Commentary

Don’t repeal Murphy’s Law

February 2, 2024 3:00 am

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Having had a number of disagreements with the Legislature when I was the Nebraska attorney general, I hesitate to wade into the current disagreement between the Legislature and the attorney general concerning inspectors general. I do so only to bring some historical perspective.

In the 1970s the Legislature became frustrated that state agencies would not implement laws that the attorney general ruled were unconstitutional. The Legislature’s response was to pass “Murphy’s Law,” so named because Sen. John Murphy of South Sioux City was the sponsor of the bill.

That law, Statute 84-215, states in relevant part as follows:

“When the Attorney General issues a written opinion that an act of the Legislature is unconstitutional and any state officer charged with the duty of implementing the act, in reliance on such opinion, refuses to implement the act, the Attorney General shall, within ten working days of the issuance of the opinion, file an action in the appropriate court to determine the validity of the act.”

When I was the attorney general, I filed suit under this statute. I ruled that a certain campaign finance law was unconstitutional. The Nebraska Accountability and Disclosure Commission, relying on the opinion, refused to enforce the law, and I filed a lawsuit as required by 84-215. The statute was declared unconstitutional by the Nebraska Supreme Court. State ex rel. Stenberg v. Moore, 258 Neb. 738 (2000).

Once again state agencies are refusing to carry out their statutory duties. In this case they are not providing access and reporting requirements to inspectors general because the attorney general has ruled that law unconstitutional.

In response, Legislative Bill 1191, has been introduced in the Legislature to repeal Murphy’s Law, which was passed in 1977 to solve the very problem the Legislature now has with theaAttorney general. In my opinion, repealing Murphy’s Law would be a mistake.

I would recommend that the Legislature ask the attorney general either to file a lawsuit under Murphy’s Law or to explain why Murphy’s Law does not apply here. Based on any such explanation, the Legislature should consider strengthening, rather than repealing, Murphy’s Law (84-215).

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Don Stenberg
Don Stenberg

Don Stenberg is an honors graduate of Harvard Law School. He served for 12 years as Nebraska’s attorney general and has argued several constitutional law questions in the Supreme Court of the United States, including the partial-birth abortion case Stenberg v. Carhart. He is also the author of a Christian book entitled, “Eavesdropping on Lucifer.” He and his wife, Sue, reside in Gretna, Nebraska.

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