. 1722, and clarified the effective date, making the Ordinance

I

I

I

IThe Court notes that the procedural posture of this case is a motion for preliminary injunction. However, Defendants agreed to refrain from any enforcement action ofOrdinance

No. 1722 until a ruling on its legality had been entered by this Court. Therefore, rather than

I

addressing Plaintiffs' likelihood of success on the merits, the Court allowed discovery to go forward, and now has before it fully briefed summary judgment motions. There is therefore no

need to discuss the factors to be considered in ruling on a preliminary injunction. The Court

I

therefore denies as moot Plaintiffs' motion for a preliminary injllnction.

2The Court refers, throughout the opinion, to Ordinance No. 1722, however, the Court

I

notes that the Ordinance at issue is more accurately referred to as Ordinance No. 1736. Although Ordinance No. 1736 did not repeal Ordinance No. 1722, it amended the effective date, and

restated the text of Ordinance No. 1722 in its entirety. The substance ofthe two Ordinances is

I

identical, and therefore the Court's ruling addresses the effectiveness ofboth Ordinances.

3plaintiffs attnbute a less forthright motive to Defendant, however, the Court takes

I

Defendant's counsel's comments at face value.

I

2

A42

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 3 of 57

I

immediatelyenforceable.4 Plaintiffs' then sought to amend their Complaint, alleging that

Ordinance No. 1736 was enacted in violation ofthe Missouri Sunshine Act. In an effort to

I

prevent any further arguments from Plaintiffs regarding the Ordinance's validity, and to address

I

the merits ofthe pending litigation, the Board ofAlderman re-enacted Ordinance No. 1736 at the

I

regularly-scheduled meeting on August 20, 2007, thus nu11i.fYing PlaintiffS' contention that the

August 9, 2007 meeting was not lawfully convened. Since the Court finds that the second re-

I

enactment ofOrdinance No. 1736 was lawful, the issue ofwhether it was originally lawfully

I

enacted is moot. Furthermore, the subject ofthe original Motion for Issuance of a Declaratory

Judgment, was mooted by the enactment of Ordinance No. 1736, which clarified the effective

I

date. Therefore Plaintiffs' Motion is denied.

I

Ill. MOTION FOR EVIDENTIARY SANCTIONS

I

The Court will first address Plaintiffs' Motion for Sanctions for Spoilation ofEvidence, as

a ruling on this motion will determine whether evidence ofthe Mayor's comments during a March

I

5, 2007 public meeting is admissible in support of or in opposition to the pending motions for

I

SlllllIIlary judgment.s

A. LEGAL STANDARD

I

A district court possesses the inherent power to impose sanctions against a party and it's

I

attorney for the destruction ofevidence. See Dillon v. Nissan Motor Company, Ltd., 986 F.2d

263,267 (8th Cir. 1993); see also Hughes v. Black & Decker, Inc., 2007 WL 107680, *1 (D.
I

I

4However, as the Court noted above, the City agreed to refrain from enforcement pending the outcome ofthe present litigation.

I

SThe Court notes that the Parties dispute whether a determination ofthe Mayor's discriminatory intent is required for a ruling on Defendant's summary judgment motion. The

Court will address this question in detail in its discussion ofthe motions for summary judgment;

I

for the purposes ofthis Motion, the Court assumes that the evidence is relevant.

i!
3
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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 4 of 57

I

Minn. Jan. 10, 2007) ("District courts have inherent authority to impose sanctions when a party

destroys evidence ...."). The district court in Hughes specifically found that such a penalty is

I

warranted when the party knew or should have known that the evidence is relevant to potential

I

litigation. Hughes, 2007 WL 107680, at *1. However, "[b]efore a sanction for destruction of the

I

evidence is appropriate, ... there must also be a finding that the destruction prejudiced the

opposing party." Dillon, 986 F.2d at 267.

I

B. DISCUSSION

I

This motion raises a number ofissues for the Court to resolve in determining whether

sanctions are appropriate. First, the Court must detennine whether a finding ofbad faith is

I

required before any sanctions may be imposed.6 Secondly, the Court must detennine whether the

I

destruction of the alleged statement prejudiced the Plaintiffs. Thirdly, the Court must detennine

I

whether the evidence is sufficient to show the existence of a written statement. Lastly, ifthe prior

three issues are decided in Plaint:iffi;' favor, the Court must determine whether the standard for

I

sanctions has been satisfied. Plaintiffs seek to prevent the Defendant from making any arguments

I

based upon the Mayor's apology made during the March 5, 2007 meeting, due to the destruction

ofthe text ofthat statement, however,they do not seek an adverse inference instruction, nor do

I

they seek the dismissal ofthe action. Defendant disputes that sanctions are warranted.

I

The Court will first address the bad faith requirement. The District ofMinnesota

addressed this exact question inHughes, and held that "[a] finding ofbad faith is necessary to

I

impose certain sanctions, such as an outright dismissal or an adverse-inference instruction. But

I

the Court may impose other types ofsanctions in the absence of a bad-faith finding." Hughes,

I

6For purposes oftheir motion, Plaintiffs do not argue that the destruction was done in bad

I

faith.

4
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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 5 of 57

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2007 WL 107680, at *1 (internal citations omitted). This concJusion is further supported by

Eighth Circuit case law. See Stevenson v. Union Pacific Railroad Company, 354 F.3d 739, 745

I

(8th Cir. 2004) ("Our interpretation of Supreme Court authority concerning a court's inherent

I

power to sanction counsels that a finding of bad faith is not always necessary to the court's

I

exercise of its inherent power to impose sanctions."); see also Menz v. New Holland North

America, Inc., 440 F.3d 1002, 1006 (8th Cir. 2006) ("[TJo warrant dismissing a case as a

I

sanction for spoilation of evidence there must be a finding ofintentional destruction indicating a

I

desire to suppress the truth." (internai quotation omitted». The Eighth Circuit in Stevenson

found that while the Eighth Circuit upheld the imposition ofsanctions in the nature of the

I

exclusion of evidence based on the "knew or should have known standard," that lower negligence

I

standard did not apply to cases where an adverse inference instruction is given. 354 F.3d at 747,

I

n 2. The only sanction that Plaintiffs seek is the exclusion of any evidence relating to the fonner

Mayor of Valley Park's apology, made during the March 5, 2007 meeting. Therefore, the Court

I

concludes that a finding of bad faith is not required.

I

The Court next looks at whether the Plaintiffs have been prejudiced by the alleged

destruction of any notes or transcript ofthe Mayor's apology. Defendant argues that there is no

I

prejudice, because the contents of the apology is available through other sources, namely a

I

newspaper article that was written following the meeting. Plaintiffs' dispute that this is adequate,

and argue that the exact wording is at issue because of conflicting testimony, and therefore

I

Plaintiffs are hanned by the Defendant's alleged destruction. The Eighth Circuit in Dillon, found

I

prejudice when plaintiffdestroyed the car that was at issue in a products liability action. 986 F.2d

I

at 268. The Eighth Circuit dismissed the plaintiff's argument that photographs documenting the

condition ofthe car were sufficient, because the photographs were not comprehensive. Id. This

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5
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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 6 of 57

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is exactly the situation before the Court. While there is clearly other evidence regarding the

contents of the Mayor's apology, including the newspaper article, the testimony ofthe aldennan
I who were present at the meeting, and the Mayor's testimony, none ofthis evidence is

I

comprehensive. If, in fact, a word for word transcript existed, then it would be better evidence

I

than that which is currently available, and its destruction would be prejudicial to the Plaintiffs.

However, there still remains two important determinations to be made. Firstly, did such a

I

transcript actually exist? Secondly, was the city in a position that it knew or should have known

I

that such evidence would be critical to the pending lawsuit. The Court finds the first question

dispositive, and therefore need not address the second question. Defendant's counsel, Eric

I

Martin, testified that he looked through his computer files and was unable to locate any written

I

apology that he drafted for the Mayor. Furthermore, Mr. Martin testified that a search of all of

I

the documents from the meeting failed to reveal the transcript of the apology, and that he may

have handwritten the notes for the Mayor. Additionally, Plaintiffs have failed to provide any

I

concrete evidence that such a document existed. The Court is unwilling to impose sanctions upon

I

the Defendant on the basis of an assumption. The Court is not holding that the Mayor did not

know or should not have known that any documents from statements made during a public

I

meeting should be retained. This is a separate question, and the Court does not reach a

I

conclusion on that legal issue. Rather, the Court holds only that the evidence presented by

Plaintiffs is insufficient to support a finding by this Court that a verbatim copy ofthe statement
I made by the Mayor existed. Therefore, Plaintiffs' Motion for Sanctions for the spoilation of

I

evidence is denied.

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ill. MOTIONS FOR SUMMARY JUDGMENT

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 7 of 57

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Plaintiffs have filed a motion for summary judgment on the limited basis of issue

preclusion. Plaintiffs assert that the ordinance at issue in this lawsuit is substantially similar to the

I

ordinance at issue in a prior state law suit, and therefore Defendant is barred by the doctrine of

I

issue preclusion from litigating the action a second time in this Court. Defendant's motion for

I

summary judgment is considerably broader. Defendant's seek summary judgment in their favor

that the ordinance at issue is lawful and enforceable, thereby denying Plaintiffs' Motion for

I

Issuance of a Preliminary and Permanent Injunction.

I

A. LEGAL STANDARD

Pursuant to Federal Rule of Civil Procedure 56(c), a court may grant a motion for

I

summary judgment only ifall of the information before the court shows "there is no genuine issue

I

ofmaterial fact and the moving party is entitled to judgment as a matter oflaw." Fed. R. Civ. P.

I

56(c). See Celotex Corp. v. Citrate, 477 U.S. 317, 322 (1986). The United States Supreme

Court has noted that "summary judgment procedure is properly regarded not as a disfavored

I

procedural shortcut, but rather as an integral part of the federal rules as a whole, which are

I

designed to 'secure the just, speedy and inexpensive determination of every action.'" Id. at 327

(quoting Fed. R. Civ. P. 1). "By its terms, [Rule 56(c)(l)] provides that the mere existence of

I

some alleged factual dispute between the parties will not defeat an otherwise properly supported

I

motion for judgment; the requirement is that there be no genuine issue ofmaterial fact."

Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-48 (1986). Material facts are those "that
I might affect the outcome ofthe suit under the governing law," and a genuine material fact is one

I

such that "a reasonable jury could return a verdict for the nonmoving party." Id. Further, ifthe

I

non-moving party has failed to "make a showing sufficient to establish the existence of an element

essential to that party's case, ... there can be 'no genuine issue as to any material fact,' since a

I

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 8 of 57

I

complete failure ofproof concerning an essential element of the nonmoving party's case

necessarily renders all other :fucts immaterial." Celotex, 477 U.S. at 322-23.

I

The initial burden ofproofin a motion for summary judgment is placed on the moving

I

party to establish the non-existence of any genuine issue of fact that is material to a judgment in

I

its favor. City ofMt. Pleasant, Iowa v. Associated Elec. Co-op., inc., 838 F.2d 268,273 (8th

Cir. 1988). Once this burden is discharged, ifthe record does in fact bear out that no genuine

I

dispute exists, the burden then shifts to the non-moving party who must set forth affirmative

I

evidence and specific facts showing there is a genuine dispute on that issue. Anderson, 477 U.S.

at 249. When the burden shifts, the non-moving party may not rest on the allegations in its

I

pleadings, but by affidavit and other evidence must set forth specific facts showing that a genuine

I

issue of material fact exists. Fed. R. Civ. P. 56(e); Stone Motor Co. v. Gelf.. Motors Corp., 293

I

F.3d 456,465 (8th Cir. 2002). To meet its burden, the non-moving party must "do more than

simply show there is some metaphysical doubt as to the material facts." Matsushita Elec. indus.

I

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In fact, the non-moving party must show

I

tbere is sufficient evidence favoring the non-moving party which would enable a jury to return a

verdict for it. Anderson, 477 U.S. at 249; Celotex, 477 U.S. at 324. "Ifthe non-moving party

I

fails to produce such evidence, summary judgment is proper." Olson v. Pennzoil Co., 943 F.2d

I

881,883 (8th Cir. 1991).

B. PLAINTIFF'S MOTION
I As an initial matter, the Court notes the procedural posture of this motion. Plaintiffs have

I

:filed a motion for a Permanent Injunction upon which they seek sunnnary judgment. Their basis

I

for seeking summary judgment is that the issue to be decided by this Court is the same issue that

was decided by the state court, and therefore this Court is precluded.

I

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I

For purposes of this motion, it is helpful to detail the chronology ofthe ordinance at issue

in this action, as well as the ordinance that was at issue in the previous state court action. On July

I

17,2007, Ordinance No. 1708 was enacted by the City of Valley Park, entitled "An Ordinance

I

Relating to illegal Innnigration within the City of Valley Park, Mo." On September 22,2006,

I

four plaintiffs filed a lawsuit against the City in Reynolds, in St. Louis County Circuit Court.

Ordinance No. 1708 was repealed and replaced by Ordinance No. 1715, which was enacted on

I

September 27,2006. Both Ordinance No. 1708, and Ordinance No. 1715 addressed the hiring of

I

illegal immigrants ("employment provision") as well as the leasing ofproperty to illegal

immigrants ("landlord provision"). On February 5, 2007, the City again amended its ordinances,

I

adopting Ordinance No. 1721 and Ordinance No. 1722.7 Ordinance No. 1721 addresses the

I

landlord provision of the earlier ordinances, and Ordinance No. 1722 addresses the employment

I

provision. At issue in this lawsuit is only Ordinance No. 1722, the employment provision.

The Reynolds action challenged the validity of Ordinances No. 1708 and No. 1715; and

I

was not amended to include Ordinances No. 1721 and No. 1722. On March 1, 2007, the circuit

I

court held a hearing to address the question ofwhether the question of the validity of Ordinances

No. 1708 and No. 1715 had been rendered moot by the enactment of Ordinances No. 1721 and

I

No. 1722, and to address the plaintiffs' motion for judgment on the pleadings. On March 12,

I

2007, the circuit court declared Ordinance No. 1708 and No. 1715 void under state law.

Plaintiffs now argue before this Court, that because Ordinance No. 1722 is substantially similar to
I Ordinances No. 1708 and No. 1715, the circuit court's decision to invalidate the earlier

I

ordinances, precludes this Court from addressing the issue a second time.

I

I

7These ordinances were signed by the Mayor on February 14, 2007.

9
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Issue preclusion, or collateral estoppel, prevents a party from raising an issue that was

previously decided against the same party. State ex rei Johns v. Kays, 181 S.W.3d 565,566 (Mo.

I

2006). There are four factors the Court is to consider: "(1) is the issue in the present case

I

identical to the issue decided in the prior adjudication; (2) was there a judgment on the merits in

I

the prior adjudication; (3) is the party against whom collateral estoppel asserted [sic] the same

party or in privity with a party in the prior adjudication; and (4) did the party against whom

I

collateral estoppel is asserted have a full and fair opportunity to litigate the issue in the prior suit."

I

Id. The Court recognizes that all four factors must be met in order for collateral estoppel to be

applicable, however, as the parties only dispute the first and fourth factors, the Court will focus its

I

discussion on those factors.

I

The first factor is whether the issue to be decided in this case is identical to the issue

I

decided in Reynolds. The first step required to make this determination is to articulate exactly

what was decided by the state court. On March 1,2007, the circuit court held a hearing on

I

whether the enactment of Ordinances No. 1721 and No. 1722 mooted the question of the validity

I

ofOrdinances No. 1708 and 1715. The legal standard for determining whether the enactment of a

new ordinance moots a legal challenge to a prior ordinance is whether the two ordinances are

I

substantially similar. See Smithfield Foods, Inc. v. Miller, 367 F.3d 1061, 1064 (8th Cir. 2004)

I

("A controversy is not moot ifthe new statute 'is sufficiently similar to the repealed [statute] that

it is permissible to say that the challenged conduct continues." (quoting Northeastern Florida
I Chapter ofAssociated General Contractors ofAmerica v. City ofJacksonville, 508 U.S. 656,

I

662-63, n. 3 (1993» (alterations in original). Ifthe two ordinances, the old and the new, are

I

substantially similar, then the case is not mooted, and a judgment on the merits is appropriate. Id.

The circuit court concluded that the ordinances were sufficiently similar, and therefore the

I

10

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substantive issue before it was not mooted. Furthermore, during the March 1, 2008 hearing,

counsel for the defendant City stated that "[t)he employment provisions have not been changed in

I

any of the statutes and I would not represent to the court that there is a substantial change in the

I

employment provision." PIs. Statement o/Uncontroverted Material Facts, Ex. I, 14. However,

I

later in that same proceeding, a slightly different exchange took place between Mr. Martin,

counsel for Defendant,S and counsel for Plaintiff:

I

Q: Mr. Leonatti has said, but I want to make sure you're in agreement, that 1722

dealing with employment is virtually identical to 1715 in terms of regarding

I

employment?

A: There were some amendments made and the amendments included making it

I

prospective only in its application, and I believe an appellate process was set forth.

Q: But the substance is virtually identical?

I

A: Yes, sir.

I

Pls. Statement 0/ Uncontroverted Material Facts, Ex. I, 49. On this basis, the circuit court

I

concluded that the case was not moot. However, in its findings in support of its judgment, to

void the Ordinances at issue in Reynolds, the circuit court held that Ordinance No. 1708, the

I

original employment provision, was invalid because it conflicted with Missouri Revised Statute §

I

,,8-9. 79.470.9 PIs. Statement o/Uncontroverted Material Facts, Ex. J, 6,

The circuit court

I

gMr. Martin is counsel for the City ofValley Park and represents them in both the case

before this Court and the Reynolds case. Mr. Leonatti was retained by the City in the Reynolds

I

case, but does not represent the City in the case at bar.

9That statutory provision states in full:

I

For all ordinance violations the board ofalderman may impose penalties not exceeding

a fine offive hundred dollars and costs, or ninety days' imprisonment, or both the fine

I

and imprisonment. Where the city and state have a penalty for the same 0 ffense, the board shall set the same penalty by ordinance as is set by statute, except that

imprisonments, when made under city ordinance, may be in the city prison or

I

workhouse instead ofthe county jaiL

11
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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 12 of 57

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stated: "Ordinance No. 1708 conflicts with MO.Rev.Stat. § 79.470 in that it provides for a fine of

'not less than Five Hundred Dollars ($500.00): and loss of a business permit (or its renewal) for

I

a violation of its provisions." Pis. Statement o/Uncontroverted Material Facts, Ex. J, 6, ~9.10

I

The Court notes that there is an important distinction between the standard for

I

determining mootness and the standard for issue preclusion. The state court judge was required

to find that the new ordinance, in this case Ordinance No. 1722, was substantially similar to the

I

old ordinance, Ordinance No. 1708. However, this Court is required to detennme whether ''the

I

issue in the present case [is] identical to the issue decided in the prior adjudication." Johns, 181

S. W.3d at 566. This difference is highlighted by plaintiffs' counsel in Reynolds, when she stated
I that: "ifa new ordinance affects the same class ofpeople as the old and/or attempts to regulate

I

the same conduct as the old, whether in whole or in part, the case is not moot and a court can

I

declare the validity ofthe old ordinance." Pis. Statement 0/ Uncontroverted Material Facts, Ex.

I, 22. Just before that, plaintiffs' counsel had admitted that there were some differences between

I

I Mo.Rev.Stat. § 79.470.

I

lOparagraph ten ofthe circuit court's opinion also addresses the question ofbusiness

permits. Specifically, that paragraph finds that requiring a business to forgo a business permit for

I

a period offive years violates Missouri law. Paragraph ten states in full:

Ordinance No. 1715 conflicts with Mo.R.Stat. § 79.470 in that it penalizes a violation

I

ofits provisions by suspending existing occupancy permits, refusing the issuance of new occupancy permits, prohlbiting the collection ofrent or compensation, and by

forcing a business to forgo a business permit, or renewal of a business permit, for a

I

period of 'not less than five (5) years.'"

Pis. Statement o/Uncontroverted Material Facts, Ex. J, 7, ~1O. There is no provision in

I

Ordinance No. 1715 which relates to business permits, this is contained within Ordinance No. 1708. This paragraph does not change the Court's finding in this case. Neither the five hundred

I

dollar monetary penalty, nor the loss of a business license for a period of five years, is present in Ordinance No. 1722.

I

12

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 13 of 57

I

the new ordinance and the old ordinance, hinging their argument on the fact that the ordinances

addressed substantially the same subject matter. ld. at Ex. 1,21-22. Specifically, plaintiffs'

I

counsel noted a key distinction between the two statutes: "[n]ow granted, under the old ordinance

I

they were also going to fine them severe monetary penalties ...." ld. at Ex. I, 22. As held by the

circuit court judge, Ordinance No. 1708 was invalidated because its penalty provision failep, to
I comply with Missouri law. As admitted by plaintiffs' counsel, the monetary penalty provision is

I

not found in the statute at issue before this Court. Therefore, while the two statutes are

I

substantially similar, such that the plaintiffs in Reynolds could overcome a mootness challenge, the

issue decided by the state court is not identical to the issues to be decided by this court, sufficient

I

to warrant the application ofcollateral estoppel.

I

As the first requirement for a finding of issue preclusion has not been met, namely that the

issues before this Court, and the issue before the circuit court are not identical, it is unnecessary

I

for the Court to address the remaining three factors. In Reynolds, the circuit court found

I

Ordinances No. 1708 and No. 1715 to be invalid as a violation ofstate law. The circuit court did

I

not address the validity ofOrdinance No. 1722, and therefore the issue ofits validity is properly

before this Court. Plaintiffs' motion for summary judgment on this basis is denied.

I

C. DEFENDANT'S MOTION

I

The Defendant seeks summary judgment on a more substantive and widespread basis.

Defendant seeks summary judgment on all bases claimed by Plaintiffs for invalidating Ordinance

I

No. 1722. Defendant first disputes Plaintiffs' assertion that Ordinance No. 1722 is preempted by

I

Federal Immigration Law. Secondly, Defendant argues that Plaintiffs' Equal Protection Claim is

fatally flawed as Plaintiffs lack standing, and they have failed to show a suspect classification,
I discriminatory purpose or impact, or state action. Thirdly, Defendant challenges Plaintiffs' due

I

13

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 14 of 57

I

process claim. Lastly, Defendant disputes that the ordinance in question violates Missouri Law

regarding the imposition of imprisonment and fines.1J The Court will address each ofthe
I Defendant's arguments, in tum.

I

1. Preemption

I

As an initial matter, the Court addresses the Parties' arguments regarding the presumption

against preemption. The Defendant correctly states that there is an "assumption that the historic

I

police powers ofthe States were not to be superseded by the Federal Act unless that was the clear

I

and manifest purpose of Congress." Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996) (quoting

Rice v. Santa Fe Elevator Corp., 331 U.S. 218,230 (1947). However, the Supreme Court in

I

Medtronic, emphasized that while this presumption exists in all preemption cases, it is particularly

I

relevant in ''those in which Congress has 'legislated a field which the States have traditionally

I

occupied .... '" Medtronic, Inc., 518 U.S. at 485 (quoting Rice, 331 U.S. at 230). The Supreme

Court clarified the question ofa presumption against preemption in the case of United States v.

I

Locke. 529 U.S. 89, 108 (2000). The Supreme Court stated that "an 'assumption' of nonpre-

I

emption is not triggered when the State regulates in an area where there has been a history of

significant federal presence." ld. In Locke, the state law in question involved national and

I

international maritime commerce, an area which the Supreme Court found was traditionally a

I

federal domain, and therefore ''there is no beginning assumption that concurrent regulation by the

I

State is a valid exercise of its police powers." ld. The Supreme Court went on to look at

whether there was a conflict between the state and federal laws. ld. In order to determine

I

whether a presumption against preemption exists, this Court must detennine whether the

I

llDefendant also disputes that issue preclusion is applicable. However, this was fully

addressed by the Court above, and therefore need not be repeated in this portion ofthe Court's

I

order.

I

14

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I

Ordinance in question involves an area oflaw traditionally governed by the states, the regulation

of business licenses, or an area traditionally governed by the Federal government, immigration.
I The Supreme Court in DeCanas, defined a regulation of immigration as "essentially a

I

determination ofwho should or should not be admitted into the country, and the conditions under

I

which a legal entrant may remain." 424 U.S. at 355. The Supreme Court further stated that

"states possess broad authority under their police powers to regulate the employment relationship

I

to protect workers within the state." ld. at 356. The Ordinance in question does not address the

I

question ofwho mayor may not enter the United States, and therefore the Court concludes that

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

I

rule articulated by the Supreme Court in Metronic, Inc., is applicable, and the Court will apply a

I

presumption against preemption. See Metronic Inc., 518 U.S. at 485.

I

Before the Court addresses the specific arguments presented regarding preemption, the Court will set forth the general governing law. 12 "Pre-emption may be either express or implied

I

and is compelled whether Congress' command is explicitly stated in the statute's language or

I

impliedly contained in its structure and purpose.'" Gade v. National Solid Wastes Management

Ass'n, 505 U.S. 88, 98 (1992) (quoting Jones v. Rath Packing Co., 430 U.S. 519, 525 (1977».

I

This area ofthe law is further subdivided into two types of implied preemption: '~field pre-

I

I

12The Parties disagree over the appropriate semantics in addressing the subject of preemption. Defendant asserts that there are two types ofpreemption, whereas Plaintiffs assert

that there are three. The Court notes that this distinction is in language only. The law of

I

preemption may be broken into two categories: implied or express, with the former being further broken down into implied field preemption and implied conflict preemption. Or, three different

types ofpreemption may be stated, field, conflict, and express preemption. See e.g. Madeira v.

I

Affordable Housing Foundation, Inc., 469 F.3d 219,238 (2nd Cir. 2006). Plaintiffs refer to field preemption as constitutional preemption. See e.g. Jones, 430 U.S. at 525 ( ''In its present

posture, this litigation contains no claim that the Constitution alone denies California power to

I

enact the challenged provisions."). The Court will ensure that all arguments are addressed in full.

I

15

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 16 of 57

I

emption, where the scheme offederal regulation is so pervasive as to make reasonable the

:inference that Congress left no room for the States to supplement it, and conflict preemption,
I where compliance with both federal and state regulations is a physical impossibility, or where

I

state law stands as an obstacle to the accomplishment and execution ofthe full purposes and

I

objectives of Congress." Gade, 505 U.S. at 98 (internal citations omitted).

a. Express Preemption

I

The first argument between the Parties relates to express preemption; specifically, does the

I

federal statute expressly preempt the state law in question? The federal statute states:

The provisions of this section preempt any State or local law imposing civil or

I

criminal sanctions (other than through licensing or similar laws) upon those who

employ, or recruit or refer for a fee for employment, unauthorized aliens.

I

8 U.S.C. § 1324a(h)(2). Thus, the local ordinance is preempted, unless it is a "licensing or similar

I

law." The Ordinance in question is entitled: "An Ordinance Repealing Ordinance No. 1715 and

Sections One, Two, Three, and four of Ordinance No. 1708 Relating to Illegal Innnigration

I

Within the City ofValley Park, MO, Relating to the Employment of Aliens Within the City of

I

Valley Park, MO." Pis. Statement of Uncontroverted Material Facts, Ex. H. The key section of

the Ordinance is Section Four, which is entitled "Business Permits, Contracts, or Grants." Id.

I

This section states:

I

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

I

to perform work in whole or part within the City. Every business entity that applies for a business license to engage in any type ofwork in the City shall sign an affidavit,

prepared by the City Attorney, affirming that they do not knowingly utilize the

I

services or hire any person who is an unlawful worker.

B. Enforcement: The Valley Park Code Enforcement Office shall enforce the

I

requirements ofthis section.

(1) An enforcement action shall be initiated by means of a written signed

I I

complaint to the Valley Park Code Enforcement Office submitted by any City 16

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Case 4:07-cv-008B1-ERW Document 129 Filed 01/31/200B Page 17 of 57

I

official, business entity, or City resident. A valid complaint shall include an allegation which descnbes the alleged violator(s) as well as the actions

I

constituting the violation, and the date and location where such actions occurred.

I

(2) A complaint which alleges a violation on the basis of national origin, ethnicity, or race shall be deemed invalid and shall not be enforced.

I I I I I I I I I I I I I ld.

(3) Upon receipt of a valid complaint, the Valley Park Code Enforcement Office shall, within three (3) business days, request identifY [sic] information from the business entity regarding anypersons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business entity which fails, within three (3) business days after receipt of the request, to provide such information.
(4) The VaHey Park Code Enforcement Office sha.ll suspend the business license of any business entity which fails to correct a violation ofthis section within three (3) business days after notification ofthe violation by the Valley Park Code Enforcement Office.
(5) In any case in which the alleged unlawful worker is alleged to be an unauthorized alien, the Valley Park Code Enforcement Office shall not suspend the business license of the business entity ifprior to the date of the violation the business entityhad verified the work authorization ofthe alleged unlawful worker using the Basic Pilot Program.
(6) The suspension shall terminate one (l) business day after a legal representative ofthe business entity submits, at a City office designated by the City Attorney, a sworn affidavit stating that the business entity has corrected the violation, as descnbed in Section S.B.
(7) For a second or subsequent violation, the Valley Park Code Enforcement Office shall suspend the business permit of a business entity for a period of twenty (20) days. After the end of the suspension period, and upon receipt of the prescribed affidavit, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate federal enforcement agency, pursuant to Untied States Code Title 8, section 1373. hI the case ofan unlawful worker disqualified by state law not related to immigration, the Valley Park Code Enforcement Office shall forward the affidavit, complaint, and associated documents to the appropriate state enforcement agency.

I I

17

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On its face, the ordinance in question appears to be a licensing law, as it relates to the

issuance of business permits, and the denial ofbusiness pennits. PlaintiffS dispute that the
I Ordinance falls within the exception, arguing that it would violate the intent of congress to

I

interpret the statute so that a state or local government was forbidden from imposing criminal or

I

civil sanctions, but could "impose the enonnous penalty ofentirely shuttering a business." Pis.

Memo. in Opp. to De! Mot. for Summ. Judg., 8.13 The Court agrees with Defendants that

I

whether or not the denial ofa business permit is a greater or lesser sanction than fines and

I

imprisonment is an irrelevant inquiry.14 The question before the Court is not whether the

sanctions reserved to the state or local government are greater or lesser than those granted to the

I

federal government, or whether Congress intended such a result; the question for the Court is

I

solely whether the ordinance is a licensing or other similar law. See Connecticut National Bank v.

I

Germain, 503 U;S. 249, 253-254 (1992).

[I]n interpreting a statute a court should always turn first to one, cardinal cannon

I

before all others. We have stated time and again that courts must presume that a legislature says what it means and means in a statute what it says there. When the

words of a statute are unambiguous, then, this first canon is also the last: judicial

I

inquiry is complete.

Id. at 254 (internal citations omitted). The law in question specifically relates to the issuing of a

I

business permit. The purpose ofthe law may indeed be, as stated in the title, to address illegal

I

I

J3Throughout their briefing, Plaintiffs rely heavily upon the recent Pennsylvania decision, in which a substantially similar local ordinance was found to be preempted by federal law. See

Lozano v. City ofHazleton, 496 F.Supp.2d 477 (M.D. Penn. 2007). The Court respectfuny notes

I

that the Pennsylvania decision is not binding, and therefore, the Court will conduct its own thorough analysis ofthe issues presented.

I

l~he Court also notes that the Ordinance will immediately reinstate a business license upon a showing that the violation has been corrected. Ordinance 1722, § 4B.(6). Upon a the

correction of a second or subsequent violation, the business license is suspended for twenty (20)

I

days. Ordinance 1722, § 4B.(7).

I

18

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 19 of 57

I

immigration within the city of Valley Park, however, licensing laws may have any number of

pllrposes. See e.g. Gold Cross Ambulance and Tranifer v. City o/Kansas City, 705 F.2d 1005,

I

1013 (8th Cir. 1983) ("[T]he thrust ofthe licensing law ... was toward control of destructive

I

competition and improvement ofservice.").

I

Plaintiffs also assert that the ordinance in question is not a licensing law because it applies

to those required to get a business permit, as well as those who are exempt from obtaining a

I

business permit. The Court finds this argument unpersuasive. The Ordinance in question mimics

I

the requirements ofthe City's business licensing Ordinance, and places additional requirements on

business entities within the City. The Court is weary of finding a law preempted, simply because

I

it is passed as an addition to an existing licensing scheme, rather than as an entirely new licensing

I

law. If Plaintiffs' argument were correct, the Ordinance would be valid ifit had invalidated the

existing business license requirements, and passed a new law with the additional requirement that
I employers verifY the legal status of all employees. The Court is also unpersuaded that the

I

application of the law to those who are not required to possess a business permit is material

I

Plaintiffs argument fails, firstly, because IRCA states "licensing or similar law[,]" the law is clearly

a similar law as its penalties are liinited to the suspension of a business license. 8 U.S.C. §

I

1324a(h)(2). Secondly, the local ordinance that dictates who is required and who is exempt to the

I

business license requirements effects all business entities, and yet is still clearly a licensing law. It

is illogical to assert that a law is not a licensing law because some individuals that would fall

I

within its definitions are exempt for one reason or another. The fact that those exempt from the

I

business license requirement does not effect this Court's determination that the Ordinance at issue

I

is a licensing law.

I

19

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 20 of 57

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The Court is in agreement with Defendant that the statutory language is not ambiguous.

However, the Court will nonetheless look at the legislative history to ensure that the Court's
I interpretation ofthe express preemption provision is correct. See Garcia v. United States, 469

I

U.S. 70, 75 (1984) ("While we now tum to the legislative history as an additional tool of analysis,

I

we do so with the recognition that only the most extraordinary showing of contrary intentions

:from those data would justifY a limitation on the 'plain meaning' of the statutory language."). The

I

specific provision of the legislative history, upon which Plaintiffs rely, states:

I

The penalties contained in this legislation are intended to specifically preempt any

state or local laws providing civil fines and/or criminal sanctions on the hiring,

I

recruitment or referral ofundocumented aliens. They are not intended to preempt or prevent lawful state or local processes concerning the suspension, revocation or

refusal to reissue a license to any person who has been found to have violated the

I

sanctions provisions in this legislation. Further, the Corrnnittee does not intend to preempt licensing or 'fitness to do business laws,' such as state farm labor contractor

laws or forestry laws, which specifically require such licensee or contractor to refrain

I

from hiring, recruiting or referring undocumented aliens.

H.R. Rep. 99-682(1), at 58 (1986) as reprinted in 1986 U.S.C.C.A.N. 5649, 5662. This

I

provision, contrary to the assertions made by Plaintiffs, supports the validity of the Ordinance in

I

question. The house report restates the purpose of the preemption provision, that it is not

intended to prevent states from suspending, revoking, refusing to issue, or reissue a license to a
I person found to have violated the statute. [d. Furthermore, the Court notes that in order to

I

overcome the plain meaning ofthe statute, the legislative bistorywould have to provide an

I

extraordinary showing of contrary intentions. GarCia, 469 U.S. at 75. Plaintiffs also rely on this

statement in the legislative history as evidence that any penalty linked to a state licensing law can

I

only be imposed after a finding by the federal government that federal immigration law has been

I

violated. See H.R. Rep. 99-682(1), at 58. Although the wording in the house report is somewhat

ambiguous, the wording ofthe statute is perfectly clear. A local government is prevented from
I

20
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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 21 of 57

I

imposing any penalty, except through "licensing or similar laws," ''upon those who employ, or

recruit or refer for a fee for employment, unauthorized aliens." 8 U.S.c. § 1324a(h)(2). There is
I no requirement in the statute that a finding be made by the federal government that a person has

I

employed, recruited or referred for a fee for employment, unauthorized aliens, only that those are

I

the individuals who are subject to penalty. Jd. Therefore the ambiguity in the legislative history is

irrelevant. IS The plain meaning of the statute clearly provides for state and local governments to

I

pass licensing laws which touch on the subject of illegal immigration. The statute at issue is such

I

a licensing law, and therefore is not expressly preempted by the federal1aw.

b. Implied Preemption 16

I

Plaintiffs next assert that even ifthe Ordinance in question is not covered by the express

I

preemption provision ofthe federal immigration law, it is impliedly preempted. Pis. Memo. in

I

0])]). to De! Mot. for Summ. Judg., 9. Plaintiffs allege both field and conflict preemption,

however, the majority oftheir arguments relate to conflict preemption. The Parties raise a

I

number of arguments regarding implied preemption, specifically relating to whether certain

I

provisions of Ordinance No. 1722 conflict with federal law. However, the first question for the

I

ISThe Court also notes that the wording ofthe Ordinance at issue requires that "[t]he

I

determination ofwhether an individual is an unauthorized alien shall be made by the federal government, pursuant to United Stats Code Title 8, Subsection 1373(c)." Ordinance No. 1722 §

Therefore, even iffederal law did require that a finding be made by the federal government,

I

Ordinance No. 1722, by its own times, complies with this requirement. The only circumstance in which the Ordinance would not comply, would be ifthe Federal Law required that an employer be

found to be in violation ofthe Federal statute before any state action could be taken. However,

I

nowhere in the legislative history cited by Plaintiffs, nor, more importantly, within the language of the statute, is this requirement stated.

I

16The Court notes at the outset that this is a difficult argument for Plaintiffs to make. Not only must they overcome the preswnption against preemption, but they must also show that

regardless ofthe express preemption provision which allows licensing laws, Congress intended to

I

preempt certain licensing laws impliedly.

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Court to address is whether an analysis of implied preemption is appropriate when there is an

express preemption provision.

I

Plaintiffs argue that it is appropriate to address implied preemption, even when there is an

I

express preemption provision. For support ofthis proposition they cite to the Supreme Court

I

case ofSprietsma v. Mercury Marine, a Division ofBrunswick Corporation. 537 U.S. 51

(2002). PlaintiffS are correct that the Supreme Court stated: "Congress' inclusion of an express

I

pre-emption clause "does not bar the ordinary working ofconflict pre-emption principles, that

I

find implied pre-emption 'where it is impossible for a private party to comply with both state and

federal requirements, or where state law stands as an obstacle to the accomplishment and

I

ex:ecution of full purposes and objectives of Congress." Sprietsma, 537 U.S. at 65 (quoting Geier

I

v. American Honda Motor Co., 529 U.S. 861, 869 (2000». However, the Supreme Court also

stated in that case that "our task of statutory construction must in the first instance focus on the
I plain wording of the clause, which necessarily contains the best evidence ofCongress' pre-

I

emptive intent." Sprietsma, 537 U.S. at 62-63 (internal quotation omitted).

I

I. Implied Field Preemption

Having concluded that implied preemption may be found, even in the presence of an

I

express preemption provision, the Court will now address the first category ofimplied

I

preemption, field preemption. This requires little discussion. Field preemption occurs "where the

scheme offederal regulation is so pervasive as to make reasonable the inference that Congress left

I

no room for the States to supplement it ...." Gade, 505 U.S. at 98. In the context ofregulations

I

regarding illegal aliens, the Supreme Court made clear in DeCanas, that no such blanket intent on

I

the part of Congress existed. 424 U.S. at 357-58.

Only a demonstration that complete ouster of state power including state power to

I

promulgate laws not in conflict with federal laws was "'the clear and manifest purpose 22

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of Congress'" would justifY that conclusion. Florida Lime & Avocade Growers v. Paul, [373 U.S. 132,146 (1963)], quotingRicev. Santa Fe Elevator Corp., 331 U.S.

218, 230 (1947). Respondents have not made that demonstration. They fail to point

I

out, an independent review does not reveal, any specific indication in either the

wording or the legislative history ofthe INA that Congress intended to preclude even

I

harmonious state regulation touching on aliens in general, or the employment ofillegal aliens in particular.

I

lrl. (footnote omitted). The Supreme Court in DeCanas made clear that while the "power to

Iegulate immigration is unquestionably exclusively a federal power, ... the Court has never held

I

that every state enactment which in any way deals with aliens is a regulation ofimmigration and

I

thllS per se preempted by this constitutional power ...." 424 U.S. at 355. The Court recognizes

that this case was handed down prior to the enactment ofIRCA, however, the provision in

I

question in the current statute serves only to bolster the Supreme Court's conclusion. Including a

I

provision in the statute, as well as comments in the legislative history, allowing some state

I

licensing regulations to exist, clearly conflicts with an intent to preempt the entire field of

immigration regulation. Therefore, the Court concludes that IRCA does not manifest an intent of

I

Congress to occupy the entire field of immigration law.

I

ii. Implied Conflict Preemption

The Court next looks at whether the Ordinance in question is preempted on the basis of

I

implied conflict preemption. Conflict preemption exists "where it is impossible for a private party

I

to comply with both state and federal requirements, or where state law stands as an obstacle to

the accomplishment and execution ofthe full purposes and objectives of Congress." Sprietsma,
I 537 U.S. at 65 (quoting Freightliner Corp. v. Myrick, 513 U.S. 280, 287 (1995)). The Court will

I

address each in turn. Plaintiffs argue that the Ordinance in question is invalid because it "stands

I

as an obstacle to the accomplishment and execution of the full purposes and objectives of

Congress." PIs. Memo. in Opp. to De! Mot. for Summ. Judg., 9 (quoting DeCanas, 424 U.S. at

I

23
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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 24 of 57

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363). Specifically, Plaintiffs dispute Defendant's assertion that they must show the impossibility

of simultaneous compliance, but rather that they need only show that the Ordinance prevents the

I

full objectives of Congress being effectuated. Plaintiffs suggest a number of ways in which

I

Ordinance No. 1722 conflicts with federal law. The Court will address each, in turn.

I

Plaintiffs' first argument is that Ordinance No. 1722 requires verification ofdomestic

workers and independent contractors, who are expressly exempted from IRCA. Plaintiffs argue

I

that this creates a conflict because it negates the intent of Congress to exclude these types of

I

employers from compliance. Defendant disputes any conflict, arguing that these type of workers

would not ordinarily be included in the City's definition of an employee, and therefore the local

I

ordinance does not impose upon an employer of a domestic worker, or the company employing an

I

independent contractor, any additional requirements. Furthennore, Defendant argues that there is

I

no conflict with federal law, because federal law does not prohibit a City from determining the

immigration status of a casual domestic laborer or independent contractor. The Court will

I

address the two groups separately.

I

The code of federal regulation defines the term employee as "an individual who provides

services or labor for an employer for wages or other remuneration but does not mean independent

I

contractors as defined in paragraph (j) of this section or those engaged in casual domestic

I

employment as stated in paragraph (h) of this section ...." 8 c.P.R. § 274a.l(f). Section (h) of

that regulation states that "the term 'employment' ... does not include casual employment by

I

individuals who provide domestic service in a private home that is sporadic, irregular or

I

intermittent. 8 C.F.R. § 274a.l(h). Ordinance No. 1722 states:

I

"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.

I

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(I) The tenn business entity shall include, but not be limited to, self-employed individuals, partnerships, corporations, contractors, and subcontractors.

I

(2) The tenn business entity shall include any business entity that possesses a

business license, any business entity that is exempt by law from obtaining such

I

a business license, and any business entity that is operating unlawfully without such a business license.

I

Ordinance No. 1722, § 3A.(1)-(2). With regards to domestic workers, the regulations themselves

limit this exception to work done within the home. 8 C.F.R. § 274a.l (h); see also Jenkins v.

I

LNS., 108 F.3d 195, 199 (9th Cir. 1997) ("The INS regulation restricted this temporal exception

I

to domestic service in a private home.").

Plaintiffs encourage the Court to find a conflict between the broad application of
I Ordinance No. 1722 and the limits placed on compliance by the federal statute. As the cited

I

language above shows, the Court finds no such conflict. Firstly, there is nothing in Ordinance No.

I

1722 which would require an individual who hires a casual domestic worker, for a short period of

time, to comply with the Ordinance, other than that in the event that the hirer is infonned ofthe

I

employee's illegal status, they are required to tenninate employmentY Secondly, the Court notes

I

that it is questionable whether the regulations, offered by Plaintiffs as proof of a conflict, are

binding. The Ninth Circuit in Jenkins, stated that "we have serious doubts about whether the

I

regulation itselfreasonably interprets the statute or the legislative history." Jenkins, 108 F.3d at

I

200. 18 "An interpretation [by an agency] is not entitled to deference if it is contrary to clearly

I

expressed congressional intent." fd. The statutory language in this case, unambiguously states

I

17The exception referenced in the Federal Regulations, is an exception to the documentation requirements for employers, it does not excuse the continued employment of

I

known undocumented worker. 8 c.F.R. § 274a.l(h). 18The Ninth Circuit was reviewing the decision of an ALJ, and therefore it was

I I

procedurally improper for that court to question the applicability ofthe regulation. Jenkins, 108

F.3d at 200-201 ("The posture of this case leaves us in an interpretive quandary."). 25

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1hat the eligibility verification system applies to all employers, without exception. 8 U.S.C. §

1324a(a)(l )(B). Assuming that Plaintiffs are correct, and the regulations quoted above are

I

applicable, the clear statutory language, and the small exception that is created, is not sufficient to

I

create a conflict between Congressional intent and the local ordinance. Again, assuming that

I

Congress intended domestic workers19 to be excused from the documentation requirements, this

does not evidence an intent that no state law touch on these employees. The clear intent of

I

congress is that all employees be subject to the employment requirements, a very limited

I

exception does not provide a basis for finding conflict preemption. The Court concludes that the

limited exception in the federal regulation for domestic workers does not create a conflict. The

I

Court also notes that the definition of the term business entity, couId be read to exclude domestic

I

workers, as they are not engaged by the employer in order to make a profit, but rather to do

I

minimal household tasks. Regardless ofthe inclusion ofthese employees, the Court does not see

a conflict between the local and federal law.

I

The Court also disagrees with Plaintiffs that a conflict is created because ofthe federal

I

regulation that excludes independent contractors from the documentation requirements. The

exclusion is contained in 8 C.F.R. § 274a.l(:f), quoted above, and § 274a.l (j) provides a detailed

I

definition of an independent contractor.20 There is nothing in this definition that prevents an

I

19The Court addresses independent contractors separately, as these individuals are not

I

generally included within a definition ofemployees. 2°That definition states:

I

The term independent contractor includes individuals or entities who carry on

independent business, contract to do a piece of work according to their own means

I

and methods, and are subject to control only as to results. Whether an individual or entity is an independent contractor, regardless of what the individual or entity calls

itself, will be determined on a case-by-case basis. Factors to be considered in that

I

determination include, but are not limited to, whether the individual or entity: supplies
26

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employer from complying with both the local and federal law. See e.g. Sprietsma, 537 U.S. at 65

The Ordinance applies to all business entities, which includes contractors. Contractor in turn is
I defined as "a person, employer, subcontractor or business entity that enters into an agreement to

I

perform any service or work or to provide a certain product in exchange for valuable

I

consideration. This definition shall include, but not be limited to, a subcontractor, contract

employee, or a recruiting or staffing entity." Ordinance No. 1722, § 3C. This, by its terms,

I

applies the requirements ofthe ordinance to a contractor, who hires employees, it does not hold

I

the hirer ofthe contractor responsible for the employees of that contractor. The Court can find

no conflict between compliance with both statutes. The federal government excuses an individual

I

:from verifYing the work authorization ofthe employees of an independent contractor, nothing in

I

Ordinance No. 1722 contradicts this. Furthermore, should the Court conclude that Ordinance

I

No. 1722 required a higher level of verification, this would not prevent an individual from

complying with both the local and federal law. See Incalza v. Fendi North America, Inc., 479

I

F,3d 1005, 1010 (9th Cir. 2007) ("We find preemption only in 'those situations where conflicts

I

will necessarily arise.' A hypothetical conflict is not a sufficient basis for preemption." (quoting

Goldstein v. California, 412 U.S. 546, 554 (1973)). Without even a hypothetical conflict

I

between the two laws, this is insufficient to support a finding ofpreemption. While the Court

I

recognizes Plaintiffs assertion that there need only be a contlict with the purpose ofthe federal

statute, see Sprietsma, 537 U.S. at 65, this does not mean that every slight difference in emphasis
I

I

the tools or materials; makes services available to the general public; works for a number ofclients at the same time; has an opportunity for profit or loss as a result of

labor or services provided; invests in the facilities for work; directs the order or

I

sequence in which the work is to be done and determines the hours during which the work is to be done.

I

8 C.F.R § 274a.l{J).

27
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I

between the federal requirements and the local requirements creates such a conflict. The purpose

ofthe federal law is clearly to control the employment ofundocumented aliens; the ordinance is
I aimed at the same conduct.

I

The next issue raised by Plaintiffs is that the local ordinance fails to prolubit discrimination

I

on the basis ofnational origin, which is in conflict with IRCA. The plain language of the

ordinance belies Plaintiffs' assertion, and therefore little discussion is required. Ordinance No.

I

1722 states: "A complaint which alleges a violation on the basis ofnational origin, ethnicity, or

I

race shall be deemed invalid and shall not be enforced." Ordinance No. 1722, § 4B.(2). The

Court will not assume that the Defendant City intended the statute to be enforced in such a way as

I

to discriminate against individuals on the basis ofnational origin. The Court does not find any

I

conflict between the Federal statute and the local ordinance on this basis. The Court will more

I

fully address the question ofdiscrimination below, in reference to Plaintiffs' equal protection

claim

I

Next, Plaintiffs assert that there is a conflict between the process outlined in Ordinance

I

1722 and the process provided in IRCA, such that preemption is required. This argument is also

easily disposed. Plaintiffs argue that under IRCA an individual who receives an adverse finding

I

under the Basic Pilot program is given eight days to contest that finding, followed by a ten day

I

period in which the government may respond. The federal regulations provide that during the

contested period, the employer may not take any action, including termination, against the
I employee. What Plaintiffs describe as an adverse finding is descnbed by the federal regulations as

I

a "'tentative nonconfirmation." 62 F.R. 48309-01(IV)(B)(2). The procedure following a tentative

I

nonconfinnation is as follows:

An employee who is the subject ofa tentative nonconfirmation after completion ofan

I I

automated Service verificationcheck is provided a secondaryverification opportunity 28

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 29 of 57

I

to verifY his or her employment status. In these cases, the employer must notifY the employee of the tentative nonconfinnation and determine whether or not he or she

will contest the tentative nonconfirmation. If the employee does not contest the

I

tentative nonconfirmation, it will be considered a final nonconfirmation. If the employee contests the tentative nonconfirmation, he or she must contact the Service

within 8 Federal Government work days for resolution of his or her case. The

I

employer will instruct the employee to call a Service toll-free telephone number or

visit a local Service office within that time period. The SSA [Social Security

I

Administration] and the Service have 10 Federal Government work days within which to respond to contested tentative nonconfirmation cases. During this period, the

employer may not terminate or take adverse action against the employee based upon

I

his or her employment eligibility status, unless the Service determines, within that time, that the employee is not authorized to work.

I

62 F.R. 48309-01(IV)(B)(a). The Court does not find any conflict between this procedure, and

the procedure mandated by the Ordinance. The Ordinance requires that:

I

upon the receipt of a valid complaint,21 the Valley Park Code Enforcement Office

shall, within three (3) business days, request identifY [sic] information from the

I

business entity regarding any persons alleged to be unlawful workers. The Valley Park Code Enforcement Office shall suspend the business permit of any business

entity which fails, with three (3) business days after receipt ofthe request, to provide

I

such information.

I

Ordinance No. 1722, § 4B.(3). At first blush this appears to conflict with the federal procedure

outlined above. However, the Ordinance allows for the federal procedure to take its course,

I

before the Ordinance has any effect. The Ordinance states:

I

Ifthe federal government notifies the City ofValley Park that it is unable to verifY whether an individual is authorized to work in the United States, the City of Valley

Park shall take no further action on the complaint until a verification from the federal

I

government concerning the status of the individual is received. At no point shall any city official attempt to make an independent determination ofany alien's legal status,

without verification from the federal government ....

I

Sc. Ordinance No. 1722, § In the event that the Basic Pilot program reports back a tentative

I

nonconfinnation, then the Ordinance's three day time table is tolled, pending completion ofthe

I

federal determination, which allows the employee eight federal government business days to

I

21That is one not based on national origin. Ordinance No. 1722, § 4B.(2).
29

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 30 of 57

I

respond to the nonconfinnation. There is no conflict between these two provisions such that the

employer cannot comply with both. Incalza, 479 F.3d at 1010. Furthermore, the purpose of both
I Jaws is the same, namely to allow the alleged violator an opportunity to correct any error in the

I

determination of an employee's status.

I

The Court next addresses Plaintiffs' final conflict preemption argument. Plaintiffs'

contend that the Ordinance improperly requires that employers enroll in the BasicPilot program.22

I

Plaintiffs argue that Congress made an informed decision not to require all employers to

I

participate in the BasicPilot program, and that a local law which requires such participation is in

conflict with Congressional intent. Defendant raises a number of arguments in response to this

I

contention. First, Defendant states that the Ordinance at issue does not require employers to

I

participate in the program, but rather provides a safe harbor for those who have used BasicPilot

I

to veri:fY an employees work eligIbility. Secondly, Defendant argues that even ifparticipation in

the program were mandatory, this would not conflict with federa1law.

I

Defendant is correct, that under the Ordinance, employers are not required to participate

I

in the BasicPilot program. Rather, the Ordinance provides that

In any case in which the alleged unlawful worker is alleged to be an unauthorized

I

alien, the Valley Park Code Enforcement Office shall not suspend the business license of the business entity if prior to the date of the violation, the business entity had

verified the work authorization of the alleged unlawful worker using the BasicPilot

I

Program.

Ordinance No. 1722, § 4B.(5) ("safe harbor provision"). Participation in the program is only
I mandated ''where two or more unlawful workers are verified by the federal government to be

I

I

22This program is a1tematelyreferred to as BasicPilot and E-VerifY. At the time the ordinance was drafted the program was known as BasicPilot, it has since been renamed E-Veri:fY.

The Court will use the language used in the Ordinance at issue, and that used by the Parties in

I

their briefs, and refer to the program as BasicPilot.

30
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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 31 of 57

I

-unauthorized aliens ...." Ordinance No. 1722, § 4B.(6)(b). Upon such a finding, the Ordinance

requires that a business entity's business license shall only be returned ifthe business entity

I

provides "documentation acceptable to the City Attorney which confirms that the business entity

I

11as enrolled in and will participate in the BasicPilot Program for the duration of the validity ofthe

iJusiness pennit granted to the business entity." ld. IRCA provides for the implementation of an

I

employee verification program. 8 U.S.C. § 1324a. An amendment to IRCA, known as the Illegal

I

Immigration Reform and Immigrant Responsibility Act of 1996 ("IIRIRA"), provides for the

I

Attorney Generaf3to conduct three pilot programs of employment eligibility confirmation. PL

104-208, 1996 HR 3610,3009-655. IIRIRA further provides that:

I

any person or other entity that conducts any hiring (or recruitment or referral) in a

State in which a pilot program is operating may elect to participate in that pilot

I

program. Except as specificallyprovided in subsection (e), the Attorney General may not require any person or other entity to participate in a pilot program.

I

PL 104-108, 1996 HR 3610,100 Stat. 3009-656, IIRIRA § 402(a). Subsection (e) requires

certain entities to participate in the BasicPilot program. PL 104-108, 1996 HR 3610, 100 Stat.

I

3009-656, IIRIRA § 402(e). Specifically, all government departments are required to participate,

I

as well as certain violators. PL 104-lO8, 1996 HR 3610, 100 Stat. 3009-656, IIRIRA §

I

402(e)(I) & (2).

An order under section 274A(e)(4) [8 U.S.c. § 1324a(e)(4)] or section 274B(g) [8

I

U.S.c. § 1324b(g)] ofthe Immigration and Nationality Act may require the subject of the order to participate in, and comply with the tenus of, a pilot program with

respect to the subject's hiring (or recruitment or referral) of individuals in a State

I

covered by such a program.

PL 104-108, 1996 HR 3610,100 Stat. 3009-656, IIRIRA § 402(e).
I

I

I

23The Secretary ofHomeland Security was later substituted for the Attorney General.

I

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The Court does not find any conflict between the provisions ofthe Ordinance and IRCA

(as amended by IIRlRA). Both the Ordinance and the federal law provide for voluntary
I participation in the BasicPilot Program, unless a business is found to be in violation of either the

I

local ordinance or the federal law, in which case participation becomes mandatory. Furthermore,

I

as evidenced by the numerous statements provided by the Defendant, there has been continued

movement towards expanding the BasicPilot program, not limiting it. See e.g. De!. Reply Memo.

I

in Support ofDe! Mot. for Summ. Judg., A, 2 ("Because ofthe success ofthis system [Basic

I

Pilot] and its ability to take the guesswork, or some ofthe guesswork out ofemployment

document review, we're going to be strengthening and expanding the system and giving it a new

I

name: E-VerifY."). While the Secretary ofHomeland Security recognized that the system was still

I

voluntary, he emphasized that they will "encourage as many companies as possible to use E-

I

VerifY." fd. The Court also recognizes that a recent Arizona law, which mandated all Arizona

state employers to utilize the BasicPilot program was upheld by the United States District Court

I

for the District ofArizona.24 See Arizona Contractors Association v. Napolitano, 2007 WL

I

4570303 (D. Ariz. Dec. 21,2007). The Arizona court concisely stated the relationship between

the federal law and a state, or local law.

I

The program [BasicPilot] was in an evaluative stage when it was created, and so

Congress was leery ofmandating its use right away itself Accordingly, it prolubited

I

the Attorney General from requiring participation in the program. IIRIRA § 402(a), 110 Stat. 3009-656. But that does not necessarily mean that Congress placed the

I

24Plaintiffs correctly point out that the procedural posture ofthe Arizona case is distinct.

I

The plaintiffs in that case were seeking to stay the enforcement of the Arizona law pending appeal ofthe district court's judgment in favor of defendants. Arizona Contractors Association, 2007

WL 4570303, at *1 ("Plaintiffs have appealed the December 7, 2007 judgment dismissing this

I

action without prejudice for lack of a justiciable case or controversy against these Defendants. They now seek an injunction preventing the Defendants from implementing or enforcing the [Act]

for the duration of the appeal."). However, the analysis of the Arizona court is nonetheless

I

instructive.

I

32

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conduct that it excluded from federal mandate-whether to use E-Verity-also outside ofthe residuum ofconduct sUbject to the police power ofthe state. A decision not

to invoke federal coercive powers leaves conduct within the power of the states to

I

compel or forbid for proper legislative purposes.

I

ld. at * 14. The Court does not see Congress's decision not to make the program mandatory as

restricting a state or local government's authority under the police powers. FurthelIDore, the

I

Court recognizes that generally, a state has concurrent jurisdiction with the federal government to

I

enforce federal laws. See Gonzales v. City ofPeoria, 722 F.2d 468, 474 (9th Crr. 1983). The

Ordinance in question uses the BasicPilot program to detennine an individual's work status in the

I

same manner as that proscribed by the Federal Government. This allows for greater enforcement

I

of the federal law, while providing additional local sanctions through the licensing law. There is

no conflict between the two laws.
I Having thoroughJyreviewed each ofPlaintiffs' arguments in support ofpreemption, the

I

Court concludes that Ordinance No. 1722 is not preempted by federal immigration law. The

I

City's Ordinance falls squarely into the exception to preemption carved out by Congress.

Furthermore, the emphasis on preventing the hiring of illegal aliens is a goal shared by the Federal

I

and local law.

I

2. Equal Protection

The Court will next address Plaintiffs' equal protection claim. Plaintiffs assert that

I

Ordinance No. 1722 will have the effect ofdiscriminating against individuals of Hispanic origin in

I

violation ofthe Equal Protection Clause ofthe Fourteenth Amendment. Plaintiffs sought

I

discovery On the issue of discriminatory impact, and both Parties filed supplemental memorandum

following the completion ofthat discovery?5 However, Defendant raises two preliminary

I

25This Court's order allowing additional discovery was not intended to predetermine the

I I

relevance of that evidence. As Defendant correctly states, the factual circumstances surrounding

33

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Gase 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 34 of 57
arguments that need to be addressed, both ofwhich, if correct, would be dispositive of Plaintiffs , equal protection claim. The first is that Plaintiffs lack standing, the second is that there is no state action. Plaintiffs allege two ways in which Ordinance No. 1722 will have a discriminatory effect, in violation of the equal protection clause: "(1) by inducing employers to refrain from employing Hispanics; and (2) by inducing City officials or Valley Park residents to file complaints under the OIdinance against business entities based on their employment of Hispanics." PIs. Memo. in Opposition to De! Mot. for Summ. Judg., 17.26
As an initial matter, the Court will recite the requirements of an equal protection claim. The Fourteenth Amendment provides that:
No State shall make or enforce any law which shall abridge the privileges or immunities ofcitizens ofthe United States; nor shall any State deprive any person of lire, liberty, or property, without due process oflaw; nor deny to any person within its jurisdiction the equal protection ofthe laws. U.S. CONST. amend. XIV, § 1. The ''Equal Protection Clause directs that 'all persons similarly circumstanced shall be treated alike.'" Plyler v. Doe, 457 U.S. 202, 216 (1982) (quoting F.S.

the enactment ofthe Ordinance is only relevant ifthe threshold requirements ofstanding and state action are satisfied.

26It is undisputed that up until this point in time, no action has been taken to enforce the

ordinance against any individuals or businesses. There is some confusion throughout the Parties'

briefS regarding the nature ofthe Equal Protection Claim asserted, and to what degree

discriminatory motive on the part of the Board ofAlderman and the Mayor is relevant to this

claim. There are two types of discrimination claims that can be brought under the Equal

Protection Clause; Plaintiffs may assert that the Ordinance was enacted due to discriminatory

intent on the part of the law makers, or Plaintiffs may assert that the Ordinance has a

discriminatory impact. The second basis, that the Ordinance has a discriminatory impact, can

further be broken down into a facial challenge, or an as applied challenge. There is no basis for an

"as applied" challenge in the case at bar, because no enforcement ofthe Ordinance has taken

place. However, Plaintiffs assert that the Ordinance has a discriminatory impact on its face, and

alternately that the Ordinance was passed with discriminatory intent. The Court notes that both

equal protection claims require a showing that Plaintiffs possess standing. The state action

argument applies only to Plaintiffs' facial discriminatory impact claim.. 34

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.Royster Guano Co. v. Virginia, 253 U.S. 412,415 (1920)). Implicit in this dictate is the

Iequirement that legislatures make distinctions between those who are not similarly
I circumstanced. Plyler, 457 U.S. at 216.

I

A legislature must have substantial latitude to establish classifications that roughly

approximate the nature of the problem perceived, that accommodate competing

I

concerns both public and private, and that account for limitations on the practical ability of the State to remedy every ill. In applying the Equal Protection Clause to

most forms ofstate action, we thus seek only the assurance that the classification at

I

issue bears some fair relationship to a legitimate public purpose.

lao The Supreme Court has required a higher standard than the fair relationship test articulated

I

above, ifthe classification disadvantages a "suspect class," or impinges upon the exercise of a

I

O<fi.mdamental right." Id. at 216-217. "With respect to such classifications, it is appropriate to

I

enforce the mandate of equal protection by requiring the State to demonstrate that its

classification has been precisely tailored to serve a compelling government interest." I d. at 217.27

I

Ifnecessary following the Court's analysis ofstanding and state action, the Court will address the

I

level of scrutiny appropriate in this case.

a. Standing

I

The Supreme Court has divided the question of standing into constitutional requirements

I

and prudential considerations. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).

The irreducible constitutional minimum ofstanding contains three elements. First, the

I

plaintiff must have suffered an "injury in fact"-an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not

I

conjectural or hypotheticaL Second there must be a causal connection between the injury and the conduct complained of-the injury has to be fairly traceable to the

challenged action of the defendant, and not the result of the independent action of

I

I

27The Supreme Court has also employed intermediate scrutiny for those classifications which are ''not facially invidious, [but] nonetheless give rise to recurring constitutional difficulties

...." Plyler, 475 U.S. at 217. This intermediate level of scrutiny is not alleged by either Party to

I

apply to the case at bar, and therefore, the Court need not address it in further detail

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some third party not before the court. Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.

I

Lujan, 504 U.S. at 560-61 (internal quotations omitted). The Supreme Court further held that

"[t]he party invoking federal jurisdiction bears the burden of establishing these elements." Id. at
I 561. Each element of the standing requirement ''must be supported in the same way as any other

I

matter on which the plaintiffbears the burden ofproof, i.e., with the manner and degree of

I

evidence required at the successive stages of litigation." Id. The Supreme Court specifically

states that at the summary judgment stage "the plaintiffcan no longer rest on 'mere allegations'

I

but must 'set forth' by affidavit or other evidence 'specific facts'" which support a finding of

I

standing. Id. (quoting Fed. R. Civ. P. 56(e». The Supreme Court has also placed several

'Judicially self-imposed limits on the exercise offederal jurisdiction" that have become part of the

I

standing doctrine. Allen v. Wright, 468 U.S. 737, 751 (1984). For example, ''the general

I

prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of

I

generalized grievances more appropriately addressed in the representative branches, and the

requirement that a plaintiff's complaint fall within the zone ofinterests protected by the law

I

invoked." Id. Each of these requirements must be satisfied before the Court can proceed to

I

address the merits of Plaintiffs' equal protection c1aim.28

The first constitutional requirement for standing :is that Plaintiffpresent evidence of an

I

injury in fact, which must be both particularized and actual or imminent. Lujan, 505 U.S. at 560.

I

Defendant disputes that this requirement has been satisfied, arguing that the injury asserted by

I

Plaintiffs is discrimination against third parties, namely Hispanics who are the subject ofPlainti.fi:S'

Equal Protection claim. PlaintiffS dispute this characterization ofthe injury, arguing that the

I

28Whi1e the Constitutional requirements are unalterable, the prudential requirements

I

articulated above, may, in certain circumstances, be altered.

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injury is the burden ofcompliance with the statute. Plaintiffs are asserting that the Ordinance in

<J"uestion violates the equal protection clause of the constitution, by improperly discriminating on

I

1he basis of national origin. Thus the injury, for purposes of this claim, is to an individual

I

applicant who is not hired on the basis of his national origin, or an employee against whom a

complaint is filed. Plaintiffs' assertion that compliance with the Ordinance places a burden upon
I them sufficient to constitute an injury is inadequate. Firstly, the Court notes that compliance with

I

any statute, law, or ordinance, places some cost of compliance upon the subject ofthe law.

I

Secondly, standing requires that there be a causal connection between the injury and the conduct

ofwhich a complaint is made. Lujan, 504 U.S. at 560-561. The conduct challenged by the

I

Plaintiffs is the potential discrimination against employees, or potential employees, of Hispanic

I

Origin. The burden ofcompliance with the Ordinance is not causally connected to discrimination

against individual employees. Therefore the second constitutional standing requirement is not
I met. This failure to satisfY the constitutional requirements is dispositive ofPlaintiffs equal

I

protection claim, however, for purposes of thoroughness, the Court will address Plaintiffs'

I

assertion that they have third party standing.

Plaintiffs argue that their injury, the burden ofcompliance, is sufficient to satisfY the

I

standing requirement, and that they are able to assert the rights of a third party, in this case the

I

potential employees who will be discriminated against as a result ofthe Ordinance. The assertion

of the rights of a third party is not a limitation on jurisdiction required by the Constitution, but

I

rather is a self-imposed limitation, "designed to minimize unwarranted intervention into

I

controversies where the applicable constitutional questions are ill-defined and speculative." Craig

v. Boren, 429 U.s. 190, 193 (1976). In a later Supreme Court case, the Court articulated a three
I

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part test to detennine whether an exception to the general prohibition against third-party standing

was warranted.

I

We have recognized the right of litigants to bring actions on behalf ofthird parties,

provided three important criteria are satisfied: The litigant must have suffered an

I

"injury-in-fact," thus giving him or her a "sufficiently concrete interest" in the

outcome ofthe issue in dispute, [Singleton v. Wu1jJ, 428 U.S. 106, 112 (1976)]; the

I

litigant must have a close relation to the third party, id., at 112; and there must exist some hindrance to the third party)s ability to protect his or her own interests. ld., at

11 116.

I

Powers v. Ohio, 499 U.S. 400, 410-411 (1991). In the case before the Court, PlaintiffS'

I

arguments in support of these requirements are not persuasive. The first requirement, injury-in-

fact has been addressed at length, and need not be repeated. The second requirement, is that

I

there be a close relationship between the Plaintiffs and the third party. The specific facts in

I

Powers, involved a defendant and a jury person. 499 U.S. at 413. The Supreme Court also noted

other close relationships that would satisfY the second requirement: Planned Parenthood official
I and a licensed physician and rights ofcontraceptive users with whom they had professional

I

relationships; licensed beer vendor and male customer; attorney and client. ld. The relationship

I

ofemployer and employee may be sufficiently close that an employer has an incentive to litigate

on behalf ofits employees. However, the case here does not involve an employer and employee

I

relationship, it involves a potential employer and employee relationship. In each ofthe cases cited

I

by the Parties) and reviewed by the Court, there was an actual third party who was the subject of

the constitutional violation. The Court does not believe that this is a sufficient relationship to

I

satisfY the second requirement articulated by Powers. 499 U.S. at 411. The third requirement

I

poses the biggest hurdle for Plaintiffs to overcome. Plaintiffs must show that the third-party is

I

unable to bring an action on their own behalf ld. In Powers, this requirement was satisfied

because the jury person who is eliminated on the basis ofrace, has little opportunity to raise an

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objection before the trial court, and any relief after the fact would be ineffective. ld. at 414-415.

The present case does not present such hurdles. Plaintiffs assert that a Hispanic employee would

I

be unlikely to raise an equal protection challenge on their own behalf. However, the Court is not

I

persuaded that this is correct. Assuming that the potential employee was a legal worker, was

I

discriminated against on the basis ofhis or her national origin, and not his or her employment status, there is nothing to prevent that individual from filing a lawsuit on their own behalf29

I

Plaintiffs rely heavily on the Craig case to support their position that they may assert the

I

rights ofpotential Hispanic employees. However, the Court notes a number of significant

differences between the two cases. First, the Supreme Court emphasized the fact that the

I

defendant in Craig did not challenge the ability ofthe Supreme Court, or the lower courts, to

I

address the constitutionality ofthe state's liquor law. ld. at 193. Secondly, and more

I

importantly, the Court notes that the controversy in Craig was well defined and was far from

speculative. Id. The issue before the Supreme Court was whether a liquor law which limited the

I

sale of3.2% beer to men under 21 and women under 18 violated the Equal Protection Clause. Id.

I

at 192. There was no speculation regarding the potential :irtiury to third parties; men under age 21

were not permitted to purchase 3.2% beer, whereas women were. ld. The present case involves

I

the potential discrimination by employers against Hispanic workers, or in the alternative, the

I

discrimination against Hispanic workers by citizens ofthe City in filing complaints. Neither one

of these asserted third party injuries is well defined, and both are speculative. Upon enforcement

I

of the statute, ifPlaintiffs can show particularized injuries to third parties, who are unable to bring

I

I

29The Cost of litigation is certainly a consideration, however such costs are associated with all suits. Furthermore, the Court notes that the Plaintiffs in the present case are represented by

several private attorneys, as well as the American Civil Liberties Union, suggesting that finding

I

competent representation is not a barrier to filing suit.

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an equal protection challenge on their own behalf, then the standing discussion may have a

different result. However, on the facts as presented before this Court, in the context of a facial

I

attack, Plaintiffs do not have standing to raise an equal protection claim on behalfofpotential

I

employees.

Plaintiff:; briefly raise the argument ofassociational standing. The Supreme Court has
I "recognized that an association has standing to bring suit on behalf of its members when: (a) its

I

members would otherwise have standing to sue in their own right; (b) the interests it seeks to

I

protect are germane to the organization's purpose; and (c) neither the claim asserted nor the relief

requested requires the participation of individual members in the lawsuit. Hunt v. Washington

I

State Apple Advertising Commission, 432 U.S. 333,343 (1977). This basis for standing requires

I

DO further analysis, as Plaintiffs are not an association bringing suit on behalfof its members,

rather Plaintiffs are employers attempting to file suit on behalfofpotential employees. Therefore,

I

DO associational standing exists in the case at bar.

I

b. State Action

I

Defendant argues that even if Plaintiffs did have standing to raise an equal protection

challenge, such a challenge would fail because of a lack ofstate action. Defendant argues that any

I

discrimination that would take place would be on the basis ofthe individual actor's own biases,

I

and not because ofthe Ordinance. Plaintiffs disagree, arguing that the Ordinance itselfwill cause

the unlawful action by third parties, thus making their actions the actions of the City. There are

I

two key provisions in the Ordinance which form the basis for both Parties' arguments. The first is

I

the provision which permits complaints to be filed by members of the community. Ordinance No.

1722, § 4B.(I). The second, is the Ordinance provision which states that "a complaint which
I

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alleges a violation on the basis ofnational origin, ethnicity, or race shall be deemed invalid and

shall not be enforced." Ordinance No. 1722, § 4B.(2).
I The Fourteenth Amendment prohIbits discriminatory action '''that may fairly be said to be

I

tnat of the States. '" Cuyahoga Falls v. Buckeye Community Hope Foundation, 538 U.S. 188,

I

]96 (2003) (quoting Blum v. Yaretsky, 457 U.S. 99], 1002 (1982)). ''That Amendment erects no

shield against merely private conduct, however discriminatory or wrongful." Blum, 457 U.S. at

I

]002 (quoting Shelley v. Kraemer, 334 U.S. 1, 13 (1948)). "Faithful adherence to the 'state

I

action' requirement of the Fourteenth Amendment requires careful attention to the gravamen of

the plaintiff's complaint." Blum, 457 U.S. at 1003. "To ascertain whether there is state action in

I

a case, we examine the record to determine 'whether the conduct at issue is fairly attnbutable to

I

the state.'" Wickersham v. City o/Columbia, 481 F.3d 591, 597 (8th Cir. 2007) (quoting

I

. Montano v. Hedgepeth, 120 F.3d 844, 848-849 (8th Ci. 1997)). "We are guided in this inquiry by

two additional queries: whether the claimed deprivation 'resulted from the exercise of a right or

I

privilege having its source in state authority' and whether the party engaging in the deprivation

I

'may appropriately characterized as [a] state actor[].'" Wickersham, 481 F.3d at 597 (quoting

Lugar v. Edmondson Oil Co., 457 U.S. 922, 939 (1982)) (alterations in original).

I

In determining whether the conduct at issue, in this case the discrimination by potential

I

employers and town residents against individuals on the basis oftheir national origin, is

attnbutable to the City, the Court examines the two queries quoted by the Eighth Circuit.
I Wickersham, 481 F.3d at 597. The first requirement is that "the claimed deprivation resulted

I

from the exercise of a right or privilege having its source in state authority ...." ld. This

I

requirement is not met in the present case. The Ordinance at issue does not permit an employer

to discriminate against potential employees on the basis ofnational origin. The only authority

I

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granted to employers under the Ordinance, is the authority to refuse to hire an individual who fails

to provide the documentation, required by Federal law, showing employment status. The

I

Ordinance in no way authorizes an individual employer to discriminate on the basis ofnational

I

o:rigin, and therefore this conduct cannot be attnbuted to the State, or in this case the local City.

Plaintiffs' alternate theory, that the Ordinance provides the basis for individual discrimination on
I the basis ofnational origin through the Ordinances complaint procedure, also fails to meet this

I

requirement. The Ordinance explicitly invalidates any complaints that are made on this basis

I

alone; this can hardly be said to be the basis ofthe right or privilege to discriminate. Furthermore,

a complaint procedure in and of itself does not violate the equal protection clause.3o Plaintiffs also

I

hil to meet the second requirement articulated by the Eighth Circuit; "the party engaging in the

I

deprivation may be appropriately characterized as a state actor." fd. (internal quotation and

alterations omitted). The individuals in question would be either employers, or City residents.

I

The fact that a local law requires that employers comply with Federal documentation

I

requirements, or suffer penalties, does not make those employers state actors. Nor are City

I

residents acting as state actors in :filing complaints against business entities that hire illegal

workers. It cannot be said that "the government [is) so entangled in private conduct that the deed

I

of an ostensibly private organization or individual is to be treated as if a State had caused it to be

I

performed." fd. (internal quotation omitted). The Ordinance in question causes action on the

part of employers and residents, but it cannot be said to cause the action which would result in

I

discrimination.

I

Plaintiffs cite to a number ofcases in which the Supreme Court held that a state or local

law encouraged conduct which violated the United States Constitution, and therefore the private
I

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30rhe federal law provides a similar procedure, which Plaintiffs do not challenge.
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conduct was found to be state action. Plaintiffs cite to the case ofRobinson v. State ofFlorida, in

which the Supreme Court found that a Florida law requiring separate toilet and lavatory facilities

I

fDr African Americans and whites was sufficient state involvement in the illegal action ofprivate

I

restaurants refusing to serve both races, as it places «burdens upon any restaurant which serves

I

roth races, burdens bound to discourage the serving of the two races together." 378 U.S. 153,

156 (1964). Whi1e the Supreme Court did not require the illegal action to be written into the

I

statute in Robinson, the relationship between the illegal conduct and the requirements of the

I

statute was very close. Id. Such a close relationship is not present in the case at bar. There is a

burden related to the imposition of the statute, however, that burden does not encourage

I

employers to refuse to hire Hispanics as suggested by Plaintiffs. The Court also notes that this

I

alleged burden, is already mandated under Federal law. Plaintiffs also cite to the case ofReitman

I

v. Mulkey, in which the Supreme Court held that a California law which was "intended to

authorize, and does authorize racial discrimination in the housing market" was unconstitutionaL

I

3&7 U.S. 369, 380 (1967). Part ofthe basis for the Supreme Court's decision in that case, was

I

that prior to passing the law at issue, the California state legislature had repealed an existing law

forbidding private racial discrimination. Id. at 381. The Supreme Court viewed this as evidence

I

of the legislatures intent to pennit racial discrimination in the housing market. Id. Again, this

I

case is distinct from the present case, as the Supreme Court clearly focused on the intent ofthe

legislature to allow private discrimination, thus constituting state action. Id. The Ordinance in

I

question in no way authorizes individuals to discriminate against Hispanics, and in fact specifically

I

warns against the validity of such conduct. Therefore, any potential discrimination that results in

I

the hiring of employees, or in the filing of complaints, cannot fairly be construed as being caused

by State action.

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c. Merits

As the Court has found that Plaintiffs lack standing, and alternately that the claimed

I

discriminatory action lacks state action, it is unnecessary to address the merits of Plaintiffs, equal

I

protection claim. However, to ensure that all issues are fully addressed, the Court will briefly

I

touch on the merits of Plaintiffs, claim. This requires a brief discussion of both Plaintiffs' facial

challenge asserting that the Ordinance has a discriminatory impact, and Plaintiffs' assertion that

I

the Ordinance was passed with a discriminatory intent. The first question to be detennined is

I

what classification is being challenged, upon making such a determination, the Court then applies

the appropriate test to determine whether the challenged conduct violates the Equal Protection

I

Clause.

I

Plaintiffs characterize the Ordinance at issue as one which classifies individuals on the

I

basis of national origin, which would require analysis under the strict scrutiny test. Conversely,

Defendant argues that the Ordinance classifies individuals on the basis of immigration status, and

I

thus requires application of the rational basis test. See Plyler, 457 U.S. at 223 ("Undocumented

I

aliens cannot be treated as a suspect class because their presence in this country in violation of

federal law is not a 'constitutional irrelevancy. "'). The Ordinance in question classifies workers

I

on the basis of immigration status, that is whether they are legally permitted to work in the United

I

St ates. Such a classification does not require strict scrutiny by this Court, but rather the City need

only show that there is a rational basis between the Ordinance and the purpose for which it was

I

passed. fd. The City specifically states in the second section ofthe Ordinance that "illegal

I

immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and our residents

I

to substandard quality ofcare, contrIbutes to other burdens on public services, increasing their

costs and diminishing their availability, diminishes our overall quality of life, and endangers the

I

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security and safety of the homeland." Ordinance No. 1722, § 1C. The Court recognizes that such

a finding ofpurpose would fall into a different analysis under strict scrutiny, required in the

I

context of a suspect classification, however, the rational basis standard requires far less analysis.

I

Plyler, 457 U.S. at 224; see also Pennell v. City ofSan Hose, 485 U.S. I, (1988) ("[W]e will not

overturn a statute that does not burden a suspect class or a fundamental interest unless the varying
I treatment of different groups or persons is so unrelated to the achievement of any combination of

I

legitimate purposes that we can only conclude that the legislature's actions were irrational."

I

(internal quotation omitted)). The Court in Plyler, also stated that ''the States do have some

authority to act with respect to illegal aliens, at least where such action mirrors federal objectives

I

and furthers a legitimate state goal." Id. at 225. On its face, Ordinance No. 1722 does not violate

I

the Equal Protection Clause ofthe Fourteenth Amendment.

The majority of the evidence submitted by Plaintiffs is in support of their claim that the

I

Ordinance in question was intended to discriminate against Hispanics. In support of this

I

assertion, Plaintiffs point to evidence of comments made by the Mayor, and subsequently reported

I

in a local newspaper article, as well as materials circulated to the Board ofAlderman prior to the

passage ofthe Ordinance at issue. Defendant disputes that this information is sufficient to support

I

a finding of discriminatory intent.

I

The Supreme Court in Rogers v. Lodge, held that a legislative scheme that is not on its

face unconstitutional, may violate the Fourteenth Amendment "if 'conceived or operated as

I

purposefUl devices to further racial discrimination' ...." 458 U.S. 613, 617 (1982) (quoting

I

Whitcomb v. Chavis, 403 U.S. 124, 149 (1971). The Supreme Court in Whitcomb stated that

"the courts have been vigilant in scrutinizing schemes allegedly conceived or operated as
I purposefUl devices to further racial discrimination." 403 U.S. at 149. The Court notes that there

I

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can be no claim that the Ordinance operates to discriminate, as it has yet to be enforced, but the

I

Court will review the claim that it was conceived as a "purposeful device[] to further racial

discrimination." Id. A court addressing the question ofthe validity of an Ordinance, "must keep

I

in mind the fundamental principal that 'official action will not be held unconstitutional solely

I

because it results in a racially disproportionate impact. ... Proof ofracially discriminatory intent

or purpose is required to show a violation ofthe Equal Protection Clause.'" Hernandez v. New

I

York, 500 U.S. 352,359-360 (1991) (quoting Arlington Heights v. Metropolitan Housing

I

j)evelopment Corp., 429 U.S. 252, 264-265 (1977». "Discriminatory purpose implies more than

I

intent as volition or intent as awareness or consequences. It implies that the decisionmaker

selected a particular course of action it least in part because of, not merely in spite of, its adverse

I

effects upon an identifiable group." Hernandez, 500 U.S. at 360 (internal alterations and citations

I

omitted).

The Court must decide whether PlaintiffS have presented evidence, sufficient to show a

I

genuine issue of material fact. The Court finds that Plaintiffs fail to meet this standard. As an

I

initial matter, the Court notes that Plaintiffs must show discriminatory intent by the Alderman, and

not only by the Mayor. Even assuming that the City was aware that the Ordinance would

I

disproportionately effect Hispanic applicants, and assuming that such a negative impact results/1

I

there is no evidence that the Ordinance was passed because ofthis negative impact. The

I

testimony of each ofthe Board of Aldermen belies this assertion. Each one testified to their

reasons for passing the Ordinance, and each reason related to the impact ofillegal workers on the

I

job market, the strain on the local economy because of illegal immigrants, and the impact on other

I 31The Court notes that ifthe Ordinance is enforced as written, there will be no

I

discrimination against Hispanics. The only classification in the statute is on the basis ofwork eligibility.

--

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

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:/irst be noticed." Fuentes v. Shevin, 407 U.S. 67, 80 (1972). It is undisputed that "some form of

I

rearing is required before an individual is finally deprived of a property interest." Mathews, 424

U.S. at 333. It is also undisputed that a business license constitutes a property interest. See Bell

I

""\I. Burson, 402 U.S. 535,539 (l971) ("Suspension of issued licenses thus involves state action

I

tltat adjudicates important interests ofthe licensees. In such cases the licenses are not to be taken

away without procedural due process required by the Fourteenth Amendmene'); see also

I

'Ianasse v. City ofSt. George, 1999 WL 74020, *2 (lOth Cir. February] 7, 1999). Plaintiffs'

I

argument centers on the requirement of a pre-deprivation hearing. However, the Supreme Court

I

in Mathews, held that "the fundamental requirement of due process is the opportunity to be heard

'at a meaningful time and in a meaningful manner.'" 424 U.S. at 333 (quoting Armstrong v.

I

Manzo, 380 U.S. 545,552 (1965)). The Supreme Court in Mathews held that there are three

I

distinct factors to consider in identifYing the specific dictates of due process: "First, the private

interest that will be affected by the official action; second, the risk of an erroneous deprivation of

I

such interest through the procedures used, and the probable value, ifany, of additional or

I

substitute procedural safeguards; and finally, the Government's interest, including the function

involved and the fiscal and administrative burdens that the additional or substitute procedural

I

requirement would entail." 424 U.S. at 334-35. The Supreme Court has further made clear that

I

determining what process is required "is influenced by the extent to which he [the recipient ofthe

I

procedure] may be condemned to suffer a grievous loss ...." Goldberg v. Kelly, 397 U.s. 254,

263 (1970).

I

Plaintiffs' first argument is easily disposed. Plaintiffs assert that the ordinance fails to

I

provide notice of how to comply. The text ofthe Ordinance itselfbelies this assertion. The

Ordinance requires that "[i]t is unlawful for any business entity to recruit, hire for employment, or
I

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Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 49 of 57
continue to employ, or to permit, dispatch, or instruct any person who is an unlawful worker to perform work in whole or in part within the city." Ordinance No. 1722, § 4A. Clearly a business is on notice that ifit hires an unlawful worker, then it will be in violation ofthe code. Furthermore, the Ordinance requires that when applying for a business license, that person "shall sign an affidavit, prepared by the City Attorney, affirming that they do not knowingly utilize the services or hire any person who is an unlawful worker." Ordinance No. 1722, § 4A. The Court will not repeat the remaining provisions in full, as they are cited above. However, the Court notes that the Ordinance goes on to state how the statute will be enforced, and how a business that is found to be in violation of the Ordinance should proceed. Ordinance No. 1722, § 4B. The Court finds nothing confusing about these provisions, and therefore, concludes that PlaintiffS have s.ufficient notice as to how to comply. PlaintiffS also argue that the Ordinance gives no guidance 011 how a business entity is to determine the work status of an individual employee. Plaintiffs are correct that the Ordinance does not specifically provide information on how to determine the status of an employee. However, it does encourage the use of the BasicPilot program, which can be used to determine an individuals work status. Furthermore, all employers are required to determine the work status of an employee under Federal law, therefore, the Court does not see this as a valid complaint by the Plaintiffs. Plaintiffs further argue that only an immigration judge can make a final detennination regarding the lawful status of any alien. Pis. Memo. in Opposition to Def Mot. for Summ. Judg., 30 (citing 8 U.S.c. § 1229a(a)(3)). Plaintiffs are correct in this statement, however, nowhere in the Ordinance are PlaintiffS required to make an absolute determination regarding a worker's status. PlaintiffS are required to refrain from knowingly hiring an unlawful worker, and upon the filing of a valid complaint, they are required to show documentation for the accused unlawful worker. No deprivation of business license takes place
49

I

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 50 of 57

I

1lI1til after the worker is in fact found to be unlawful, a detennination made by the federal

.government. Furthermore, such deprivation is immediately remedied upon action taken by the

I

business entity to correct the violation. Ordinance No. 1722, § 4B.(6).

I

Plaintiffs' next argument requires further discussion. Plaintiffs assert that the Ordinance

I

fa.ils to provide sufficient process before depriving a business of its business license.32 The key

question presented by the Parties, is whether a pre-deprivation hearing is required, and ifso, does

I

the Ordinance satisfY this obligation? The Court begins by looking at the predeprivation process

I

that is provided in the Ordinance. The ordinance provisions at issue state:

(3) Upon receipt ofa valid complaint, the Valley Park Code Enforcement Office shall,

I

within three (3) business days, request identifY [sic] information from the business entity regarding any persons alleged to be unlawful workers. The Valley Park Code

Enforcement Office shall suspend the business permit of any business entity which

I

fails, within three (3) business days after receipt of the request, to provide such information.

I

(4) The Valley Park Code Enforcement Office shall suspend the business license of

any business entity which fails to correct a violation ofthis section within three (3)

I

business days after notification ofthe violation by the Valley Park Code Enforcement Office.

I

Ordinance No. 1722, § 4B.(3) & (4). The Ordinance also provides for a tolling of the three day

period if"[t]he business entity, after acquiring additional information from the worker, requests a

I

secondary or additional verification by the federal government ofthe worker's authorization ...."

I

Ordinance No. 1722, § 5B.(2). Thus, the Court reads the Ordinance to provide a business entity

three days to present any documentation that it received from the worker regarding the worker's
I

I

32Plaintiffs refer generally to the denial of a business license, or in even more extreme

terms the loss ofa business. However, the language ofthe Ordinance, quoted previously by the

I

Court, does not mandate the permanent denial of a business license. The license is immediately reinstated one day after a violation is corrected. In the event of multiple violations, the City is

authorized to suspend a business license for twenty (20) days. Ordinance No. 1722, § 4B.(7).

I

The Ordinance does not speak of a permanent loss ofa business.

50

A 90

I

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 51 of 57

l

employment eligibility. Furthennore, the business entity, upon providing the city with such

documentation, may request that a verification be made from the federal government through the

I

:BasicPilot program. While this process is taking place, no suspension ofthe business license

I

takes place. Plaintiffs point out that the business entity is not given an opportunity to review the

contents ofthe complaint. The Court does not find that this is required to satisfY due process.

I

Plaintiffs cite the Court to the case ofStauch v. City of Columbia Heights, in which the

I

Eighth Circuit held that "the City was required to provide the Stauches [plaintiffS) with some fonn

I

ofnotice and opportunity for a hearing before detennining they were no longer licensed." 212

F.3d 425,431 (8th Cir. 2000). However, the Eighth Circuit further held that a procedure by

I

which the plaintiffs could appeal a finding of building code violations which would result in the

I

withdrawal ofa rental license was adequate process. !d. (''The Stauches concede that the Code's

procedure for appealing compliance orders provides adequate due process ...."). The process

I

outlined in Stauch as sufficient, is analogous to this case. PlaintiffS in that case were told of a

I

. violation, and had a certain period of time to appeal that finding of a violation. Id. The failure to

do so resulted in the loss of a rental license. !d. In this case, upon a finding by the City that a
I valid complaint has been made, the alleged violator is given three days to provide documentation

I

of an employee's work status.33 The issue before the Eighth Circuit in Stauch, was whether the

I

City followed the procedure outlined in the code. Id. Plaintiffs argue that the contents of the

complaint, and the motivation for its filing are significant to the subject of due process. The

I Court does not agree. Given that Plaintiffs, or any employer, are given a three day period before

I
I 33Contrary to Plaintiffs assertion, this does not have to be evidence sufficient to make a final detennination ofthe worker's employment eligibility, but rather must show that the employer sought verification ofthe employees status. Such evidence would show that the employer was
I not knowingly employing an unauthorized worker. 51

vd::>e 4:U f -cv-00881-ERW Document 129 Filed 01/31/2008 Page 52 of 57

any adverse action is taken, Plaintiffs may easily refute any complaints which are based upon
l vindictive motives. Furthermore, the only information which is relevant, is the employment status

I

()fthe business entities employees. The information contained within the complaint is not

I

:necessary for an alleged violator to refute the claims.34 The Court finds that in accordance with

tile Eighth Circuit in Stauch, the Ordinance provides sufficient pre-deprivation notice and

I

opportunity to be heard to satisfY the requirements of due process. This is in accordance with the

I

three factors articulated by the Supreme Court in Mathews. 424 U.S. at 334-35. The private

interest in the present case is the suspension of a business entity's business license. The Court

I

recognizes that this may be severe, however, this sanction is moderated by the immediate

I

reinstatement ofthe license following the remedy of an initial violation, and the reinstatement after

I

twenty (20) days following the remedy of a second or subsequent violation. Ordinance No. 1722,

§ 4B.(6) & (7). Furthermore, the procedures provided for leave little room for an erroneous

I

violation. An individual either is or is not authorized to work in the United States. Under the

I

Ordinance, a request is made ofthe federal government to verifY an individuals status. If no

violation has occurred, then no further action is taken. Finally, the Court recognizes the City's

I

interest in compliance with its local ordinances though its business licensing laws, and its further

I

interest, as stat~d in detail in the Ordinance, in limiting the employment of individuals not

I

34Plaintiffs cite Division ofFamily Services v. Cade, to support their contrary conclusion.

However, that case involved the suspension ofan employee pending an investigation based on

I

aJleged sexual harassment. 939 S.W.2d 546,551 (Mo.Ct.App. 1997). The Missouri Court of Appeals found that the employee must be given notice ofthe allegations against him. [d. This

case is clearly inapposite. Firstly, the Ordinance at issue gives notice of the alleged misconduct,
I because a violation of Ordinance No. 1722 necessarily involves the hiring ofunauthorized workers. Secondly, in Cade, the court of appeals cited to a Missouri statute, which required "that

I in the case of any suspension over five days in length, an employee so requesting shall be furnished with a copy of 'a statement in writing specifically setting forth the reason for such suspension.'" 939 S.W.2d at 551 (quoting Mo.Rev.Stat. § 36.270) (emphasis in original). No

I such similar statute is present in the case at bar. 52

Gase 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 53 of 57

authorized to work in the United States. See Ordinance No. 1722, § 2. The pre-deprivation

:procedure provided is in line with the factors articulated in Mathews, and fairly balances the

~

interests of the government with the potential wrongful deprivation of a business entity's business

I

license.

The Court next considers Plaintiffs assertion that the post-deprivation process is

I

:in.sufficient. Having found that the pre-deprivation process was sufficient, it is not clear that any

I

fUrther analysis is required. However, both parties present arguments on the sufficiency or lack

thereof, ofthe Ordinance's post-deprivation process, and therefore the Court will briefly address

I

it As recognized by Plaintiffs, the Ordinance permits appeal to the City's Board ofAdjustment.

I

Ordinance No. 1722, § 5E. This provision further provides for appeal from the Board of

I

Adjustment to the St. Louis County Circuit Court. Plaintiffs contend that this reference alone is

insufficient to satisfy the constitutional requirements, because it does not detail ''what procedures

I

will be afforded as part of a challenge, the standards for reviewing a challenge and the criteria for

I

sustaining or rejecting the challenge." Pis. Memo. in Opposition to Del Mot. for Summ. Judg.,

36. Plaint:iffS proposed requirements are higher than those mandated by the due process clause.

I

Plaintiffs cite to the case ofMartinez v. Ibarra, where a Colorado district court judge held that a

I

Minnesota regulation which :fuiled to articulate "clear, written standards" for its review

I

procedures failed to comply with due process. 759 F.Supp. 664, 668 CD.Colo. 1991). However,

that case is not analogous to the present case. The Ordinance at issue clearly delineates the

I requirements placed upon a business entity, and further articulates the process by which a business I entity may challenge a finding of a violation by the City. While the Ordinance does not state every

detail, this is not the requirement the Colorado court had in mind, and is not what is required by
I dlle process. "[T)he fundamental requirement of due process is the opportunity to be heard 'at a
I 53

Case 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 54 of 57

meaningful time and in a meaningful manner.'" 424 U.S. at 333 (quoting Armstrong v. Manzo,

380 U.S. 545, 552 (1965)). The Ordinance complies with this requirement.

I

4. Violation of Missouri Law

I

PlaintiffS final assertion is that the Ordinance violates Missouri law, because it imposes the

sanction ofrevocation ofa business license in excess ofthe authority granted a fourth class city.

I

Plaintiffs assert that Ordinance No. 1722 violates Missouri law because: "(1) it is not a licensing

I

law, and yet imposes revocation of a business license as a sanction, and (2) it does not provide for

I

due process prior to the revocation of a license." PIs. Memo. in Opposition to De! Mot. for

Summ. Judg., 36-37. The Second assertion requires no further discussion. The Court has

I

conclusively decided the procedural due process question, and Plaintiffs have cited to no

I

provision of Missouri Law which imposes more stringent procedural requirements on a City, in

excess of those mandated by the due process clause ofthe United States Constitution.

I

The Plaintiffs main argument is that the suspension ofbusiness license may only be

I

imposed in conjunction with the violation ofa business licensing law. The Parties disagree over

whether the Ordinance in question is a licensing law or not. The Court. has previously addressed
I this question in the context ofpreemption. The Ordinance in question requires business entities to

I

comply with the Ordinance's obligations as a condition precedent to the receipt of, or continued

I

possession of a business license. This is clearly a licensing law. Missouri law states that:

The mayor and board ofaldermen shall have power and authority to regulate and to

I

license and to levy and collect a license tax on auctioneers, druggists, hawkers, peddlers, banks, brokers, pawnbrokers, merchants ofall kinds, grocers, confectioners,

restaurants, butchers, taverns, hotels, public boardinghouses, billiard and pool tables

I

and other tables, bowling alleys, lumber dealers, real estate agents, loan companies, loan agents, public buildings, public halls, opera houses, concerts, photographers, bill

posters, artists, agents, porters, public lecturers, public meetings, circuses and shows,

I

for parades and exhIbitions, moving picture shows, horse or cattle dealers, patent right dealers, stockyards, inspectors, gaugers, mercantile agents, gas companies, insurance

companies, insurance agents, express companies, and express agents, telegraph
I

54

\,.,ase 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 55 of 57

companies, light, power and water companies, telephone companies, manufacturing

and other corporations or institutions, automobile agencies, and dealers, public

garages, automobile repair shops orboth combined, dealers in automobile accessories,

l

gasoline filling stations, soft drink stands, ice cream stands, ice cream and soft drink stands combined, soda fountains, street railroad cars, omnibuses, drays, transfer and

all other vehicles, traveling and auction stores, plumbers, and all other business, trades

I

and avocations whatsoever ....

Mo.Rev.Stat. § 94.270.1. This Missouri law gives the Defendant City the authority to regulate

I

rod license all businesses within the City ofValley Park. Furthennore, this authority, granted to

I

the City by Missouri law, was held by the Missouri Supreme Court to include the power to

revoke. See Horton v. Clark, 293 S.W. 362, 366 (Mo. 1927) ("[T]here is no possible distinction

I

in this respect between refusing to grant a license and revoking one already granted. Both acts

I

are an exerciseofthe police power."); see also McClellan v. Kansas City, 379 S.W.2d 500, 504

I

(Mo. 1964) ("The police power is such that any trade, calling, or occupation may be reasonably

regulated in the interest ofthe public welfare ifthe general nature ofthe business is such that,

I

unless regulated, many persons may be exposed to hazards and misfortunes against which the

I

legislative body can properly protect them." (internal citation omitted». The Court concludes

that the City not only has the authority to issue business licenses upon the terms articulated in the

I

Ordinance, it also has the authority to revoke that license upon violation ofthe Ordinance.35 This

I

conclusion further negates Plaintiffs' argument that a city is limited by Missouri statute to

I

imposing a fine ofno more than $500.00 and imprisonment ofnot more than 90 days.

MO.Rev.stat. § 79.470. This statute refers to penalties that may be imposed for ordinance

I

I 35PlaintiftS assertion that the Ordinance is not a licensing law and therefore cannot impose such a penalty would lead to an umeconcilable result. It would allow a City to impose the

ftstrictions against hiring illegal aliens upon business entities, ifthose restrictions were written

I into the same ordinance that provides for the issuance of a business license. However, it would d:Nallow such a result in the case here, where a separate ordinance is passed to place additional

I r~trictions on the issuance of a business license. There is no difference between these two scenarios. Both involve the issuance ofa business license, and therefore both are licensing laws.

55

A95

,-,ase 4:07-cv-OOBB1-ERW Document 129 Filed 01/31/2008 Page 56 of 57

violations in general. However, the specific provisions on licenses clearly allow for the imposition

<If the revocation of a license, thereby making the provision regarding fines and prison time

I

:mapplicable. The Court concludes that the Ordinance at issue does not violate Missouri law.

I

D. CONCLUSION

The Court concludes that Plaintiffs have failed to provide sufficient evidence to create a

I

genuine issue ofmaterial fact on any of the allegations in support oftheir motion for a preliminary

I

injunction. The Ordinance at issue is not preempted by federal law, to the contrary, federal law

specifically pennits such licensing laws as the one at issue. Furthermore, Plaintiffs lack standing
I to bring their claim of an equal protection violation, and in the alternative, they have failed to

I

provide any evidence supporting a constitutional violation on this basis. The Court also finds that

I

Plaintiffs due process claim fails. To satisfY due process, a governmental entity must provide

sufficient pre and post-deprivation process before infringing upon a property right. The

I

Ordinance unquestionably provides such process. A business entity is given an opportunity to

I

contest any complaint against it, and is entitled to challenge any suspension ofa license, an the

way through the judicial process, ifnecessary. Lastly, the Court concludes that the Ordinance at

I

issue does not violate Missouri law. For these reasons, the Court concludes that Plaintiffs' claim

I

for injunctive relief cannot succeed, and judgment is appropriately granted in favor ofDefendant.

I

Accordingly,

IT IS HEREBY ORDERED that Plaintiffs' Motion for Issuance of a Declaratory

I Judgment [doc. #50] is DENIED.

I

IT IS FURTHER ORDERED that Defendant's Motion for Summary Judgment [doc.

#53] is GRANTED.
I

I 56

I I I I I I I I I I
I I I I I I I I

L;ase 4:07-cv-00881-ERW Document 129 Filed 01/31/2008 Page 57 of 57 IT]S FURTHER ORDERED that Plaintiffs' Motion for Summary Judgment [doc. #73]
is DENIED. IT IS FURTHER ORDERED that Plaintiffs' Motion for Sanctions [doc. #117] is
])ENIED. Dated this 31st DayofJanuary, 2008. UNlTED STATES DISTRICT JUDGE
57

I . - .---'."<"./" .'.'.'.'.,~,' .
I

IN THE CIRCUIT COURT OF ST. LOUIS COUNTYt MISSOURI

"t!:tVV.J..

I

Plaintiffs:

Stephanie Reynolds,

I

florence Streeter. Cash Flo Properties, LLC,

James Zhang,

Metropolitan St. Louis Equal

I

H usin 0 Defendant

rtuni Council

City ofValJey Park. Missouri

I

Appellate Number:

o FiliJlg as an Indigent

PH 12= 08

i-C-ou-rt-R-e-po-r-te-r:-_-A-u-d-jo-T-r-lll-ls-C-:ri:""p-t--tr}4=;-:S:-o-u-n-:d-:R-:-e-c-or-:d:-:i.l1-g--Jl1"\T;:r~:~77.:.-:::-.;'~. 8CJ,~~R

Written transen t to be re uestcd

Equipment

clhCUl1

Reporter's Telephone: Not applicable Number of Days of Trial: I

vs.

(Motion arguments only)

Date of Judgment/Sentence:
(Attach II copy) September 20. 2007 and Order of August 3, 2007

Date Post Trial Motion Filed; August 10. 2007 See Attacrunenl A fol' explanation

I

Date Ruled Upon: September 20, 2007, with amended judgment

Date Notice filed: October 1&, 2007

See Attachment A for explanation

(Dille File Stomp)

I

o o Notice of Appeal
Supreme Court of Missouri Co-urt of Appeals: 0 Western C8J Eastern

Southern

I

Notice is given that Plaintiffs Stephanie Reynolds, Florence Streeter, Cash Flo Properties, LLC, James Zhang and Metropolitan St. Louis Equal Housing Opportunity Council appeal from the judgment/decree entered in this action on

September 20, 2007 and August 3, 2007, granting Defendant's Motion to Dismiss and denying Plaintiffs' claim for attorney

fees_

I

Complete if Appeal is to Supreme Court of' Missouri Jurisdiction of the Supreme Court is based On fact that this appeal involves:

I

(Check a.ppropriate box)

o o The validity ofa treal.)' or statute of the United States

Th~ title to any Slate office in Missouri

o 0 The punishment imposed is deatb

The conslruction of the revenue laws of Missouri

o The validity of a statute or provision of the Constitution of Missouri

I

If the basis ofjurisdiction is validity of a United States treaty or statute, the validity of a Missotlri statute or C.onstitutional provision Or construction of Missouri revenue laws, a concise ex.planation, together with suggestions. if desired. is required. Tllis may be filed as part ofOr with this notice of appeal or, ill the alternative, may be filed within ten

days after the notice of appeal is filed by filing if directly with the Clerk of the Supreme Court See Rule 8J.08(b} and (c)

I and Rule 30.0 J(0 and (g). AppelJant's AttorneylBar Number

Respond<:nt's Attomey(s)lBar Number(s)

John J_ Ammann #34308

Of multiple, list all or attach additional sheets)

I See Attachl11ent B for Additional Counsel for Plaintiffs

Eric Martin #27466 See Attachment B for Additional Counsel for Oefendant

Address
I 321 North Spring St. Louis, Mo. 63108 See Attachment B for Additional Counsel for Plaintiffs

I Telephone

314·977-277 8 Fax 314-977-3334

Appellant's Name Stephanie Reynolds, Florence
IStreeter, Cash Flor Properties, LLC, James Zhang. and
I the Metropolitan St. Louis Equal Housing Opportunity Council I Address clo John Ammann
I 321 North Spring

St. Louis, Mo. 63108

tCA (02-02) C~J 20

Address Eric Martin 109 Chesterfield Business Parkway Chesterfield, Mo_ 63005-1233 See Attachment B for Additional Counsel for Defendant Telepbone 636-530-1515 Fax 636·S3()"'lS56
Respondent's Name City of Valley Park, Missouri

Address 320 :Benton ValJey Park, Mo. 63088
I of2

4gB
Rules 3t.l.OI. 81.08. S12.070 RSMo

!4J 002

I

l Telephone
314-977-2778

Telephone
c/o E:ric Martin: 636-530-1515

Brief Description of Case: Plaintiffs brought an action seeking declaratory and injunctive relief, as well as attorneys fees,

I

against the City of Valley Park to enjoin enfon:cment of Ordinance No. I12l (and subsequent amendments) which attempted to regulate illegal aliens as part of the property maintenance code of Valley Park. Valley Pal'k amended ito; property maintenance code to remove the provisions relating to illegal aliens, then moved to dismiss the case as moot. The Circuit Court

gl-anted Defendant's Motion to Dismiss the case as moot on August 3, 2007, but did not rule on the issue of attorney fees. On

I

August to, 2007, Plaintiffs filed a Motion for Reconsideration or Alternatively for an Award of Attorney Fees, claiming the
lawsuit was the catalyst for the City's removal ofthe offending language from me Ordinance. On September 20,2007, the

Circuit Court denied the Morion for Reconsideration 81ld denied Plaintiffs' Motion for Attorney fees. Plaintiffs appeal from the

I

rulings of September 20, 2007, and August 3, 2007.

o Bond Attached

I

Date
ItJ-1 f-o

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I.> : SEP,-:!:O-2007 1G: 62

STL CC'UNTY c; I RCU (T CLERK

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CIRCUIT COURT

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P.DOl/OOt
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JOf\N M. eU.MCR CIRCUIT CLERK. ST. LOuts COUNTY

ISO ORDERED

Attorney Address Phone No. Allomey

Bar No_
Fax No. BarNo.
FuNo. TOTAl. 1'.nn1
4100

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JOAN M. GILMER
CIRCUIT CLERK, ST.lOUIS COUNTY

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Phittll

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I SOORDERED

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CCOPR47 Rev. 5195

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Phone No.

AFax No. 101

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3Jn toe ;§ltlissouri ([ourt of ~ppeaI5

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~a5tern !!listrict

I

STEPHANIE REYNOLDS, et. aI,

)

No. ED90421

)

I

PlaintiffslAppellants,

)

).

vs.

)

I

) CITY OF VALLEY PARK, MISSOURI, )

)

I

Defendant/Respondent.

)

I

ORDER TO SHOW CAUSE

Appellants filed a noti~e of appeal on October 18, 2007 and stated they were appealing

I

from the trial court's judgments ofAugust 3, 2007 and September 20, 2007. After reviewing the record on appeal, it appears to this Court that the notice of appeal is untimely. Under Rule

&1.04(a), the notice of appeal must be filed no later than 10 days after the judgment becomes

I

final. If a party files a timely authorized after-trial motion, the judgment becomes :final at the
expiration of ninety (90) days after the filing of the motion or, if such motion is passed on at an

earlier date, at the later of: (1) thirty (30) days after the entry ofjudgment; or (2) disposition of

I

the motion. Rule 81.05(a).

Here, on August 3, 2007, the trial court entered ajudgment granting Respondent's motion

I

to dismiss and finding there is "no longer a case or controversy or justiciable issue before the Court." Appellants filed a motion for reconsideration. or alternatively, for an award of attorneys'

fees and costs on August 10, 2007. On September 20, 2007, the trial court entered an order

I

denying the motion for reconsideration and motion for attorneys' fees.

It appears the August 3, 2007, judgment became final on September 20, 2007 when the

I

trial court denied the motion for reconsideration. Rule 81.05(a). Therefore, it appears the notice of appeal was due on Monday, October 11 2007. Rule 81.04(a); Rule 44.01(a). Appellants filed

their notice of appeal on October 18,2007 and it appears untimely,

I

Appellants included an attachment to their notice ofappeal in which they contend the

I

"time to appeal should run from the September 20,2007, ruling, which becomes fina130 days 'thereafter. Rule 81.05(a)," To support this contention, Appellants assert the ,August 3, 2007 "

I

I·

I

judgment did not dispose ofall the issues and cannot be viewed as a final judgment because it

I

failed to address their claim for attorneys' fees. Therefore, Appellants argue that the September 20, 2007 judgment finally resolved the claim for attorneys' fees and it became final 30 days later.

Alternatively, Appellants argue that the September 20,2007, ruling was an amended judgment.

I

Rule 74.01 (b) provides that when more than one claim for relief is presented in the

I

petition1 the court may enter judgment as to one or more but fewer than all claims or parties. However, in the absence of a detennination that there is no just reason for delay. "any order or other fonn ofdecisioDt however designated, that adjudicates fewer than all the claims or the

rights and liabilities of fewer than all the parties shall not tenninate the action as to any of the

I

claims or parties ...." Here, the August 3, 2007 judgment granted the Respondent's motion to

dismiss the Appellants' petition. In dismissing the petition, the trial court resolved all claims

I

raised in that petition. Even though the judgment fails to specifically mention attorneys' fees or costs requested in the prayer for relief, this does not mean that it fails to resolve all claims. In

disiiiissing' the entire petition, the trial court is denying the entire prayer-for relief.- '~ ..' ...-

I

Appellants rely upon Rheem Manufacturing v. Progressive Wholesale Sun.ply Co.• 28

S.W.3d 333,343 (Mo. App. E.D. 2000) for their assertion that since the August 3rdjudgment did

I

not resolve the attorneys' fees claim, it was not a final judgment. In Rheem, however, there was a separate claim for prejudgment interest and attorneys' fees that the trial court did not submit to

the jury "because these were matters for the court. t. Id. At the time judgment was entered on the

I

jury verdict, the record showed that the claim for prejudgment interest and attorneys' fees was still under consideration by the court. Id. Here, in contrast, the record does not show that the

court was still considering the request for attorneys' fees contained in the prayer for relief.

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In additio~ it does not appear the September 20, 2007> order is an amended judgment.

AppeUants rely upon Williams v. Wi1liams. 41 S.W.3d 877 (Mo. banc 2001). This case is

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distinguishable from Williams in two significant respects. First, in Williams. both parties had requested findings on child support and the trial court instructed the attorneys to draw a judgment

that included reference to child support. Id. at 878. However. the judgment failed to include any

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findings on child support. Id. Under those circumstances, there was an independent claim for child support not addressed by the trial court and which it clearly intended to address. Second,

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here the trial court did not enter a docwnent denominated a 'Judgment" pursuant to Rule 74.01{a) and thus, there is no amended "judgment."

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Appellant is directed to show cause on or before December 26, 2007, why this appeal should not be dismissed for lack oftimely notice of appeal.

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SO ORDERED.
DArnD:~~~~/_{_l-_D~r~________

-.
~<t.!L

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cc: John Amman

Patricia L. Cohen, Chief Judge

Eric Martin

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IN THE MISSOURI COURT OF APPEALS,

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EASTERN DISTRICT

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STEPHANIE REYNOLDS, ET AL.

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Plaintiffs!Appellants,

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No. ED90421

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vs.

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CITY OF VALLEY PARK, MISSOURI, ) )

DefendantIRespondent. )

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:MOTION FOR VOLUNTARY DISMISSAL

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Appellants filed their notice of appeal in this case on October 18, 2007. On December

11,2007, this Court entered an order directing Appellants to show cause on or before'December

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26, 2007 why this appeal should not be dismissed for lack of timely notice of appeaL Appellants

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hereby volWltarily dismiss their notice ofappeal in this case.

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Jo

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S' Louis University Law Clinic 321 N. Spring Ave.

St. Louis, MO 63108

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314-977·2778 Fax: 31~977-3334

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Docket Entries Results

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Eastern Appellate

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ED90421 - STEPHANIE REYNOLDS, APP V CITY OF VAllEY PARK, RES

This infonnation is provided as a sarvlce end is nQ~ considered an official court record.

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DiSplaying 7 thnI 9 of If teCords for all dockets returned for case ED90421.

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1212612007

Docket Entry: Granted

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. Associated Docket Entries: 12121/2007 - Motion for Dismissal

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DEonctkrye:t Mandate Sent

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Displaying 1 Ihru 9 of 9 records for all dockets retumed for case ED90421.
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2125/2008

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IN THE CIRCUIT COURT OF ST. LOUIS COUNTY, MISSOURI

I Judge or Division:

Case Number: 06CC..()03802

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Hommlble Barbara Wallace, Div. 13
Plaintiffs: Stephanie Reynolds, Florence Streeter, Cash Flo Properties, LLC,

Appetlate Number: Court Reporter:: Rhonda Laurentius

o Filing as an Indigent
o Sound Recording Equipment

James Zhang.

vs. Reporter's Telephone:

Number ofDays ofTria!:

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MetropOlitan St. Louis Equal Housin 0 ortuni Council Defendant

City ofVaJley Park, Missouri

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314..() I5-8070
Date ofJudgment/Sentence: (Attach a copy) October 16, 2007

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Date Post Trial Motion Filed: None

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Date Ruled Upon: Not applicable

Date Notice Filed: November 21. 2007

(Date File Star'rIp)

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o Notice of Appeal

0 Supreme Court ofMissouri Court ofAppeals:

Western

[8J Eastern

OSouthem

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Notice is given that Plaintiffs Stephanie Reynolds, Florence Streeter, Cash Flo Properties, LLC, James Zhang and Metropolitan St. Louis Equal Housing Opponunity Council appeal from the judgment/decree entered in this action on

October 16 2007, denYin£ Plaintiffs' Motion to Show Cause and for ContcIllpt

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Complete if Appeal is to Supreme Court ofMissouri Jurisdiction ofthe Supreme Court is based on fact that this appeal involves:

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(Check appropriate box)

o The validity ofa treaty or statute ofthe United States o The punishment imposed is death

0 The title to any state office in Missouri 0 The construction oftbe revenue laws ofM"lSSOuri

o The validity ora statute ocprovision ofthe Constitution ofMissouri

If the basis ofjurisdiction is validity of a United States treaty or statute, the validity ofa Missouri statute or

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Constitutional provisiop or cOnstruction of Missouri revenue laws, a concise explanation, together with suggestions, if desired, is required. This may be filed as part ofor with this notice ofappeal oc, in the alternative, may be filed within ten

days alter the notice ofappeal is filed by fiJing it directly with the Clerk of the Supreme Court- S~e Rule 8J.08(b) and (e)

•

and Rule 30.01(t) and (g).

I AppeIJanfs AttomeylBar Number John J. Ammann #34308

Respondent's Anomey(s)/Bar Number(s) (Ifmultiple. Jist aU or attach additional sheets)

See Attachment B for Additional Counsel for Plaintiffs
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Address

I 321 North Spring St. LOllis, Mo. 63108 See Attachment B for Additional Counsel for Plaintiffs

l Telepbone

314-977-2n 8 Fax 314-977-3334

I Appellant's Name Stephanie Reynolds, Florence
IStreeter, Cash Flo Properties, LLC. James Zhang. and the Metropolitan St. Louis Equal Housing Opportunity
I Council

IIAddress c/o John Ammann 321 North Spring

St. Louis. Mo. 63J08

'Bric Martin #27466 See Attachment B for Additional Counsel for Defendant
Address Eric Martin 109 Chesterfield Business Parkway Chesterfield, Mo_ 63005.1233 See Attachment B for Additional Counsel for Defendant Telephone 636-530-1515 Fax 636-530-1556
Respondent's Name City ofYalley Park, Missouri

Ad~
320 Benton Valley Park, Mo. 63088

A106

ICA (02.02) CRJ20

I of 2

RuJes30.01. 81.08, SI2.070RSMo

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Telepnone 314-977-2778

Telephone
clo Eric Martin: 636-530-1515

Brief Description of Case; Plaintiffs brought their MotioIl to Show Cause and for Contempt after the City ofValJey Park

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adopted Ordinance No. 1722. Plaintiffs alleged this Ordinance was substantially identical tD Ordinance No. 1715 which was held invalid earlier in this action. The relevant ordinances attempt to regulate illegal aliens who may be present in the City of

Valley Park This Court's judgment invalidating Ordinance No. 1722 is on appeal [0 this Court in No. ED 89659. The Circuit

Court heard evidence and argument on the issue ofcontempt on September 20,2007, and issued its ruling in favor of

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Defendants on October 16,2007. Date ofAppeal Bond

Not licable

o Bond Attached

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Signature tto

Date
/f~ ~/-o 7

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I In the
I CIRCUIT COURT I of St. Louis County, Missouri
Stephanie Reynolds. et al
PI8intiff(s)
I vs. I City ofValIey Park, et at
Defendant(s)

10/16107 06CC-3802
DMsb1

__---- ................... ..

ORDER
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Plaintiffs Motion to Show CauselContempt heard and denied.

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cc: Parties ofrecord

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fORDERED

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IN THE CIRCUIT COURT OF THE COUNTY OF ST. LOUIS

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STATE OF MISSOURI

STEPHANIE REYNOLDS, et aI.

)

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Plaintiffs,

) )

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and

JAMES ZHANG~

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Intervenor.

)

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) Cause No. 06-CC-3802

)

) Division No: 13 )

FILED

)

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v.

)

)

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CITY OF VALLEY PARK. MO. et al.

) )

Defendants.

)

AUG I 6 2007
JOAN M. GILMER CIRCUIT ClERK. ST. LOUIS CQUNlY

I PLAINTIFFS' MOTION FOR ORDER TO SHOW CAUSE AND CONTEMPT

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Come now Plaintiffs Stephanie Reynolds, Kobasa, Inc., d/b/a Valley Deli, Florence

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Streeter, Cash Flo Properties, and MetropoHtan 81. Louis Equal Housing Opportunity Counci4

by and through CounseJ, and for their Motion for Order to Show Cause and Contempt against

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Defendants, state as follows:

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1 Plaintiffs filed a complaint for declaratory and injunctive relief in this action

challenging Valley Park Ordinance No. 1708, and later Ordinance No. 1715 after the City

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repealed Ordinance J708 and replaced it with Ordinance No. 1715. Both ordinances attempted

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to regulate the presence of"illegal aliens" in the City ofValJey Park by imposing penalties on

landlords and businesses.

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2. While this litigation was pending. on February 5,2007, the Board ofAldermen

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approved. and the Mayor later signed, Ordinances No. 1721 and No. 1722 which purported to

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1

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repeal Ordinance No. 1715. Ordinance No. 1721 (which was later amended to eliminate

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wording r.elating to illegal aliens) attempted to regulate landlords in renting to illegal aliens, and

Ordinance No. 1722 attempts to regulate businesses in hiring of illegal aliens. When initially

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adopted, Ordinance No. 1721 and No. 1722 stated they would not be effective until the lifting of

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the injunction in this litigation, presumably so as not to be in conflict with the court's rulings

regarding the earlier ordinances. Th&e were several subsequent efforts to amend Ordinance No.

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1721 and No. 1722 before August 9, 2007, incluiling one ordinance adopted on February 11,

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2007, (two weeks before the scheduled hearin.g in this litigation) designed to amend the effective

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date of Ordinance No. 172) to purportedly put it into immediate effect. Thereafter, on August 9,

2007, in a meeting called with less than 24 hours' notice, Defendants adopted Ordinance

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No. 1736. amending the terms of Ordinance No. 1722 to provide that it too was effective

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immediately. See Ordinance No. 1736. which restates Ordinance 1722 in full, attached hereto as

ExhibitA.

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3. At the hearing on the Plaintiffs' Motion for Judgment on the Pleadings on March 1,

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2007, Eric Martin, the Valley Park City Attorney, testified that the "substance" of Ordinance No.

1722 ·'is virtually identical" to the substance of Ordinance No. 1715. Transcript p.48-49,

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March 1, 2007. An attorney for the City also admitted that: "The employment provisions have

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not been changed in any of the statutes and J would not represent to the Court that there is a

substantial change in the employment pmvisions.: Transcript p. 12-14, March 1.2007.

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Transcript Excerpts are attached hereto as ExlUbit B.

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4. After adopting Ordinance No. 1721 and No. 1722 on February 5, 2007 (three weeks

before the scheduled hearing), Defendants argued that Ordinances No. 1708 and No. 1715 were

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moot because the City had adopted the new ordinances in place of No. 1708 and No. 1715 which

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tbe new ordinances had purportedly repealed.

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S. This Court entered its Findings ofFacts, ConcJusions ofLaw. Order and Judgment on

March 12,2007, declaring both Ordinances No. 1708 and No. 1715 void for violating Missouri

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law, and permanently enjoined the Defendants from enforcing either ordinance. The Court's

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judgment did not rule on the validity of Ordinance No. 172 I or No. 1722.

6. In pertinent part, this Court's Judgment, in addressing Detendants' mootness

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argument, stated that "the new ordinances are 'sufficiently similar' to the old ordinances in that

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they are directed at the same class ofpeopJe and conduct and include some of the same penalties.

Given that tbe substance of the new ordinances is the same, the Court concludes the challenged

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conduct will continue:' Findings of Fact, Conclusions of Law, Order and Judgment, p. 5.

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7. The Court specifically heJd that Ordinance No. 1715 conflicted with Section 79.470 of

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the Missouri Revised Statutes in that it penalizes a violation by suspending a business' pennit to

operate.

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8. In adopting Ordinance No. 1736 on August 9,2007. to make Ordinance No. 1722

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immediately effective, Defendants have violated the Court's Judgment of March 12,2007, in that

the Court had enjoined the City from enforcing a "virtually identical" ordinance, No. 1715.

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Ordinance No. 1722 and No. 1736 bear the same fatal flaw as Ordinance No. 1715 in that they

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impose penalties far in excess of that allowed by Missouri Jaw, With respect to the legal flaw

that is the subject of the Court's March 12 Judgment, Defendants have effectively simply

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renumbered and reenacted the Ordinance already held unlawful.

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9- Defendants had full knowledge of the contents of the Court's Judgment when they

adopted Ordinance No. 1722 and Ordinance No. 1736, and acted willfully and in contempt ofthe
I Court's Judgment.

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3
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10. The Court's Findings of Fact, Conclusions of Law) Order and Judgment has been
appealed by the Defendants, with a cross appeal by Plaintiffs of the issue of attorney fees. Briefs
have not yet been filed in the appeal. II. Defendants have not sought a stay of the Court's Judgment 12. This Court retains jurisdiction to enforce its Judgment while the judgment is being
appealed. 13. Plaintiffs have no adequate remedy at law. Wherefore, Plaintiffs pray this Court issue an Order to Show Cause and to find
Defendants in contempt for adopting and enforcing Ordinance No. 1722 and Ordinance No. 1736 which are virtually identical to the Ordinance enjoined by this Court, imposing appropriate
punishment, enjoining enforcement of Ordinances No. 1722 and No. 1736, for attorney fees and
for such other and further relief as may be deemed appropriate.

I I I I I I I I 4 I

LO S UNIVERSITY LEGAL CLINIC John . Ammann, #34308 ammannjj@SLU.edu Susan McGraugh, #37430 mcgraugh@SLU.edu 321 North Spring St. Louis, MO 63108 (314) 977-2778 Facsimile: (314) 977-3334
A112

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3Jn tbe Jlf[t~~ouri <!Court of ~ppeaIs'

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Qfastern 1J.Bts'trtct

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STEPHANIE REYNOLDS, et. al,

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No. ED90604

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- - - - -.. ~-- -_._- -

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VS.

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CITY OF VALLEY PARK, MISSOURI,

) )

Respondent.

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ORDER TO SHOW CAUSE

-,-_ . ..,- ,,--

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After final judgment. Appellants flled a motion for contempt with the trial court. The

court entered an order denying this motion. Appellants then appealed from this order. The order

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denying the motion for contempt may be a "special order after fmal judgment," which is appealable under section 512.020(5). RSMo Cum. Supp. 2006. However, to be appealable, such

an order must still be denominated 'Judgment" as required by Rule 74.01(a). Brooks v. Brooks,

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98 S.W.3d 530, 532 (Mo. banc 2003). Unless it is denominated ')udgment/' it not final and appealable. City ofSt. Lows v. Hughes, 950 S.W.2d 850 (Mo. banc 1997).

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Appellant is directed. to file a supplemental legal me containing a copy of a judgment that
complies with Rule 74.0 1(a) or show cause on or before March 14, 2008 why this appeal should

not be dismissed for lack ofa final, appealable judgment. Appellant may not request that the

I

circuit court enter a judgment under the doctrine ofnunc pro tunc, which is an improper way to convert an order into a judgment. Brooks, 98 S.W.3d at 532. Appellant may ask the circuit court

to enter a judgment that complies with Rule 74.01 (a). In the event that the circuit court enters

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such a judgment, this Court will treat the notice of appeal as prematurely filed under Ru1e 81.05(b).

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~g(o~ SO ORDERED
DATED: -f.,

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\
cc: 10hn Amman

Eric Martin
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Patricia L. Cohen, Chief Judge
A113

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 IN THE MISSOURI COURT OF APPEALS EASTERN DISTRICT

APPEAL NO. ED89659

STEPHANIE REYNOLDS, et al. Plaintiffs - Respondents - Cross-Appellants
v. CITY OF VALLEY PARK, MISSOURI, et al. Defendants - Appellants - Cross-Respondents

On Appeal from the Circuit Court of the County of St. Louis State of Missouri
The Honorable Barbara W. Wallace

BRIEF OF APPELLANTS WITH REGARD TO RESPONDENTS' CROSS-APPEAL ON THE ISSUE OF ATTORNEY'S FEES

Kris W. Kobach

Louis J. Leonatti

University ofMissouri -

Leonatti & Baker, P.C.

Kansas City School of Law 123 East Jackson Street

5100 Rockhill Road

P. O. Box 758

Kansas City, MO 64110-2499 Mexico, MO 65265

Phone: 816-235-2390

Phone: 573-581-2211

Fax: 816-235-5276

Fax: 573-581- 6577

Eric M. Martin 109 Chesterfield
Business Parkway Chesterfield, MO
63005-1233 Phone: 636-530-1515 Fax: 636-530-1556

ATTORNEYS FOR DEFENDANTS APPELLANTS CROSS-RESPONDENTS

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TABLE OF CONTENTS

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Page No.

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TABLE OF AUTHORITIES...................................................... III

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POINT RELIED ON. ...... ... .. ... .... ... ..... ..... ..... ..... .. .. ... .... .... ......

1

ARGUMENT.......................................................................

2

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CONCLUSION.....................................................................

11

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11

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Cases

TABLE OF AUTHORITIES

Page No.

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Baumli v. Howard County, 660 S.W.2d 702 (Mo. 1983)............ .

1-8

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Bernheimer v. First National Bank of Kansas City, 225 S.W.2d 745 (Mo. 1949) ............................................... .

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Client Services, Inc. v. Missouri Coordinating Board

for Higher Education, 30 S.W.3d 194 (Mo. App. E. D. 2000) ...... .

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Law v. City of Maryville, 933 S.W.2d 873 (Mo. App. W. D. 1996).

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Mayor, Councilmen, & Citizens of the City of Liberty v. Beard,

636 S.W.2d 330,331 (Mo. bane 1982)................................... .

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Simasi v. City of Fenton, 659 S.W.2d 532 (Mo. App. E. D. 1983)...

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Temple Stephens Co. v. Ronald Westenhaver, 776 S.W.2d 438

(Mo. App. W. D. 1989)..................................................... .

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The David Ranken, Jr. Technical Institute v. Boykins,

816 S.W.2d 189, 193 (Mo. bane 1991)................................... .
I Tillis v. City of Branson, 975 S.W.2d 949 (Mo. App. S. D. 1998),

I

Note (1) ........................................................................ .

V.M.B., D.D.S. v. Missouri Dental Board, 74 S.W.3d 836

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(Mo. App. W. D. 2002) ..................................................... .

3 1,5 7 3 4-5 9 8-9
1-4, 7-8
1,5

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Missouri Statutes

Section 527.100, R.S.Mo......................................................... . 2-3, 5-6
I United States Statute

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42 USC, § 1983 .................................................................... . 9

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POINT RELIED ON

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I. THE TRIAL COURT'S DENIAL OF RESPONDENTS' REQUEST FOR

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ATTORNEY'S FEES SHOULD BE AFFIRMED BECAUSE THE APPELLANT,

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CITY OF VALLEY PARK, MISSOURI, IS A POLITICAL SUBDIVISION OF

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THE STATE OF MISSOURI, AND MISSOURI'S DECLARATORY

JUDGMENT ACT DOES NOT AUTHORIZE AN AWARD OF ATTORNEY'S

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FEES AGAINST A POLITICAL SUBDIVISION OF THE STATE OF

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MISSOURI.

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Baumli v. Howard County, 660 S.W.2d 702 (Mo. 1983).

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Tillis v. City ofBranson, 975 S.W.2d 949 (Mo. App. S. D. 1998), Note (1).

Client Services, Inc. v. Missouri Coordinating Board

I

for Higher Education, 30 S.W.3d 194 (Mo. App. E. D. 2000).

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v'MB.} D.D.S. v. Missouri Dental Board, 74 S.W.3d 836 (Mo. App. W. D. 2002).

I

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1

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ARGUMENT

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RESPONDENTS' REQUESTFOR ATTORNEY'S FEES

I

Respondents advocate the novel theory that a municipal legislative body

should be held liable for attorney's fees when it enacts ordinances. Respondents

I

cite no precedent dealing with this particular fact situation. Rather, they attach the

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City of Valley Park's insurance policy to the Appendix to their Brief, and then cite

I

to the Court decisions which are not authoritative.

To permit a Court to assess attorney's fees against a legislative body for
I passing an ordinance would have a chilling effect on the separation of powers.

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The Respondents have consistently maintained throughout this lawsuit that

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they are asserting a single claim under the Missouri Declaratory Judgment Act.

I

The "wherefore clause" and request for relief in the Respondents' Second

Amended Petition seek to recover attorney's fees for attorneys who are handling
I this matter on a pro bono basis. Such relief is not available against a political

I

subdivision of the State of Missouri under the Missouri Declaratory Judgment Act.

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See Baumli v. Howard County, 660 S.W.2d 702 (Mo. 1983) and Tillis v. City of

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Branson, 975 S.W.2d 949 (Mo. App. S. D. 1998), Note (1).

Respondents have voluntarily dismissed the allegation that the Valley Park
I Board of Alderman violated the Missouri Open Meetings Law.

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Section 527.100, R.S.Mo., permits the Circuit Court to award costs "as may

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seem equitable and just." Missouri follows the American Rule which requires each

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2

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I party to bear their own attorney's fees unless there is statutory authorization or a

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contractual agreement which permits the recovery of attorney's fees. See Mayor,

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Councilmen, & Citizens ofthe City ofLiberty v. Beard, 636 S.W.2d 330, 331 (Mo.

I

bane 1982).

The Mayor decision involved the annexation of five (5) square miles of land
I by the City of Liberty. The Appellant cited the Missouri Declaratory Judgment

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Act, Section 527.100, R.S.Mo., as authority for the award of attorney's fees. The

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Missouri Supreme Court rejected this argument, and limited the decision in

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Bernheimer v. First National Bank ofKansas City, 225 S.W.2d 745 (Mo. 1949), to

its facts. Bernheimer involved a determination of the meaning of the "lawful
I issue" clause of a Will. The Court permitted an allowance of attorney's fees in this

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Will construction case. The trial determined that special circumstances existed

I

which permitted the award of attorney's fees as "costs", The Mayor decision,

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Baumli v. Howard County, id., and Tillis v. City of Branson, id., all specifically

hold that there must be express statutory authority to permit the recovery of
I attorney's fees against a political subdivision of the State of Missouri. Each of

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these Appellate decisions clearly holds that Section 527.100, R.S.Mo., does not

I

provide the statutory foundation required to award attorney's fees. The decision in

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Tillis succinctly sets forth the governing precedent:

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3

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I "Although the basis of this opinion is limited to the duty of a

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Circuit Court in entering the judgment after a mandate, attorney's fees are not assessable as costs against the state in the

absence of statute explicitly providing for such assessment. A

I

city is a subdivision of the state, therefore, attorney's fees cannot

normally be recovered from such an entity." 975 S.W.2d at p.

I

951, Note (1).

At paragraphs 16 and 19 of their Second Amended Petition, the Respondents
I have judicially admitted that the City of Valley Park is a City of the Fourth Class

I

and a political subdivision of the State of Missouri. Respondents have also

I

judically admitted that Mayor Whitteaker is sued in his official capacity. The other

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individual members of the Board of Aldermen who were named as defendants

have been dismissed by the Circuit Court as parties.
I Baumli v. Howard County was decided in 1983 by the Missouri Supreme

I

Court. There is a pre-Baumli decision of the Missouri Court of Appeals, Eastern

I

District - Simasi v. City of Fenton, 659 S.W.2d 532 (Mo. App. E. D. 1983) -

I

which recognizes the possibility that attorney's fees may be recovered in "unusual

circumstances" when a court of equity finds it necessary to balance benefits. The

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Court of Appeals in Simasi reversed an award of attorney's fees by the trial court.

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Simasi is not referenced by the Missouri Supreme Court in the Opinion in Baumli.

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Simasi also is not referenced by the Missouri Court of Appeals, Southern District,

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in the Tillis decision. Both Baumli and Tillis were decided after Simasi, and

explicitly hold that attorney's fees may not be awarded against a political

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4

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subdivision of the State of Missouri, pursuant to the Missouri Declaratory

I

Judgment Act.

I

Respondents try to circumvent these holdings by referencing cases which do

I

not deal with the issue on appeal, and in particular, contain no citation to the

Supreme Court's decision in Baumli.
I Subsequent to the Simasi decision, the Missouri Court of Appeals, Eastern

I

District, decided Client Services, Inc. v. Missouri Coordinating Board for Higher

I

Education, 30 S.W.3d 194 (Mo. App. E. D. 2000). The Court of Appeals reversed

I

the trial court's award of attorney's fees in a declaratory judgment action against a

state agency. It held:
I "It is well-settled that attorney's fees are not assessable as costs

I

against the state in the absence of a statute that explicitly provides for such assessment." Baumli v. Howard County, 660

S.W.2d 702, 705 (Mo. banc 1983) ... The Missouri Declaratory

I

Judgment Act, Section 527.100, R.S.Mo., which permits a trial

court to 'make such award of costs as may seem equitable and

I

just,' does not give the trial court express authority to award attorney's fees or other costs against the state."

30 S.W.3d at p. 195.
I The Missouri Court of Appeals, Western District, followed the Client

I

Services' decision, with its decision in VMB., D.D.S. v. Missouri Dental Board,

I

74 S.W.3d 836 (Mo. App. W. D. 2002). This case involved a dentist's application

I

to practice dentistry in Missouri. He had previous convictions for felony

possession of cocaine and misdemeanor possession of marijuana in the State of
I

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5

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I Kansas. The dentist had not revealed these convictions on his application for a

I

license in Missouri. When the convictions were discovered, an agreement was

I

entered into which placed him on probation for five (5) years. The Missouri

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Dental Board notified Blue CrosslBlue Shield after an inquiry about the

disciplinary action which had been taken and the reason for the disciplinary action.
I The dentist then sued the Dental Board seeking damages for negligence, tortious

I

interference with contractual rights, a declaratory relief and an injunction.

I

His claim for attorney's fees was denied. The Court of Appeals affirmed.

I

The dentist cited various statutory provisions including the Missouri

Declaratory Judgment Act to support his theory that he should be awarded
I attorney's fees. The Court of Appeals, in its Opinion, held:

I

"The State argues that these provisions do not help V.M.B.,

because equity is not an exception to the rule requiring statutory

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authority before assessing attorney's fees against a state agency.

The State is correct.

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Attorney's fees may not be assessed against the State unless a

statute expressly provides the authority ... See also Baumli v.

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Howard County, 660 S.W.2d 702,705 (Mo. banc 1983) (holding that § 527.100 did not provide the express statutory authority

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needed to assess attorney's fees against a county)." 74 S.W.3d at p. 842.

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Clearly the established precedent in Missouri is that attorney's fees cannot

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be awarded against the State or one of its political subdivisions under the Missouri

Declaratory Judgment Act.

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6

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I Respondents, in their Brief, cite varIOUS cases which they claim are

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precedent to allow attorney's fees. None of these cases deal with the award of

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attorney's fees against a political subdivision other than the decision in Law v. City

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ofMaryville.

Let's discuss the decision in Law v. City ofMaryville, 933 S.W.2d 873 (Mo.
I App. W. D. 1996). Law involved an award by the trial judge against the City of

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Maryville ordering the City to pay $1,000 in attorney's fees. The case was

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concerned with the passage of a new zoning code which designated property to be

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zoned as "R-2", single family residence. Prior to the passage of the new zoning

code, the real estate in question had been used as a residence and an attached
I building had been used for business-related activities which included an auto repair

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shop. Obviously, the commercial use was grandfathered when the zoning law was

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changed. The City of Maryville claimed on appeal, that the facts did not establish

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"unusual circumstances". The Court of Appeals, in its Opinion, did not cite

Baumli or Tillis. It did note that there was testimony that the City had actively

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interfered with the purchasers of the property, their tenants, and had "scared off'

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tenants and potential purchasers by telling them that the block structure's

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commercial use was limited to an auto repair shop only. The trial court held, and

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the Court of Appeals affirmed, that this action was improper and constituted

unusual circumstances. It relied on the precedent in the Missouri Supreme Court's

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7

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I Opinion in The David Ranken, Jr. Technical Institute v. Boykins, 816 S.W.2d 189,

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193 (Mo. banc 1991), without citing the Baumli or Tillis decisions.

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The David Ranken decision involved a city license tax. Ranken Technical

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Institute had paid the city license tax under protest, claiming that it was a charitable

corporation established in 1907 whose function was to teach young people in
I manual and mechanical trades. It qualified as a charity, and thus was exempt from

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property taxes assessed by the City of St. Louis, the State of Missouri sales and use

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taxes, and the United States' income and excise taxes. It further alleged that the

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City's license tax should not apply to it. The Circuit Court found that Ranken

Tech was not subject to the license tax. The Court of Appeals affirmed this
I holding, and reversed the judgment that granted Ranken an attorney's fee. The

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Missouri Supreme Court, at p. 193 of its Opinion, states:

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"The rule at common law in actions at law is that the successful

litigant is not automatically entitled to an attorney's fee because

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the justice of his claim has been established. Generally, attorney's fees were not awarded ... Missouri has adopted the

American Rule; that is, absent statutory authorization or

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contractual agreement, with few exceptions, each litigant must bear his own attorney's fee ..." 816 S.W.2d at p. 193.

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Missouri courts have limited the exception to those cases involving 'very

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unusual circumstances' or where the natural and proximate result of a breach of

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duty is to involve the wronged party in collateral litigation.

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8

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I The Missouri Supreme Court, noting that the Ranken Tech case involved a

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case of first impression, said that there was no evidence that this was a reckless and

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punitive assessment of the license tax. As a result, there were no unusual

I

circumstances which warranted the award of attorney's fees.

Respondents then tum to the decision in Temple Stephens Co. v. Ronald
I Westenhaver, 776 S.W.2d 438 (Mo. App. W. D. 1989), as justification for an

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award of attorney's fees. What they fail to point out in their brief is that this case

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fell within the exception of special circumstances because fraudulent action was

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taken to deprive an adjoining landowner of notice about a proposed change in

zoning classification. The Court specifically found that the landowner seeking the
I change intentionally omitted listing the Temple Stephens Co., the adjoining

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property owner, as an affected property. Thus, it awarded attorney's fees against

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the wrongdoers, individually, because they had deprived Temple Stephens of its

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legal right to protest a re-zoning application.

It should be clearly noted that the Temple Stephens decision does not involve

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an award of attorney's fees against a political subdivision of the State of Missouri.

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Also, Respondents purposely did not pursue a Federal Civil Rights Act

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under 42 USC, § 1983, which could have resulted in an award of attorney's fees.

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The case at bar is a case of first impression as to whether or not a

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municipality has the authority to enact an ordinance governing occupancy permits

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and employment of individuals who are illegally in the United States of America.

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There is no authority for the award of attorney's fees against a political

subdivision for passing legislation under the Missouri Declaratory Judgment Act

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The legislative act ofpassing an ordinance is not a tort.

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CONCLUSION

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The decision of Judge Wallace denying the Respondents' request for

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attorney's fees should be affirmed.

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Respectfully Submitted,

I LOU J E ATTI (#24011)

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RA ALL P. BAKER (#36579) LEONATTI & BAKER, P.C.

123 EAST JACKSON STREET

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P. O. BOX 758

NlEXICO, MO 65265

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TELEPHONE: 573-581-2211 FAX: 573-581-6577

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ERIC M. MARTIN (#27466)

109 CHESTERFIELD BUSINESS

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PARKWAY CHESTERFIELD, MO 63005-1233

TELEPHONE: 636-530-1515

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FAX: 636-530-1556

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KRIS W. KOBACH UNIVERSITY OF MISSOURI -

KANSAS CITY SCHOOL OF LAW

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5100 ROCKHILL ROAD

KANSAS CITY, MO 64110-2499

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TELEPHONE: 816-235-2390 FAX: 816-235-5276

I ATTORNEYS FOR DEFENDANTS/

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APPELLANTS/CROSSRESPONDENTS

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I

Certificate of Compliance

I

As required by S. Ct. Rule 84.06, I hereby certifY that this brief is

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proportionally spaced, 14 point type, font is Times New Roman, and contains 2,359 words exclusive of the Table of Contents, Table of Authorities, and

Certificates of Counsel. The software used is Microsoft Word 2003. I relied on

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my word processor to obtain the count. Also, a CD Rom of this brief is filed with the written copies. Undersigned counsel further states that a copy of the CD Rom

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has been provided to opposing counsel, that the CDs have been scanned for viruses, and that the CDs are virus-free.

I certifY that the information on this form is true and correct t the best of

I

my knowledge and belief formed after a reaso ble 'nqui

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/onatti

ey for Defendants!Appellants

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Certificate of Service

I hereby certifY that two (2) copies of Appellants' Brief were mailed,

I

postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief, scanned for viruses to: Elizabeth Ferrick, Esq., Bryan Cave LLP, One Metropolitan

I

Square, St. Louis, MO 63102; two (2) copies of Appellants' Brief were mailed, postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief,

scanned for viruses to: Karen Tokarz, Esq., Washington University School of

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Law, Civil Rights & Community Justice Clinic, One Brookings Drive, CB 1120, St. Louis, MO 63108; two (2) copies of Appellants' Brief were mailed, postage

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prepaid this 18th day of March, 2008, along with a CD Rom of the brief, scanned for viruses to: John J. Ammann, Esq., St. Louis University Legal Clinic, 321

North Spring, St. Louis, MO 63108; one (1) copy of Appellants' Brief was mailed,

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postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief, scanned for viruses to: Eric M. Martin, Esq., 109 Chesterfield Business Parkway,

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Chesterfield, MO 63005-1233; one (1) copy of Appellants' Brief was mailed, postage prepaid this 18th day of March, 2008, along with a CD Rom of the brief,

scanned for viruses to: Kris W. Kobach, Esq., University of Missouri Kansas

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City School of Law, 5100 Rockhill Road, Kansas City, MO 64110-2499.

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I further certify that on the 18th day of March, 2008, ten (10) copies of Appellants' brief and a CD Rom were filed with the Missouri Court of Appeals for

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the Eastern District by sending same via Federal Express, standard overnight delivery, to: Laura Thielmeier Roy, Clerk of the Missouri Court of Appeals for the

Eastern District, One Post Office Square, 815 Olive Street, St. Louis, MO 63101.

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ui . eonatti

rney for Defendants/Appellants

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13

 
 ED89659: Stephanie Reynolds, Florence Streeter, Jacqueline Gray, and St. Louis Equal Housing Op... Page 1 of 3

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Opinion Missouri Court of Appeals Eastern
District

Case Style: Stephanie Reynolds, Florence Streeter, Jacqueline Gray, and St. Louis Equal Housing Opportunity Council, Inc., Respondents/Cross-Appellants & James Zhang, Intervenor v. City of Valley Park, Jeffrey Whitteaker, John Brust, Daniel Adams, Randy Helton, Don Carroll, Michael Pennise, Ed Walker, Steve Jake, and J. Michael White, Appellants.
Case Number: ED89659
Handdown Date: 06/03/2008
Appeal From: Circuit Court of St. Louis County, Hon. Barbara W. Wallace
Counsel for Appellant: Louis J. Leonatti, Randall P. Baker and Eric M. Martin
Counsel for Respondent: Kathy A. Wisniewski, Linda M. Martinez, Elizabeth T. Ferrick, Elixabeth C. Carver, Anthony B. Ramirez, Karen L. Tokarz, Marie A. Kenyon, Fernando Bermudez, Jesus G. Ituarte, John F. Young, Susan Woods McGraugh, John J. Ammann, Anthony E. Rothert and Daniel J. Hurtado
Opinion Summary:
The City of Valley Park appeals the trial court's judgment in favor of Stephanie Reynolds, Florence Streeter, Jacqueline Gray and the Metropolitan Equal Housing Opportunity Council, Inc. and in declaring two of the city's ordinances void. Plaintiffs cross-appeal from the trial court's judgment denying their request for an award of attorneys' fees.
APPEAL DISMISSED; CROSS-APPEAL AFFIRMED.
Division Four Holds: The appeal is moot because there is no actual controversy for which this appellate court could grant relief in that the challenged ordinances were repealed and substituted by new ordinances. Accordingly, Plaintiffs cannot prevail on their cross-appeal for attorney's fees.

Citation:
Opinion Author: George W. Draper III, Judge
Opinion Vote: APPEAL DISMISSED; CROSS-APPEAL AFFIRMED. Hoff, P.J., and Sullivan, J., concur
Opinion:
The City of Valley Park (hereinafter, "the City") appeals from the trial court's judgment granting judgment on the pleadings in favor of Stephanie Reynolds, Florence Streeter, Jacqueline Gray, and the Metropolitan Equal Housing Opportunity Council, Inc. (hereinafter and collectively, "Plaintiffs") and declaring two of the City's ordinances void. http://www.courts.mo.gov/courts/pubopinions.nsf/6c38d75d12b7d96c8625661f004bc89e/ae48d50bfe1... 6/3/2008

ED89659: Stephanie Reynolds, Florence Streeter, Jacqueline Gray, and St. Louis Equal Housing Op... Page 2 of 3
Plaintiffs cross-appeal from the trial court's judgment denying their request for an award of attorneys' fees. We dismiss for mootness.
Plaintiffs filed this action, seeking to have two of the City's ordinances, Ordinance No. 1708 and Ordinance No. 1715, declared void and unenforceable because the penalties proscribed therein conflict with Missouri law. Plaintiffs requested a temporary, preliminary, and permanent injunction enjoining the enforcement of those ordinances. Further, Plaintiffs aver a right to attorneys' fees based upon "unusual circumstances."
The trial court issued a temporary restraining order on Ordinance No. 1708 on September 26, 2006. The City then repealed Ordinance No. 1708 on the same day. On September 27, 2006, the trial court issued a temporary restraining order on Ordinance No. 1715. The City repealed Ordinance No. 1715 at some time prior to the trial court's March 7, 2007 hearing.
At the March 7, 2007 hearing, the trial court found Ordinance No. 1708 and Ordinance No. 1715 to be void in their entirety and made the temporary restraining orders permanent. The trial court declined to award Plaintiffs' attorneys' fees as costs pursuant to the Missouri Declaratory Judgment Act, Section 527.100 RSMo (2000). The trial court stated that in litigation against a political subdivision of the State of Missouri, attorneys' fees cannot be awarded to the prevailing party as costs. Both the City and Plaintiffs appeal from this judgment.
"A threshold question in any appellate review of a controversy is the mootness of the controversy." Braveheart Real Estate Co. v. Peters, 157 S.W.3d 231, 233 (Mo. App. E.D. 2004)(quoting State ex rel. Reed v. Reardon, 41 S.W.3d 470, 473 (Mo. banc 2001)). "Because mootness implicates the justiciability of a case, an appellate court may dismiss a case for mootness sua sponte." Reed, 41 S.W.3d at 473. "A cause of action is moot when the question presented for decision seeks a judgment upon some matter which, if the judgment was rendered, would not have any practical effect upon any then existing controversy." Precision Investments, L.L.C. v. Cornerstone Propane, L.P., 220 S.W.3d 301, 304 (Mo. banc 2007). This Court does "not decide questions of law disconnected from the granting of actual relief." State ex rel. Chastain v. City of Kansas City, 968 S.W.2d 232, 237 (Mo. App. W.D. 1998). In deciding whether a case is moot, an appellate court may consider matters outside of the record. Precision Investments, 220 S.W.3d at 304.
While Missouri courts do not decide moot issues, a court has discretion to review a moot case in two instances. Jenkins v. McLeod, 231 S.W.3d 831, 833 (Mo. App. E.D. 2007). The first instance is when a case becomes moot after submission and argument. Id. The second instance occurs "when the case presents an unsettled legal issue of public interest and importance of a recurring nature that will escape review…." Chastain, 968 S.W.2d at 237. "The public interest exception 'is very narrow…and if an issue of public importance in a moot case is likely to be present in a future live controversy practically capable of review, [this] exception does not apply." Jenkins, 231 S.W.3d at 833 (quoting Kinsky v. Steiger, 109 S.W.3d 194, 196 (Mo. App. E.D. 2003)).
We find this case is moot because the enforcement provisions of the ordinances which Plaintiffs seek this Court to review are repealed and have been substituted with new ordinances with new enforcement provisions. Any ruling this Court would make regarding the enforcement provisions of these two repealed ordinances would have no practical effect on any existing controversy. Precision Investments, 220 S.W.3d at 304.
Accordingly, we next look to the two possible instances when this Court may exercise its discretion to review a moot case. The first possibility of the case becoming moot after submission and argument does not exist in this instance. The ordinances were repealed prior to the March 7, 2007 hearing. Hence, the controversy was not live at the time of the hearing and the City did not repeal the ordinances after argument in order to avoid review. The second possibility for this Court's discretionary review of a moot issue pursuant to the public interest exception is not applicable. Under this narrow exception, although the enforcement provisions of the repealed ordinances may recur, it is clear they will not evade appellate review. In re Dunn, 181 S.W.3d 601, 604 (Mo. App. E.D. 2006). Evident at oral argument, all parties recognize the City has issued new ordinances covering the same subject matter as Ordinance No. 1708 and Ordinance No. 1715; although, the enforcement provisions have been modified and these new ordinances are being challenged in this Court in a separate appeal. Hence, this Court declines to exercise its discretionary review of a moot issue.
Plaintiffs cross-appeal from the trial court's judgment, claiming the trial court erred in denying them attorney's fees because they successfully challenged the validity of the City's ordinances. In light of this Court's disposition of the City's direct appeal, we find no error in the trial court's denial of attorney's fees to Plaintiffs. The judgment of the trial
http://www.courts.mo.gov/courts/pubopinions.nsf/6c38d75d12b7d96c8625661f004bc89e/ae48d50bfe1... 6/3/2008

ED89659: Stephanie Reynolds, Florence Streeter, Jacqueline Gray, and St. Louis Equal Housing Op... Page 3 of 3 court regarding attorney's fees is affirmed. The appeal is dismissed and the cross-appeal is affirmed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.
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