Session Review: Judiciary
Senators addressed a variety of judicial issues this session, including continued juvenile justice reform, child abuse penalties and changes to the state’s gaming laws.
Juvenile justice
A bill that expands and creates protocols for the state’s seven child advocacy centers was passed this session.
Under LB993, introduced by Omaha Sen. Brad Ashford, each county child advocacy center must have a location for conducting forensic interviews and medical evaluations for alleged child victims of abuse and neglect.
The bill also requires that each county have protocols to:
• outline mandatory reporting of child abuse;
• define the roles and responsibilities of law enforcement, child protective services and other response agencies; and
• ensure that coordination of these teams is occurring at all levels of the community response.
The increased services at the centers are estimated to cost $870,000.
The bill passed on a 48-0 vote.
Senators also passed a bill that promotes administrative collaboration at each of the state’s youth rehabilitation and treatment centers (YRTCs).
Currently, the state Department of Health and Human Services (DHHS), through the Office of Juvenile Services (OJS), oversees YRTCs in Kearney and Geneva.
LB972, introduced by Ashford, authorizes the Department of Correctional Services to provide training to OJS employees on the safety and security of youth living at YRTCs. OJS is required to submit an annual status report to the Legislature.
The bill passed 49-0.
Senators passed a bill that revises the state’s student truancy provisions.
In 2010, the Legislature passed a bill requiring school districts to report cases to a county attorney when a student has been absent 20 days or more per year, whether the absences are excused or unexcused.
LB933, introduced by Ashford this session, makes the 20-day report discretionary if all 20 absences are due to illness or otherwise have been excused. If a report is issued, the bill requires that the report indicate whether:
• the absences are due to documented illness or are otherwise excused;
• the school requests more time to work with the student before the county attorney intervenes; or
• the school has used all reasonable efforts to address the child’s absence from school without success and recommends intervention by the county attorney.
If further action is needed after the 20-day report, the county attorney, the parents and the school representative will meet at a location determined by the school.
The bill passed 44-0.
Criminal justice
A person will be disqualified from receiving a concealed carry permit for convictions, rather than criminal charges, under a bill passed by the Legislature this session.
Currently, the permit application of a person with any “violations of law” can be rejected on that basis alone. LB807, introduced by Omaha Sen. Scott Lautenbaugh, clarifies the statute to refer to convictions instead of violations of law.
The bill also clarifies language with regard to automatic revocation of permits. A permitholder convicted of a violation that occurred on property owned by the state or any political subdivision may have his or her permit revoked. If the violation occurred elsewhere, a permitholder may face revocation for any second or subsequent offense.
The bill includes provisions of LB538, introduced by Wilber Sen. Russ Karpisek, that require a firearm not used to commit a crime but taken by a law enforcement agency for safekeeping must be returned to its owner without a court order.
The bill passed on a 48-1 vote.
A bill passed this session makes the drug known as “bath salts” an illegal substance.
LB670 originally dealt with the Nebraska Juvenile Code but was amended to contain provisions introduced by Ogallala Sen. Ken Schilz as LB814.
The amended bill expands the Uniform Controlled Substances Act to ban the compounds that are used to make bath salts, which are chemically altered substances that have similar effects as methamphetamines, LSD and PCP. The product is manufactured and marketed as bath salts to skirt current drug laws.
The penalty for possessing bath salts is now a Class lV felony and manufacturing or trafficking the drug is a Class III felony.
The bill passed 47-0 and takes effect immediately.
Senators passed a bill this session that refines child abuse penalties.
LB799, introduced by Bellevue Sen. Abbie Cornett, makes child abuse resulting in serious bodily injury a Class IIIA felony and a Class III felony if the offense is committed negligently and results in the death of a child.
The bill clarifies that criminal negligence refers to a person who knew or should have known the danger involved and acted recklessly with respect to the safety or health of the child.
The bill passed 46-0.
LB310, introduced by Lincoln Sen. Amanda McGill, makes a credible threat a reason for granting a protection order. Violating a protection order—currently a Class II misdemeanor—will be a Class I misdemeanor. Subsequent violations will be considered a Class IV felony.
The bill contains provisions of two other bills.
LB1056, introduced by Omaha Sen. Pete Pirsch, deems that a respondent of a protection order has been served notice of the order if he or she is present at a hearing. If the respondent has been properly served with the ex parte order and fails to appear at the required hearing, the temporary order shall be deemed to be granted.
LB920, introduced by McGill, contained additional provisions allowing a petitioner to request a hearing, as well as federal requirements further preventing offenders from carrying firearms.
The bill passed on a vote of 42-0.
Under LB1145, also introduced by McGill, forcing or enticing a person into prostitution will be a Class IV felony for a first offense. If the victim is younger than 18, it will be a Class III felony for the first and subsequent offenses. Pandering currently is a misdemeanor offense in Nebraska.
The bill also establishes a commission on human trafficking and requires training for government officials. The National Human Trafficking Resource Center Hotline number will be posted in key establishments throughout the state.
The bill passed on a 45-0 vote.
LB677, introduced by Omaha Sen. Steve Lathrop, provides enhanced penalties for assault on health care professionals on duty at a hospital or a health clinic. A person convicted of such an assault will be guilty of a Class IIIA felony.
The bill passed on a 45-0 vote.
The governor vetoed a bill passed by the Legislature this session that would have created an offense for bringing prohibited items into a detention facility.
LB415, introduced by Cortland Sen. Norm Wallman, would have made it a Class I misdemeanor to bring prohibited items into a detention facility, provide them to an inmate or for an inmate to possess them.
The bill passed 45-0 and subsequently was vetoed. Wallman did not file a motion to reconsider the governor’s veto.
Courts
A bill aimed at restricting frivolous lawsuits filed by inmates at public expense was approved this session.
Under LB793, introduced by Lautenbaugh, an inmate who previously has filed three civil lawsuits deemed by a court to be frivolous is prohibited from filing a civil case at the public’s expense. An inmate may continue to file civil suits at his or her personal expense.
Exceptions to the rule include criminal appeals and cases in which an inmate is in danger of bodily harm. The “three-strike rule” will apply only to lawsuits filed after the law takes effect.
The bill passed on a 47-1 vote.
The statute of limitations for victims who were sexually assaulted as children increased under a bill passed this session.
LB612, introduced by Pirsch, would allow a childhood victim of sexual or attempted sexual assault to bring civil action for injuries suffered until he or she is 32 years old.
Under the bill, criminal prosecution of a defendant is not required to maintain a victim’s civil action.
The bill passed on a 49-0 vote.
Senators approved a bill that changes provisions relating to the collection of DNA samples from individuals convicted of a felony or other specified offense.
LB66, introduced by Cornett, specifies that probation officers are responsible for taking DNA samples from convicted felons placed on probation who do not enter into a prison, jail, detention facility or other institution.
In counties without a city of the metropolitan class, an individual not placed on probation who receives a fine or a penalty of time served will have a DNA sample collected by the county sheriff.
In addition, a county jail, detention facility or other institution that collects the sample will not be held financially responsible for the cost of the DNA sample kit if the court waives the cost of taking a DNA sample for any reason.
The bill passed on a 49-0 vote.
Judges within the state court system will see a 2 percent salary increase under a bill passed this session.
LB862, introduced by Lincoln Sen. Colby Coash, provides for an increase in salary commensurate with the increase proposed for state employees in fiscal year 2012-13.
The pay increase applies to state Supreme Court judges. All other state judges’ salaries are based on Supreme Court salaries.
The bill passed on a 48-0 vote.
Under LB722, also introduced by Coash, courts are allowed to deduct fines or costs owed by an offender from his or her cash bond as an alternative to ordering a lump sum payment of court costs.
The bill applies to all bonds except those encumbered by a valid lien, levy, execution or assignment to counsel of record or the person who posted the bond.
The bill passed 49-0.
Finally, LB790, introduced by Coash, transfers a judgeship in the 5TH Judicial District County Court—serving Boone, Butler, Colfax, Hamilton, Merrick, Nance, Platte, Polk, Saunders, Seward and York Counties—to the 3RD Judicial District County Court, which is located in Lancaster County.
The bill passed on a 38-8 vote and takes effect immediately.
Other bills
Senators declined to override a gubernatorial veto of a bill that would have authorized the state Racing Commission to license and regulate pari-mutuel wagering on historic horse races.
An historic horse race creates a pari-mutuel pool via instant racing terminals from wagers placed on a previously held race at a licensed racetrack.
Lawmakers had passed LB806, introduced by Lautenbaugh, on a vote of 26-18. The bill subsequently was vetoed by Gov. Dave Heineman.
The bill would have established a Historic Horse Racing Distribution Fund comprising taxes collected from the races and licensing fees, which would be $1,000 per machine.
Half of the fund’s proceeds would be credited to the Racing Commissions Cash Fund to be used for programs that facilitate equine therapy for youth and veterans and the other half would be directed to the Compulsive Gambler’s Assistance Fund.
Under the bill, historic horse racing would end if it were found by a court to allow any additional Class III gaming as defined in the federal Indian Gaming Regulatory Act.
Authority to license and regulate historic horse racing also would terminate if specific criteria were not met within four years of continuous use of instant racing terminals, including:
• construction of a race track enclosure in a county that contains a city of the primary class;
• a 25 percent increase in purses compared to 2011; and
• a 30 percent increase in the number of live horse racing days at tracks with instant racing terminals in counties other than Douglas, or a 40 percent increase in Douglas County.
In his veto message, the governor said LB806 represents an unconstitutional expansion of gambling in the state.
Heineman said that while the Nebraska Constitution permits betting on the results of horse races by the pari-mutuel method when conducted in a licensed racetrack enclosure, this exception to the general prohibition on gambling in the state does not apply to “slot-machine betting” on past races.
Senators voted 28-20 on the motion to override – two votes short of the number required – and a motion to reconsider the vote fell one vote short. The governor’s veto of LB806 was sustained.
Lawmakers passed a bill that provides an asset specific mechanism for the nonprobate transfer of land.
LB536, introduced by Lexington Sen. John Wightman, permits individuals with an interest in real property to enable the owner to pass the property to a beneficiary on the owner’s death directly and without probate.
Under the bill, a transferor must sign a document under oath and in the presence of two disinterested witnesses affirming that he or she is not a minor and is of sound mind and that the transfer is voluntary.
If the transferred property is agricultural land, a transferor may designate his or her interest in growing crops to the estate or to one or more of the designated beneficiaries. If a deed does not contain a crop designation, a transferor’s interest in the growing crops passes to the estate.
Finally, property deeds between a spouse and ex-spouse or between a parent and child are tax exempt under the bill.
LB536 passed on a 40-0 vote.
LB1113, introduced by Norfolk Sen. Mike Flood, provides definitions for various areas of authority that can be granted to a power of attorney agent and identifies certain areas of authority that can be granted because of the propensity of such authority to dissipate the principal’s property or alter the principal’s estate plan.
The bill also provides statutory forms to be used by lawyers and laypersons.
LB1113 passed 47-0.
