Nebraska Justices Won’t Answer Ordinance Query

(CN) - The Nebraska Supreme Court refused to answer a federal judge's certified question of whether a city can impose an ordinance restricting who can live and work there. The justices said the ordinance appears to be an immigration issue.

A federal judge in Nebraska certified the following question in the consolidated cases of Fred Keller Jr. v. City of Fremont and Mario Martinez Jr. v. City of Fremont:

"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 justices of the Nebraska Supreme Court declined to answer the question.

"The U.S. Supreme Court has held that federal courts are not required to obtain a state court's construction of a state statute or ordinance before deciding a federal constitutional challenge to the law and should not certify such a question unless the law is fairly susceptible to a narrowing construction," the justices wrote.

"Also, the Court has held that it is 'manifestly inappropriate to certify a question in a case where ... there is no uncertain question in a case whose resolution might affect the pending federal claim.'"

The justices noted that they were not presented with the specific restrictions in the ordinance, but surmised that this was an immigration issue.

Although Nebraska law allows the state court to know the nature of the controversy, the justices said the federal court's request "does not specify the plaintiffs' challenge to the ordinance on state law grounds."

"Nor does it identify any state statutes or state constitutional provisions that were allegedly violated in the plaintiffs' complaints. These omissions require us to make assumptions about the plaintiffs' state law challenge and imply that it is a constitutional challenge," the justices wrote.

"Because we have not afforded greater state constitutional protections, no state constitutional questions are determinative of the pending federal claims," the court wrote. "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."

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