LINCOLN — The Nebraska Supreme Court dismissed an appeal Friday without ruling in a constitutional showdown between the Nebraska Legislature and attorney general involving the state’s lethal injection protocol.
The decision means that Corrections Director Scott Frakes will not be required to testify in public about the four-drug protocol used to execute Carey Dean Moore last year.
The court ruled the appeal was moot because it concerned a subpoena issued by the Judiciary Committee of the 105th Legislature. It said that subpoena expired when the 106th Legislature began on Jan. 9.
“Even if we were to agree with the senators’ legal position, we could not grant the relief they seek,” the court said. “This prevents this court from reaching the substantive issues raised by the parties.”
Those issues focused on whether Frakes had to comply with an April 24, 2018, subpoena issued by the legislative committee.The committee wanted to ask Frakes about the adoption of the new drug protocol he planned to e in the state’s first lethal injection execution. That protocol has since been used to put Moore to death.
Attorney General Doug Peterson challenged the legislative subpoena in court. He filelawsuit against members of the Judiciary Committee and the Executive Board, seeking to quash the subpoena.
He argued the lawmakers had not followed state law or their own rules in issuing the subpoena.
The Legislature took the position that state senators have the constitutional authority to compel testimony from state officials on matters of public importance. It also argued that the Nebraska Constitution protects senators from lawsuits when they act in their official capacities.
The lower court ruled against the lawmakers, who then appealed to the Supreme Court.
Former State Sen. Laura Ebke of Crete, as Judiciary Committee chairwoman in 2018, was the lead defendant in the lawsuit. She said Friday that she was “disappointed but not necessarily surprised” by the high court’s decision.
Sen. Adam Morfeld of Lincoln, a Judiciary Committee member, had a stronger reaction.
“A disappointing legal punt by the court,” he said on Twitter. “Investigatory and subpoena power is an important legislative oversight function, and important part of our balance of powers.”
The ruling leaves it unclear what authority the Legislature has regarding subpoenas. Ebke said the decision could cause future Legislatures to think twice before attempting to issue subpoenas, although she found encouragement in a concurring opinion from Judge Lindsey Miller-Lerman.
The opinion said the judiciary would have to consider the underlying issues if a similar case was brought earlier in a Legislature’s two-year term.