Session Review: Judiciary
Repeal of the state’s concealed handgun permit requirement, continuing efforts to enact criminal justice reforms and an increase in judges’ salaries topped the list of judicial topics considered by senators this session.
Firearms
Lawmakers passed a bill that removed the concealed handgun permit requirement in Nebraska.
State law had required that an individual pass a background check, submit a $100 permit fee and complete a gun safety course to obtain a concealed carry permit. LB77, introduced by Gordon Sen. Tom Brewer, waives those requirements.
Under the bill, an individual not otherwise prohibited from possessing or carrying a gun in Nebraska can conceal carry without a permit. LB77 also prohibits counties, cities and villages from regulating ownership, possession or transportation of a concealed handgun.
The bill adds a misdemeanor charge for carrying a firearm or destructive device while committing certain “dangerous” misdemeanor crimes, including harassment, stalking, domestic violence, shoplifting and resisting arrest, among others.
An individual is subject to a Class I misdemeanor for a first or second offense and a Class IV felony for a third or subsequent offense.
LB77 passed on a vote of 33-14.
A bill that would add off-duty peace officers to the list of individuals allowed to carry a firearm on school property was heard by the committee but not advanced.
Current state law prohibits an individual from carrying a firearm on school grounds with the exception of on-duty law enforcement, members of the armed forces and National Guard and certain individuals in other limited circumstances. LB17, sponsored by Lincoln Sen. George Dungan, would add full-time, off-duty peace officers to that list.
Another measure would prohibit possession of deadly weapons in the Nebraska State Capitol and on surrounding Capitol grounds.
Current state law defines a deadly weapon as a firearm, knife, machine gun and brass or iron knuckles. LB749, introduced by Omaha Sen. Machaela Cavanaugh, would ban all deadly weapons in the Capitol and on Capitol grounds, with exceptions for law enforcement, military and security personnel and individuals participating in ceremonial activities as approved by the Nebraska Capitol Commission.
Provisions of the bill would not apply to an individual who stores a deadly weapon — for example, an unloaded firearm — in a secure encasement in a vehicle. Violations would result in a Class IV felony charge, which carries a maximum penalty of two years imprisonment and one year post-release supervision, a $10,000 fine or both.
LB749 remains in committee.
Criminal justice reform
LB50, sponsored by Omaha Sen. Justin Wayne, contains a number of provisions intended to improve the state’s criminal justice system.
Among other provisions, the measure requires each judicial district to establish a problem-solving court, creates a pilot program to administer virtual behavioral health treatment services for court-involved individuals and establishes a housing program for parolees who commit technical parole violations.
LB50 also terminates the Legislature’s Committee on Justice Reinvestment Oversight and requires that two criminal defense attorneys with at least 10 years of experience be appointed by the governor to the newly created Nebraska Sentencing Reform Task Force.
The bill includes provisions of Wayne’s LB352 related to parole eligibility and habitual criminal enhancement.
Under those provisions, an offender who is serving a maximum sentence of up to 20 years will be parole eligible at least two years prior to their mandatory discharge date and an individual serving a sentence over 20 years will be parole eligible after serving 80 percent of the term prior to their mandatory discharge date.
The measure creates geriatric parole eligibility for certain offenders over age 75 who have served 15 years of their sentence. Offenders serving a life sentence or convicted of a Class I or Class IA felony or sex offenses are excluded.
The provisions also set the mandatory minimum term for a habitual offender at three years and the maximum term at no more than the maximum term given or 20 years — whichever is greater — for qualified offenders. Individuals who have committed offenses related to firearms, violence or sex crimes are excluded from these provisions.
LB50 was amended to contain the provisions of more than a dozen other bills related to criminal penalties, parole and probation:
• LB14, introduced by Dungan, which expands eligibility for the Young Adult Bridge to Independence program;
• LB27, also introduced by Dungan, which clarifies the appointment process of a public defender to an indigent defendant who files an appeal;
• LB30, sponsored by Dungan, which authorizes pleas of no contest in juvenile court cases;
• LB59, introduced by Omaha Sen. John Cavanaugh, which temporarily pauses the statute of limitations for a post-conviction action while an appeal to the Supreme Court is pending;
• LB76, introduced by Lincoln Sen. Eliot Bostar, which allows law enforcement to access certain probation and parole supervision information;
• LB137, introduced by Lincoln Sen. Carolyn Bosn, which creates an enhanced penalty for controlled substance offenses if use of the substance results in death or serious injury;
• LB162, introduced by Omaha Sen. Mike McDonnell, which creates a new Class I misdemeanor charge for tampering with an electronic monitoring device;
• LB220, introduced by Sumner Sen. Teresa Ibach, which requires the Board of Pardons to notify a victim whose name appears in the file of a convicted person of any pardon or commutation at least 30 days prior to those proceedings and within 10 days of the granting of a pardon or commutation;
• LB265, introduced by Gordon Sen. Tom Brewer, which requires the Nebraska Department of Correctional Services to provide stab-resistant protective vests to each corrections officer;
• LB314, introduced by Omaha Sen. John Fredrickson, which requires suicide prevention materials to be provided to firearm purchasers;
• LB337, introduced by Ralston Sen. Merv Riepe, which clarifies when mental health practitioners may share an individual’s medical records when consent cannot be obtained;
• LB494, introduced by Dungan, which allows for custodian certification of business records by an affidavit signed under penalty of perjury; and
• LB521, introduced by Fremont Sen. Lynne Walz, which includes school personnel in immunity provisions for administering naloxone to a person who is experiencing an opioid-related overdose.
LB50 passed on a 34-15 vote.
Omnibus bill
Lawmakers also approved a measure that authorizes certain temporary public guardianships in Douglas County and contains a variety of judicial measures dealing with protection orders, court fees and juvenile court disposition.
LB157, introduced by Bennington Sen. Wendy DeBoer, allows for creation of temporary guardianships in a county containing a metropolitan class city to assist individuals who are applying for private or public benefits. Omaha currently is the state’s only metropolitan class city.
The bill includes the provisions of LB315, introduced by Omaha Sen. John Fredrickson, which prohibit providers of medical or other services related to examination of injuries arising from sexual assault, domestic assault or trafficking from referring victims to collection agencies or taking other averse action for failure to pay the debt.
LB157 also contains provisions of the following measures:
• LB11, introduced by Bellevue Sen. Carol Blood, which specifies that domestic abuse protection orders may explicitly provide for sole possession of a household pet and restrict contact with such pets;
• LB82, introduced by DeBoer, which updates reporting requirements from the director of the state’s Department of Correctional Services;
• LB183, introduced by Omaha Sen. John Cavanaugh, which allows the District Court to waive fees related to a name change;
• LB240, introduced by Omaha Sen. Justin Wayne, which prohibits a juvenile court from modifying the terms of a disposition order unless the juvenile has violated a previous order or all parties agree and the juvenile has consulted with or waived counsel;
• LB330, introduced by DeBoer, which allows a successor to a decedent to endorse a check, payable to the decedent or the decedent’s estate, for a debt owed to the decedent;
• LB436, introduced by Lincoln Sen. Carolyn Bosn, which updates the state Uniform Controlled Substances Act to conform with federal law;
• LB480, introduced by Bellevue Sen. Rick Holdcroft, which adds emergency medical service providers to the list of medical agencies that can file a lien on settlement awards received by injured parties; and
• LB757, introduced by DeBoer, which extends the filing date for victims to apply for reimbursement from the Crime Victims Reparations Fund.
LB157 passed on a vote of 47-0 and took effect immediately.
Other measures
Lawmakers also approved a proposal to increase salaries for Nebraska judges as part of the state’s two-year budgeting process.
As introduced by DeBoer, LB799 authorizes a 7 percent salary increase for the chief justice and judges of the Nebraska Supreme Court in fiscal year 2023-24 and a 6 percent increase in FY2024-25.
Under the bill, Nebraska Supreme Court salaries will increase to $212,316 starting July 1, 2023, and $225,055 starting July 1, 2024. Because Nebraska judges are paid using a statutory formula based on the salary of the chief justice, the increase in LB799 results in a commensurate increase in the salaries of all other judges in the state.
The bill was amended to contain provisions of three additional measures:
• LB81, introduced by Grand Island Sen. Raymond Aguilar, which increases from four to five the number of county judges in the 9th Judicial District, which serves Buffalo and Hall counties in central Nebraska;
• LB260, introduced by Wayne, which aligns state law with the current practice of electronic publication of appellate court opinions; and
• LB426, introduced by Ralston Sen. Merv Riepe, which reduces the number of judges on the Nebraska Workers’ Compensation Court from seven to six.
Lawmakers voted 40-0 to pass LB799, which took effect immediately.
LB328, introduced by Lincoln Sen. Jane Raybould, would create the Office of Liaison for Missing and Murdered Indigenous Persons within the Nebraska Attorney General’s Office.
The attorney general and the Commission on Indian Affairs would partner in selecting a full-time specialist to staff the office, giving preference to applicants of Indigenous descent.
The specialist’s duties would include identifying, collecting and directing resources and information to aid in combating the prevalence of missing and murdered Indigenous people in Nebraska.
LB328 was advanced to general file but was not scheduled for first-round debate.
A bill that would prohibit employers from discriminating on the basis of sexual orientation or gender identity remains in committee.
Current state law prohibits employment discrimination based on race, color, religion, sex, disability, marital status or national origin. LB169, introduced by Omaha Sen. Megan Hunt, would add sexual orientation and gender identity to that list. The bill would apply to government employers, labor organizations and private employers with 15 or more employees.
Two additional bills also failed to advance from committee this session.
LB371, introduced by Glenvil Sen. Dave Murman, would bar individuals younger than 19 from attending a drag show in Nebraska and prohibit individuals under age 21 from attending a drag show if alcoholic liquor is served.
The bill would define a drag show as a performance in which a performer sings, lip syncs, dances or otherwise performs for an audience while exhibiting a gender identity different from their gender assigned at birth using clothing, makeup or other physical markers.
LB371 would add a criminal penalty for an individual who brings a minor to a drag show that would result in a Class I misdemeanor charge, which carries a maximum sentence of one year in jail and a $1,000 fine.
Any business, establishment or nonprofit that violates the bill’s provisions would be fined $10,000 and an owner or officer of an entity that hosts a drag show and knowingly violates these provisions would face a Class I misdemeanor charge.
Finally, LB631, sponsored by Sen. Terrell McKinney of Omaha, would require the state Board of Parole to include one member who is a formerly incarcerated individual and one member with experience in restorative justice and reentry.
In addition, members would be considered to be in “neglect of duty” if they miss three board hearings in a calendar year and parole could not be denied based on an inmate’s lack of access to programming.
McKinney brought an amendment to the bill’s public hearing that, among other provisions, would provide a code of ethics and training requirements in cultural competency and implicit bias for board members.
