The Springfield E-verify initiative ordinance (Ordinance) recently approved by the voters in February of 2012 requires all employers in Springfield to use the federal e-verify system to determine if an employee is lawfully in the United States for employment purposes is dead on arrival. To put this in legal terms the ordinance is legally infirm. Resuscitating the ordinance by severing the parts that are valid from the invalid parts is not possible because the defects are basic and fundamental to the operation of the Ordinance. These statements are made based entirely on the legality of the Ordinance. I leave it to others to argue the wisdom of the Ordinance.

Migrant Laborer – No Easy Choices

Unfortunately a lot of time, energy, and resources on both sides of the question have been wasted tilting at windmills. Regrettably no one can usually challenge the initiative until after the citizen’s vote. The courts have repeatedly held that an action to determine the validity of an initiative petition is not ripe for decision until the voters actually approve the ordinance. In other words the courts refuse to speculate about the validity of an initiative prior to the vote since the voters may reject the initiative.

Citizen Signing Petition

The legal difficulties could have easily been avoided by the proponents steadfastly following the Arizona E-verify law that was recently upheld by the United States Supreme Court in Chamber of Commerce of U. S. v. Whiting. The United States Supreme Court provided a well-defined road map based on the Arizona law but as we shall see the Ordinance strayed from the path.

What are the defects? The Springfield E-verify Ordinance provides that a business license shall be suspended or revoked and a $499 penalty imposed by the director of finance for a second or third violation without proper notice or a hearing as required by the Fourteenth Amendment to the United States Constitution and the Missouri Constitution. One of the great rights that we all enjoy under the Missouri and the United States Constitution is the right to procedural due process before the government takes our life, liberty or property.  While the Ordinance provides that a Business Entity may challenge the enforcement of the Ordinance after the suspension, revocation, or fine the cases hold a post deprivation hearing does not provide adequate due process. Providing an opportunity to challenge the Ordinance after your business license has been suspended or revoked is no consolation.  After all, when your license is suspended or revoked you are out of business. The provisions in the Springfield Ordinance, which provide for a post deprivation hearing, should be compared to the Arizona law that provides for a judicial determination prior to the suspension or the revocation of the license.

The Springfield Ordinance is also fatally flawed because the Springfield Finance Department makes the determination if the Ordinance has been violated. The Springfield Ordinance states that it is unlawful for any Business Entity to knowingly employ an Unlawful Worker to perform Work within the City. In essence the Ordinance makes it a crime to employ an Unlawful Worker. The Springfield Ordinance provides that the Finance Department determines whether or not the Ordinance has been violated. This provision is directly contrary to the Missouri Supreme Court’s holding in Springfield v. Belt that the enforcement of ordinances is a judicial function, which belongs in the municipal court. Again the proponents of the Ordinance failed to follow the road map set forth in the Arizona law, which provides that the Arizona courts determine it the law has been violated.

The third strike against the Springfield Ordinance is that it imposes a $499 fine for the second and third violations directly contrary to federal law, which expressly preempts “any State or local law imposing civil or criminal sanctions (other than through licensing and similar laws) upon those who employ, or recruit or refer for a fee for employment, unauthorized aliens.” In Chamber of Commerce of U.S. v. Whiting the United States Supreme Court stated that state laws imposing civil fines for the employment of unauthorized workers are expressly preempted. Again the Arizona law did not have any civil penalties.

I will not discuss numerous other significant flaws in the Ordinance – although there are many – because as they say:  “Three strikes and you are out.”

While the Ordinance has a severability clause that provides guidance to a court in the event parts of the ordinance are found to be invalid and other parts are found to be valid the savings clause works only if a court finds that the valid provisions, standing alone, are complete and are capable of being executed in accordance with the legislative intent. It is clear that the remaining provisions of the Ordinance cannot stand by themselves because you cannot suspend or revoke a license without providing due process of law.  Nor can the Finance of the Department take any action to enforce the Ordinance since the power to adjudicate violations of municipal ordinances is a function of the municipal court.  In short, it is impossible to patch over these fundamental defects.

Initiative petitions present difficult choices for a city because the city cannot normally file a request to determine the validity of the ordinance until after the voters have decided whether or not to approve the ordinance. If the initiative is approved the city has an obligation to defend the ordinance although it may be in the very difficult position of defending a law that is on its face indefensible. As officers of the court, the attorney’s defending the ordinance have an obligation to call to the court’s attention the law even if it is adverse to their position. About the only other option for the city – after the ordinances has been approved by the voters – is to file a request for a declaratory judgment asking the court to determine the validity of the ordinance. There are no easy choices.

Howard Wright @2012