Alan Mansfield [attorney for plaintiffs in Escondido CA anti-immigration ordinance case]: "On October 18, 2006 the City of Escondido adopted local Ordinance No. 2006-38R "Establishing Penalties for the Harboring of Illegal Aliens in the City of Escondido", finding that the state and federal government lacks the resources to properly protect interests of Escondido residents. The need for the Ordinance was supposedly based on a university study that in fact did not study or identify illegal aliens as being a cause of the City's perceived problems, and based on a claim of increased crime when in fact crime in Escondido was down over 25% during the past year.

The Ordinance requires any landlord who leases or rents a dwelling unit in Escondido to provide the City with undefined "identity data" about any tenant upon an unverified "valid complaint" from any person in Escondido that is not based on race or national origin (how that could happen is unexplained). Within 10 business days after receiving notice from the City that the person identified in the Complaint is an "illegal alien" (a term not defined under federal law), the landlord must "correct the violation". Since the violation is "harboring illegal aliens", the only way to correct a violation is to immediately evict anyone found to be an "illegal alien". Landlords must also advise the City of the whereabouts of that "illegal alien" after eviction. The penalties for refusing comply with these requirements are significant — for multiple violations (each day that passes is a separate violation) up to $1,000 per day and/or six months in jail, and an immediate pre-hearing suspension of the landlord's license to do business in Escondido. Since a landlord may need a business license to do business in the City, such a suspension could arguably result in a landlord from being unable to collect rents from any tenant while their license is suspended.

Plaintiffs (two landlords in Escondido, two DOE plaintiffs and the Escondido Human Rights Committee) contend the Ordinance violates numerous federal and state laws, including being preempted by federal immigration laws and state law, violating federal and state anti-discrimination and housing laws, violating due process, equal protection and free speech rights for both landlords and tenants, and also violating the City's police powers and the Contracts Clause of the federal and State Constitutions.

Consistent with the rulings of several other judges nationwide who have issued similar rulings on similar ordinances, on November 20, 2006, the Honorable John Houston of the United States District Court in San Diego issued a written opinion [related documents] confirming his issuance of a Temporary Restraining Order enjoining the Ordinance from going into effect based on the "serious questions" raised by plaintiffs, and setting a preliminary injunction hearing for March 2007.

While the ruling only granted a temporary restraining order and thus was a very preliminary assessment of the merits of the action, plaintiffs believe the issues the Court identified in its ruling will not go away as the action progresses. There are two particular problems that doom this Ordinance. As the Court noted in its ruling, this is an ordinance prohibiting the harboring of illegal aliens. Yet there is a federal immigration statute that directly addresses the issue of harboring (8 U.S.C. Section 1324), which has been interpreted by federal courts and is administered exclusively by the federal judiciary. Moreover, determining if a particular person is lawfully present in the United States is a complex issue addressed by federal immigration laws, and is to be determined in very specific proceedings. Thus, these fields have been preempted by the federal immigration laws. There is little the City can do to correct this fatal defect.

In addition, there are serious due process concerns on all sides of this issue. First, the landlord may simply be unable to obtain the "identity data" requested or have obtained the data for credit reporting purposes and thus not be able to provide such data for other purposes, yet be subject to Draconian penalties for failing to respond to a City's request. The landlord may be put in the impossible position of having to evict a tenant in 10 days, even though under California landlord tenant laws the tenant may be entitled to 60 days' notice or more. In the interim their license is suspended and they may be deprived of the right to collect rents without any hearing for months. And who makes the termination someone is an "illegal alien — the City? A state court in an unlawful detainer proceeding? And who pays the costs of that eviction process, particularly if a court believes someone is not an illegal alien? The City's response is that they are permitted to access the SAVE database maintained by the federal government, but (1) there is no evidence the City can do so, (2) that database is for determining eligibility for federal and state benefits, and (3) the federal government has stated that a lack of verification in the SAVE database is not the equivalent of a determination someone is or is not lawfully present in the United States. Without answers to these basic questions, both landlords and tenants have raised serious due process concerns.

There are other significant unanswered questions raised by the Ordinance. What about the rights of U.S. Citizen children to live and go to school where they want, but they can only rent through their parents? What about the fact undocumented immigrant children have an Equal Protection right to a basic education in the City under Plyer v. Doe? What about the fact any inquiry is based on an unverified complaint that is not supposedly based on race, nationality or other criteria but can be submitted by any person in Escondido (and thus used for extortion), with no opportunity to initially challenge the Complaint before a demand for data is made? To this point the City has not answered these basic questions.

Numerous organizations and newspapers have called for a repeal of this Ordinance, and our hope is that the City will heed these calls. Otherwise this will simply be very expensive and time-consuming litigation with little identifiable benefit for a clearly unconstitutional Ordinance."