S-15-676, John J. Malone, Sr., (Appellant) v. City of Omaha
District Court for Douglas County, Hon. Marlon A. Polk
Attorneys: Brian J. Koenig & Eric A. Nanfito (Koley Jessen P.C., L.L.O.) (Appellant) ' Alan M. Thelen & Jennifer J. Taylor (City Attorney's Office)
Civil: Ordinance; injunction; summary judgment
Proceedings below: Following a bench trial, the district court denied Appellant's motion for summary judgment and granted Appellee's motion for summary judgment in part and resolved the remaining issues in favor of Appellee.
Issues: The district court erred 1) by denying Malone's Motion for Summary Judgment in its Order of March 26, 2015, and not finding that the City violated ' 2.12 of its Charter when it enacted the Ordinance without restarting the notice and hearing process after significantly altering the Ordinance (including the title) by amendment, 2) by denying Malone's Motion for Summary Judgment in its Order of March 26, 2015, and not finding that the limited powers granted to the City under its Charter prohibited the City from enacting the Ordinance, 3) by denying Malone's Motion for Summary Judgment in its Order of March 26, 2015, and not finding that prior Nebraska Supreme Court precedent, as set forth in Gray v. City of Omaha and State v. Wiggenjost, prohibits the City from enacting the Ordinance under the general powers granted to it under its Charter and Nebraska statutes, 4) by denying Malone's Motion for Summary Judgment in its Order of March 26, 2015, and not finding that prior Nebraska Supreme Court precedent, as set forth in Gray v. City of Omaha and State v. Wiggenjost, demonstrates the Ordinance is monopolistic, and fails to further the public health, safety, or welfare and, thus, is invalid, 5) by denying Malone's Motion for Summary Judgment in its Order of March 26, 2015, and not finding that the Legislature intended to occupy the fields of the licensing of occupations involving the health, safety, and welfare of the public and the construction industry to the exclusion of municipal action, 6) by denying Malone's Motion for Summary Judgment in its Order of March 26, 2015, and not finding that the Legislature preempted the City from enacting the Ordinance through the State of Nebraska's conflicting statutory lead abatement licensure requirement, 7) by denying Malone's Motion for Summary Judgment in its Order of March 26, 2015, and not finding that the Legislature preempted the City from enacting the Ordinance through the State of Nebraska's conflicting intent not to endorse the quality or performance of services provided by any contractor, as set forth in the Contractor Registration Act, 8) by granting the City's Motion for Summary Judgment in part in its Order of March 26, 2015, and finding that the City did not violate ' 2.12 of its Home Rule Charter when it enacted the Ordinance without restarting the notice and hearing process after significantly altering the Ordinance (including the title) by amendment, 9) by granting the City's Motion for Summary Judgment in part in its Order of March 262015, and finding that the Ordinance did not place an unfair restriction on trade reducing competition and creating a monopoly, 10) by granting the City's Motion for Summary Judgment in part in its Order of March 26, 2015, and finding that the Ordinance did not violate Malone's constitutional right to conduct lawful business, 11) by granting the City's Motion for Summary Judgment in part in its Order of March 26, 2015, and implicitly finding that prior Nebraska Supreme Court precedent, as set forth in Gray v. City of Omaha and State v. Wiggenjost, did not prohibit the City from enacting the Ordinance under the general powers granted to it under its Home Rule Charter and Nebraska statutes, 12) by granting the City's Motion for Summary Judgment in part in its Order of March 26, 2015, and implicitly finding that Ordinance 39090 was not an invalid Ordinance, 13) by entering judgment against Malone in its Order of June 22, 2015, and finding that the City had authority to enact the Ordinance and was not preempted by the Legislature from doing so, and 14) by entering judgment against Malone in its Order of June 22, 2015, and finding that the temporary injunction enjoining the City from enforcing the Ordinance against Malone should not become a permanent injunction and should be dissolved.