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The legislative, executive, and judicial branches in Nebraska function through a system of checks and balances. Nebraska law outlines the procedures by which one branch of state government can check the actions of another, ensuring compliance with the Constitution and laws of the state through accountability.
Thousands of your tax dollars are paying private attorneys as some state senators seek to obtain a judicial ruling that Nebraska state senators and their staff have absolute immunity from legal action. If successful, the legislative branch would not be subject to any injunction or oversight by the courts should the Unicameral break the law. I oppose these efforts and believe elected officials and their staff should be subject to Nebraska law. Nebraska voters expect state senators to follow state law and be subject to the same checks on power as other branches of government.
On the last day of the legislative session Judiciary Chairwoman Laura Ebke brought a subpoena request from seven members of the Judiciary Committee to the Executive Board for approval. In the request, Senator Ebke sought authorization to subpoena Corrections Director Scott Frakes to a hearing called by the Judiciary Committee. At the time of her request for subpoena, Director Frakes had not even had an opportunity to respond to her request that he appear before the committee. The hearing in question was not the product of an investigation authorized by the Legislature, but rather requested solely by the Judiciary Committee. Five of the eight members of the Executive Board voted to authorize the subpoena.
Under Nebraska Law, specifically Section 50-406, the Legislature has the ability to issue a subpoena to compel testimony to exercise oversight. The opening section of the statute states clearly: “In the discharge of any duty imposed by the Legislative Council, by statute, or by a resolution of the Legislature” a committee may issue subpoenas with approval of the Executive Board. A committee cannot exercise subpoena power in an investigation or hearing unless the investigation itself has been authorized at some point in time by a majority vote of the entire Legislature.
The logic is clear. A rogue committee and a small group of senators should not be able to launch an investigation and gain authority to issue subpoenas without the knowledge and consent of the Legislature as a whole. As is seen in this case, only 11 of the 49 senators among two committees have been able to exercise the subpoena power and drag the Nebraska taxpayer into legal proceedings.
The Attorney General, in an unprecedented move, filed a motion to quash the subpoena on the grounds that it was not issued in compliance with state law. Executive Board Chairman Dan Watermeier and Judiciary Chairwoman Laura Ebke, without a meeting of the Executive Board, filed a countersuit, claiming absolute immunity for the Legislature from legal action. District Court Judge Lori Maret agreed with the Attorney General that the subpoena was not in compliance with Nebraska statute 50-406 in a ruling on August 8 and quashed the subpoena.
In a motion that passed only with a simple majority of five votes, the Executive Board of the Legislature has now filed an appeal to the District Court ruling, again arguing absolute immunity for legislators. The foundation for their assertion lies in the Speech and Debate Clause of the Nebraska Constitution, found in Article III Section 26. The Constitution reads: “No member of the Legislature shall be liable in any civil or criminal action whatever for words spoken in debate.”
As Vice Chairman of the Executive Board and governing committee of the Legislature, I am one of the fifteen senators named as defendants in the legal action brought by the Attorney General that the Legislature is currently appealing. However, I did not vote to authorize the illegally issued subpoena that is the initiating cause of the lawsuit, nor have I voted to authorize the legal challenge and current appeal. It is my strong conviction that members of the Legislature, acting in their official capacity, must follow state law when exercising their oversight function.
Constitutional protection for senators to be able to speak freely in the course of debate without fear of legal action for their political viewpoint is appropriate, and even essential for free government. However, no member of the Nebraska government should be immune from following the law. A legal argument that Legislative Committees cannot be held accountable by the courts for failure to follow the law does not align with the principles of transparent, accountable government. These five individuals, a small minority of senators, are using your tax dollars in an attempt to use the courts to prevent you, the voters, from being able to place any check on legislative power. Everything about this countersuit and appeal is wrong–what it seeks and how it was authorized–and I will continue to fight it.