Session Review: Judiciary

April 22, 2010March 12, 2013 admin

Senators addressed a variety of judiciary issues this session. Among the measures passed were bills concerning abortions, juvenile justice reform and changes to laws relating to minors.

Abortion

Senators passed two bills further restricting abortions in Nebraska.

LB1103, introduced by Norfolk Sen. Mike Flood, requires abortion providers to determine the probable post-fertilization age of the fetus. If the fetus is determined to be at 20 weeks or more, an abortion is prohibited, except when the abortion would preserve the life of a patient or an additional fetus in the womb.

The 20-week ban is based on medical evidence suggesting fetuses can feel pain by that point. Abortions currently are banned only beyond the stage of pregnancy at which a fetus is capable of living outside the womb, which is generally at approximately 24 weeks.

The bill provides a cause of action against doctors who violate the act for actual damages for the patient or the father of the fetus. In any civil or criminal proceedings, the anonymity of the patient will be preserved. No penalty can be assessed against the patient.

LB1103 passed on a 44-5 vote and will go into effect Oct. 15.

LB594, introduced by Ewing Sen. Cap Dierks, requires abortion providers to evaluate patients at least one hour before an abortion to identify any risk factors associated with abortion. Risks can include physical, psychological, emotional, demographic and situational factors.

Doctors are required to discuss with the patient risk factors based on research reports from peer-reviewed journals. Violations entitle the patient to a civil cause of action.

The bill also requires the state Department of Health and Human Services to provide a list of public and private mental health service providers on the department’s Web site.

LB594 passed on a 40-9 vote.

Juvenile Justice

Senators also approved reforms to various aspects of Nebraska’s juvenile justice system.

LB800, sponsored by Omaha Sen. Brad Ashford, addresses youth crime by implementing early intervention, parental involvement, school attendance and alternatives to detention.

Among other provisions, LB800 requires each school district to develop a policy on excessive student absenteeism in collaboration with the county attorney. A district is required to report a case to the county attorney after a student has been absent 20 days in a given year, whether excused or unexcused. School districts are required to report truancy issues to the state Department of Education on a monthly basis.

The bill also codifies the authority of probation officers to impose administrative sanctions on juveniles who violate the conditions of their probation and phases out the practice of sending status offenders to secure detention by Jan. 1, 2013.

The bill includes provisions of LB923, introduced by Ashford, which provides a process for sealing records of interactions with the state’s juvenile justice system.

An individual whose records are sealed may respond on an employment application as if the incident leading to the record did not occur.

Among other measures, LB800 also:

authorizes the juvenile court to suspend driving privileges of truant juveniles and to issue fines not exceeding $500 or order community service for parents of truant juveniles;
allows law enforcement to take a juvenile into temporary custody when there are reasonable grounds to believe the juvenile is truant or has committed a misdemeanor offense;
makes penalties for minor in possession of marijuana consistent with those of minor in possession of alcohol;
establishes a civil citation pilot project in Omaha, allowing issuance of civil citations to juveniles for minor offenses;
establishes a Truancy Intervention Task Force;
eliminates the use of three-judge appeal panels; and
establishes a time frame for hearings on evaluation results.

LB800 also transfers $350,000 from the Probation Program Cash Fund to the Violence Prevention Cash Fund. The funds will be distributed to various entities through a grant process administered by the Office of Violence Prevention for programs to reduce street, gang and gun violence.

LB800 passed on a 48-0 vote.

Minors

Three bills relating to minors were passed this session.

LB226, introduced by Tekamah Sen. Kent Rogert, allows 18-year-olds to enter into binding contracts or leases and consent to medical treatment if the parent or guardian gives consent through power of attorney. The bill does not pertain to state wards.

LB226 passed on a 46-0 vote and took effect immediately.

LB258, introduced by Scottsbluff Sen. John Harms, creates a penalty for minors 18 years old and younger found in possession of alcohol to have their driver’s license impounded for 30 days for a first offense, 90 days for a second and one year for all subsequent offenses. The bill gives judges the option to use the increased penalties when sentencing minors in possession of alcohol, but does not make the penalties mandatory.

First-time offenders also could be required to attend an alcohol education class. A second offense could require between 20 and 40 hours of community service in addition to completion of an alcohol education class. Subsequent offenses could require at least 60 hours of community service, an alcohol education class and an alcohol assessment by a licensed alcohol and drug counselor.

LB258 passed on a 40-3 vote.

A bill passed this session gives victims of child pornography a civil cause of action against exploiters.

LB728, introduced by Omaha Sen. Scott Lautenbaugh, applies to victims 15 years old and younger.

Under the bill, passed 47-1, victims are allowed to sue individuals who created, distributed or possessed sexually explicit images or videos of them within the state. The state Attorney General’s Office is authorized to pursue claims on behalf of the victims. Victims can file a suit within three years after the conclusion of any related criminal prosecution, police notification that the perpetrator has been identified or a victim’s 18th birthday.

LB728 allows victims to seek a minimum of $150,000 in damages. Internet service providers and cable companies are exempted from civil action under the bill.

Criminal Justice

Lawmakers gave final approval to a bill that requires the collection and testing of DNA for the state sample bank from all persons convicted of any felony.

LB190, introduced by Lincoln Sen. Bill Avery, applies retroactively to those currently imprisoned for felonies who do not have a DNA sample on file. The bill retains the requirement for the collection of samples from those convicted of certain misdemeanors such as stalking, sexual abuse of a vulnerable person and violations of the sex offender registry.

All costs associated with collecting the DNA sample will be paid by a convicted felon as a condition of release from probation.

LB190 passed on a 47-0 vote.

Senators passed a bill that changes prosecution procedures for domestic violence cases and ensures access to prenatal services for pregnant victims of domestic violence.

LB507, introduced by Omaha Sen. Pete Pirsch, allows a prosecutor to use a prior conviction to enhance the penalty for domestic assault when the prior case involved a different intimate partner.

Under the bill, domestic assault is defined as intentionally and knowingly causing bodily injury to an intimate partner or threatening an intimate partner in a menacing manner.

The bill also removes the 12-year limitation on the use of a prior domestic assault conviction for enhancement and creates a new Class I misdemeanor offense of third degree domestic assault when a person threatens an intimate partner in a menacing manner. Subsequent convictions will result in a felony charge.

LB507 also allows pregnant women who are victims of domestic violence to receive Medicaid services even if they do not provide the names of their children’s fathers to state Department of Health and Human Services workers.

The bill includes provisions from LB984, introduced by Omaha Sen. Gwen Howard. These provisions increase the penalty for child abuse from a Class III felony – carrying a penalty of 1 to 20 years – to a Class II felony, which carries a penalty of 1 to 50 years.

LB507 passed on a 49-0 vote.

Penalties for offenses against employees at regional centers also were increased this session.

LB771, introduced by Flood, allows the filing of felony charges against dangerous sex offenders confined in a regional center if they assault employees of the state Department of Health and Human Services. The bill also includes motor vehicle assault on an employee.

The bill passed on a 49-0 vote.

Two bills relating to the death penalty did not advance from general file this session.

Omaha Sen. Brenda Council first proposed a cost study of the state’s death penalty as an amendment to LB306, a bill she introduced that would have repealed the death penalty. After the amendment failed, the bill was laid over Jan. 21. Council then introduced the proposed study as LB1105, which failed to advance from general file on a 22-22 vote.

Courts

Senators passed a bill that creates the Nebraska Crime Victim Fund.

LB510, introduced by Pirsch, charges defendants a $1 fee on each misdemeanor and felony conviction in district and county court and each affirmation on appeal.

The bill, passed 38-1, also allows up to 5 percent of wages earned by inmates in work release programs to be directed to the Crime Victim Reparations program. The bill stipulates that 75 percent of the funds from the surcharge go to the Victims Compensation Fund and 25 percent to the Reentry Cash Fund, which funds a job training program at the Work Ethic Camp in McCook.

The jurisdictional amount limit for small claims court was raised by the Legislature this session.

The limit is reviewed every five years by the state Supreme Court and is adjusted based on the Consumer Price Index for All Urban Consumers.

LB695, introduced by Bellevue Sen. Scott Price and approved 48-0, provides a one-time adjustment from $2,700 to $3,500.

Senators gave final approval to a bill addressing excessive caseloads for judges.

LB727, introduced by Lincoln Sen. Colby Coash, authorizes the state Supreme Court to give retired judges an additional stipend for performing extended service. Currently, retired judges can be paid for each day of service.

Senators approved the bill on a 49-0 vote.

Practices prohibited under the Uniform Deceptive Trade Practices Act are updated under a bill approved this session.

LB801, introduced by Lincoln Sen. Tony Fulton, defines deceptive trading practices to include the use, promotion, establishment or operation of or participation in pyramid promotional schemes that solicit members of the public.

Pyramid promotional schemes are defined as plans or operations in which participants receive compensation that is primarily derived from the recruitment of other participants, as opposed to the sales of goods, services or intangible property.

Also included in the bill as a deceptive trading practice is the distribution of peer-to-peer file-sharing programs that do not notify users that their computer files will be made available to the public and that activate file-sharing functions without users’ consent. Those who thwart reasonable efforts to block the installation, execution or disabling of file-sharing programs also will be guilty of deceptive trading.

LB801 passed 44-0.

Senators also approved an increase in the criminal statute of limitations for submitting false Medicaid claims from three to five years.

LB809, sponsored by Rogert, applies to crimes where the value of benefits sought or obtained through fraudulent means is $500 or more. The extended statute of limitations will apply to offenses committed prior to the effective date of the bill.

LB809 passed on a 47-0 vote.

County attorneys are allowed to investigate all cases in which a person dies while being apprehended by or while in the custody of a law enforcement officer or other detention personnel under a bill passed 39-4.

Lautenbaugh said he introduced LB842 to allow counties to avoid the expense of hiring a special prosecutor and additional law enforcement officers to handle grand jury investigations and proceedings.

The mediation requirement in child custody cases can be waived in certain situations under a bill passed this session.

Currently, parents involved in custody and parenting time cases are required to attend at least one session with a mediator.

LB901, introduced by Lexington Sen. John Wightman, requires courts to hold an evidentiary hearing to grant a mediation requirement waiver. Under the bill, a waiver can be granted if both parents agree and good cause is shown by clear and convincing evidence. A waiver also can be granted if mediation is not possible without undue delay or hardship for either parent.

LB901 was passed on a 48-0 vote.

Firearms

Senators gave final approval to a bill that removes the requirement that conceal and carry handgun permit holders obtain a permit to purchase a handgun.

LB817, introduced by Rogert, also exempts those who participate in the National Instant Criminal Background check every five years from having to obtain a permit to purchase a handgun. The bill clarifies that city ordinances cannot require conceal and carry handgun permit holders to obtain a permit to purchase a handgun and includes provisions from three other bills:

LB905, introduced by Fullerton Sen. Annette Duba s, makes any person who discharges a firearm from a motor vehicle at a person, dwelling or other structure guilty of a Class IC felony.

LB795, introduced by Council, authorizes natural resources districts to contract with law enforcement agencies for protection of public property and law enforcement at natural resources district recreation areas.

LB860, introduced by Lautenbaugh, allows concealed carry permits to be granted to individuals with a minor misdemeanor crime of violence on their record if the misdemeanor occurred more than 10 years prior to the application.

Senators voted 43-0 to pass LB817.

Other Bills

LB216, sponsored by Cortland Sen. Norm Wallman, allows family members injured in a car crash in which a relative was driving to recoup their medical expenses from the relative’s auto insurance policy. The bill passed on a 36-8 vote.

Under LB252, introduced by Bellevue Sen. Abbie Cornett, those found owning or possessing animal fighting paraphernalia are guilty of a Class I misdemeanor. The bill passed on a 46-1 vote.

LB373, introduced by Lautenbaugh, which changes death and disability-related provisions for emergency response personnel passed on a 38-0 vote.

LB712, introduced by Rogert and passed 48-0, raises the property value threshold requiring the public sale of property left by former tenants from $250 to $1,000 and was amended to include provisions from 15 other bills:

LB687, introduced by Wightman, changes amounts of homestead allowance, exempt property and family allowance for decedents’ estates.

LB703, introduced by Wightman, changes provisions relating to powers of attorney.

LB757, introduced by Wightman, provides for non-probate transfer on death of motor vehicle certificates of title.

LB824, introduced by Valentine Sen. Deb Fischer, changes provisions relating to master jury lists.

LB840, introduced by Lautenbaugh, changes provisions relating to criminal attempt.

LB843, introduced by Lautenbaugh, changes provisions relating to arson.

LB847, introduced by Council, changes provisions relating to small claims court powers.

LB915, introduced by Lincoln Sen. Amanda McGill, provides for use of motor vehicle operator license numbers and state identification card numbers in compiling jury lists.

LB939, introduced by Platte Center Sen. Arnie Stuthman, changes child support enforcement provisions relating to the collection of other monetary judgments, mandatory reporting of account balances and review and modification of child support orders.

LB988, introduced by Council, increases the amount of credit for imprisonment from $60 to $90 per day.

LB990, introduced by Council, makes the calculation of time served in city and county jails consistent with that of state facilities.

LB1026, introduced by Wightman, creates a statutory process for transferring civil actions from one district court to a district court in another county.

LB1045, introduced by Lautenbaugh, eliminates a provision for jury commissioner duties to be transferred to the clerk of the district court once a county reaches 150,000 residents.

LB1046, introduced by Lautenbaugh, stipulates that if defendants choose to exercise continuances past the stated statutory period, they are deemed to have waived their right to a speedy trial.

LB1084, introduced by Wilber Sen. Russ Karpisek, provides a court procedure for a county to obtain regular payments for the maintenance, care and disposition of any pet animals or equines seized by a sheriff while a case is pending against a defendant for the mistreatment of the animals.

A bill introduced by Sen. Robert Giese of South Sioux City adds new members to the Racial Profiling Advisory Committee. Under LB746, passed 46-0, new members will include representatives from the National Association for the Advancement of Colored People, the Commission on Indian Affairs, the Latino-American Commission and a member of the Nebraska State Bar Association.

LB864, sponsored by Pirsch, requires the Community Corrections Council to develop a plan for adding new reporting centers and passed on a 48-0 vote.

LB880, sponsored by Rogert, allows the sale of fireworks from Dec. 28 to Jan. 1, and does not require the Nebraska fire marshal to test fireworks that have been nationally tested and approved. The bill passed on a 48-0 vote and goes into effect Oct. 1.

LB1094, sponsored by Omaha Sen. Steve Lathrop and passed 42-0, will regulate civil litigation funding companies doing business in Nebraska.

A bill that would have allowed the state racing commission to license and regulate pari-mutuel wagering on historic horse races stalled during general file debate.

Under LB1102, introduced by Giese, Nebraska licensed horse racing premises could have installed and operated instant racing terminals to allow wagering on historic horse races.

Opponents of the bill focused on concerns that wagering on historic races would constitute an unconstitutional expansion of gaming in Nebraska and on the social costs of gambling.

After a motion to invoke cloture fell three votes short, the bill was not rescheduled for debate.