Nebraska’s Supreme Court has affirmed the dismissal of a lawsuit filed on behalf of eight men on death row challenging the referendum where voters chose to keep the ultimate penalty after lawmakers struck it down.
In a seven-page decision, Chief Justice Michael Heavican said the court concluded that the inmates had other “equally serviceable remedies” available to challenge their sentences.
The ACLU of Nebraska had asked the court to block the state from carrying out executions for those who were on death row when lawmakers repealed Nebraska's death penalty in 2015.
But the effort didn’t work. This summer, the state executed Carey Dean Moore, who wasn’t part of the lawsuit and wasn’t fighting his sentence.
The ACLU's attorneys had argued death sentences were, by operation of law, converted into life sentences on Aug. 30, 2015, as a result of the Legislature’s decision to repeal the death penalty (LB268), and that the unverified signatures filed Aug. 26, which ultimately got the issue on the ballot, did not suspend the effect of LB268.
Nikko Jenkins, the only inmate who is a party to the case who was sentenced to death after the vote, has a direct appeal pending.
The others all are challenging their sentences through motions for postconviction relief.
"While we decline to hold that a postconviction action will always be the correct procedure, it is available here and provides all but Jenkins with a remedy which, compared to the declaratory judgment sought, is equally serviceable,” Heavican wrote in Friday’s decision.
The ruling affirmed Lancaster County District Judge John Colborn’s decision nearly a year ago.
"The ACLU, on behalf of eight Nebraska death row inmates, requested the Court override the will of the people expressed in the referendum," Suzanne Gage, spokeswoman for the Attorney General's office, said in response to the decision. "Attorney General Doug Peterson believes the Nebraska Supreme Court reached the proper conclusion that these death row inmates have other avenues to pursue their claims and that the ACLU’s case was correctly dismissed."
On the other side, Danielle Conrad, executive director of ACLU of Nebraska, said Friday's ruling didn't resolve its client's claims, and ACLU officials look forward to taking them up in individual postconviction proceedings.
"While we respect that Nebraskans of good will hold different viewpoints on the death penalty, these and other concerns about transparency, accountability and fairness will persist beyond this case. These problems will continue to drain resources from our crisis-riddled prison system, courts and legislature until we rejoin our sister states as they continue to turn away from the death penalty," she said.
The ACLU filed the lawsuit in December 2017, arguing three points: the referendum was invalid because supporters failed to file a sworn statement; because Gov. Pete Ricketts and Treasurer Don Stenberg simultaneously had exercised executive and legislative powers; and that, even if it was valid, LB268 irrevocably converted those inmates' death sentences to life sentences.
In his order last year, Colborn rejected the ACLU's separation-of-powers argument, finding that the interpretation would make a wide range of activity constitutionally suspect, "like members of the executive and legislative branch endorsing one another for office, campaigning for one another, or donating to one another's campaign.”
He rejected the ACLU's contention that the repeal converted inmates' sentences to life terms, concluding that the legislative act was suspended when the petition was filed with the secretary of state Aug. 26, 2015, four days before LB268 took effect.
Colborn said the Legislature didn't have the power to change existing death sentences by passing the law. By law, only the Board of Pardons can commute sentences, he said then.
Friday, the Nebraska Supreme Court didn’t go further than finding that the inmates had other remedies available.