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

Attorney Jerome Ghigliotti said he will appeal Judge Lynn Duryee's decision in Marin Superior Court.

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.

Brent Ainsworth (Editor) May 17, 2011 at 05:09 AM
As city representatives said many months ago, they were going to get sued no matter what move the council made last year. As the story mentions, a superior court judge said the initiative was unconstitutional. So it seems it was really Mr. Ghigliotti vs. the U.S. Constitution and other federal law more than Mr. Ghigliotti vs. the city of Novato. So I don't really understand the idea of the city picking and choosing what laws it wants to enforce.
BJL May 17, 2011 at 05:59 AM
A good INS agent should monitor this, including checking city contracts and who gets them or maybe even homeland security should get involved. ...am I understanding this... it is now possible that illegals can work for our town? ...and really someone living in Novato thinks that is ok?
Jerome J Ghigliotti Jr May 17, 2011 at 01:58 PM
The law of the land at the time the initiative came before the council was Chicanos v Napolitano, 558 F.3d 856. Google it under "more", "scholar" and the case number. You read it, The federal court plainly stated that there was no federal preemption. The federal court knows more about federal preemption than any other source. Judge Duryee has a financial interest in the Freitas firm which employs her husband, and Freitas represents municipalities and municipal agencies in Marin County. I will continue to rant until Constitutional law is restored. If Novatoans believe in Constitutional law, then SOMEONE had better run for the open council seats and the filing period is NOW. If not, then any Novatoan who wants the laws enforced will have to sue the city. Barnie Fife has still not implemented my 19 imperatives to reduce illegal alien crime in Novato.
Bob Ratto May 17, 2011 at 01:58 PM
The way I understand it, the E-Verify system is designed so that illegal's do not work directly for the City, but the City has chosen not to use this system for those that the City contract's with. You have a system being used for one group that is not being used for another.
Cindy May 17, 2011 at 02:11 PM
It's very simple really, you want to live in America and partake in all America has to offer, you do what you need to do to be a legal citizen. Illegals are criminals period! There are many immigrants doing the right thing, hooray for them, we want legal citizens to be a part of this great country. If you are doing the right thing you should get the jobs, therefore employers should be checking status, without this control there are no controls and you basically say, come on in illegals we don't check anything!
Bob May 17, 2011 at 02:29 PM
It continues to baffle me why the federal government will not control our borders from illegal immigrants. In 2 weeks we entered Iraq and marched to Baghdad and yet illegal immigrants come through our borders like a sieve. It is not a knock against Hispanic's, it is every nationality. Asian's are a third of the illegal immigrants in California. Go to this website to see what percentage of illegal immigrants come from where in each state. http://www.statemaster.com/graph/peo_est_num_of_ill_imm-people-estimated-number-illegal-immigrants Why should Novato care? How many of the low income housing units that are available are taken by those that are here illegally? The federal and state government's answer is... Build more low income housing.
Susan Clark May 17, 2011 at 02:56 PM
I hate to say this, but, we need a couple of good MEN to run for city council. We need to mix it up a bit!!! And a big THANK YOU to Jerome J. Ghigliotti Jr.
Nick Kies May 17, 2011 at 03:18 PM
In theses types of situations, you should try to out think the rules that hold you back from accomplishing your goals. I would think a City Law that contracting out would be subject to Union scale wages would solve this problem. That way companies that use cheap labor won't have a leg up in the competition for bids and won't gain an advantage by using illegals. It has been shown that these types of laws actually keep money circulating in the local economy and pay off with better jobs, more taxable income (and not from just the contracted work) and a boost to the local econmy.
Larry L May 17, 2011 at 04:06 PM
I thank Mr. Ghigliotti for fighting the city council for the citizens of Novato.... I had a company based in Novato years ago and found that a lot of my competition did not hire employees that were able to legally work in California. Think of this. When undocumented workers are hired, the employer pays NO INSURANCE, TAXES ETC. If they are injured on the job, will they file in court against ther City? This makes it very hard to compete and it takes jobs away from people who have the LEGAL RIGHT to work in this country.
Jerome J Ghigliotti Jr May 17, 2011 at 06:55 PM
http://www.youtube.com/watch?v=uMI_c60DgAU&feature=email In Clarkston, Wisconsin, a council member does not wish to yield to the mayor. She orders the police chief to arrest the council member, which the chief does. The city paid the councilman $65,000. In St Petersburg, Florida a minister is speaking to the council and the public, objecting to a council decision. http://www.youtube.com/watch?v=DsEFTpYDwxs&feature=fvwrel The brother of a council member attacks the minister, who is speaking. The police arrest the victim, the minister who is speaking. Does any of this look familiar? The Novato city council is out of control. We need 3 citizens to run for the open council seats in November, or allow this council to shove their ideologies down our throats, forever. Filing is open now.
Rick Oltman May 17, 2011 at 07:43 PM
The law requires the city to put the initiative on the ballot if it qualifies, or enact it as an ordinance. There is no third way. The city has violated election law, disenfranchised the 3,500 voters who signed the petitions and denied 28,000 voters the right to choose. The judge is wrong. This is not preempted by the Constitution's Commerce Clause or the IRCA. The 10th Circuit ruled years ago that local jurisdictions can enforce federal law if there is no state law prohibiting it. All of you who do not want immigration and employment laws enforced are a disgrace. Especially with 25 million Americans out of work and illegal alien criminals choking our courts.
Marie Hoch May 17, 2011 at 08:21 PM
Well the City of Novato is not Bell, California. We have many residents who volunteer their time and energy in support of their values and their community. Its the democratic way. When I was a kid we used to say "this is a free country". I love being part of it.
John Parnell May 17, 2011 at 09:01 PM
Edwin Drake & Rick Oltman are right. The City Council was required by law to give the initiative to the County Registrar of Voters to be put on the ballot. They violated the rights of Mr. Ghigliotti and every Novato voter by refusing to put it on the ballot. It was not their right to make a judgement call on its judicial merits. The Novato City Council overstepped its bounds & subverted the democratic process. As we at RepealSMART.org prepare to obtain over 40,000 signatures in Marin & Sonoma to repeal SMART (which must be presented to the SMART Board to be passed along to the County Registrars), we worry about the precedent that this sets. What if the SMART Board doesn't like our repeal initiative? I would expect Mr. Ghigliotti to win on appeal. The issue is not whether his initiative is legal, but whether the Novato City Council acted illegally by not putting it on the ballot & should be compelled to do so. Let the courts overrule the people if it passes (that's the American way). Whether we like Mr. Ghigliotti's initiative or not, he deserved his initiative to be presented to the people, and then let us & the Council give our opinions of his initiative at the ballot box. Mr. Ghigliotti - Perhaps you should run for the Council, and then you can legitimately say that you have done all that you can.
Jerome J Ghigliotti Jr May 18, 2011 at 12:50 AM
Thanks, John.
DINAH MATTOS May 18, 2011 at 01:20 AM
Your the man Jerome. I know nothing about politics but I have listened to you and I have learned from you. All of those in support of Jerome.....I TOLD YOU SO...I TOLD YOU SO....I TOLD YOU SO. You go Jerome. Thank you for all your work.
Cindy May 18, 2011 at 02:05 AM
At least Jerome has the ba___s to say what so many are thinking and afraid to say, you go Jerome, we need your voice for the sane side of this community!
John Cheney May 18, 2011 at 04:12 AM
John Cheney What, the blank going on in the USA , Illegal took my daugter job and without my help she and my two grandkids would be living on the street. We mush stop hiring them, show them the door.
Jerome J Ghigliotti Jr May 18, 2011 at 04:27 AM
What-the-blank-is-going on is that the roles of government and the people have been reversed. We are now their servants. We, now, must implement they means and goals. WE have let that happen. For 47 years, we have all been blinded by government programs that "sound" like a good idea. We have inherited the wind. We have now outspent our means, we have outspent our children's means, and we have outspent our grandchildren's means. And what do we have to show for it? We have a record of very nice looking political correctness, that has replaced both law and order. The illegal have more rights than the legal. The illegal benefit and the legal pay fo rit. WE are now reponsible for correcting that. I am trying. I need YOU to stand up, be counted, take responsibility back from this disfunctional government, and level by level, each government above it.
Edwin Drake May 18, 2011 at 05:50 AM
Under California law it's not for the City Council to decide what's constitutional and what's not. A legitimate referendum was presented to them. They are required by law to put it to a vote. After the vote ... that's another matter. But we didn't elect the City Council to act as the Novato Supreme Court.
Edwin Drake May 18, 2011 at 05:56 AM
One other thing: If the rule of law doesn't count for something then we are no longer living in the United States. It's what sets us apart. I disagree with JJGJr, but his referendum was signed and filed "fair and square" and it's unconscionable that the City Council refuses to place it on the ballot because they don't 'like' it. Novato has officially turned into a banana republic.
Craig Belfor May 18, 2011 at 02:06 PM
This is sounding a lot like the Andrew Smith case. Andrew Smith was a student at Novato High, and while working on the school paper, wrote an article stating that if we were to have these immigration laws we should enforce them. He suggested that if a person came into contact with authorities and could not speak English well, that maybe he wasn't born here and the authorities should check his immigration status. The school recalled the paper, kicked Andrew off the paper, called him to a meeting, and chastised him for his opinion. Andrew sued for the right to speak his mind. The case went all the way to the Supreme Court, and Andrew won. His award? $1!. He just wanted to prove his point, that democracy is not a spectator sport, that participation is required. Jerome got arrested for trying to speak to the audience at a town council meeting. I wasn't there, but it sounds like we have one person besides Andrew Smith who isn't afraid to speak his mind.
Jerome J Ghigliotti Jr May 18, 2011 at 03:20 PM
That is my point, exactly. The Rule of Law has broken down and has been replaced with an activist, politically correct agenda. When I started this, I contacted Andrew Smith's attorneys and asked them for permission to publish his article. They did not reply. He has moved away. Now we know why. The Rule of Law has broken down in Novato, in Marin, in California, and in virtually all metropolitan areas throughout the United States. City, county, and state government has broken down in its responsibility to represent its constituency, and we citizens must take it back. Government is telling us what is good for us and shoving it down our throats, with the Legal Employment and Contracting issue, with "affordable housing" (euphenism for welfare/felon housing), and with the bait and switch of SMART. We meager, dis-enfranchised citizens must get active and take back government. THAT was the purpose of the Inititiative, my initiative , and the concept of initiative in the California Constitution. California has the 3rd longest Constitution in the world, behind India and Alabama. Wikipedia opines that was because the founders did not trust politicians. Look it up. Well, the goody-two shoes politicians have taken our Constitution away from us. It HAS happened.
Pebes May 18, 2011 at 04:27 PM
oh brother.
Steven Norwin May 18, 2011 at 04:54 PM
Pebes, what are you contributing to make Novato a better place to live? As Mr. Oltman put it - Those of you who do not want immigration and employment laws enforced are a disgrace!
Pebes May 18, 2011 at 06:13 PM
If Rick Oltman- who opposes LEGAL immigration, a man with known ties to white supremacist movements around the country-finds me a disgrace- then I am squarely on the right path. I would never knowingly do anything to gain that man's approval. And since you seem to find him so admirable, I have all the information i need to judge your actions and motivations.
Steven Norwin May 18, 2011 at 07:28 PM
This post is not meant to slander anyone. Try thinking before you post. Maybe then your voice will be taken seriously.
Craig Belfor May 18, 2011 at 08:07 PM
People without last names are like summer school valedictorians. No one cares.
Don4366 May 21, 2011 at 11:50 AM
The city as well as the state has the right to set contractor requirements for city contract work. Illegal immigrants are NOT a protected class of people. Therefore, the judges ruling should be overturned on appeal. What this judge is saying is that the city does NOT have the right to regulate their contractors. This is totally the WRONG DECISION.
Jerome J Ghigliotti Jr May 21, 2011 at 04:32 PM
Don, I can tell that you and I grew up in the same world. That world no longer exists. Yes, Virginia, illegal aliens are a protected class. They are protected by the city council of Novato. They are among the many groups who sing that they are different, and therefore they demand to be treated specially. The world is upside down when the detrimental persons, those who have no respect for the laws of the country, have more rights and privileges than do law abiding citizens. Please join me in ranting. Tell your friends, get them to read Patch, come to city council meetings and show your supporrt when I rant. Even the judges have no respect for the law. That is our upside down world. The leftist who have invented this world have good hearts but defective brains. Stay away from them, vote them out of office. Join me. Rant. Thanks.
Raine June 08, 2011 at 01:28 AM
Jerome - Have you considered running for Mayor? I've lived in Novato for more than 20 years and have witnessed this town looking like a barrio more and more each year. Why aren't the laws enforced that make it illegal to hire illegals? Don't give up the fight. Get it on the ballot and the city will have to put it to a vote. I'm sure there will be enough votes to get these bums off Redwood Blvd. If you don't hire them, they'll self deport.

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