A U.S. District Court judge on Monday upheld most of Fremont's illegal immigrant ordinance, striking down only portions of the voter-approved law.
It was a decision that had attorneys from both sides of the issue declaring victory.
Judge Laurie Smith Camp issued a declaratory judgment and permanent injunction declaring void provisions prohibiting the harboring of illegal aliens, providing for the revocation of occupancy licenses and providing for certain penalties following the revocation of occupancy licenses.
Smith Camp wrote those provisions are preempted by the Immigration and Nationality Act and violate the Fair Housing Act.
The rest of Ordinance No. 5165, however, is scheduled to take effect on March 5, said Kris Kobach, the Kansas-based attorney who wrote the ordinance and defended it on behalf of the city against lawsuits by the American Civil Liberties Union and Mexican American Legal Defense and Educational Fund.
"This ordinance is going to have a very big effect on restoring the rule of law in Fremont," Kobach said.
"Starting 14 days from today," he said, "every business in the city is going to need to register in the E-Verify program, city contracts will not be written with companies that do not use E-Verify and occupants in apartments in Fremont will have to provide information to the city and that information will be shared with the federal government."
Smith Camp, referring to a recent U.S. Supreme Court decision on an Arizona law, upheld the employment portion of the ordinance, requiring businesses in Fremont and contractors doing business with the city to register with the federal E-Verify system. Businesses must be registered with E-Verify by May 4, Kobach said.
However, Fremont City Attorney Paul Payne, in a prepared statement, said the city is reviewing the court's opinion and that there would be no decisions on implementation until the council meets Feb. 28.
Still, attorneys from both sides of the issue were declaring a victory of sorts.
"I was very pleased with the decision we got today," Kobach said.
"Overall, 75 percent of the ordinance goes into effect," he said.
"On the housing part or the ordinance," Kobach said, "the city wins on the first half of it and loses the second half.
"The city is allowed to require tenants to get an occupancy license, and the city is allowed to have tenants fill out a form in which they either swear that they are U.S. citizens, or if they are aliens indicate any number that authorizes the alien to be in the United States," he explained. "The city is then allowed to request the federal government to report whether the alien is lawfully or unlawfully in the United States," he continued.
"It's only the final step of the housing section that the judge said the city can't do, and that is revoke the occupancy license.
"Essentially, it appears the way that the judge is looking at it, then the federal government will have that information that an illegal alien is residing at such and such address, and it's up to the federal government to decide what to do, whether they want to come after them and deport them or not," he said.
But Jennifer Chang Newell, a staff attorney with the ACLU's Immigrants' Rights Project, said the stricken parts were "the core provisions" of the ordinance.
"On the housing part, the court struck down the entire prohibition on harboring, and she struck down Fremont's ability to revoke occupancy licenses for anyone based on immigration status, and she struck down the penalty provisions in the occupancy license scheme," Chang Newell said. "The bottom line is that Fremont can't decide who can live in the city and who can't, and Fremont can't say to anybody that they can't live in rental housing in the city of Fremont just because of their immigration status.
"That's the key part," she continued, "the judge is saying the city can't do anything about it. If there's tenants in the city of Fremont who the city may consider not to have lawful immigration status, the city can't do anything about it. The city can't decide that they have to be evicted or that they can't reside in the city of Fremont, and the court made that clear."
"Treating residents of a community as outcast because of an unfounded allegation is contrary to Nebraska's motto of ‘equality before the law,'" ACLU Nebraska legal counsel Amy Miller said in a news release. "This victory should be a signal to other communities that ‘show me your papers' is a phrase that belongs in our history books, not modern law."
Neither side was ready Monday to decide whether they would appeal parts of the ruling that hadn't gone their way.
City Council President Jennifer Bixby said late Monday afternoon she had not yet had time to read the ruling in its entirety.
"While this may be good news for the city in regards to litigation expenses, it is too soon to know if there will be any appeals," Bixby said. "From what I understand, the order puts parts of the ordinance into effect March 5, so the next few weeks will be busy preparing for that deadline."
Fremont voters passed the ordinance on June 21, 2010, and it was scheduled to take effect on July 29, 2010, before the city council decided to delay its implementation until 14 days after legal challenges were settled.