MORE ON THE FARMERS BRANCH LAWSUIT OVER THE IMMIGRANTION-BASED APARTMENT RENTAL ORDINANCE

By FRANK TREJO / The Dallas Morning News
ftrejo@dallasnews.com

As promised, opponents filed a lawsuit on September 4 against Farmers Branch’s latest attempt to ban housing rentals to illegal immigrants.

The action in federal court in Dallas came just five days after U.S. District Judge Sam Lindsay issued a final ruling striking down an earlier version of the city’s rental ban, Ordinance 2903.

The city had already adopted a replacement measure, Ordinance 2952, to be implemented 15 days after Judge Lindsay’s final ruling on the earlier law. Unless a court blocks the newer measure, it will take effect Sept. 13.

But Attorney William A. Brewer III, who represents several apartment building owners and one renter, is asking Judge Lindsay to immediately block implementation. “The details of 2952 are frankly more extreme than 2903,” Mr. Brewer said. He said the measure not only allows the city to enter an area of regulation reserved for the federal government but also violates the equal protection and due process provisions of the Constitution.

An attorney for Farmers Branch said city officials had expected the suit, which he called “more of the same.” “It doesn’t recognize the major differences between the new ordinance and the old ordinance,” Michael Jung said. “The new ordinance defines who can rent an apartment in Farmers Branch by federal law. … It places the judgment call as to who is here legally in the hands of federal government instead of requiring landlords to make that judgment call.”

Unlike the earlier measure, the new one would not require landlords to check prospective tenants’ documents to ensure that they were U.S. citizens or legal residents. Instead, landlords would be allowed to rent an apartment or house to anyone who obtained an occupancy license by paying $5 and swearing he or she was in the country legally. It would be up to the city to check a federal database to determine if the person was indeed a legal resident.

But the lawsuit filed Wednesday says that the database the city plans to use was not designed to determine who is eligible for rental housing and that municipalities are not authorized to use it.

The suit says that the federal Systematic Alien Verification for Entitlements Program, or SAVE, is designed to verify immigration status for various federal and state cooperative programs such as housing assistance, Medicaid and unemployment compensation. The suit further states that SAVE expressly does not determine criteria under which a person is or is not entitled to a benefit or license and “is not, according to the Department of Homeland Security, a complete collection of immigration information on all aliens.”

The city’s first attempt to restrict housing rentals by illegal immigrants was passed in November 2006, but an ensuing lawsuit resulted in a temporary restraining order against it. The city subsequently repealed the ordinance, and voters in May 2007 overwhelmingly approved the replacement Ordinance 2903.

The City Council adopted Ordinance 2952 in January, several months after Judge Lindsay criticized 2903. But the judge has also faulted Ordinance 2952. “The new ordinance is yet another attempt to circumvent the court’s prior rulings and further an agenda that runs afoul of the United States Constitution,” he said in May.