In the public library on a warm May evening, Teresa Puga takes a class of four Latina women and one man through English pronouns and verbs.
"We are friends. What is the to-be verb?"
Kris Kobach
Tim O'Hare
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"We are the world," croons Julio Herrera, the class clown. Herrera, a stocky man with mechanic's hands and ceaselessly smiling eyes, hopes to improve his lot by learning English in these free classes. He came to Texas from El Salvador eight years ago under temporary protected status granted because of the destruction wrought on his country by earthquakes in 2001. He is now a maintenance man at a local apartment complex. Learning English, he hopes, will enable him to better understand his duties at work. But he has another, more pressing motive: He wants to be able to converse with his daughters, who were born here and speak only English.
One of them drapes her arms around his neck as she waits for him to finish. The ordinance, he says, has brought more uncertainty into a life already wracked with it. "His daughters have come home from school crying because their best friends have moved from the city," says Rolando Puga, a volunteer teacher and Teresa's brother, who interpreted for Herrera. "They cannot live in this city."
What's more, Herrera's life has for eight years been measured in 18-month increments. Every year and a half, he waits to see if the State Department will renew the protected status of Salvadorean refugees. He doesn't know what he will do if it is revoked. His daughters are Americans. But because the ordinance's collateral damage would afflict citizen children and their undocumented parents alike, should it survive in court then Farmers Branch could no longer be their home.
Within weeks of the passage of the renter's ordinance, the city was hit with lawsuits filed by the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund. Bickel and Brewer Storefront, the pro-bono arm of Dallas' Bickel & Brewer law firm, filed suit on behalf of the owners of three apartment complexes. The firm also sued the city on behalf of Guillermo Ramos, a real-estate attorney who claimed the council's back-room deliberations violated state open-meetings law.
Days later, the city secretary certified the success of a recall petition on the ordinance with some 1,700 signatures. A referendum would be held the following May. Then, on January 11, the day before the ordinance was to go into effect, the state judge in Ramos' open-meetings case blocked the city from enforcing it.
A week later, the council directed the city attorney to draft a new ordinance. Only this time, the council enlisted the brain behind the ordinances challenging the federal government's primacy in immigration. "I got a phone call," says Kris Kobach, former counsel to U.S. Attorney John Ashcroft under President George W. Bush. "And I returned it and said, 'Your ordinance needs to be changed. It's not gonna stand up.'"
On January 22, 2007, the council unanimously adopted a revised ordinance that would still require apartment complexes to verify the lawful immigration status of their tenants, but would use a framework the city claimed was similar to the kind used by the U.S. Department of Housing and Urban Development. Nationally syndicated conservative radio personality Mike Gallagher presented the City Council with a $10,075 check for its legal defense fund, raised by selling shirts that read, "This is America. Please speak English." David Koch, the real-estate attorney and intermediary between IRLI and the council (and who was also preparing to make a run at a council seat), proffered a check for $2,100 on behalf of farmersbranchlegaldefensefund.com.
On the final day of voting, May 12, City Hall saw the largest turnout in Farmers Branch history. Voters approved the new ordinance by a two-to-one margin. Attorneys for the ACLU, MALDEF and Bickel & Brewer quickly filed for another temporary restraining order. A federal judge granted it. The following month, the plaintiffs got a preliminary injunction pending the outcome of a trial.
Determined to craft an ordinance that would survive a legal challenge, the city adopted its third and final ordinance in January 2008 with the help of Kobach. It was due to take effect 15 days after whatever ruling came from the federal court. Two months later, U.S. District Judge Sam Lindsay issued a permanent injunction, deeming the second immigration ordinance an unconstitutional encroachment on a federal prerogative. The City Council vowed its third ordinance would soon take effect. Again, Bickel & Brewer sued the city on behalf of apartment complex owners and succeeded in securing yet another temporary restraining order. By 2009, Farmers Branch was on the hook for a nearly half-million dollar mediated settlement to apartment owners and tenants. It was estimated it had incurred some $2 million in legal fees related to defending the ordinances. In March 2010, another federal judge permanently blocked the city from enforcing its third ordinance. The council voted unanimously to appeal. By that time, the toll was more than $3 million.
The city's doggedness gained it nationwide media attention. By last December, the feds took notice. In an amicus brief to the 5th U.S. Circuit Court of Appeals, attorneys for the Justice Department argued that the city's ordinance rested upon a fundamental misunderstanding of immigration law. The federal program the city intended to use to verify the immigration status of a prospective tenant could tell them whether a non-citizen was subject to removal proceedings, but would not reveal the outcome.
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