Should Farmers Branch Raise or Fold?

Quitting now on city's anti-immigrant court fight would be pricey.

I don't like the anti-immigrant rental ordinance that the suburban city of Farmers Branch has spent seven years defending in court. I was delighted last month when the 5th U.S. Circuit Court of Appeals struck it down. Last week when I saw white Farmers Branch residents on TV begging their City Council to appeal it to the U.S. Supreme Court, I thought they were fools.

But I did have a problem. Their lawyer is no fool. Michael Jung, the Dallas attorney representing Farmers Branch, has been an important force in Dallas city politics for decades as both a private attorney and an activist. I usually cross his path when he is representing neighborhood groups against developers or City Hall, but, like any top-notch lawyer, he sometimes works it from the other side of the street.

I first got to know Jung when he was a brilliant young crusader with former Dallas City Council member Larry Duncan in a successful fight to give Dallas its first zoning ordinance offering at least some protection and incentive for neighborhood stability. Before that, Dallas operated on the assumption that any neighborhood older than 25 years was "used housing" that needed to be replaced with stick-built apartment blocks and used car lots, a transition that usually enriched a member of the private Dallas Citizens Council if not the actual City Council. This was back in the 1980s when the neighborhood movement here was treated by City Hall as a local incursion of the international communist movement.

Anyway, I knew I had to call Jung the morning after I saw that Farmers Branch council meeting on TV. I didn't say I wanted to call him. I had to call him.

The Farmers Branch ordinance requires both renters and landlords to get licenses from the city in order to enter into a rental agreement. It authorizes city officials to check to see that would-be renters are in the country legally. The ordinance includes measures that would put a landlord out of business if he got caught renting to persons in the country illegally.

The debate that night at Farmers Branch City Hall was whether the city should fold its hand and cry uncle in a court fight that already has cost the city an estimated $6 million in attorneys' fees. A big part of the pain for the public, you could tell from watching, was that the city must pay an additional two to three million the moment it says uncle, because then they're on the hook for the other side's attorneys' fees.

One resident begged them not to throw in the towel: "It would be embarrassing for us to fold our tent up, have two other cities prevail, and then we'd be the laughing stock because we paid $2 million when we didn't have to," he told the council.

Jung told me on the phone the next day that the resident had been a little bit wrong in his construction of things but not entirely. Of the three municipal rental ordinances that have gone to the federal appeals courts, two have been knocked down as unconstitutional, including Farmers Branch. But a month before the 5th U.S. Circuit Court in New Orleans voted to kill the Farmers Branch ordinance, the 8th Circuit Court in St. Louis voted to uphold the same kind of ordinance in Fremont, Nebraska.

And not just sort of the same kind, Jung told me. He said the Fremont ordinance "was copied from the Farmers Branch ordinance with just a few little tweaks."

So we have three anti-immigrant (my term) rental ordinances going to federal appeals courts — Farmers Branch, Texas; Fremont, Nebraska; and Hazelton, Pennsylvania, with varied outcomes. In Fremont, the appellate court last June upheld a law that was almost a clone of the one in Farmers Branch. Then in late July, the judges in New Orleans shot down the Farmers Branch law. Three days later the 3rd U.S. Circuit Court in Philadelphia shot down the Hazelton law, which was not similar to either Farmers Branch or Fremont.

So what does that mean? Jung says it means the issue is right in the target area where the U.S. Supreme Court shops for cases: "One of the main things the Supreme Court looks for when it takes cases is a split in the circuits," he said. "Here we have not only a split in the circuits but a contemporaneous one. All three of these decisions were within six weeks of one another."

And it even gets more splitty than that. The vote of the court in the 5th Circuit to shoot down Farmers Branch was 9-6 and produced a half dozen different opinions, some dissenting, some assenting, some doing a little bit of both. Jung said the opinions of judges on the three panels were based on a wide array of questions. He described the end product as "all over the map."

Jung thinks the extreme division of the appeals court judges on basic constitutionality makes the issue in general and the Farmers Branch ordinance in particular very likely pickups for the Supreme Court.

"The other factor that Farmers Branch is contemplating," he said, "is that the city of Hazelton has already decided to appeal. There is every reason to believe the plaintiffs in the Nebraska case will appeal. So there is a decent chance the Supreme Court is going to take up this issue whether Farmers Branch is part of it or not."

So, brilliant legal mind that I want to be, I wondered aloud why Farmers Branch shouldn't just lie back and let the other cities duke it out at SCOTUS? Farmers Branch could even go on vacation or something. But Jung reminded me that the price for stepping out of the fight for Farmers Branch now is two to three million bucks, due at the moment of saying uncle.

Oh. Yeah.

"Do we want to run the risk that we don't appeal and thereby become obligated to pay a bunch of attorneys' fees," he asked, "and somebody else does appeal and wins and proves to all the world that if we had just kept our nerve we wouldn't have had to pay all these attorneys' fees, plus we would have won and had our ordinance upheld?"

Right. You know what? This is why I do not play poker. Of course, Mike Jung is one of the lawyers who keeps getting paid if Farmers Branch appeals. The other, Jung's partner on the case, is Kansas Secretary of State Kris Kobach, who has inserted himself into these cases all over the country supposedly as a private attorney, not as a state official or politician. (Excuse me for a second while I go stick a finger down my throat.)

Kobach told Farmers Branch that staying in the fight all the way to SCOTUS could cost them about $150,000. Jung told me he thought that number "might be a little low" but not by much.

Of course, to successful lawyers $150,000 is what $150 would be to a journalist — dinner and a show, theirs in Vegas, mine in Richardson. But still. It's what Al Capone would have called "150 large."

I did reach out to Bill Brewer, the lawyer for the plaintiffs against Farmers Branch, leaving for him a question about differences he may see between the Farmers Branch 5th Circuit case and the Fremont 8th Circuit case. I was told he would get back to me. He did not. That either means he didn't want to answer my question or he wrote the message on a golf ball.

I think I wind up in the same place, either way. It's what I said at the top. I do not like the Farmers Branch law. I believe it is mean-spirited and ultimately racist. I was moved by the language of the 5th Circuit Court, providing context for its legal decision, when it said, "This country has a large Latino population and millions of Latinos live here without legal permission. However, the great majority live quietly, raise families, obey the law daily, and do work for our country. For all that they contribute to our welfare, they live in constant dread of being apprehended as illegal aliens and being evicted, perhaps having their families disrupted."

I also found the legal conclusion hard to argue with. I can't imagine an arrangement in which cities can venture out and get in the way of the federal government on what is essentially an aspect of foreign policy.

The court said: "Because the sole purpose and effect of this ordinance is to target the presence of illegal aliens within the City of Farmers Branch and to cause their removal, it contravenes the federal government's exclusive authority over the regulation of immigration and the conditions of residence in this country, and it constitutes an obstacle to federal authority over immigration and the conduct of foreign affairs. The ordinance is unconstitutional, and the judgment of the district court is affirmed."

Yeah. I'm down with that. Then again, I'm just a dinner-and-a-show-in-Richardson guy. The presence of Mike Jung at the defense table in the Farmers Branch case forces me to recognize that more must be at play in the case. At the very least, I can understand the sheer poker-playing dilemma Farmers Branch faces right now in deciding whether or not to pull the plug.

But let's do this. Let's say they do not pull the plug. So they spend another quarter million to stay in the game. Brewer's bills continue to mount. And Brewer wins. Then Farmers Branch is down for what, four million? Five? That's the outcome I'm rooting for. No pain, no gain, man. I just don't want it to be my pain.

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20 comments
jakkwagon
jakkwagon

I totally agree with rcornue - what effing part of illegal don't you understand Jim? Selective enforcement of the law is wrong.........it's either legal or not - there is no grey area here. FB should take this to the highest court of the land and be a model for the rest of the US to follow - they are right and these effing libtards are way outta line....

rcornue
rcornue like.author.displayName 1 Like

Dear Jim,

There is one word that you forgot to mention in your description of the immigration issue. That word is "illegal." In case you forgot, the original term was “Illegal aliens.” Then the term was buffered from its original meaning by becoming “illegal immigrants.” And now, you brazenly drop the term illegal from the discussion entirely & refer to them as “immigrants!” Like the word illegal is just a minor technicality that has become standard issue rhetoric that is to be expected to emanate from U-turn-lefty- leftists. It is an all too familiar pattern that is not lost by anyone that bothers to pay attention to the word bending contortions that the democratic party engages in daily. The word ‘Marriage” is another example; the list goes on & on. . .

billolsen89
billolsen89 like.author.displayName 1 Like

These liberals are always crying things like "the ordinance has cost Farmers Branch $6million to defend" as if people should surrender their principles because the cost to maintain them is too high.

dsmithy3211
dsmithy3211

@billolsen89 Really? That's your argument? How much are you willing to spend to defend your principles? In this specific instance? $10? $100? $1000? In this instance, it's conservatively costing every resident (not every adult taxpayer, mind you) upwards of $200 to defend this. 

Despite what you may think (**rabblerabble**federaldeficit**rabblerabble**), FB's money is finite. $6M spent defending this is either (A) $200/resident not in people's pockets or (B) $6M that can be spent on anything else. Teachers, police officers, new roads. Hell, a new $6M park might even increase property values in FB so that Los Undesirables can no longer afford to live in FB. Win-win.

ginger4v
ginger4v like.author.displayName 1 Like

Good for FB! Once they allow this to happen their crime rate will jump up. Not all illegals are criminal. However look at Dallas, it is a safe haven for illegals and see how many DWI fatality crashes involving illegal imm's occur there?

dsmithy3211
dsmithy3211

@ginger4v I would love to see the whole thought process that was involved with stringing these four sentences together.

lord.max.vonspank
lord.max.vonspank like.author.displayName like.author.displayName 2 Like

Freedom and opportunity for natural borns citizen only. Current policy is racist and incourages greedy invaders. The only flag they salute is money, not red white & blue. These fake 'patriot' stay as long the pay is good.

RageFury
RageFury like.author.displayName like.author.displayName 2 Like

"So we have three anti-immigrant (my term) rental ordinances going to federal appeals courts —"

Fixed it for you:

So we have three anti-Illegal-Alien(my term) rental ordinances going to federal appeals courts —

Obummer
Obummer like.author.displayName 1 Like

@RageFury 

Yo use bez correct.

 

joe010
joe010

What I've wondered about during Farmers Branch's battle is what could have been done with the money spent on the case. My guess is that they will lose and so the total cost will be what? Almost $10 million. FB is not a large city and I would think that this is a large amount to be spent, imo, tilting with the windmills. If they win, then who is going to rent the apts in the city that are vacated by illegal aliens and might their friends decide to move elsewhere as well? How much of their economy will disappear?

Pseudonymph
Pseudonymph like.author.displayName 1 Like

I have great respect for Michael Jung. I observed his logic and expertise as a ZOAC member. I have long admired his ability to communicate complicated stuff to regular folks. In the past, when I have read of Farmer's Branch's rental ordinance, I had respected Farmer's Branch's attempt to chose not to accommodate persons who may have broken the law by entering or remaining in the U.S. illegally. But somehow while reading your piece today, Mr. Schutze, I realized another aspect of this issue. If I were a residential property renter in the city of Farmer's Branch, I would not want additional governmental power intruding into my contractual dealings with a landlord. I realize that there are existing tenant and landlord laws, which exist mostly to protect both parties' rights. It occurs to me that a U.S. citizens born in the U.S. would be subject to obtaining such a "license to reside" [my paraphrasing of the rental permit]. I think that our freedom to reside is a little too sacrosanct for such intrusion. I don't know that I'd be willing to allow yet another governmental intrusion into my life, even if I support Farmer's Branch's attempt to keep persons who enter or remain illegally in our country from residing in Farmer's Branch. Am I correct or incorrect in assuming that this ordinance would apply to legal residents and citizens as well as illegal ones?

sueroedi
sueroedi

@Pseudonymph well the way I read it - it applies to everyone. You can't just apply it to people who "look foreign" so even if your granddaddy was born in the local hospital you'd have to pay a fee and submit to an investigation of your personal records.  Talk about gov't intrusion.

sueroedi
sueroedi

@Pseudonymph the way I read it ALL tenant agreement have to be looked at and licensed so yes everyone would have to pay a fee and get checked out. They couldn't just take a person's word for it. Or just apply it to dark-skinned people with Hispanic names. The ordinance applies, that's how they sort them out.  So if you move and want to rent a new app't you have to go through the process too even if you grandpa was born in the county

Pseudonymph
Pseudonymph

Or was he on the Plan Commission? Was he on ZOAC or CPC?

jerrya1066
jerrya1066

The thing is, the 5th circuit is considered by many to be the most conservative appellate court and they threw this law out as conflicting with Federal law.  If SCOTUS's previous opinions espousing Federalism principals are followed by the conservative majority, then this law stands zero chance of prevailing.  I guess if you are down $3M based on the previous legal advice that you had received to keep challenging decisions that ruled this law to be unconstitutional, what's another 150 large to throw the dice one more time?  

LizzyBorden
LizzyBorden

FOLD. Farmers Branch has become Dallas' crazy ass 2nd cousin once removed no one wants to invite to Thanksgiving dinner. 

gordonhilgers
gordonhilgers

Gee.  It's so good to know that Farmer's Branch is doing the two-step with Kris Kobach, the xenophobic nutwad famous for drawing-up Arizona's fiercely ignorant "papers please" law.  I'd sure like to see Kobach prove his loyalty to the United States by traveling through, say, a thousand miles of hostile desert, dodging human traffickers and all kinds of assorted creepy crawlers just to have a better life. 

We were all shocked and fascinated by the movie, "The Hunger Games", all the time thinking it could never happen here.  But surprise!  It is happening here as people who are essentially refugees from a dysfunctional society get slapped in their faces for "desire for freedom" and "desire for opportunity". 

I can't help but think of John Goodman's performance in "The Big Lebowsky" where, upset that his fellow bowlers aren't following the rules, he stands up and waves a .45 around to get them to comply. 

leftocenter
leftocenter

@JImSX Thank you for sharing the opinion from the 5th Circuit!  I hadn't read it, and wouldn't have, and would have missed such a compassionate and articulate explanation of the human side of immigration. 

gregmarcydagama
gregmarcydagama

That was extremely well written, informative, and, damnit, funny. Excellent piece; I especially appreciated the contradistinctions you made between both FB's position and yours. Nice. ~ / ~ OM 

 
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