Wednesday, February 07, 2007

CommuNity ColumNist - Equality for Elkhorn

by Kyle Michaelis
With Omaha's highly-publicized and somewhat controversial annexation of Elkhorn nearing its final resolution in the courts, there are still a lot of bad feelings about how the entire process was conducted.

People like rooting for an underdog and no one likes a bully. The idea of self-government is also so tied into the American character that Elkhorn had a lot to work with in demanding that its citizens have a say in Omaha's takeover of their city. As a matter of law, Omaha always had them beat, but - in the court of public opinion - Elkhorn might have found salvation and survival with a different strategy that played up its victimization rather than playing along in the annexation game that was always so clearly tilted in Omaha's favor.

In hindsight, Elkhorn's pre-emptive annexation was a bad idea. Hoping to force its population over 10,000 and to thereby gain protected status right under Omaha's nose, all they really managed to accomplish was to draw first blood, to become the bad guy, and to lose the public's goodwill.

Last month, unsurprisingly, the Nebraska Supreme Court ruled entirely in Omaha's favor in the matter, not only on the cities' dueling annexation proposals but also on their respective compliance with the state's open-meetings laws. While there certainly appears to be some objectionable reasoning in the Supreme Court's opinion, the ultimate decision granting Omaha the right to annex Elkhorn without the consent of its citizens is a well-established peculiarity of our state statutes that the court seems to have relied upon as something of a foregone conclusion.

Elkhorn has promised to exhaust all their appeals, but those efforts are long-shots, to say the least. That leaves Elkhorn's last real appeal an emotional one. And, in that vein, the New Nebraska Network presents the argument of one of Elkhorn's Omahans-to-be, objecting to the supposed trampling of his and his fellow citizens' rights to self-government.

Thomas Fencl on
Equality for Elkhorn

Discrimination is alive and well in Nebraska.

The Nebraska Supreme Court was appointed to interpret the law, not rewrite it. In January of 2007 the court chose to replace both state and federal laws with what was convenient to them at the time. Their ruling, which appeared as a strain to re-apply and disregard past rulings and the state constitution, changed the overall scope of the trial to make Elkhorn, and any other smaller community with similar ideas of remaining independent, the “bad guy” and Omaha the Emerald City.

In what was depicted by the area news media as a David vs. Goliath scenario Omaha threatened Elkhorn with, according to the Nebraska voters, an illegal annexation. (In 1998 Nebraska voters passed an amendment to the constitution stating no merger or consolidation of two cities or counties could take place without a vote of the people according to the ballot) In an attempt to make themselves safe from annexation, Elkhorn expanded their city limits to the outlying unincorporated areas to increase their population beyond 10,000.

According to Nebraska law cities of 10,000 or more cannot be annexed without a vote of its citizens. By the state constitution and by the annexation laws already on the books Elkhorn would be double protected. Upon receiving information of Elkhorn’s actions Omaha scheduled a “hurry-up” public meeting to be held at ten o’clock in the evening.

Notice of the meeting went out only seven hours prior thus creating a violation of the open meetings law, which in turn, makes all decisions at that meeting null and void. Omaha city officials voted to file suit against Elkhorn to block their expansion and in turn expand their boundaries by 5 miles to annex Elkhorn.

At the same time, The Omaha World Herald, which works hand in hand with the City of Omaha to present a “positive image” began a biased assault on Elkhorn and their community leaders. Insulting cartoons, misleading and falsified maps, and slanted stories filled the pages of the World Herald. When Elkhorn asked for corrections they were denied. When Elkhorn asked for the right to rebut statements they were told no. Nevertheless, Elkhorn remained positive knowing in the end they had done everything legally and above board.

In January the 8,000 residents of Elkhorn, were shocked to learn the Nebraska Supreme Court rejected ALL of Elkhorn’s arguments. Many attorneys from across the state read the decision in disbelief. Others saw it as a complete destruction of the open meeting law leaving any public entity the ability to hold meetings whenever and wherever they would like.

Likewise, constitutional ballot issues decided by the voters are now only considered law when it is convenient. If they get in the way of a ruling they can be disregarded as a misinterpretation by the voters.

Finally, in their last statement it was said Elkhorn ceased to exist on March 24, 2005. That would make every traffic violation, every criminal offense, every fine paid and so on and so on open to severe scrutiny by a parade of criminal defense attorneys due to the fact that their clients were prosecuted by a city that didn’t exist.

What was the Supreme Court thinking? Do the political strings that are supposed to be nonexistent in our judicial branch have that much power over the people that were bestowed the responsibility to keep justice blind?

8,000 people had their voting rights, and their independence squashed into the pages of Nebraska law all for the City of Omaha’s unquenchable thirst for more power and more tax dollars.

Discrimination comes in many forms. When the hint of discrimination arises due to race, sex, religion, or sexual orientation the proverbial alarm bell rings loudly through the hills and valleys. But what happens when it’s a mostly white, mostly Christian, mostly middle class small community in Nebraska? Aren’t the voting rights of the residents of Elkhorn just as important as Jesse Jackson’s? According to federal law no person in Elkhorn stands higher than Jesse Jackson, Kim Gandy, Rosie O’Donnell, or Louis Farrakhan. But at the same time, according to that same federal law, none of those mentioned people stand higher than the ordinary citizen of Elkhorn.

Doesn’t our federal constitution afford EVERYONE the right to vote regardless?

Many years ago George Wallace, the governor of Alabama stood in the doorway at the University of Alabama and blocked African-American students from attending. Our federal government sent the National Guard to the University of Alabama to insure those students were guaranteed their right to the education of their choice. Will the Elkhorn citizens’ rights to vote and live independently be defended as vigorously as the rights of those students in Alabama?

Tom Fencl lives in Elkhorn, NE. He can be contacted at

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Blogger Tóózy said...

Thomas Fencl is without a doubt mentally impaired. Comparing the civil rights movement with Elkhorn's annexation is plainly deranged as I do not recall any mention of the Elkhorn Annexation in the Bill of Rights or Constitution. Truly a Jeffersonian such at Fencl should know its all about state rights, and the state says annex away!

I for one will not be sorry to see this spat go. I'm very sick and tired of the Elkhornians (you know: I'm from Elkhorn, we don't have Omaha's problems, we are better than you, we are more pious, we don't stand for minorities in the community, our children make yours look like retards, etc., etc.)

Way to go Mike Fahey!
Now go try to vote him out of office you Elkhornies.

Anonymous TedK said...

Elkhorn broght this on themselves. Omaha would have never started annexation without Elkhorn starting its own first. Ralston has been independent for years. There are many examples of cities in the country that are declining because suburban areas are allowed to develop without supporting the entire city. Fortunately Nebraska law prevents this.

Blogger Kyle Michaelis said...

I agree that playing the "race card" is a little bit over the top and disingenuous. After all, the middle to upper-class voters have as much or more power of persuasion in the state legislature as anyone else. If they wanted the state laws changed concerning Omaha's annexation powers, they've had ample opportunity to petition their government to do so.

Still, let's try to be more respectful of Mr. Fencl's opinion. I'm from a small town and understand how much pride their citizens take in their communities. That doesn't mean the people of Elkhorn consider themselves better than their Omaha counterparts - it's a question of identity and autonomy; not superiority.

Claims of disenfranchisment and discrimination may be over-blown, as are self-comparisons to Rosie O'Donnell and Louis Farrakhan. But, Mr. Fencl is clearly very passionate about the future of his community. For that, I wish he and his fellows every success - not in their annexation fight but in time of transition through which I hope they are able to maintain their communal identity.

Blogger Kyle Michaelis said...


I'm not quite as "sold" as you are on the incredibly broad annexation powers Nebraska extends Omaha and Lincoln. While other cities out-state have certainly suffered for their inability to grow with their population (and tax base), there's the serious problem of urban sprawl that I fear our current law might actually be encouraging.

Blogger Tóózy said...

It is not the annexation law that is causing Omaha to grow outwards, its the ridiculously easy process of creating a SID.

And besides, whats wrong with sprawl? No artificially high rents or cost of home ownership here as there is elsewhere, where the haves create restrictions that cause exclusivity and also cause hardships (aka high cost of living) on the have nots. South Omaha would not be so affordable for the recent influx of hispanics if not for sprawl.

And yes, my view on the Elkhorn superiority complex is what I believe to be a correct one after watching report after report on TV news about "how everything is better here than Omaha."

Anonymous Bill said...

Well, where to begin? Some observations on this tempest in a teapot:
#1. Elkhorn totally brought this problem on by seeking to increase their population by sleight of hand. Omaha officials caught on and activated their "nuclear option."
#2. Comparing the annexation of Elkhorn to the civil rights movement is an insult to history and to the intelligence of fair minded people. It is a deplorable comment that robs of any legitimacy whatever additional arguments Mr. Fencl might have otherwise made.
#3. Elkhorn has been busy annexing people for decades, without asking their opinions or seeking electoral permission. It is more than a little disengenuous to now pull the "election" card out.
#4. Elkhorn will always exist, regardless of annexation. Just as Millard, Benson, Florence, South Omaha and other neighborhoods retain their strong identities decades after those towns were annexed by big bad Omaha. Would any of us think it would make sense for those neighborhoods to exist today as independent towns? I doubt it! Their citizens use Omaha streets, parks, shopping centers, theatres -- try to find a theatre in Elkhorn, Benson, or Florence. They don't have their own airport or train stations. Their citizens are all Omahans. It is just that Elkhorn residents got to use a different zip code.
#5. In 10 years no one under age 40 will give a darn about this issue. In 20 years few will even know that Elkhorn ever was a separate town. Life moves on.

Anonymous Anonymous said...

Elkhorn can and will now be able to sign a Recall of Dictator Fahey. It will only take less then 22000 signatures and as for the rest of the Council They will be faceing recalls too. This is a legal right of the people of Elkhorn. And they can get more then enough signatures seeing as Mikey is about to send Omahas economy into a big Sewer.


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