The Governor has signed a recent bill that underscores the complex legal issues surrounding preemption – the legal condition which exists when local legislation conflicts with state or federal law – and issues surrounding the current immigration debate.
On Wednesday, October 10, 2007, Governor Schwarzenegger signed Assembly Bill 976 into law. The bill, which was authored by Assemblymember Charles Calderon and sponsored by the Apartment Association of California Southern Cities, prohibits any city or county from enacting an ordinance that would require landlords to inquire into a potential tenant’s immigration or citizenship status for purposes of evaluating their rental application. Furthermore, it restricts any landlord from requiring any tenant or potential tenant to prove legal immigration or citizenship status as a condition of any lease.
The bill, chaptered as Civil Code Section 1940.3, was the Legislature’s response to an Escondido City ordinance which prevented landlords from renting any unit to an illegal immigrant. The Escondido ordinance (Ordinance No. 2006-38 R) also required local landlords to evict any tenant that was found to be an illegal immigrant; if a landlord refused to evict a tenant, the landlord would face possible suspension of his or her business license. On November 20, 2006, a federal court issued a temporary restraining order prohibiting Escondido from enforcing the ordinance.[1]
Following the passage of Escondido’s ordinance and subsequent legal challenges, landlords in several cities began to inquire into potential tenants’ immigration status. Other California cities, including San Bernardino, attempted to pass similar ordinances.
The controversy has occurred throughout the U.S. as well. For instance, the City of Hazleton, Pennsylvania, enacted an ordinance which required any person who rented a unit in the city to obtain an occupancy permit.[2] To obtain an occupancy permit, one would have to show immigration or citizenship status. When a person would apply to rent a unit, a landlord would inquire whether the person had received an occupancy permit. In addition, a landlord would be required to evict a tenant who did not receive an occupancy permit. The Hazleton ordinance was invalidated by a federal court on July 26, 2007.[3]
The enactment of Assembly Bill 976 illustrates how preemption issues can be resolved by legislation. Individuals involved in local legal issues that may tread on state or federal authority should be mindful of these issues.
[1] Garrett v. City of Escondido (S.D. Cal. 2006) 465 F. Supp. 2d 1043.
[2] Hazleton Ordinance No. 2006-13
[3] Lozano v. City of Hazleton (M.D. Pa. 2007) 496 F. Supp. 2d 477..
