Escondido rental ordinance likely to land in court
North County Times
Tuesday October 10, 2006
By: TERI FIGUEROA - Staff Writer
To pass a law barring landlords from renting to undocumented immigrants, as Escondido did last week, is one thing. Enforcing it is quite another.
It is an issue clearly headed for the courts.
Supporters argue that the new ordinance is built to withstand legal challenges. Opponents maintain that the federal government has exclusive power over immigration laws, and that the courts will strike down any attempts by local or state authorities to usurp that power.
The City Council gave its preliminary approval Wednesday to a law that would require landlords to check the immigration status of renters. The landlords would face punitive action, such as fines, if found to be renting to people in the country illegally.
The proposal targeting illegal immigrants has driven a deeper wedge into the already polarized city, pitting human rights activists and immigration supporters against three council members and their supporters who say that illegal immigrant renters are causing problems for the city. The ordinance says it cannot be invoked on complaints based solely on race or national origin. But much of the public debate on the ordinance has been led by border-watch groups such as the San Diego Minutemen and human rights advocates who say the ordinance is one of thinly veiled racism against Mexican immigrants.
The ordinance is not on the books yet. State law requires the city to take a second vote, planned for Oct. 18. If it passes at that time, the city must wait 30 days before it goes into effect.
Challengers say the first legal challenges will probably come within that period.
The San Diego and Imperial County Chapter of the American Civil Liberties Union plans to sue the city to stop the ordinance, said David Blair-Loy, the lead attorney for the local ACLU chapter.
Escondido City Attorney Jeffrey Epp said Thursday he thinks that if the ordinance lands in court, it will be stand up.
"We think this is the most (legally) defensible way to accomplish the council's policy objective," Epp said.
East Coast case could test waters
The Escondido law is based on one drafted this summer in the Pennsylvania city of Hazelton, a law which itself was first based on a proposed ---- and ultimately rejected ---- ordinance in San Bernardino.
The Hazelton ordinance, although much broader than the Escondido rule, also targets and punishes landlords who rent to those in the country illegally.
Passed in September, the Hazelton ordinance is already in federal court, landing there after the ACLU in Pennsylvania and others there challenged it.
For the city of Escondido, it's one to watch.
"Our caution would be to be careful who you tether your boat to, because if Hazelton's buoy goes down, there are a whole lot of cities that are going to go down," said Witold Walczak, the ACLU attorney in Pennsylvania.
The arguments raised by those challenging the Hazelton ordinance are essentially the same as those challenging the Escondido law. Bottom line, they say, is simple: Federal law trumps local law.
Blair-Loy said he believes the law is not enforceable, because the federal government has assumed exclusive rights on immigration issues.
"If you have an exclusively federal issue like immigration, which Congress has specifically dealt with, it's pretty much, that's it, game over," Blair-Loy said. "Nobody else can deal with it. Not cities, not states."
Burden will fall to landlords
Aaron Schwabach, a professor of property law at Thomas Jefferson School of Law in San Diego, said after reading the ordinance that it may not hold up in court because of the federal government's power over immigration law.
"The federal government has reserved the right to enforcement," of immigration laws, Schwabach said. "Sometimes they do delegate enforcement rights, but the state and local authorities can't take that right for themselves."
The professor also questioned just how the city would enforce the law.
"This seems to impose a heavy burden on landlords," Schwabach said in an e-mail. "First, how do they verify a person's eligibility? Do they follow the guidelines used for determining eligibility for employment? What about people who are legally in the U.S., but ineligible to work ---- foreign students, for example, or long-term tourists?"
He said there is also the unaddressed question of what happens if a person's immigration status is OK when they move in, but revoked or otherwise changed while they are renting.
Another big issue, the law professor said, is that landlords would be "taking a big risk in renting to anyone who might turn out to be ineligible," leading property owners to reject applicants they suspect could have immigration issues ---- which could be de facto discrimination, based on race or national origin.
Epp, the Escondido city attorney, said Thursday that those and other issues are questions the city is working to answer.
City talking with anti-illegal immigration group
In Hazelton, a town of 31,000 in coal country in northeastern Pennsylvania, Mayor Lou Barletta said two organizations ---- including the anti-illegal immigration group Federation for American Immigration Reform, or FAIR ---- not only helped redraft the city's law to withstand challenges, but are also representing the city pro bono in fending off lawsuits.
In Escondido, Epp said that the city is in talks with FAIR and other groups to see if they will help in the expected legal battle.
Reached on his cell phone in Washington, D.C., FAIR spokesman Ira Mehlman said he was unsure about talks to help with legal defense in Escondido, but did say he believes the ordinance in both cities will withstand legal challenges.
"If the city of Escondido was going to deport people, that would be violating federal jurisdiction," Mehlman said."But the city can say this is the regulation for doing business (like property rental) in our town."
Since the battle will likely take place in federal court, the legal challenges and responses will likely be similar. But different federal judges could hand down different rulings on each case ---- and a ruling in a federal court on the East Coast would not set precedent for a case on the West Coast.
The only court that could rule in a way that would affect both cities ---- and any of the other three dozen or so cities in the country eyeing similar ordinances ---- is the U.S. Supreme Court.
And that's a court that both sides of the battle on both coasts say they can see the issue heading to someday.