Lawyers claim lawsuits belong in federal court
StoryDiscussionLawyers claim lawsuits belong in federal court
Chris Zavadil/Fremont Tribune Fremonttribune.com | Posted: Wednesday, August 18, 2010 10:15 am | (4) Comments

Font Sizeefault font sizeLarger font size.Attorneys representing all parties involved in two lawsuits challenging Fremont's illegal immigration ordinance are claiming the case belongs in federal court.

Kris Kobach, who has been hired to defend Fremont, as well as attorneys representing the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund filed briefs Monday in U.S. District Court in Omaha, responding to a request by Judge Laurie Smith Camp.

Smith Camp said during a July 28 hearing she wasn't sure whether federal or state court had jurisdiction because the lawsuits claimed in part that Fremont violated state law by enacting the ordinance. The lawsuits also named various federal complaints.

Kobach reasoned in his brief that federal questions dominate the lawsuits.

"Plaintiffs clearly have numerous claims that are federal question claims, granting this court subject matter jurisdiction," he wrote.

Kobach also suggested jurisdiction could be made clearer if the plaintiffs were to eliminate their state law question.

"If this court concludes that it lacks federal question jurisdiction over the cases as they are currently structured," he wrote, "plaintiffs can voluntarily dismiss their state law cause of action, which would appear to remove any question as to their ability to proceed in federal court. Defendants would not object to plaintiffs amending their complaints accordingly."

In separate briefs submitted by the plaintiffs, attorneys for MALDEF and the ACLU indicated likewise that overriding causes of action were federal in nature.

"Because plaintiffs' case includes four federal causes of action, the court properly has subject matter jurisdiction," ACLU lawyers wrote in their brief. "In the event the court were to conclude that it lacks jurisdiction due to the presence of the state law claim, however, plaintiffs respectfully request an opportunity to consider amending their complaint to address the court's concerns."

MALDEF attorneys, whose lawsuit contains seven federal claims and one state claim, laid out several options the District Court could follow in addressing the state question, including taking pendent jurisdiction over the state issue so everything can be resolved in federal court, or referring the state question to the Nebraska Supreme Court.

A decision by the Nebraska Supreme Court could potentially make the federal questions moot, MALDEF's brief said.

"If defendant could not have passed the ordinance at issue, then the alleged federal constitutional and statutory violations would cease to exist," they wrote.

MALDEF attorneys requested that even though the federal court has subject matter jurisdiction over their case, the court should ask the Nebraska Supreme Court for a speedy resolution of the claim that Fremont exceeded its authority by passing the ordinance.

The city council voted to delay implementation of the ordinance until the lawsuits are resolved. It was originally scheduled to be implemented July 29.

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