The ACLU of Nebraska argued in Lancaster County District Court on Friday against dismissal of its lawsuit filed on behalf of death-row inmates, including Jose Sandoval, who has been notified he could be the first person in the state to die by lethal injection.Ìý
ACLU attorneys, two of them from outside Nebraska, also argued that Gov. Pete Ricketts and others, including state Treasurer Don Stenberg, should remain as defendants in the case.Ìý
The lawsuit challenges the referendum that the group Nebraskans for the Death Penalty gathered signatures for during the summer of 2015. Earlier, the Legislature voted to repeal the death penalty and then to override Ricketts' veto of that repeal. The referendum passed and the death penalty was retained in Nebraska.Ìý
Death-row inmates Carey Dean Moore, Jeffrey Hessler and Arthur Gales were given the opportunity to participate in the lawsuit and to listen to Friday's proceedings by telephone from the Tecumseh State Correctional Institution. But the court was notified the inmates refused to participate because they had no interest in the suit.
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Hessler filed an affidavit in the case Dec. 19, stating he did not want his name associated with the ACLU and that he had never alleged he was personally suffering from "ongoing emotional and psychological harm" from the referendum that allowed for retention of the death penalty.Ìý
In its lawsuit, the ACLU alleges the pro-death penalty ballot initiative violated the state constitution’s separation of powers and should be invalidated. It said Ricketts was the driving force behind the 2016 referendum, exploiting government staff, resources and his own elected position to raise money for the initiative and to persuade voters to support it.
The state argued that the time to raise procedural questions about the referendum was before votes were cast, that death-row inmates could file more proper motions for post-conviction relief in their criminal cases, and that seven of the 10 men on death row already had pending proceedings in state court or open appeals to the Nebraska Supreme Court.Ìý
The ACLU said the inmates' sentences were effectively commuted by the Legislature's repeal of the death penalty. And it said Ricketts unconstitutionally used the referendum power reserved for the people of the state and violated the separation of powers act.Ìý
Assistant Attorney General Ryan Post argued in front of District Judge John Colburn against both of those allegations.Ìý
On the Ricketts question, the ACLU attorneys said that had the executive branch not acted, there might not have even been a referendum.
Attorney Bill Trac with O'Melveny & Myers in San Francisco, representing the ACLU, said Stenberg was in the same bucket as Ricketts, representing the executive branch. The other defendants should remain as parties to the case, and that as sponsors of the referendum, they failed to submit sworn statements as such as required by law.Ìý
Ricketts' attorney argued that the governor, acting in his individual and personal capacity, has no power.Ìý
No decision was made Friday. The judge will consider the arguments on dismissing the suit, and dismissing Ricketts and the other defendants — including Nebraskans for the Death Penalty board members Bob Evnen, Judy Glassburner and Aimee Melton, he said.