Nebraska Attorney General Doug Peterson sues his own Legislature

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Doug Peterson
Nebraska Attorney General Doug Peterson

State Attorney General Doug Peterson is taking the Nebraska Legislature to court!

Peterson filed suit over a subpoena issued to a state prison official, Scott Frakes. Following the refusal of a settlement offer, the case is expected to begin tomorrow. This may be the first instance any state attorney general in the country suing a state legislature.

Doug Peterson provokes constitutional crisis

The Nebraska Legislature has a couple of unique features: there is only one house (referred to as “the Unicameral”) and it is non-partisan (although in practice it is currently dominated by Republicans). Like the US Congress and most state legislatures, the Nebraska Legislature enjoys the power of subpoena.

As it states in the Nebraska Unicameral Legislature Rule book:

Each committee of the Legislature is authorized to hold such hearings…to require by subpoena or otherwise the attendance of such witnesses and the production of such correspondence, books, papers, and documents, and to take such testimony, as it deems advisable.

When the Judiciary Committee issued a subpoena in April to Scott Frakes, director of Nebraska’s Department of Correctional Services, he should have felt bound to comply with it. Upon “legal advice,” however, he refused to appear.

Attorney General Doug Peterson then stepped in and filed suit against Judiciary Committee Chairman Senator Laura Ebke and fifteen other legislators to have the subpoena quashed. Peterson and his staff contend that the subpoena was unlawful. According to Assistant Attorney General Ryan Post, “Subpoena power is not a license for a small subset of the Legislature to violate Nebraska law, their own rules, and bypass the entire Legislature with impunity.”

Except, as noted above, that’s exactly what subpoena power is. The Legislature rules clearly allow subsets of the Legislature (i.e. committees) to issue subpoenas.

As a compromise, Peterson offered to allow Scott Frakes to answer written questions from the committee. This offer has been roundly rejected by the Legislature, and so (barring a last minute deal) the parties are set to meet in court tomorrow.

Doug Peterson: Pete Ricketts’ fixer

Seeing two branches of state government square off over the testimony of a public official is pretty bizarre. But Nebraska politics has been getting pretty bizarre ever since millionaire Chicago Cubs owner Pete Ricketts was elected governor in 2014.

Governor Ricketts was none too pleased when a group of legislators overturned the death penalty in Nebraska in 2015. Ricketts vetoed the bill, but when the legislature overturned his veto, he lashed out.

At the following Nebraska GOP convention he “named and shamed” the numerous Republican members of the legislature who had dared defy him, and then spent $200,000 of his own money successfully overturning the ban with a ballot initiative.

The statute is back on the books, but still has yet to be used. This was set to change when Attorney General Doug Peterson requested a warrant for the execution of Carey Dean Moore on April 3rd. But then the Legislature, using its constitutionally provided powers of oversight, started asking questions.

Senator Ernie Chambers found evidence that the execution was being fast-tracked improperly. He suspected the execution was being rushed to take place before one of the drugs in the lethal injection dose cocktail expires in August.

“If the drugs were lawfully procured from a reputable, lawful provider,” he said, “all that is needed is for the state to acquire another batch. Something’s out of whack here.”

According to a letter sent by Chambers to Nebraska Supreme Court Chief Justice Mike Heavican, Peterson also failed to disclose an application for clemency for Moore months before his April motion for a death warrant. If true, that application could have triggered a stay that would have delayed the execution until after the drug expiry date of August 31st.

Chambers filed a complaint, which the Legislature Executive Committee referred to the Judicial Committee, chaired by Ebke. Originally elected as a Republican, Ebke had switched her party affiliation to Libertarian following Governor Ricketts’ 2015 pressure tactics. She had also been a key vote for overturning Ricketts’ veto.

If Ernie Chamber’s suspicions are true, having Scott Frakes questioned before Ebke and her committee in an public hearing would be extremely problematic for one of the Governor’s pet causes.

Which branch of government will win?

So far, the Nebraska Legislature is putting up a strong fight. They will be represented by former Nebraska Supreme Court Justice William Connolly.

Arguing that the Attorney General has no grounds for instructing the Legislature on how to run its committees, Connolly said, “We believe the attorney general is wrong on the facts and the law in this case, and that the committee has the legal high ground.”

Senator Ernie Chambers expressed his position more succinctly and colorfully, saying, “The attorney general is out of his mind.”

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