Serbon v. City of E. Chi.

194 N.E.3d 84

Greg SERBON and John Allen, Appellants / Cross-Appellees-Plaintiffs,

v.CITY OF EAST CHICAGO, Indiana, City of East Chicago Common Council; Monica Gonzalez, Lenny Franciski, Terrence Hill, Stacy Winfield, Robert Garcia, Gilda Orange, Dwayne Rancifer, Jr., Emiliano Perez, and Kenneth Monroe, in their official capacities as City of East Chicago Common Council Members; Anthony Copeland, in his official capacity as City of East Chicago Mayor; City of East Chicago Police Department; and Hector Rosario, in his official capacity as City of East Chicago Chief of Police, Appellees / Cross-Appellants-Defendants,State of Indiana, Intervenor.

Court of Appeals Case No. 21A-PL-1046

Court of Appeals of Indiana.

FILED August 15, 2022

Attorneys for Appellants / Cross-Appellees: James Bopp, Jr., Richard E. Coleson, Courtney Turner Milbank, Melena S. Siebert, The Bopp Law Firm, PC, Terre Haute, Indiana, Dale Lee Wilcox, Immigration Reform Law Institute, Washington, DC

Attorneys for Intervenor: Theodore E. Rokita, Attorney General of Indiana, Thomas M. Fisher, Solicitor General, Office of the Attorney General, Aaron T. Craft, Section Chief, Civil Appeals, Office of the Attorney General, Benjamin M. L. Jones, Abigail Recker, Deputies Attorney General

Attorneys for Appellees / Cross-Appellants: Angela M. Jones, Law Offices of Angela M. Jones, Saint John, Indiana, Carla J. Morgan, Corporation Counsel, East Chicago, Indiana, Amy L. Marshak, Mary B. McCord, Joseph Mead, Georgetown University Law Center, Washington, DC

Tavitas, Judge.

Case Summary

[1] Greg Serbon and John Allen ("the Plaintiffs") filed a complaint against the City of East Chicago, the City's Common Council and its members in their official capacities, the City's Mayor, Police Department, and Chief of Police (collectively "the City"). The Plaintiffs alleged in their complaint that certain portions of East Chicago Ordinance 17-0010 ("the Ordinance") violate Indiana Code Chapter 5-2-18.2 ("Chapter 18.2"), which requires local officials to cooperate with federal immigration authorities. After both parties filed crossmotions for summary judgment, the trial court ruled that the Plaintiffs did not have standing to bring a federal constitutional challenge but did have standing to challenge the Ordinance under Indiana law. The trial court determined that Sections 3, 6(a), and 6(c) of the Ordinance violate Indiana Code Section 5-2-18.2-3 and enjoined the City from enforcing these provisions.

[2] The Plaintiffs appeal and argue that the trial court should have determined that Sections 9(c) and 10 of the Ordinance also violate Chapter 18.2. The City cross-appeals and argues that the Plaintiffs lack standing and that the Ordinance does not violate Chapter 18.2. We agree with the City that the Plaintiffs—who do not live in the City, do not pay taxes to the City, and have shown no cognizable harm to either themselves or the public—do not have standing to challenge the Ordinance. Accordingly, we reverse the judgment of the trial court and remand with instructions to dismiss the Plaintiffs’ complaint for lack of standing.

Issues

[3] We find one issue to be dispositive: whether the Plaintiffs have standing to challenge the Ordinance.

Background

[4] Illegal immigration is a divisive political issue. In response to more stringent enforcement of federal immigration laws, many cities claimed to be "sanctuary cities" that would not cooperate with federal immigration authorities. See Rose Cuison Villazor & Pratheepan Gulasekaram, The New Sanctuary and Anti-Sanctuary Movements, 52 U.C. Davis L. Rev. 549, 554 (2018) (noting that the term "sanctuary city" typically refers to "jurisdictions declining to participate in federal immigration enforcement"). In 1996, Congress passed the Illegal Immigration Reform and Immigrant Responsibility Act ("IIRIRA"), which includes a provision that made it illegal for state or local governments to "prohibit, or in any way restrict, any government entity or official from sending to, or receiving from [federal immigration authorities] information regarding the citizenship or immigration status, lawful or unlawful, of any individual." 8 U.S.C. § 1373. IIRIRA does not require local governments to enforce federal immigration laws but does require certain cooperation. See Pratheepan Gulasekarama, et al., Anti-Sanctuary and Immigration Localism , 119 Colum. L. Rev. 837, 845 (2019).¹

[5] When federal efforts to combat sanctuary cities proved of limited success, several states adopted "anti-sanctuary city laws," which prohibit local governmental units and state educational institutions from restricting their cooperation with federal immigration authorities. Id. at 848. Indiana is one such state. Id. at 848 n.55.

A. Indiana Code Chapter 5-2-18.2

[6] In 2011, Indiana enacted Chapter 5-2-18.2 ("Chapter 18.2"),² an anti-sanctuary city provision. The relevant portions of Chapter 18.2 include Indiana Code Section 5-2-18.2-3 which provides:

A governmental body^[3] or a postsecondary educational institution^[4] may not enact or implement an ordinance, a resolution, a rule, or a policy that prohibits or in any way restricts another governmental body or employee of a postsecondary educational institution, including a law enforcement officer,^[5] a state or local official, or a state or local government employee, from taking the following actions with regard to information of the citizenship or immigration status, lawful or unlawful, of an individual:

(1) Communicating or cooperating with federal officials.

(2) Sending to or receiving information from the United States Department of Homeland Security.

(3) Maintaining information.

(4) Exchanging information with another federal, state, or local government entity.

[7] Section 4 of Chapter 18.2 next provides: "A governmental body or a postsecondary educational institution may not limit or restrict the enforcement of federal immigration laws to less than the full extent permitted by federal law." I.C. § 5-2-18.2-4.

[8] At issue in the present case is Section 5 of Chapter 18.2 ("Section 18.2-5"), which provides a means of enforcing Chapter 18.2. Specifically, Section 18.2-5 states: "If a governmental body or a postsecondary educational institution violates this chapter, a person lawfully domiciled in Indiana may bring an action to compel the governmental body or postsecondary educational institution to comply with this chapter." I.C. § 5-2-18.2-5 (emphasis added). If, in such an action, the trial court "finds that a governmental body or postsecondary educational institution knowingly or intentionally violated section 3 or 4 of this chapter, the court shall enjoin the violation." I.C. § 5-2-18.2-6.

B. The Welcoming City Ordinance

[9] On June 26, 2017, the City Council of East Chicago passed the Ordinance at issue in the present case: Ordinance 17-0010, titled "Welcoming City Ordinance." Appellant's App. Vol. II p. 77. The relevant portions of this Ordinance provide:

Section 3. Requesting information prohibited.

No agent or agency shall request information about or otherwise investigate or assist in the investigation of the citizenship or immigration status of any person unless such inquiry or investigation is required by an order issued by a court of competent jurisdiction. Notwithstanding this provision, the Corporation Counsel may investigate and inquire about citizenship or immigration status when relevant to potential or actual litigation or an administrative proceeding in which the City is or may be a party.

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Section 6. Immigration enforcement actions-Federal responsibility.

No agency or agent shall stop, arrest, detain, or continue to detain a person after that person becomes eligible for release from custody or is free to leave an encounter with an agent or agency, based on any of the following:

1) an immigration detainer;

2) an administrative warrant (including but not limited to entered [sic] into the Federal Bureau of Investigation's National Crime Information Center database); or

3) any other basis that is based solely on the belief that the person is not present legally in the United States, or that the person has committed a civil immigration violation.

a. No agency or agent shall be permitted to accept request[s] by ICE or other agencies to support or assist in any capacity with immigration enforcement operations, including but not limited to requests to provide information on persons who may be the subject of immigration enforcement operations (except as may be required under section 11 of this ordinance), to establish traffic perimeters, or to otherwise be present to assist or support an operation. In the event an agent receives a request to support or assist in an immigration enforcement operation he or she shall report the request to his or her supervisor, who shall decline the request and document the declination in an interoffice memorandum to the agency director through the chain of command.

b. No agency or agent shall enter into an agreement under Section 1357(g) of Title 8 of the United States Code or any other federal law that permits state or local government entities to enforce federal civil immigration laws.

c. Unless presented with a valid and properly issued criminal warrant, no agency or agent shall:

1. Permit ICE agents access to a person being detained by, or in the custody of, the agency or agent;

2. Transfer any person into ICE custody;

3. Permit ICE agents use of agency facilities, information (except as may be required under section 11 of this ordinance), or equipment, including any agency electronic databases, for investigative interviews or other investigative purpose or for purposes of executing an immigration enforcement operation; or

4. Expend the time of the agency or agent in responding to ICE inquiries or communicating with ICE regarding a person's custody status, release date, or contact information.

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Section 10. Information regarding citizenship or immigration status.

Nothing in this chapter prohibits

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