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Two Nebraska citizens brought this case in Lancaster county challenging the Department of Correctional Services' execution protocol. In the 2016 General Election, Nebraska Voters repealed a 2015 law abolishing the death penalty. Thereafter, the Department adopted a protocol specifying the process to be followed in carrying out a death sentence. It specifies how drugs are obtained, notification requirements, and the process for the execution.
Plaintiffs were a retired minister and a member of the legislature. They alleged that the Department failed to comply with proper procedures in adopting the regulation. The District Court, Judge Lori A. Maret, held that the plaintiffs lacked standing. They appealed, and the Nebraska Supreme Court heard the case.
The high court affirmed. In general, the common law requires that a litigant has suffered or will suffer an injury in fact. The plaintiffs alleged that their injury was the loss of their right to "informed participation in the regulationmaking process." But the Supreme Court held that this was insufficient to convey standing. The court noted that the alleged "procedural injury" did not lead to a substantive injury.
The court went on to hold that the plantiffs did not have standing because of their status as taxpayers.
304 Neb. 287 (Oct. 18, 2019).
Please see the original opinion for the court's exact language.
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Richard P. Clem is an attorney and continuing legal education (CLE) provider in Minnesota. He has been in private practice in the Twin Cities for 25 years. He has a J.D., cum laude, from Hamline University School of Law in St. Paul and a B.A. in History from the University of Minnesota. His reported cases include: Asociacion Nacional de Pescadores a Pequena Escala o Artesanales de Colombia v. Dow Quimica de Colombia, 988 F.2d 559, rehearing denied, 5 F.3d 530 (5th Cir. 1993), cert. denied, 510 U.S. 1041 (1994); LaMott v. Apple Valley Health Care Center, 465 N.W.2d 585 (Minn. Ct. App. 1991); Abo el Ela v. State, 468 N.W.2d 580 (Minn. Ct. App. 1991).
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Richard P. Clem, Attorney
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USA
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e-mail: clem.law@usa.net
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