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No. 1: Immigration ordinance continues to be subject of litigation
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No. 1: Immigration ordinance continues to be subject of litigation

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Fremont's illegal immigrant ordinance ended 2010 the same way it started the year - in court.

The Nebraska Supreme Court issued a ruling April 23 that the city should hold a public election on the ordinance that would ban the harboring, hiring of, or renting to illegal immigrants.

The decision was in response to the city's appeal of Dodge County District Court Judge John E. Samson's April 2009 ruling when Fremont residents Wanda Kotas, Jerry Hart and John Wiegert circulated a petition in 2008 calling for a public election after the city council failed to pass the ordinance.

Samson ruled the court could not determine the constitutionality of the measure prior to its passage by voters, and that the measure did not violate rules limiting petition measures to a single subject.

The Supreme Court heard the case on Jan. 7 and affirmed the district court's ruling in its entirety.

The city originally set the election for June 22, then changed it to June 21 due to scheduling conflicts within the county clerk's office.

Fifty-seven percent of Fremont voters approved the ordinance (3,950-2,966) in June and city leaders vowed to do their best to enact it.

"We'll just go ahead and follow the will of the people," Mayor "Skip" Edwards said at the time. "We just need to implement it and move forward."

"We always understood that we will defend this ordinance," City Administrator Bob Hartwig said on June 24. "Believe me, the council knows what the vote was about and they know the citizens want this ordinance."

Backers of the ordinance called the results "a victory in the enduring fight against illegal immigration."

"It is a victory not only for the people of Fremont, but for all Americans," said State Sen. Charlie Janssen, who in 2008 supported the proposed ordinance as a Fremont city council member.

Others, however, were disappointed.

Kristin Ostrom, whose organization, One Fremont-One Future, campaigned against the ordinance, said it would have negative consequences for the community, including more government spending, increased taxes and conflict.

The city council chambers on July 13 was packed full when the council officially received election results, a fairly routine procedure. Police controlled entry to the meeting due to fire marshal occupancy codes.

The ordinance was expected to go into affect July 29 if no legal action restrained it before then, but on July 21 the American Civil Liberties Union made good on its promise to sue the city in Omaha's U.S. District Court, and a separate lawsuit was filed by the Mexican American Legal Defense and Educational Fund. Judge Laurie Smith Camp eventually consolidated the two suits.

The suits sought an injunction prohibiting the ordinance from being implemented. They claimed the ordinance violates numerous provisions of the U.S. Constitution.

The city, after weighing several options, chose Kris Kobach to lead its legal defense of the ordinance. Kobach, the Kansas City attorney who wrote the ordinance, offered his services "free of charge," and was vocally endorsed by seven residents at a July 27 city council meeting.

The council also had considered using the League Association of Risk Management, a group of local attorneys working together or City Attorney Dean Skokan.

Kobach was elected Kansas Secretary of State in November, but said he would still represent Fremont in the case.

Even with Kobach's pro bono offer, however, the city braced for possible expenses related to the lawsuits, including potential plaintiffs' fees.

Based on estimates with input from Kobach and research of other communities defending similar ordinances, the city budgeted $750,000 in the 2010-2011 budget, raising the tax rate by about 5.8 mills, and established a legal defense fund that, as of earlier this week, had collected $2,842.80 in donations.

Meanwhile, the council suspended implementation and enforcement of the ordinance until 14 days after the court rules on the lawsuits.

Smith Camp said on July 28 she was unsure whether the suits belonged in federal or state court because the suits claimed Fremont exceeded its municipal powers under state law by adopting the ordinance. She sent the question to the Nebraska Supreme Court in September, but the state's highest court chose not to issue an opinion, saying the request did not allege a violation of state law.

Smith Camp on Nov. 12 denied requests for a temporary restraining order against the ordinance, and gave the city a Dec. 3 deadline to respond to motions for a preliminary injunction. The deadline was extended to Jan. 21, 2011.

The ACLU and MALDEF have until Feb. 18, 2011, to reply to the city's briefs.

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