A legal battle over whether the death penalty question will be put to Nebraska voters in November reached the state's highest court Wednesday.
Death penalty opponents Christy and Richard Hargesheimer of Lincoln contend the petition drive that gathered some 169,000 signatures should be deemed invalid because those behind it had failed to disclose Gov. Pete Ricketts as a sponsor.
But the state and a pro-death penalty group both contend that even though Ricketts and his father contributed one-third of the $913,000 raised by Nebraskans for the Death Penalty and his close allies took roles to promote it, it didn't make the governor a sponsor.
Last year, the Hargesheimers sought an injunction to keep Secretary of State John Gale from placing the question on the ballot. In February, Lancaster County District Judge Lori Maret dismissed it, and the couple appealed to the Nebraska Supreme Court.
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In oral arguments Wednesday, an attorney for the couple got 15 minutes to make his case for why Maret's decision should be reversed and to answer questions from the Supreme Court justices before attorneys for Nebraskans for the Death Penalty and the state got a shared 15 minutes to argue why the decision should stand.
Nebraska law requires proponents to file a sworn list of every sponsoring person, company or association of a referendum prior to gathering signatures but it does not define how one qualifies as a sponsor, and many of the justices' questions went to that issue.
Lincoln attorney Alan Peterson, who represents the Hargesheimers, made two arguments. One, that Ricketts was a sponsor; and two, that the statement wasn't sworn.
Asked how he would define sponsor, Peterson said a reasonable approach would be to define it as the primary initiating force.
He said to meet the requirements set out in the 2003 decision in Loontjer v. Robinson, "it seemed to us ... the public has to be informed who is behind the initiative or referendum."
"Who is the initiator, the instigator?"Â
But Assistant Attorney General Ryan Post argued that Peterson's proposed standard is "unworkable and would chill involvement in the democratic process."
He and Omaha attorney Steven Grasz, who represents the pro-death penalty group, said sponsors are those who assume statutory responsibility for a referendum once a petition process begins.
"It's a question of law. It's not a moving target," Grasz said.
He said the other side was "grasping at straws" in raising one additional issue: Alleging it was an error for Judge Maret to consider a sworn statement of petition sponsors in her decision to dismiss the lawsuit.
He said Peterson hadn't raised the issue of whether the document was sworn until a reply brief to the Supreme Court, so he couldn't raise it now.
"It's very clear that the decision in this case really had nothing to do with whether she took judicial notice of the document or not. It's a question of law and it was decided on the face of the complaint," Grasz said.
At most, he argued, it was harmless error, and therefore not worth a reversal.
Peterson said he raised the issue in response to a misstatement of facts. He argued the statement listing sponsors was not sworn because those who signed it were not under oath and that the judge was wrong to rely on it in reaching her decision.
"There is a difference," Peterson said, "and it is critical."
The Supreme Court took the case under advisement.
Last week, Maret heard arguments in a second suit involving the same petition. In that case, Beatrice attorney Lyle Koenig is challenging the title and explanatory statement, drafted by Attorney General Doug Peterson, that would appear on the ballot if it does go before voters.
She hasn’t yet ruled on that case.