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Judge quashes legislative attempt to force corrections director testimony on lethal injection

August 10, 2018

LINCOLN — Nebraska lawmakers have lost one round of a constitutional fight over their power to subpoena state officials.

Lancaster County District Judge Lori Maret ruled against members of the Legislature’s Judiciary Committee and Executive Board on Wednesday in a lawsuit brought by Attorney General Doug Peterson.

The suit claimed that the senators violated state law and legislative rules when they subpoenaed Scott Frakes, director of the Department of Correctional Services.

Senators wanted Frakes to answer questions at a public hearing about the state’s lethal injection protocol.

He refused to appear voluntarily, saying he had been advised by legal counsel not to answer questions. The Judiciary Committee responded by issuing a subpoena on April 24, after the Executive Board voted to allow the action.

In her ruling, Maret agreed with the attorney general’s argument that state law allows legislative committees to issue subpoenas only in limited situations. She said the group of lawmakers had not identified how the subpoena in question fit within those situations.

Maret declined to dismiss the case, as requested by the senators. She said the senators had raised “novel questions” in their motion to dismiss that have not been addressed by state appellate courts.

State Sen. Laura Ebke of Crete, the Judiciary Committee chairwoman, said she was disappointed in the judge’s order and disagreed with her conclusions.

Ebke said she doesn’t know yet whether the lawmakers will appeal the case. If the case is not appealed, she said, lawmakers may consider changes in state statute.

The Attorney General’s Office did not immediately respond to a request for comment.

The dispute surfaced after State Sen. Ernie Chambers of Omaha filed a complaint in the Legislature raising questions about the state’s new four-drug protocol.

A majority of the Judiciary Committee members decided that they had questions about the lethal injection procedures and how the protocol was developed.

The clash intensified when Peterson asked the court to quash the subpoena.

The subpoena was issued shortly after Peterson asked the Nebraska Supreme Court to issue a death warrant for convicted killer Carey Dean Moore of Omaha. The state high court has scheduled his execution for Tuesday.

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