Nebraska's death chamber

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

LINCOLN — A spokesman for Gov. Pete Ricketts said the Republican governor hasn’t overstepped the powers of his office, and termed “frivolous” a lawsuit filed Monday by the ACLU of Nebraska challenging the state’s death penalty.

“This liberal advocacy group has repeatedly worked to overturn the clear voice of the Nebraska people on the issue of capital punishment and waste taxpayer dollars with frivolous litigation,” spokesman Taylor Gage said in a prepared statement.

He said the governor remains committed to retaining capital punishment.

The ACLU, in a 29-page lawsuit filed earlier Monday, made two major claims:

» That the governor violated the separation of powers clause of the Nebraska Constitution by leading and financing a referendum that overturned the State Legislature’s repeal of the death penalty in 2015.

» That the repeal law was in effect long enough to void the death sentences of the 11 men on Nebraska’s death row, replacing their sentences with life in prison.

In the lawsuit, the ACLU says that the governor’s powers to halt the repeal ended when he vetoed the repeal law, Legislative Bill 268 — a veto that was ultimately overridden by state lawmakers.

A professor with the University of Nebraska College of Law called the separation of powers argument “a novel” approach in attacking capital punishment.

Anthony Schutz, an associate professor who specializes in state constitutional law, said the ACLU may have to prove that the governor used his office or resources to advance the referendum.

Does a governor give up the right to participate in a referendum? he asked. Governors, Schutz said, get to vote like every other adult, and they don’t give up that right when taking the office.

But, the professor added, the ACLU lawsuit may not be unfounded. There have been some major rulings by the Nebraska Supreme Court in recent years on the issue of separation of powers, Schutz said.

Two years ago, four judges on the high court ruled that a 2012 pipeline routing law violated the separation of powers clause by giving power to the executive branch, the governor, that was reserved for a regulatory body, the Nebraska Public Service Commission. The ruling, however, did not overturn the law; that takes a supermajority of five judges on the seven-judge court.

Schutz also said court rulings have better defined the powers of the Nebraska Legislature, which budgets state funds, and the University of Nebraska Board of Regents, which sets policies and priorities for the university campuses.

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

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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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