LB646 LB646
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LEGISLATURE OF NEBRASKA
ONE HUNDRED SIXTH LEGISLATURE
FIRST SESSION
LEGISLATIVE BILL 646
Introduced by Chambers, 11.
Read first time January 23, 2019
Committee: Judiciary
1 A BILL FOR AN ACT relating to bail; to amend sections 14-603, 23-1808,
2 24-519, 25-1023, 25-10,101, 25-2730, 27-1101, 28-311.09, 29-428,
3 29-506, 29-901.02, 29-901.03, 29-901.04, 29-901.06, 29-902.01,
4 29-903, 29-904, 29-908, 29-909, 29-1201, 29-1605, 29-1606, 29-1811,
5 33-117, 42-929, 43-255, 44-3707, and 60-1307, Reissue Revised
6 Statutes of Nebraska, and sections 25-1912, 28-311.11, 29-422,
7 29-901, 29-901.01, and 43-253, Revised Statutes Cumulative
8 Supplement, 2018; to eliminate cash bail, appearance bonds, and
9 related provisions; to change provisions relating to conditions of
10 release and pretrial release agencies; to harmonize provisions; to
11 repeal the original sections; and to outright repeal sections
12 29-901.05, 29-902, 29-905, 29-906, 29-907, 29-1105, 29-1106,
13 29-1107, 29-1108, 29-1109, 29-1110, and 60-686, Reissue Revised
14 Statutes of Nebraska.
15 Be it enacted by the people of the State of Nebraska,
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1 Section 1. Section 14-603, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 14-603 The chief of police shall be the principal ministerial
4 officer of the corporation. His or her jurisdiction and that of his or
5 her officers in the service of process in all criminal cases and in cases
6 for the violation of city ordinances shall be coextensive with the
7 county. The chief of police or his or her officers shall take bail in all
8 bailable cases for the appearance before the county court of persons
9 under arrest, but such bail shall be subject to the approval of the
10 county court.
11 Sec. 2. Section 23-1808, Reissue Revised Statutes of Nebraska, is
12 amended to read:
13 23-1808 If the evidence of any witness shall implicate any person as
14 the unlawful slayer of the person over whom the said inquisition shall be
15 held, the coroner shall recognize such witness, in such sum as the
16 coroner may think proper, to be and appear at the next term of the
17 district court for the said county, there to give evidence of the matter
18 in question and not depart without leave. Such recognizance shall be in
19 the same form, as nearly as practicable, and have the same effect as
20 recognizances taken in county court in cases of felony as such law
21 existed prior to the effective date of this act.
22 Sec. 3. Section 24-519, Reissue Revised Statutes of Nebraska, is
23 amended to read:
24 24-519 Clerk magistrates shall have authority to perform the
25 following duties:
26 (1) To conduct any proceeding which is based on a misdemeanor,
27 traffic infraction, violation of a city or village ordinance, or traffic
28 violation or infraction under the laws of this state, except the trial of
29 defendants who plead not guilty or for whom a not guilty plea has been
30 entered. Any penalty imposed under this subdivision shall be made
31 pursuant to a schedule established by the Supreme Court. Such schedule
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1 shall not provide for imprisonment;
2 (2) To conduct any proceeding for the issuance of warrants for
3 arrest or for searches and seizures when no county or district judge is
4 available in the county;
5 (3) To hear and determine any nonfelony proceeding for preliminary
6 examination to determine probable cause or the release on bail of persons
7 charged with bailable offenses as provided in sections 29-901 to 29-910;
8 (4) To determine temporary custody of a juvenile pursuant to
9 sections 43-251, 43-253, 43-254, and 43-258. An order of a clerk
10 magistrate shall be reviewed by the county judge upon the written request
11 of any party to the action within ten days of the order. Such order may
12 be affirmed, modified, or set aside by the county judge. The clerk
13 magistrate may also appoint a guardian ad litem as provided in section
14 43-272.01;
15 (5) To hear and determine noncontested proceedings relating to
16 decedents' estates, inheritance tax matters, and guardianship or
17 conservatorship, except that matters relating to the construction of
18 wills and trusts, the determination of title to real estate, and an
19 authorization of the sale or mortgaging of real estate shall not be heard
20 by a clerk magistrate; and
21 (6) To enter orders for hearings and trials, including orders for
22 garnishment and hearings on distribution of garnished funds.
23 Sec. 4. Section 25-1023, Reissue Revised Statutes of Nebraska, is
24 amended to read:
25 25-1023 The court shall make proper orders for the preservation of
26 the property during the pendency of the suit. It may direct the sale of
27 property when, because of its perishable nature or the costs of keeping
28 it, a sale will be for the benefits of the parties. In vacation, such
29 sale may be ordered by the judge of the court. The sale shall be public,
30 after such advertisement as is prescribed for the sale of like property
31 on execution, and shall be made in such manner, and upon such terms of
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1 credit, with security, as the court or judge, having regard to the
2 probable duration of the action, may direct. The proceeds, if collected
3 by the sheriff, with all the money received by him or her from
4 garnishees, shall be held and paid over by him or her under the same
5 requirement and responsibilities of himself or herself and sureties as
6 are provided in respect to money deposited in lieu of bail as such law
7 existed prior to the effective date of this act.
8 Sec. 5. Section 25-10,101, Reissue Revised Statutes of Nebraska, is
9 amended to read:
10 25-10,101 The defendant may, within twenty-four hours from the time
11 the undertaking referred to in section 25-10,100 is given by the
12 plaintiff, give notice to the sheriff that he or she excepts to the
13 sufficiency of the sureties. If he or she fails to do so, he or she must
14 be deemed to have waived all objections to them. When the defendant
15 excepts, the sureties must justify upon notice as in the case of bail on
16 arrest as such law existed prior to the effective date of this act. The
17 sheriff or other officer shall be responsible for the sufficiency of the
18 sureties, until the objection to them is waived as above provided or
19 until they justify. The property shall be delivered to the plaintiff when
20 the undertaking required by section 25-1098 has been given.
21 Sec. 6. Section 25-1912, Revised Statutes Cumulative Supplement,
22 2018, is amended to read:
23 25-1912 (1) The proceedings to obtain a reversal, vacation, or
24 modification of judgments and decrees rendered or final orders made by
25 the district court, including judgments and sentences upon convictions
26 for felonies and misdemeanors, shall be by filing in the office of the
27 clerk of the district court in which such judgment, decree, or final
28 order was rendered, within thirty days after the entry of such judgment,
29 decree, or final order, a notice of intention to prosecute such appeal
30 signed by the appellant or appellants or his, her, or their attorney of
31 record and, except as otherwise provided in sections 25-2301 to 25-2310
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1 and 29-2306 and subsection (4) of section 48-638, by depositing with the
2 clerk of the district court the docket fee required by section 33-103.
3 (2) A notice of appeal or docket fee filed or deposited after the
4 announcement of a decision or final order but before the entry of the
5 judgment, decree, or final order shall be treated as filed or deposited
6 after the entry of the judgment, decree, or final order and on the date
7 of entry.
8 (3) The running of the time for filing a notice of appeal shall be
9 terminated as to all parties (a) by a timely motion for a new trial under
10 section 25-1144.01, (b) by a timely motion to alter or amend a judgment
11 under section 25-1329, or (c) by a timely motion to set aside the verdict
12 or judgment under section 25-1315.02, and the full time for appeal fixed
13 in subsection (1) of this section commences to run from the entry of the
14 order ruling upon the motion filed pursuant to subdivision (a), (b), or
15 (c) of this subsection. When any motion terminating the time for filing a
16 notice of appeal is timely filed by any party, a notice of appeal filed
17 before the court announces its decision upon the terminating motion shall
18 have no effect, whether filed before or after the timely filing of the
19 terminating motion. A new notice of appeal shall be filed within the
20 prescribed time after the entry of the order ruling on the motion. No
21 additional fees are required for such filing. A notice of appeal filed
22 after the court announces its decision or order on the terminating motion
23 but before the entry of the order is treated as filed on the date of and
24 after the entry of the order.
25 (4) Except as otherwise provided in subsection (3) of this section,
26 sections 25-2301 to 25-2310 and 29-2306, and subsection (4) of section
27 48-638, an appeal shall be deemed perfected and the appellate court shall
28 have jurisdiction of the cause when such notice of appeal has been filed
29 and such docket fee deposited in the office of the clerk of the district
30 court. After being perfected no appeal shall be dismissed without notice,
31 and no step other than the filing of such notice of appeal and the
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1 depositing of such docket fee shall be deemed jurisdictional.
2 (5) The clerk of the district court shall forward such docket fee
3 and a certified copy of such notice of appeal to the Clerk of the Supreme
4 Court, and the Clerk of the Supreme Court shall file such appeal.
5 (6) Within thirty days after the date of filing of notice of appeal,
6 the clerk of the district court shall prepare and file with the Clerk of
7 the Supreme Court a transcript certified as a true copy of the
8 proceedings contained therein. The Supreme Court shall, by rule, specify
9 the method of ordering the transcript and the form and content of the
10 transcript. Neither the form nor substance of such transcript shall
11 affect the jurisdiction of the Court of Appeals or Supreme Court.
12 (7) Nothing in this section shall prevent any person from giving
13 supersedeas bond in the district court in the time and manner provided in
14 section 25-1916 nor affect the right of a defendant in a criminal case to
15 be released admitted to bail pending the review of such case in the Court
16 of Appeals or Supreme Court.
17 Sec. 7. Section 25-2730, Reissue Revised Statutes of Nebraska, is
18 amended to read:
19 25-2730 (1) In cases involving a money judgment or a judgment for
20 the possession of specified personal property, no appeal shall operate as
21 a supersedeas unless the appellant within thirty days after the entry of
22 the judgment deposits with the clerk of the county court a cash bond or
23 an undertaking with at least one good and sufficient surety approved by
24 the court. In cases involving a money judgment, the bond or undertaking
25 shall be in the amount of the judgment, costs, and estimated interest
26 pending appeal and conditioned that the appellant shall pay the judgment,
27 interest, and costs adjudged against him or her on appeal. In cases
28 involving a judgment for the possession of specified personal property,
29 the bond or undertaking shall be in an amount at least double the value
30 of the property and conditioned that the appellant shall pay all costs
31 and damages adjudged against him or her on appeal and deliver the
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1 property in accordance with the judgment on appeal.
2 (2) In appeals in cases of forcible entry and detainer, no appeal
3 shall operate as a supersedeas unless the party appealing shall deposit
4 an undertaking or cash bond in accordance with section 25-21,234.
5 (3) In appeals in criminal cases, the execution of judgment and
6 sentence, other than any sentence to a period of confinement, shall be
7 suspended during the appeal. Execution of a sentence to a period of
8 confinement shall be suspended only if (a) the county court, in its
9 discretion, allows the defendant to continue at liberty under the prior
10 recognizance or on conditional release bail or (b) the defendant enters
11 into a written recognizance to the State of Nebraska, with surety or
12 sureties approved by the county court or with a cash bond, filed with the
13 clerk of the county court. The condition of the recognizance shall be
14 that the defendant will prosecute the appeal without delay and abide and
15 perform the judgment and sentence of the district court. Upon the filing
16 of the notice of appeal, the county court shall fix the amount of the
17 recognizance or cash bond, which shall be a reasonable amount. The cash
18 bond shall be returned upon the fulfillment of the conditions of the
19 bond.
20 (4) In appeals in cases under the Uniform Residential Landlord and
21 Tenant Act, no appeal shall operate as a supersedeas of any writ of
22 restitution unless the defendant deposits an undertaking or cash bond in
23 accordance with section 76-1447.
24 (5) In all other cases, perfection of an appeal shall not stay the
25 proceedings.
26 (6) In any case, the district court, on motion after notice and
27 hearing and upon such terms as justice shall require, may stay any order
28 or judgment appealed from, order a renewal or additional surety of an
29 undertaking, or order the amount of the undertaking or recognizance
30 increased or decreased. The action of the district court shall be
31 certified by the clerk to the clerk of the county court.
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1 Sec. 8. Section 27-1101, Reissue Revised Statutes of Nebraska, is
2 amended to read:
3 27-1101 (1) The Nebraska Evidence Rules apply to the following
4 courts in the State of Nebraska: Supreme Court, Court of Appeals,
5 district courts, county courts, and juvenile courts. The word judge when
6 used in the rules means shall mean any judge of any court to which the
7 rules apply or other officer who is authorized by statute to hold any
8 hearing to which the rules apply.
9 (2) The rules apply generally to all civil and criminal proceedings,
10 including contempt proceedings except those in which the judge may act
11 summarily.
12 (3) The rules with respect to privileges apply at all stages of all
13 actions, cases, and proceedings.
14 (4) The rules, other than those with respect to privileges, do not
15 apply in the following situations:
16 (a) Proceedings before grand juries;
17 (b) Proceedings for extradition or rendition; preliminary
18 examinations or hearings in criminal cases; sentencing,