Opinion
No. S-33-100018.
Filed November 5, 2010.
Certified Question from the U.S. District Court for the District of Nebraska. Certification request denied.
HEAVICAN, C.J., CONNOLLY, GERRARD, STEPHAN, McCORMACK, and MILLER-LERMAN, JJ.
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 district 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 question offers no particulars as to the nature or extent of the "conditions" which have been or may be imposed. But the question 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 conditions that the city seeks to impose, the facts and showing submitted 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 certified 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 question 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 susceptible to a narrowing construction. 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." The same is 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.
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).
Houston, supra note 1, 482 U.S. at 471.
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).
Here, although § 24-221 requires a statement of facts showing 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' complaints. These omissions require us to make assumptions about the plaintiffs' state law challenge and imply that it is a constitutional 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 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.
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).
We have stated that `""[i]n the exercise of police power delegated by the state legislature to a city, the municipal legislature, within constitutional limits, is the sole judge as to what laws should be enacted for the welfare of the people, and as to when and how such police power should be exercised." . . .'" But because the request does not identify any state constitutional provision implicated by the controversy that is unique to Nebraska, we assume the plaintiffs' state constitutional challenge coincides with federal constitutional provisions.
Wolf v. City of Omaha, 177 Neb. 545, 555-56, 129 N.W.2d 501, 508 (1964).
The most common constitutional challenges to these types of ordinances have been due process, equal protection, and federal preemption challenges. 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. 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.
See Lozano v. City of Hazleton, No. 07-3531, 2010 WL 3504538 (3d Cir. Sept. 9, 2010).
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).
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.
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 challenge. 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.
WRIGHT, J., not participating.
CERTIFICATION REQUEST DENIED.