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Top of '13: No. 1

Immigration ordinance survives courts, on its way to voters

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The last half of 2013 was an action-packed time for Fremont’s illegal immigrant ordinance, and 2014 promises to be even more eventful as the city gears up for a Feb. 11 special election to decide whether to repeal the ordinance’s housing provisions.

A three-judge panel of the U.S. Eighth Circuit Court of Appeals, in a split decision on June 28, reversed a U.S. District Court ruling that certain rental provisions were preempted by the Immigration and Nationality Act and violated the Fair Housing Act.

Lawyers for the Mexican American Legal Defense and Educational Fund and the American Civil Liberties Union asked the court to rehear the case “en banc,” but the appeals court refused. That decision, issued on Oct. 17, left plaintiffs with a 90-day window in which to petition the U.S. Supreme Court to hear the case. As of this week, no petition had been filed.

If the ACLU and MALDEF make the request, and the high court agrees to hear it, it could be the summer of 2015 before an opinion is issued, City Attorney Paul Payne explained.

Two other communities with similar ordinances – Hazleton, Pa., and Farmers Branch, Texas – are asking the Supreme Court to take up their ordinances, which federal district courts in those regions declared unconstitutional.

Attorney Kris Kobach, who wrote Fremont’s ordinance, is also representing those communities.

Meanwhile, an official with the Fair Housing Center of Iowa and Nebraska told a city council study session on Oct. 15 that the U.S. Department of Housing and Urban Development has concerns about the ordinance.

Tim Butz, assistant director of the Fair Housing Center and a former ACLU official, said Fremont could lose out on future federal funding, and possibly get sued to return previously received grants.

Fremont has received approximately $7.1 million in Community Development Block Grants in the past 15 years, addressing comprehensive revitalization, housing, downtown revitalization and economic development. Federal CDBG funds are distributed to the city through the state.

Butz referred to two letters from HUD officials to the Nebraska Department of Economic Development, critical of the state for, in part, not including the ordinance as an impediment to fair housing choice, and recommending specific actions that the city should take.

“You do have a big target on you, let’s be honest,” Butz said. “They’re not going to forget you. They’re not going to let this ordinance go by without it being addressed by the city. They’re not telling you that you have to repeal it, although I think repealing it would satisfy their concerns. … They’re not saying at this point that the ordinance places you outside compliance with your duty to affirmatively further fair housing.”

City council member Todd Hoppe, two weeks later, introduced an amendment that would do away with the housing portions.

The first reading drew strong reaction from the public; 22 people addressed the council with 17 of them opposed to the repeal.

“You already know what the peoples’ wish was because they told you in a voting booth,” said Bob Warner of Fremont. Warner was the council member who in May 2008 introduced the ordinance, only to see it fail on a 4-4 vote before being passed in a June 2010 referendum initiated by a petition drive.

Jon Wiegert, who helped circulate the petition in 2009, said any council member who voted for the repeal would face a recall effort.

On the other hand, Scott Meister, president of the Greater Fremont Development Council, said Ordinance 5165 has painted Fremont with a difficult-to-overcome image of prejudice and intolerance.

At issue, Hoppe later told the Tribune, is whether the residents of Fremont want to risk the possibility of spending millions of dollars defending the ordinance.

“I’m not against the ordinance itself, I am against foolishly throwing money away if, in fact, it is foolish, and I believe it is because (Ordinance 5165) is ineffective,” Hoppe said.

City staff intended to begin enforcement on Nov. 18 of the housing provisions, requiring renters to pay $5 and acquire occupancy licenses at the Fremont Police Department, but that effort and Hoppe’s proposed amendment were both put on hold the night of Nov. 12 when the council voted to hold a special election, letting the public decide whether to repeal the housing portions.


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