Shames v. State of Nebraska

• Decision Date: 11 February 1971
• Docket Number: Civ. No. 03255.
• Parties: Ali SHAMES, Ahmed Shames, Buda Shames and Samira Shames, Heirs, Plaintiffs, v. STATE OF NEBRASKA, Clarence A. H. Meyer, Attorney General for State of Nebraska, Norbert Tiemann, Governor of the State of Nebraska, Paul Robinson, County Attorney of Cedar County, Nebraska, Judge Joseph Marsh, Judge of the District Court of Cedar County, Nebraska, and Max Goetz, Administrator of the Estate of Hussan James, a/k/a Hussan Shames in Cedar County, Nebraska, Defendants.
• Court: U.S. District Court — District of Nebraska

323 F. Supp. 1321

Ali SHAMES, Ahmed Shames, Buda Shames and Samira Shames, Heirs, Plaintiffs, v. STATE OF NEBRASKA, Clarence A. H. Meyer, Attorney General for State of Nebraska, Norbert Tiemann, Governor of the State of Nebraska, Paul Robinson, County Attorney of Cedar County, Nebraska, Judge Joseph Marsh, Judge of the District Court of Cedar County, Nebraska, and Max Goetz, Administrator of the Estate of Hussan James, a/k/a Hussan Shames in Cedar County, Nebraska, Defendants.

Civ. No. 03255.

United States District Court, D. Nebraska.

February 11, 1971.

Phillip S. Dandos, Sioux City, Iowa, and Mohummed Sadden, South Sioux City, Neb., for plaintiffs.

Clarence A. H. Meyer, Atty. Gen., and Bernard L. Packett, Asst. Atty. Gen., State of Neb., for defendants.

Before LAY, Circuit Judge, and ROBINSON and VAN PELT, District Judges.

MEMORANDUM

ROBINSON, District Judge.

This matter comes before the Court on defendant's motion to dismiss, on plaintiff's motion to convene a Three-Judge District Court to enjoin the enforcement and execution of the provisions of Sections 76-401 and 76-402 Revised Statutes of Nebraska 1943 and for a determination on the merits of the relief prayed for. By the Order of this Court dated May 8, 1970, it was decreed that a trial and argument be set for June 1, 1970, before a Three-Judge District Court. In the interest of judicial expediency the defendants' motion to dismiss and the merits of the case were argued and taken under advisement. Accordingly, before this panel can reach the constitutional issues it first must be determined if the motion to dismiss is to be sustained or overruled.

Hussan Shames died intestate on July 4, 1962 in Sioux City, Woodbury County, Iowa. The decedent was a resident of that county and state. He left as his only heirs the four plaintiffs in this action who are nationals and residents of Syria. The main probate of the decedent was commenced in Woodbury County District Court, Sioux City, Iowa, and an auxiliary probate was opened in Cedar County Court, Hartington, Nebraska, on July 6, 1963. This auxiliary proceeding was commenced to probate certain real estate the decedent owned in Nebraska. The State of Nebraska intervened in the probate proceedings and asked that the Nebraska estate of Hussan Shames escheat to the State of Nebraska for failure of qualified heirs to take. The Probate Court entered a decree January 23, 1969, in which it said the real estate escheated to the State of Nebraska. An appeal has been taken by plaintiffs from this decree to the District Court of Cedar County, Nebraska. This Panel was advised at the oral arguments that the District Court has refrained from ruling on the appeal and will so refrain until this Court renders its decision in the matter.

Defendants have urged that the Court should abstain from entertaining the substantive issues and allow the Nebraska state courts to dispose of the constitutional challenges herein raised. In recent years there has been frequent recognition of situations in which a federal court may decline to proceed though it has jurisdiction under the Constitution and the Statutes.¹ Abstention by federal courts stems from Railroad Commission of Texas v. Pullman Co., 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941). There the court affirmed a federal district court's refusal to issue an injunction against the Texas Railroad Commission until the State Courts had an opportunity to void the commission action on State law grounds. Justice Frankfurter speaking for the court said:

"The last word on the meaning of Article 6445 of the Texas Civil Statutes the challenged state statute and therefore the last word on the statutory authority of the Railroad Commission in this case, belongs neither to us nor to the district court but to the supreme court of Texas. In this situation a federal court of equity is asked to decide an issue by making a tentative answer which may be displaced tomorrow by a state adjudication: Glenn v. Field Packing Co., 290 U.S. 177 54 S.Ct. 138, 78 L.Ed. 252; Lee v. Bickell, 292 U.S. 415 54 S.Ct. 727, 78 L.Ed. 1337. The reign of law is hardly promoted if an unnecessary ruling of a federal court is thus supplanted by a controlling decision of a state court." 312 U.S. at 499-500, 61 S.Ct. at 645.

The abstention doctrine reached its broadest definition in four decisions handed down June 8, 1959.² These decisions reaffirmed the basic doctrine underlying abstention, that is that federal courts should stay the federal proceeding in "special circumstances" principally, when a challenged statute is open to an interpretation and construction that could possibly avoid the constitutional issue. Louisiana Power & Light Co. v. City of Thibodaux, 360 U.S. 25, 79 S.Ct. 1070, 3 L.Ed.2d 1058 1959.

However, in Zwickler v. Koota, 389 U.S. 241, 88 S.Ct. 391, 19 L.Ed.2d 444 1967 abstention was substantially limited. In Zwickler the appellant was challenging the constitutionality of a New York statute which prohibited, among other things, the distribution of handbills concerning any candidate for an elected or public office unless there was printed thereon the name and post office addresses of the printer of said handbill and the name of the person who ordered the said handbill to be distributed. A three-judge court applied the absention doctrine and dismissed the complaint. Zwickler v. Koota, 261 F.Supp. 985 E.D.N.Y.1966. The Supreme Court reversed, holding that there were no "special circumstances" which required the application of the absention doctrine. Zwickler v. Koota, 389 U.S. 241, 248, 88 S.Ct. 391, 395, 19 L.Ed. 2d 444.³ The court felt that there was no possible construction of the statute which could avoid the constitutional issues raised.

In a recent case, Reetz v. Bozanich, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 1970, the Supreme Court reversed a decision of the three-judge panel where the lower court had refused to apply abstention and held an Act of Alaska and the regulations passed pursuant to that statute unconstitutional under the Equal Protection clause of the Fourteenth Amendment and under the Constitution of Alaska. The High Court felt that the state court decision in interpreting the Alaska Constitution could "conceivably avoid any decision under the Fourteenth Amendment and would avoid any possible irritant in the federal-state relationship." The court cited approvingly language from City of Meridian v. Southern Bell Tel. & Tel. Co., 358 U.S. 639, 79 S.Ct. 455, 3 L.Ed.2d 562 (1959) where it was said:

"Proper exercise of federal jurisdiction requires that controversies involving unsettled questions of state law be decided in the state tribunals preliminary to a federal court's consideration of the underlying federal constitutional questions. * * *" 358 U.S. at 640, 79 S.Ct. at 456.

In the present case however, there are no unsettled questions of state law. In Semrad v. Semrad, 170 Neb. 911, 104 N.W.2d 338 1960 the Supreme Court of Nebraska fully interpreted the state statutes herein challenged.⁴ Thus our situation here is analogous to Zwickler v. Koota, supra, where it was determined that abstention did not apply for the challenged state statutes or constitution were not open to interpretation that could avoid the constitutional issue. Accordingly this Court does not deem abstention applicable to the case at hand, and defendant's motion to dismiss on the grounds of abstention should be overruled.

Proceeding now to the issue of the constitutionality of the challenged statutes:

The four plaintiffs in this action ask the Court to enjoin the enforcement and execution of Section 76-401 and 76-402 R.R.S.1943,⁵ by Judge Joseph Marsh of the District Court of Nebraska, in and for Cedar County; the State of Nebraska, through its Attorney General, Clarence A. H. Meyer; Governor Norbert Tiemann; Paul Robinson, County Attorney of Cedar County, Nebraska; and Max Goetz, Administrator of the Estate of Hussen James in Cedar County, Nebraska, because such enforcement and execution would allegedly constitute an unconstitutional intrusion into the field of foreign affairs which the Constitution of the United States entrusts to the President of the United States and Congress. Plaintiffs further allege that when construed together the two statutes deprive them of property without due process of law as guaranteed by the Fourteenth Amendment of the United States Constitution. They also contend that when the two statutes are read in conjunction with Section 76-414 R.R.S.1943,⁶ which excepts property within three miles of the corporate limits of any city or town from the operation of Sections 76-401 and 402, they are deprived of equal protection of the law as guaranteed by the equal protection clause of the Fourteenth Amendment to the United States Constitution. Finally plaintiffs argue that the statutes in question deprive the decedent of the right to dispose of his property as he wishes, and therefore deprive him of his liberty without due process of law, as guaranteed to him by the Fourteenth Amendment to the United States Constitution.⁷

Do the Nebraska Statutes Constitute an Unconstitutional Intrustion into Unit-States Foreign Affairs?

Section 76-402 R.R.S.1943 on its face is an absolute bar to the inheritance of any real property located in the State of Nebraska by a non-resident alien. There are, however, two exceptions to the operation of the statute, one being a legislative enactment, to-wit: the aforementioned Section 76-414 R.R.S.1943, which exempts land located within three miles of the corporate limits of any city or town; the other exception, being of judicial origin, is that whenever the United States has a treaty with a foreign nation declaring that residents of that nation shall have the right to inherit from citizens of the United States, the Nebraska Supreme Court will enforce such rights without regard to any statutory provisions of the State. See Erickson v. Carlson, 95 Neb. 182,...