IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF MISSOURI

KENNEDY F. JONES, et al., )

Plaintiffs, )
)
v. ) Case No. 4:24-cv-00649-WBG
)
CITY OF KANSAS CITY, MISSOURI, )
Defendant. )

SUGGESTIONS IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

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 TABLE OF CONTENTS

Overview ................................................................................................................................... 1

Argument and authorities ...................................................................................................... 2

Legal standard .............................................................................................................. 2

Likelihood of success on the merits ........................................................................... 2

Violation of the Fourth and Fourteenth Amendments ..................................... 2

Violation of the Supremacy Clause ...................................................................... 9

Other factors — irreparable harm, balance of the equities, and public interest ... 14

Conclusion ............................................................................................................................. 15

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 TABLE OF AUTHORITIES

Cases

Amalgamated Transit Union, Loc. 1277, AFL-CIO v. Sunline Transit Agency, 663 F. Supp. 1560
(C.D. Cal. 1987) ....................................................................................................................... 15
Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320 (2015) ...................................................... 10
Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25 (1996) ................................................ 10
California v. Ciraolo, 476 U.S. 207 (1986) ....................................................................................... 3
Camara v. Mun. Ct. of City & Cnty. of San Francisco, 387 U.S. 523 (1967) ............................ 3, 4, 8
Cigna Corp. v. Bricker, 103 F.4th 1336 (8th Cir. 2024) .................................................................. 2
Cipollone v. Liggett Grp., Inc., 505 U.S. 504 (1992) ....................................................................... 10
City of Los Angeles, Calif. v. Patel, 576 U.S. 409 (2015) ............................................................... 3, 4
Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363 (2000) .......................................................... 11
D.M. by Bao Xiong v. Minn. State High Sch. League, 917 F.3d 994 (8th Cir. 2019) ....................... 15
Dearmore v. City of Garland, 400 F. Supp. 2d 894 (N.D. Tex. 2005) ............................................. 4
Douglas v. Indep. Living Ctr. of S. Cal., Inc., 565 U.S. 606 (2012) ................................................. 10
Ex parte Young, 209 U.S. 123 (1908)............................................................................................. 10
Forest Park II v. Hadley, 336 F.3d 724 (8th Cir. 2003) .......................................................11, 12, 14
Int’l Paper Co. v. Ouellette, 479 U.S. 481 (1987) ............................................................................ 11
Katz v. United States, 389 U.S. 347 (1967) ...................................................................................... 3
Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963) ........................................................................ 6
Lankford v. Sherman, 451 F.3d 496 (8th Cir. 2006) .................................................................. 9, 10
Mapp v. Ohio, 367 U.S. 643 (1961) ................................................................................................ 3
Marshall v. Barlow’s, Inc., 436 U.S. 307 (1978) ............................................................................... 3
MS Rentals, LLC v. City of Detroit, 362 F. Supp. 3d 404 (E.D. Mich. 2019) .................................. 6
Nken v. Holder, 556 U.S. 418 (2009) ............................................................................................. 15
People by James v. Commons West, LLC, 194 N.Y.S.3d 451 (N.Y. Sup. Ct. 2023) ................... 7, 8, 9
Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action, 558 F.2d 861 (8th Cir. 1977) ........ 15
Pund v. City of Bedford, Ohio, 339 F. Supp. 3d 701 (N.D. Ohio 2018)........................................... 4
Schneckloth v. Bustamante, 412 U.S. 218 (1973)........................................................................... 3, 4
See v. City of Seattle, 387 U.S. 541 (1967) ....................................................................................... 3
Sokolov v. Village of Freeport, 420 N.E.2d 55 (N.Y. 1981).................................................... 4, 5, 7, 8
Thompson v. City of Oakwood, Ohio, 307 F. Supp. 3d 761 (S.D. Ohio 2018) ............................. 4, 5
United States v. Farnell, 701 F.3d 256 (8th Cir. 2012)..................................................................... 3
United States v. Ward, 448 U.S. 242 (1980) .................................................................................... 6
Wilson v. City of Cincinnati, Ohio, 346 N.E.2d 666 (Ohio 1976) ................................................... 5

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Statutes
42 U.S.C. § 1437f ......................................................................................................................... 13
42 U.S.C. § 1983 .................................................................................................................. 2, 9, 15

Constitutional Provisions
U.S. CONST. AMEND. IV........................................................................................................ passim
U.S. CONST. AMEND. XIV .......................................................................................................... 1, 3
U.S. CONST. ART. VI, CL. 2 ........................................................................................................ 1, 9

Other Authorities
H.R. Rep. 100-122(I) .................................................................................................................... 13
Pub. L. No. 100-242, 101 Stat. 1815, § 147 ................................................................................. 13
Pub. L. No. 101-625, 104 Stat. 4079, § 225 ................................................................................ 13
S. Rep. 105-21 ............................................................................................................................... 13

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 Plaintiffs Kennedy F. Jones and Stephen J. Vogel (“Plaintiffs”), by and through counsel,

respectfully offer the following suggestions in support of their motion for preliminary

injunction (“Motion”).

Overview

As set forth in Plaintiffs’ verified complaint (“Complaint”) and Motion, both of which

Plaintiffs incorporate by reference here, Plaintiffs are seeking to enjoin Defendant City of

Kansas City, Missouri (the “City”) from enforcing Committee Substitute for Ordinance No.

231019, as amended (the “Ordinance”). See Complaint, ¶¶ 1–2, 9, 66–72; Motion, p. 1. The

Ordinance makes landlord participation in the federal housing choice voucher program

authorized by Section 8 of the Housing Act of 1937 (the “Section 8” program) mandatory

under the City’s municipal laws—even though such participation is voluntary under federal

law—and prescribes penalties for landlords who decline to do so. See Complaint ¶¶ 3–4, 15–19,

26–36; Motion, pp. 1–2.

There are at least two constitutional problems with the City’s attempt to compel

landlord participation in the Section 8 program. First, the Section 8 program requires

landlords to enter into non-negotiable Housing Assistance Payments (“HAP”) contracts that

waive their search-and-seizure rights under the Fourth and Fourteenth Amendments to the

United States Constitution. See Complaint, ¶¶ 5–6, 21–22; Motion, p. 2. So, the Ordinance

unconstitutionally forces landlords who would otherwise choose not to participate in the

Section 8 program to either waive their constitutional rights or face penalties if they refuse to

do so. See Complaint, ¶¶ 4–8, 21–22, 32–36, 41–42, 48–49, 52, 56–59; Motion, p. 2. Second,

the Ordinance unconstitutionally violates the Supremacy Clause of Article VI of the United
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States Constitution because it actually conflicts with and is preempted by federal law that

makes Section 8 participation voluntary. See Complaint, ¶¶ 3–4, 15–19, 53, 61–65; Motion,

pp. 2–3.

For the reasons below, Plaintiffs are likely to prevail on one or both of these

constitutional issues, and are therefore likely to prevail on the merits of their claims for

declaratory judgment, relief under 42 U.S.C. § 1983, and/or federal preemption. Further, they

will suffer irreparable harm in the absence of an injunction, and the balance of the equities

and the public interest weigh in favor of an injunction.

Argument and authorities

Legal standard

A preliminary injunction is an equitable remedy, the primary function of which is to

preserve the status quo until a court can grant full relief after a final hearing. Cigna Corp. v.

Bricker, 103 F.4th 1336, 1342 (8th Cir. 2024). A court may grant a preliminary injunction

when the movant shows: (1) that he is likely to succeed on the merits; (2) that he is likely to

suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities

between the parties tips in his favor; and (4) that an injunction is in the public interest. Id.

While no single factor is determinative, probability of success is the most significant factor. Id.

Likelihood of success on the merits

Violation of the Fourth and Fourteenth Amendments

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no
Warrants shall issue, but upon probable cause, supported by Oath or
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 affirmation, and particularly describing the place to be searched, and the
persons or things to be seized.

U.S. CONST. AMEND. IV; see also Mapp v. Ohio, 367 U.S. 643, 654–55 (1961) (applying Fourth

Amendment to the states through the Due Process clause of the Fourteenth Amendment).

The basic purpose of the Fourth Amendment is to safeguard the privacy and security of

individuals against arbitrary invasions by government officials. Camara v. Mun. Ct. of City &

Cnty. of San Francisco, 387 U.S. 523, 528 (1967). The Fourth Amendment protects places and

information in which the person claiming protection has a reasonable expectation of privacy.

See California v. Ciraolo, 476 U.S. 207, 211 (1986) (citing Katz v. United States, 389 U.S. 347, 360

(1967) (Harlan, J., concurring)). This includes commercial property and business records as

well as private residences and personal documents, and applies to administrative inspections in

addition to criminal investigations. See City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 419–21

(2015); Marshall v. Barlow’s, Inc., 436 U.S. 307, 311–13 (1978); See v. City of Seattle, 387 U.S.

541, 543–45 (1967). “[T]he Fourth Amendment requires adherence to judicial processes …

searches conducted outside the judicial process, without prior approval by judge or magistrate,

are per se unreasonable under the Fourth Amendment—subject to only a few specifically

established and well-delineated exceptions.” Katz, 389 U.S. at 357 (citations and quotation

marks omitted).

One exception to the Fourth Amendment’s warrant requirement is consent by the

person subject to the search. Id. at 358, n.22; United States v. Farnell, 701 F.3d 256, 262–63 (8th

Cir. 2012). Consent to a search is valid if it is given freely and voluntarily under the totality of

the circumstances. Schneckloth v. Bustamante, 412 U.S. 218, 227 (1973). If, on the other hand,

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the purported consent was the product of duress or coercion, express or implied, then it is “no

more than a pretext for the unjustified [government] intrusion against which the Fourth

Amendment is directed.” Id. at 228.

Courts have consistently held that when a person faces criminal penalties if he refuses

consent to a search, any purported consent given in that context is coerced and invalid. See,

e.g., Dearmore v. City of Garland, 400 F. Supp. 2d 894, 902–03 (N.D. Tex. 2005) (consent to

warrantless inspections of rental properties pursuant to ordinance was invalid where landlord

would face criminal penalties if consent were refused); Pund v. City of Bedford, Ohio, 339 F.

Supp. 3d 701, 711–16 (N.D. Ohio 2018) (same). Laws that criminalize the refusal of a

warrantless search—without any opportunity for pre-compliance review by a neutral party—are

facially unconstitutional. See Patel, 576 U.S. at 417–21; Thompson v. City of Oakwood, Ohio, 307

F. Supp. 3d 761, 774–75 (S.D. Ohio 2018).

This principle is readily apparent when a person faces criminal penalties as a direct

consequence of his refusal to consent to a warrantless search. See, e.g., Patel, 576 U.S. at 412–13,

419–21 (hotel operator’s failure to make guest records available for inspection was

misdemeanor punishable by fines and jail time); Camara, 387 U.S. at 525–27 (tenant

criminally prosecuted for refusing to permit municipal health inspector to make warrantless

inspection of property). But importantly, it also applies when the criminal penalties are

indirect. For example, in Sokolov v. Village of Freeport, 420 N.E.2d 55 (N.Y. 1981), the village

enacted an ordinance requiring that a landlord obtain a rental permit before leasing out

residential rental property. Id. at 56. As part of obtaining and renewing a rental permit, the

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landlord would be required to submit the property to inspection by the village. Id. If the

landlord leased the property without obtaining a permit, he would be subject to criminal

penalties. Id. at 56–57.

Owners of rental property in the village raised a Fourth Amendment challenge to the

ordinance, arguing that it coerced them into consenting to warrantless inspections in violation

of their constitutional rights. Id. at 56. The New York Court of Appeals agreed with the rental

property owners:

[The village] argues that failure to consent to a warrantless inspection is not

punishable under the ordinance, but only the renting of the property without a
permit. The village thus infers that any searches which are made under the
ordinance are made with the consent of the owner. We find this line of
reasoning to be unpersuasive, for through an indirect method the property
owner is being penalized for his failure to consent to a warrantless search. In this
instance the property owner’s consent is not voluntarily given … as it is clearly a
product of coercion. A property owner cannot be regarded as having voluntarily
given his consent to a search where the price he must pay to enjoy his rights
under the Constitution is the effective deprivation of any economic benefit
from his rental property.

Additionally, we note that the village may not compel the owner’s consent to a
warrantless inspection upon the theory that these searches are a burden which a
property owner must bear in exchange for the right to open his property to the
general public for rental. It is beyond the power of the State to condition an
owner’s ability to engage his property in the business of residential rental upon
his forced consent to forego certain rights guaranteed to him under the
Constitution …. The Supreme Court has held, and we think properly so, that
“the right to continue the exercise of a privilege granted by the state cannot be
made to depend upon the grantee’s submission to a condition prescribed by the
state which is hostile to the provisions of the federal Constitution” ….

Id. at 57 (citations omitted); see also Thompson, 307 F. Supp. 3d at 774–75 (citing Wilson v. City

of Cincinnati, Ohio, 346 N.E.2d 666 (Ohio 1976)) (where ordinance required property owners

to obtain certificate of occupancy before selling property, which in turn required owners to

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submit to warrantless inspection of property, ordinance was invalid because it criminalized

selling of property without permit); MS Rentals, LLC v. City of Detroit, 362 F. Supp. 3d 404,

408–10, 416–18 (E.D. Mich. 2019) (where ordinance required rental property owners to obtain

and maintain certificates of compliance, which in turn required owners to submit to

warrantless inspections of property, ordinance was invalid because it penalized owners with

non-criminal “blight violations” if they failed to obtain or maintain certificates of compliance).

Here, landlords who refuse to waive their Fourth Amendment rights by entering into

HAP contracts, and so decline to accept Section 8 vouchers as payment for rent, are subject to

the fine prescribed in the Ordinance. See Complaint, ¶¶ 31–34. This fine may in itself be a

criminal penalty. See United States v. Ward, 448 U.S. 242, 248–49 (1980) (citing Kennedy v.

Mendoza-Martinez, 372 U.S. 144, 168–69 (1963)) (whether particular statutorily-defined penalty

is civil or criminal is a matter of statutory construction). Moreover, by defining source-of-

income discrimination as an act of housing discrimination and making it unlawful for rental

permit holders to engage in any acts of housing discrimination, the Ordinance also directly

subjects permit-holding landlords to indisputably criminal penalties, including jail time, if they

decline to waive their Fourth Amendment rights and accept Section 8 vouchers. See

Complaint, ¶ 36.

On top of these direct penalties, the Ordinance also puts the rental permits of

landlords who decline to waive their Fourth Amendment rights and accept Section 8 vouchers

at risk of suspension or revocation. See Complaint, ¶¶ 35–36. And because it is unlawful for

landlords to rent out their properties if they fail to obtain or maintain required rental permits,

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they are subject to indirect criminal penalties for declining to waive their Fourth Amendment

rights. See Complaint, ¶ 36. Just as in Sokolov, “[a] property owner cannot be regarded as having

voluntarily given his consent to a search where the price he must pay to enjoy his rights under

the Constitution is the effective deprivation of any economic benefit from his rental property.”

420 N.E.2d at 57.

At least one other court has found that a state source-of-income discrimination statute,

substantially similar to the Ordinance, was invalid because it violated landlords’ rights under

the Fourth Amendment. In People by James v. Commons West, LLC, 194 N.Y.S.3d 451 (N.Y.

Sup. Ct. 2023), the court considered New York’s Human Rights Law that makes it an unlawful

discriminatory practice to refuse to rent housing to any person based on their “lawful source of

income,” specifically defined to include Section 8 vouchers. Id. at 452. The court first found

that the statute had the effect of making landlord participation in the Section 8 program

mandatory under state law, even though the program is voluntary under federal law:

[A]s set forth above [regarding HAP contracts], a landlord cannot accept a
Section 8 housing voucher as payment for rent without agreeing to participate in
Section 8, which, in turn, requires that the landlord authorize warrantless
searches of the rental property and the landlord’s records. … Thus, although
Section 8 is a voluntary program at the federal level, the source of income
protections provided by the Human Rights Law would necessarily compel a
landlord to participate in Section 8 to obtain reasonable rent for an apartment
rented or leased to a person who is eligible to receive Section 8 assistance.

Id. at 453–54 (citations omitted).

The court then turned to the question of whether mandatory Section 8 participation

under the state’s source-of-income discrimination statute violated landlords’ rights under the

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Fourth Amendment, noting that this was an issue of first impression. Id. at 454. The court

concluded that such mandatory Section 8 participation did violate the Fourth Amendment:

In 1967, the United States Supreme Court [in Camara] established the principle
that administrative searches of buildings to ensure compliance with a municipal
housing code are significant intrusions upon the interests protected by the
Fourth Amendment …. The New York Court of Appeals [in Sokolov], relying
largely on Camara, specifically held that laws which authorize inspections of
residential rental properties without either the consent of the owner or a valid
search warrant violate the Fourth Amendment, and specifically noted that a
property owner cannot be indirectly compelled to consent to a search …. Stated
another way, Sokolov stands for the proposition that a law may not coerce
property owners into consenting to warrantless inspections in derogation of
their constitutional rights by conditioning their ability to rent real property on
providing such consent, which is precisely the effect of the source of income
antidiscrimination statute. Thus, by requiring landlords to accept Section 8
vouchers, the source of income antidiscrimination statute necessarily compels
landlords to consent to warrantless searches of their properties, in violation of
the Fourth Amendment.

Similarly, the source of income antidiscrimination statute further violates the

Fourth Amendment by compelling landlords to consent to warrantless searches
of their records. [The state’s] argument that “there is no violation of the Fourth
Amendment regarding the inspection of [landlords’] records when entering into a
HAP contract” is unavailing …. This argument assumes the conclusion—that
consent to such searches is given when entering into a HAP contract—and
overlooks the determinative factor—that the source of income antidiscrimination
statute improperly compels landlords to waive their Fourth Amendment rights
by requiring them to accept the HAP contract’s terms. Also unavailing is [the
state’s] argument that landlords have no reasonable expectation of privacy in
their business records. There is no reasonable expectation of privacy in records
maintained by closely regulated industries, especially records specifically
prepared in compliance with regulatory requirements …. However, this
exception to the reasonable expectation of privacy in business records applies
only to businesses in industries which “have such a history of government
oversight that no reasonable expectation of privacy could exist,” such as liquor
sales, firearms dealing, mining, or operating an automobile junkyard …. Other
than Section 8, petitioner has not identified any law or regulation requiring
landlords to maintain specific business records, and renting residential
apartment units is not a closely regulated industry ….

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Id. at 454–55 (emphasis in original; citations omitted).

For these same reasons, the Ordinance is unconstitutional and invalid because it forces

landlords to either waive their Fourth Amendment search-and-seizure rights or risk bearing the

consequences of violating the Ordinance, which include the threat of fines, jail time, and the

suspension or revocation of their rental permits. Moreover, because Plaintiffs are landlords

with rental properties within City limits and have indicated their intent to continue declining

to participate in the Section 8 program, which conduct is proscribed by the Ordinance, there is

a credible threat of prosecution by the City under the Ordinance and an actual or imminent

threat to Plaintiffs’ constitutional rights. See Complaint, ¶¶ 38, 42, 44, 49, 54, 58–59.

Therefore, Plaintiffs are likely to succeed on the merits of their declaratory judgment and 42

U.S.C. § 1983 claims.

Violation of the Supremacy Clause

The Supremacy Clause of Article VI of the United States Constitution provides:

This Constitution, and the Laws of the United States which shall be made in
Pursuance thereof; and all Treaties made, or which shall be made, under the
Authority of the United States, shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.

U.S. CONST. ART. VI, CL. 2.

Under this clause, state and local laws that interfere with, or are contrary to, the laws of

Congress are invalid as preempted by federal law. See Lankford v. Sherman, 451 F.3d 496, 509–10

(8th Cir. 2006). Although the Supremacy Clause is not in itself a source of any federal rights,

courts are entitled in the exercise of their equitable powers to enjoin unconstitutional actions

by government officials, including actions that are unconstitutional because they are
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preempted by federal law. See id.; see also Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320,

326–27 (2015). This is especially true where litigants are seeking prospective equitable

protection from an injurious and preempted state or local law under which they face

prosecution by governmental authorities. See id. at 338–39 (Sotomayor, J., dissenting) (noting

that “the availability of prospective relief of the sort awarded in Ex parte Young [209 U.S. 123

(1908)]” gives “life to the Supremacy Clause”); see also Douglas v. Indep. Living Ctr. of S. Cal., Inc.,

565 U.S. 606, 620 (2012) (Roberts, C.J., dissenting) (noting that cases such as Ex parte Young

involve “the pre-emptive assertion in equity of a defense that would otherwise have been

available in the State’s enforcement proceedings at law”).

The United States Supreme Court has recognized three different forms of federal

preemption: (1) express preemption, in which Congress’s preemptory intent is explicitly stated

in the statute’s language; (2) field preemption, in which federal law so wholly occupies a

legislative field as to make reasonable the inference that Congress left no room for the states to

supplement it; and (3) conflict preemption, in which a particular state or local law actually

conflicts with federal law. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516 (1992). Under

conflict preemption, an actual conflict exists where it is either physically impossible for a party

to comply with both the state or local and the federal law, or where the state or local law

“stands as an obstacle to the accomplishment and execution of the full purposes and objectives

of Congress.” Barnett Bank of Marion Cnty., N.A. v. Nelson, 517 U.S. 25, 31 (1996).

It is this second form of conflict preemption—“obstacle” or “frustration of purpose”

preemption—that is at issue here. “What is a sufficient obstacle is a matter of judgment, to be

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informed by examining the federal statute as a whole and identifying its purpose and intended

effects ….” Crosby v. Nat’l Foreign Trade Council, 530 U.S. 363, 373 (2000). This involves

examining not only the language and structure of a statute, but also its legislative history, to

glean Congressional intent. See id. at 377–79, and 378 n.13 (examining both statutory language

and legislative history to determine that state law restricting its agencies from engaging in

business with Burma stood as an obstacle to and was preempted by federal law imposing

sanctions on Burma).

Further, the fact that a state or local law and a federal statute may share an ultimate

goal is not dispositive to the question of whether the state or local law conflicts with the federal

law. Forest Park II v. Hadley, 336 F.3d 724, 733 (8th Cir. 2003) (citing Int’l Paper Co. v. Ouellette,

479 U.S. 481, 494 (1987)). Rather, a state or local law is nonetheless preempted if it interferes

with the methods by which the federal statute was designed to reach that ultimate goal. See Forest

Park II, 336 F.3d at 733. “The fact of a common end hardly neutralizes conflicting means …

and the fact that some [people] might be able to comply with both [the state or local law and

the federal law] does not mean that the [state or local law] is not at odds with achievement of

the federal decision about the right degree of pressure to employ.” Crosby, 530 U.S. at 379–80.

In Forest Park II, Minnesota state law required that owners of federally-subsidized low-

income housing comply with certain additional conditions (beyond those required under

federal law) before prepaying their subsidized mortgages and withdrawing from the federal

program. 336 F.3d at 730. The Eighth Circuit found unpersuasive the state’s arguments that

there was no actual conflict between the state and federal laws because (1) it was possible for

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program participants to comply with both sets of statutes, and (2) the state statutes did not

impede the goal of federal law because both had the same underlying purpose of providing low-

income housing. Id. at 732. “While we recognize that these statements may be true, these

arguments do not address the principal problem with these state statues—they fly in the face of

the Constitution’s Supremacy Clause.” Id. Instead, the Eighth Circuit agreed with the property

owner seeking to prepay its mortgage and withdraw from the program:

[Owner] argues that the state statutes interfere with the federal method of
implementing the housing programs. It agrees that the purpose and objective of
Congress in creating housing subsidy programs was to provide low-income
housing, but that within that goal was the desire to involve private developers in
the process. Congress’s objective in allowing for prepayment of the federally
subsidized mortgages was to further the goal of encouraging private
participation in the federal programs. Although Congress has taken various
steps since 1968 to restrict a participant’s right to prepay, the current state of the
law is that a participant need only give between 150 and 270 days notice,
without further permission by HUD, to prepay and withdraw from the program.
A further requirement imposed by a state statute would directly interfere with
Congress’s original intent of offering prepayment as an incentive. Any state
statute that forces owners to remain in a federally subsidized program from
which Congress has authorized withdrawal would eviscerate the method
Congress chose to implement the federal low-income housing scheme. Even
though the state requirements … do not appear to preclude a participant’s right
to prepay, in cases where owners do not comply with state law or where
compliance is somehow inadequate, the state, by enforcing its own statutes, is
the sole entity standing in the way of an owner’s exercise of its federally granted
right to prepay and withdraw from the program. Despite the fact that the federal
statute and the state statute may share the same objective, the state procedures
interfere with the framework created by Congress.

Id. at 733–34.

Here, there is no question that Congress intended landlord participation in the Section

8 program to be and remain voluntary. That intent is implicit in the statutory text of Section 8

itself, which leaves the choice of tenant to landlords. See 42 U.S.C. § 1437f(d)(1)(A) (“[T]he

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selection of tenants shall be the function of the owner.”). By vesting landlords with such

critical decisions, Congress manifested a desire not to force landlords into contracts with every

tenant who presents a Section 8 voucher. See Complaint, ¶ 16.

That intent is also implicit in Congress’s decision to repeal the “take one, take all” and

“endless lease” provisions, which had been an attempt to increase landlord participation in the

Section 8 program by restricting landlords’ ability to stop accepting Section 8 tenants or end

Section 8 leases. See Pub. L. No. 100-242, 101 Stat. 1815, § 147 (“take one, take all” provision);

Pub. L. No. 101-625, 104 Stat. 4079, § 225 (“endless lease” provision); H.R. Rep. 100-122(I)

(discussing concerns related to lack of landlord participation in Section 8 program). When it

became clear that the “take one, take all” and “endless lease” provisions were not having their

intended effect, Congress’s chosen fix to increase landlord Section 8 participation was to make

such participation less—not more—obligatory by repealing those provisions and allowing the

Section 8 program to “operate like the unassisted market as much as possible.” See S. Rep. 105-

21; see also Complaint, ¶¶ 17–18.

The real question before this Court is whether the Ordinance stands as an obstacle to

the accomplishment and execution of the full purposes and objectives of Congress by

mandating landlord participation in the Section 8 program, where such participation is

purposely and definitively voluntary under federal law. That answer is “yes.” Although the

ultimate goal of both Section 8 and the Ordinance is to increase affordable housing

opportunities, their different methods of achieving that goal stand at cross-purposes. Congress

has determined that “the right degree of pressure to employ” to increase affordable housing

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availability is to let the Section 8 program remain voluntary. See Crosby, 530 U.S. at 379–80.

The City’s judgment that Section 8 program participation should be mandatory is not just “at

odds with,” but is directly contrary to, Congress’s policy decision. See id.

Likewise, even more than the Minnesota state law at issue in Forest Park II, by

eliminating landlords’ choice to accept Section 8 vouchers and enter into HAP contracts, the

Ordinance forces unwilling landlords into unwanted relationships with the federal government

that the federal government itself may likewise not want. See Forest Park II, 336 F.3d at 733–34.

The Ordinance “not only regulates the conduct of the citizen-owner, requiring him to

[participate in the Section 8 program], but also regulates or restricts the actions of the federal

government under its own federal program.” Id. at 732. The Ordinance’s procedures interfere

with the voluntary Section 8 framework created by Congress. See id. at 734.

For these reasons, the Ordinance is unconstitutional and invalid because it actually

conflicts with and is preempted by federal law that makes Section 8 participation voluntary.

Moreover, because Plaintiffs have an interest in seeking equitable protection from an injurious

and unconstitutional local law under which they face a credible threat of prosecution by the

City, they are likely to succeed on the merits of their declaratory judgment and federal

preemption claims. See Complaint, ¶¶ 38, 42, 44, 49, 54, 64–65.

Other factors — irreparable harm, balance of the equities, and public interest

Finally, the remaining factors weigh heavily in favor of granting a preliminary

injunction immediately enjoining enforcement of the Ordinance. Plaintiffs have shown that

enforcement of the Ordinance poses an actual or imminent threat to their exercise of their

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Fourth Amendment rights, which supports a finding that they will suffer irreparable harm in

the absence of an injunction. See Planned Parenthood of Minn., Inc. v. Citizens for Cmty. Action,

558 F.2d 861, 867 (8th Cir. 1977); Amalgamated Transit Union, Loc. 1277, AFL-CIO v. Sunline

Transit Agency, 663 F. Supp. 1560, 1564 (C.D. Cal. 1987). As to the balance of the equities and

the public interest—which merge when the government is the party opposing the injunction—it

is always in the public interest to prevent the violation of a party’s constitutional rights. See

D.M. by Bao Xiong v. Minn. State High Sch. League, 917 F.3d 994, 1003–04 (8th Cir. 2019)

(where parties demonstrated likelihood that challenged law violated their Fourteenth

Amendment equal protection rights, balance of the equities and public interest tipped in their

favor); Nken v. Holder, 556 U.S. 418, 435 (2009) (merger).

Conclusion

For the above reasons, the Court should enter a preliminary injunction immediately

enjoining the City from enforcing the Ordinance and requiring the City to take all necessary

actions to maintain the status quo pending final resolution of Plaintiffs’ declaratory judgment,

42 U.S.C. § 1983, and federal preemption claims.

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 Respectfully submitted,

LEWIS RICE LLC

By: /s/ Robert W. Tormohlen

Robert W. Tormohlen, Mo. #40024
Douglas S. Stone, Mo. #45320
Scott A. Wissel, Mo. #49085
Ashlyn Buck Lewis, Mo. #65501
1010 Walnut, Suite 500
Kansas City, Missouri 64106
Tel: (816) 421-2500
Fax: (816) 472-2500
[email protected]
[email protected]
[email protected]
[email protected]

and

SEYFERTH BLUMENTHAL
& HARRIS LLC

Kevin J. Karpin, Mo. #45465

Bruce A. Moothart, Mo. #45517
4801 Main Street, Suite 310
Kansas City, Missouri 64112
Tel: (816) 756-0700
Fax: (816) 756-3700
[email protected]
[email protected]

Attorneys for Plaintiffs

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