Fremont immigration case focuses on judge's role in elections

Journalstar.com ^ | 1-7-2010 | Art Hovey

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In the eyes of those who want to crack down on illegal immigrants, a Fremont case heard by the Nebraska Supreme Court on Thursday is all about banning employers and landlords from hiring and renting to undocumented residents.

But attorneys arguing for the city and for citizens who circulated petitions to get the ban on the city ballot focused instead on when a judge can intervene in a contested election. Higher profile differences about local and state involvement in immigration law in Nebraska will have to wait.

"I don't think the word 'immigration' came out of my mouth this morning," Steve Mossman said after the hearing. The Lincoln attorney is part of Fremont's legal team.

At issue in Fremont vs. Kotas is whether Dodge County District Judge John Samson had the authority to stop a city election on the ban because it would, as claimed by the city, conflict with federal law and lead to costly litigation.

In April, Samson decided he didn't have the authority to stop the election, setting up the city's appeal and a confrontation between city government and petition carriers in Lincoln.

Arguing for defendants Wanda Kotas, Jerry Hart and John Wiegert on Thursday was Kris Kobach, a professor of law at the University of Missouri-Kansas City and senior counsel to the Immigration Reform Law Institute, affiliated legal partner to the Federation for American Immigration Reform in Washington, D.C.

Kobach said the city had jumped the gun in trying to get the petition measure shuttled aside before voters had a chance to enact or reject it.

"Talk about an exercise in potential futility," he said during his court presentation, "because maybe the city won't even pass this. It's all contingent."

But Mossman and Fremont City Attorney Dean Skokan said Samson should have intervened in April.

As Skokan put it, Samson would have been within his rights to say, "City, you really don't have a lot of ability to deal with this national issue of immigration."

Kobach begged to differ. "You can't seek advisory opinions before something becomes law."

The city's attorneys also claim the ordinance addresses employment and housing in violation of a state law that limits initiatives to one subject. The wording would present voters with a confusing, "all-or-nothing" proposal that is "exactly the evil the single-subject rule is designed to prevent," they wrote in court briefs.

But Kobach, a member of U.S. Attorney General John Ashcroft's staff during the George W. Bush presidency, said everything relates to one issue: illegal immigration.

And in his April opinion, Judge Samson agreed.

The Fremont City Council considered a policy similar to the proposed ordinance in 2008 and narrowly rejected it for some of the same reasons city attorneys raised in their appeal. But proponents Kotas, Hart and Wiegert collected enough signatures to revive it and put it on track to a public vote.

Illegal immigration continues to draw strong opinions in Fremont, with a population 25,000, which is among a handful of Nebraska cities that have seen marked demographic changes as Hispanic immigrants find work at meatpacking plants.

Supporters of the proposal say it's needed to make up for what they see as lax enforcement by federal officials.

Opponents say it could fuel discrimination.

Hazleton, Pa., and Escondido, Calif., are among cities to adopt such legislation and then run into the kind of expensive lawsuits Fremont leaders say they want to avoid. The lawsuits also have discouraged other cities from enacting similar rules, said Muzaffar Chishti, director of the Migration Policy Institute's office at New York University's School of Law.

The cities have spent millions of dollars defending their policies, and, for the most part have lost, he said.

Fremont's costs have been relatively low, so far. City Clerk Kim Volk said as of Dec. 30, the city had paid about $15,000 to a Lincoln law firm handling its appeal.

Officials say they just want to protect the city from more substantial litigation later.

"I think we followed the law," Skokan said. "We'll see what the court says."