The ACLU of Nebraska was back in court Wednesday, this time the state Supreme Court, arguing its case on behalf of eight men on death row, challenging the referendum that reinstated the death penalty in Nebraska.
And the state and attorneys representing individual defendants were there, too, after they had been successful in Lancaster County District Court in getting the lawsuit dismissed.
The lower court, when it dismissed the case, had agreed the plaintiffs' arguments could be taken care of in post-conviction motions in their criminal cases. Post-conviction motions are reviews by a court of convictions or sentences to determine if any mistakes were made along the way.
That question also came up Wednesday with the Supreme Court.
Brian Stull, a senior staff attorney with the ACLU Capital Punishment Project, said post-conviction relief is a "very narrow category of relief, available only to remedy prejudicial constitutional violations."
This claim is not that, he said, but rather for relief of the uncertainty of the plaintiffs not knowing whether they are subject to the death penalty or not.
Stull argued the Legislature's repeal of Nebraska's death penalty became effective Aug. 30, 2015, changing the punishments for the condemned men — including Jose Sandoval, Roy Ellis, Jorge Galindo, Nikko Jenkins, John Lotter, Raymond Mata, Marco Torres and Erick Vela — from death to life in prison. The lower court erred in dismissing that complaint, he said.
The law was not suspended before it went into effect, he said, because the signatures on the death penalty referendum to repeal the Legislature's action were not counted and verified by the Secretary of State's office until Oct. 16, 2015. The law required that counting and verification to suspend the death penalty, he argued.
The court asked Stull if, under his interpretation, it would ever be possible to suspend a statute.
Yes, Stull said, but the requirement is onerous, as it should be, for suspending a law.
Also under his interpretation, would it allow the secretary of state, who oversees the referendum process, to drag his or her feet to prevent the suspension of a law?
"That is possible," he said, but added: "I don't think the court should presume the bad faith of the secretary of state."
Even with that, the ballot petitioners would have an opportunity in court to get the state official to follow the law, although there is no time limit on certification in the law.
Retroactive suspension of a law is unworkable, Stull told the court.
On the state side, Assistant Attorney General Ryan Post argued the death penalty repeal was suspended and never took effect, because the referendum is invoked when the signatures are filed.
He said the Constitution provides the procedure for how and when a referendum is invoked, and his interpretation is that suspension happens prior to the act taking effect.
Otherwise, he said, "it would place the ultimate decision on when a law was suspended in the hands of 93 counties, as this court ... rightly recognized, that could possibly drag their feet. And that would not facilitate the referendum process and would be contrary to the Constitution."
Post also argued that because in this case the plaintiffs are challenging their final criminal sentence, it should be done through post-conviction remedies, not in this manner.
Danielle Conrad, executive director of ACLU of Nebraska, said in a news release "The irreversible punishment of execution — the maximum and most solemn penalty our government can mete out — is a process that requires our government to be working fairly, even-handedly and transparently."
The case, she said, goes beyond the concerns of the ACLU clients in addressing the respect for good and workable governance in the referendum process and the Legislature’s ability to reform unduly harsh punishments in the thousands of cases beyond the death penalty.
"Today’s argument concerns Nebraska’s ability to reflect on whether overly harsh punishments are consistent with Nebraska values and effective criminal justice policy," she said.
In 2016, Nebraska voters approved the referendum ballot question 61 percent to 39 percent, reversing the Legislature's repeal of the death penalty and restoring capital punishment in the state.
In August, the state executed condemned prisoner Carey Dean Moore. It has also notified Sandoval of the drugs that would be used in his execution, but has not issued a death warrant.
Sandoval was convicted with Galindo and Vela of shooting and killing Lisa Bryant, Lola Elwood and Samuel Sun, all Norfolk; Jo Mausbach of Humphrey; and Evonne Tuttle of Stanton in a 2002 botched bank robbery in Norfolk.
Lotter is now the man who has been on death row the longest, but he has received no notification of lethal injection drugs to be used in his sentence.