PLAINTIFFS MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO Civil Action No. 00-M-210 JULIANA IBARRA; EUSEBIO IBARRA; DAVID SCOTT LEONARD; and ZACHARY MATHEW BROADBENT and ANDREW JOSHUA MOINEAU by JULIANA IBARRA as next friend, vs. Plaintiffs, THE CITY OF NORTHGLENN, Defendant. PLAINTIFFS MEMORANDUM BRIEF IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION Plaintiffs respectfully submit this Memorandum Brief in support of their Motion for Preliminary Injunction: FACTUAL BACKGROUND 1 Eusebio and Juliana Ibarra are owners of a single family residence within the City of Northglenn, Colorado. They have lived in this house for fifteen years. The Ibarras operate a foster family certified by Lost & Found, Inc., a child placement agency licensed by the State of Colorado. Mrs. Ibarra has received special training to be a foster parent for juvenile sex offenders, including almost 90 hours of formal instruction in adolescent development and sexuality; sexual behaviors; and parenting

2 the sexually violated child or perpetrator. The Ibarras share their home with their natural son, Joel Ibarra, and four foster children, three of whom, Zachary, David, and Aaron, are required to register as sex offenders pursuant to C.R.S as amended. Zachary has lived under the care and supervision of the Ibarras for three years whereas David and Aaron became members of the foster family in These three foster children regard Mrs. Ibarra as their mother and, although unrelated by blood, treat each other as brothers. On or about November 11, 1999, a bill was introduced in the Northglenn City Council known as Councilman s Bill CB-1330 ( CB-1330 ), proposing to amend the Northglenn Zoning Ordinance to prohibit sex offenders from living together in residential zones. At all relevant times, the only home in Northglenn that would have violated these provisions was the Ibarra home. After first reading, referral to the Northglenn Planning Commission and second and final reading on December 9, 1999, CB-1330 purportedly became effective on December 22, However, because material changes were made to the bill between first and second reading, it was ineffective under the Northglenn Municipal Code. The bill became known as Ordinance No On approximately December 21, 1999, Detective Hipp of the City of Northglenn visited the Ibarras home, and threatened to cite them for violating Ordinance Detective Hipp stated that the Ibarras would be criminally prosecuted if they did not remove at least two of the three foster children from their home by January 10, Although Plaintiffs have already reviewed the factual content of this dispute in their Memorandum Brief in Support of Motion for Temporary Restraining Order, they repeat it here simply for ease of reference by the Court 2

3 The Ibarras, through counsel, notified the City of Northglenn by letter dated January 8, 2000 that the use of their home in Northglenn was a legally protected preexisting use under Section 11, Article 26 of the Northglenn Zoning Ordinance, which provides: The lawful use of land or structures as existing at the time of the passage of this ordinance or an amendment hereto that does not conform with the regulations of this ordinance shall be deemed a non-conforming use. (Letter from Silverstein to Gunderson, attached as Exhibit B to Memorandum Brief in Support of Motion for TRO.) Subsequently, the Ibarras, through counsel, reviewed the procedural history of Ordinance No. 1243, and advised Northglenn by letter dated January 14, 2000, that Ordinance No had been enacted improperly under the Northglenn City Code insofar as the procedural requirements of the Code had not been complied with. (Letter from Eurich to Phillips, attached as Exhibit C to Memorandum Brief in Support of Motion for TRO.) By letter dated January 20, 2000, the City Attorney for the City of Northglenn responded, asserting the effectiveness of Ordinance No. 1243, stating that the City of Northglenn had not decided whether to cite the Ibarras for violation of the Ordinance, and promising advance notice of any such service. (Letter from Phillips to Eurich, attached as Exhibit D to Memorandum Brief in Support of Motion for TRO.) On January 27, 2000, at 7:00 p.m., without prior notice, Northglenn enacted Ordinance No (attached as Exhibit E to Memorandum Brief in Support of Motion for TRO). Ordinance No purports to prohibit registered sex offenders from living together in residential zones of Northglenn, and defines a family as not including more than one individual (or two or more individuals related by blood or marriage) required 3

4 to register as a sex offender... (Changes from Ordinance No in italics.) Ordinance No was adopted on first and final reading at a single meeting on January 27, 2000, and declared to be effective immediately upon enactment on the ground of a public safety risk. Ordinance No also was specifically excepted from the non-conforming use provisions of the Northglenn Zoning Ordinance. By letter dated January 28, 2000, the City Attorney for the City of Northglenn, Herbert C. Phillips, advised counsel for the Ibarras of such enactment and stated that, should the Ibarras remain in violation of the prohibition against group quarters for registered sex offenders, I would anticipate that they will be served with a Summons and Complaint in Northglenn Municipal Court sometime on Tuesday of next week. (Letter from Phillips to Eurich and Silverstein, attached as Exhibit F to Memorandum Brief in Support of Motion for TRO.) The City of Northglenn gave the plaintiffs until Tuesday, February 1, days after the ordinance at issue was adopted to move from Northglenn where they have lived for 15 years, break up their family or be served with a summons and complaint and prosecuted for a criminal violation that carries a criminal penalty of a year in jail and/or a fine of $1, for each day they are found to be in violation of the Northglenn Zoning Ordinance. For the reasons discussed below, the Temporary Restraining Order entered by this Court on Tuesday, February 1, 2000, should be entered as a Preliminary Injunction. ARGUMENT A party is entitled to preliminary injunctive relief if it can establish (1) a substantial likelihood of prevailing on the merits; (2) irreparable harm in the absence of 4

5 the injunction; (3) proof that the threatened harm outweighs any damage the injunction may cause to the party opposing it; and (4) that the injunction, if issued, will not be adverse to the public interest. Kansas Health Care Assoc., Inc. v. Kansas Dep t of Social and Rehabilitation Svs., 31 F.3d 1536, 1542 (10 th Cir. 1994). As demonstrated in this brief, plaintiffs can satisfy each of these elements. I. THERE IS A SUBSTANTIAL LIKELIHOOD THAT PLAINTIFFS WILL PREVAIL ON THE MERITS. A. Ordinance No Violates The Fair Housing Act. Ordinance No. 1248, on its face, discriminates against familial status in violation of the Fair Housing Act, 42 U.S.C. 3604(f)(1)(B) & (3)(B). Under the Fair Housing Act, it is unlawful to make unavailable or deny a dwelling to any person on the basis of race, color, religion, sex, familial status, national origin or disability. 42 U.S.C. 3602(i) (emphasis added). 1. The Fair Housing Act Prohibits Discriminatory Zoning Practices. The Fair Housing Act expressly provides: Nothing in this subchapter shall be construed to invalidate or limit any law of a state or political subdivision of a State, or of any other jurisdiction in which this subchapter shall be effective, that grants, guarantees, or protects the same rights as are granted by this subchapter; but any law of a State, a political subdivision, or other such jurisdiction that purports to require or permit any action that would be a discriminatory housing practice under this subchapter shall be invalid. 42 U.S.C (emphasis added). According to the House Committee Report, the Fair Housing Act is intended to prohibit the application of special requirements through land-use regulations, restrictive covenants, and conditional or special use permits that have the effect of limiting the ability of [protected individuals] to live in 5

6 the residence of their choice in the community. H.R. Rep. No , 100 th Cong., 2d Sess. 24 (1988), U.S. Code Cong. & Admin. News 1988, pp. 2173, It is well settled from court decisions that the Fair Housing Act applies to discriminatory actions taken by municipalities pursuant to zoning ordinances. Smith & Lee Assocs., Inc. v. City of Taylor, 13 F.3d 920, 924 (6 th Cir. 1993). The Tenth Circuit has expressly held that [t]he FHAA s prohibitions clearly extend to discriminatory zoning practices. Bangerter v. Orem City Corp., 46 F.3d 1491, 1498 (10 th Cir. 1995); accord Larkin v. State of Michigan Dep t of Social Svs., 89 F.3d 285, 289 (6 th Cir. 1996) ( Congress explicitly intended for the [Fair Housing Act] to apply to zoning ordinances ). As a result, the law of a state or municipality is expressly preempted and invalidated by the Fair Housing Act if it is a discriminatory housing practice under the Act. Bangerter, 46 F.3d at 1500 n The Fair Housing Act Proscribes Discrimination Against Foster Families Such as the Plaintiffs. The Fair Housing Act defines familial status as: Familial status means one or more individuals (who have not attained the age of 18 years) being domiciled with (1) a parent or another person having legal custody of such individuals; or (2) the designee of such parent or other person having such custody, with the written permission of such parent or other person. 42 U.S.C. 3602(k). In Gorski v. Troy, 929 F.2d 1183 (7 th Cir. 1991), the 7 th Circuit held that a foster family is protected by the Fair Housing Act s prohibition against discrimination based on familial status under this definition in the Act. Id. at There, the plaintiffs 6

7 alleged that they were evicted from their homes because of their attempt to qualify as foster parents. Id. at The court held that the plaintiffs were protected under the Fair Housing Act because foster parent[s] clearly [are] designee[s] of the state, which, in turn, is the legal custodian of a child committed to its care. Id. For the same reasons, members of the Ibarra family are protected under the Act. As will be demonstrated at the hearing, the Ibarras are licensed in the State of Colorado as foster parents, i.e. designees of the State, and there are one or more individuals (who have not attained the age of 18 years) being domiciled with them. Thus, at least two members of the Ibarra family, David and Aaron, who are both 17 years of age, and whom Northglenn seeks to have removed from the family home, are specifically protected under the definition of familial status in the Fair Housing Act, as they live with the Ibarras, who have custody of them. 3. Ordinance No Facially Discriminates On The Basis Of Familial Status. The Ordinance defines family as not includ[ing] more than one individual, (or two or more individuals related by blood or marriage), required to register as a sex offender under the provisions of C.R.S , as amended. The Ibarras chose to have 18 year old Zachary remain in their home. Because Zachary is a registered sex offender, the Ordinance would require the removal of two other children, David and Aaron. If Zachary remains a part of the family in their home in Northglenn, David and Aaron may not do so. Such a result discriminates against each of them by excluding them from the definition of family, in direct violation of their protected status under the Fair Housing Act. They are both specifically protected by the Act from such 7

8 discrimination by being defined as part of the family. The Ordinance illegally attempts to remove that protection by requiring their removal from the family. This directly violates their rights under the Fair Housing Act and must be enjoined. Thus, as defined in the Ordinance, the Northglenn Zoning Code now prohibits certain families, such as the Ibarras, from the use or enjoyment of their home. The fact that the Ordinance encumbers some, but not all, families does not make it any less discriminatory. The Children s Alliance v. City of Bellevue, 950 F. Supp n.8 (W.D. Wa. 1997) ( That a law may not burden all members of the protected class does not remove its facially discriminatory character. ) In addition, the Ordinance facially favors families related by blood and marriage as opposed to foster families by creating different occupancy limits. For this independent reason, the Ordinance violates the Fair Housing Act. See id. at 1496 (zoning ordinance that imposes different occupancy limits on family dwellings depending on familial relationship of residents was facially discriminatory). The Tenth Circuit has held that a plaintiff can establish a prima facie case of intentional discrimination under the Fair Housing Act merely by showing that a protected group has been subjected to explicitly differential i.e. discriminatory treatment. Bangenter, 46 F.3d at The Ibarra children and the Ibarra family are protected under the Act; and a law, such as Ordinance 1248, that facially denies housing to a protected group violates the Fair Housing Act. See Larkin, 89 F.3d at 291 (The Fair Housing Act protects the right of individuals to live in the residence of their choice in their community. ). Thus, there is a substantial likelihood that plaintiffs can establish a violation of 8

9 the Fair Housing Act for discrimination based on familial status. B. Ordinance 1248 Violates Plaintiffs Substantive Due Process Rights Northglenn s decision to amend its Zoning Ordinance and essentially threaten banishment of the Ibarras on four days notice is as clear a violation of the due process rights of the Ibarras as can be imagined. The Fourteenth Amendment of the Constitution provides individuals protection from the state: No state shall... deprive any person of life liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. In the present matter, Ordinance No. 1248, both in its substance and by the procedures used to create and enforce it, violate the Due Process Clause of the Fourteenth Amendment. The substantive due process clause is implicated by the infringement on the fundamental right to personal choice in matters of family life, and the procedural due process clause is implicated by the overnight passage of a zoning law that deprived the Ibarra s of their fundamental liberty interest in freedom from criminal prosecution and their property rights as homeowners. While zoning decisions are presumed valid, and the party challenging the constitutionality of the ordinance normally bears the burden of proving the asserted invalidity, the discretion of the municipality to promulgate zoning regulations is not absolute, and must satisfy constitutional limitations applicable to all legislative decisions. See Zavala v. City & Cty. Of Denver, 759 P.2d 664, 670 (Colo. 1988). Thus, Ordinance No must satisfy the substantive due process standards in order to be constitutional. For a substantive due process analysis, the court must first determine the nature 9

10 of the interest involved and then apply the appropriate level of scrutiny. When an ordinance restricts a fundamental right or creates a suspect class, the courts must apply strict scrutiny which requires the government to show that the regulation is narrowly tailored to a compelling state interest. Zavala, 759 P.2d at 670. If the ordinance does not implicate fundamental rights or a suspect class, but does infringe on important interests the court will apply the intermediate level of scrutiny requiring the state to show an important government interest and that the ordinance is substantially related to achieve that interest. Id. Lastly, an ordinance that does not implicate a fundamental right, suspect class or important interest must pass the rational basis test, which requires that the ordinance have valid reasons for its enactment and that the terms of the ordinance are rationally related to that goal. Id. 1. The ordinance implicates the fundamental liberty interest in the privacy of family relations and is unconstitutional because it fails to pass the strict scrutiny standard. As written and as applied, Ordinance No forces the Ibarra family to chose between living in their home of fifteen years, facing criminal charges or living with all of their children for whom they are responsible. This notion goes to the very heart of our traditional notions of privacy. In Moore v. City of East Cleveland, 431 U.S. 494 (1977) the Supreme Court struck down an ordinance prohibiting a grandmother to live with her grandson and his cousin on the basis of strict scrutiny stating that, [t]his Court has long recognized that freedom of personal choice in matters of marriage and family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment. See e.g., Griswold v. Connecticut, 381 U.S. 479 (1965); Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Pierce v. Society of Sisters, 10

11 268 U.S. 510, (1925); Wisconsin v. Yoder, 406 U.S. 205, (1972). Moreover, Justice Stevens, in his concurring opinion in Moore, recognized the fundamental right of property owners to decide who may reside on their property. See Zavala, 759 P.2d at 672. The Court in Wise v. Bravo, 666 F.2d 1328 (10 th Cir. 1981) (Seymour, J., concurring) summarized the issue in the following: The right to a relationship with one s child is not created either by the constitution or by state statute. I believe it is one of those fundamental, inherent rights of every individual that predates both the federal Constitution and the state laws. Like the right to marry and have children and the right to live where one wants and pursue a livelihood by any lawful means, this right constitutes a liberty interest. While the line of decisions regarding the fundamental right of personal choice in family matters involves biological or adopted family members, the present matter involves the same fundamental principles. As the court noted in Moore, unless we close our eyes to the basic reasons why certain rights associated with the family have been accorded shelter under the Fourteenth Amendment s Due Process Clause, we cannot avoid applying the force and rationale of these precedents to the family choice involved in this case. See Moore, 431 U.S. at 501. Similarly, the foster children in the present matter live with the Ibarras because they no longer have biological parents to care for them or protect their interests. For the purposes of analyzing this ordinance, the foster children living with the Ibarras function as a family unit. Central to the decisions supporting the fundamental liberty interest in family rights is the interest in preserving the institution of the family. See e.g., Ginsberg v. New York, 390 U.S. 629 (1968); Griswold, 381 U.S. at 496 (Golberg, J., joined by Warren, C.J., and Brennan, J. concurring). Ordinance No forces the Ibarras to dismantle their family unit, a 11

12 goal in direct contravention of the interests traditionally protected by the courts. See Myres v. Rask, 602 F. Supp. 210, 213 (D. Colo. 1985) ( A culture that draws its strength from family values that long predate the constitution must persistently proclaim and protect those values. ). Further, in considering but not deciding if foster parents have a liberty interest in maintaining custody of their foster children, the Supreme Court stated that we cannot dismiss the foster family as a mere collection of unrelated individuals. See Smith v. Organization of Foster Families for Equality & Reform, 431 U.S. 816, 845 (1977). Thus, this ordinance implicates a fundamental right and the Court should apply the strict scrutiny analysis to Ordinance No Under the strict scrutiny analysis the ordinance clearly fails. Assuming that the compelling state interest is the protection of the community from sexual offenders, the ordinance also fails as it is not narrowly tailored to meet that interest. The compelling state interest is based upon the faulty fundamental premise that sexual offenders are more likely to offend if they live in the same house, even though the Defendant admits, reasonable minds might differ on the advisability of concentrating sexual predators in one neighborhood.... See Defendant s Response Motion to Temporary Restraining Order at 10. Moreover, the ordinance prohibits two or more registered sex offenders from living in the same house only if they are unrelated by blood or marriage. If the interest in preventing multiple sexual offenders from living in the same house is so compelling, the prohibition should not only apply to unrelated persons. Surely the City of Northglenn cannot argue that a relationship by blood or marriage of sexual predators changes the risk to the community. Therefore, the ordinance is not narrowly tailored to 12

13 achieve the goal and fails under the strict scrutiny standard. 2. Even under the rational basis test this ordinance fails to pass constitutional muster. In Village of Belle Terre v. Boraas, 416 U.S. 1, 11 (1974) the Court set forth the standard for review of social and economic legislation as requiring that the law be reasonable, not arbitrary, and bear a rational relationship to a permissible state objective. See also Mosgrove v. Town of Fed. Hts., 543 P.2d 715, 718 (Colo. 1975). In further explaining this standard, the Court stated that [t]he State may not rely on a classification whose relationship to an asserted goal is so attenuated as to render the distinction arbitrary or irrational. Furthermore, some objectives such as a bare... desire to harm a politically unpopular group are not legitimate state interests. See City of Cleburne v. Cleburne Living Ctr., Inc., 473 U.S. 432, 447 (1985) (citations omitted). Ordinance No fails to meet even this minimal rational basis standard. First, the arbitrary nature of this ordinance is highlighted by the unjustified distinction prohibiting multiple unrelated sex offenders from living in one home, but not prohibiting multiple related sex offenders from living in one home. The language of the ordinance itself evinces the speculative nature of the reasoning behind the enactment: [T]the City Council further finds and determines that registered sex offenders have a high incidence of recidivism, and that having such individuals living together may increase the instance of recidivism. Further, as previously noted, the City of Northglenn admitted that reasonable minds might differ on whether having multiple sex offenders living in one neighborhood increases the risk to the community. See Defendant s Response Motion to Temporary Restraining Order at 10. There is no 13

14 evidence that the Northglenn City Council conducted any investigation into the actual risk posed by having multiple unrelated sex offenders in a neighborhood or based its conclusions on objective empirical data. In reviewing a zoning ordinance, one court declined to presume, based on the lack of evidence in the record of any investigation, that the Town Board investigated and found sufficient facts to support the restrictions it enacted. See McMinn v. Town of Oyster Bay, 482 N.Y.S.2d 773, 780 (N.Y. 1984). In the absence of any actual evidence that multiple unrelated sex offenders living together actually increases the high incidence of recidivism, this ordinance is arbitrary. Moreover, there is no reasonable relationship between the City s goal of reducing the risk from sexual predators in a neighborhood and the Ordinance prohibiting unrelated registered sexual offenders from living in the same house. Under this ordinance, one registered sex offender could live in each and every house in a neighborhood; thus, defeating the very purpose for which the Ordinance was supposedly enacted. 3. The elimination of the amortization period constitutes and unreasonable violation of the substantive due process right of the Ibarras. The lack of amortization period for the non-conforming use also violates the substantive due process standard of reasonableness. Zoning ordinances are constitutionally valid so long as they are reasonable. Service Oil Co. v. Rhodus, 500 P.2d 807, 813 (Colo. 1972). Zoning which affects the owner s right to use his property constitutes a partial taking, therefore the termination of the non-conforming use must be a reasonable and justifiable exercise of police power. Id. at Moreover, the 14

15 court in Hartley v. City of Colorado Springs, 764 P.2d 1216, 1224 (Colo. 1988) explained that [d]espite their undesirable effect on the community, however, nonconforming uses receive constitutional protection from unreasonable zoning regulations. Lastly, the courts have found that beyond the constitutional considerations of reasonableness, legislative acts in derogation of the common law, just as with statutes that interfere with property rights must be strictly construed. Id. One manner in which communities safeguard the property rights of land owners according to the constitutional requirements is to provide an amortization period during which the non-conforming use may continue. See Bonnell, Inc. v. Board of Adjustment of City of Oklahoma, 791 P.2d 107 (Ct App. Okla. 1990) ( Amortization is a valid method of eliminating existing non-conforming uses of land. Use of a reasonable amortization scheme is not only a viable, but also an equitable means of reconciling the conflict of interest between the public and the non-conforming use. ). However, in order to satisfy due process, this amortization period must be reasonable. See 7250 Corp. V. Board of Cty. Commissioners Adams Cty., 799 P.2d 917, 928 (Colo. 1990). The court determines the reasonableness of the amortization period by balancing the burden placed on the property owner against the benefits gained by the termination. Id. (holding that a six month amortization period was reasonable). In the present matter the ordinance eliminated the non-conforming use provision in its applicability to the Ibarras under this ordinance. Thus, the Ibarras were afforded four days in order to comply with the ordinance. This fails to meet even the most liberal interpretation of reasonable. As such, this ordinance violates the substantive due process rights the Ibarras have in maintaining the prior lawful use of their property 15

16 subject to a reasonable amortization period, which was clearly not afforded them here. Such a sweeping violation of their legitimate property interests violates substantive due process. II. PLAINTIFFS WILL SUFFER IRREPARABLE HARM. Plaintiffs, who have been threatened with eviction and criminal prosecution, will suffer irreparable harm if injunctive relief is not granted. As noted above, they face three equally untenable options. If Ordinance No is enforced, plaintiffs will be forced out of their home of fifteen years with only 4 days notice and left to secure alternative living arrangements for two adults and five children. As one court aptly held, the threat of eviction and the realistic prospect of homelessness constitute a threat of irreparable injury. McNeil v. New York City Housing Auth., 719 F. Supp. 233, 249 (S.D.N.Y. 1989). The alternative available to the plaintiffs breaking up their family unit is equally harmful and irreparable. Plaintiffs have a right to family privacy and intimate association. In order to comply with Ordinance No. 1248, the Ibarras will have to remove two of their foster children from their home in violation of their right to associate as a family, and jeopardizing months, even years, of treatment and developmental progress for these children. In the alternative, the Ibarras face the uncertain prospect of a criminal prosecution for the offense of maintaining their family intact. The Ibarras are subject to a year in jail and a fine of $1, for each day that they are in violation of Ordinance No. 1248, insofar as the Northglenn Zoning Ordinance makes each day of violation a separate offense, subjecting the Ibarras to the threat and risk of multiple and successive 16

17 prosecutions. Faced with a credible and genuine threat that this illegal ordinance will be enforced, the plaintiffs are entitled to seek this Court's assistance. See Steffel v. Thompson, 415 U.S. 452, (1974) ("it is not necessary that [a plaintiff] first expose himself to actual arrest or prosecution to be entitled to challenge a statute that he claims deters the exercise of his constitutional rights"). Without this Court's intervention, the Plaintiffs are forced to choose between "flouting [the] law and foregoing... constitutionally-protected activity." Postscript Enterprises, Inc. v. Westfall, 771 F.2d 1132, 1138 (8th Cir. 1985). And, clearly money damages cannot adequately compensate plaintiffs for the impairment of their rights, even assuming they are an available remedy. Thus, plaintiffs can satisfy the second requirement for issuance of an injunction. See Trans World Airlines, Inc. v. American Coupon Exchange, Inc., 682 F. Supp. 1476, 1484 (C.D. Cal. 1988) ( If an injury cannot be adequately remedied at law, because damages would be either inadequate or unascertainable, the injury is generally held irreparable. ), aff d in part and vacated in part on other grounds, 913 F.2d 676 (9 th Cir. 1990). Contrary to the City s assertions, the Younger doctrine does not bar the Court from enjoining the threatened enforcement of the Ordinance. In Younger v. Harris, 91 S. Ct. 746, 753 (1971), unlike the case at hand, a [criminal] proceeding was already pending in the state court. The Supreme Court expressly stated: We express no view about the circumstances under which the federal courts may act when there is no prosecution pending in state court at the time the federal proceeding is begun. Id. at 749. In Wooley v. Maynard, 97 S. Ct. 1428, 1434 (1977), the Supreme Court defined the contours of the Younger doctrine, holding that where state criminal proceedings 17

18 have not yet commenced, a federal court may grant injunctive and declaratory relief upon a showing of repeated threats of prosecution and the effect of such a continuing threat upon [one s] ability to perform the ordinary tasks of daily life. The Ibarras easily meet this standard, as the City of Northglenn s repeated threats to prosecute them has affected their ability to function, and stay together, as a family. See, e.g., Phelps v. Hamilton, 59 F.3d 1058, 1061 (10 th Cir. 1995) (the Tenth Circuit held that Younger does not bar us from considering a challenge to the threatened enforcement of a state criminal law because no criminal... proceedings are presently pending ). III. ANY HARM SUFFERED BY THE CITY IS OUTWEIGHED BY THE IRREPARABLE HARM TO THE PLAINTIFFS While plaintiffs face immediate and irreparable harm if the injunction does not issue, the City will not suffer any cognizable harm. The foster children have resided together in their home for many months without incident. Any suggestion that they present a risk is entirely speculative. In face of such speculation, Northglenn threatens to break up the Ibarra family or criminally prosecute them if they decline to disperse their family or move elsewhere. Thus, the risk of harm to the Plaintiffs far outweighs that which the City might claim if the Court grants a temporary restraining order against enforcement of Ordinance No

19 IV. THE INJUNCTION WILL NOT BE ADVERSE TO THE PUBLIC INTEREST Finally, the injunction, if issued, will not be adverse to the public interest. To the contrary, foster homes serve a compelling public interest. Indeed, the public interest will be well served by an injunction that will have the effect of preserving a foster home and a family intact that has functioned well and without any difficulties for a long period of time. Prevention of familial status discrimination which would otherwise violate the Fair Housing Act is clearly in the public interest. CONCLUSION For all the foregoing reasons, the Court should grant plaintiffs Motion for a Preliminary Injunction. Date: February 4,