Keller v. City of Fremont

F red H. K eller , Jr ., et al ., plaintiFFs , v.
C ity oF F remont, deFendant.
mario martinez , Jr ., et al ., plaintiFFs , v.
C ity oF F remont et al ., deFendants.
790 N.W.2d 711
Filed November 5, 2010. 	No. S-33-100018.
Certified Question from the U.S. District Court for the
District of Nebraska. Certification request denied.
H eaviCan, C.J., C onnolly, G errard, stepHan, mCC ormaCK,
and miller-lerman, JJ.
per C uriam.
This matter is before the court on a “Certification Request”
filed in this court by the U.S. District Court for the District
of Nebraska under Neb. Rev. Stat. § 24-219 et seq. (Reissue
2008). The federal district court’s request involves two federal
cases consolidated under the lead case docketed in federal dis-
trict court as case No. 8:10CV270. The court has 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?
Section 24-221 requires that a certification request set forth
(1) the questions of law to be answered and (2) a statement of
all facts relevant to the questions certified and showing fully
the nature of the controversy in which the questions arose.
The question certified is a general question. It concerns a
city of the first class’ authority under various state statutes to
enact an ordinance “placing conditions on” residential property
rentals or business hiring and employment decisions. The ques-
tion offers no particulars as to the nature or extent of the “con-
ditions” which have been or may be imposed. But the question
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www.nebraska.gov/apps-courts-epub/
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asks us to answer the legal question through an exploration of
chapters 16, 18, and 19 of the Nebraska Revised Statutes.
Although the certified question does not specify the condi-
tions that the city seeks to impose, the facts and showing sub-
mitted under § 24-221(2) consist of the following: (1) a copy
of “Fremont ordinance 5156” out of which “[t]his controversy
arose”; (2) a statement that voters adopted the ordinance on
June 21, 2010, to become effective on June 29, 2010; and (3)
a statement that the Fremont City Council voted on June 27 to
stay its enforcement. Thus, the “conditions” to which the certi-
fied question refers are those imposed by “Fremont ordinance
5156.” Regarding the controversy, however, the showing filed
under § 24-221(2) states only that the controversy centers on
the plaintiffs’ challenge to “the legality of the ordinance on
grounds of both state and federal law.”
Under § 24-219, this court may answer certified questions
when (1) a proceeding before the federal certifying court
involves a question of state law which may be determinative
of the pending cause and (2) the certifying court believes that
there is no controlling precedent in the state. However, under
§ 24-219, this court may “in its absolute discretion, accept or
reject such request for certification.”
In interpreting the certified request and deciding whether to
accept it, we are guided by the following principles. Section
24-219 requires a federal certified question to present a ques-
tion of state law that is undecided. But 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 question unless the law is fairly suscep-
tible to a narrowing construction.1 Also, the Court has held that
it is “manifestly inappropriate to certify a question in a case
where . . . there is no uncertain question of state law whose
resolution might affect the pending federal claim.”2 The same is
1 See, Stenberg v. Carhart, 530 U.S. 914, 120 S. Ct. 2597, 147 L. ed. 2d
743 (2000); Houston v. Hill, 482 U.S. 451, 107 S. Ct. 2502, 96 L. ed. 2d
398 (1987).
2 Houston, supra note 1, 482 U.S. at 471.
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true under § 24-219, which requires us to consider whether the
certified question may be determinative of the pending federal
cause. The “determinative” requirement is also consistent with
state courts’ holdings declining to answer certified questions
asking for advisory opinions.3
Here, although § 24-221 requires a statement of facts show-
ing the nature of the controversy, the 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’ com-
plaints. These omissions require us to make assumptions about
the plaintiffs’ state law challenge and imply that it is a consti-
tutional challenge.
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 chal-
lenge to the ordinance.4 And the request does not ask us to
consider whether any authorizing statute raised by the com-
plaint 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 plain-
tiffs have alleged that the ordinance offends state and federal
constitutional protections or conflicts with federal immigration
law, rather than violating specific state statutes.
We have stated that “‘“[i]n the exercise of police power
delegated by the state legislature to a city, the municipal legis-
lature, within constitutional limits, is the sole judge as to what
laws should be enacted for the welfare of the people, and as to
3 See, e.g., CSX Transp., Inc. v. City of Garden City, 279 Ga. 655, 619
S.e.2d 597 (2005); Carle Foundation v. Illinois Dept. Revenue, 396 Ill.
App. 3d 329, 917 N.e.2d 1136, 335 Ill. Dec. 72 (2009); Darney v. Dragon
Products Co., LLC, 994 A.2d 804 (Me. 2010); State v. Arends, 786 N.W.2d
885 (Minn. App. 2010).
4 See, e.g., Pony Lake Sch. Dist. v. State Committee for Reorg., 271 Neb.
173, 710 N.W.2d 609 (2006), quoting Meyer v. Grant, 486 U.S. 414, 108
S. Ct. 1886, 100 L. ed. 2d 425 (1988).
790 	280 NeBRASkA RepoRTS

when and how such police power should be exercised.” . . .’”5
But because the request does not identify any state constitu-
tional provision implicated by the controversy that is unique to
Nebraska, we assume the plaintiffs’ state constitutional chal-
lenge coincides with federal constitutional provisions.
The most common constitutional challenges to these types
of ordinances have been due process, equal protection, and fed-
eral preemption challenges.6 We have interpreted the Nebraska
Constitution’s due process and equal protection clauses to afford
protections coextensive to those of the federal Constitution.7
Because we have not afforded greater state constitutional pro-
tections, no state constitutional questions are determinative
of the pending federal claims. 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.8
even assuming that there could be state law issues in the
federal case that we have not considered here, we could not
decide those issues without knowing the nature of the chal-
lenge. Thus, we decline to accept the federal district court’s
certified question.
It is therefore ordered that the certification request by the
U.S. District Court for the District of Nebraska is denied.
C ertiFiCation request denied.
WriGHt, J., not participating.
5 Wolf v. City of Omaha, 177 Neb. 545, 555-56, 129 N.W.2d 501, 508
(1964).
6 See Lozano v. City of Hazleton, 620 F.3d 170 (3d Cir. 2010).
7 See, e.g., Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278,
739 N.W.2d 742 (2007); Hamit v. Hamit, 271 Neb. 659, 715 N.W.2d 512
(2006); Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006); State v.
Thomas, 268 Neb. 570, 685 N.W.2d 69 (2004).
8 See, Shaw v. Delta Air Lines, Inc., 463 U.S. 85, 96 n.14, 103 S. Ct. 2890,
77 L. ed. 2d 490 (1983); Lozano, supra note 6.
miller-lerman, J., concurring.
I concur with the opinion of this court that the certifica-
tion request should be declined. I write separately because my
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reasoning differs. In particular, to the extent the opinion states
otherwise, I do not agree that the lack of specificity in the cer-
tified question and showing implies only the presence of a con-
stitutional challenge and I do not agree that because the show-
ing regarding the nature of the controversy is not informative,
we must assume that the pending federal consolidated case not
only involves constitutional issues but cannot be determined on
the basis of state statutory law.
The U.S. District Court for the District of Nebraska, pursu-
ant to Neb. Rev. Stat. § 24-219 et seq. (Reissue 2008), certified
this 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 request asks this court to determine if a Nebraska city
of the first class can promulgate an ordinance, such as Fremont
ordinance No. 5156, consistent with chapters 16, 18, and 19
of the Nebraska Revised Statutes. Chapters 16, 18, and 19
contain about 1,200 separately numbered statutes which, in
the printed version, run about 500 pages. The certified ques-
tion filed under § 24-221(1) fails to identify any particular
statute. Furthermore, the showing filed under § 24-221(2) does
not identify a state statute or focus on a series of state statutes
which form the basis of the controversy which would inform
the certified question. The question does, however, suggest by
its terms that we are being asked a question about state statu-
tory law.
The opinion assumes, based on what is known about other
cases challenging these types of ordinances, that the lack
of specificity in the question and showing implies that the
pending federal consolidated case involves federal constitu-
tional challenges or federal question issues which will wholly
determine the outcome of the case, making an opinion by
Nebraska’s highest state court unnecessary. Under Nebraska’s
792 	280 NeBRASkA RepoRTS

certification of questions of law statute, § 24-219, the federal
certifying court may request an answer to a question of law
if “there are involved in any proceeding before [the federal
court] questions of law of this state.” Contrary to the opinion, I
would not rule out the possibility that an issue has been raised
in the federal consolidated case which questions the scope of
the authority of cities to promulgate certain ordinances under
Nebraska statutory law which the Nebraska Supreme Court is
best equipped to assess. In my view, there are possible “ques-
tions of [statutory] law of this state” in the federal case “which
may be determinative of the cause . . . pending in the certifying
court.” Id.
Certification is useful where an interpretation of state statu-
tory law might avoid a need to decide a federal question. See
17A Charles Alan Wright et al., Federal practice and procedure
§ 4248 (3d ed. 2007 & Supp. 2010). The showing at issue sug-
gests as much where it states that if the “Nebraska Supreme
Court . . . suggests that the ordinance is invalid under state
law, this [federal] Court will entertain a motion to dismiss
the remaining federal questions as moot.” Further, the request
indicates the presence of a significant state law issue where it
states that if this court declines the request, the federal court
“will consider whether [Pullman-type] abstention is appropri-
ate . . . to enable the parties to pursue available state remedies.”
See Railroad Comm’n v. Pullman Co., 312 U.S. 496, 61 S. Ct.
643, 85 L. ed. 971 (1941).
Consistent with the opinion, it has been observed that “[a]
federal court may not impose on a state court the responsibility
for determining a federal question.” Imel v. United States, 523
F.2d 853, 857 (10th Cir. 1975). For several reasons, including
the request’s reference to “Pullman-type” abstention, I agree
with the opinion that the request implies the presence of a
federal constitutional issue. Contrary to the inference in the
opinion, however, there is authority for the proposition that this
court may answer a question about the meaning of a state law
while not opining on the issue of the law’s constitutionality
pending in federal court. See Orr v. Knowles, 215 Neb. 49,
337 N.W.2d 699 (1983). See, similarly, Baird v. Belotti, 428 F.
Supp. 854 (D. Mass. 1977).
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Although it would admittedly require us to be careful,
I believe, for the “benefits of comity and harmony,” see
Cuesnongle v. Ramos, 835 F.2d 1486, 1494 (1st Cir. 1987),
between federal and state courts, we should not foreclose
accepting and answering a focused certified question asking us
to construe a state statute while explicitly reserving comment
on the constitutional implications. See Orr, supra. Indeed, we
have done so where a certified question required construction
of a statute but did not request consideration of the statute’s
constitutionality. See Givens v. Anchor Packing, 237 Neb. 565,
466 N.W.2d 771 (1991).
With respect to the scope of our potential inquiry, I note that
although the Nebraska version of the certification of questions
of law act states that a question can be certified “which may be
determinative of the cause” in federal court, see § 24-219, the
1995 replacement to the Uniform Certification of Questions of
Law Act (1967) requires only that the question “may be determi-
native of an issue in pending litigation.” See Unif. Certification
of Questions of Law (1995) § 3, 12 U.L.A. 53 (2008). In any
event, “determinative of the cause” has been read by other state
courts, not as meaning that the answer entirely disposes of the
federal case, but, rather, that the answer to a pretrial certified
question will materially advance the ultimate termination of
the federal litigation. e.g., Schlieter v. Carlos, 108 N.M. 507,
775 p.2d 709 (1989). The majority of state courts seem to read
“determinative of the cause” as determining at least one claim
in the federal case. See, Volvo Cars of North America v. Ricci,
122 Nev. 746, 137 p.3d 1161 (2006) (collecting cases discuss-
ing “determinative of the cause”); Western Helicopter Services
v. Rogerson Aircraft, 311 or. 361, 811 p.2d 627 (1991). To the
extent the opinion implies that a certified question will only be
accepted if it determines the outcome of the entire federal case,
I read that implication as dictum.
Finally, with respect to preemption, the ordinance by its
terms is directed at the “harboring of illegal aliens or hir-
ing of unauthorized aliens”; these subjects implicate fed-
eral concerns. The opinion mentions preemption and the
recently decided case of Lozano v. City of Hazleton, 620 F.3d
170 (3d Cir. 2010) (concluding that employment provisions
794 	280 NeBRASkA RepoRTS

of similar ordinance were conflict preempted whereas hous-
ing provisions were field preempted). I agree with the opinion
that an issue of preemption is no doubt present in the federal
cases, and poses federal questions, and that the resolution of
the preemption issue, in the absence of a state law claim, may
well resolve the entire federal controversy. I would not assume
the preemption outcome to be the same with respect to the
distinct issues regarding housing and employment and would
not assume for certification purposes that construction of state
law necessarily lacks relevance in equal measure as to housing
and employment.
Because the showing in this request lacks specificity regard-
ing the nature of the challenge in the federal consolidated case
and the question does not direct us to the specific state law at
issue, I agree with the opinion which declines this request.
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