Kobach files motion to exclude witness

Chris Zavadil/Fremont Tribune | Posted: Monday, December 5, 2011 11:30 am | (2) Comments


Attorney Kris Kobach filed a motion in U.S. District Court to preclude testimony of an expert witness the plaintiffs intend to call in the lawsuit against Fremont's illegal immigrant ordinance.

Separate lawsuits by the American Civil Liberties Union and the Mexican American Legal Defense and Educational Fund against the ordinance that would ban hiring of or renting to illegal immigrants in Fremont, were combined, and the case is set to go to trial the week of April 10, 2012.

Plaintiffs intend to call Stephen W. Yale-Loehr, a law professor at Cornell Law School who is licensed to practice in New York and Washington, D.C.

"In prohibiting certain persons from renting a dwelling in Fremont, Nebraska," Yale-Loehr wrote in a more than 20-page report dated July 19, "Fremont Ordinance No. 5165 creates its own classification and removal scheme, in conflict with how federal law determines whether or not a person will be permitted to stay in the United States."

Yale-Loehr wrote that Fremont Police and state court judges will have to determine whether a person is not lawfully present.

"It is my opinion as an expert in the area of federal immigration law to a reasonable degree of certainty that Fremont Ordinance 5165 cannot be applied in a manner that is consistent with federal immigration law," he wrote.

Kobach, representing the city in defense of the ordinance, wrote in his motion that Yale-Loehr should not be allowed to testify as an expert "because his opinions are legal conclusions which are barred under the federal rules of evidence and his expert report consists of speculations unsupported by sufficient facts."

Kobach called Yale-Loehr's opinions speculative and referred to them as "legal arguments masquerading as expert opinions."

In filing the motion, Kobach offered to withdraw two paragraphs of a seven-paragraph report from expert witness Jan Ting, in which Ting wrote on Sept. 18 that the ordinance "is consistent with and in no way preempted by federal immigration laws as enacted by the U.S. Congress."

Ting, a law professor at Temple University, teaches citizenship and immigration law. He was formerly assistant commissioner of the Immigration and Naturalization Service.

Ting referenced court cases suggesting state or local governments can require employers to use E-Verify, and said the opinion may also cover the restriction of housing illegal aliens.

"Fremont Ordinance No. 5165 is clearly designed to ensure that only the federal government's determination of immigration status ... is utilized by the city of Fremont," he wrote.

"We recognized when the plaintiffs first offered the legal arguments of Mr. Yale-Loehr that they were improperly attempting to insert legal arguments in the form of expert testimony," Kobach told the Tribune in an email Friday.

"We anticipate that the court will exclude it as the precedents of the 8th Circuit require," he said, "but in an abundance of caution we openly offered the equivalent legal analysis from our side, just in case the court, for some reason, allows it."

It is up to the court to decide whether to call a hearing on the motion, but these types of motions are often decided without a hearing, Kobach said.

The ordinance originally was set to take effect on July 29, 2010, but the city council put it on hold awaiting the outcome of legal challenges.

Last January, attorneys from both sides and U.S. District Judge Laurie Smith Camp signed a joint stipulation preventing Fremont from enforcing the ordinance.

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