Lawsuit: Nebraska Vote to Restore Death Penalty Does Not Apply to Those Previously Sentenced to Death

The ALCU of Nebraska, the ACLU Capital Punishment Project, and the law firm O’Melveny & Myers, LLP, have filed a lawsuit on behalf of the state's eleven death-sentenced prisoners seeking to bar Nebraska "from carrying out any executions or taking steps toward carrying out any executions" under the November 2016 voter referendum that restored that state's death-penalty law. The lawsuit, filed in Lancaster County District Court on December 4, argues that the voter referendum amounted to an "unlawful exercise of legislative power by the executive branch," in violation of the separation of powers clauses of the Nebraska constitution, because Governor Pete Ricketts (pictured), his staff, and other members of the Nebraska executive branch "improperly seized and exercised legislative power" when they allegedly "proposed, initiated, funded, organized, operated, and controlled the referendum campaign against" the death-penalty repeal law. It also alleges that the May 2015 legislative repeal of the death penalty went into effect on August 30, 2015, and converted the prisoners' death sentences to life sentences before the petition drive suspended the repeal statute. While proponents of the referendum submitted their petitions to place the referendum on the ballot on August 25, the signatures were not validated by the Secretary of State and, according to the lawsuit, did not suspend the statute until October 2015. The Governor's office characterized the lawsuit as "frivolous litigation" by a "liberal advocacy group ... work[ing] to overturn the clear voice of the Nebraska people." The Nebraska legislature voted three separate times in 2015 in favor of abolishing the death penalty, with a majority of the legislature's 30 Republicans joined by 12 Democrats and an Independent supporting repeal. After two preliminary votes in April and early May, the unicameral legislature on May 20 voted 32-15 to repeal its death penalty and replace it with a sentence of life without possibility of parole. Governor Ricketts vetoed the bill, but a supermajority of the legislature, led by conservative Republicans, voted 30-19 on May 28 to override the veto. Four days later, a committee called Nebraskans for the Death Penalty filed sponsorship documents with the Nebraska Secretary of State seeking a referendum to suspend and overturn the repeal. The complaint alleges that the Governor was the actual sponsor of the referendum campaign and that, in violation of Nebraska law, none of the ostensible "sponsors" of the referendum submitted statements "sw[earing] to the truth and accuracy of their sponsorship." It says that Ricketts and his parents provided 80% of the funding for the petition drive in its first month and 30% of the total funding for the campaign to overturn the repeal, used state facilities to raise funds for the referendum campaign, and mailed a fundraising letter with the letterhead “Governor Pete Ricketts, State of Nebraska,” and that members of Rickett's executive branch served as campaign managers or otherwise worked for the referendum campaign. “[I]n Nebraska, our state Constitution ... establishes a strong tradition with a clear separation of powers," ACLU Executive Director Danielle Conrad said. ""This is way beyond what the governor can do in his personal capacity. This is about blurring the lines and overstepping the bounds.”

(P. Hammel, "ACLU of Nebraska sues to block executions, says Ricketts overstepped in referendum process," Omaha World-Herald, December 4, 2017; J. Young, "ACLU to file lawsuit on behalf of death row inmates against Ricketts, Corrections Department," Lincoln Journal-Star, December 4, 2017.) Read the Nebraska death-row prisoner's lawsuit here. See Nebraska and States With and Without the Death Penalty.