Judiciary

Lawmakers considered a number of proposals this session seeking to improve the accountability, transparency and efficiency of Nebraska’s law enforcement agencies, courts and correctional system.

Senators passed an omnibus bill that makes several changes to judicial procedure.

LB881, sponsored by Lincoln Sen. Matt Hansen, eliminates the court’s authority to deduct fines automatically from otherwise encumbered portions of an offender’s bond.

The bill includes provisions of several additional measures:
• LB213, sponsored by Omaha Sen. John McCollister, which allows a person sentenced to community service to apply to have their conviction set aside;
• LB282, sponsored by Hansen, which requires the court to appoint counsel when setting bond for an indigent defendant;
• LB776, sponsored by Bennington Sen. Wendy DeBoer, which allows evidence from an expert witness regarding eyewitness testimony to be admitted under the Nebraska Evidence Rules;
• LB777, also sponsored by DeBoer, which replaces references to infractions, misdemeanors and felonies and uses the term “offense;”
• LB945, sponsored by Omaha Sen. Machaela Cavanaugh, which requires cities of more than 100,000 people to prepare an annual report of untested sexual assault evidence collection kits;
• LB1007, also sponsored by Hansen, which reduces the time between court reviews of a person’s competency to stand trial to every 60 days;
• LB1041, sponsored by Lincoln Sen. Patty Pansing Brooks, which clarifies the process for making a grand jury transcript publicly available when convened to investigate the death of a person in custody or detention;
• LB1180, sponsored by Omaha Sen. Justin Wayne, which increases to six the number of alternate jurors a court can impanel; and
• LB1181, also sponsored by Wayne, which provides that a person cannot be held in custody while awaiting trial on an offense for a period of time longer than the maximum sentence for that offense.

Additionally, LB881 creates the new offense of sexual abuse by a school employee. An employee is guilty of such offense if he or she subjects a student to sexual penetration or contact or engages in a pattern or scheme to subject a student to such conduct, commonly referred to as grooming.

Sexual penetration of a student by a school employee is a Class IIA felony, punishable by up to 20 years in prison. Sexual contact with a student is a Class IIIA felony. A person found to have committed grooming behavior is guilty of a Class IV felony. A student’s consent to sexual activity will not be considered a valid defense. A school employee found guilty of sexual abuse of a student is required to register as a sex offender.

The bill also extends the statute of limitations for failure to report child abuse or neglect to 18 months after the commission of the crime or the date upon which the child reaches the age of majority, whichever is later.

Provisions of four bills pertaining to sexual assault offenses are included in LB881:
• LB766, sponsored by Omaha Sen. Brett Lindstrom, which prohibits sexual assault of a minor by an authority figure, changes statute of limitations for failure to make a report of child abuse or neglect and changes provisions relating to sexual offenses;
• LB991, sponsored by Hastings Sen. Steve Halloran, which creates the offense of sexual assault of a student and prohibits related enticement conduct by school officials;
• LB1048, sponsored by Grand Island Sen. Dan Quick, which creates the offense of sexual assault by a school employee and provides notification to the Commissioner of Education; and
• LB1210, sponsored by Omaha Sen. Tony Vargas, which creates the offense of sexual exploitation of a student.

LB881 passed on a 30-8 vote.

Law enforcement

Lawmakers passed two measures to increase transparency and accountability protections for individuals engaged with law enforcement.

LB924, sponsored by Omaha Sen. Ernie Chambers, requires each law enforcement agency in Nebraska to implement an anti-bias and implicit bias training policy to combat apparent or actual racial profiling practices.

Each agency is required to submit its adopted policy to the Nebraska Commission on Law Enforcement and Criminal Justice. Every law enforcement officer will be required to complete at least two hours of bias training during each calendar year.

Additionally, the bill authorizes the commission to withhold loans, grants, funds or donations from a law enforcement agency if the agency is found to have neglected to collect required vehicle stop demographic data. The funding could be reinstated once the reporting failure is corrected.

LB924 passed on a 49-0 vote and took effect immediately.

Under LB43, sponsored by Lincoln Sen. Kate Bolz and passed 43-0, a victim of sexual assault is guaranteed the right to privileged consultation with a sexual assault advocate during any physical examination or interview by a peace officer, prosecutor or defense attorney.

Any medical professional, peace officer, prosecutor or defense attorney is required to provide a victim with written documentation of his or her rights before conducting an initial physical examination or interview. A victim has the right to be interviewed by a peace officer of the gender of his or her choosing, if the request can be accommodated reasonably.

LB43 also requires a medical provider who conducts a physical exam after a sexual assault to contact the appropriate law enforcement agency, which is required to retain any forensic evidence for 20 years.

Evidence collected from a sexual assault physical examination cannot be used to prosecute a survivor for any misdemeanor crimes or offenses under the Uniform Controlled Substances Act.

Courts

A person assisting a child believed to be in imminent danger is eligible for legal immunity under a measure approved by lawmakers.

State law currently includes a “good Samaritan” provision that extends legal immunity to a person rendering aid at the scene of an accident or other emergency. LB832, introduced by Brainard Sen. Bruce Bostelman, expands the definition to include entering a vehicle to remove a child to avoid immediate harm.

The bill passed on a 46-0 vote.

Lawmakers also considered two juvenile justice measures this session.

LB1148, sponsored by Vargas and passed 35-6, requires the Office of Juvenile Services to file a report with the court and give notice of any changes in a youth offender’s placement at a youth rehabilitation and treatment center. The office is required to provide copies of the notice to all interested parties, including any parent or guardian of the juvenile, at least seven days before the placement.

The bill also authorizes the court to hold a review hearing for any change in placement and issue a temporary stay of such change until completion of the review. Each juvenile who is placed at a YRTC is entitled to an annual review of their placement by the juvenile court for as long as they remain committed.

Provisions of four additional bills are included in LB1148:
• LB458, sponsored by Omaha Sen. Steve Lathrop, which allows child advocacy centers to access child abuse and neglect investigations under review by the state Department of Health and Human Services;
• LB906, sponsored by Bennington Sen. Wendy DeBoer, which clarifies the process of retaining forensic interview videos by child advocacy centers;
• LB969, sponsored by Omaha Sen. Justin Wayne, which ensures that defendants are entitled to a physical copy of a video recording in which they are described; and
• LB975, sponsored by Lincoln Sen. Suzanne Geist, which allows DHHS to share information gathered from adult and child abuse investigations for the purpose of complying with other state or federal investigations.

Under LB231, as introduced by Lincoln Sen. Patty Pansing Brooks last session, legal counsel would have been appointed each time a juvenile court petition is filed. The juvenile and his or her parent or guardian would have been informed of the right to retain such counsel as needed.

A juvenile who waived the right to counsel could have rescinded the waiver at any time. Counsel would not have been appointed for a juvenile who participates in a pre-trial diversion program. The bill also would have authorized grants to counties to cover the cost of providing legal counsel to indigent juveniles.

After three hours of general file debate spanning two days, the Legislature moved to another item on the agenda. LB231 was not scheduled for additional debate this session.

Correctional system

The Legislature approved a measure to restrict the use of solitary confinement for juvenile offenders.

LB230, introduced by Pansing Brooks, prohibits correctional facilities from placing juveniles in room confinement as a result of disciplinary sanctions, staff shortages or retaliation by staff members.

The bill specifies that room confinement only can be used after all other less-restrictive alternatives have been exhausted and if the juvenile poses a serious and immediate security threat to themself or others. The length of confinement is restricted to the minimum amount of time needed to resolve any such threat while not harming the mental or physical health of the juvenile.

Confined individuals can continue to have regular access to medical and mental health treatment, meals, contact with parents and legal guardians, legal assistance and educational programming. Monitoring of confined individuals may be accomplished through regular in-person visits, supplemented by electronic video monitoring.

Notice to an offender’s parents or guardians and attorney of his or her placement in room confinement is required within one business day.

LB230 passed on a 44-0 vote.

Gov. Pete Ricketts vetoed two measures passed by the Legislature addressing the state’s correctional system.

Under LB1004, sponsored by Lathrop, a committed offender automatically was eligible for parole within two years of their mandatory discharge date, unless they were eligible for parole at an earlier date.

The director of the division of parole supervision would have established caseload standards for parole service and provided annual caseload reports to the Legislature beginning in January 2021.

The bill included provisions of LB1036, originally introduced by Lincoln Sen. Adam Morfeld, that changed the age of consent for health care decisions from 19 to 18. It also allowed a person under 19 who is in the custody of the correctional system to consent to medical and mental health care decisions.

Lawmakers passed LB1004 on a 29-11 vote Aug. 13. The governor vetoed the bill Aug. 17, after the 2020 legislative session ended.

In his veto message, Ricketts said he appreciated Lathrop’s “innovative” approach to addressing prison overcrowding but called LB1004 “overly broad” and said it could make certain inmates eligible for parole as soon as they enter a correctional facility.

Also vetoed Aug. 17 was LB238, introduced by Pansing Brooks, which required the state Department of Correctional Services to allow all execution witnesses to view the process continually from the moment the inmate enters the execution chamber until the moment he or she is pronounced dead, without any impediment to their line of sight.

Additionally, the bill allowed any person performing an execution to wear a mask or otherwise conceal their personal identity.

LB238 passed on a 27-10 vote Aug. 13. In his veto message, Ricketts said the bill would place additional burdens on the death penalty process in Nebraska and mandate changes to the current execution protocol.

Health care

LB814, introduced by Lincoln Sen. Suzanne Geist, bans “dismemberment” abortion—known medically as dilation and evacuation—except in emergency situations.

The bill defines a dismemberment abortion as a procedure in which a person purposely dismembers and extracts a living fetus from the uterus using clamps, forceps or similar instruments. It does not apply to an abortion in which suction is used to dismember a fetus, or removal of a fetus that already is dead.

LB814 also allows for professional injunctions and civil action against any abortion provider found to be in violation of the bill’s provisions. The intentional and knowing performance of the procedure—unless performed due to a medical emergency—is a Class IV felony, punishable by up to two years imprisonment with 12 months post-release supervision, a $10,000 fine or both.

The bill passed on a vote of 33-8.

The Legislature also approved two measures addressing the mental health needs of Nebraskans.

Lincoln Sen. Kate Bolz introduced LB247, which allows a person to issue instructions or preferences regarding future mental health care decisions, including consent to or refusal of specific types of care, such as inpatient treatment, psychotropic medication or electroconvulsive therapy.

The bill requires two witnesses to the signing of an advance directive, which is revocable by the person to whom it applies. Witnesses cannot be the person’s attending physician or member of their mental health care treatment team, family member, romantic partner, attorney or owner or employee of a treatment facility at which the person is receiving treatment.

Under LB247, a health care professional who acts or declines to act according to reasonable medical standards, in good faith reliance upon a person’s advance directive, is not subject to criminal prosecution, civil liability or discipline for unprofessional conduct.

The bill passed on a 44-0 vote.

Currently, a Nebraska school may refer a child to the county attorney for truancy if the child has had more than 20 absences during the school year and a collaborative plan has not successfully resolved the child’s barriers to attendance.

LB751, sponsored by Bellevue Sen. Carol Blood and passed 48-0, adds mental health as a recognized barrier to attendance for consideration as part of a collaborative plan.

Other measures

Prosecutors have increased authority to pursue individuals for receiving stolen firearms under a bill passed by the Legislature this session.

LB582, sponsored by Gordon Sen. Tom Brewer, adopts a new standard so that a person who should have known or had reasonable cause to believe that a firearm was stolen can be prosecuted. Previously, a person was required to have actual knowledge or belief that a gun was stolen to be convicted of crimes related to receiving a stolen firearm.

The bill passed on a 47-0 vote.

Current law requires that the recording of a termination of a notice of commencement under the Nebraska Construction Lien Act be published at least once per week for three consecutive weeks in a general circulation newspaper.

LB844, sponsored by Elmwood Sen. Robert Clements, would have eliminated this notification requirement. The bill failed to advance from committee.

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