Session Review: Judiciary
Lawmakers considered an array of measures to expand prison and parole evaluations, provide reimbursement payments to county jails that hold inmates under certain conditions and expand protections to victims of sexual assault and sex trafficking.
A major prison reform proposal, an abortion “trigger” bill and repeal of the state’s concealed carry permit requirement all stalled during floor debate this session.
A bill that would have enacted a series of measures intended to reduce Nebraska’s inmate population and lower recidivism rates was debated this session, but stalled on general file after a failed cloture motion.
LB920, introduced by Omaha Sen. Steve Lathrop, included a number of provisions to address sentencing, reentry, release and supervision, including:
• requiring each judicial district to establish a problem-solving court;
• creating new lower-level drug and burglary offenses;
• creating three probation system pilot programs;
• limiting mandatory minimum terms for certain nonviolent felonies;
• limiting offenses that can be used for certain sentence enhancements;
• requiring courts to make certain findings before imposing consecutive sentences;
• providing for geriatric parole eligibility, a streamlined parole process and wider parole eligibility windows for some inmates; and
• creating a residential housing program for parolees who commit technical violations.
A Judiciary Committee amendment would have, among other provisions, increased the age requirement for geriatric parole eligibility from age 70 to 75 and increased the sentence length eligibility from 10 years to 15.
Lincoln Sen. Suzanne Geist offered an amendment during general file debate that would have removed provisions that made changes to criminal sentencing and penalties. It also would have removed a requirement that an individual previously have committed violent offenses to be sentenced as a habitual criminal.
Lathrop offered a cloture motion after eight hours of first-round debate. The motion — which ceases debate and forces a vote on the bill and any pending amendments — failed on a vote of 26-18, ending consideration of the bill. Thirty-three votes were needed.
LB896, also introduced by Lathrop, requires the Nebraska Department of Correctional Services and the Division of Parole Supervision to use an independent contractor or a Nebraska academic institution to evaluate programs funded by the department.
Under the bill, nonclinical treatment and structured programs will be evaluated every eight years and clinical treatment programs will be evaluated every three years. Evaluations will rate program effectiveness in reducing recidivism rates and include recommendations regarding the availability, timeliness and therapeutic environment of programs.
If applicable, a cost-benefit analysis also will be included. Evaluation results will be sent to the inspector general of corrections and the evaluated entities.
The bill passed on a vote of 46-0.
Under current state law, an individual sentenced to serve more than one year for a felony conviction is required to serve the sentence in a state correctional facility. LB921, as introduced by Lathrop, would have required that all sentences for Class III, IIIA or IV felony convictions be served in a county jail.
Those provisions were removed and replaced with those of LB1223, introduced by Lincoln Sen. Matt Hansen, which require the state Department of Health and Human Services to reimburse a county jail if a person who is ordered committed to the department for competency restoration remains in jail. The rate of reimbursement is $100 per day and will be adjusted for inflation annually beginning July 1, 2023.
The provisions also allocate beds at the Lincoln Regional Center and create the Legislative Mental Health Care Capacity Strategic Planning Committee, which will contract with an independent consultant to determine the necessary capacity for inpatient mental health care in Nebraska.
The bill also includes provisions of LB952, introduced by Omaha Sen. John Cavanaugh, which require DHHS to provide Medicaid enrollment assistance to individuals prior to leaving incarceration beginning July 1, 2023.
The bill passed 46-0.
Senators considered several bills this session to improve law enforcement recruitment and retention.
LB1241, introduced by Lathrop, makes a number of changes to the state’s current law enforcement reciprocity program. Under the bill, a person seeking certification under the reciprocity process will not be allowed to exercise law enforcement authority until all requirements have been met, however they may serve as a non-certified conditional officer.
The bill redefines a training academy to include any facility operated by multiple law enforcement agencies that offers certification training and requires that a reciprocity test be offered at least once a month. The bill also removes a requirement that a law enforcement officer complete continuing education in the calendar year of their retirement.
The bill contains provisions of LB1270, introduced by Elmwood Sen. Robert Clements, which authorize a tiered system of retention payments and hiring bonuses for law enforcement officers.
A law enforcement officer is not eligible for tier retention incentive payments if convicted of a felony or a Class I misdemeanor or if their certification has been revoked. An officer found to have engaged in serious misconduct or who was allowed to resign instead of being terminated from employment also is ineligible.
The provisions state legislative intent to appropriate $5 million each fiscal year to implement the grant program, which will take effect July 1, 2022, and terminate June 20, 2028.
The bill was approved on a vote of 46-0 and took effect immediately.
LB1271, introduced by Omaha Sen. Brett Lindstrom, stated legislative intent to appropriate $1 million annually to the Nebraska Commission on Law Enforcement and Criminal Justice in an effort to recruit law enforcement officers from outside the state to relocate to Nebraska.
The bill did not advance out of committee.
Improved access and efficiency in the court system were the focus of a number of proposals.
LB922, introduced by Omaha Sen. Steve Lathrop, increases the number of judges in Douglas County’s fourth district from 17 to 18.
The bill contains provisions of six additional measures:
• LB830, introduced by Bennington Sen. Wendy DeBoer, which ties the maximum level of medical cash support for children to child support guidelines set by the state supreme court;
• LB870, introduced by Lincoln Sen. Matt Hansen, which amends the State Self-Insured Indemnification Fund and the State Self-Insured Liability Fund to allow payment of attorneys’ fees by allowing fees associated with agency legal counsel or hired outside legal counsel to be paid from revolving funds;
• LB903, introduced by Sen. Eliot Bostar of Lincoln, which creates a new type of second-degree trespass that criminalizes flying a drone over the property of another individual with the intent to observe the person without their consent in a place of solitude or seclusion;
• LB990, sponsored by Blair Sen. Ben Hansen, which creates the offense of criminal impersonation by stolen valor for an individual who pretends to be an active member or veteran of the U.S. military with the intent to deceive or harm another or who fraudulently represents themselves as the recipient of a military honor or award;
• LB1059, introduced by Norfolk Sen. Michael Flood, which adds the Judicial Resources Commission to the list of entities excluded from the definition of public bodies under the Open Meetings Act and removes the commission from the list of public bodies that may, with certain limitations, conduct virtual meetings; and
• LB1171, sponsored by Sen. Rita Sanders of Bellevue, which establishes the clerk of the district court as the jury commissioner in all counties.
Lawmakers passed LB922 on a 43-1 vote.
A bill that would have allowed Nebraska judges to authorize the use of video, electronic or telephonic technology for certain hearings did not advance from committee.
Current state law allows for use of virtual conferencing when all parties give consent. Under LB1053, introduced by Lathrop, a judge who finds good reason could have used their discretion to authorize the use of virtual conferencing for civil, juvenile and some pre-trial motion hearings, as long as the hearing allowed for public access and for an accurate record to be preserved.
A bill that would have banned all abortions in Nebraska if states are given full regulatory authority over the procedure stalled on general file after an unsuccessful cloture motion.
LB933, introduced by Thurston Sen. Joni Albrecht, would have become operative contingent upon one of the three national “triggering” events: if the U.S. Supreme Court overturns Roe v. Wade, Congress enacts a law giving states complete authority to regulate abortion or the U.S. Constitution is amended to give states that authority.
The bill would have prohibited both medical and chemical abortions starting at fertilization with no exception for cases of rape or incest. A physician who knowingly violated the bill’s provisions would have been subject to a Class IIA felony charge, which carries a maximum penalty of 20 years imprisonment.
A physician charged under the bill’s provisions could have claimed an affirmative defense that the procedure was necessary to prevent a woman’s death. A woman who attempts or has an abortion would not have been liable under the bill. Medical treatment provided by a licensed physician that results in accidental death or injury of an unborn fetus also would not have been a violation.
Albrecht filed a cloture motion after eight hours of debate that failed 31-15. Thirty-three votes were needed.
Two other abortion bills were heard this session but were not advanced from committee.
LB781, introduced by Sterling Sen. Julie Slama, would have prohibited knowingly performing an abortion after a fetal heartbeat is detectable, except in cases of a medical emergency.
LB1086, introduced by Geist, would have established a safety protocol to prohibit anyone but a physician from providing an abortion-inducing drug. The bill also would have prohibited an abortion-inducing drug from being mailed or otherwise delivered.
A woman upon whom an abortion is attempted, induced or performed would not have been subject to prosecution under either LB781 or LB1086.
Sexual assault crimes
LB1246, introduced by Lincoln Sen. Patty Pansing Brooks, requires attorneys and criminal justice agencies to withhold the personal identifying information of an alleged sexual assault or sex trafficking victim from the public record until charges are filed.
Relevant information can be shared between criminal justice agencies, attorneys and victim advocacy agencies under certain circumstances. Criminal justice agencies also may share identifying information about an alleged victim with an educational entity, such as a Title IX coordinator.
LB1246 includes a provision of LB204, originally sponsored by Slama, which requires convicted sex traffickers to register as sex offenders under the state’s Sex Offender Registry Act beginning Jan. 1, 2023.
The bill passed on a 47-0 vote.
Under LB519, introduced by Lincoln Sen. Adam Morfeld and passed 37-7, immunity from arrest and prosecution will be granted to an individual who normally would be subject to a drug or alcohol offense if he or she is the victim of or a witness to a sexual assault and reports it to law enforcement or requests emergency medical assistance.
Evidence of such an offense obtained or discovered as a result of a reported crime or requested medical service will not be used as long as the individual cooperates with law enforcement.
The bill also allows the court to waive the notice requirement for an individual seeking to legally change their name if the petitioner can show that doing so would endanger them.
LB833, introduced by Omaha Sen. Rich Pahls, would have removed the existing time limitation on a civil action taken against a private third party in cases of sexual assault of a child. Provisions of the bill would not have applied to cases already time barred under the statute of limitations.
The bill was advanced to general file but was not scheduled for debate.
A bill that would have allowed Nebraskans to carry a concealed handgun without a permit stalled on select file after an unsuccessful cloture motion.
Current state law requires that an individual pass a background check, submit a $100 permit fee and complete a safe firing and handling gun course to obtain a concealed carry permit.
LB773, introduced by Gordon Sen. Tom Brewer, would have waived those requirements and allowed an individual who otherwise would not be prohibited from possessing or carrying a gun in Nebraska to conceal carry a firearm without a permit. Registration and training courses still would be offered but would no longer be required.
After four hours of second-round debate, Brewer filed a cloture motion, which failed on a vote of 31-9. Thirty-three votes were needed.
In 2010, the Legislature passed a bill requiring school districts to report truancy cases to a county attorney when a student has been absent at least 20 days in a year, whether the absences are excused or unexcused.
Under LB568, introduced last session by Pansing Brooks, excessive absenteeism no longer would have been an independent basis for a juvenile court action. It could, however, still have been considered as a factor in other juvenile cases.
The bill, which also would have replaced official references to “truancy” with “excessive absenteeism,” stalled on select file after a cloture motion failed 26-18.
LB496, as introduced by Omaha Sen. Robert Hilkemann last session, would have required an adult charged with a felony crime of violence or burglary to provide a DNA sample to law enforcement at the time of booking or to the court during a first appearance.
The bill was amended during first-round debate in 2021. As amended, samples obtained under the provisions of LB496 would not have been tested or placed into the state’s database until a judicial determination of probable cause had been made or a hearing to determine probable cause had been waived.
If the charge against an individual were dismissed, the DNA sample would have been destroyed immediately and notice sent to the individual. In addition, the provisions of LB496 would not have applied to juveniles.
The bill advanced to final reading this session following a successful cloture motion but was not scheduled for a final vote.
Owners of modern farm machinery would have had the same access as authorized dealers to the software, tools, technical manuals and parts needed to make repairs under LB543, introduced last session by Plymouth Sen. Tom Brandt. The bill would have required original equipment manufacturers to make available, on fair and reasonable terms, the documentation, parts and tools needed to diagnose, maintain or repair electronics-enabled agricultural equipment to independent mechanics or the equipment’s owner.
LB543 was debated on general file this session but no votes were taken on the bill.
Under current law, a person who assaults an officer, emergency responder, state correctional employee or health care professional faces enhanced penalties. LB661, introduced during the 2021 session by Omaha Sen. Mike McDonnell, would have added public transportation drivers to that list of public safety workers.
The bill was discussed on general file this session but the Legislature moved to the next item on the agenda without voting on the bill’s advancement.
LB1213, as introduced by Thurston Sen. Joni Albrecht, would have prohibited a school, school district or the Nebraska Library Commission from providing K-12 students with online or digital resources considered to be obscene or harmful as defined in state law. In addition, those entities would have been required to implement technology protections to filter and block inappropriate content from minors and establish and verify an online account for every K-12 student.
The committee advanced the bill to general file with amendments to create a complaint process but it was not scheduled for debate.