Attorney challenges Bruning on bias fights
Posted: Saturday, May 03, 2008
OMAHA (AP) -- If Jon Bruning is certain he's on the right side of the law in his refusal to prosecute housing discrimination cases, he should be willing to argue his case in court, a Lincoln attorney says.
Kathleen Neary of Vince M. Powers and Associates of Lincoln is among the attorneys who have offered the Nebraska Equal Opportunity Commission free legal counsel if the agency wants to sue the Nebraska attorney general.
The commission says Bruning is not prosecuting its housing discrimination cases, although he is required to by law.
Bruning has said he hasn't pursued cases because commission investigations have been shoddy. The issue came to a head, however, when Bruning announced last month that his office balked after it was asked to prosecute a case in which the alleged victims were illegal immigrants.
Commission chairman Arnold Nesbitt pointed out that only one case sent to Bruning's office in recent years has involved illegal immigrants and that Bruning was motivated politically to "grandstand" on immigration.
Under the federal Fair Housing Act, people are protected from discrimination regardless of immigration status, federal Housing and Urban Development officials have said.
But Bruning has said that under federal welfare law, he isn't required to provide legal help to illegal immigrants.
Nesbitt said it would take a vote of commissioners to decide whether the agency accepts any offer of free counsel from the law firms lining up to sue Bruning. The earliest the vote could come is May 16.
Neary made her offer public Thursday, and three more law firms called commission executive director Anne Hobbs on Friday to volunteer their services. Hobbs declined to name those firms without their permission.
"I feel like they've called us up with a present, and I hate to jeopardize anything because we might need some of this help," Hobbs said. "It's a really nice vote of confidence coming from the community."
State law requires the attorney general or governor to approve payment when a state agency hires outside legal counsel. Bruning and Gov. Dave Heineman have indicated they won't grant that approval.
But it was not immediately clear whether Bruning or Heineman would need to approve the offer of free legal help. Neary said approval was not required because she would work for free, but Bruning said it would be unethical for outside counsel to step in because the commission already is represented by his office.
The commission already has enlisted the help of a California law firm, over Bruning's objection, to negotiate with federal officials and Bruning about the commission's handling of housing discrimination cases. The commission stands to lose $240,000 in federal funding if it fails to get cases prosecuted.
Since 2003, the commission says it has forwarded 41 cases to Bruning's office, but only one was prosecuted and none has gone to trial.
But, according to Bruning's office, it's actually pursued 22 of the 58 cases its received from the commission.
Bruning has said shoddy casework by commission staff limits the number of cases he can pursue. HUD officials have not deemed the commission's investigations substandard.
Neary said Bruning needs to be forced to prosecute more discrimination cases, even if it requires court action.
"Why would Jon Bruning avoid having this case litigated?" Neary said. "He's raised a silly issue that federal law would prohibit him from providing benefits to illegal residents. If he really believes federal law gives him that protection, why wouldn't he want an order from district judge to tell him he's right?"
Bruning said the involvement of Powers' firm is predictable because Powers is a Democratic national committeeman.
"It seems to me especially relevant that what you have is a political operative trying to make hay with the situation," Bruning said Friday. "Vince Powers has every incentive. Would he do this if the attorney general in question was Democrat? Of course not."
Told that law firms other than Powers' have offered free counsel to the commission, Bruning said, "They can't. They're not going to get my permission. If they can get the permission of the governor, they can hire whoever they want."
Bruning argued earlier that the federal 1996 Welfare Reform Act prohibits him from providing legal services to illegal immigrants, pointing to a section that says only legal residents should get state or local public benefits. The law defines them to include welfare, disability and health services.
It doesn't mention legal services, but Bruning believes they are included in wording that denies "any other similar benefit for which payments or assistance are provided to an individual, household or family eligibility unit."
Neary said that if she represented the commission, she would ask for a declaratory judgment or court order requiring Bruning to prosecute discrimination cases. Either court action would fall outside the realm of civil rights law, meaning the court could not award attorney fees to her firm if the commission were to prevail.
"Our work for them would be truly free," she said.
Kathleen Neary of Vince M. Powers and Associates of Lincoln is among the attorneys who have offered the Nebraska Equal Opportunity Commission free legal counsel if the agency wants to sue the Nebraska attorney general.
The commission says Bruning is not prosecuting its housing discrimination cases, although he is required to by law.
Bruning has said he hasn't pursued cases because commission investigations have been shoddy. The issue came to a head, however, when Bruning announced last month that his office balked after it was asked to prosecute a case in which the alleged victims were illegal immigrants.
Commission chairman Arnold Nesbitt pointed out that only one case sent to Bruning's office in recent years has involved illegal immigrants and that Bruning was motivated politically to "grandstand" on immigration.
Under the federal Fair Housing Act, people are protected from discrimination regardless of immigration status, federal Housing and Urban Development officials have said.
But Bruning has said that under federal welfare law, he isn't required to provide legal help to illegal immigrants.
Nesbitt said it would take a vote of commissioners to decide whether the agency accepts any offer of free counsel from the law firms lining up to sue Bruning. The earliest the vote could come is May 16.
Neary made her offer public Thursday, and three more law firms called commission executive director Anne Hobbs on Friday to volunteer their services. Hobbs declined to name those firms without their permission.
"I feel like they've called us up with a present, and I hate to jeopardize anything because we might need some of this help," Hobbs said. "It's a really nice vote of confidence coming from the community."
State law requires the attorney general or governor to approve payment when a state agency hires outside legal counsel. Bruning and Gov. Dave Heineman have indicated they won't grant that approval.
But it was not immediately clear whether Bruning or Heineman would need to approve the offer of free legal help. Neary said approval was not required because she would work for free, but Bruning said it would be unethical for outside counsel to step in because the commission already is represented by his office.
The commission already has enlisted the help of a California law firm, over Bruning's objection, to negotiate with federal officials and Bruning about the commission's handling of housing discrimination cases. The commission stands to lose $240,000 in federal funding if it fails to get cases prosecuted.
Since 2003, the commission says it has forwarded 41 cases to Bruning's office, but only one was prosecuted and none has gone to trial.
But, according to Bruning's office, it's actually pursued 22 of the 58 cases its received from the commission.
Bruning has said shoddy casework by commission staff limits the number of cases he can pursue. HUD officials have not deemed the commission's investigations substandard.
Neary said Bruning needs to be forced to prosecute more discrimination cases, even if it requires court action.
"Why would Jon Bruning avoid having this case litigated?" Neary said. "He's raised a silly issue that federal law would prohibit him from providing benefits to illegal residents. If he really believes federal law gives him that protection, why wouldn't he want an order from district judge to tell him he's right?"
Bruning said the involvement of Powers' firm is predictable because Powers is a Democratic national committeeman.
"It seems to me especially relevant that what you have is a political operative trying to make hay with the situation," Bruning said Friday. "Vince Powers has every incentive. Would he do this if the attorney general in question was Democrat? Of course not."
Told that law firms other than Powers' have offered free counsel to the commission, Bruning said, "They can't. They're not going to get my permission. If they can get the permission of the governor, they can hire whoever they want."
Bruning argued earlier that the federal 1996 Welfare Reform Act prohibits him from providing legal services to illegal immigrants, pointing to a section that says only legal residents should get state or local public benefits. The law defines them to include welfare, disability and health services.
It doesn't mention legal services, but Bruning believes they are included in wording that denies "any other similar benefit for which payments or assistance are provided to an individual, household or family eligibility unit."
Neary said that if she represented the commission, she would ask for a declaratory judgment or court order requiring Bruning to prosecute discrimination cases. Either court action would fall outside the realm of civil rights law, meaning the court could not award attorney fees to her firm if the commission were to prevail.
"Our work for them would be truly free," she said.
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