LINCOLN — More than Nebraska’s execution protocol will be at stake Monday when two branches of state government square off in what’s been called “a constitutional turf war.”
A group of 16 senators on Friday rejected a settlement offer by Attorney General Doug Peterson that would have required them to drop their subpoena of a top prison official. Now the attorney general will ask a judge to declare the senators in violation of state law and quash a subpoena intended to obtain information about the state’s new lethal injection procedures.
“Subpoena power is not a license for a small subset of the Legislature to violate Nebraska law, their own rules, and bypass the entire Legislature with impunity,” Assistant Attorney General Ryan Post said in a legal brief filed this week.
Sen. Dan Watermeier of Syracuse, chairman of the Executive Board and one of the sued lawmakers, said he believes senators “absolutely did it right” in exercising their subpoena authority. Now they are obligated to defend themselves in a fight they didn’t pick.
“It’s always been about our role as a Legislature to do our job,” he said. “Disconnect it from the issue. I realize the death penalty, the protocol, the drugs are a hot topic, but ... I would be doing the same thing if we were talking about inspecting the dog catcher.”
The decision not to settle the lawsuit sets up an unprecedented clash between the executive and legislative branches that will be decided by the judicial branch. Monday’s hearing is scheduled for 10 a.m. before Lancaster County District Judge Lori Maret.
Peterson has sued members of the Executive Board and Judiciary Committee, who he said illegally authorized the subpoena of Scott Frakes, director of the Department of Correctional Services. The subpoena would compel Frakes to appear at a legislative hearing about a new lethal injection procedure the department intends to use to resume executions.
Last week, the attorney general offered to avoid the court battle and associated legal fees by allowing Frakes to respond in writing to questions by lawmakers. The offer also said senators could issue another subpoena as long as they followed the law.
William Connolly, a former judge on the Nebraska Supreme Court hired to defend the Legislature, called key provisions of the settlement a “non-offer” in a letter to his clients. He argued that the lawsuit represents a “constitutional turf war” in which the attorney general wants the courts to tell senators how to run their legislative committees.
That represents a clear violation of the separation of powers clause in the Nebraska Constitution, Connolly said.
“We believe the attorney general is wrong on the facts and the law in this case, and that the committee has the legal high ground,” he told them.
In the recent brief, the assistant attorney general said he is not challenging the Legislature’s subpoena power. But senators must follow the law, which he said requires a vote by the full 49-member Legislature before a subpoena can be issued.
The assistant attorney general argued that the Legislature is asserting “unbridled power” to subpoena any executive or judicial branch officer for virtually any purpose.
“Such an interpretation would cast a chilling effect upon the independence of those branches of government,” Post said in the brief.
Additionally, he argued, the senators who authorized the subpoena of Frakes did not show how it relates to any current legislative purpose.
The dispute surfaced after Sen. Ernie Chambers of Omaha filed a complaint in the Legislature raising questions about the state’s new four-drug protocol. Watermeier said he assigned the complaint the Judiciary Committee, which set it aside after a discussion.
During the discussion, however, committee members raised related questions about the protocol. So the committee chairwoman asked the Executive Board for subpoena authority, which is required under the law. The board voted 5-3 to grant the authority on April 18, the final day of the legislative session.
Sen. Laura Ebke of Crete, chairwoman of the Judiciary Committee, asked Frakes to appear voluntarily. After he said he was advised by legal counsel not to answer questions, the subpoena was issued.
The Legislature rarely uses subpoenas to compel testimony at oversight hearings. Lawmakers used the authority in 2014 to question prison officials about a sentence miscalculation scandal and mistakes in the management of inmate Nikko Jenkins, who went on a killing rampage after he was released despite his repeated warnings that he needed mental health treatment.
Watermeier said Friday that a majority of the senators named in the lawsuit favored taking the issue to court. He acknowledged there is a risk the judge could rule in the attorney general’s favor.
“I think the greater risk lies in not standing up for what the Legislature does and has done for years,” he said.