Session Review: Judiciary

<a href='http://news.legislature.ne.gov/jud' target='_blank' title='Link to the website of the Judiciary Committee'>Judiciary Committee</a> chairperson <a href='http://news.legislature.ne.gov/dist32' target='_blank' title='Link to the website of Sen. Laura Ebke'>Sen. Laura Ebke</a>
Judiciary Committee chairperson Sen. Laura Ebke

Senators passed measures this session to provide additional oversight of the state correctional system, ensure fair treatment for minors engaged in the court system and address the state’s opioid epidemic.

Correctional system

The state Department of Correctional Services is required to develop an accelerated parole plan for inmates that will go into effect if the department is operating at 140 percent of capacity on July 1, 2020. The plan will remain in place until the inmate population reaches 125 percent of capacity.

LB841, introduced by Lincoln Sen. Patty Pansing Brooks, provides a process for the department director to certify that an overcrowding emergency exists, prepare and submit a list of parole-eligible inmates to be considered for accelerated release and develop a process by which the board of parole will examine inmates for potential release.

The department’s plan must be delivered to the Legislature no later than Dec. 1, 2018.

The bill includes provisions of four additional bills:
• LB366, introduced by Hastings Sen. Steve Halloran, which changes the name of the Office of Parole Administration to the Division of Parole Supervision and places the division within the Board of Parole;
• LB692, introduced by Bellevue Sen. Carol Blood, which directs the department to complete a comprehensive analysis of its system-wide staffing needs and provide a report to the Legislature by Sept. 15, 2020, and every six years thereafter;
• LB852, introduced by Lincoln Sen. Kate Bolz, which authorizes the department to allow an inmate to temporarily leave a facility to participate in substance abuse treatment, attend rehabilitative programming or seek residency or employment; and
• LB932, introduced by Omaha Sen. Sara Howard, which requires the department’s medical director to establish a protocol for determining whether an inmate soon to be released should be prescribed and dispensed a medication-assisted treatment to reduce or eliminate the inmate’s use of opiates upon release.

The bill passed on a 42-1 vote.

Omaha Sen. John McCollister introduced LB776, passed 38-8, which requires county and city jails to provide inmates with affordable communication by telephone or videoconferencing with their families and legal counsel.

Under the bill, each jail can establish a prepaid or collect telephone system, or a combination of both. Inmates’ family members can deposit money into a prepaid account with a third-party provider of telephone services to cover the cost of the call.

The bill ensures that phone calls or videoconference sessions between an inmate and an attorney are free of charge. Monitoring or recording of such communications is prohibited.

City and county jails that generate revenue from inmate phone calls can retain such revenue to fund inmate programs, so long as it is not excessive. The Jail Standards Board will consider the acceptable rates set by the Federal Communications Commission in setting comparable rates for city and county jails.

Courts

Lawmakers considered several bills to increase efficiency and fairness in the state’s court system.

LB697, introduced by Crete Sen. Laura Ebke, changes the geographic boundaries of Judicial Districts 1, 2 and 10. Otoe County will move from District 2 to 1. Clay and Nuckolls counties will move from District 1 to District 10.

The measure passed 49-0.

Under LB1132, a bill introduced by Pansing Brooks, a victim of sex trafficking can file a motion to set aside a criminal conviction or adjudication of a prostitution-related offense.

The victim is required to submit evidence proving that he or she was a victim of sex trafficking at the time the crime was committed. Evidence considered by the court can include a copy of an official record, certification or eligibility letter from a federal, state, tribal or local proceeding indicating that the person was a victim of trafficking.

The court also can consider an affidavit or sworn testimony from an attorney, member of the clergy, a medical professional, staff member of a victim services organization or other professional from whom the victim sought assistance in addressing trauma related to trafficking.

A judge can consider additional evidence in determining the credibility of the person as a victim of trafficking. If a set aside is granted, it will nullify the conviction and remove all civil disabilities and disqualifications imposed as a result of the conviction. Upon receiving a set aside, the victim can file to have his or her criminal record sealed.

The bill includes provisions of LB855, introduced by Omaha Sen. Brett Lindstrom, that allow a person who has received a pardon to file to have his or her criminal record sealed.

Provisions of Howard’s LB897 also are included in the bill. These remove a mandatory reporting requirement that medical professionals contact law enforcement when a patient is suspected to be a victim of sexual assault. The medical professional now must secure written consent from the patient before contacting law enforcement.

LB1132 passed on a 45-0 vote.

Penalties

New and amended criminal penalties were considered and approved by the Legislature this session.

Under LB729, introduced by Omaha Sen. Justin Wayne, state agencies and their employees no longer have legal immunity from civil claims arising from misrepresentation or deceit under the State Tort Claims Act, which can make those parties liable in civil court proceedings.

Specifically, the department is liable if it fails to inform potential adoptive or foster parents of issues relating to a state ward’s behavioral health, mental health, or educational or medical history, including a ward’s potential history as a victim or perpetrator of sexual abuse.

The bill passed on a 49-0 vote.

LB773, sponsored by Sen. Robert Clements of Elmwood, makes it a criminal offense to threaten someone with a text or email message. Previously, a person committed the offense of intimidation by telephone call if he or she telephoned someone with the intent to terrify, intimidate, threaten, harass, annoy or offend.

The bill amends the law to include intimidation by electronic communication, such as a text message or an email. It also removes the terms “terrify,” “annoy” and “offend” to address a possible conflict with the First Amendment.
The offense is a Class III misdemeanor with a maximum penalty of three months in prison, a $500 fine or both.

The bill includes provisions of LB811, introduced by Lindstrom, which update Nebraska law to reflect new payment card technology and make it a crime to possess a scanning device or encoding machine with the intent to use it to obtain information encoded on a card without authorization from the card’s user, the card’s issuer or a merchant.

Senators voted 47-0 to pass LB773.

Under a bill passed in 2011, any person who knowingly and intentionally strikes a public safety officer with a bodily fluid is guilty of a Class I misdemeanor assault, which carries a penalty of up to one year imprisonment, a $1,000 fine or both.

The charge is upgraded to a Class IIIA felony if the person committing the assault strikes a person’s eyes, mouth or skin and knows that the fluid is infected with HIV, hepatitis B or hepatitis C at the time the assault is committed.

A Class IIIA felony carries a penalty of up to three years imprisonment with 18 months of post-release supervision, a $10,000 fine or both.

The statute was expanded in 2014 to include firefighters and out-of-hospital emergency care providers. LB913, introduced this session by Omaha Sen. Mike McDonnell and passed 47-0, extends such protections to include health care professionals who practice at hospitals or health clinics.

Juvenile justice and child welfare

The fair and equitable treatment of minors before the law was the focus of several bills considered by lawmakers this session.

LB714, introduced by Howard and passed 45-1, allows minors at least 16 years old to seek emancipation from their parents or guardians.

After a motion to grant emancipation is filed and the individual’s parents or guardians have been notified, a judge will determine whether or not the minor possesses the maturity and knowledge to sufficiently manage his or her affairs and finances.

If emancipation is granted, the minor legally is allowed to incur debt, sign contracts, acquire property, file litigation, consent to medical services, enroll in any school or college and establish his or her own residence.

Emancipation status will not affect a minor’s status in any juvenile court proceedings.

Albion Sen. Tom Briese introduced LB845, passed 49-0, which prohibits a court from giving custodial preference to a parent based on the disability of a parent.

The bill includes provisions of LB1051, introduced by Pansing Brooks. These set forth county court procedures and practices relating to family member visitation petitions when it is alleged that visitation has been denied arbitrarily.

Failing to advance from general file debate was LB158, also introduced by Pansing Brooks, which would have ensured that all Nebraska juveniles appearing in court could have legal representation.

Senators passed legislation in 2016 ensuring that juveniles in counties with a population greater than 150,000 are guaranteed access to counsel. LB158 would have expanded that legislation to cover juveniles in every county.

A Judiciary Committee amendment would have clarified that a juvenile who waives the right to counsel could rescind the waiver at any time. It also would have clarified that counsel need not be appointed for a juvenile who participates in a pre-trial diversion program.

Pansing Brooks also filed an amendment that would have created a Juvenile Indigent Defense Fund to provide grants to counties to cover the cost of providing legal counsel to indigent juveniles. This would have been funded by a $1 increase in court filing fees.

A cloture motion failed on a vote of 31-8 after several hours of debate. Thirty-three votes were needed. A failed cloture motion ceases debate. LB158 did not return to the agenda this session.

Also failing to advance from general file debate was LB589, introduced by Bellevue Sen. Sue Crawford, which would have ensured that no deposition of a child would be granted if a video-recorded forensic interview already had been conducted by an accredited child advocacy center, unless the deposition would have aided in the disclosure of evidence vital to a defendant’s case.

The judge granting the deposition would have been required to implement any protective measures to shield the child from harm or distress, harassment or intimidation.

After several hours of debate, the Legislature moved to another item on the agenda. Per a practice implemented last year by Speaker Jim Scheer of Norfolk, the sponsor of a bill facing a potential filibuster was required to demonstrate sufficient support for a cloture motion for the measure to be scheduled for additional debate.

LB589 did not return to the agenda this session.

Firearms

Under LB990, introduced by Omaha Sen. Justin Wayne, a person younger than 25 is prohibited from possessing a firearm if they have been adjudicated in juvenile court of a misdemeanor domestic violence charge or any felony.
A person who violates the bill’s provisions will be guilty of a Class IV felony, which carries a penalty of up to two years imprisonment with one year of post-release supervision, a $10,000 fine or both. Second and subsequent offenses are a Class IIIA felony, which carries a penalty of up to three years imprisonment and 18 months post-release supervision, a $10,000 fine or both.

The prohibition does not apply to the possession of firearms by members of the U.S. Armed Forces, National Guard, Reserve Officers Training Corps, or law enforcement officers while on duty or during training.

A person subject to the bill’s provisions can file for an exemption. The bill passed on a 41-0 vote.

Lawmakers also passed LB321, introduced by Kearney Sen. John Lowe, which allows college students competing in shooting sports to lawfully transport their firearms on campus.

Firearms currently are prohibited from the grounds and buildings on the state’s college and university campuses. School-sponsored rifle team members already are exempt from this ban as long as their weapons are safely transported and stored.

The bill adds additional teams that compete in rifle, pistol and shotgun disciplines to the team description in state statute. LB321 passed on a 46-0 vote.

An attempt to increase the cost of handgun permits failed to advance from general file debate this session.

LB81, introduced by Blood, would have increased the $5 permit fee to $25. An amendment was adopted during general file debate that would have extended the permit renewal period from every three years to every five years.

After several hours of debate, Sen. Tyson Larson of O’Neill introduced a motion to indefinitely postpone the bill. The motion was adopted on a 27-17 vote, ending consideration of the bill for the session.

Drug policy

Lawmakers overwhelmingly approved legislation this session to address opioid addiction in Nebraska.

LB931, sponsored by Omaha Sen. Sara Howard, limits opiate prescriptions for a patient younger than 18 to no more than a seven-day supply. A medical practitioner is required to discuss the risks associated with opiates with the patient’s parent or guardian. Exceptions to the seven-day limitation can be made for chronic pain, cancer diagnosis or palliative care.

The bill’s provisions will expire on Jan. 1, 2029, to allow lawmakers to revisit the need for continuation of the program.

Provisions of two additional measures addressing opiate prescriptions are included in the bill.

LB933, introduced by Omaha Sen. Brett Lindstrom, requires medical practitioners to notify patients—or a parent or guardian of a patient under 18—of the risk of addiction and overdose when prescribing opiates and other Schedule II prescription medications. The notification is required prior to the initial prescription and again before issuing a third prescription.

LB934, introduced by Heartwell Sen. John Kuehn, requires a person picking up an opiate prescription to provide valid photo identification unless the pharmacist has an established relationship with the patient and can positively identify him or her.

A patient, resident or employee of a licensed health care facility is exempt from this provision if identification procedures are in place for the receipt and administration of controlled substances at the facility.

LB931 passed on a 48-0 vote.

The Legislature also passed LB923, introduced by Lincoln Sen. Adam Morfeld, which extends legal immunity to certain law enforcement employees who deal with drug overdose victims.

A 2015 bill passed by the Legislature exempts an individual from prosecution who prescribes or dispenses naloxone to a person experiencing an opioid-related overdose. Naloxone is a medication that reverses the effects of opioids.

LB923 adds law enforcement employees to the list of people who receive such an exemption and clarifies that a minor who reports a possible alcohol overdose is legally immune only if he or she makes a good faith request for emergency medical assistance. The person experiencing the overdose also is legally immune.

The bill eliminates a provision in statute that the minor be the first person to call for assistance to qualify for immunity. LB923 was approved on a 44-1 vote.

Other measures

Healthcare surrogacy, consumer protection and government transparency were among the many issues discussed by lawmakers this session.

Under LB104, introduced by Lincoln Sen. Kate Bolz, a patient can designate a surrogate to make health care decisions on his or her behalf in the event that the patient becomes incapacitated.

If multiple people of equal standing assume authority as a surrogate but they disagree on a health care decision, the supervising health care provider will comply with the majority decision.

A surrogate will be required to make health care decisions in accordance with the patient’s instructions and wishes, if known. Otherwise decisions must be made in the patient’s best interests, taking into account his or her personal values.
Decisions made by a health care surrogate will not require judicial approval.

The bill specifically prohibits an owner, operator or employee of a health care facility at which the patient is residing or receiving care from acting as a surrogate. An exception can be made if that person is related to the patient by blood, marriage or adoption.

The bill passed on a 48-0 vote.

LB757, introduced by Morfeld, prohibits a credit-monitoring agency from charging fees to place, temporarily lift or remove a security freeze following a data breach similar to the one experienced by Equifax in 2017.

A security freeze places a hold on a person’s credit report, preventing identity thieves from opening fraudulent credit accounts using stolen information.

Any individual or commercial entity conducting business in Nebraska that owns, licenses or maintains data including personal information will be required to implement reasonable security measures to safeguard that information.

LB757 does not provide a private cause for action in the case of a data breach and applies only to computerized data. Senators passed the bill on a 46-0 vote.

LB93, introduced by Lincoln Sen. Matt Hansen and passed 47-0, restricts how law enforcement agencies and other government entities gather and share data from automatic license-plate readers, which are mobile or fixed cameras used in combination with computer algorithms to turn license plate images into computer-readable data.

The bill allows government entities to use automatic license-plate readers only to identify vehicles that are associated with a missing person, registered to someone with an outstanding warrant, relevant to an ongoing criminal investigation or reported as stolen. Parking enforcement agencies can use the systems to identify vehicles with outstanding parking or traffic violations, enforce secured areas, assist weigh stations or collect tolls.

Agencies are prevented from storing the captured data for more than 180 days unless it is used as evidence or if it is subject to a preservation request or the subject of a warrant, subpoena or court order.

Agencies using automatic license plate readers are required to adopt and post a privacy policy and a policy governing use of the systems. Agencies are required to report annually to the Nebraska Commission on Law Enforcement and Criminal Justice on their use.

Senators also passed LB105, introduced by Bancroft Sen. Lydia Brasch, which increases the personal property bankruptcy exemption from $2,500 to $5,000 when filing for bankruptcy or resolving a creditor judgment.

The bill additionally increases an exemption for household items, business tools and equipment and a debtor’s interest in a motor vehicle. The exemption limits will be adjusted for inflation every five years, beginning in 2023.

The bill passed on a 47-0 vote.

A proposal to create a new, sovereign city would have been placed on the ballot for voters’ consideration under a measure that failed to advance from general file debate.

LR269CA, introduced by Columbus Sen. Paul Schumacher, would have placed the issue on the November 2018 general election ballot. If approved by voters, the Legislature would have been constitutionally authorized to delegate complete or partial sovereignty to an area of the state, not to exceed 36 square miles in area, with a population density of 10 people per square mile. The sovereignty agreement would not have exceeded 99 years.

The proposed constitutional amendment failed to advance on a 19-19 vote. It did not return to the agenda this session.

Under LB39, introduced by Omaha Sen. Burke Harr, a person involved in selling, trading, bartering or offering ivory for sale would have been guilty of a Class II misdemeanor, which carries a penalty of up to six months in jail, a $1,000 fine, or both.

The bill would not have applied to firearms, knives and their component parts. Additionally, any item that is acquired or distributed to an educational or scientific institution would have been exempt.

Two amendments were adopted to narrow the bill’s provision during general file debate, but LB39 failed to advance on a 19-9 vote. Twenty-five votes were needed.

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