|© 2007 www.nebraskapen.org||Last Updated: 12/26/2009|
Pursuant to your authority and duty to enforce the law and uphold the Nebraska Constitution we ask that you formally request the resignation of the following state legislators:
The 9 legislators listed above are lawyers; sworn members of the Nebraska Bar Association. A lawyer's oath (Neb.Rev.Stat. §7-104) and ethical obligations to the judicial branch of government create a conflict of interest for those 9 members of the legislature. This conflict of interest is forbidden by Article II, §1, the separation of powers provision, of the Nebraska Constitution. Their inability to uphold that oath and the Constitution is sufficient to remove them from office.
The ethics these legislators have sworn to abide by as lawyers forbid them from any action that has a tendency to bring the courts into disrepute. See, State ex rel. Nebraska Bar Association v. Conover,166 Neb 132 (1958). Therefore these lawyers cannot, ethically, uphold the oath as legislators to defend the State Constitution (Article XV, §1 of the Nebraska Constitution) and criticize the Nebraska Supreme Court's failure and refusal to construe the meaning and give effect to the original intent of Article IV, § 13 of the Nebraska Constitution.
The Nebraska Supreme Court has recently had two opportunities to consider the meaning of Article IV, §13 of the Nebraska Constitution. In State v. Conover, 270 Neb 446 (2005), the Court dodged the issue of whether the legislature has the authority to create a penalty of life imprisonment "without parole." Instead of dealing with the issue the Court chose to simply find that the legislature had not been authorized in the 2002 (3rd) special session to change the penalty for a Class IA felony. In State v. Marrs, 272 Neb 573 (2006), the Court once again dodged the issue by ruling that a life sentence met the statutory definition (Neb.Rev.Stat. §29-2204(1) (a) (ii) (A) (Cumm.Supp. 2004)) of a "term of years" for a minimum sentence for a Class lB felony. The Supreme Court's decision upholding Marrs' "minimum" life sentence (and others) imply that the Legislature can create a criminal penalty without parole eligibility stemming from the conviction and judgment.
The current legislature is considering bills which attempt to place conditions on the Board of Parole's power to parole offenders "for any offenses ... except treason and cases of impeachment." See, Article IV, §13 of the Nebraska Constitution. Senator Ashford offered LB 215 which attempts to create a penalty of life imprisonment "without parole." Senator Chambers offered LB 476 which, interestingly, offers a third interpretation of Article IV, §13 by saying: "Parole, however, is a function of the Board of Parole upon which the Legislature can set limitations, and the changes made by this legislative bill are intended to prohibit parole for those persons given the maximum sentence for first degree murder;...." We believe that neither LB 215 nor LB 476 is supported by the language nor the history of Nebraska's unique constitution. Nebraska may have the only constitution in the United States where the people have granted the power to parole, not the Legislature. Consequently, these bills attempt to rewrite the meaning of the Nebraska Constitution to affect the popular misunderstanding of the current parole eligibility of offenders serving life sentences for Class IA felonies. See, The Meaning of Life at www.nebraskapen.org. By their oaths, and the Supreme Court's misleading refusal to examine the issue, these 9 legislators' hands (and voices) are tied on these bills.
These lawyer-legislators' inability to speak for either the Legislature's or the people's intent violates Nebraska citizens' rights to fair warning of what the law is and their protection against the ex post facto application of an unexpected and indefensible judicial change in the law which are guaranteed by the Due Process Clause of the 14th Amendment to the U.S. Constitution.
Another example of lawyer-legislators' failure to support the legislative intent in creating laws is the assistance of appointed counsel in postconviction relief proceedings. Up through 1989 the Courts recognized claims of ineffective assistance of postconviction relief counsel. See State v. Meis, 233 Neb 355 (1989). However, with no legislative change to the law, in March 1993, the Nebraska Supreme Court decided Nebraska did not recognize ineffective assistance of postconviction counsel claims in State v. Stewart, 242 Neb 712 (1993). The Legislature responded immediately and in May the Governor signed Laws 1993, LB 652, which explicitly stated appointed postconviction counsel shall be competent and effective. But to this day the Nebraska Supreme Court still does not recognize this as a state-law created liberty interest protected by the Due Process Clause of the 14th Amendment to the U.S. Constitution. See, State v. Gray, 259 Neb 897, 900 (2000). The lawyer-legislators never defended the Legislature's intent by responded to State v. Gray.
The same thing took place when the Nebraska Supreme Court changed the definition of statutory crimes during the "malice" problem.
Therefore, because the first duty of an attorney is to the courts; State ex rel. Nebraska Bar Association v. Wiebusch, 153 Neb 583 (1951); we have asked these lawyer-legislators to resign their elected positions as legislators in order to uphold their oaths and the Constitution. As stated above, pursuant to your authority and duty to enforce the law and uphold the Nebraska Constitution we ask that you formally make that request of them too. Only the Nebraska Supreme Court has the authority to disbar an attorney, these lawyer- legislators only option would be to resign from the legislature or be removed from their office in the legislative branch of government. A voluntary (and temporary) resignation from the Bar Association by these lawyer-legislators would only be seen as an attempt to cover-up this conflict of interest.
Should these lawyer-legislators refuse to resign then (a) the Governor is authorized to order the Attorney General to enforce the law and (b) the Attorney General is authorized to take legal action to remove them from office. The Attorney General is authorized to file a quo warranto action (Neb.Rev.Stat. §25-21,121) against any person not qualified to be a legislator because of such a conflict of interest. See, State ex rel. Spire v. Conway, 238 Neb 766 (1991); where a state college instructor could not hold that position and be a legislator at the same time.
By this letter we hereby request that such steps be taken.