Session Review: Judiciary
Changes to Nebraska’s criminal justice system, additional consumer protections and updates to the state’s safe haven law were among the topics considered by the Judiciary Committee this session.
Lawmakers passed a measure to overhaul Nebraska’s approach to parole, probation and reentry for formerly incarcerated individuals.
LB631, introduced by Sen. Terrell McKinney of Omaha, makes changes to the Board of Parole intended to strengthen accountability. Under the bill, board members must receive initial and ongoing training on ethics, cultural competency, implicit bias and the board’s powers and duties.
A parole board member who misses 12 full days of hearings in a calendar year will be considered in neglect of duty unless the absence is due to circumstances beyond the member’s control. A board member found to be in neglect of duty will be removed from the board.
In addition, the bill prohibits denial of parole for a committed offender solely because the state Department of Correctional Services delayed or did not offer necessary programming due to operational issues, including staffing shortages, maintenance issues or lack of funding.
The measure includes provisions of Omaha Sen. Justin Wayne’s LB348, which create the Community Work Release and Reentry Centers Act and enable the Division of Parole Supervision and the state Department of Correctional Services to contract with private providers to establish work release and reentry centers throughout the state.
Responsibility for certain reentry programs and services is transferred from the department to the Board of Parole under LB631, with the goal of providing work release opportunities, vocational training, education, programming and behavioral and mental health treatment prior to full parole.
The measure also creates the Reentry Continuity Advisory Board to identify areas for collaboration on reentry issues. Among other members, the advisory board will include representatives of the department and the Board of Parole, as well as a formerly incarcerated individual, a victims’ rights representative and individuals with expertise in public policy, mental and behavioral health and restorative justice.
The bill contains provisions of the following measures:
• LB334, introduced by Omaha Sen. Mike McDonnell, which creates minimum standards for reentry housing facilities throughout Nebraska;
• LB922, sponsored by McKinney, which prohibits a state agency or political subdivision from excluding an individual from consideration for a program grant solely because he or she currently is or previously was on probation or parole;
• LB1126, introduced by Lincoln Sen. Carolyn Bosn, which creates a career readiness pilot program to assist justice-involved individuals in obtaining the National Career Readiness Certificate; and
• LB1145, also sponsored by Bosn, which transfers the Division of Parole Supervision to the state Department of Correctional Services.
LB631 passed on a 39-4 vote.
Current state law allows for the surrendering of infants 30 days old or younger in person at a hospital.
LB876, introduced by Bellevue Sen. Rick Holdcroft, raises the age to 90 days and allows parents or individuals acting on a parent’s behalf to surrender physical custody of infants to an emergency care provider or at a fire or police station staffed 24 hours a day. Under the bill, no individual can be prosecuted solely for surrendering a newborn.
The bill appropriates $65,000 to the state Department of Health and Human Services in fiscal year 2024-25 and $10,000 in FY2025-26 to develop, implement and maintain a public information program regarding the bill’s provisions.
LB876 passed on a 47-0 vote.
Courts
LB253, introduced by Sen. Tom Brewer of Gordon and passed 44-0, establishes a veteran justice program in Nebraska. The program, to be created by the state probation administrator, will be available to active-duty military personnel and veterans who have committed a qualifying offense and request that a court defer entry of judgment of conviction pending completion of a case plan.
The program will be available in every district and county court and will apply to crimes committed after July 1, 2025. The program is prohibited from interfering with the operation of any existing problem-solving court.
Veterans are eligible to participate in the program if they can demonstrate that a condition from military service contributed to a qualifying offense. Offenses that exclude participation include those that are not probation eligible, registerable sex offenses, a third or subsequent charge of driving under the influence or an offense that results in the death of another person.
The program requires evidence-based treatment tailored to challenges arising from military service, including PTSD and traumatic brain injury. If a veteran is determined eligible, the court is required to notify the victim of the alleged offense and the state court administrator is required to track outcomes for veterans who participate and submit an annual report to the Judiciary Committee.
LB1288, introduced by Lincoln Sen. Jane Raybould, requires state and local authorities to recognize hold orders, commitment orders and emergency protective custody orders issued by tribal courts for tribal residents of Indian country, as defined by federal law, beginning Oct. 1.
The bill also allows for transportation of persons civilly committed under tribal law and requires reimbursement of treatment and transportation costs by the tribe. Tribes will be notified of the discharge or transfer of an individual who is subject to the bill’s provisions.
The measure also includes provisions of LB923, sponsored by McKinney, which add a tribal enrollment card as a valid form of proof of identification and age for the purchase of alcohol and for an application for a handgun transfer certificate.
LB1288 passed on a 30-8 vote.
Gov. Jim Pillen vetoed a measure that would have allowed political subdivisions to be sued for harm caused to a child by sexual or other abuse under certain circumstances. LB25, introduced by Wayne, would have allowed civil claims related to the abuse under the Political Subdivisions Tort Claims Act.
Under the bill, claims could have been filed if the harm done was a “proximate result” of a political subdivision’s failure to exercise reasonable control over an employee or failure to protect a person in their care, custody or control from harm by a non-employee.
LB25 passed on a 28-17 vote on the last day of the legislative session. In his veto message, the governor said the measure was “overbroad” and would unfairly burden Nebraska taxpayers.
LB184, introduced by Omaha Sen. John Cavanaugh, prohibits statements made by child defendants to mental health professionals during the hearing process for a motion to transfer a case from county or district court to juvenile court from being used against them in other civil or criminal proceedings. Such statements can be used as evidence in certain other circumstances.
The bill passed on a 42-0 vote.
Penalties
A bill that would have provided legal immunity to public and behavioral health programs, pharmacies and employees from drug paraphernalia offenses when implementing or participating in a program that provides safe use and disposal of syringes was vetoed by the governor.
LB307, introduced by Sen. Megan Hunt of Omaha, would have permitted political subdivisions to voluntarily establish syringe services programs. SSPs would have been required to satisfy minimum requirements, such as providing information on naloxone and referrals for mental health and other social services.
Additionally, approved programs would not have been permitted to operate within 500 feet of a child care program, school or youth center or a public library, community center or swimming pool.
Lawmakers passed LB307 on a 30-7 vote. The bill subsequently was vetoed by Pillen, who said in his veto message that SSPs are not a proven remedy to reduce drug use. An attempt to override the veto failed on a 27-20 vote. Thirty votes were needed.
LB137, introduced by Bosn, advanced to select file but was not scheduled for second-round debate. The bill would have enhanced penalties for certain charges related to manufacturing or delivering controlled substances when doing so results in death or serious bodily injury.
The penalty would have been increased to the next higher penalty classification, not to exceed a Class IB felony. A Class IB felony carries a penalty of 20 years to life imprisonment.
A bill that aimed to change certain criminal protections for educators and library staff failed to advance from general file after an unsuccessful motion to end debate.
Under current law, it is a Class I misdemeanor to prepare, distribute, order, produce, exhibit or promote obscene material or possess such material with the intent to do so. A Class I misdemeanor carries a maximum penalty of a $1,000 fine or one year in jail.
State law also provides an affirmative defense for teachers and librarians if charged with possession, distribution or exhibition of obscene material to a minor if the individual is employed at an “established and recognized educational institution” and engaged in educational activity. LB441, introduced by Thurston Sen. Joni Albrecht, would have narrowed that provision to apply only to employees of postsecondary educational institutions.
After eight hours of first-round debate, Albrecht filed a cloture motion that failed 30-17. Thirty-three votes were needed.
A measure that would have expanded the offense of obstructing a peace officer to include certain audio or visual recording did not advance from committee this session. Under LB1185, introduced by Kearney Sen. John Lowe, an individual who records audio or video of a peace officer engaged in their duties would have been required to remain at least 10 feet away from the officer while recording, unless they are the person with whom the officer is actively engaging.
Consumer protections
Expanding consumer protections was the focus of several proposals advanced by the committee.
LB1092, introduced by Glenvil Sen. Dave Murman and passed 35-3, adopts the Online Age Verification Liability Act. The bill prohibits commercial entities from knowingly publishing or distributing material harmful to minors online by requiring them to use a reasonable age verification method to ensure that anyone attempting to access such material is at least 18 years old.
The age verification requirement applies only if a substantial portion of the website’s content, defined as one-third or more, meets the bill’s definition of being harmful to minors.
Authorized age verification methods include digitized identification cards, third-party age-verification services or methods that rely on public or private transactional data. Under the bill, a commercial entity or third party that performs an age verification is prohibited from retaining a person’s identifying information after access to the material has been granted.
LB1092 does not apply to any legitimate news-gathering organization or broadcaster, and internet providers will not be held liable if a minor accesses explicit content due to an entity’s failure to implement an age verification method.
Finally, the measure allows individuals, parents or guardians harmed by an entity that violates the act’s provisions to pursue a lawsuit and potentially recover damages.
LB934, introduced by Bosn, authorizes the state attorney general to bring a trial by jury under the Consumer Protection Act or the Uniform Deceptive Trade Practices Act. A defendant also may demand a jury trial for claims brought under either act.
Under the bill, the attorney general may freeze assets of businesses or business owners suspected of engaging in deceptive practices with reasonable cause.
LB934 also includes provisions of Omaha Sen. Christy Armendariz’s LB1096, which expand the Uniform Deceptive Trade Practices Act to include the creation, distribution, monetization or promotion of sexually explicit conduct, obscene material or material that is harmful to a minor.
LB934 passed on a 46-0 vote and took effect immediately.
Law enforcement
Under LB870, introduced by Omaha Sen. Machaela Cavanaugh, individuals who have undergone a sexual assault forensic examination can request law enforcement to preserve their forensic evidence for an additional 20 years.
The bill requires law enforcement to notify an individual of the intended destruction or disposal of such evidence no later than 60 days before the end of the statutorily required retention period.
A law enforcement agency is not required to provide such notice for forensic evidence that was provided anonymously. Under the bill, which passed 47-0, an individual also may request to be informed when there is a status change in their case.
LB894, introduced by Sumner Sen. Teresa Ibach, requires county sheriff candidates to possess a diploma issued by the Nebraska Commission on Law Enforcement and Criminal Justice before running for office.
The measure also requires newly elected and appointed county sheriffs to obtain certification within eight months of taking office. County sheriffs elected to office before July 19, 1980, are exempt from the bill’s provisions.
LB894 passed on a 44-0 vote.
Other measures
Introduced by Lincoln Sen. Danielle Conrad, LB1195 makes several updates to Nebraska law governing civil practice and procedure and contains provisions of the following bills:
● LB832, introduced by Bellevue Sen. Carol Blood, which authorizes the governor to accept full or partial cession or retrocession of federal juvenile jurisdiction on behalf of the state when offered by the appropriate federal authority;
● LB902, sponsored by Bennington Sen. Wendy DeBoer, which prohibits an assisted living facility from requiring a third-party financial guarantee as a condition of admission, expedited admission or continued stay unless the third-party has legal access to a resident’s income;
● LB1220, introduced by Bosn, which updates property law regarding personal representatives, small estate affidavits, payments and transfers to minors and the roles of trustees and conservators;
● LB1265, sponsored by Conrad, which requires the Commission on Public Advocacy to establish eligibility criteria and guidelines for service providers seeking funds from the Legal Aid and Services Fund and clarifies that grants should be awarded only to legal service providers offering direct legal representation; and
● LB1268, also introduced by Conrad, which raises the homestead exemption from $60,000 to $120,000 regarding judgment liens and forced sale.
The bill passed on a 45-0 vote.
LB175, introduced by Lincoln Sen. George Dungan, failed to advance from general file after an unsuccessful motion to end debate.
Under the bill, tenants could have received clean slate relief — or the automatic sealing of the court record — if a trial court issued an order dismissing an eviction proceeding against them. It also would have created a process for tenants to seek clean slate relief under certain circumstances, including instances when an eviction was initiated but not carried out or was later reversed or vacated.
Dungan filed a cloture motion after eight hours of debate, which failed on a 30-16 vote.
Ralston Sen. Merv Riepe introduced LB1109, which would have allowed women to receive an abortion at up to 20 weeks of pregnancy if the fetus has a fatal fetal anomaly. The bill also would have repealed criminal penalties for intentionally or recklessly performing an abortion in violation of state law, which currently is a Class IV offense.
LB1109 did not advance from committee.
