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Apartment Residency Regulation aka 2903

In late 2006 the City Council responded to failure of the US Congress to enact comprehensive immigration reform by enacting an ordinance that would require rental property owners to verify people's residency status before leasing to them.  That ordinance was withdrawn under pressure because the Council violated the Texas Open Meeting Act in its enactment.

In early 2007, a substantially identical ordinance, 2903, was enacted concurrent with withdrawal of the voided version.  Community opinion on the subject was decidedly mixed; few argued that the state of immigration regulation in the country was OK but many opposed the City becoming involved because immigration regulation is the exclusive domain of the Federal Government while others pointed out that the City shouldn't spend its money on the country's problem and its failure to correct.

Over time it became clear the the City was acting in material part at the behest of a national anti-immigrant lobby group, FAIR or Federation for American Immigration Reform, and an attorney, Kris Kobach, with connections to the Ashcroft Justice Department and Kansas Republican politics.  Kobach acts as special counsel to the city.  Depositions taken later show that David Koch and Tim O'Hare were instrumental in engaging Kobach.

A group circulated a petition to force the City to hold a referendum to overturn the ordinance.  In an all time record turnout of 6,000 people in May, 2007, the voters endorsed the ordinance 64% to 36%.

An apartment owner then sued the City to prevent implementation of the ordinance.  The Federal district court issued a temporary restraining order.  This began a legal process which ended with the judge agreeing that the ordinance was illegal under the US constitution.  The City then modified the ordinance to require that the prospective tenant come to City Hall to have a City employee perform the residency status verification.  The revised ordinance was tested in district court with the same outcome as its predecessor, i.e., denial.

The City appealed that ruling to the US Fifth Circuit which assigned a three judge panel to hear it; the three judge panel agreed with the district court.  The City again appealed, to the full Fifth Circuit, which confirmed the opinion of the three judge panel, denying the City's arguments.

In August, 2013 the Council voted 3:2 to seek a writ of certiorari from the US Supreme Court, in effect appealing the case for their consideration.  On March 3, 2014, the USSC declined to issue the writ of certiorari, in effect allowing the full Fifth Circuit ruling to stand.  All that remains is to now pay the plaintiff's attorney fee which will be determined by the district court.

Branch Forum consistently opposed having the City involved in apartment residency regulation for the reasons cited above and others.   Even as the losses in court and in our wallet mounted, many legal experts opined that this was not a winnable fight.  While the City fought, it diverted scarce resources away from pressing matters, notably infrastructure maintenance.  Worst of all, the actions of Council gave permission to people to respond to their inner prejudices.

The last step in this process was to settle with the plaintiffs.  This took place June 3 when the council agreed to pay $1.4 MM to the plaintiff attorneys; less than half this amount came from the city's legal defense fund which held $600,000 from one donor.  The remainder came from the general fund, meaning taxpayers.  See DMN article for details and a time line.

We are relieved to put this matter behind us.


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