A Politically-Inspired Attorney General Opinion in Nebraska?

On May 3, the Office of Nebraska Attorney General Jon Bruning, who is a Republican candidate for the United States Senate, issued a written opinion over the signature of Assistant Attorney General Dale A. Corner, asserting that "political subdivisions" in Nebraska do not have the authority to "create protected classes not listed in state statute."  The opinion was issued at the request of State Senator Beau McCoy, whose attempt to procure the enactment of a law prohibiting local governments from extending their civil rights laws to include categories not covered in the state's civil rights law was unsuccessful.  Senator McCoy's bill was provoked by the enactment of such a law in Omaha, and the pendency of another in Lincoln.

The Attorney General Opinion confronts the fact that the Nebraska legislature has enacted a statute that, on its face, authorizes incorporated cities and counties to do just what the Opinion says they may not do. 

Nebraska Revised Statutes sec. 20-113 states: "Any incorporated city may enact ordinances and any county may adopt resolutions which are substantially equivalent to the Age Discrimination in Employment Act, the Nebraska Fair Employment Practice Act, the Nebraska Fair Housing Act, and sections 20-126 to 20-143 and 48-1219 to 48-1227 or which are more comprehensive than such acts and sections in the protection of civil rights."  The section also states: "The local agency shall have within its authority jurisdiction substantially equivalent to or more comprehensive than the Equal Opportunity Commission or other enforcement agencies provided under such acts and sections…."

In a 1981 Attorney General Opinion, the office confronted this question and opined that "although the 'more comprehensive than' language could provide incorporated cities and counties with the authority to enact ordinances or resolutions protecting classifications of persons not specifically set out in the state anti-discrimination statutes, a contrary interpretation also is feasible," and suggested that the legislature enact "clarifying legislation" to as to "eliminate any doubts in this matter."  The legislature has not acted.

The AG Opinion notes that when the "more comprehensive" language was added to the statute by the legislature in 1974, an assistant city attorney who participated in drafting the bill had explained its purpose by stating it was to counter any argument that a local ordinance might go beyond the scope of legislative authority because it did not use "exactly the same language" as the state's civil rights statutes.  The senator who introduced the 1974 measure stated that it adds language to the statute so "that the locals may, within these sections, be more comprehensive and then so would be able to enforce them at the local level."  From this, the AG draws the inference that the language was intended to support local enforcement and was not intended to allow localities to add more classifications for protection.  That is not the only interpretation that could be given to the senator's comment, which could equally support the conclusion that his amendment was intended to allow localities to adopt more expansive measures that provided greater protection against discrimination — which is what "more comprehensive" sounds like.

Citing some later cases and amendments, the AG argues that the "more comprehensive" language was intended to counter any argument that local civil rights agencies did not have the authority to enforce the anti-discrimination polices already embodied in state law, and that the state law should be construed to be the exclusive source of authority for local law, relying on court opinions that take the view that municipalities in Nebraska don't have any legislative authority beyond what has been delegated to them by state statutes.

Nebraska, needless to add, does not by state law forbid discrimination based on sexual orientation or gender identity or expression.

The AG Opinion then goes on to warn that any municipality or local officials enforcing an invalid civil rights statute could be opening themselves up to federal constitutional tort liability under 42 USC sec. 1983, which creates a cause of action for damages and attorneys fees for an individual who is deprived of their federal rights under color of state law.  The paragraph containing this analysis seems farfetched at best.  One wonders how any employer sued by the city for discriminating based on sexual orientation could have a valid claim that its federal constitutional rights had been violated.  The federal constitution does not endow employers with a right to discriminate on any basis, at least since the Supreme Court receded from the Lochner due process doctrines of the early 20th century.

This AG Opinion reeks of politics rather than legal reasoning, and local officials are taking it in that spirit.  According to press reports we've seen, local officials in Omaha do not plan to abandon their recently-enacted civil rights law, and proponents of the measure in Lincoln remain undeterred.



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