Jacqueline Gray v. City of Valley Park, MO

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________
No. 08-1681
___________
Jacqueline Gray; Windhover, Inc., *
*
Plaintiffs-Appellants, *
*
v. *
*
City of Valley Park, Missouri, *
*
Defendant-Appellee. * On Appeal from the United
____________ * States District Court for the
* Eastern District of Missouri.
Eagle Forum Education and Legal *
Defense Fund; Allied Educational *
Foundation; Brian Bilbray; Steve *
King; Lamar Smith; Washington *
Legal Foundation, *
*
Amici on behalf of Appellee. *
___________
Submitted: December 10, 2008
Filed: June 5, 2009 (Corrected: 06/11/2009)
___________
Before LOKEN, Chief Judge, BEAM and ARNOLD, Circuit Judges.
___________
BEAM, Circuit Judge.
Jacqueline Gray and Windhover, Inc. (Appellants, collectively) challenge
ordinances enacted by the City of Valley Park, Missouri, (City) that address illegal
alien employment in the context of real estate occupation and leasing. Appellants
initially filed suit in state court against the City to invalidate the ordinances. The City
removed the case to federal court and the parties later filed cross motions for summary
judgment. The district court1 granted judgment in favor of the City, denied
Appellants' motion and dismissed Appellants' Second Amended Complaint with
prejudice. Because Appellants have standing and we agree with the district court
regarding the absence of preclusion, we affirm.
I. BACKGROUND
Gray is the sole owner of Windhover, Inc., a corporation that owns rental units
in the City. Intermittently, Windhover hires individuals to work at miscellaneous
tasks and perform maintenance on this property. In September 2006, Gray and others
sued the City in state court seeking to enjoin the enforcement of an ordinance
(ordinance 1708, later repealed and amended by ordinance 1715), which concerned
the same general subject matter as the two ordinances challenged in this action. See
Reynolds v. City of Valley Park, No. 4:06CV01487, 2006 WL 3331082 (E.D. Mo.
2006) ("the Reynolds case"). The City removed the Reynolds case, but the district
court remanded, in part because it held there was no case or controversy under the
Federal Declaratory Judgment Act. Id. at *6. In February 2007, the City effectively
repealed both of the ordinances at issue in the Reynolds case and replaced them with
ordinance 1721 (involving the harboring of illegal aliens in rental units) and ordinance
1722 (involving the employment of unauthorized aliens). The Reynolds case
nonetheless proceeded in state court and on March 12, 2007–even after the City
repealed the two ordinances upon which the pending action was based, and the
plaintiffs declined the opportunity to amend the action to include ordinances 1721 and
1722–the state court permanently enjoined the enforcement of the two, then-repealed
1
The Honorable E. Richard Webber, United States District Judge for the Eastern
District of Missouri.
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ordinances. The City appealed that order and the Missouri Court of Appeals
dismissed the case as moot because the enforcement provisions of the ordinances had
been repealed and substituted with new executory provisions–ordinances 1721 and
1722 (at issue in the instant appeal). Reynolds v. City of Valley Park, 254 S.W.3d
264, 266 (Mo. Ct. App. 2008).
On March 14, 2007, Appellants initiated the instant action in state court,
challenging ordinances 1721 and 1722. Ordinance 1722, however, is the only
ordinance now at issue because the City repealed ordinance 1721 in July 2007, and
the parties stipulated to a voluntary dismissal of Appellants' related claims. The City
removed the case to federal district court. The district court retained the action,
holding that the new ordinance imposed immediate obligations on Appellants.
Generally, ordinance 1722 prohibits all business entities in Valley Park from
knowingly employing unauthorized aliens.2 The ordinance sets out a procedure for
lodging complaints against potential violators and requires, among other things, that
those business entities that apply for a business license sign an affidavit stating that
they do not knowingly employ any person who is an unlawful worker.
Both parties filed motions for summary judgment with the district court. As a
result of these motions, the district court addressed issues of preclusion (based upon
the effect, if any, of the state court's March 12, 2007, injunction concerning
ordinances 1708 and 1715); preemption, or not, by federal immigration law;
Appellants' standing to assert an equal protection claim; the status of Appellants' due
process claim; and whether ordinance 1722 violates Missouri law. The district court
ruled in the City's favor, determining that (1) there was no issue preclusion arising
2
In August 2007, the City enacted ordinance 1736, which amended the effective
date of ordinance 1722 but otherwise reenacted 1722 intact. Thus, for the sake of
clarity, throughout this opinion we refer to ordinance 1722 as the ordinance at issue.
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from the state court's earlier decision regarding ordinances 1708 and 1715 because
ordinance 1722 was not identical; (2) federal law did not preempt ordinance 1722; (3)
Appellants lacked standing to pursue an equal protection claim; (4) ordinance 1722
does not violate the Due Process Clause; and (5) ordinance 1722 does not violate
Missouri law by exceeding the authority granted a fourth class city.
Only two issues are before us today: (1) whether the district court lacked
jurisdiction over this matter and (2) whether this matter is precluded by the prior
Missouri state court order.
II. DISCUSSION
In an unlikely turn of events, Appellants now claim that ordinance 1722 is not
enforceable against them at all (and was never enforceable) and as a result, the district
court had no subject matter jurisdiction–making the court's failure to remand a
jurisdictional defect. "'[I]f a plaintiff lacks standing, the district court has no subject
matter jurisdiction.'" Young America Corp. v. Affiliated Computer Services (ACS),
Inc., 424 F.3d 840, 843 (8th Cir. 2005) (quoting Faibisch v. Univ. of Minn., 304 F.3d
797, 801 (8th Cir. 2002)) (alteration in original). Appellants' current claim, contrary
to nearly every pleading filed by Appellants since the inception of this case in state
court, is that there is no actual or imminent injury-in-fact and thus no justiciable case
or controversy sufficient to satisfy federal standing requirements. To be sure, this
course of argument is unorthodox. It is with restraint that we do not point out the
numerous instances, in court pleadings and affidavits made under oath, where
Appellants claimed imminent harm, injury to property interests and other burdens of
enforcement and compliance arising from ordinance 1722. To be fair, at one point
Appellants did amend their argument in support of summary judgment and sought a
declaration that the ordinance did not apply to Windhover or Gray. That argument,
however, was not made in the context of a challenge to standing (although a ruling in
Appellants' favor on that issue would have put the issue of standing in play), but was
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crafted to judicially solidify the then-uncertain interpretation of ordinance 1722 as it
applied to Appellants. But, that argument was merely a needle in the haystack of
Appellants' allegations of imminent harm to themselves and third parties that
dominated the proceedings below.3
A. Judicial Estoppel
The City argues that because Appellants' current stance regarding their lack of
standing is wholly at odds with the position they took before the district court,
Appellants should be judicially estopped from proceeding on this theory. The
doctrine of judicial estoppel provides that when "a party assumes a certain position in
a legal proceeding, and succeeds in maintaining that position, he may not thereafter,
simply because his interests have changed, assume a contrary position, especially if
it be to the prejudice of the party who has acquiesced in the position formerly taken
by him." New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quotation omitted)
(holding that under the doctrine of judicial estoppel, New Hampshire was equitably
3
The City argues that Appellants' current change of course is a keen, brazen, and
strategic attempt by Appellants to covertly vacate the district court's decision on the
merits without having to address the merits on appeal, and in an effort to return to
state court with no preclusive federal opinion blocking their efforts. We caution that
if any of this so-called tactical scheming pours the foundation for the unnecessary
exertion of our judicial resources here, such abuse will not go unnoticed. This
admonition applies equally to the City, which likewise appears to have contradicted
itself on appeal in an attempt to gain an advantage. For example, we are dubious of
the City's professed disdain regarding Appellants' alleged "desperate" effort to find
some way of denying their own standing by "deceptively" inserting the word
"expressly" into ordinance 1722 as a qualifier to those business entities exempted–i.e.,
"any business entity that is [expressly] exempt by law." The City itself, in its Reply
Memorandum in Support of Defendant's Motion for Summary Judgment, stated that
the "business entity" contemplated by ordinance 1722 "is limited in Section 3 of the
ordinance to business entities that require a business license, unless expressly
exempted by law." Those who live in glass houses should not throw stones.
-5-
barred from asserting, contrary to its position in prior litigation over the states' lobster
fishing rights, that the inland Piscataqua River boundary ran along the Maine shore);
In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999); Taylor v. Food World,
Inc., 133 F.3d 1419, 1422 (11th Cir. 1998); Lowery v. Stovall, 92 F.3d 219, 223 (4th
Cir. 1996); In re Cassidy, 892 F.2d 637, 641 (7th Cir. 1990). This rule "generally
prevents a party from prevailing in one phase of a case on an argument and then
relying on a contradictory argument to prevail in another phase." Pegram v. Herdrich,
530 U.S. 211, 227 n.8 (2000). The purpose of the doctrine is to protect the integrity
of the judicial process by prohibiting parties from deliberately changing positions
according to the exigencies of the moment. New Hampshire, 532 U.S. at 749-50;
Monterey Dev. Corp. v. Lawyer's Title Ins. Corp., 4 F.3d 605, 609 (8th Cir. 1993).
While the circumstances under which judicial estoppel may appropriately be
invoked are not reducible to any general formulation, the Supreme Court has
identified several factors that typically inform the decision whether to apply the
doctrine in a particular case: (1) whether a party's later position is clearly inconsistent
with its earlier position; (2) whether the party has succeeded in persuading a court to
accept that party's earlier position, so that judicial acceptance of an inconsistent
position in a later proceeding would create the perception that either the first or the
second court was misled; and (3) whether the party seeking to assert an inconsistent
position would derive an unfair advantage or impose an unfair detriment on the
opposing party if not estopped. New Hampshire, 532 U.S. at 750-51. There is no
mechanical test, however, and ultimately, because the rule is intended to prevent
improper use of judicial machinery, the discretionary determination to apply the
doctrine of judicial estoppel is made on a case-by-case basis. Id. at 750 (stating that
judicial estoppel is an equitable doctrine invoked by a court at its discretion).
The City's contention that we should apply judicial estoppel in this case is not
without force. Indeed, it would seem at first blush that this is just the sort of case to
which judicial estoppel must apply. However, we are sufficiently concerned about
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applying judicial estoppel under the particular circumstances of this case that we
decline to do so.4 In the end, we must have Article III jurisdiction to entertain any
claim even though the change in tactics in this case does seem to result in the sort of
extreme perversion of the judicial process that normally justifies the use of judicial
estoppel. Most critically, we have failed to find any precedent, and the City cites to
no authority, supporting the application of this doctrine in the face of an alleged
jurisdictional default.5 Even if the parties wasted judicial resources up to this point
4
Appellants claim that it was only after they received the City's stated
interpretation of ordinance 1722 in the City's Reply Memorandum in Support of [the
City's] Motion for Summary Judgment (discussing the ordinance in the context of
whether it covers casual domestic workers for purposes of the federal preemption
statute) that Appellants realized there was no threat of enforcement because they did
not have, nor did they plan to obtain, a business license. Judicial estoppel might be
inappropriate when a party's prior position was based on inadvertence or mistake.
New Hampshire, 532 U.S. at 753 (rejecting New Hampshire's mistake argument that
it had failed to do historic research earlier). To the extent we indulge Appellants'
newly-minted "understanding" (or prior, inadvertent misunderstanding) of the
ordinance in question, this too informs our determination not to apply judicial
estoppel. That said, Appellants' argument gives us pause to consider why they did not
amend their pleadings or otherwise pursue the instant argument before the district
court when they discovered the problem prior to the court's judgment on the pending
motions. Appellants assert that "it had by then [at the time the district court ruled on
Appellants' motion for summary judgment] become clear that the [Appellants] are not
required to have a business permit under Valley Park municipal law, had no intent of
applying for a business permit, and thus would not be required to sign an affidavit of
compliance." Appellants' Brief at 28 (emphasis added). If it was so clear that there
was no means by which the City could enforce ordinance 1722 against them, why
continue to pursue the claim?
5
The Federal Circuit Court of Appeals addressed the issue in Biomedical Patent
Management Corp. v. California Department of Health Services., 505 F.3d 1328, 1342
(Fed. Cir. 2007), cert. denied, 129 S. Ct. 895 (2009), but declined to apply the doctrine
because there was an intervening change of law justifying the party's change of
position regarding its immunity from suit.
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and misled the courts on this issue in the process, we may not forge ahead on blind
principle without jurisdiction to do so.
B. Jurisdiction
We recognize that "[a]ny party or the court may, at any time, raise the issue of
subject matter jurisdiction." GMAC Commercial Finance LLC v. Dillard Dep't
Stores, Inc., 357 F.3d 827, 828 (8th Cir. 2004). And, even if neither party had raised
the issue below, we are required to address it. Renne v. Geary, 501 U.S. 312 (1991)
(discussing justiciability and ripeness for the first time before the Supreme Court);
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990).
"Federal courts are not courts of general jurisdiction; they have only the power
that is authorized by Article III of the Constitution and the statutes enacted by
Congress pursuant thereto." Bender v. Williamsport Area Sch. Dist., 475 U.S. 534,
541 (1986). "The limitations imposed by Article III are usually referred to as the 'case
or controversy' requirement." Schanou v. Lancaster County Sch. Dist. No. 160, 62
F.3d 1040, 1042 (8th Cir. 1995) (quoting Arkansas AFL-CIO v. FCC, 11 F.3d 1430,
1435 (8th Cir. 1993) (en banc)); see also Valley Forge Christian College v. Americans
United for Separation of Church & State, Inc., 454 U.S. 464, 471 (1982) ("Article III
of the Constitution limits the 'judicial power' of the United States to the resolution of
'cases' and 'controversies.'"). This court defines "case or controversy" to require "a
definite and concrete controversy involving adverse legal interests at every stage in
the litigation." McFarlin v. Newport Special Sch. Dist., 980 F.2d 1208, 1210 (8th Cir.
1992). "Federal courts must always satisfy themselves that this requirement has been
met before reaching the merits of a case. Courts employ a number of doctrines to
determine justiciability such as standing, ripeness, and mootness." Schanou, 62 F.3d
at 1042.
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Article III standing represents "perhaps the most important" of all jurisdictional
requirements. FW/PBS, 493 U.S. at 231. This doctrine "requires federal courts to
satisfy themselves that the plaintiff has alleged such a personal stake in the outcome
of the controversy as to warrant [her] invocation of federal-court jurisdiction."
Summers v. Earth Island Inst., 129 S. Ct. 1142, 1149 (2009) (internal quotations and
emphasis omitted). In the normal course, the plaintiff has the responsibility clearly
to allege facts demonstrating that she is a proper party to invoke judicial resolution of
the dispute and the exercise of the court's remedial powers. Warth v. Seldin, 422 U.S.
490, 518 (1975). This assures the existence of that measure of concrete adverseness
necessary to sharpen the presentation of issues necessary for the proper resolution of
the constitutional questions. City of Los Angeles v. Lyons, 461 U.S. 95, 101 (1983).
This particular case is interesting because it is not the normal course of events
for the parties originally initiating the action to challenge their own standing on appeal
by claiming the very law they challenge is not enforceable against them.6 In the
normal course of events, a simple dismissal would logically cure the current ailment.
Here, however, it is Appellants' desire to pursue their claims in Missouri state court,
where they started, and thus Appellants seek to shed themselves of this federal forum
and all of its ramifications.7 It is customary that "the court must accept all factual
6
That Appellants' claim is not yet ripe might be another way of viewing
Appellants' argument but Appellants' claim is not that this ordinance has not yet been
enforced against them or that the threat of enforcement is not imminent, but rather that
this statute could never apply to them, thus concentrating this matter in "standing"
jurisprudence. See Johnson v. Missouri, 142 F.3d 1087, 1090 n.4 (8th Cir. 1998)
(noting that although "standing and ripeness are technically different doctrines, they
are closely related in that each focuses on 'whether the harm asserted has matured
sufficiently to warrant judicial intervention.'") (quoting Warth, 422 U.S. at 499 n.10).
7
Counsel clearly pointed out at oral argument that the "problem" in this case is
that there is now a judgment in place in the federal court that will affect what
Appellants can do in the state court. Yet, Appellants do not overtly challenge the
merits of this problematic district court opinion.
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allegations in the complaint as true and draw all inferences in the plaintiff's favor"
when making a determination on standing. Young America, 424 F.3d at 843. Given
the unique posture of this case, the nature of Appellants' allegations on appeal are
different from those alleged in their complaint. Were we to look only to Appellants'
complaint (a pleading that was never amended to reflect the current discussion) there
would be no controversy regarding Appellants' standing because it would surely exist.
As the case stands today, we review Appellants' complaint, along with ordinance
1722, all pleadings in this matter, and the parties' arguments on appeal in making our
jurisdictional decision. Warth, 422 U.S. at 517-18.
To satisfy Article III's standing requirement, (1) there must be "injury in fact"
or the threat of "injury in fact" that is (a) concrete and particularized and (b) actual or
imminent, not conjectural or hypothetical; (2) the injury must be fairly traceable to
defendant's challenged action; and (3) it must be likely (as opposed to merely
speculative) that a favorable judicial decision will prevent or redress the injury.
Summers, 129 S. Ct. at 1149; Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180-81 (2000). The standing "requirement assures that
'there is a real need to exercise the power of judicial review in order to protect the
interests of the complaining party.'" Summers, 129 S. Ct. at 1149 (quoting Schlesigner
v. Reservists Comm. to Stop the War, 418 U.S. 208, 221 (1974)). To determine
whether a pre-enforcement challenge such as this is justiciable requires us to take
these factors into consideration on a case-by-case basis. Regional Rail Reorganization
Act Cases, 419 U.S. 102, 143 n.29 (1974).
Appellants now claim that ordinance 1722 is not enforceable against them
because (1) Appellants only hire independent contractors, (2) Appellants have no
business permit to lose in the event of non-compliance, and (3) any potential injuries,
assuming ordinance 1722 applied to Appellants, are not imminent and are speculative.
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Focusing properly and sequentially on the three requisites for standing, we find
"injury in fact" traceable to ordinance 1722 that could be redressed by a favorable
judicial decision. All parties acknowledge that Appellants have not yet been subjected
to enforcement under ordinance 1722. Pre-enforcement facial challenges may be
brought, however, in certain circumstances. Plaintiffs have standing to challenge the
facial validity of a regulation notwithstanding the pre-enforcement nature of a lawsuit,
where the impact of the regulation is direct and immediate and they allege an actual,
well-founded fear that the law will be enforced against them. Lake Carriers' Ass'n v.
MacMullan, 406 U.S. 498, 507 (1972); Abbott Labs. v. Gardner, 387 U.S. 136, 152
(1967), abrogated on other grounds by Califano v. Sanders, 430 U.S. 99, 105 (1977);
Krantz v. City of Fort Smith, 160 F.3d 1214, 1218 (8th Cir. 1998). Only recently have
Appellants changed their tune to claim they no longer fear enforcement of ordinance
1722. Even so, the City argues that ordinance 1722 is enforceable against Appellants
and will be enforced against Appellants and, given the unique posture of this case, we
take that claim into consideration when deciding Appellants' stake in this litigation.
See Int'l Ass'n of Firefighters v. City of Ferguson, 283 F.3d 969, 973 (8th Cir. 2002)
(concluding that the threatened conduct against the claimant's husband should she
violate the challenged charter provision was sufficient to present a "case" or
"controversy"); Krantz, 160 F.3d at 1217 (assuming for the purposes of standing that
the City would enforce violations of the law in question because the City vigorously
defended the ordinance and never suggested that it would refrain from enforcement).
Now, turning to Appellants' specific claims as to why 1722 is not enforceable,
we easily dispose of the first. Appellants do hire individuals or contractors from time
to time to perform maintenance on the rental units and are likely to do so in the
future.8 As such, we need neither speculate nor merely attempt to anticipate whether
8
Appellants claim that ordinance 1722 is not enforceable against them because
it does not govern business entities who hire only independent contractors. Very
plainly, and under oath, Jacqueline Gray stated that she "intend[ed] in the near future
to hire an individual or contractor to paint the interior of one unit and another to
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Appellants will fall within the purview of ordinance 1722 in that respect. O'Shea v.
Littleton, 414 U.S. 488, 497 (1974).
Second, Appellants are clearly contemplated by the ordinance at issue as a
"business entity." That Appellants do not maintain a business license is immaterial.
The definition casts a wide net. "'Business entity' means any person or group of
persons performing or engaging in any activity, enterprise, profession, or occupation
for gain, benefit, advantage, or livelihood, whether for profit or not for profit."
Ordinance No. 1736 § 3A. "The term business entity shall include, but not be limited
to, self-employed individuals, partnerships, corporations, contractors, and
subcontractors." Id. at § 3A(1). Section 3A(2) further states that "[t]he term business
entity shall include any business entity that possesses a business license, any business
entity that is exempt by law from obtaining such a business license, and any business
entity that is operating unlawfully without such a business license." That Appellants
do not have a business license does not exempt them from this ordinance. Appellants
fall within the ordinance provisions and must, as law-abiding citizens, comply and
conform their conduct according to its directives.
Third, this injury is not speculative in such a way as to defeat jurisdiction.
Where a plaintiff alleges an intention to engage in a course of conduct that is clearly
proscribed by statute, courts have found standing to challenge the statute, even absent
a specific threat of enforcement. Russell v. Burris, 146 F.3d 563, 566-67 (8th Cir.
1998); see also Lake Carriers', 406 U.S. at 507(determining that the mere obligation
replace carpeting." We take her at her word. Further, we are confused by Appellants'
claim that they "have no history of hiring Hispanic workers and have evidenced no
intent to do so in the future." Perhaps it is Appellants who are confused–ordinance
1722 addresses employment of illegal aliens, not Hispanics. (We further ponder why
Appellants have adopted such a hiring policy, but we digress.) If Appellants meant
to argue that they have not hired, and have no intent in the future to hire, illegal aliens,
then we are left wondering, again, why this case was initiated in state court in the
beginning, or at the very least, not dismissed in federal court long ago.
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to install sewage storage devices placed upon the challenging party under a Michigan
statute, even without threat of enforcement, created a live controversy for purposes of
justiciability). "This court has also entertained constitutional challenges where the
statute clearly applies to the plaintiff, and the plaintiff has stated a desire not to
comply with its mandate." United Food & Commercial Workers Int'l Union, AFL-
CIO, CLC v. IBP, Inc., 857 F.2d 422, 428 (8th Cir. 1988); see also Pursley v. City of
Fayetteville, 820 F.2d 951, 953 (8th Cir. 1987); Blatnik Co. v. Ketola, 587 F.2d 379,
381 (8th Cir. 1978). And, as this court has previously noted, commentators agree with
this result: "'[w]here the enforcement of a regulatory statute would cause plaintiff to
sustain a direct injury, the action may properly be maintained, whether or not the
public officer has "threatened" suit; the presence of the statute is threat enough,' at
least where the challenged statute is not moribund." United Food, 857 F.2d at 428
(quoting 6A Moore's Federal Practice, ¶ 57.18[2] at 57-189 (2d ed. 1987)) (alteration
in original). Here, even though Appellants do not have a business license, they
admittedly will continue to maintain the rental property by hiring an "individual or
contractor" to do work. It is the hiring process that is affected. And, as noted above,
this affected process is fairly traceable to ordinance 1722.
The City claims that injury-in-fact indeed exists. Despite Appellants' lack of
a business license and the professed denial of ever obtaining a business license in the
future, the City claims that no less than four other sanctions apply to business entities
that violate ordinance 1722, all directly traceable to ordinance 1722 itself: (1) a
violator of ordinance 1722 is compelled to take specific steps to correct the violation
and submit a sworn affidavit; (2) if in violation, Appellants can be required to enroll
in the E-Verify program; (3) a violation of ordinance 1722 exposes the violator to
potential penalties under federal law; and (4) Appellants would be barred from
expanding their business and opening an off-site leasing office. The City additionally
points out that Appellants will suffer economic injury, including the cost of
compliance (i.e., the cost of additional steps in hiring, etc.), and argues that merely
being subjected to the enforcement process is enough to confer standing. Only the
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first of the City's enumerated "sanctions" has teeth, along with the City's more general
discussion of Appellants' injuries, as the second and third alleged sanctions apply after
the suspension of a license has occurred, which Appellants admittedly do not have,
and the fourth is too tenuous to entertain.
As a business entity contemplated by ordinance 1722, Appellants are still
compelled to take specific steps to correct a violation, despite the absence of a threat
of license suspension. At the very least, as a business entity covered by the ordinance,
Appellants may not knowingly recruit, hire for employment, or continue to employ,
an unlawful worker to perform work within the City. Ordinance No. 1736 § 4A. And,
when a valid complaint is lodged, Appellants would be required to terminate a
violative employee and provide identity information to the Valley Park Code
Enforcement Office. Id. at §§ 4B, 5B. Further, Appellants could be asked to procure
further information from the federal government regarding the immigration status of
the involved employee. Id. at § 5B. Generally, Appellants must inevitably alter
current hiring practices to establish a procedure that assures compliance with
ordinance 1722.9 This might entail a request for proof of status or conducting a
wholly independent verification of potential employees prior to hiring. This, on its
own, is injury-in-fact, traceable to ordinance 1722, that a favorable decision could
redress, sufficient to confer jurisdiction.10
9
This appears to have been one of the bases on which Appellants challenged the
ordinance to begin with. The Amended Petition for Declaratory and Injunctive Relief
states: "Windhover is a 'business entity' as that term is defined in Valley Park
Ordinance 1722. Ordinance 1722 would require the Plaintiffs to investigate and
determine the immigration status of any person it hires or contracts to perform work
on its properties, and . . . Plaintiffs do not know how to determine a person's
immigration status." This same concern was expanded upon in Appellants' Second
Amended Complaint for Declaratory and Injunctive Relief.
10
If, as they claim, Appellants choose to stand in defiance of ordinance 1722,
they could, as the City noted at oral argument, be subject to Valley Park City Code §
100.110, entitled "General Penalty," which states that "[f]or all violations of this Code
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The latter discussion regarding the effect this ordinance certainly has on
Appellants' very way of recruiting and hiring also embraces the "prudential" concerns
that are juxtaposed with, and considered in addition to, the constitutional elements
already discussed. Valley Forge, 454 U.S. at 471. This action clearly falls "within the
zone of interests protected by the law invoked." Allen v. Wright, 468 U.S. 737, 751
(1984). The ordinance is directly targeted at business entities such as Appellants who
recruit and hire employees. And, Appellants are seeking redress of their own legal
rights and not the legal rights or interests of third parties. Warth, 422 U.S. at 499.
Appellants have an interest of their own to defend as set out above. And, finally, this
action presents more than "abstract questions of wide public significance which
amount to generalized grievances, pervasively shared and most appropriately
addressed in the representative branches." Valley Forge, 454 U.S. at 475 (internal
quotations omitted). Again, there is no doubt that Appellants fall within the purview
of ordinance 1722 and are immediately affected by its directives, as are all business
entities in the City.
Accordingly, Appellants have standing and this matter is appropriately before
us for review.
and all other ordinance violations, the penalty of which has not been established
elsewhere in this Code or by separate ordinance, the Municipal Judge may impose the
same penalty as is set by State Statute for the same offense or the following maximum
penalty, whichever is less: A fine of five hundred dollars ($500.00) and costs or ninety
(90) days' imprisonment, or both the fine and imprisonment." Post-argument,
Appellants argued that the City fundamentally changed its position on an issue not on
appeal (preemption), revealing for the first time that ordinance 1722 is enforceable by
the imposition of fines or imprisonment. Enforcement of 100.110, however, remedies
the act of defiance, not a violation of ordinance 1722, contrary to Appellants'
argument. Accordingly, we do not indulge Appellants' supplemental, and novel,
arguments regarding its application, as it is not central to the issue before us.
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C. Preclusion
Appellants alternatively argue that the district court should have given full faith
and credit to the state court's judgment and held that the penalty provision that appears
in ordinance 1722, which they claim is identical to the penalty provisions of
ordinances 1708 and 1715, is invalid under state law. We have considered Appellants'
remaining arguments and find them to be without merit.11
III. CONCLUSION
For the reasons stated herein, we affirm.
______________________________
11
As part of this consideration, we reviewed Appellants' supplemental appendix
and hereby grant Appellants' pending motion to file that document.
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