Judge declines to dismiss Nebraska AG’s lawsuit against lawmakers, quashes Frakes subpoena

August 11, 2018

A Lincoln judge has declined to dismiss an unusual lawsuit filed against state senators on the Legislature’s Judiciary Committee by the Nebraska Attorney General’s office.

Lancaster County District Judge Lori Maret also quashed the subpoena they’d issued for Scott Frakes, the state’s prison director, to come answer the committee’s questions about the state’s lethal injection drugs.

In a news release Friday, Attorney General Doug Peterson called the ruling “a victory for the foundational principles of rule of law and separation of powers.”

Sen. Laura Ebke said she and the other senators named in the lawsuit got the decision late Thursday and plan to confer with their attorneys Monday “to determine what next action we should take, if any.”

At a hearing May 10, William Connolly, a retired Nebraska Supreme Court justice who represented the senators on the Judiciary Committee, called the lawsuit “weird” and said in 54 years practicing law and on the bench he’d never seen anything like it.

He told Maret she had the opportunity to open up the window, pull back the shroud of secrecy and let the sun shine in and see how Frakes went about establishing the state’s death-penalty protocol.

Connolly argued she should dismiss the lawsuit for a number of reasons, including the fact that senators are absolutely immune from litigation.

In an order dated Tuesday but not served until Friday, Maret didn’t address the senators’ contention that they couldn’t be sued, but rather focused on Nebraska Revised Statute 50-406, which deals with legislative committees and public hearings.

That law says senators can require any state agency, political subdivision or person to provide information relevant to their work.

The Attorney General’s office argued the committee wasn’t discharging a duty imposed by the Legislative Council, by statute or by resolution of the Legislature.

“The court agrees,” Maret said.

The senators argued the law required the Judiciary Committee to have permission of the Executive Board of the Legislative Council.

The judge said the Judiciary Committee satisfied one of the requirements in order to issue a subpoena, but not both.

Maret said the motion to dismiss raises several issues, “including novel questions under Nebraska’s Constitution that our appellate courts have not yet addressed. This court has considered the motion to dismiss and declines to sustain the motion.”

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