In blow to death penalty opponents, judge tosses challenge to Nebraska’s lethal injection protocol

June 5, 2018 GMT

LINCOLN — A Nebraska judge has dealt another defeat to death penalty opponents by dismissing a lawsuit that challenged the state’s lethal injection protocol.

Lancaster County District Judge Lori Maret ruled that the two death penalty opponents who filed the lawsuit lacked standing to do so. She did not decide in Friday’s ruling whether prison officials followed required procedures when they set up a new lethal injection protocol in 2017.

The lawsuit was filed by Stephen Griffith of Lincoln and State Sen. Ernie Chambers of Omaha, who alleged that the state violated requirements under the Administrative Procedures Act when adopting a new lethal injection protocol.

The Attorney General’s Office prevailed in getting the lawsuit tossed out, arguing that only death row inmates have the standing to raise such claims. Spokeswoman Suzanne Gage said the courts have determined that Chambers can’t challenge laws that don’t apply to him.

“His desire to obstruct the death penalty does not change that,” she added.

The American Civil Liberties Union of Nebraska provided lawyers to argue the case. Danielle Conrad, the group’s director, said a judge should determine whether Nebraska authorities complied with the law in adopting the new execution procedure.

“We are disappointed in today’s decision dismissing this important case on procedural grounds,” she said. “We will confer with our clients to determine how to proceed and will actively explore all options, including an appeal.”

It marks the second time in recent months that a court has dismissed an ACLU-backed lawsuit that sought to block Nebraska’s efforts to resume executions after 21 years. The ACLU is appealing the earlier dismissal of allegations that Gov. Pete Ricketts violated the Constitution by helping lead and fund a voter referendum that overturned the Legislature’s 2015 repeal of capital punishment.

In the meantime, Attorney General Doug Peterson has asked the Nebraska Supreme Court to hasten a decision on issuing a death warrant for Carey Dean Moore, the state’s longest-serving death row inmate. The attorney general has suggested that the court set a July 10 execution date so it can be carried out before one of the state’s lethal injection drugs expires.

The lawsuit that prompted the most recent decision argued that the lethal injection procedure should be voided because state officials failed the follow the technical provisions of the law.

Griffith, a retired minister, said shortly before a public hearing on proposed changes to the execution protocol that he requested related public documents from the Department of Correctional Services. He was given a draft of the proposal but not a fiscal impact statement or working copies of revisions.

Griffith and Chambers argued that without the additional records, their public testimony was not fully informed. They also said the lack of documentation supporting the procedure makes the protocol unreasonable and arbitrary, in violation of the due process clause of the Nebraska Constitution.

The judge said a plaintiff must show possible harm to his or her legal rights and privileges to successfully challenge a regulation. Griffith and Chambers could not do so, and therefore, they lacked standing, she decided.

Griffith and Chambers also argued that they should be granted an exception to the standing rule, which allows citizens to raise challenges of “great public concern.”

“The process for executing persons and the rulemaking record for that process are important policy matters, but they are not matters of great public concern,” the judge wrote in her order.

She pointed to previous standing rulings in lawsuits over public wildlife lands and the proliferation of gambling, which the courts also have said don’t rise to the level of great public concern.