LINCOLN — The Nebraska Supreme Court handed a new setback to death penalty opponents Friday, dismissing a challenge to the state’s lethal injection protocol.

But the court made clear that its ruling did not resolve the legal challenge and the same issue could be raised by death row inmates in individual cases.

“Our decision today does not speak to the merits of plaintiffs’ claims regarding the adoption of the execution protocol or to the execution protocol more generally,” the opinion said.

The ACLU of Nebraska had filed the challenge in 2017, with State Sen. Ernie Chambers of Omaha and the Rev. Stephen Griffith as plaintiffs. Chambers is an ardent foe of the death penalty, while Griffith is the former director of Nebraskans for Alternatives to the Death Penalty.

They argued that state prison officials had violated the Nebraska rule-making statute when adopting the current lethal injection protocol in 2017. That four-drug protocol was used for the first time in the August 2018 execution of Carey Dean Moore.

Lancaster County District Judge Lori Maret dismissed the ACLU case in June last year, ruling that Chambers and Griffith did not have standing to file a lawsuit over the issue. On Friday, the state high court upheld her decision.

The high court said the only people who can bring suit over the rule-making process are those who have suffered or will suffer an injury because of the alleged actions. In this case, that would mean inmates sentenced to death.

“Neither of the plaintiffs is subject to a death sentence,” the court said. “Plaintiffs have not shown and neither can we discern a way in which their rights are threatened or violated by the execution protocol.”

Chambers and Griffith had argued they should be able to file the suit because corrections officials’ actions impaired their ability to fully participate in the rule-making process.

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Griffith said he had requested public documents from the Department of Correctional Services shortly before a public hearing on the proposed protocol. He was given a draft of the proposal but not previous drafts or related documents, such as a fiscal impact statement or information from outside experts that officials had consulted.

Attorney General Doug Peterson said his office was pleased with the court’s decision and appreciated its clarification about who has standing to challenge a rule-making process.

But ACLU Executive Director Danielle Conrad noted the court’s caveat about whether the process used in adopting the new protocol followed applicable laws. She said the decision leaves many important questions unanswered.

Moore’s execution was the first in Nebraska since 1997. State officials had pushed for it to occur before one of the four drugs to be used would expire and the state would be left without a means to carry out the death sentence for an unknown period. Obtaining drugs for executions has become increasingly difficult because drugmakers don’t want their products used in executions.

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Martha Stoddard keeps legislators honest from The World-Herald's Lincoln bureau, where she covers news from the State Capitol. Follow her on Twitter @StoddardOWH. Phone: 402-473-9583.

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