Should Farmers Branch Raise or Fold?

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."

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Jim Schutze has been the city columnist for the Dallas Observer since 1998. He has been a recipient of the Association of Alternative Newsweeklies’ national award for best commentary and Lincoln University’s national Unity Award for writing on civil rights and racial issues. In 2011 he was admitted to the Texas Institute of Letters.
Contact: Jim Schutze