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Nebraska lawmakers, AG argue over subpoena power in ‘turf war’ over death penalty

June 19, 2018 GMT

LINCOLN — Lawyers for the Nebraska Legislature and the attorney general traded blame Monday for allowing a constitutional showdown over the death penalty to end up in court.

The two sides squared off in a hearing before Lancaster County District Judge Lori Maret, who said she will issue a ruling at a later time.

The unprecedented clash between two branches of state government involves the April 24 subpoena of Scott Frakes by members of the Legislature’s Judiciary Committee.

The senators want the director of the Department of Correctional Services to answer questions at a public hearing about the state’s lethal injection protocol. But Attorney General Doug Peterson sued the lawmakers, saying they violated the law and their own rules in issuing the subpoena.

The attorney general’s lawsuit should be dismissed because the Legislature’s constitutional authority to issue subpoenas is unquestioned, said William Connolly, the Omaha attorney hired to defend the lawmakers. He questioned the real motive of the lawsuit.

“What are we hiding? Why are we spending all of this money litigating this issue? All the director has to do is come in and under oath answer the questions,” said Connolly, a retired state Supreme Court judge.

Assistant Attorney General Ryan Post countered by saying had the senators simply followed the law, Frakes would not have contested the subpoena.

“And we wouldn’t be here today,” he said, arguing that the subpoena should be quashed.

Connolly has described the lawsuit as a “constitutional turf war” over the separate but equal powers of two governmental branches. As an indicator of the larger issues at stake, Monday’s hearing was attended by State Sen. Ernie Chambers of Omaha, one of the senators named in the lawsuit, and Dave Bydalek, who serves as Peterson’s second-in-command.

Patrick Guinan, who served as co-counsel with Connolly, spent much of a 40-minute argument listing rulings in other states and federal jurisdictions that have thrown out lawsuits because lawmakers are immune from being sued in their official capacities. The members of the Judiciary Committee and Executive Board who authorized the subpoena were doing their jobs as lawmakers.

Guinan also argued the judge can’t “peek behind the curtain and inquire about the committee’s authority, process and purpose for issuing a subpoena.” Legislative power belongs to the Legislature alone, he added.

Post told the judge Monday that the lawsuit does not challenge the Legislature’s subpoena authority. But the subpoena in this case violated state law, because, among other things, it was not authorized by a vote of the full, 49-member Legislature.

Additionally, Post argued, the “small subset of senators” who authorized the subpoena did not show how it relates to any current legislative purpose.

“The committee could have sought approval from the entire Legislature at that point, but for what ever reason, they chose not to,” he said.

He also argued the Legislature passed a law in 2013 that allows their subpoenas to be challenged in the courts. In doing so, lawmakers waived their immunity to lawsuits related to subpoenas, he added.

The dispute surfaced after Chambers filed a complaint in the Legislature raising questions about the state’s new four-drug protocol. A majority of the Judiciary Committee members decided they had questions about the lethal injection procedures.

The Executive Board then voted to allow the committee to issue a subpoena if necessary. The committee did so after Frakes refused requests to appear, which he said was on the advice of his department’s legal counsel.

The Legislature has rarely used subpoenas to compel testimony at oversight hearings. Most recently, they did so in 2014 to question prison officials about a sentence miscalculation scandal and mistakes in the management of inmate Nikko Jenkins, who went on a killing rampage after he was released despite his repeated warnings that he needed mental health treatment.