LINCOLN — The reinstatement of capital punishment by Nebraska voters in 2016 has withstood an initial legal challenge by several death row inmates.
Lancaster County District Judge John Colborn dismissed all claims, saying the eight inmates have an equal remedy to pursue their challenges through post-conviction motions. The judge dismissed their lawsuit with prejudice, meaning that it can’t be refiled.
The death row inmates, represented by the ACLU of Nebraska, argued that their sentences were invalidated during the brief legislative repeal of capital punishment in 2015. The repeal legislation sought to change the death penalty to life in prison.
The inmates also argued that the death penalty referendum in 2016 was invalid because Gov. Pete Ricketts violated the Constitution by supporting and funding the petition drive that put it on the ballot.
Attorney General Doug Peterson, whose office argued against the claims, applauded the ruling as affirming the will of Nebraska voters.
“The opinion does a thorough analysis of important Nebraska case law supporting the dismissal of the ACLU’s claims,” Peterson said.
The ruling launches a new phase in the death penalty fight, said Danielle Conrad, executive director of the ACLU.
“In the coming days and weeks, we will pursue vindication of our clients’ rights in the proper venues, and will show the errors in this lower court’s order,” she said.
On Nov. 8, 2016, about 61 percent of voters overturned the Legislature’s surprising 2015 repeal of the death penalty.
But ACLU lawyers argued that the vote should be struck down because it violated the separation of powers rule of the Nebraska Constitution. They said Ricketts could not hold office in the executive branch while engaging in a legislative act by helping fund a petition drive that put the referendum on the ballot.
The ACLU pointed to a 1991 case in which the courts ruled that a state senator could not simultaneously hold his executive branch job as a professor at a state college.
The judge said the governor’s advocacy for the death penalty referendum “is less substantial than the professorship ... not all participation in the processes of another branch violates the Constitution.”
Under the Constitution, if at least 10 percent of registered voters sign a referendum petition, the challenged law is suspended until the vote is taken. The inmates argued that the repeal law took effect three months after the Legislature adjourned and before Secretary of State John Gale could validate the petition signatures.
But the judge ruled that the operative date was when the signatures were submitted to the Secretary of State, not when they were validated. Therefore, the petition drive organizers beat the deadline by four days, the judge ruled.
The decision marked a setback for the eight of 11 death row inmates who took part in the lawsuit. They filed their challenge late last year after prison officials announced that they had obtained a fresh supply of lethal injection drugs.
The Nebraska Department of Correctional Services has informed death row inmates Jose Sandoval and Carey Dean Moore that it intends to carry out their executions. The state plans to use a previously untried combination of four drugs to perform its first execution since 1997.