November 7, 2010
Nebraska Supreme Court Refuses Certified Question from Federal Court in Fremont Immigration Ordinance Challenge
The Fremont Ordinance, passed by ballot initiative in June, provides that all persons renting or leasing dwelling units obtain an “occupancy license” from the city. The fee is $5.00, and requires “citizens or nationals” to sign a declaration so stating, and "in cases in which the applicant is not a United States citizen or national, an identification number assigned by the federal government that the occupant believes establishes his lawful presence in the United States (examples include, but are not limited to: resident alien card number, visa number, "A" number, 1-94 registration number, employment authorization number, or any other number on a document issued by the U.S. Government). If the alien does not know of any such number, he shall so declare. Such a declaration shall be sufficient to satisfy this requirement." The Ordinance also requires that “Every business entity employing one or more employees and performing work within the City shall register in the [federal] E-Verify Program within 60 days after the effective date of this Ordinance, and shall use the E-Verify Program to verify the authorization of employment in the United States of each employee hired after such registration."
The federal district court certified the following question:
May 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, consistent with Chapters 16, 18, and 19 of the Revised Statutes of Nebraska?
The Nebraska Supreme Court found the certified question too general. It noted that under the relevant Nebraska statute allowing for certified questions, in addition to the question of law to be answered, there must be "a statement of all facts relevant to the questions certified and showing fully the nature of the controversy in which the questions arose." Yet the court quickly acknowledged that it was fully aware of the controversial ordinance and the factual basis for the question. The real problem, the court reasoned, is that the certified question of state law would not be determinative of the pending federal case:
Obviously, even if this court held that the ordinance did not violate a state statute or the state Constitution, that holding would not be determinative of a federal constitutional challenge to the ordinance. And the request does not ask us to consider whether any authorizing statute raised by the complaint is subject to a construction that would limit the statute’s or ordinance’s reach and thus resolve the pending federal challenge. Nor does it ask us to decide whether the ordinance violated any specific statute. Thus, we assume that the plaintiffs have alleged that the ordinance offends state and federal constitutional protections or conflicts with federal immigration law, rather than violating specific state statutes.
Any state constitutional claims, the Nebraska Supreme Court states, are co-extensive with federal ones, and the "most common constitutional challenges to these types of ordinances have been due process, equal protection, and federal preemption challenges."
The Nebraska Supreme Court seems to ignore the clear language of the certified question, which posed a query about the authority of a city under the state constitution that was not a "home rule" city, which would presumably have greater powers to legislate than a non- "home rule city."
Perhaps the federal district court was considering a state constitutional powers issue as a way to avoid deciding the "most common constitutional challenges." If so, the Nebraska Supreme Court is not providing any assistance.
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