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Nebraska high court correct in declining to rule on immigration ordinance

David Pantos [Executive Director, Legal Aid of Nebraska]: "The Supreme Court of Nebraska (SCONE) made the correct decision in declining to rule on the Fremont, NE immigration ordinance, against the request of the United States District Court for the District of Nebraska. This was the right decision for basic reasons.

First, no party to the litigation raised any state law claims. The lawsuit triggering the Federal Court's request, Keller v. City of Fremont [PDF], involves a challenge to a local ordinance which city voters approved through an initiative. The ordinance mandates that any renter obtain a permit from the City in order to acquire housing. Additionally, it prohibits landlords from renting a dwelling unit in Fremont to a person who is in the United States illegally. The ordinance also requires all business entities in the City to register with the E-Verify system, and to ascertain that each employee hired after registration be authorized for employment in the United States.

The Federal District Court judge's inquiry, or "certified question," asks generally "whether a Nebraska city of the first class, that is not a 'home rule' city under Article XI of the Nebraska Constitution and has not passed a home rule charter, promulgate an ordinance placing conditions on persons' eligibility to occupy dwellings, landlords' ability to rent dwellings, or business owners' authority to hire and employ workers, is consistent with...the revised Statutes of Nebraska?"

But the SCONE rightly notes that the certified question does not indicate specific state law or state constitution claims. Furthermore, the SCONE reasons: "We have interpreted the Nebraska Constitution's due process and equal protection clauses to afford protections coextensive to those of the federal Constitution. Because we have not afforded greater state constitutional protections, no state constitutional questions are determinative of the pending federal claims."

Second, the SCONE correctly identifies the heart of the lawsuit "If the plaintiffs have instead claimed that the ordinance is preempted by federal immigration laws, preemption of a state law under the Supremacy Clause presents a federal question." Indeed, the SCONE knows quite well that the Fremont Ordinance is essentially identical to immigration ordinances passed in Hazleton, PA and other communities where preemption claims have been successfully raised by plaintiffs challenging those ordinances.

The federal court quixotically attempted to cloak its authority with a general question. But the SCONE, facing budgetary and time constraints, correctly penetrated the cloak and sent Keller back to the federal level for determination. Since the City of Fremont has sua sponte placed the enforcement of the ordinance on hold, the Federal Court has plenty of time to deliberate."

This article was prepared for publication by Yuriy Vilner, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at professionalcommentary@jurist.org

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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