State ex rel. Peterson v. Ebke
303 Neb. 637
| Neb. | 2019Background
- In 2018 the Judiciary Committee of the 105th Nebraska Legislature (with Executive Board approval) issued a subpoena compelling Scott Frakes, Director of the Dept. of Correctional Services, to testify at a May 8 hearing about the department’s lethal-injection protocol.
- The State (Attorney General) and Frakes sued the senators and the Legislative Clerk to quash the subpoena under Neb. Rev. Stat. § 50-406, alleging procedural and constitutional defects (including lack of full Legislative Council approval, rule violations, and separation-of-powers concerns).
- The district court denied the senators’ motion to dismiss (immunity/separation-of-powers defenses) but granted the motion to quash the subpoena under § 50-406.
- The senators appealed; while the appeal was pending the 106th Nebraska Legislature convened and many named senators left office, prompting the Department to file a suggestion of mootness.
- The Nebraska Supreme Court held that investigatory committees and subpoenas of a prior biennium expire at the end of that legislative term; because the 105th Legislature’s term ended, the subpoena and the related controversy had expired, rendering the appeal moot.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the district court properly quashed the subpoena under § 50-406 | The subpoena was invalid because the full Legislative Council did not impose the duty, committee procedure under § 84-907.10 wasn’t followed, and rules were violated | The committee and Executive Board acted within legislative authority and the subpoena falls within legitimate legislative functions | Quash ruling is moot because the subpoena expired with the 105th Legislature; court did not reach substantive merits |
| Whether senators are absolutely immune (speech and debate) | Immunity does not apply because the subpoena was unlawfully issued and thus not a lawful legislative act | Committee acts are legislative and constitutionally protected by speech-and-debate; dismissal required | Immunity defense became moot with expiration of the prior Legislature; court declined to decide immunity on the merits |
| Whether § 50-406 (facial or as-applied) violates separation of powers or speech-and-debate | § 50-406 improperly subjects legislative subpoenas to judicial oversight and thus violates separation of powers and speech-and-debate protections | § 50-406 is a lawful statutory procedure for judicial resolution of subpoena disputes | Not decided — statutory constitutional challenges rendered moot by lapse of legislative term |
| Whether appellate substitution of new legislators should proceed | Dept. sought substitution to preserve appeal despite mootness | Senators opposed or defended that substitution does not cure mootness | Motion to substitute and the appeal dismissed as moot; substitution dismissed as moot |
Key Cases Cited
- Eastland v. United States Servicemen's Fund, 421 U.S. 491 (U.S. 1975) (committee subpoenas may become unenforceable when the issuing legislative term ends)
- McGrain v. Daugherty, 273 U.S. 135 (U.S. 1927) (historical discussion of congressional investigatory power)
- State ex rel. Stenberg v. Moore, 249 Neb. 589 (Neb. 1996) (a legislature cannot bind a future legislature; legislative authority limited to its term)
- Committee on Judiciary v. Miers, 542 F.3d 909 (D.C. Cir. 2008) (federal cases on congressional committee subpoenas and term-related enforceability)