The Nebraska Supreme Court heard oral arguments Tuesday on a unique lawsuit in which the Nebraska Attorney General sued the Legislature's Judiciary Committee and Executive Board for filing a subpoena last session.
Department of Correctional Services Director Scott Frakes also asked the lower court to stop the Judiciary Committee from serving any more subpoenas on him.
The committee subpoenaed Frakes last year to force him to answer questions about his department's lethal injection protocol — how he developed it and where he got the drugs to carry out the death penalty intended for two condemned prisoners.
Frakes is still fighting lawsuits on the issue, one of them by the Lincoln Journal Star and other media outlets aimed at making him reveal what he knows.
He declined to talk to the Judiciary Committee last year, and Attorney General Doug Peterson sued 16 members of the Legislature and its clerk, Patrick O'Donnell, and moved to quash the subpoena. The state has since executed Carey Dean Moore, which was carried out last summer.
Lancaster County District Judge Lori Maret quashed the subpoena but allowed the lawsuit to continue. The lower court concluded the committee was not discharging a duty imposed by the full Legislature, by statute or resolution.
Attorney Patrick Guinan, representing the senators, asked the Supreme Court to reverse the order to quash the subpoena and to dismiss the complaint. The subpoena would still be in force, he said, regardless of the fact that the makeup of the Judiciary Committee has changed.
He argued Tuesday that the case involved much more than legislative subpoenas, which he said are bulletproof.
"This is a constitutional turf war," Guinan said, "and we're here today to set the property lines between the executive, judicial and legislative branches of government."
In the senators' brief, they said it's the first time in 150 years the court is being asked to consider legislative immunity under the speech and debate clause, and to also consider related separation of powers.
Guinan argued that members of the Legislature, the clerk and even their aides are absolutely immune from litigation when they are sued in their official capacities, applied broadly to all legislative acts.
"It is a constitutional provision that's meant to ensure that no one can sue members of the Legislature to prevent them from doing their job," he said.
State law says senators can require any state agency, political subdivision or person to provide information relevant to their work.
And, he added, the court cannot inquire into the motives of the Legislature.
Assistant Attorney General Ryan Post argued the committee wasn't discharging a duty imposed by statute or by resolution of the Legislature. With other subpoenas, the committee has gotten authority from a vote of the entire Legislature. It didn't do that here.
Post argued the clerk of the Legislature is not immune because he does not get to "latch on" to senators' immunity.
He said even if the senators win this appeal, they cannot go forward with the hearing they want with Frakes. The new Judiciary Committee, which also has a new chairman, would have to follow the law and issue a new subpoena.
The issue of the subpoena in this case is moot because of a turnover in the committee, he said.
Justices asked if, in regard to the scope of the Judiciary Committee's duties, it was undisputed that death penalty legislation is commonly in that committee. Post said it's not undisputed and the Legislature hasn't been overly clear on it.
Where do you think death penalty legislation should be, justices asked.
"I think it ought to be in Government Committee," he said, based on his personal determination of the last vote taken on the jurisdiction of the committees.
As a practical matter, he said, the Referencing Committee started sending these bills to the Judiciary Committee, but that's not the same as the Executive Board taking a vote on that jurisdiction.