Judge Backs City of Novato in Rift Over Immigration-Related Ordinance

The city of Novato earned a victory in court Monday when a judge agreed that it is  unconstitutional to require that all contracted employees with the city — and all employees working for any company that contracts with the city — have their immigration status checked first.

The tentative ruling in Marin County Superior Court was a defeat for Novato attorney Jerome Ghigliotti, — adamantly and demonstratively — at Novato City Council meetings for two years that the city adopt an ordinance that requires all companies doing business with the city only hire legal American residents.

Ghigliotti told Novato Patch that he would appear in front of Judge Lynn Duryee on Tuesday and explore the slim chance that she will change her mind.

The outspoken attorney served papers to the council to appear in court May 17 to explain why a successful voter referendum he orchestrated last year to enact the E-Verify system of online immigration status checks has not been presented to Novato voters or approved by the council. The city voluntarily uses E-Verify for the hiring of city employees but does not require the use of E-Verify for companies with which it signs contracts.

By law, referendums with the minimum amount of verified voter signatures must be placed on a ballot or enacted as an ordinance.

On Monday, Ghigliotti and city attorney Jeffrey Walter appeared in court to hear Duryee’s tentative ruling, and she denied Ghigliotti’s petition for a writ of mandate.

Walter, appearing as required by the writ served during the March 29 council meeting, had advised the City Council not to act upon the referendum because he deemed it preempted by federal law, so no action was taken.

Duryee agreed with Walter’s arguments. According to the tentative ruling, she cited the Immigration Reform and Control Act and the Commerce Clause of the U.S. Constitution as reasons why the electorate is “without authority to adopt the initiative and (the city) should not be compelled to adopt it or place it on the ballot.”

City Manager Michael Frank said he was pleased with Monday’s ruling.

“We’re very happy that the court reaffirmed the opinion of the city attorney that the council’s action was legal and justified,” Frank said.

Before Monday’s ruling, Ghigliotti said he would appeal Duryee’s decision if it went against him. He estimated that the city has spent more than $20,000 in legal fees “in order to fight the will of the people, expressed by those who signed the initiative, and those support my efforts …”

Last week, Ghigliotti subpoenaed each member of the council plus Frank and City Clerk Sheri Hartz to appear in court Tuesday, but Walter’s request to have it quashed was granted.

Ghigliotti said he believes Frank has usurped the powers of his office and “imposed his own ideology in a dictatorial manner on many city policies, not just the initiative. I have never in my lifetime encountered such a self-righteous individual. … It is the lack of personal criticism of Hitler in 1933 that allowed him to rise to power. If we do not regain control of our own democracy, it will vanish forever.”

Ghigliotti, a spokesman for the Novato-based Citizens for Legal Employment and Contracting, completed all paperwork for the referendum in time to have it placed on the Nov. 2 ballot last fall, obtaining verified signatures from 12 percent of the city’s registered voters. He provided samples of case law that, according to Ghigliotti, proved it is legal to enact such an ordinance.

Walter said last month that there is a body of case law that says this sort immigration ordinance is “patently illegal” despite that more than a dozen cities have similar ordinances that support the E-Verify system.

Monday’s tentative judgment “shows that if you don’t research your initiative ahead of time, it’s a waste of money and resources,” Frank said.

In September 2010, Ghigliotti was arrested at a council meeting and led away in handcuffs for disturbing a public meeting. He had repeatedly ignored instructions from then-Mayor Jeanne MacLeamy to address the council rather than the audience and the continued speaking at the microphone when the council took a recess.

In a separate lawsuit from the E-Verify suit, Ghigliotti seeks damages of $2.3 million from the city based on that arrest. Frank said he has not heard an update on that lawsuit.