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Elected officials are equally subject to the law

As many Lincolnites know, a referendum petition effort has been organized by Nebraska Family Council and Family First in response to the Lincoln City Council’s vote on Monday, May 14 to create protection for a new class of persons based on sexual orientation and gender identity. Members of the City Council subverted the rule of law in multiple ways.

Click to download and print flyer

At an organizational meeting May 15, materials distributed described the effects of the ordinance on Lincolnites’ work, church, and business lives. Some circulators may wish they had a handout or reference document about the problems with the process.

With that in mind, we’ve detailed the process problem, raised a few additional points that might be of interest, and provided suggestions for countering arguments made by people who support the ordinance and who haven’t thought about whether or not the City Council’s actions were improper.

We have created an abbreviated summary of this information in a printable flyer format. Click the image, above, to download to your computer. Click HERE to view the flyer on Scribd (or download and print if you have an account).

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Even Lincolnites who support the idea of a City ordinance like the one passed should be outraged by the conduct of City officials and, therefore, should support the proper process for such ordinance amendments, and should sign the referendum petition – available through May 28.

Click HERE for all other printable documents relating to the ordinance

HERE to make arrangements with a petition circulator to sign a petition

COUNCIL MEMBERS IGNORED THE LAW

• An Attorney General’s opinion[1. The opinion was issued at the request of State Senator Beau McCoy who, the letter states, was inquiring regarding whether or not it would be necessary to reintroduce a legislative bill to prohibit the expansion of protected classes as had been done in Omaha and was proposed in Lincoln. The major points in the opinion were: 1) a 1980s opinion issued by Lincoln City Attorney William Austin stated that in order to add additional protected classes to the City’s ordinances, a City charter amendment was required, and this, in turn required a vote by citizens; 2) A vote was taken, the measure defeated and no changes have been made changing the requirements as existed in the 1980s – a vote is still is required. A 1964 Nebraska Supreme Court decision was cited to illustrate that Nebraska law does not empower municipalities to legislate on, among other things, civil rights – that power lies with the state; 3) A review of  legislation introduced after the 1964 was undertaken, including the matter of legislative intent and statements by introducing state senators regarding potential impact, with the assessment that none of the legislation expanded Nebraska cities’ power beyond what had previously existed specifically as pertains to the addition of new classes – passed legislation merely expanded cities’ ability in regard to enforcing civil rights violations within the limits of what is provided in state law; and 4) Local political subdivisions and their elected officials are legally liable should they enforce an ordinance which exceeds the scope of their authority, according to several Nebraska Supreme Court decisions.] detailed why ordinances like those passed in Omaha and Lincoln cannot be enacted through the process utilized by both City Councils.

• Although Lincoln has a Home Rule Charter, which grants considerable independence to a city in Nebraska, legislation by City of Lincoln still must be in pursuance of the Nebraska Constitution and not in conflict with State laws.

• Lincoln’s City Charter[2. Article X, Section 1 is the section of Lincoln’s Charter which governs civil rights powers.] does not give the power to the City Council to legislate regarding a class of persons defined by their sexual orientation or gender identity OR to add them to the list of protected classes.

• Nebraska law requires City officials to seek an amendment to the City’s Charter[3. City of Lincoln City Charter], which in turn, requires placement on the ballot and a vote by the citizens.

• The City Council violated a provision in State law which specifically prohibits sexuality and/or gender identity from being used as a basis for defining protected classes under State civil rights provisions[4. Under both Federal and State law, the statutory scheme for civil rights involves, as a group, sets of statutes regulating employment, public accommodations, and housing. Under Nebraska’s civil rights statutes, for instance, Chapter 20 pertains specifically to civil rights. Statute 20.113, however cites several employment and housing acts within that core explanatory text. Nebraska’s Fair Employment Practice Act includes a provision regarding discrimination which expressly precludes a long list of sexual orientation and gender identity descriptions from being included as a protected class regarding discrimination.].

• The City Council based their May 14 action and attempted to legitimize it solely on their own attorney’s opinion, which is in direct conflict with the opinions of current and former Attorney General staff attorneys and a former Lincoln City Attorney, some of whom have direct past experience with the very same type of proposed ordinance. Current Lincoln City Attorney Rod Confer’s opinions should be viewed with considerable skepticism considering his evolving legal explanations regarding Occupy Lincoln[5. See Grassroots in Nebraska’s article: “Occupy Lincoln Shanty Town: City of Lincoln PERMITing Hypocrisy”] and public admissions that some Lincoln ordinances known to violate the U.S. Constitution were unchanged for eighteen months and counting[6. See GiN article, “City Attorney, RE Occupy Lincoln – Double Standard, Double Talk”. In a KLIN radio interview October 20, 2011, Rod Confer explained that in April, 2010, a group raised objections to some of Lincoln’s ordinances regarding use of parks and required permitting fees because they violate First Amendment protection and that those ordinances remained unchanged. To date, those ordinances have not changed]. The City has expressly refused to make Confer’s opinion on the current issue available for review by the public.

• City Council members ignored admonitions from many attorneys regarding what are a number of serious problems with the ordinance’s language. Concerned attorneys point out that the language is too ambiguous, lacks some definitions altogether – particularly regarding the definitions of “gender identity” and “religious group”, and is overly broad.

• Civil rights legislation historically has provided protection for classes of people based on immutable characteristics (involuntary and unchangeable). A 2006 8th Circuit Court of Appeals ruling on an amendment to the Nebraska Constitution noted (pg. 6), “But the Supreme Court has never ruled sexual orientation is suspect classification for equal protection purposes.”

Regarding City authority under the Nebraska Constitution:

As set forth in the U.S. Constitution, state laws that conflict with that document, federal laws made in pursuance of it, or any treaties made under the authority of the United States, are invalid[7. Those who wish to see a restoration of original Constitutional principles, including the concept of dual sovereignty, which provides for appropriate and distinct spheres for federal and state governments, will understand our brief summary is referring to a proper articulation of what is commonly referred to as “the Supremacy Clause”, which is found in Article VI].  The same is true of city ordinances that conflict with the constitution or laws of the state in which it is located, only more so.  The individual states were not the creations of the federal government, quite the reverse, in fact.  In contrast, cities owe their very existence to the state in which they are located.  Consequently, their right to any degree of self-government, even as to local matters, is solely at the discretion of the state and any action taken by a city must be “consistent with and subject to the constitution and the laws of the state (Nebraska Constitution, Article XI, Sec. 2).”

COUNCIL MEMBERS’ ACTIONS COULD ULTIMATELY COST TAXPAYERS

• As one attorney testifying before the Council on May 7 noted, “There is a lot of fodder, a lot of potential income for attorneys” in the language chosen by the Council. The poor wording could cost taxpayers.

• Since the Council’s actions are in violation of state law, if the proper process is not followed through a vote by the citizens of Lincoln, there is a high probability of legal challenges which would require taxpayer funds to defend.

• Should anyone’s rights be violated by the improperly passed ordinance, the City of Lincoln may be responsible for damages, which would be paid for by taxpayers, not the Council members who passed the ordinance.

• Lincoln taxpayers have seen several rounds of tax increases in recent years, recent news reports indicated new taxes are under consideration, the City has considerable debt, and a costly unfinished project to complete. Can taxpayers afford court battles and/or lawsuit payouts?

A DANGEROUS PRECEDENT – FOR EVERYONE

• Some have attempted to argue that past Lincoln City Councils (and Omaha’s) have voted on similar ordinance amendments in the same manner, with no objections made[7. Lincoln Journal Star reporter, Nancy Hicks was sure to inform readers that the City of Lincoln had added new classes to the City’s civil rights code in the past without a vote in a May 14, 2012, article.]. Such logic is utterly absurd and equivalent to the following scenarios…

A driver, clocked by a patrol officer as driving 90 mph in a 65 mph zone – speed limit signs clearly posted – is issued a speeding ticket. The driver objects, stammering, “But officer, I go through here this fast everyday. You can’t give me a ticket now!”

At an arraignment hearing in a murder case, when asked for his plea, the defendant states, “Judge, you can’t charge me with a crime! I’ve killed ten other people and gotten away with it.”

• Today the issue is an amended ordinance to create a protected class based on sexual orientation and gender identity. Supporters should ask themselves: might a future Council, following the lead of those currently in office, follow the same path on an issue with which they disagree? Currently, what is preventing such a turn of events?

• No supporter of the rule of law should ignore their elected officials’ subversion of it, regardless of the issue. Council members should be shown that Lincolnites believe that no one is above the law, including – especially – elected officials.

COUNCIL MEMBERS IMPOSED THEIR OWN BELIEFS ON LINCOLNITES

• If Council members do not listen to voters who show up for public input before the Council votes, then what is the purpose of those sessions?

• Member Doug Emery defiantly described his unwillingness to put the matter on the ballot formerly/http://nebraska.watchdog.org/22245/lincoln-passes-gay-rights-ordinance-opponents-vow-referendum/ to be voted on by citizens as reflecting “representative government”, but principled representatives should listen to their constituents when they are simply urging them to ABIDE BY THE LAW, in this case by properly putting the proposed ordinance to a vote.

• By voting in a way that was totally out of alignment with the clear message sent by constituents, Council members decided that City policy should reflect the values of five Council members, the mayor, and the City Attorney.

• Council members apparently believe they can impose their will and their philosophical beliefs on all of the citizens.

• Apparently council members believe they have been granted the right to promote Lincoln, Nebraska, in misleading way to the outside world – as a city which supports policies such as the one passed, whether that is an accurate portrayal of the City, or not.

WHY ARE COUNCIL MEMBERS AFRAID TO ALLOW LINCOLN CITIZENS TO VOTE ON THE ISSUE?

• Considering that the number of people who testified before the Council in support of voting on the measure and who were also opposed to the content of it, legitimate questions exists regarding whether City Council’s action reflects the people’s will.

• Are City Council members afraid that their constituents are not in agreement with them?

• Could the opposition to a citizen vote on the issue be in any way connected to the history of public votes on such questions[8. The related issue of recognizing homosexual marriages illustrates that voters soundly and repeatedly reject such measures. See “Gay Marriage Thrown Out By All 31 States Where it Has Been Put to a Vote”, Mail Online, November 4, 2009. To date, the overwhelming majority of changes in law legitimizing or creating rights for sexuality and gender identity have been achieved through judicial rulings or legislative bodies (e.g. city councils and state legislatures)]?

Answering challenges about Attorney General Jon Bruning’s opinion:

The Attorney General’s opinion has been dismissed by ordinance proponents as purely politically motivated and, in addition, that Attorney General Jon Bruning’s credibility is in question.

Ordinance proponents label the issuance of the opinion as politically motivated due to the close timing with May 15 Nebraska primary election and Bruning’s participation in a hotly contested U.S. Senate race. The increasing number of headlines in recent weeks regarding donations to Bruning’s campaign and potential connections to actions taken by Bruning as Attorney General and additional scrutiny pertaining to the accumulation of wealth by Bruning while in public office are cited as damaging to Bruning’s credibility, generally. Finally, some opponents now cite Bruning’s defeat in the GOP U.S. Senate primary as a general rejection.

Why the Attorney General’s opinion IS valid, regardless:

EVEN IF one were to accept that the Attorney General’s specific credibility has been damaged or the motivations for it’s issuance were in some way political, it is not rational to dismiss that opinion out of hand. The relevant question should be: is the opinion well researched with citations included, reasoned, and sound legally?

Further, although the Attorney General is the overall responsible party regarding all official opinions issued by his office, the opinion regarding the Omaha and Lincoln ordinances was written by members of the Attorney General’s staff with decades of legal experience. And the chief author of the opinion is generally considered to be, as stated by one former colleague, “as apolitical as it gets”.

In addition, the Attorney General office’s opinion has been reviewed by multiple attorneys, most of whom have previous experience, not only with drafting such opinions while working in the Attorney General’s office at some point in the past themselves, but they also have had direct involvement in reviewing this specific issue and understand the relevant state statutes and the City of Lincoln Charter intimately.

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