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Speaker says Legislature pursuing bill, not lawsuit, to resolve separation of powers dispute

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Speaker says Legislature pursuing bill, not lawsuit, to resolve separation of powers dispute

Dec 07, 2023 | 9:22 pm ET
By Paul Hammel
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Speaker says Legislature pursuing bill, not lawsuit, to resolve separation of powers dispute
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State senators work on the final day of the 2023 session of the Nebraska Legislature (Paul Hammel/Nebraska Examiner)

Editor’s note: this story has been corrected to reflect that senators recently visited a youth treatment facility in Kearney, not Geneva, where a similar state facility has been closed.

LINCOLN — State lawmakers are for now pursuing a legislative, rather than a legal, resolution to a battle with the Pillen administration over a separation of powers dispute involving two inspectors general offices.

 The Speaker of the Nebraska Legislature, State Sen. John Arch, said Thursday that legislative leaders are in negotiation with the administration over how state statutes might be changed to retain the oversight powers of the inspectors general of child welfare and corrections, without a contentious court battle.

A bill would be introduced during the 2024 session that begins in January in hopes of resolving the dispute between the legislative and executive branches.

Speaker says Legislature pursuing bill, not lawsuit, to resolve separation of powers dispute
Speaker John Arch of La Vista addresses state lawmakers during a legislative retreat Thursday at Nebraska Innovation Campus. (Zach Wendling/Nebraska Examiner)

“I would not say that (a lawsuit) is off the table. But we’re trying to find a way to accomplish what we need to accomplish … and not end up in court,” Arch said.

That comment, during an annual, pre-session retreat of state legislators, brought concerns from some lawmakers who questioned whether legislative leaders were acquiescing to the nonbinding opinion of Nebraska Attorney General Mike Hilgers.

“If legislation is already being drafted, that seems to acknowledge the accuracy of the AG’s opinion,” said Lincoln Sen. George Dungan, an attorney. “To me, that suggests we’ve made the decision not to go to court.”

Speaker says Legislature pursuing bill, not lawsuit, to resolve separation of powers dispute
State Sen. Danielle Conrad of Lincoln speaks  on the floor of the Legislature earlier this year. (Zach Wendling/Nebraska Examiner).

Another attorney, Lincoln Sen. Danielle Conrad, pointed out that such a legal opinion doesn’t change state law and noted that would require a decision in a lawsuit.

“The law is the law is the law,” Conrad said.

The investigative powers of the inspectors general’s offices have been in flux since August, when Hilgers issued a nonbinding legal opinion that the investigative powers given the offices violated the separation of powers clause of the State Constitution. Those powers granted “virtually untrammeled power to impede, control, and access” records of executive branch agencies, the state’s top lawyer said.

The two offices were created by the State Legislature to provide stronger oversight over the state Departments of Corrections and Health and Human Services in the wake of scandals involving four murders committed by a released inmate, Nikko Jenkins, and a failed experiment in privatizing child welfare services.

But since the legal opinion was issued, the inspectors general have been blocked from accessing data about cases of abuse involving state wards and disturbances within state prisons. The State Ombudsman’s Office, which includes the IG offices, has also been blocked from former paths of discovery and from visiting state institutions.

Vulnerable populations involved

Omaha Sen. Michaela Cavanaugh expressed concern that vulnerable populations under state supervision are facing abuse and neglect without lawmakers being aware of it.

Earlier this fall, Cavanaugh and fellow Sen. Jen Day of Gretna traveled to the Youth Rehabilitation and Treatment Center in Kearney after hearing reports of abuse of teens there, and learning that the Inspector General for Child Welfare was being denied reports about incidents there.

Speaker says Legislature pursuing bill, not lawsuit, to resolve separation of powers dispute
State Sen. Machaela Cavanaugh of Omaha  (Zach Wendling/Nebraska Examiner)

“I’m very concerned about what’s going to happen,” Cavanaugh said.

She added that the issue also raises concern about the powers of two other oversight entities, the Legislature’s Performance Audit Committee and the Foster Care Review Office.

State Ombudsman Julie Rogers, whose office includes the IGs, said that her employees are “finding different ways” to probe citizen complaints about performance of all state agencies, as well as Corrections and DHHS, “but it’s taking longer.”

Arch said that there’s been friction between the “co-equal” legislative and executive branches for some time,but that he has found the inspectors general to be very helpful in addressing concerns about the state YRTCs and the controversial child welfare management contract with Saint Francis Ministries.

Speaker says Legislature pursuing bill, not lawsuit, to resolve separation of powers dispute
Nebraska Attorney General Mike Hilgers  (Zach Wendling/Nebraska Examiner)

 He said going to court always comes with uncertainties, but there’s also a matter of wisely spending state funds — a lawsuit could be expensive.

 The Executive Board, after Hilgers’ opinion came out, hired Lincoln attorney Marnie Jensen to represent the Legislature, to work on both the “short-term implications” of the legal opinion and a “long-term legislative solution.”

Hilgers, in his opinion, stated that the powers granted to the inspectors general infringed on the right of state executives and courts to oversee their own branches and that “dynamic compromise” ought to determine what data is shared between branches.

Arch said there have been several discussions with Pillen administration officials over possible legislative solutions to the dispute. A bill, if introduced, would then be reviewed by the Executive Board, which is generally considered to be the top leadership in the Legislature.

 If those talks break down, Arch said, or lawmakers can’t agreed on a legislative solution, then a lawsuit would be considered.

At least two senators, Dungan and Cavanaugh, expressed frustration that the issue of whether to pursue legal action hadn’t been discussed with lawmakers earlier.