Jerome Ghigliotti’s persistence is unquestioned. The Novato attorney has spent more than two years the city of Novato to change hiring practices of contracted workers to make sure anybody making a single cent of taxpayer money via city coffers is a legal resident of the United States. He remains in a court battle with the city on that issue.
But Novato’s city attorney, Jeffrey Walter, said he is reassured by a from Marin County Superior Court Judge Lynn Duryee 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.
But despite Duryee’s May 17 decision in favor of the city, Ghigliotti has filed a motion for the court to reconsider the ruling. He maintains that there is no federal preemption on the E-Verify online system of immigration status checks and cited case law that supported his claim.
On Tuesday, he said Duryee was biased and acted in a conflict of interest. He said she has a financial interest in the law firm that employs her husband, Neal Moran, and that the firm represents the county of Marin and the city of San Rafael — two municipalities that do not use the E-Verify system.
Duryee has agreed to another hearing between the two parties on July 26.
“I’m very confident she’s going to deny,” Walter said. “Jerome would have a lot of work to do to make (his proposed ordinance) legal.”
Walter said the motion to reconsider the May 17 ruling is misguided because Ghigliotti cited case law that wasn’t pertinent to the issue at hand. The ordinance drawn up by Ghigliotti, called the Novato Legal Employment and Contracting Initiative, deals with monetary penalties for those who do not comply, not licensing penalties.
“The (Supreme) Court has found that a licensing penalty is not preempted by federal law, but a monetary penalty is preempted,” Walter said. “That’s the distinction Judge Duryee drew, and it’s a significant distinction because that’s what federal law says. She issued her order May 17 and it was pretty clear that she agreed with our analysis on every point, essentially.”
He added that Ghigliotti only relied on one case —Los Chicanos v. Napolitano — and held that if a state or local municipality adopts a law that imposes licensing sanctions on an employer who hired undocumented workers, it is not preempted by federal law. The problem: The Los Chicanos case is pending before the U.S. Supreme Court.
As for Ghigliotti’s claim of bias by Duryee, Walter said, “It’s difficult for me to follow his logic, frankly.”
Ghigliotti has been seeking an answer why a successful voter referendum he orchestrated last year to enact the E-Verify system 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 the online system 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. Walter recommended the Novato City Council not act at all, saying Ghigliotti’s ordinance was unconstitutional. The council did just that and found itself and was promptly sued by Ghigliotti.