Nebraska judge hears arguments on lawsuit challenging ICE detention facility in McCook

A Nebraska judge in Red Willow County heard arguments Friday in a lawsuit that seeks to prohibit the state from using taxpayer funds to renovate or operate an immigration detention facility at the former site of the Work Ethic Camp in McCook.

DiAnna Schimek, a former Nebraska State Senator who was involved in the legislation that established the Work Ethic Camp, brought the lawsuit alongside 13 residents of Red Willow County. The defendants are Nebraska Gov. Jim Pillen and Rob Jeffreys, the director of the Nebraska Department of Corrections.

Schimek and the other plaintiffs are seeking a temporary injunction, which would halt use of the facility as the case makes its way through the courts. The defendants filed a motion to dismiss the lawsuit in its entirety.

Patrick Heng, a district court judge for Nebraska’s 11th Judicial District, did not rule on either motion during Friday’s hearing, which lasted more than two hours. Heng will decide on the motion to dismiss first and will rule on the injunction if he decides not to dismiss the case.

About a dozen people sat in the courtroom to watch the proceedings as a handful of others protested outside. One court-watcher was Gary Power, the chair of the Red Willow County Democratic Party.

”I think the plaintiffs got an awfully strong argument,” he said. “But, I don’t know. Money talks.”

Pillen announced in August that the state would enter into an agreement with the Department of Homeland Security to operate an immigration detention facility at the former site of the Work Ethic Camp, a minimum-security prison in McCook. The facility, modeled after other state-run immigration detention facilities like Florida’s “Alligator Alcatraz,” was dubbed by Pillen and DHS as the “Cornhusker Clink.”

The contract between DHS and the state was signed on Sept. 20 and released publicly last week. Nebraska will be paid about $2.5 million per month to house up to 300 immigration detainees under the contract, which is set to last through 2027. The state will also receive a $5.7 million reimbursement for modifications made to the Work Ethic Camp.

The lawsuit alleges that the agreement with DHS usurps the powers granted to the Legislature. Under the Nebraska Constitution, the Legislature can vest the power to manage, control and govern penal institutions to whatever entity they deem fit. In this case, both sides agree that power was vested to the Nebraska Department of Correctional Services.

Attorneys with the Nebraska Attorney General’s Office, which is representing Pillen and Jeffreys, said the legislature vesting that power means that the department has the discretion to enter into the DHS agreement.

“They just have to have discretion,” said Lincoln Korell, an attorney for the defendants. “It’s core to their executive function to determine how to use their facilities, and statute gives them that discretion. And ultimately, if plaintiffs don’t care for how that discretion is exercised, they can voice their concerns at the ballot box.”

The plaintiffs argued that spending taxpayer funds to remodel and operate the facility – regardless of if that money will later be reimbursed by the federal government – is not permissible under Nebraska law.

“This case is not about immigration, it’s about our constitutional republican form of government,” Nicholas Grandgenett, one of the plaintiff’s attorneys, said. “[The defendants are] undermining our structure of government. They’re disrupting the balance of power between the three branches, and they’re overstepping their own authority.”

Attorneys for Pillen and Jeffreys said the lawsuit should be dismissed outright because not all "indispensable parties” to the case were named as defendants. They said the federal government, through the Department of Homeland Security, should be represented, as well as a fencing contractor who was paid $750,000 by the state to erect a security fence outside of the facility. They also argued that the plaintiffs do not have standing to bring the case in the first place.

All of the inmates formerly housed at the Work Ethic Camp have since been moved. According to a Nebraska Public Media review of inmate records, most former inmates were moved to the Community Corrections Center in Lincoln or the Nebraska State Penitentiary.

The facility passed its final inspection by Immigration and Customs Enforcement this week, Pillen said in a statement. He said a timeline for receiving detainees at the facility is “still being arranged.”

The parking lot of the former Work Ethic Camp, located along U.S. Route 83 on the outskirts of McCook, was full Friday afternoon.