Neb. judge dismisses lawsuit challenging death penalty

The ACLU of Nebraska said it plans to challenge the district court's ruling

By Grant Schulte
Associated Press

LINCOLN, Neb. — A Nebraska judge dismissed a lawsuit Tuesday that claimed the 2016 vote to reinstate the death penalty was invalid because Gov. Pete Ricketts helped bankroll the petition drive to place the issue on the ballot.

Lancaster County District Judge John Colborn rejected the lawsuit filed by the American Civil Liberties Union on behalf of eight of Nebraska's 11 death-row inmates. The inmates also argued unsuccessfully that their sentences defaulted to life terms automatically when lawmakers voted to abolish capital punishment in 2015.

The lawsuit contended that Ricketts overstepped the Nebraska Constitution's separation of powers clause because he financed and controlled the referendum that led voters to overturn the Legislature's decision. It made similar claims about State Treasurer Don Stenberg, a fellow Republican, who traveled the state urging voters to reinstate the death penalty.

After lawmakers overrode his veto, Ricketts donated $300,000 of his own money to the Nebraskans for the Death Penalty campaign. It raised a total of $1.3 million for the effort but was outspent by a death penalty opposition group, which received nearly $2.7 million.

"Not all participation in the processes of another branch violates the constitution," Colborn wrote in the 14-page opinion. The plaintiffs' argument "would make a wide range of activity constitutionally suspect, like members of the executive and legislative branch endorsing one another for office, campaigning for one another, or donating to another's campaign."

The separation of powers clause bars anyone in any branch of state government from exercising powers over another branch. But Ricketts ordered or encouraged members of the executive branch and his allies in the Legislature and local governments to work for the referendum campaign or publicly support it, the complaint alleged.

The lawsuit named Ricketts, Stenberg, the prisons department and the petition drive's sponsors as defendants. It sought a court order barring the state from carrying out any executions. No execution dates have been set for any of the 11 men.

Attorney General Doug Peterson, whose office defended the lawsuit, praised the decision in a statement as "a thorough analysis of important Nebraska case law supporting the dismissal of the ACLU's claims."

A spokesman for Ricketts said the attorney general's comments also reflect the governor's sentiments. Ricketts has described the ACLU as "a liberal advocacy group that 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."

The ACLU of Nebraska said it plans to challenge the district court's ruling. Nebraska's last execution was in 1997, using the electric chair. The state has never executed an inmate using lethal injection drugs.

"The fact remains that Nebraska's death penalty continues to be broken beyond repair," said Danielle Conrad, the group's executive director.

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