2009 Nebraska Unicameral Session Review: Judiciary Changes and Updates
Senators approved lethal injection as the state’s method of execution this session. Measures relating to court fees, violent crime and exonerated inmates also were passed by lawmakers.
Since the Nebraska Supreme Court ruled in 2008 that electrocution – previously the sole method of execution authorized by Nebraska law – violated the state constitutional prohibition against inflicting cruel and unusual punishment, the state was left with no legal method for carrying out the death penalty.
Criminal justice
LB36, proposed by Norfolk Sen. Mike Flood, changes the method of execution from electrocution to intravenous injection of a substance or substances in a quantity sufficient to cause death.
The bill requires the Department of Correctional Services to establish protocol for conducting lethal injection executions, including selection of the lethal substance or substances to be used.
LB36 passed on a 34-12 vote.
A second bill relating to the death penalty remains on general file.
LB306, sponsored by Omaha Sen. Brenda Council, would abolish the death penalty and replace it with a maximum sentence of life without possibility of parole and with an order of restitution.
Lawmakers indefinitely postponed a bill that would have changed sentencing requirements for minors.
LB307, also introduced by Council, would have removed life imprisonment as a possible sentence for people 18 years old and younger who are convicted of a Class I felony.
Under the bill, people who are between the ages of 16 and 18 at the time a Class 1 or Class 1A felony crime is committed would be sentenced to a minimum of 50 years. Those under 16 who commit a Class I or Class 1A felony crime would be sentenced to a minimum of 40 years.
Council offered the motion to indefinitely postpone the bill on general file and senators agreed without objection.
Lawmakers also approved a bill that provides a process for exonerated inmates to receive government compensation.
LB260, introduced by Tekamah Sen. Kent Rogert, creates the Nebraska Claims for Wrongful Conviction and Imprisonment Act.
The bill entitles wrongfully convicted persons to a maximum of $500,000. The original bill provided for $50,000 for each year of incarceration and an additional $50,000 for each year served on death row.
Claimants must have received a pardon or a vacated or reversed conviction to file a claim.
LB260 passed on a 36-9 vote.
Lawmakers passed a bill aimed at reducing violent crime and gang activity.
LB63, introduced by Omaha Sen. Mike Friend, enhances penalties for several existing firearm violations and violent crimes committed with weapons.
The bill increases the criminal penalties for possession of a handgun by a juvenile, illegal transfer of a firearm to a juvenile, possession of a firearm on school grounds, first and second degree assault, first and second degree assault on an officer, shooting at an occupied dwelling, felon in possession of a deadly weapon and use of a deadly weapon to commit a felony.
The bill contains a provision from LB35, introduced by Ashford, which creates a state Office of Violence Prevention. The office will include a director and advisory board appointed by the governor and will work with state and local law enforcement to implement programs to reduce violence.
The office also will identify programs and services for people previously convicted of violent crimes to help change their pattern of violent behavior and will be funded through a $350,000 transfer from the Community Corrections Uniform Data Analysis Cash Fund to the Violence Prevention Cash Fund.
Provisions from four other bills are included in LB63.
LB64, sponsored by Omaha Sen. Gwen Howard, requires the state Department of Education to develop a model dating violence policy by March 1, 2010, to assist school districts in developing policies, which districts must adopt by July 1, 2010.
Each school district will be required to publish and inform parents about its policy and provide staff training.
LB429, sponsored by Sen. Mark Christensen of Imperial, requires that any inmate allowed to participate in a work release program per an arrangement with a school district, educational service unit, community college, state college or university be supervised by an employee of the Department of Corrections while performing their job.
LB276, introduced by Omaha Sen. Jeremy Nordquist, provides stronger and more comprehensive penalties for graffiti and criminal defacement.
LB277, introduced by Omaha Sen. Heath Mello, grants judges the authority to order a defendant in a criminal defacement case to clean or repair the defaced property and keep the property clean of graffiti for up to one year. Additionally, the court could require the defendant to undergo counseling.
The bill passed on a 43-4 vote.
Lawmakers also passed a bill addressing organized crime, identify theft, forgery and deceptive advertising.
LB155, introduced by Rogert, prohibits the receipt of proceeds or interest in an enterprise or in real property through racketeering activity or the collection of an unlawful debt.
Violators will be guilty of a Class III felony, unless the racketeering activity is punishable as a Class I, IA or IB felony, in which case perpetrators will be guilty of a Class IB felony.
In addition, the bill strengthens penalties for subsequent felony offenses of criminal impersonation and adds to criminal impersonation offenses violations of providing false identification information for employment or to the courts or law enforcement.
Finally, the bill declares that a person engages in a deceptive trade practice if he or she advertises the price of a good or service in a way intended to mislead or deceive.
LB155 was passed on a 47-0 vote.
Firearms
Senators also approved changes to the state’s conceal and carry provisions this session.
LB430, introduced by Christensen, nullifies all city and village ordinances, permits and regulations regarding the ownership, possession and transportation of concealed handguns.
The bill includes provisions from LB145, introduced by Lincoln Sen. Bill Avery, which allows universities to prohibit firearms by expanding the definition of schools to include private postsecondary career schools, community colleges, public or private colleges, junior colleges, universities and any other educational institutions.
LB430 allows a place of worship to authorize its security personnel with concealed handgun permits to carry concealed handguns.
LB430 passed on a 45-3 vote.
Sex offenders
Lawmakers passed two bills relating to sex offenders this session.
LB97, introduced by Omaha Sen. Scott Lautenbaugh at the request of the state attorney general, creates the offense of unlawful use of the Internet by a registered sex offender and enhances the penalties for crimes relating to enticement of a child and the manufacture, possession and trafficking of child pornography.
Provisions from two other bills were amended into LB97.
LB15, introduced by Omaha Sen. Tom White, requires the addition of driver’s licenses, e-mail addresses, instant messaging screen names and other Internet communication identifiers to the database of registered sex offenders.
LB290, sponsored by Platte Center Sen. Arnie Stuthman, prohibits both employees and volunteers who have been convicted of any crime involving moral turpitude, or who have been charged with or indicted for a felony or crime of moral turpitude in a case that has not been resolved, from providing transportation to vulnerable Nebraskans or those under 19 years old through contracts with the state Department of Health and Human Services.
LB97 was passed on a 48-0 vote.
Another bill relating to sex offenders was LB285, introduced by Omaha Sen. Pete Pirsch, which expands information included in the registry and changes the verification process for that information. The bill also expands registry offenses and outlines changes in the duration of registration requirements, penalties for failure to register and public access to the information.
LB285 is not retroactive and the length of registration is based solely on the convicted offense, rather than on the offender’s risk of recidivism.
Senators passed LB285 on a 46-1 vote.
LB517, introduced by North Platte Sen. Tom Hansen, exempts Nebraska courts from making reasonable efforts to reunify a family in which a parent has been convicted of a felony sexual assault of the other parent. In such a case, courts also could terminate the felon’s parental rights.
The bill also applies to parents who subject any minor child to abandonment, torture, chronic abuse or sexual abuse.
LB517 was passed 49-0.
Animals
A bill that increases penalties for the owners of dangerous dogs also passed this session.
LB494, introduced by Omaha Sen. Beau McCoy, charges the owner of a dangerous dog with a Class I misdemeanor if the dog mutilates a person or causes the loss of a body part.
The bill defines a dangerous dog as one that, according to the records of an animal control authority, has:
* killed a human being;
* inflicted injury on a human being that required medical treatment;
* killed a domestic animal without provocation; or
* been previously determined to be a potentially dangerous dog by an animal control authority and the owner has received notice of such determination, after which the dog inflicts an injury on a human being that does not require medical treatment, injures a domestic animal or threatens the safety of humans or domestic animals.
A dog also is deemed dangerous if it causes injuries resulting in sutures, surgery or treatment for one or more broken bones.
The bill also includes provisions from LB71, introduced by Bellevue Sen. Abbie Cornett, which requires animal care workers who have reason to suspect cases of animal abandonment, neglect or abuse to report instances to the appropriate investigative entities. The measure provides immunity from liability for those who make reports.
LB494 passed on a 48-0 vote.
Lawmakers declined to advance LB83, introduced by Lincoln Sen. Amanda McGill. Under the bill, judges could issue orders directing the care, custody and control of household pets if a victim of domestic abuse provides sufficient evidence in a protection order request that a pet is being used as a part of the abuse.
Immigration
Senators also addressed illegal immigration this session, passing a bill that will require electronic verification of legal status for some employees and applicants for public benefits.
LB403, introduced by Wilber Sen. Russ Karpisek, will prohibit state agencies and political subdivisions from providing federal, state or local public benefits to individuals not lawfully present in the United States.
The bill includes provisions from LB34, introduced by Ashford, which will require public employers to verify the legal status of employees by using E-Verify, a federal database operated by the U.S. Department of Homeland Security and the Social Security Administration. Status checks will be conducted after hiring.
Provisions from LB335, introduced by Friend, also are included in the bill. The measure denies tax incentives to employers who do not electronically verify the legal presence of all employees working in Nebraska.
The bill passed on a 44-0 vote.
Courts
With the approval of an omnibus courts bill, senators addressed issues ranging from court fees to the expansion of the jury pool.
LB35, introduced by Omaha Sen. Brad Ashford, increases criminal docket fees from $1 to $2. The $290,000 generated by the increase will be directed to the Law Enforcement Training Center in Grand Island. The bill also includes provisions from several other bills.
LB669, introduced by Lincoln Sen. Colby Coash, creates a new Lancaster County District Court judgeship. Originally set to take effect this year, senators voted to delay the new judgeship until July 1, 2011.
LB40, introduced by Flood, makes technical changes to new trial procedures and the Uniform Credentialing Act.
LB46, LB47 and LB118, all introduced by Lexington Sen. John Wightman, make technical changes relating to probate law.
Four Ashford bills are included in LB35.
LB273 increases fees charged for county sheriffs to hand-deliver court documents. The measure raises five types of fees by 20 percent and allows the plaintiff to recover costs upon a voluntary payment after the action is filed but before a judgment is issued.
LB332 makes technical changes to county courts, especially in regards to adoption, foster care and CASA volunteers.
LB333 raises the Supreme Court Automation fee from $6 to $8 to fund the automation conversion of the Douglas County District Court and Juvenile Court to the statewide court computer system.
LB344 makes technical changes to the Civil Legal Services Program, which provides grants to civil legal service providers offering free services to low-income people.
LB305, introduced by Council, adds individuals who possess a state identification card to the source list used to create the master jury list. The master jury list was previously comprised of registered voters and registered drivers in the state of Nebraska.
LB352, introduced by Lautenbaugh, allows commercial couriers to deliver summons.
LB353 and LB354, both introduced by Lautenbaugh, make technical changes to civil and cross-appeal procedures.
LB433, introduced by Omaha Sen. Steve Lathrop, expands the district courts’ exclusive jurisdiction over misdemeanor cases that arise from the same incident as a charged felony.
The bill passed on a 46-1 vote.
Lawmakers also passed a bill that will provide more training and resources to Nebraska county attorneys who investigate deaths.
LB671, sponsored by Pirsch, grants the Nebraska County Attorney Standards Advisory Council authority to create standardized procedures for death investigations, create and distribute uniform checklists of best practices and establish a region-based state medical examiner system.
The bill also increases from four to six the number of county attorneys on the advisory council and allows one member to be a professor of law or forensic science.
Every person elected or appointed as a coroner in Nebraska will be required to complete initial death investigation training within one year and annual continuing education.
The bill passed on a 47-0 vote.
An updated version of the Interstate Compact for the Placement of Juveniles was adopted under a bill passed this session. The compact is an agreement between states to track and supervise juveniles on probation who move across state borders and regulate the return of out-of-state runaways.
LB237, introduced by Lathrop, expands the compact’s provisions to juveniles who are in other states as a result of adoption, foster care or relative care placement.
LB237 was approved 47-0.
A bill included in the budget package relates to judges’ salaries.
LB414, introduced by Louisville Sen. Dave Pankonin, increases state Supreme Court judges’ salaries by 2.5 percent annually for the next two years. Other judges also receive an increase because their salaries are statutorily tied to the salaries of Supreme Court judges.
The bill requires a monthly 1 percent increase in certain judges’ contribution rates from July 1, 2009, until July 1, 2014.
Also included is a $1 increase in court filing fees, which will be dedicated solely to funding the judges’ retirement system and serves as the employer contribution.
Other bills
Senators passed a bill requiring a physician performing fetal ultrasounds prior to an abortion to display the image in a manner viewable by the patient before the procedure is performed.
Lincoln Sen. Tony Fulton, sponsor of LB675, said physicians would be under no obligation to describe the images and patients would not be required to look at them.
The bill also requires the state Department of Health and Human Services to compile a comprehensive list of free ultrasound providers to be available to women considering an abortion. Ultrasounds must be administered by a registered nurse in order for a facility to be included on the list.
LB675 passed on a 40-5 vote.
Lawmakers also passed a bill that requires sports agents seeking to represent student athletes to register with the state.
LB292, also introduced by Lathrop, requires registration, certification and background checks of sports agents seeking to represent intercollegiate athletes. The process will be administered by the secretary of state.
The bill enables student athletes to opt out of an agreement within 14 days of signing. The director of the school’s athletic department must be notified when a student athlete enters into a contract with a sports agent.
LB292 passed on a 49-0 vote.
A bill passed this session adds a new drug to the state’s list of controlled substances.
LB123, introduced by Karpisek, creates penalties for the possession and use of salvia divinorum and salvinorin A. Salvia divinorum is a plant native to Mexico that, when smoked or chewed, produces an hallucinogenic effect much like LSD.
Possession would bring a penalty of up to five years in jail, while trafficking of the drug would bring a penalty of up to 20 years.
The bill passed 44-0.
Two other judiciary bills were amended into other bills this session.
LB356, sponsored by Fullerton Sen. Annette Dubas, appropriates $500,000 from the general fund in fiscal year 2009-10 and $1 million in FY2010-11 to support children’s behavioral health services. The bill was amended in to LB603, a package of bills intended to address issues raised by the state’s 2008 safe haven law.
A judiciary bill relating to child support was amended into LB288.
LB199, introduced by Stuthman, provides for the reporting of independent contractors under the New Hire Act, which aids in the identification of new workers with child support obligations.
Among other provisions, the bill requires a custodial parent to provide health care insurance or cash medical support for a child if the cost does not exceed 5 percent of the parent’s gross income.
