Barletta confident of appeal win (Hazleton Standard Speaker)

BY KENT JACKSON
STAFF WRITER

Hazleton Mayor Lou Barletta thinks he can win an immigration case on the second try.

A federal judge overturned the city’s immigration ordinance in July 2007, but Barletta believes the city will prevail in an appeal that he expects will be heard on Oct. 31.

“I’ve never wavered in my belief that Hazleton has the right to pass the Illegal Immigration Relief Act and firmly believe our case will be vindicated in the higher court,” Barletta said during a news conference that he called Monday to say the United States Third Circuit Court of Appeals in Philadelphia tentatively scheduled a hearing on the city’s case for Oct. 31.

The case is about the constitutionality of a Hazleton ordinance that penalizes landlords who rent to illegal immigrants and businesses that hire illegal immigrants.

Since a federal judge struck down Hazleton’s law last year in U.S. District Court in Scranton, federal judges elsewhere ruled in favor of two similar laws.

Those cases are for laws proposed by Valley Park, Mo., and the state of Arizona, said the city’s lead attorney on this case, Kris Kobach of the University Missouri-Kansas City Law School.

“Valley Park is in some sections word-for-word identical of Hazleton’s ordinance,” Kobach said.

The Philadelphia court isn’t bound by decisions in Arizona or Missouri but might take them into consideration.

Vic Walczak, attorney for the American Civil Liberties Union that challenged Hazleton’s law, said the Valley Park and Arizona cases deal with employers.

“In Valley Park, we think it was wrongly decided. Arizona is a little different. It involves a state statue,” said Walczak, adding the ACLU also is fighting the Arizona decision.

Another case in Farmers Branch, Texas, deals with housing, he said.

Walczak can’t be sure, either, if Hazleton’s case will come to the Philadelphia court.

The court on Aug. 8 sent the ACLU a notice listing the date of Oct. 31, but saying final notice will be given within 10 days of then, so the date could change.

Because the notice was a month old and the actual date remains indefinite, the news conference that Barletta said was for a major announcement seemed to Walczak to be “more like a political event.”

Barletta made a national reputation by supporting the city’s ordinance. He is running as Republican for Congress against incumbent Democrat Paul Kanjorski in Pennsylvania’s 11th District in the election on Nov. 4.

“I want the rest of Hazleton to know I will continue to fight this whatever position I am in,” said Barletta, adding if he wins a seat on Congress he is “confident whoever replaces me will be just as determined.”

Hazleton funds haven’t been used to pay legal fees in the case yet because people have donated to the city’s defense by mail and the Internet campaign at Smalltowndefenders.com. As of July, the city raised $427,000.

The ACLU and other attorneys for the plaintiffs, however, asked the court to instruct Hazleton to pay their legal bills of more than $2 million.

“That issue is still hanging out there,” said Hank Mahoney, one of the city’s lawyers from Deasey, Mahoney and Valentini of Philadelphia. Judge James M. Munley, who decided the case in Scranton, deferred a decision on legal fees to the appeals court in Philadelphia.

Kobach said he thinks the plaintiffs’ legal bill overestimates the cost of their case.

Barletta said while Escondido, Calif., and other cities that considered immigration laws backed down when confronted with high legal costs, Hazleton won’t quit.

“We have committed the city to continue this fight and will continue to raise money nationally,” Barletta said. “I’m confident the people of this country will back the city in that fight.”

Foster Maer, staff attorney for the Puerto Rican Legal Defense and Education Fund that assisted the plaintiffs, said Hazleton’s case appears to be the first local attempt to regulate housing and employment for illegal immigrants to reach appeal.

“Both implicitly and explicitly, many communities are saying ‘Wait until we hear what the courts are saying so we don’t get into the same bind as Hazleton,’” Maer said.

Hazleton enacted its first version of the ordinance in July 2006 in reaction, Barletta said, to budget-straining increases in crime, emergency visits and school enrollment.

Many illegal immigrants left Hazleton after the law was approved even though court rulings prevented it from taking effect, Barletta said.

Asked how things changed in the city since, Barletta said: “We assume we continue to have a severe illegal immigration problem.”

He pointed out that two men identified as illegal immigrants were arrested on Sunday for disorderly conduct and public drunkenness.

Rudy Espinal, who testified at the trial in Scranton against the city’s law on behalf of the Hazleton Hispanic Business Association, said Monday that the case has lost importance.

“Nobody’s talking about that,” Espinal said. “There was no big change. The city never proved there were a whole bunch of illegals. Most people have their green cards.”

When the case continues in Philadelphia, three judges will consider the arguments. Attorneys for both sides think the court will listen to oral arguments, but they might only request written arguments.

If the court schedules oral arguments, each side typically gets 15 minutes to present its case and answer questions. The city asked for 30 minutes per side because of the case’s complexity.

“Orals are so fast one really has to drive straight to the most pivotal legal questions in the case,” Kobach said.

One pivotal issue, he said, is whether federal law prohibits cities from adopting immigration ordinances.

Kobach said Homeland Security Secretary Michael Chertoff this summer lauded local initiatives to curb illegal immigration. While Chertoff didn’t mention Hazleton, his comments indicate that the city’s law supports rather than interferes with federal efforts, a point in Hazleton’s favor, Kobach said.

Walczak said he didn’t know the “genesis of” Chertoff’s remarks, but said they can’t be binding. Nor can Chertoff require employers to verify the immigration status of workers because Congress made the verification program voluntary, Walczak said.

“The error rate is still so high,” Walczak said of the E-verify program designed to instantly provide a worker’s status to participating employers.

The system doesn’t catch people who steal Social Security numbers, yet can incorrectly deny the right to work to citizens or legal residents, Walczak said.

Workers who are denied employment or renters denied housing require opportunities to challenge those decisions, according to the Due Process Clause of the Constitution.

The plaintiffs argued during the trial in Scranton that Hazleton’s ordinance doesn’t offer sufficient due process, an argument that they might repeat in Philadelphia.

“It seems to us maybe the strongest argument,” Walczak said.

After the judges consider written and oral arguments in the case, they typically issue a decision from four months to a year later, Kobach said.

Carla Maresca, a city attorney also of Deasey, Mahoney and Valentini, said the appeals court could uphold or reverse all or part of the decision. But she said there is a slight possibility the appeals court might return the case to the lower court for another trial.