JudiciarySession Review 2021

Session Review: Judiciary

Police accountability, criminal justice reform and tenant housing security were among the measures considered by members of the Judiciary Committee this session.

Law enforcement

Lawmakers passed a comprehensive measure this year to address police certification and training.

Under LB51, sponsored by Omaha Sen. Steve Lathrop, the current 20 hours of annual continuing education required of all officers increases to 28 hours in 2022, and 32 hours in 2023 and subsequent years.

The bill also requires a psychological evaluation of any applicant who has not worked previously in law enforcement to determine fitness for duty. Applicants seeking entry-level law enforcement certification will be required to complete de-escalation training related to mental health behaviors, substance abuse, anti-bias, implicit bias and crisis communication.

An applicant seeking certification as a law enforcement officer will be required to testify under oath that their certification has never been revoked or suspended in another jurisdiction and they have not been separated from employment or disciplined for serious misconduct or a violation of their oath of office, code of ethics or statutory duties.

LB51 authorizes the appointment of noncertified conditional officers, pending acceptance into a formal law enforcement training program. These officers will discharge their duties under the direct supervision of a field training officer and be restricted from carrying a firearm.

A noncertified conditional officer may, only with direct supervision and guidance from a training officer, ride in a marked police cruiser, make arrests, interview suspects, victims or witnesses or carry out other law enforcement functions. The bill places a 16-week restriction on a noncertified conditional officer’s service.

The Nebraska Commission on Law Enforcement and Criminal Justice will prioritize smaller law enforcement agencies when awarding grants to offset the costs of accreditation and training.

LB51 also prohibits a police officer from intentionally using a chokehold on a person, except when deadly force is authorized. Similarly, an officer is prohibited from using a carotid restraint control hold unless the officer believes the individual would cause death or bodily injury to others or deadly force is authorized and the officer is trained in the restraint technique.

LB51 contains provisions of LB601, originally sponsored by Omaha Sen. Terrell McKinney. These provisions require the commission to post information on its public website regarding law enforcement officers who have voluntarily surrendered their certification or had it revoked, been convicted of or pleaded guilty or no contest to a felony or Class I misdemeanor or been found to have engaged in serious misconduct.

Finally, the bill requires the commission to develop accreditation standards for law enforcement agencies. Beginning Jan. 1, 2023, the commission will publish a list of unaccredited agencies annually. An unaccredited law enforcement agency will be ineligible to receive loans, grant funds or donations from the commission until it achieves accreditation.

LB51 passed on a 41-1 vote.


Senators passed a proposal this session intended to prohibit frivolous coronavirus-related lawsuits.

LB139, sponsored by Albion Sen. Tom Briese and passed 41-1, provides “safe harbor” from potential lawsuits alleging that a protected individual or organization — including health care providers, first responders, schools, restaurants, businesses, churches and senior care facilities — negligently exposed an individual to COVID-19 infection.

The bill prevents civil action as long as the protected individual or organization was acting in compliance with federal public health guidelines in place at the time of an alleged exposure.

LB139 includes provisions of LB53, originally sponsored by Lathrop, that implement a health care crisis protocol developed by the Nebraska Medical Emergency Operations Center.

The protocol establishes criteria for the triage and application of medical services and resources under extraordinary circumstances when the level of demand for services exceeds the available resources required to deliver the generally accepted standard of care.

Individuals awaiting trial for driving under the influence of alcohol and other drugs may enroll in a county-level 24/7 sobriety programs created by the sheriff or a designated entity under LB271, sponsored by Lincoln Sen. Adam Morfeld.

Under the bill, a person awaiting trial for driving under the influence may join a voluntary 24/7 sobriety program as a condition of bail and submit to twice-daily sobriety testing or use of a continuous alcohol monitoring device. Participants must agree not to consume alcohol or any drug not prescribed by a physician while enrolled in the program.

LB271 also authorizes a special motor vehicle operating permit for individuals enrolled in a 24/7 sobriety program. The permit is subject to court approval, a $45 issuance fee and at least 30 consecutive days in the program without sanction.

An individual will be ineligible for a permit if they are subject to an unrelated suspension, cancellation or revocation of their license or are under a required no-driving period. An individual with a 24/7 sobriety permit found to be driving under the influence or who refuses a chemical test is guilty of a Class III misdemeanor, punishable by up to three months imprisonment, a $500 fine or both.

LB271 passed on a 36-11 vote.

Lathrop sponsored LB386, passed 46-1, which increases Nebraska Supreme Court judges’ salaries for fiscal year 2021-22 and FY2022-23. The current salary is $187,035.

District, county, juvenile, appellate and workers’ compensation court judges’ salaries statutorily are based on a percentage of the Supreme Court judges’ salaries, so those judges also will receive a salary increase.

The bill sets the salary increase at 3 percent each fiscal year, reaching $192,647 in FY2021-22 and $198,426 in FY2022-23.

Forensic evidence would be collected upon arrest for felony charges under a bill that remains on select file.

LB496, sponsored by Omaha Sen. Robert Hilkemann, would require 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.

A DNA sample collected under the provisions of LB496 would not be tested or placed into the state’s database until a judicial determination of probable cause has been made or a hearing to determine probable cause has been waived.

If the charge against an individual is dismissed, the DNA sample would be destroyed immediately and notice would be sent to the individual. The bill’s provisions would not apply to juveniles.

The bill was amended to include provisions of Omaha Sen. John Cavanaugh’s LB316, which would clarify the date from which the one-year limitation for filing a motion for post-conviction relief would run and require a prisoner to file notice with the district court.

LB496 advanced from general file but was not scheduled for further debate this session.

Students with excessive school absences could receive additional resources under a bill that also remains on select file.

In 2010, the Legislature passed a bill requiring school districts to report cases to a county attorney when a student has been absent at least 20 days per year, whether the absences are excused or unexcused.

Under LB568, sponsored by Lincoln Sen. Patty Pansing Brooks, excessive absenteeism would no longer be an independent basis for a juvenile court action. It could, however, still be considered as a factor in other juvenile cases.

Under the bill as amended, juveniles could be referred to pretrial diversion programs and receive services to address their needs or those of their families. The bill would increase an appropriation to the Community-based Juvenile Services Aid Program from $5 million to $8.5 million to fund those expanded diversion services beginning in fiscal year 2023-24.

The bill also would create a new position within the Nebraska Crime Commission charged with developing regulations for diversion programs and assisting in the review of applications for grant funding.

Eligibility for grant funding would be extended to programs that serve families of juveniles who are experiencing excessive absenteeism, and allow aid not distributed to counties to be used for statewide programs to benefit individual counties and the state’s Indian tribes.

The bill advanced from general file but was not scheduled for second-round debate.

Correctional system

Lawmakers gave final approval this session to two proposals intended to ensure the due process rights of system-involved juveniles.

Kearney Sen. John Lowe sponsored LB273, passed 40-0, which allows the state Department of Health and Human Services to file an immediate change of placement motion to transfer a juvenile to a different facility during an emergency situation. A hearing on the motion must be held within 24 hours and can be conducted by telephone or videoconference.

An immediate change of placement may be filed in cases when a juvenile requires additional specialized care to address substance use or behavioral health needs. A qualifying emergency also can include a public health emergency, natural disaster or damage that renders a juvenile facility uninhabitable.

The court will order a temporary emergency change of placement if it determines that the change is appropriate and in the best interests of the juvenile. The court must notify a juvenile’s parent or guardian of the motion to transfer, including notice that the hearing will be held within 24 hours.

Additionally, the department is required to provide all parties of record with the evidence and witnesses to be presented during an emergency hearing. The juvenile will have an opportunity to consult with legal counsel and review the motion and all evidence before the hearing.

Under LB307, sponsored by Pansing Brooks, if a juvenile who is charged with a felony waives the right to legal counsel, the court is required to show affirmatively that the juvenile will not be removed from their home or detained outside of the home:
• between adjudication and disposition of the case;
• during any probationary period; or
• in response to an alleged probation violation.

The Nebraska Supreme Court will develop a process to ensure that a juvenile is provided with an opportunity to consult counsel in making the initial decision to waive counsel. An initial consultation with counsel is not required if the juvenile and their family already have conferred with private counsel before the hearing.

The bill includes provisions of LB354, originally sponsored by Omaha Sen. Steve Lathrop, which require a judge to consider a motion to transfer a criminal case to juvenile court within 30 days.

LB307 passed on a 29-6 vote.

Other measures

Senators passed an omnibus proposal intended to strengthen protections for landlords and tenants this session.

LB320, sponsored by Omaha Sen. John Cavanaugh, allows a tenant who is a victim of domestic violence to seek early release from a rental agreement under certain conditions.

To be released from a rental agreement, the tenant is required to provide their landlord with a copy of an active protective or restraining order or certification confirming domestic abuse from a qualified nonprofit organization that provides services to victims of domestic violence.

Additionally, the tenant must provide written notice, including the date of release — to be no sooner than 14 days and no later than 30 days — and the names of any household members also to be released.

The tenant is required to pay rent for the month in which the agreement was terminated, but is not liable for any rent, damages or fees incurred after the release date. The protections provided under LB320 are not available to a perpetrator of domestic violence.

The bill also includes provisions of several additional measures, including:
• LB45, sponsored by Lincoln Sen. Matt Hansen, which repeals a provision prohibiting judges from granting continuances in eviction proceedings unless extraordinary cause is shown and accrued back rent is paid;
• LB46, also sponsored by Hansen, which requires that summons in an eviction proceeding be conducted through methods commonly used in civil proceedings, unless otherwise authorized;
• LB246, sponsored by Bennington Sen. Wendy DeBoer, which requires that a civil action for possession against renters of mobile home lots follow the same procedures as those brought against renters of mobile homes, apartments, houses and other residences;
• LB268, sponsored by Omaha Sen. John McCollister, which requires landlords to provide written notice to each individual unit 24 hours before seeking entry;
• LB277, sponsored by Omaha Sen. Megan Hunt, which updates the Mobile Home Landlord and Tenant act to reflect changes made in 2019 to the Uniform Residential Landlord Tenant Act; and
• LB402, sponsored by DeBoer, which requires the Nebraska Supreme Court to submit a biannual report to the Legislature with information pertaining to eviction procedures.

LB320 passed on a 43-3 vote.

DeBoer sponsored LB497, which allows a health care provider to apply to the Nebraska Crime Victim’s Reparations Program for reimbursement of costs associated with treating or examining an individual’s injuries directly related to sexual assault or domestic abuse.

The reimbursement covers the portion of costs that are not covered by insurance or other sources and typically paid by the patient. Currently, a person receiving such services is billed and required to pay for the services before then applying for reimbursement.

The bill, passed 47-0, requires that a health care provider obtain a patient’s consent before applying for reimbursement. It also adds child abuse as an offense eligible for reimbursement.

Two bills were discussed by lawmakers this session but stalled during floor debate.

LB474, introduced by Lincoln Sen. Anna Wishart, would create a framework for legalizing medical cannabis use in Nebraska.

To qualify for a medical cannabis registration card under the bill, a person must receive written certification that medical cannabis would improve their condition from a health care practitioner with whom they have an established, bonafide relationship.

Registered medical cannabis users could purchase cannabis through regulated in-state dispensaries or home delivery from out-of-state suppliers. Patients would be limited to no more than 2.5 ounces of cannabis — or a greater amount approved by a medical necessity waiver — or cannabis infused products with no more than 2,000 milligrams of THC.

After eight hours of general file debate, Wishart offered a motion to invoke cloture, which failed 31-18. Thirty-three votes were needed. LB474 was not placed on the agenda again this session.

LB88, sponsored by Morfeld, would designate student-produced media as part of a public forum and extend the full right to exercise freedom of speech and press that is provided to professional members of the media to public high school and postsecondary student journalists, as well as their media advisers.

The bill would not protect any expression by a student journalist that is libelous or slanderous, constitutes an unwarranted invasion of privacy, violates state or federal law or incites students to engage in unlawful acts.

Student media advisers could face discipline under the bill but with guaranteed due process protections.

After four hours of second-round debate, Morfeld offered a motion to invoke cloture, which failed 30-17. LB88 remains on select file.

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