- Associated Press - Friday, September 29, 2017

OMAHA, Neb. (AP) - Two convicted murderers who are incarcerated in separate Nebraska prisons but have been trying to marry each other for years will have to wait longer yet, after the Nebraska Supreme Court on Friday reversed an order blocking the state prison system’s policy keeping them from tying the knot.

The high court sent the case back to a lower court, citing a conflict in how the lawsuit was filed and decided.

Paul Gillpatrick and Niccole Wetherell have been engaged since 2011. But they have had their request to marry consistently denied because corrections officials are unwilling to transport either of them to the other’s prison for a wedding ceremony, or allow them to marry via video.

Gillpatrick, who is in a Lincoln prison, was sentenced in 2010 to 55 to 90 years for second-degree murder. Wetherell was sentenced in 1999 and is serving a life prison sentence in York for first-degree murder. The two met through a mutual friend in the 1990s.

The American Civil Liberties Union sued on the inmates’ behalf, and last year, a Lancaster County District judge ruled in the inmates’ favor, saying the prison’s policy was “constitutionally flawed.” The lower court granted the inmates injunctive relief, requiring prison officials to comply with federal law in allowing the marriage.

But the state’s high court on Friday sent the case back to the lower court, finding that because prison officials were sued as individuals and not in their official capacities, the judge was wrong to grant injunctive relief.

“An injunction against the three named state officials, as individuals, would not vindicate federal rights or hold state officials responsible to federal law, because they have no power as individuals to carry out these responsibilities,” Justice Jeffrey Funke wrote. “We hold that when a plaintiff … seeks injunctive relief to compel state officials to comply with federal law, the claim is available only against a state official sued in his or her official capacity.”

The Nebraska ACLU will press on with the case, executive director Danielle Conrad said Friday.

“Our clients are simply asking for the ability to marry,” Conrad said. “Our clients look forward to their day in court to affirm the clear precedent from the United States Supreme Court that states, ‘Inmate marriages, like others, are expressions of emotional support and public commitment.’”

Nebraska Attorney General Doug Peterson said he’s pleased with the state Supreme Court’s ruling and “will continue to defend the taxpayers from being forced to facilitate a videoconference wedding ceremony for these two convicted murderers.”

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