Otey v. State

• Decision Date: 29 May 1992
• Docket Number: No. S-91-762,S-91-762
• Parties: Harold Lamont OTEY, Appellee and Cross-Appellant, v. STATE of Nebraska et al., Appellants and Cross-Appellees.
• Court: Nebraska Supreme Court

Page 153

485 N.W.2d 153

240 Neb. 813

Harold Lamont OTEY, Appellee and Cross-Appellant, v. STATE of Nebraska et al., Appellants and Cross-Appellees.

No. S-91-762.

Supreme Court of Nebraska.

May 29, 1992.

Syllabus by the Court

1. Equity: Courts: Evidence: Appeal and Error. In all appeals from the district court in suits in equity in which review of some or all of the findings of fact of the district court is asked by the appellant, it shall be the duty of the Court of Appeals or the Supreme Court to retry the issue or issues of fact involved in the finding or findings of fact complained of upon the evidence preserved in the bill of exceptions and, upon trial de novo of such question or questions of fact, reach an independent conclusion as to what finding or findings are required under the pleadings and all the evidence without reference to the conclusion reached in the district court or the fact that there may be some evidence in support thereof.

2. Actions: Injunction: Equity. An action for injunction sounds in equity.

3. Judgments: Appeal and Error. Regarding a question of law, an appellate court has an obligation to reach a conclusion independent of that of the trial court in a judgment under review.

4. Constitutional Law: Jurisdiction: Death Penalty: Board of Pardons. In Nebraska, as a matter of law, the judicial branch of government has no jurisdiction to review the granting or denial of clemency in a death sentence case by the Board of Pardons.

5. Constitutional Law: Jurisdiction: Board of Pardons. The Governor, Attorney General, and Secretary of State, sitting as a board, shall have power to remit fines and forfeitures and to grant respites, reprieves, pardons, or commutations in all cases of conviction for offenses against the laws of the state, except treason and cases of impeachment.

6. Constitutional Law: Jurisdiction. The powers of the government of this state are divided into three distinct departments, the legislative, executive, and judicial, and no person or collection of persons being one of these departments shall exercise any power properly belonging to either of the others, except as otherwise expressly directed or permitted. This language prohibits one branch of government from encroaching on the duties and prerogatives of the others or from improperly delegating its own duties and prerogatives.

7. Constitutional Law: Jurisdiction: Board of Pardons. The judicial branch has no authority to question the qualifications of the members of the Board of Pardons so long as they are the duly elected, qualified, and acting Governor, Secretary of State, and Attorney General of Nebraska.

8. Constitutional Law: Jurisdiction: Board of Pardons. Article IV, § 13, of the Nebraska Constitution entrusts the clemency power exclusively in the executive branch of government. Accordingly, the judicial branch of government may not interfere with the Board of Pardons' exercise of that power.

9. Jurisdiction: Death Penalty: Supreme Court: Board of Pardons. Nebraska statutes place authority to suspend the execution of a death sentence in the Nebraska Supreme Court or one of its judges and authority to commute a death sentence in the Board of Pardons.

10. Jurisdiction: Courts: Death Penalty. The district court originally imposing the death sentence may suspend a death sentence only in a case in which the convict is found to be mentally incompetent or pregnant.

11. Injunction: Death Penalty: Board of Pardons. An injunction is an extraordinary remedy available in the absence of an adequate remedy at law and where there is a real and imminent danger of irreparable injury. Unless it can be shown that reasonable grounds exist for apprehending that absent the injunction the actions will be done, the injunction will be denied. The Board of Pardons may set the time and date of execution only when it denies an application for the exercise of pardon authority.

12. Board of Pardons: Due Process. The exercise or nonexercise of a discretionary power to grant clemency is not subject to ordinary due process requirements.

13. Jurisdiction: Courts: Board of Pardons: Probation and Parole. Unlike probation, pardon and commutation decisions have not traditionally been the business of courts; as such, they are rarely, if ever, appropriate subjects for judicial review.

14. Constitutional Law: States. A state creates a protected liberty interest through the use of explicitly mandatory language in connection with the establishment of specified substantive predicates to limit discretion.

15. Board of Pardons: Death Penalty. Whenever an application for the exercise of the pardon authority is filed with the secretary of the Board of Pardons by a committed offender who is under a sentence of death, the sentence shall not be carried out until the board rules upon such application. If the board denies the relief requested it may set the time and date of execution and refuse to accept for filing further applications from such offender.

16. Constitutional Law: Board of Pardons: Sentences. There are no provisions in Nebraska's Constitution or in its statutes that create a liberty interest in commutation hearings other than the right to file an application for commutation.

17. Board of Pardons: Sentences. The Nebraska Board of Pardons has the unfettered discretion to grant or deny a commutation of a lawfully imposed sentence for any reason or for no reason at all.

18. Trial: Board of Pardons: Waiver: Appeal and Error. In a legal proceeding, when a litigant makes an objection and then withdraws it, upon appeal, the litigant will not be heard to complain of error in that regard. There is no reason why this procedural bar should not apply to commutation hearings.

19. Board of Pardons: Probation and Parole. The Board of Parole is within the Board of Pardons for administrative purposes only.

20. Constitutional Law: Board of Pardons: Death Penalty: Probation and Parole. The constitutional prerogative of the Board of Parole to advise the Board of Pardons on the merits of an application for commutation of an offender's death sentence does not give the offender a right to require the Board of Parole to make a recommendation to the Board of Pardons.

21. Pleadings. The court may, either before or after judgment, in furtherance of justice, and on such terms as may be proper, permit a party to amend any pleading, process, or proceeding, by inserting other allegations material to the case.

22. Pleadings. The decision to grant or deny an amendment to a pleading rests in the discretion of the court.

23. Public Meetings: Notice: Waiver: Time. Any person who has notice of a meeting and attends the meeting should be, and is, required to object specifically to the lack of public notice at the meeting, or the person will be held to have waived his right to object on that ground at a later date. A timely objection will permit the public body to remedy its mistake promptly and defer formal action until the required public notice can be given.

24. Rules of Evidence. Relevant evidence may be excluded by a trial court if its probative value is substantially outweighed by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.

Don Stenberg, Atty. Gen., J. Kirk Brown, and Sharon M. Lindgren, Sp. Asst. Attys. Gen., for appellants and cross-appellees.

James R. Mowbray and Dorothy Walker, of Mowbray & Walker, P.C., and Shawn D. Renner, of Cline, Williams, Wright, Johnson & Oldfather, Lincoln, for appellee and cross-appellant.

BOSLAUGH, WHITE, CAPORALE, SHANAHAN, and FAHRNBRUCH, JJ., and HAMILTON and ICENOGLE, District Judges.

PER CURIAM.

For reasons hereinafter set forth, a district court order enjoining the enforcement of Harold Lamont Otey's death sentence and requiring a new commutation hearing before the Nebraska Board of Pardons is reversed, and the cause is remanded to the district court with directions to dismiss Otey's petition.

Otey's petition to stay his execution was filed in the district court for Lancaster County after the Nebraska Board of Pardons refused to commute his death sentence to life imprisonment.

Enjoined by the district court from carrying out Otey's death sentence were the State of Nebraska; the Nebraska Board of Pardons; Board of Pardons members Governor E. Benjamin Nelson, Secretary of State Allen Beermann, and Attorney General Donald B. Stenberg; and Nebraska State Penitentiary Warden Frank Hopkins, who by virtue of his office is designated as executioner under Neb.Rev.Stat. § 29-2544 (Reissue 1989). Demurrers to Otey's petition by defendants Harold Clarke, director of the Nebraska Department of Correctional Services; Bob Houston, deputy warden of the Nebraska State Penitentiary; and John Doe, real name unknown, appointed by Hopkins as executioner of the State of Nebraska, were sustained, and those defendants were dismissed from Otey's lawsuit.

The enjoined defendants timely filed their appeal with this court. The record reflects that Otey was convicted in 1978 of first degree murder for the slaying of Jane McManus while in the perpetration of a first degree sexual assault. The district court for Douglas County sentenced Otey to death. After numerous unsuccessful appeals by Otey in state and federal courts, this court, on March 19, 1991, issued Otey's death warrant, which carried an execution date of June 10, 1991. See State v. Otey, 236 Neb. 915, 464 N.W.2d 352 (1991) (history of Otey's appeals), cert. denied 501 U.S. 1201, 111 S.Ct. 2279, 115 L.Ed.2d 965 (1991). When Otey filed an application for commutation with the Board of Pardons, his execution was automatically stayed. See Neb.Rev.Stat. § 83-1,132 (Reissue 1987).

In a May 24, 1991, letter to Governor Nelson, Otey's attorney, Victor Covalt, stated in part, "I would be happy to meet with you or any of your staff at any time to discuss Mr. Otey or the Pardons Board procedure in this unusual case." (Emphasis...