LINCOLN — Death penalty supporters convinced nearly 167,000 people to sign a petition to let voters decide whether to reinstate capital punishment in Nebraska.
On Wednesday, they tried to convince seven judges on the Nebraska Supreme Court that a legal challenge to their petition was properly tossed out by a lower court.
A lawyer for death penalty opponents, meanwhile, raised a new issue during oral arguments Wednesday: He said organizers of the petition drive failed to submit a legally required sworn statement by the sponsors. Instead, the petition organizers filed a notarized sheet signed by Omaha City Councilwoman Aimee Melton, one of three ballot committee members listed on the document.
“It is not a sworn statement,” Lincoln attorney Alan Peterson said. “It is an acknowledgment of signature, not a sworn statement. There is a difference, and it is critical.”
Attorney Steve Grasz of Omaha, who represents Nebraskans for the Death Penalty, characterized the scrutiny of the document as a last-ditch argument, one that wasn’t even raised when the case was heard by the lower court. He pointed out that the document in question was subtitled “Sworn List of Sponsors.”
“The appellants are grasping at straws here,” Grasz said.
Facing a mid-September deadline to distribute statewide ballots for the Nov. 8 general election, the Supreme Court is expected to decide the appeal relatively quickly. But if the judges send the case back, another appeal of a second lower court ruling is almost assured.
The main issue before the Supreme Court involves a requirement that petition organizers file a sworn statement listing the names and addresses of “every person” who sponsors the effort. The requirement is intended to let voters know which individuals, organizations or corporations are behind a petition drive before signatures are collected.
After state election officials validated 143,000 voter signatures to put the death penalty question on the ballot, opponents quickly challenged the legality of the referendum. They alleged that the sponsor list failed to include Gov. Pete Ricketts, who gave $200,000 to the campaign after the Nebraska Legislature overrode his veto of the death penalty repeal in 2015.
Death penalty opponent Christy Hargesheimer of Lincoln, the lead plaintiff in the case, said after Wednesday’s arguments that it bothers her that the governor appears to be trying to settle a score with the Legislature.
“We struggled for many, many years to repeal the death penalty,” she said.
Ricketts has said he believes that capital punishment is needed in rare cases to protect public safety and the lives of corrections officers and other inmates.
Lawyers for death penalty supporters argued Wednesday that the intent of the law was not to require every significant financial backer to be listed as a sponsor. Voters can learn the identity of petition donors through compulsory filings with the Nebraska Accountability and Disclosure Commission.
Lancaster County District Judge Lori Maret sided with petition organizers earlier this year by ruling that the governor’s financial and political support did not make him a sponsor by default.
On Wednesday, Supreme Court Judge Lindsey Miller-Lerman asked the attorney for the death penalty opponents to define what the law means by “sponsor.” Peterson said it means the “primary initiating force” behind the petition.
Lawyers for death penalty supporters argued that a sponsor is someone willing to take legal responsibility for the petition drive on the day the paperwork is filed with the Secretary of State’s Office. Requiring petition organizers to anticipate and list every major financial supporter when they launch their drive would “chill” the democratic process, said Assistant Attorney General Ryan Post, who represented Secretary of State John Gale.
“This court cannot adopt obstructions that hinder the people’s referendum rights,” he said. “It needs to facilitate that process.”
Peterson also told the Supreme Court that the trial judge improperly ruled that the sponsor’s statement was valid. The document is not a sworn statement, as is required under the law, but a signature by one sponsor that was witnessed by a notary public.
“It clearly shows it was not an affidavit or a sworn statement,” he said.
Chief Justice Mike Heavican asked Peterson whether he was raising an argument that was not made in the trial court. In its role as an appellate court, the Supreme Court passes judgment on lower court decisions but does not typically issue original rulings.
Peterson acknowledged that the argument wasn’t raised at trial but said the lawsuit itself challenged the validity of the petition documents. Because the document was in dispute, he said, the lower court erred by determining that it was valid.
Grasz, the lawyer for the death penalty supporters, previously filed a motion to strike Peterson’s argument regarding the sworn statement. He argued that the Supreme Court should not even consider it because the argument was not raised earlier.
Grasz went on to cite previous Supreme Court rulings defining what constitutes an oath and a sworn statement. By those definitions, the petition document was valid, Grasz said.
“Clearly Councilwoman Melton had a conscious notion that she was signing a sworn statement because that’s what it said on the face of the statement,” Grasz said.
Nebraskans for the Death Penalty ultimately collected about 143,000 valid signatures to get the referendum on the ballot. The number also was enough to put the repeal on hold until the November vote, although authorities have said they will not pursue an execution until the voters have spoken.
Contact the writer: 402-473-9587, joe.duggan@owh.com
