Session Review: Judiciary

Judiciary Committee chairperson Sen. Les Seiler

Senators passed measures this session that will provide a more transparent grand jury process, prevent civil forfeiture without criminal charges and ensure wage equality for all Nebraskans.

A governor’s veto of a bill that will make additional Nebraskans eligible for professional licensure was overridden by the Legislature April 20. Lawmakers voted 31-13 to override the veto. Thirty votes were needed.

Introduced by Omaha Sen. Heath Mello, LB947 allows Nebraska residents who are covered by the federal Deferred Action of Childhood Arrivals (DACA) program to apply for professional or commercial licenses in order to practice their professions. Eligible residents can apply for credentials under the Uniform Credentialing Act.

Administered by the U.S. Department of Homeland Security, the DACA program is designed to protect from deportation individuals who were brought into the country illegally as children. Those who meet DACA guidelines are eligible for a work permit and may request deferred action for two years, subject to renewal.

Any professional license granted under the bill will be rescinded if a person’s lawful status is rescinded. LB947 also ensures that recipients are ineligible for public benefits other than a professional license.

Courts

Ensuring people receive fair and equitable treatment during court proceedings was a priority of lawmakers this session.

Under LB894, introduced by Lincoln Sen. Patty Pansing Brooks, juvenile courts can accept a juvenile’s waiver of right to counsel only on the record in open court and confirmed in writing signed by the juvenile. The court must consider the juvenile’s age, intelligence and emotional stability in determining whether to accept such waiver.

Under no circumstance will a waiver of right to counsel be accepted for a juvenile under age 14 or for a detention hearing, dispositional hearing requiring out-of-home placement or motion to transfer a case from juvenile to adult court.

The bill also requires the juvenile court, when appointing counsel, to do so after a juvenile petition is filed but before the juvenile appears before the court. It ensures a juvenile’s timely right to counsel.

The provisions of LB894 will apply only to counties with a population of more than 150,000 people. The bill also authorizes the court to find parents in contempt of court if they have accepted free counsel despite an ability to afford such counsel.

The bill includes provisions of LB673, introduced by Sen. Bob Krist of Omaha, that enable counties to establish internal guardian ad litem divisions, similar to a public defender’s office. A judge has the authority to appoint a guardian outside of a county’s division as he or she sees fit.

Provisions of three additional bills were incorporated into LB894, including:
• LB709, originally introduced by Omaha Sen. Sara Howard, which reclassifies secure and nonsecure detention as detention and alternatives to detention and requires additional court review of such programs;
• LB845, introduced by Pansing Brooks, which requires thorough documentation of each instance of solitary confinement of a juvenile, including the length of confinement and the race, ethnicity age and gender of confined juveniles; and
• LB893, also introduced by Pansing Brooks, which requires that a juvenile be at least 11 years old to be prosecuted or adjudicated for a criminal law violation and gives county juvenile courts jurisdiction of children who are 10 or younger who engage in conduct that otherwise would be considered a law violation.

The bill passed on a 46-0 vote.

Pansing Brooks also introduced LB843, passed 42-0, which grants legal immunity from prostitution charges for any person proven by law enforcement to be a victim of labor or sex trafficking.

The bill includes provisions of LB1097, originally introduced by Lincoln Sen. Adam Morfeld, that create the Sexual Assault Payment Program that will pay up to $500 for out-of-pocket costs associated with sexual assault medical examinations.

LB934, introduced by Lincoln Sen. Colby Coash, removed a requirement that the public guardian hire up to 12 associate guardians. Instead, the director of the Office of Public Guardian is charged with hiring a multidisciplinary team of up to 20 professionals and support staff, including at least one attorney licensed to practice law in Nebraska.

The bill also limits the number of cases the public guardian can accept to a ratio of 20 public wards or protected persons to each member of the multidisciplinary team.

Provisions of LB1008 and LB1007, both introduced by Coash, were added to the bill.

These require that a guardian ad litem be a licensed attorney in good standing, complete relevant training and advocate for the best interests of the individual whom they defend, including their social, economic and personal safety interests.

Each guardian ad litem is required to make contact with the person he or she represents within two weeks of appointment and become familiar with that person’s condition to the best of his or her ability.

The guardian ad litem is authorized to conduct discovery, present and cross-examine witnesses, file motions on behalf of the person they represent and request medical, psychological or other relevant examinations of the person to whom they are appointed.

Provisions of LB1007 extend the statute of limitations to six years in cases of abuse, neglect or exploitation of a vulnerable or senior adult from its current three-year limit.

The bill passed on a 48-0 vote.

Williams introduced LB919, passed 47-0, which allows new categories of problem-solving courts to address problems related to veterans, mental health, driving under the influence and reentry.

These court programs accommodate offenders already in the criminal justice system who have specific problems—including drug abuse and domestic violence—that cannot be adequately addressed in a traditional court setting.

LB710, introduced by Venango Sen. Dan Hughes, extends the prohibition on hazing by postsecondary students to include all primary and secondary school students.

Hazing is defined as any activity by which a person intentionally or recklessly endangers the physical or mental health or safety of an individual for the purpose of initiation into, admission into, affiliation with or continued membership with any organization.

The bill adds to the definition of hazing: acts of sexual penetration, exposure of genitals, lewd fondling and caressing of another person and coercing another person to commit an act of public indecency. A person found to have committed an act of hazing will be guilty of a Class II misdemeanor, which carries a maximum penalty of six months in jail, a $1,000 fine or both.

The bill passed on a 47-0 vote.

Krist introduced LB505, passed 48-0, which ensures that arrest records are excluded from public record when criminal court charges are dismissed by mandating that state courts seal the records.

The bill expands the types of arrests eligible for privacy protection to include those of individuals who are acquitted of criminal charges and offenders who successfully complete drug court or a similar problem-solving court.

The arrest record must be immediately sealed upon acquittal or successful completion of drug court. It also will be sealed after one or two years if a prosecutor does not file charges or the individual successfully completes a diversion program.

When an arrest is removed from public record, a person is not required to disclose the arrest in response to a public inquiry.

The bill takes effect Jan. 1, 2017.

LB1098, introduced by Morfeld, increases civil court filing fees from $5.25 to $6.25. Revenue from the fee increase will be remitted to the Legal Aid and Services Fund, which provides legal services funding to the state’s indigent population.

The bill passed on a 40-0 vote.

Correctional system

Senators again focused on reform of the state correctional system, continuing much of the work started during the 2015 session.

The Judiciary Committee introduced LB1094, passed 47-0, which clarifies several provisions of a bill pertaining to the state Department of Correctional Services passed last session. These were designed to slow Nebraska’s prison population growth, ease prison overcrowding, contain department spending and reinvest a portion of savings in strategies to reduce offender recidivism and increase public safety.

The bill includes provisions of LB910 originally introduced by Lincoln Sen. Kate Bolz. These continue a requirement that the parole administration office provide access for public counsel and the Office of the Inspector General to all computerized records, reports and documents maintained by the office in connection with the administration of parole. Release of medical or mental health records are subject to a parolee’s consent.

It also requires the department director to submit a report detailing the race, gender and age of all inmates held in restrictive housing as well as the length of time spent in such housing no later than Sept. 15 each year. The report must include the number of inmates diagnosed with mental illness and behavior disorders held in restrictive housing.

O’Neill Sen. Tyson Larson introduced LB113, which would have allowed a county jail or the state Department of Correctional Services to charge an inmate up to $10 for every self-initiated, non-emergency visit to a health care provider.

After extended debate, Larson requested that the bill be bracketed until April 20, effectively killing the bill for the session. There were no objections.

Property rights

Senators considered several measures regarding individual property rights.

Garrett introduced LB1106 to address the state’s civil forfeiture law, which allows law enforcement to seize property associated with suspected criminal activity without necessarily filing criminal charges. The bill allows law enforcement agencies to dispense seized currency and property only after securing a criminal conviction. Persons not charged with a crime or later acquitted of a crime could recoup their property under the bill.

The bill incorporates provisions of Garrett’s LB1108 requiring law enforcement agencies to file annual reports detailing their seizure of property. Written reports must include the date, type, monetary value and location of each property seizure. If property is seized during a traffic stop, the agency must document the race or ethnicity of the person forfeiting the property and whether they were arrested or issued a citation.

LB1106 also allows law enforcement agencies to partner with a federal agency to conduct forfeiture litigation only if the seized property is valued at more than $25,000, involved in a federal investigation or physically confiscated by federal authorities. The state will have jurisdiction in all other cases.

Thirty days after a criminal charge is filed, a defendant can request a hearing to determine if the seized property was used in the commission of a crime. A person with a legal interest in seized property but unaware the property was used in the commission of a crime also can file a motion for a hearing.

The court will hold a hearing within 30 days and the prosecuting attorney is required to prove by clear and convincing evidence that the seized property was used in the commission of a crime.

The bill also adds the manufacture, distribution and possession of illegal drugs and child pornography to the crimes eligible for property seizure and forfeiture.

The bill passed on a 38-8 vote.

Introduced by Omaha Sen. Burke Harr, LB829 authorizes four types of fiduciaries—executors of estates, conservators of estates, agents appointed under power of attorney and trustees—to access a person’s digital assets after they die or otherwise lose the ability to manage their own assets.

The bill creates a tiered system of priorities for handling digital assets. If the custodian—the company that stores a person’s assets on its servers—provides an online tool allowing the user to authorize another person to have access to the data, those instructions take priority.

If no such tool is available or the user chooses not to use it, a will, trust, power of attorney or other written record will be enforced. The custodian’s terms of service will determine access if neither an online tool nor a legal document applies. If none of those situations apply, the bill provides default terms that govern access.

The bill passed 49-0.

LB221, also introduced by Harr, allows a tenant to voluntarily designate a person to retrieve property upon the tenant’s death. A landlord will have 10 days following the death of a tenant to make a reasonable attempt to contact the designated person. The designee will have 20 days to respond to the landlord, then 20 days to retrieve the property.

If a tenant’s personal property is not removed within the appropriate time period, the landlord can dispose of the property and will not be held liable for any lost, damaged or stolen property. Likewise, if the tenant’s authorized person does not respond within 20 days, the landlord can dispose of the property.

The bill includes provisions of LB385, originally introduced by Sen. Brett Lindstrom of Omaha. These permit a landlord or his or her representative to begin eviction litigation five days after notification of the termination of a rental agreement. Currently, the Uniform Residential Landlord and Tenant Act requires landlords to wait 30 days to evict a tenant after notification.

The expedited eviction process applies only in cases where tenants, roommates or their guests threaten the health, safety or peaceful enjoyment of the landlord or other tenants. Activities that can prompt a landlord to begin the eviction process include actual or threatened physical assault, illegal use of a firearm or possession of a controlled substance.

The bill passed on a 46-0 vote.

Drug policy

Lawmakers passed a measure strengthening the state’s ban on synthetic drugs while rejecting a proposal to legalize medical marijuana.

Gothenberg Sen. Matt Williams introduced LB1009, passed 47-0, which bans the sale and marketing of “lookalike” substances.

The bill defines a lookalike substance as one that is not specifically categorized as a controlled substance but possesses one or more of the following characteristics:
• packaging or labeling that suggests a user would achieve euphoria, hallucination, mood enhancement or stimulation that mimics those of a controlled substance;
• images or labels that suggest it is a controlled substance;
• warning labels suggesting compliance with state and federal controlled substances; or
• disproportionately high pricing.

A person who knowingly offers, displays, markets, or sells a lookalike substance could be charged with a Class IV felony, which carries a maximum penalty of two years imprisonment with 12 months probation, a $10,000 fine or both.

As originally introduced by Bellevue Sen. Tommy Garrett, LB643 would have authorized the state Department of Health and Human Services (DHHS) to regulate the manufacture and use of cannabis in Nebraska for medical purposes.

The bill addressed the medical use of cannabis only in liquid, oil, pill or vaporized form. It would have enabled patients with qualifying conditions—including epilepsy, seizures, HIV or AIDS and Crohn’s disease—to apply to the department for enrollment in a newly created patient registry.

After four hours of debate, Garrett filed a motion to invoke cloture, or cease debate and take an immediate vote on the bill. The motion failed 30-15. Thirty-three votes were needed.

Guns

Lawmakers expanded concealed handgun permit access for some, while reinforcing local control with regard to regulation of certain firearms.

Currently, members of the U.S. Armed Forces stationed in Nebraska are considered state residents and may apply for concealed handgun permits. LB190, introduced by Hoskins Sen. Dave Bloomfield, allows their spouses to be considered state residents who also may apply for concealed handgun permits.

The bill also removes the U.S. citizenship requirement for eligibility for the permit.

The bill passed on a 43-2 vote.

After six hours of debate spanning several days, an attempt to force a vote on a bill that uniformly would have applied firearms regulations throughout the state failed.

Crete Sen. Laura Ebke introduced LB289, which would have repealed individual city and village ordinances governing the registration, possession, transportation, transfer and storage of firearms and ammunition. Cities and villages would have retained the authority to enforce prohibitions on firearm discharge.

After six hours of debate, Ebke offered a motion to invoke cloture, or cease debate and take an immediate vote on the bill. The motion failed 32-10.

Law enforcement

The Legislature approved several bills this session calling for changes to law enforcement protocol.

LB1000, introduced by Mello, requires all law enforcement agencies to document in writing the procedures to be followed by officers wearing cameras by Jan. 1, 2017.

The Nebraska Commission on Law Enforcement and Criminal Justice will develop a model policy for body-worn camera usage. An individual agency using body-worn cameras can either develop its own policy or adopt the commission’s model policy.

Agencies choosing to develop individualized policies must include the minimum standards set forth by the commission, including:
• proper training for officers using cameras or accessing video and audio captured by the cameras;
• retention of recordings captured for at least 90 days from the date of such recording; and
• procedures governing the destruction of such recordings after the retention requirement has been met.

If video is determined to have evidentiary value in a criminal, civil or internal disciplinary proceeding, it must be retained until a final determination is reached. If an arrest or prosecution is not made, the video will be retained until a final determination is made or an investigation is officially closed or suspended.

Provisions of two additional bills were amended into the measure.

LB846, originally introduced by Pansing Brooks, requires each law enforcement agency in Nebraska to adopt a written policy on eyewitness suspect identification and provide a copy to the commission. Each policy must include standards for administration of a lineup, instructions given to an eyewitness and documentation of an eyewitness’ level of certainty of identification.

LB1055, originally introduced by Omaha Sen. Ernie Chambers, requires that the transcript, report of the proceedings and statement of no indictment associated with grand jury proceedings be made available for public review in cases involving death of a person while in law enforcement custody or detention.

The bill passed on a 45-0 vote.

Currently, the state and subdivisions are held liable for the death, injury and property damage to an innocent third party caused by the action of a law enforcement officer during a vehicular pursuit. LB188, introduced by Syracuse Sen. Dan Watermeier, would have excluded certain passengers from the liability protections.

As amended, the bill would have excluded any passenger who:
• fails to take reasonable steps to persuade the driver to stop the vehicle;
• promotes, provokes or persuades the driver to engage in flight from law enforcement; and
• is sought to be apprehended by law enforcement.

After four hours of debate, Watermeier offered a motion to invoke cloture and take an immediate vote on the bill. The motion failed 31-9.

Adoption

The state’s role in adoptions was considered by the Legislature this session.

Watermeier introduced LB744, passed 46-0, which authorizes a court to incorporate a communication and contract agreement into a private adoption agreement. Failure to comply with the terms of an agreement will not be grounds to invalidate an adoption or the relinquishment of parental rights.

The bill allows a communication and contact agreement to be enforceable in civil action if the petitioner has participated or attempted to participate in good faith mediation. Parties seeking court enforcement of an agreement are required to participate in mediation first.

The bill also requires that a relinquishing parent be provided independent legal counsel and at least three hours of professional counseling at the expense of the adoptive parent or parents prior to relinquishment.

Other measures

LB835, introduced by Mello, makes changes to several consumer protection statutes including the Credit Report Protection Act, the Consumer Protection Act, the Uniform Deceptive Trade Practices Act and the Financial Data Protection and Consumer Notification of Data Security Breach Act.

It amends the Credit Report Protection Act to require consumer reporting agencies to create a credit file for a minor with no established credit file upon receiving a security freeze request.

The bill extends the provision to an additional category of protected consumers, which includes individuals under 16 and incapacitated individuals under the guidance of a guardian ad litem. It also allows a protected consumer to have a security freeze removed from his or her record.

Changes to the Financial Data Protection and Consumer Notification of Data Security Breach Act include requiring any entity that suffers a data breach to notify customers if personal information—including email addresses or user names in combination with a password or security question—is acquired by an unauthorized party. The bill also requires the entity to notify the attorney general’s office of the breach.

The attorney general’s office will be permitted to share documentary material obtained through a Civil Investigative Demand with other law enforcement agencies under the Consumer Protection Act. LB835 also increases from $25,000 to $500,000 the maximum civil penalty for antitrust violations, including restraint of trade and monopolization.

Finally, the bill adds two additional deceptive trade practices under the Uniform Deceptive Trade Practices Act: a person representing that goods do not contain ingredients or characteristics that the goods actually contain and a person employing any deception or fraud while soliciting funds or assets for a charitable purpose.

The bill passed on a 46-0 vote.

LB136, introduced by Wahoo Sen. Jerry Johnson, makes it illegal to sell, possess or use a flying lantern.

The bill defines flying lantern as any device that requires a flame that produces heated air trapped in a balloon-type covering, allowing the device to float in the air. The bill’s provisions do not apply to hot-air balloons used for transportation.

Violations of the law will be considered a Class V misdemeanor, punishable by a $100 fine.

The bill passed with an emergency clause on a 44-0 vote.

After six hours of debate, an attempt to force a vote on a bill intended to provide implementation guidance for liens on property for Medicaid reimbursement failed April 1.

Schumacher introduced LB1103, which would have authorized DHHS to file a property lien to secure reimbursement for Medicaid benefits in the event an applicant knowingly withheld his or her real estate holdings when applying for medical assistance. The bill would have required an applicant for Medicaid to disclose all interests in real estate, trusts, corporations or other entities.

The department could have filed a property lien in the event an applicant for assistance transfers property to another person while retaining rights to the property and accepts payment for an amount less than full consideration. The lien would have been limited to the lesser of two amounts: the amount needed to satisfy Medicaid reimbursement obligations or the actual value of the real estate.

After six hours of debate and several attempts to bracket the bill, Schumacher offered a motion to invoke cloture and take an immediate vote on LB1103. The motion failed 29-19.

Introduced by Morfeld last session, LB586 would have prohibited employers, employment agencies and labor unions from discriminating against individuals based on their sexual orientation or gender identity. The bill pertained to employers with 15 or more employees, employers with state contracts, the state of Nebraska, governmental agencies and political subdivisions.

Currently, the Nebraska Fair Employment Practice Act prohibits workplace discrimination based on race, color, religion, sex, disability, marital status and national origin.

The bill was bracketed on a 26-18 vote.

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