LB307 LB307
2021 2021
LEGISLATIVE BILL 307
Approved by the Governor May 24, 2021
Introduced by Pansing Brooks, 28; Cavanaugh, J., 9; DeBoer, 10; Lathrop, 12;
McKinney, 11; Vargas, 7; Williams, 36; Hansen, M., 26.
A BILL FOR AN ACT relating to juveniles; to amend sections 43-272 and 43-3102,
Reissue Revised Statutes of Nebraska, and section 29-1816, Revised Statutes Cumulative Supplement, 2020; to change provisions relating to
transfer of a case to juvenile court; to change provisions relating to
waivers of counsel; to require appointment of counsel; to provide a duty for the Supreme Court of Nebraska; to harmonize provisions; and to repeal the original sections.
Be it enacted by the people of the State of Nebraska,
Section 1. Section 29-1816, Revised Statutes Cumulative Supplement, 2020,
is amended to read:
29-1816 (1)(a) The accused may be arraigned in county court or district court:
(i) If the accused was eighteen years of age or older when the alleged offense was committed;
(ii) If the accused was younger than eighteen years of age and was fourteen years of age or older when an alleged offense punishable as a Class I,
IA, IB, IC, ID, II, or IIA felony was committed;
(iii) If the alleged offense is a traffic offense as defined in section
43-245; or
(iv) Until January 1, 2017, if the accused was seventeen years of age when an alleged offense described in subdivision (1) of section 43-247 was committed.
(b) Arraignment in county court or district court shall be by reading to
the accused the complaint or information, unless the reading is waived by the accused when the nature of the charge is made known to him or her. The accused shall then be asked whether he or she is guilty or not guilty of the offense charged. If the accused appears in person and by counsel and goes to trial before a jury regularly impaneled and sworn, he or she shall be deemed to have waived arraignment and a plea of not guilty shall be deemed to have been made.
(2) At the time of the arraignment, the county court or district court shall advise the accused, if the accused was younger than eighteen years of age at the time the alleged offense was committed, that the accused may move the county court or district court at any time not later than thirty days after arraignment, unless otherwise permitted by the court for good cause shown, to waive jurisdiction in such case to the juvenile court for further proceedings under the Nebraska Juvenile Code. This subsection does not apply if the case was transferred to county court or district court from juvenile court.
(3) For motions to transfer a case from the county court or district court to juvenile court:
(a) The county court or district court shall schedule a hearing on such motion within fifteen days. The customary rules of evidence shall not be
followed at such hearing. The accused shall be represented by an attorney. The criteria set forth in section 43-276 shall be considered at such hearing. After considering all the evidence and reasons presented by both parties, the case shall be transferred to juvenile court unless a sound basis exists for retaining the case in county court or district court; and
(b) The county court or district court shall make a decision on such motion within thirty days after the hearing and shall set forth findings for the reason for its decision. If the county court or district court determines that the accused should be transferred to the juvenile court, the complete file in the county court or district court shall be transferred to the juvenile court and the complaint, indictment, or information may be used in place of a petition therein. The county court or district court making a transfer shall order the accused to be taken forthwith to the juvenile court and designate where the juvenile shall be kept pending determination by the juvenile court.
The juvenile court shall then proceed as provided in the Nebraska Juvenile Code.
(c) An order granting or denying transfer of the case from county or
district court to juvenile court shall be considered a final order for the purposes of appeal. Upon entry of an order, any party may appeal to the Court of Appeals within ten days. Such review shall be advanced on the court docket without an extension of time granted to any party except upon a showing of
exceptional cause. Appeals shall be submitted, assigned, and scheduled for oral argument as soon as the appellee's brief is due to be filed. The Court of
Appeals shall conduct its review in an expedited manner and shall render the judgment and opinion, if any, as speedily as possible. During the pendency of
an appeal from an order transferring the case to juvenile court, the juvenile court may enter temporary orders in the best interests of the juvenile.
(4) When the accused was younger than eighteen years of age when an
alleged offense was committed, the county attorney or city attorney shall proceed under section 43-274.
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Sec. 2. Section 43-272, Reissue Revised Statutes of Nebraska, is amended to read:
43-272 (1)(a) In counties having a population of less than one hundred fifty thousand inhabitants: , when any
(i) When any juvenile court petition is filed alleging jurisdiction of a juvenile pursuant to subdivision (2) of section 43-247, counsel shall be
appointed for such juvenile; and
(ii) In any other instance in which a juvenile is shall be brought without counsel before a juvenile court, the court shall advise such juvenile and his or her parent or guardian of their right to retain counsel and shall inquire of
such juvenile and his or her parent or guardian as to whether they desire to
retain counsel. The court shall inform such juvenile and his or her parent or
guardian of such juvenile's right to counsel at county expense if none of them is able to afford counsel. If the juvenile or his or her parent or guardian desires to have counsel appointed for such juvenile, or the parent or guardian of such juvenile cannot be located, and the court ascertains that none of such persons are able to afford an attorney, the court shall forthwith appoint an
attorney to represent such juvenile for all proceedings before the juvenile court, except that if an attorney is appointed to represent such juvenile and the court later determines that a parent of such juvenile is able to afford an
attorney, the court shall order such parent or juvenile to pay for services of
the attorney to be collected in the same manner as provided by section 43-290.
If the parent willfully refuses to pay any such sum, the court may commit him or her for contempt, and execution may issue at the request of the appointed attorney or the county attorney or by the court without a request.
(b) In counties having a population of one hundred fifty thousand or more inhabitants, when any juvenile court petition is filed alleging jurisdiction of
a juvenile pursuant to subdivision (1), (2), (3)(b), or (4) of section 43-247,
counsel shall be appointed for such juvenile.
(c) The court shall inform any such juvenile described in this subsection and his or her parent or guardian of such juvenile's right to counsel at county expense if none of them is able to afford counsel. If the juvenile or his or
her parent or guardian desires to have counsel appointed for such juvenile, or the parent or guardian of such juvenile cannot be located, and the court ascertains that none of such persons are able to afford an attorney, the court shall forthwith appoint an attorney to represent such juvenile for all proceedings before the juvenile court, except that if an attorney is appointed to represent such juvenile and the court later determines that a parent of such juvenile is able to afford an attorney, the court shall order such parent or
juvenile to pay for services of the attorney to be collected in the same manner as provided by section 43-290. If the parent willfully refuses to pay any such sum, the court may commit him or her for contempt, and execution may issue at
the request of the appointed attorney or the county attorney or by the court without a request.
(2) The court, on its own motion or upon application of a party to the proceedings, shall appoint a guardian ad litem for the juvenile: (a) If the juvenile has no parent or guardian of his or her person or if the parent or
guardian of the juvenile cannot be located or cannot be brought before the court; (b) if the parent or guardian of the juvenile is excused from participation in all or any part of the proceedings; (c) if the parent is a juvenile or an incompetent; (d) if the parent is indifferent to the interests of the juvenile; or (e) in any proceeding pursuant to the provisions of
subdivision (3)(a) of section 43-247.
A guardian ad litem shall have the duty to protect the interests of the juvenile for whom he or she has been appointed guardian, and shall be deemed a parent of the juvenile as to those proceedings with respect to which his or her guardianship extends.
(3) The court shall appoint an attorney as guardian ad litem. A guardian ad litem shall act as his or her own counsel and as counsel for the juvenile,
unless there are special reasons in a particular case why the guardian ad litem or the juvenile or both should have separate counsel. In such cases the guardian ad litem shall have the right to counsel, except that the guardian ad
litem shall be entitled to appointed counsel without regard to his or her financial ability to retain counsel. Whether such appointed counsel shall be
provided at the cost of the county shall be determined as provided in
subsection (1) of this section.
(4) By July 1, 2015, the Supreme Court shall provide by court rule standards for guardians ad litem for juveniles in juvenile court proceedings.
(5) By July 1, 2017, the Supreme Court shall provide guidelines setting forth standards for all attorneys who practice in juvenile court.
Sec. 3. Section 43-3102, Reissue Revised Statutes of Nebraska, is amended to read:
43-3102 (1) In any court proceeding, any waiver of the right to counsel by
a juvenile shall be made in open court, shall be recorded, and shall be
confirmed in a writing signed by the juvenile.
(2) A court shall not accept a juvenile’s waiver of the right to counsel unless the waiver satisfies subsection (1) of this section and is an affirmative waiver that is made intelligently, voluntarily, and understandingly. In determining whether such waiver was made intelligently,
voluntarily, and understandingly, the court shall consider, among other things:
(a) The age, intelligence, and education of the juvenile, (b) the juvenile's emotional stability, and (c) the complexity of the proceedings.
(3) On or before July 1, 2022, the Supreme Court shall provide, by court
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rule, a process to ensure that a juvenile has consulted with counsel, and if
not, is provided the opportunity to consult with counsel prior to the juvenile exercising their right to waive their right to counsel.
(4) (3) The court shall ensure that a juvenile represented by an attorney consults with his or her attorney before any waiver of counsel.
(5) (4) No parent, guardian, custodian, or other person may waive the juvenile’s right to counsel.
(6) (5) A juvenile’s right to be represented by counsel may not be waived in the following circumstances:
(a) If the juvenile is under the age of fourteen;
(b) For a detention hearing;
(c) For any dispositional hearing where out-of-home placement is sought;
or
(d) If there is a motion to transfer the juvenile from juvenile court to
county court or district court.
Sec. 4. Original sections 43-272 and 43-3102, Reissue Revised Statutes of
Nebraska, and section 29-1816, Revised Statutes Cumulative Supplement, 2020,
are repealed.
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Statutes affected:
Introduced: 43-3102
Final Reading: 29-1816, 43-272, 43-3102
Slip Law: 29-1816, 43-272, 43-3102