Nebraska's death chamber

The  Nebraska Department of Correctional Services' execution room in Lincoln, as seen from the viewing room.

LINCOLN — The 11 men on Nebraska death row do not have valid death sentences, a leading anti-capital punishment group argued in a lawsuit filed early Monday.

The ACLU of Nebraska charged that the death penalty repeal, enacted by the State Legislature over a veto by Gov. Pete Ricketts, was in effect long enough to convert the death sentences for the 11 men to life in prison.

Last year’s vote by Nebraskans to restore capital punishment did so only for future heinous murders, according to the 29-page lawsuit filed shortly after midnight.

The suit also alleges that Ricketts violated the separation of powers clause of the State Constitution when he “proposed, initiated, funded, organized, operated and controlled” the signature-gathering campaign that allowed voters to overturn the Legislature’s repeal of the death penalty.

The ACLU claims that the governor “exhausted” his executive powers when he vetoed the repeal law passed by lawmakers and that his subsequent steps to back a referendum that restored the death penalty were unlawful “legislative” activities that are reserved, via the separation of powers clause, for the State Legislature.

The referendum process, the civil rights group argued, is for citizens, but Ricketts had encouraged formation of the signature drive, played a leading role in financing it and had lent key employees to the effort, which was officially led by people with strong ties to the governor.

“This is way beyond what the governor can do in his personal capacity,” Danielle Conrad, executive director of the ACLU of Nebraska, said Sunday. “This is about blurring the lines and overstepping the bounds.”

A spokesman for Ricketts said Monday that the “frivolous” ACLU lawsuit was another attempt by the “liberal advocacy group” to overturn the “clear voice” of the people. Taylor Gage, the spokesperson, rejected any wrongdoing by the governor.

“The Governor’s Office holds itself to a high standard and follows state law regarding the use of taxpayer resources,” Gage said in a prepared statement. “The administration remains committed to protecting public safety and creating a safe environment for our corrections officers.”

The Ricketts administration recently gave notice that it may soon seek an execution date for one of those 11 death row inmates, Jose Sandoval, who was sentenced to die for his leading role in the slaying of five people inside a Norfolk bank in 2002.

A month ago, state prison officials notified Sandoval that four lethal injection drugs had been purchased for use in an execution. The notice is required before an execution date can be requested.

The World-Herald received a copy of the lawsuit on Sunday. It was filed electronically early today, just after midnight Sunday.

It asks a state judge to block the state from carrying out any executions, either because the 2016 vote was invalid due to the “unlawful” actions of the governor, or because the vote did not legally restore the death sentences for the 11 men still on death row.

Opponents of capital punishment had unsuccessfully sued to block the vote in 2016, alleging that Ricketts should have been listed as an official “sponsor” of the referendum by Nebraskans for the Death Penalty because of his involvement.

But the State Supreme Court in July 2016 rejected that, saying that financial backers of a referendum drive are different from a “sponsor.”

Conrad said that today’s lawsuit raises much broader issues about the governor’s role.

While past governors have stated their opinions on such referendums, Ricketts was one of the leading financial backers on the death penalty push, donating $300,000. And two people he had employed, Jessica Flanagain and Chris Peterson, were leading staffers for the restore the death penalty campaign.

The ACLU said that the governor warned state legislators that if they didn’t sustain his veto of the death penalty repeal, a referendum would ensue.

Ricketts and his parents, TD Ameritrade founder Joe Ricketts and his wife, Marlene, donated 30 percent of the $1.45 million raised by Nebraskans for the Death Penalty, according to the ACLU.

The three official sponsors of the group, Omaha City Council member Aimee Melton, Judy Glassburner and State Board of Education member Bob Evnen, were all allies of Ricketts and formed the organization “at the behest and under the control” of him, the lawsuit alleged.

The governor also “used his position” to raise money for the referendum drive, mailing out a fundraising letter with his title, “Governor Pete Ricketts, State of Nebraska,” prominently displayed.

Monday’s lawsuit also raises one issue that wasn’t addressed in the Supreme Court’s 2016 ruling: whether or not referendum sponsors had properly “sworn under oath” to the accuracy of their sponsorship. The high court declined to rule on that matter last year, saying it had not been raised in earlier court pleadings.

The lawsuit acknowledges that pro-death-penalty forces submitted enough signatures in 2015 to “suspend” the repeal of capital punishment, pending the referendum vote. However, the lawsuit argues that the suspension did not take effect until the signatures were verified, which happened on Oct. 16, 2015, almost two months after the repeal law went into effect, on Aug. 30.

Since the repeal law, Legislative Bill 268, became effective and stated that all death sentences were changed to life in prison, the lawsuit maintains that the 2016 vote “did not re-impose the death penalty” for those who were on death row, only for murderers sentenced after Oct. 16, 2015.

Monday’s lawsuit names the 11 men on Nebraska’s death row as plaintiffs, and follows other legal action launched by the civil rights group against the state in recent months.

In August, the ACLU asked a federal judge to intervene to reduce the chronic overcrowding in state prisons and address the shortage of medical and mental health care for inmates.

In addition, the ACLU went to court on Friday to force the state to reveal the supplier of four lethal-injection drugs, citing state public records laws and the state’s botched past attempts to obtain such drugs.

Conrad said the legal actions reflect the ACLU’s commitment to defend the U.S. and Nebraska Constitutions, and is in step with the organization’s long-running opposition to the death penalty.

Conrad, a former state senator and a Democrat, was among the leaders of Nebraskans for Public Safety, the group that campaigned unsuccessfully to persuade voters to retain the repeal of the death penalty. She said that today’s lawsuit is about policy, not politics.

paul.hammel@owh.com, 402-473-9584

Reporter - Regional/state issues

Paul covers state government and affiliated issues. He specializes in tax and transportation issues, following the governor and the state prison system. Follow him on Twitter @PaulHammelOWH. Phone: 402-473-9584.

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