A Lancaster County judge has rejected a lawsuit challenging the death-penalty question going to Nebraska voters in November, but she refused to allow a pro-death-penalty group to be part of a second suit challenging ballot wording.
Lancaster County District Judge Lori Maret issued orders late Friday dismissing the case brought by death penalty opponents Christy and Richard Hargesheimer. She also dismissed a motion by Nebraskans for the Death Penalty to intervene in another suit filed by Beatrice attorney Lyle Koenig.
The Hargesheimers had contended that the petition process should be deemed invalid because it failed to disclose Gov. Pete Ricketts as a sponsor. Their suit sought an injunction to keep Secretary of State John Gale from placing the question on the ballot.
Koenig's issue with the language, drafted by Attorney General Doug Peterson, is the title and explanatory statement Gale chose to appear on the ballot.
At a hearing in November, the argument in the Hargesheimers' case came down, largely, to who qualifies as a "sponsor" of a petition, which is not defined in statutes.
No one disputed that Ricketts and his father contributed one-third of the $913,000 raised by Nebraskans for the Death Penalty. Ricketts raised money for the campaign, and his close allies took roles to promote it.
Lincoln attorney Alan Peterson, who represents the Hargesheimers, argued that Ricketts should be included in the language because Nebraska law requires a sworn list of every person sponsoring a referendum.
He stopped short of suggesting a definition of “sponsor” but suggested that the governor was “in actuality the primary initiating force” behind the referendum, which was a good start toward a reasonable definition.
On the other side, Omaha attorney Steven Grasz, who represents Nebraskans for the Death Penalty and Judy Glasburner, Aimee Melton and Bob Evnen, who are listed as petition sponsors, argued that to construe the statute to encompass all supporters, contributors and political leaders would put petition drives in a state of perpetual uncertainty.
"Sponsor," he said, refers to those who assume statutory responsibility for the referendum once the petition begins.
In an 11-page order, Maret said she was persuaded by the argument that because Glasburner, Melton and Evnen identified themselves as willing to assume the statutory responsibilities once the petition process commenced, Ricketts was not required to be listed as a sponsor.
“The court agrees,” she wrote, citing then-Chief Justice John Hendry’s reasoning in a concurring opinion in a similar case before the Nebraska Supreme Court in 2003.
Maret said the Legislature long ago removed the financial contribution reporting requirement to the process and now requires that ballot committees disclose financial contributors, like Ricketts, in a report to the Nebraska Accountability and Disclosure Commission.
She said a strict reading of “every person … sponsoring the petition,” as it says in the statute, could have a potentially chilling effect on people lending support to a referendum effort and "would hinder, rather than facilitate, the people’s referendum rights.”
Maret called it a fatal defect in the complaint and dismissed it.
"We do expect to file an appeal," Peterson said Monday.
He said the primary authority Maret relied on in her opinion was a single judge's opinion, "which is inconsistent, we think, with the majority opinion."
He said he hopes the appeal is expedited. "If we're going to win this case we're running out of time," Peterson said.
The petition drive to keep the death penalty in Nebraska started soon after the Legislature abolished it in May by passing LB268, then overrode a veto of the bill by Ricketts. Nebraskans for the Death Penalty immediately launched a successful petition drive to put the issue on the ballot this November.
Maret also dismissed a request by the pro-death penalty group to be allowed to intervene in the Koenig case, which seeks to change a single word to the title when it goes before voters.
It challenges the attorney general's proposed ballot language, which describes life in prison as the "maximum" sentence, when in fact it is the only sentence.
Maret found that the pro-death penalty group didn't file within the time allowed to challenge the decision on the wording or provide an alternative. In fact, the group admitted it wasn’t dissatisfied with the proposed title.
The group’s "desire to assert its opinion on this issue is not a sufficient direct and legal interest that would require intervention” under the statute, she wrote.