Maybe it’s fitting that such an extraordinary court case, one legal experts said had never occurred in Nebraska’s 152 years, yielded such an extraordinary ruling.
The Nebraska Supreme Court dismissed an effort by the Legislature’s Judiciary Committee to reinstate a 2018 subpoena requiring the director of the Department of Correctional Services to testify, ending a case that saw the Attorney General’s office successfully intervene to quash the subpoena.
Because the Legislature changes membership every two years, the court ruled, any outstanding subpoena becomes moot when a new Legislature is sworn in. In essence, anyone could theoretically wait out such a request by fighting in court until the body’s composition changes.
With that now being the case, the ball returns to the Legislature’s court. Accordingly, it should pass legislation that beefs up the strength of a subpoena to prevent such a spectacle from repeating.
Nebraska law grants legislative committees the ability to compel testimony by issuing subpoenas, a rarely used but powerful tool. Anyone who refuses to comply with the order “shall be advanced on the trial docket and heard and decided by the court as quickly as possible.”
The Journal Star editorial board is worried that a situation may arise to where a legal fight drags on long enough to render a subpoena immaterial, hence the need to revamp state statute in light of the recent Supreme Court decision.
In March 2018, Omaha Sen. Ernie Chambers formally raised the concern that precipitated the subpoena the next month. Carey Dean Moore was put to death in August 2018 in an execution still dogged by outstanding questions.
This isn't about the death penalty, though; it's about the ability of the legislative branch to effectively perform its statutory duties.
In its decision, the Supreme Court mentioned the need to provide guidance for public officials. Such clarity is important, given the importance of this means of obtaining testimony on topics of significance to Nebraska.
For instance, though then-Gov. Dave Heineman volunteered to appear at a 2014 hearing regarding the state’s early prison release fiasco, the special committee investigating the problem issued a subpoena nonetheless. He didn’t fight it, testifying before lawmakers for seven hours just two months before a new Legislature took office and his term ended.
To ensure the efficacy of future subpoenas, the Legislature must write a new law that ensures a committee’s order can only be stonewalled by a successful court challenge rather than someone running out the clock.
Plenty of questions exist in the few days after the court’s ruling was issued. Plenty more will no doubt be raised between now and the beginning of the Legislature’s 60-day session next January.
Regardless, senators must be prepared to ensure that committee subpoenas will stand the test of time.