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Tuesday, July 6, 2010

E-mails show ex-Farmers Branch official warned of expensive fight over immigration ordinance

The Dallas Morning News
July 6, 2010

The Farmers Branch City Council was warned by its former city manager that litigation over its immigration ordinance would be costly and that similar issues were already being litigated by the city of Hazleton, Pa., "with somebody else's money," according to e-mails disclosed in lawsuits against the city.

Since September 2006, Farmers Branch has paid $3.4 million to fight civil suits in federal and state courts over its renter ordinances aimed at barring illegal immigrants from housing in the Dallas suburb.

In addition, two teams of lawyers have submitted $2 million in bills as the winning side in the federal suit in which a judge ruled in March that immigration regulation to be "exclusively a federal power." The city plans to appeal, and city officials said that effectively puts a hold on any payout to the law firms.

Farmers Branch was first sued in December 2006 in state court by resident Guillermo Ramos. The city was sued two more times when the City Council enacted replacement ordinances. Each time, Ramos and his attorneys alleged violations of the Texas Open Meetings Act. The e-mails and other documents were obtained through discovery proceedings in that suit by the Bickel & Brewer Storefront representing Ramos.

The city has denied violating the law and fought disclosure.

"There was no discussion of the substance of that ordinance in any executive session," said Michael Yung, the city's outside counsel and an attorney with the Strasburger & Price law firm of Dallas.

"It was considered by council in open session and debated in open session and voted in open session."

No court hearings have been scheduled. About a dozen depositions were taken this year. The city continues to fight release of certain documents it considers privileged.

Plaintiff's attorney Bill Brewer said proof of the court's concern over whether violations had occurred was the appointment of a special master in December 2008 to oversee the release of city records. The special master was the state district court judge himself, Bruce Priddy.

"It was an extraordinary step ... an example of their failure to comply," Brewer said.

Houston lawyer Margaret Maddox, who assists with a legal hotline run by the Freedom of Information Foundation of Texas, agreed that a judge appointing himself a special master is "somewhat unusual" but said it does happen.

"Then, it won't be filtered through someone else," Maddox said. "In my opinion, that is good for the state."

The documents revealed in the lawsuit include an e-mail from City Manager Linda Groomer to council member Ben Robinson in August 2006 in which she wrote that the city's insurance wouldn't cover litigation. She also noted that a similar legal fight was under way in Hazleton, Pa.

"Therefore, the city would have to assume 100 percent of its legal costs," she wrote. "In the meantime, the very same issues are being litigated by somebody else with somebody else's money, namely Hazleton. I strongly recommend against spending local FB tax dollars to join a legal battle that will continue with or without Farmers Branch dollars."

Groomer also urged that certain code enforcement and police citation materials be printed in English and Spanish "if compliance and assimilation are the goals."

Groomer, who left the city in 2007, declined to comment.

Robinson, the Farmers Branch council member with the longest tenure, said he continues to support defense of the ordinance despite financial costs. He pointed out that residents voted in a 2007 referendum to continue the fight.

"The other issue in going forward is if we are successful in the Court of Appeals, that removes the claim that the other lawyers have for compensation" of $2 million, Robinson said.

Hazleton, a city of about 25,000, is awaiting a decision from the 3rd U.S. Circuit Court of Appeals in Philadelphia on an ordinance that, like the ones in Farmers Branch, was struck down by a lower court.

Other records that are part of the lawsuit discovery detail the involvement of Kris Kobach, a law school professor at the University of Missouri-Kansas City and senior counsel with the legal affiliate of the Federation for American Immigration Reform, a Washington, D.C.-based advocacy group. Kobach has assisted states and cities in drafting or defending anti-illegal immigration ordinances and laws, including recent work in Arizona and Fremont, Neb.

At a May forum in Dallas, FAIR's president, Dan Stein, praised Farmers Branch for its role in a "national movement" that challenges federal authority over immigration law and brings balance to its administration.

Other documents show:

• As early as October 2006, Kobach was discussing legal points related to the renters ordinance in Farmers Branch. Later invoices detail the payment to Kobach on such items as the "draft ordinance" by the Strasburger & Price legal firm working for the city of Farmers Branch. And the legal affiliate's general counsel has sat in on two depositions.

• An e-mail from 2006 from Farmers Branch Mayor Tim O'Hare – who was a council member at the time – requesting that "we immediately pass an ordinance prohibiting any country's flag from being displayed other than our own."

Groomer responded, "I don't think that's constitutional."

Bob Phelps, who was mayor at the time, responded only to Groomer: "I don't think it is either. Just another instance of ??????? Bob."

It isn't clear how much of the city's legal fees are related to the state suits over the Open Meetings Act or the federal suits. At a recent town hall meeting in Farmers Branch, O'Hare said that "by far," the state suits have been most costly. City finance director Charles Cox said he bundles all costs related to immigration into a single line item.

Under state law, deliberations among elected officials must be public, with few exceptions. Among them are discussions of purchase or lease of property, personnel matters, economic development, certain homeland security matters and pending or contemplated litigation.