Fort Walton Beach Council agenda — 11-14-2006‎(workshop)‎ — reading text

local legislations may prohibit the employment of unauthorized aliens, but they may not impose any criminal or civil penalties on those who do. The criminal and civil penalties arc imposed only by Federal Law. Also, the local1aw enforcement may arrest those who employ, recruit. or refer for employment. unauthorized ali~ but the loca11aw ~nforc~menl must immediately tun, over those individuals to Federal Authorities. Should you have any questions, please so advise. i\mi! lmm' I\ dIl1a\ Ii\~\II'IIJI\: Cillll\ Oe5thl~\ 2006\ me", I$\ ocdit'fts6. JO. 06. do.::  Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 12 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PEDRO LOZANO, No. 3: 06cv1586 CARLOS FUENTES, HUMBERTO HERNANDEZ, Judge Munley) ROSA LECHUGA, JOSE LUIS LECHUGA, JOHN DOES 1-4, JANE DOES 1- 2, JOHN DOE 5, A MINOR, BY HIS PARENTS, JOHN DOES 6, A MINOR, BY HIS PARENTS, JANE DOE 3, A MINOR, BY HER PARENTS, JANE DOE 4, A MINOR, BY HER PARENTS, BRENDA LEE MIELES, CASA DOMINICA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, and PENNSYLVANIA STATEWIDE LATINO COALITION, Plaintiffs v. CITY OF HAZLETON Defendant ORDER AND NOW, to wit, this 31 st day of October 2006, the plaintiffs' motion for a temporary restraining order is hereby GRANTED. The Defendant City of Hazleton is prohibited from enforcing the Illegal Immigration Relief Act Ordinance 2006- 18 and Registration Ordinance 2006- 13. A hearing on the 12 II Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 13 of 13 preliminary injunction will be set by further order of court. This temporary restraining order shall remain in effect until November 14, 2006, unless extended by the court. This Order shall take effect upon the posting of a $ 200. 00 security bond by the plaintiffs with the Clerk of Court. BY THE COURT: sl James M. Munlev JUDGE JAMES M. MUNLEY United States District Court 13  Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 1 of 13 IN THE UNITED STATES DISTRICT COURT FOR THE MIDDLE DISTRICT OF PENNSYLVANIA PEDRO LOZANO, No. 3: 06cv1586 CARLOS FUENTES, HUMBERTO HERNANDEZ, Judge Munley) ROSA LECHUGA, JOSE LUIS LECHUGA, JOHN DOES 1-4, JANE DOES 1- 2, JOHN DOE 5, A MINOR, BY HIS PARENTS, JOHN DOES 6, A MINOR, BY HIS PARENTS, JANE DOE 3, A MINOR, BY HER PARENTS, JANE DOE 4, A MINOR, BY HER PARENTS, BRENDA LEE MIELES, CASA DOMINICA OF HAZLETON, INC., HAZLETON HISPANIC BUSINESS ASSOCIATION, and PENNSYLVANIA STATEWIDE LATINO COALITION, Plaintiffs v. CITY OF HAZLETON, Defendant MEMORANDUM Before the Court is plaintiffs' motion for a temporary restraining order.1 IThough defendant received notice of plaintiff's motion for a temporary restraining order, we decline to convert that motion to one for a preliminary injunction under Rule 65( a)( 1) of the Federal Rules of Civil Procedure. The Third Circuit Court of Appeals has held that notice of a motion for a preliminary injunction that offers insufficient time for the adverse party to prepare for a hearing fails to satisfy due process requirements. See Anderson v. Davila, 125 F. 3d 148, 156 ( 3d Cir. 1997) ( holding that "The  Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 2 of 13 Doc. 30). The matter has been briefed and argued and is ripe for disposition. Background In the instant motion, the plaintiffs challenge the legality of two ordinances enacted in Hazleton, Pennsylvania. The first, Ordinance 2006- 13 requires all occupants of rental units ( as those terms are defined in the ordinance) to obtain an " occupancy permit." In order to obtain such a permit, an applicant must provide, inter alia, " proper identification showing proof of legal citizenship and/ or residency." ( PI. Ex. A, Ordinance 2006- 13, Section 7( b) 1( g)). The second Ordinance is entitled the /Iegalm igration Relief Act Supreme Court has observed that [ Rule 65( a)( 1)] requires, at the very least, ' a hearing in which the defendant is given a fair opportunity to oppose the application and to prepare such opposition."') ( quoting Grannv Goose Foods, Inc. v. Brotherhood of Teamsters, 415 U. S. 423, 432 n. 7 ( 1974)); see also Sims v. Greene, 161 F. 2d 87, 88 (" no preliminary injunction shall be issued without notice to the adverse party. Notice implies an opportunity to be heard. Hearing requires trial of an issue or issues of fact."). Here, plaintiff filed a combined motion for a TRO and preliminary injunction seeking to bar enforcement of several ordinances less than two days before the ordinances in question were to take effect. We were compelled to hold a hearing on an expedited basis in order to address the impending harm plaintiffs argued enforcement would bring. Defendant had notice of the motion, but given the lengthy nature of the memorandum in support of that motion, the complexity and fact- intensive nature of the issues involved, and the short amount of time available for defendant to respond, we could not provide a hearing on the merits of a preliminary injunction that would protect defendant's due process rights. Accordingly, we will treat plaintiffs motion as a request for a temporary restraining order. 2  Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 3 of 13 Ordinance, Ordinance 2006- 18. This ordinance is aimed at preventing businesses from employing or harboring illegal aliens. ( PI. Ex. e, Ordinance 2006- 18). The instant temporary restraining order seeks to enjoin the enforcement of these ordinances, which is scheduled to begin on November 1, 2006. Discussion The Third Circuit Court of Appeals has outlined four factors that a court ruling on a motion for a preliminary injunction must consider: ( 1) whether the movant will be irreparably injured by denial of the relief; (2) whether granting preliminary relief will result in even greater harm to the nonmoving party; 3)whether granting the preliminary relief will be in the public interest; and ( 4) whether the movant has shown a reasonable probability of success on the merits. Crissman v. Dover Downs Entertainment Inc., 239 F. 3d 357, 364 ( 3d Cir.2001). These same factors are used to determine a motion for a temporary restraining order. Siems v. Nicola, 857 F. Supp. 445, 446 E.D. Pa. 1994). These factors merely " structure the inquiry" and no one element will necessarily determine the outcome. The court must engage in a delicate balancing of all the elements, and attempt to minimize the probable harm to legally protected interests between the time of the preliminary 3 I Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 4 of 13 injunction to the final hearing on the merits. Constructors Association of Western Pa. v. Kreps, 573 F. 2d 811, 815 ( 3d Cir. 1978). The movant bears the burden of establishing these elements. Adams v. Freedorm ForQe Corp., 204 F. 3d 475, 486 ( 3d Cir. 2000). We will address each of these issues seriatim 1) Irreparable injury The first factor to be weighed is whether the plaintiffs will be irreparably injured if the temporary restraining order is not granted. Crissman, 239 F. 3d at 364. Usually, a preliminary injunction will be denied if it appears that the applicant has an adequate alternative remedy in the form of money damages. A. L.K. Corporation v. Columbia Pictures Indus.. Inc., 440 F. 2d 761 ( 3d Cir. 1971 ). After a careful review, the threat of irreparable injury is present in the instant case. For example, Plaintiff Jane Doe 1 risks being evicted from her apartment along with her two young children, although not an " illegal alien" under the laws of the United States. ( Am. Compl. ~34 - 39). Plaintiffs John Does 5 - 6 and Jane Does 3- 4 are minor school- age children residing with their parents in Hazleton, who may be forced to leave Hazleton and their schooling if the ordinances are enforced. ( Am. Compl. 40-41). Plaintiff 4  Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 5 of 13 Brenda Lee Mieles is a United States citizen who may be evicted from her residence because of her inability to establish her citizenship. ( Am. Compl. ~ 42 - 43). Plaintiffs Rosa and Jose Luis Lechuga have suffered and continue to suffer a great loss of business in their store and restaurant located in Hazleton, which they blame on the ordinances. ( Am. Compl. ~15 - 19). A monetary price cannot be placed on such matters as plaintiffs' housing, livelihood and education. Therefore, monetary damages would not be sufficient to make the plaintiffs whole, and the plaintiffs' risk irreparable injury if the temporary restraining order is not granted. We find that this factor weighs heavily in favor of granting the temporary restraining order. 2) Harm to the Non- Moving Party The second factor used by courts to determine whether to grant injunctive relief is " whether granting preliminary relief will result in even greater harm to the non- moving party" than to the movant. Alleahenv Energy, Inc. v. DQE, Inc., 171 F. 3d 153, 158 ( 3d Cir. 1999). The City argues that the ordinances related to illegal immigration are designed to prevent problems of social disorder and chaos that city leaders connect to the presence of illegal aliens in Hazleton. In the " Findings and Declaration of Purpose" that accompany the Illegal Immigration Relief Act Ordinance, the City contends 5  Case 3: 06- cv- 01586- JMM Document 35 Filed 10/ 31/ 2006 Page 6 of 13 that " illegal immigration leads to higher crime rates, subjects our hospitals to fiscal hardship and legal residents to substandard quality of care, contributes to other burdens on public services. . . and diminishes our overall quality of life." Ordinance 2006- 18 9 2( C). In statements to newspapers, the mayor of Hazleton has asserted that the