LB118 LB118
2021 2021
LEGISLATURE OF NEBRASKA
ONE HUNDRED SEVENTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 118
Introduced by Morfeld, 46.
Read first time January 07, 2021
Committee: Judiciary
1 A BILL FOR AN ACT relating to protection orders; to amend sections
2 28-311.09, 28-311.11, 42-924, and 42-924.02, Revised Statutes
3 Cumulative Supplement, 2020; to change the duration of harassment,
4 sexual assault, and domestic abuse protection orders from one year
5 to five years; to change requirements for affidavits; and to repeal
6 the original sections.
7 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 28-311.09, Revised Statutes Cumulative
2 Supplement, 2020, is amended to read:
3 28-311.09 (1) Any victim who has been harassed as defined by section
4 28-311.02 may file a petition and affidavit for a harassment protection
5 order as provided in subsection (3) of this section. Upon the filing of
6 such a petition and affidavit in support thereof, the court may issue a
7 harassment protection order without bond enjoining the respondent from
8 (a) imposing any restraint upon the person or liberty of the petitioner,
9 (b) harassing, threatening, assaulting, molesting, attacking, or
10 otherwise disturbing the peace of the petitioner, or (c) telephoning,
11 contacting, or otherwise communicating with the petitioner. The
12 harassment protection order shall specify to whom relief under this
13 section was granted.
14 (2) The petition for a harassment protection order shall state the
15 events and dates or approximate dates of acts constituting the alleged
16 harassment, including the most recent and most severe incident or
17 incidents.
18 (3) A petition for a harassment protection order shall be filed with
19 the clerk of the district court, and the proceeding may be heard by the
20 county court or the district court as provided in section 25-2740.
21 (4) A petition for a harassment protection order filed pursuant to
22 subsection (1) of this section may not be withdrawn except upon order of
23 the court. An order issued pursuant to subsection (1) of this section
24 shall specify that it is effective for a period of five years one year
25 unless otherwise dismissed or modified by the court. Any person, except
26 the petitioner, who knowingly violates an order issued pursuant to
27 subsection (1) of this section after service or notice as described in
28 subdivision (9)(b) of this section shall be guilty of a Class II
29 misdemeanor.
30 (5)(a) Fees to cover costs associated with the filing of a petition
31 for a harassment protection order or the issuance or service of a
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1 harassment protection order seeking only the relief provided by this
2 section shall not be charged, except that a court may assess such fees
3 and costs if the court finds, by clear and convincing evidence, that the
4 statements contained in the petition were false and that the harassment
5 protection order was sought in bad faith.
6 (b) A court may also assess costs associated with the filing of a
7 petition for a harassment protection order or the issuance or service of
8 a harassment protection order seeking only the relief provided by this
9 section against the respondent.
10 (6)(a) (6) The clerk of the district court shall make available
11 standard application and affidavit forms for a harassment protection
12 order with instructions for completion to be used by a petitioner.
13 Affidavit forms shall request all relevant information, including, but
14 not limited to: A description of the incidents that are the basis for the
15 application for a harassment protection order, including the most severe
16 incident, and the date or approximate date of such incidents. The clerk
17 and his or her employees shall not provide assistance in completing the
18 forms. The State Court Administrator shall adopt and promulgate the
19 standard application and affidavit forms provided for in this section as
20 well as the standard temporary ex parte and final harassment protection
21 order forms and provide a copy of such forms to all clerks of the
22 district courts in this state. These standard temporary ex parte and
23 final harassment protection order forms shall be the only such forms used
24 in this state.
25 (b) A petition and affidavit under this section are not required to
26 be signed and acknowledged before a notary public. A petition and
27 affidavit under this section shall include a written, self-authenticated
28 declaration under penalty of perjury in substantially the following form:
29 I declare under penalty of perjury that the foregoing is true and
30 correct.
31 ...........................
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1 (Printed name of the petitioner)
2 ...........................
3 (Signature of the petitioner)
4 ...........................
5 (Date signed)
6 (7) Any order issued under subsection (1) of this section may be
7 issued ex parte without notice to the respondent if it reasonably appears
8 from the specific facts shown by affidavit of the petitioner that
9 irreparable harm, loss, or damage will result before the matter can be
10 heard on notice. If the specific facts included in the affidavit (a) do
11 not show that the petitioner will suffer irreparable harm, loss, or
12 damage or (b) show that, for any other compelling reason, an ex parte
13 order should not be issued, the court may forthwith cause notice of the
14 application to be given to the respondent stating that he or she may show
15 cause, not more than fourteen days after service, why such order should
16 not be entered. Any notice provided to the respondent shall include
17 notification that a court may treat a petition for a harassment
18 protection order as a petition for a sexual assault protection order or a
19 domestic abuse protection order if it appears from the facts that such
20 other protection order is more appropriate and that the respondent shall
21 have an opportunity to show cause as to why such protection order should
22 not be entered. If such ex parte order is issued without notice to the
23 respondent, the court shall forthwith cause notice of the petition and
24 order and a form with which to request a show-cause hearing to be given
25 the respondent stating that, upon service on the respondent, the order
26 shall remain in effect for a period of five years one year unless the
27 respondent shows cause why the order should not remain in effect for a
28 period of five years one year. If the respondent wishes to appear and
29 show cause why the order should not remain in effect for a period of five
30 years one year, he or she shall affix his or her current address,
31 telephone number, and signature to the form and return it to the clerk of
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1 the district court within ten business days after service upon him or
2 her. Upon receipt of a timely request for a show-cause hearing, the court
3 shall immediately schedule a show-cause hearing to be held within thirty
4 days after the receipt of the request for a show-cause hearing and shall
5 notify the petitioner and respondent of the hearing date. If a petition
6 is dismissed without a hearing, it shall be dismissed without prejudice.
7 The petition and affidavit shall be deemed to have been offered into
8 evidence at any show-cause hearing. The petition and affidavit shall be
9 admitted into evidence unless specifically excluded by the court.
10 (8) A court may treat a petition for a harassment protection order
11 as a petition for a sexual assault protection order or a domestic abuse
12 protection order if it appears from the facts in the petition, affidavit,
13 and evidence presented at a show-cause hearing that such other protection
14 order is more appropriate and if:
15 (a) The court makes specific findings that such other order is more
16 appropriate; or
17 (b) The petitioner has requested the court to so treat the petition.
18 (9)(a) Upon the issuance of any temporary ex parte or final
19 harassment protection order, the clerk of the court shall forthwith
20 provide the petitioner, without charge, with two certified copies of such
21 order. The clerk of the court shall also forthwith provide the local
22 police department or local law enforcement agency and the local sheriff's
23 office, without charge, with one copy each of such order and one copy
24 each of the sheriff's return thereon. The clerk of the court shall also
25 forthwith provide a copy of the harassment protection order to the
26 sheriff's office in the county where the respondent may be personally
27 served together with instructions for service. Upon receipt of the order
28 and instructions for service, such sheriff's office shall forthwith serve
29 the harassment protection order upon the respondent and file its return
30 thereon with the clerk of the court which issued the harassment
31 protection order within fourteen days of the issuance of the harassment
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1 protection order. If any harassment protection order is dismissed or
2 modified by the court, the clerk of the court shall forthwith provide the
3 local police department or local law enforcement agency and the local
4 sheriff's office, without charge, with one copy each of the order of
5 dismissal or modification.
6 (b) If the respondent is present at a hearing convened pursuant to
7 this section and the harassment protection order is not dismissed, such
8 respondent shall be deemed to have notice by the court at such hearing
9 that the harassment protection order will be granted and remain in effect
10 and further service of such notice described in this subsection shall not
11 be required for purposes of prosecution under this section.
12 (c) A temporary ex parte harassment protection order shall be
13 affirmed and deemed the final protection order and service of the
14 temporary ex parte order shall be notice of the final protection order if
15 the respondent has been properly served with the ex parte order and:
16 (i) The respondent fails to request a show-cause hearing within ten
17 business days after service upon him or her and no hearing was requested
18 by the petitioner or upon the court's own motion;
19 (ii) The respondent has been properly served with notice of any
20 hearing requested by the respondent or petitioner or upon the court's own
21 motion and the respondent fails to appear at such hearing; or
22 (iii) The respondent has been properly served with notice of any
23 hearing requested by the respondent, the petitioner, or upon the court's
24 own motion and the protection order was not dismissed at the hearing.
25 (10) A peace officer may, with or without a warrant, arrest a person
26 if (a) the officer has probable cause to believe that the person has
27 committed a violation of a harassment protection order issued pursuant to
28 this section or a violation of a valid foreign harassment protection
29 order recognized pursuant to section 28-311.10 and (b) a petitioner under
30 this section provides the peace officer with a copy of a harassment
31 protection order or the peace officer determines that such an order
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1 exists after communicating with the local law enforcement agency or a
2 person protected under a valid foreign harassment protection order
3 recognized pursuant to section 28-311.10 provides the peace officer with
4 a copy of such order.
5 (11) A peace officer making an arrest pursuant to subsection (10) of
6 this section shall take such person into custody and take such person
7 before the county court or the court which issued the harassment
8 protection order within a reasonable time. At such time the court shall
9 establish the conditions of such person's release from custody, including
10 the determination of bond or recognizance, as the case may be. The court
11 shall issue an order directing that such person shall have no contact
12 with the alleged victim of the harassment.
13 (12) When provided by the petitioner, the court shall make
14 confidential numeric victim identification information, including social
15 security numbers and dates of birth, available to appropriate criminal
16 justice agencies engaged in protection order enforcement efforts. Such
17 agencies shall maintain the confidentiality of this information except
18 for entry into state and federal data bases for protection order
19 enforcement.
20 Sec. 2. Section 28-311.11, Revised Statutes Cumulative Supplement,
21 2020, is amended to read:
22 28-311.11 (1) Any victim of a sexual assault offense may file a
23 petition and affidavit for a sexual assault protection order as provided
24 in subsection (3) of this section. Upon the filing of such a petition and
25 affidavit in support thereof, the court may issue a sexual assault
26 protection order without bond enjoining the respondent from (a) imposing
27 any restraint upon the person or liberty of the petitioner, (b)
28 harassing, threatening, assaulting, molesting, attacking, or otherwise
29 disturbing the peace of the petitioner, or (c) telephoning, contacting,
30 or otherwise communicating with the petitioner. The sexual assault
31 protection order shall specify to whom relief under this section was
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1 granted.
2 (2) The petition for a sexual assault protection order shall state
3 the events and dates or approximate dates of acts constituting the sexual
4 assault offense, including the most recent and most severe incident or
5 incidents.
6 (3) A petition for a sexual assault protection order shall be filed
7 with the clerk of the district court and the proceeding may be heard by
8 the county court or the district court as provided in section 25-2740.
9 (4) A petition for a sexual assault protection order may not be
10 withdrawn except upon order of the court. A sexual assault protection
11 order shall specify that it is effective for a period of five years one
12 year unless renewed pursuant to subsection (12) of this section or
13 otherwise dismissed or modified by the court. Any person, except the
14 petitioner, who knowingly violates a sexual assault protection order
15 after service or notice as described in subdivision (9)(b) of this
16 section shall be guilty of a Class I misdemeanor, except that any person
17 convicted of violating such order who has a prior conviction for
18 violating a sexual assault protection order shall be guilty of a Class IV
19 felony.
20 (5)(a) Fees to cover costs associated with the filing of a petition
21 for issuance or renewal of a sexual assault protection order or the
22 issuance or service of a sexual assault protection order seeking only the
23 relief provided by this section shall not be charged, except that a court
24 may as