Death row inmates' efforts to override the will of the people with novel legal theories lacks a basis in law, the Nebraska Attorney General's Office argued in a brief Friday seeking dismissal of a lawsuit brought on behalf of the condemned inmates.
The ACLU of Nebraska filed the lawsuit Dec. 4, challenging the referendum which followed the state Legislature's 2015 repeal of the death penalty. A day later, Assistant Nebraska Attorney General Ryan Post asked to have it dismissed.
A hearing on the motion is set for Jan. 5.
In its lawsuit, the ACLU alleges the pro-death penalty ballot initiative violated the Nebraska Constitution’s separation of powers and should be invalidated. It said Gov. Pete Ricketts was the driving force behind the 2016 referendum, exploiting government staff, resources and his own elected position to raise money for the ballot initiative and to persuade voters to support it.
In Friday's brief in support of the state's motion for dimissal, Post said "the creativity of their theories does not change the result."
"Since no set of facts could rehabilitate the plaintiffs' flawed interpretations of Nebraska law, this court should dismiss the plaintiffs' action," he wrote.
Post told Lancaster County District Judge John Colborn that he should dismiss the complaint because the inmates have another remedy: They can file motions for postconviction relief in their criminal cases.
Seven of the eight plaintiffs already have pending proceedings in state court or open appeals to the Nebraska Supreme Court, he said.
Their constitutional challenges, "if not meritless (which they are), would cause the death sentences against them to be voidable," so should be taken up in those cases, Post argued.
He said the initiative process gives the people the right to act as legislators. That's particularly important in Nebraska, Post said, given the state's unicameral legislative system "where, in the immediate term following the override of a gubernatorial veto, the people themselves may serve as a collective check on legislative excess. The Plaintiffs' novel claims squarely contradict these vital principles."
He called absurd the ACLU's argument urging the court to declare that the sentences of Nebraska’s pre-existing death-row population were effectively commuted by the Legislature's decision.
And, Post argued, there is nothing to the separation of powers argument. Setting aside the "repugnance to the First Amendment" of impairing a private citizen's ability to express their views on a referendum, there's no basis for the argument in the state's constitution, he wrote.
"Merely advocating in favor of a referendum does not exercise legislative power," Post said.
If it did, every state employee would be prohibited from participating in or advocating in support of any referendum, he said.
In 2015, Ricketts vetoed a bill passed by state lawmakers repealing Nebraska’s death penalty. But the Legislature voted to override his veto.
Soon after, Nebraskans for the Death Penalty was formed and raised just over $913,000, a third of it contributed by Ricketts and his father, Joe Ricketts.
The petition gathered 167,000 signatures, enough to stop the repeal from being in effect until a vote in November 2016. Voters ultimately chose 61-39 percent to keep the death penalty on the books.