District 5

unanimous February 22, 2024

County Court Emergency Modified Court Operations for the Fifth Judicial District

A. Purpose: The purpose of this rule is to establish a procedure for determination of when Emergency Modified Court Operations will be implemented and what the modified operations may be.

B. Applicability: Emergency Modified Court Operations will be implemented upon a determination that normal operating procedures have been interrupted.

C. Implementation: Implementation of Emergency Modified Court Operations shall occur upon a determination by the Presiding Judges of the District and County Courts of the Fifth Judicial District.

1. Implementation shall occur upon mandate by Federal, State, or Local Government, or upon determination by the District and County Court Judges after consulting with local stakeholders.

2. Local stakeholders shall include, but not be limited to, the following: County Boards, Law Enforcement, County Attorneys, Public Defenders, Judges of the Fifth Judicial District, Health Departments, Department of Health and Human Services, Department of Probation, Corrections, Local Bar Associations, and County and District Court Clerks and Clerk Magistrates.

3. The Presiding Judges of the District and County Courts of the Fifth Judicial District shall be responsible for coordinating and facilitating communications with local stakeholders and for planning and implementing Emergency Modified Court Operations.

D. Notice: Notice of implementation of Emergency Modified Court Operations shall be provided by posting within a courthouse, media outlets, web sites, and any other means as determined by the Presiding Judges of the Fifth Judicial District.

E. Emergency Modified Court Operations:

1. Upon interruption of normal operating procedures by pandemic, natural disaster, or any other circumstance, the Courts of the Fifth Judicial District shall modify operations to ensure that all essential functions of the Courts continue.

2. Essential functions shall include, but are not limited to, the following:

a. Custodial criminal proceedings;

b. Protection order proceedings;

c. Receipt of all filings;

d. Criminal arrest and search warrants;

e. Juvenile intakes and detention hearings;

f. Juvenile protective custody hearings;

g. Receipt of financial payments;

h. Processing of appeals;

i. Habeas Corpus proceedings;

j. Hearings mandated by statute;

k. Emergency ex-parte custody orders and emergency placement orders;

l. Emergency protective custody proceedings; and

m. Any other matters deemed essential upon a determination by the Presiding Judges of the Fifth Judicial District.

3. The Presiding Judges of the Fifth Judicial District shall develop protocols and procedures to allow the courts to carry on essential functions based upon the cause and effect of the interruption. The protocols and procedures may include the following:

a. Use of virtual conferencing;

b. Relocation of courtrooms;

c. Alternative filing methods; and

d. Any other protocol or procedure deemed necessary by the Presiding Judges of the Fifth Judicial District to carry out the essential functions of the Courts of the Fifth Judicial District.

F. Notification: Notification of the protocols and procedures shall be provided by posting, e-mail communication, and any other method available to inform parties, attorneys, staff, and the public.

G. Return to Normal Court Operations: The Presiding Judges of the Fifth Judicial District shall be responsible for determining when the Courts shall return to normal operations. Notice of the return to normal operations shall be provided by posting, e-mail communication, and any other method available to inform parties, attorneys, staff, and the public.

Approved April 5, 2023.

jared.callahan… March 22, 2024

Rule 1. Definitions.

"Expanded media coverage" includes broadcasting, televising, electronic recording, or photographing of judicial proceedings for the purpose of gathering and disseminating news to the public.

"Good cause" for purposes of exclusion under this chapter means that coverage will have a substantial effect upon the objector which would be qualitatively different from the effect on members of the public in general and that such effect will be qualitatively different from coverage by other types of media.

"Judge" means the judge presiding in a trial court proceeding.

"Judicial proceedings" or "proceedings" shall include all public trials, hearings, or other proceedings in a trial court, for which expanded media is requested, except those specifically excluded by this rule.

"Media coordinator" shall mean the Public Information Officer of the Nebraska Supreme Court.

"Media representative" shall mean Nebraska radio or television stations licensed by the Federal Communications Commission. In the event photographs are requested by a Nebraska newspaper, photographers must be employed by a recognized Nebraska news outlet.

jared.callahan… March 22, 2024

Rule 2. General.

Broadcasting, televising, recording, and photographing will be permitted in the courtroom and adjacent areas during sessions of the court, including recesses between sessions, under the following conditions:

(A) Permission first shall have been granted expressly by the judge, who may prescribe such conditions of coverage as provided for in this rule.

(B) Expanded media coverage of a proceeding shall be permitted, unless the judge concludes, for reasons stated on the record, that under the circumstances of the particular proceeding such coverage would materially interfere with the rights of the parties to a fair trial.

(C) Expanded media coverage of a witness also may be refused by the judge upon objection and showing of good cause by the witness. In prosecutions for sexual abuse, or for charges in which sexual abuse is an included offense or an essential element of the charge, there shall be no expanded media coverage of the testimony of a victim/witness unless such witness consents. Further, an objection to coverage by a victim/witness in any other forcible felony prosecution, and by police informants, undercover agents, and relocated witnesses, shall enjoy a rebuttable presumption of validity. The presumption is rebutted by a showing that expanded media coverage will not have a substantial effect upon the particular individual objecting to such coverage which would be qualitatively different from the effect on members of the public in general and that such effect will not be qualitatively different from coverage by other types of media.

(D) Expanded media coverage is prohibited of any court proceeding which, under Nebraska law, is required to be held in private. In any event, no coverage shall be permitted in any juvenile, dissolution, adoption, child custody, or trade secret cases unless consent on the record is obtained from all parties (including a parent or guardian of a minor child).

(E) Expanded media coverage of jury selection is prohibited. Expanded media coverage of the return of the jury's verdict shall be permitted with permission of the judge. In all other circumstances, however, expanded media coverage of jurors is prohibited except to the extent it is unavoidable in the coverage of other trial participants or courtroom proceedings.

The policy of the rules is to prevent unnecessary or prolonged photographic or video coverage of individual jurors.

(F) There shall be no audio pickup or broadcast of conferences in a court proceeding between attorneys and their clients, between co-counsel or between counsel and the presiding judge held at the bench or in chambers.

(G) The quantity and types of equipment permitted in the courtroom shall be subject to the discretion of the judge within the guidelines as set out in these rules.

(H) Notwithstanding the provisions of any procedural or technical rules, the presiding judge, upon application of the media coordinator, may permit the use of equipment or techniques at variance therewith, provided the application for variance is included in the advance notice of coverage. All media representatives will direct communication through the media coordinator. Ruling upon such a variance application shall be in the sole discretion of the presiding judge. Such variances may be allowed by the presiding judge without advance application or notice if all counsel and parties consent to it.

(I) The judge may, as to any or all media participants, limit or terminate photographic or electronic media coverage at any time during the proceedings in the event the judge finds that rules have been violated or that substantial rights of individual participants or rights to a fair trial will be prejudiced by such manner of coverage if it is allowed to continue.

(J) The rights of photographic and electronic coverage provided for herein may be exercised only by persons or organizations which are part of the Nebraska news media.

(K) A judge may authorize expanded media coverage of ceremonial proceedings at variance with the procedural and technical rules as the judge sees fit.

jared.callahan… March 22, 2024

Rule 3. Procedural.

(A) Media Coordinator. The Public Information Officer of the Nebraska Supreme Court shall serve as the Media Coordinator. The judge and all interested members of the media shall work, whenever possible, with and through the media coordinator regarding all arrangements for expanded media coverage.

(B) Advance notice of coverage.

1. All requests by representatives of the news media to use photographic equipment or television cameras in the courtroom shall be made to the media coordinator. The media coordinator, in turn, shall inform counsel for all parties and the presiding judge at least 14 days in advance of the time the proceeding is scheduled to begin, but these times may be extended or reduced by court order. When the proceeding is not scheduled at least 14 days in advance, however, the media coordinator shall give notice of the request as soon as practicable after the proceeding is scheduled.

2. Notice shall be in writing and filed with the clerk magistrate of the county court. A copy of the notice shall be sent to the last known address of all counsel of record, parties appearing without counsel, and the judge expected to preside at the proceeding for which expanded media coverage is being requested.

(C) Objections. A party to a proceeding objecting to expanded media coverage shall file a written objection, stating the grounds therefore, at least three days before commencement of the proceeding. All witnesses shall be advised by counsel proposing to introduce their testimony of their right to object to expanded media coverage, and all objections by witnesses shall be filed prior to commencement of the proceeding. All objections shall be heard and determined by the judge prior to the commencement of the proceedings. The judge may rule on the basis of the written objection alone. In addition, the objecting party or witness, and all other parties, may be afforded an opportunity to present additional evidence by affidavit or by such other means as the judge directs. The judge in absolute discretion may permit presentation of such evidence by the media coordinator in the same manner.

Time for filing of objections may be extended or reduced in the discretion of the judge, who also, in appropriate circumstances, may extend the right of objection to persons not specifically

provided for in this rule.

jared.callahan… March 22, 2024

Rule 4. Technical.

(A) Equipment specifications. Equipment to be used by the media in courtrooms during judicial proceedings must be unobtrusive and must not produce distracting sound. In addition, such equipment must satisfy the following criteria, where applicable:

1. Still cameras. Still cameras and lenses must be unobtrusive, without distracting light or sound.

2. Television cameras and related equipment. Television cameras are to be electronic and, together with any related equipment to be located in the courtroom, must be unobtrusive in both size and appearance, without distracting sound or light. Television cameras are to be designed or modified so that participants in the judicial proceedings being covered are unable to determine when recording is occurring.

3. Audio equipment. Microphones, wiring, and audio recording equipment shall be unobtrusive and shall be of adequate technical quality to prevent interference with the judicial proceeding being covered. Any changes in existing audio systems must be approved by the presiding judge. No modifications of existing systems shall be made at public expense. Microphones for use of counsel and judges shall be equipped with off/on switches.

4. Advance approval. It shall be the duty of media personnel to demonstrate to the presiding judge reasonably in advance of the proceeding that the equipment sought to be utilized meets the criteria set forth in this rule. Failure to obtain advance judicial approval for equipment may preclude its use in the proceeding. All media equipment and personnel shall be in place at least fifteen minutes prior to the scheduled time of commencement of the proceeding.

(B) Lighting. Other than light sources already existing in the courtroom, no flashbulbs or other artificial light device of any kind shall be employed in the courtroom. With the concurrence of the presiding judge however, modifications may be made in light sources existing in the courtroom (e.g., higher wattage light bulbs), provided such modifications are installed and maintained without public expense.

(C) Equipment and pooling. The following limitations on the amount of equipment and number of photographic and broadcast media personnel in the courtroom shall apply:

1. Still photography. Not more than one still photographer, using not more than two camera bodies and two lenses, shall be permitted in the courtroom during a judicial proceeding at any one time.

2. Television. Not more than one television camera, operated by not more than one camera person, shall be permitted in the courtroom during a judicial proceeding. Where possible, recording and broadcasting equipment which is not a component part of a television camera shall be located outside of the courtroom.

3. Audio. Not more than one audio system shall be set up in the courtroom for broadcast coverage of a judicial proceeding. Audio pickup for broadcast coverage shall be accomplished from any existing audio system present in the courtroom, if such pickup would be technically suitable for broadcast. Where possible, electronic audio recording equipment and any operating personnel shall be located outside of the courtroom. Exceptions may be made by the presiding judge to accommodate the pre-existing audio broadcast role for this Judicial District.

4. Pooling. Where the above limitations on equipment and personnel make it necessary, the media shall be required to pool equipment and personnel. Pooling arrangements shall be the sole responsibility of the media coordinator and representative, and the presiding judge shall not be called upon to mediate any dispute as to the appropriate media representatives authorized to cover a particular judicial proceeding.

(D) Location of equipment and personnel. Equipment and operating personnel shall be located in, and coverage of the proceedings shall take place from, an area or areas within the courtroom designated by the presiding judge. The area or areas designated shall provide reasonable access to the proceeding to be covered.

(E) Movement during proceedings. Television cameras and audio equipment may be installed in or removed from the courtroom only when the court is not in session. In addition, such equipment shall at all times be operated from a fixed position. Still photographers and broadcast media personnel shall not move about the courtroom while proceedings are in session, nor shall they engage in any movement which attracts undue attention. Still photographers shall not assume body positions inappropriate for spectators.

(F) Decorum. All still photographers and broadcast media personnel shall be properly attired and shall maintain proper courtroom decorum at all times while covering a judicial proceeding.

jared.callahan… March 22, 2024

Fifth Judicial District County Court Indigent Defense Rule

PURPOSE. This rule is to establish a process for the appointment of private attorneys to represent indigent defendants as provided in Neb. Rev. State. §§ 29-3901 to 29-3908.
APPLICABILITY. This rule shall not apply to criminal proceedings in which the court appoints the Public Defender or the Nebraska Commission on Public Advocacy.
GENERAL.
Appointments of private attorneys shall be made on an impartial and equitable basis;
The appointments shall be distributed among the attorneys on a rotation system;
Cases shall be assigned to attorneys of sufficient experience, skill, and competence to render effective assistance of counsel to defendants;
Complex cases shall be assigned to attorneys with sufficient levels of experience and competence to provide adequate representation; and
Less experienced attorneys should be assigned cases which are within their capabilities, but should be given the opportunity to expand their experience under supervision.
COURT-APPOINTED ATTORNEY LIST.
The list for each county will be initially developed as follows: The attached questionnaire form will be distributed by the office of the presiding district judge to all attorneys in the Fifth Judicial District and to all attorneys whose names appear on the court-appointment list of each county within the district. Once the questionnaires are collected, a court-appointed attorney list for each county will then be compiled and distributed to each of the clerk magistrates and judges in the district. The list shall be effective once it is distributed.
Thereafter, each County Court shall maintain the court-appointed attorney list from which attorneys shall be appointed to represent indigent defendants.
Once the initial list is in effect, attorneys may contact the County Court in each county and request that he or she be placed on, or removed from, the court-appointed list. A request to be placed on the list shall be accompanied by a completed questionnaire form, which is attached to this rule.
The County Court shall maintain and update the list, and shall provide the District Court with a copy of the list annually on December 31 and whenever it is updated by the addition or removal of attorneys. In addition, the County Court shall provide the list maintained hereunder at the request of a District Judge of this District.
The County Court shall make the court-appointed list of attorneys available upon request.
METHOD OF SELECTION FROM COURT-APPOINTED LIST.
The Courts of this District will generally attempt to appoint attorneys from the court-appointed attorney list on a rotational basis, subject to the court’s sole discretion to make exceptions due to:
The nature and complexity of the case;
An attorney’s experience;
The nature and disposition of the defendant;
A language consideration;
A conflict of interest;
The availability of an attorney, taking into consideration an immediate need to address issues involved in the case;^[1]
Geographical considerations;^[2]
Prior representation of the parties; and
Other relevant factors that may be involved in a specific case.
If the Court, in its sole discretion, varies from the rotation basis, it may appoint any qualified attorney, whether or not the attorney is on the court-appointed attorney list.
REMOVAL AND REINSTATEMENT FROM APPOINTMENT LIST.
Judges will monitor attorney performance on a continuing basis to ensure the competency of attorneys on the list. An attorney may be removed from the appointment list by a majority vote of County and District Court Judges. In the event that an attorney is recommended by any judge for removal from the list, the presiding County and District Judges shall meet to discuss the matter.
If the presiding judges determine that any attorney should be under consideration for removal from the list, written notification will be given to the attorney indicating the concerns with his or her performance giving rise to consideration for removal, and will be given the opportunity to respond in writing or in person before the final decision is made.
Following this response, all County and District Judges shall vote on whether an attorney should be removed from the list.
An attorney who has been removed from the list may be considered for reinstatement by a majority vote of the judges, after the deficiencies contained in the notice have been resolved.
ADDITIONAL SCOPE AND APPLICATION.

These rules shall also apply to the appointment of private attorneys as counsel or Guardian ad Litem in juvenile, domestic relations, paternity, and child support matters, when such appointment is required by statute.

Approved February 19, 2015.

^[1] The court may appoint an attorney present in court when a defendant appears and wants to speak to an attorney immediately to discuss a resolution of the case. The court may also appoint an attorney who is known to be available on the next regularly scheduled court date.

^[2] The court may appoint an attorney who is in the closest geographical proximity to the court before considering the appointment of another attorney in order to avoid the costs of travel time for attorneys and mileage expenses; for the convenience of defendant in consulting with a local attorney; and for the convenience of the court in scheduling cases.

jared.callahan… March 22, 2024

Remote Hearings

Remote hearings may be conducted in a District or County Court of the Fifth Judicial District by virtual conferencing.

Virtual conferencing shall mean conducting, appearing in, or participating in a court proceeding by the use of video, electronic, or telephonic technology with contemporaneous interaction among the participants.

Virtual conferencing may be authorized in any court proceeding that does not involve live witness testimony at the discretion of a District or County Court Judge within his or her courtroom.

Virtual conferencing, consistent with the constitutional rights of the defendant, may be authorized in any criminal court proceeding that involves live witness testimony at the discretion of a District or County Court Judge within his or her courtroom, upon a finding of good cause.

Virtual conferencing may be authorized in any civil proceeding that involves live witness testimony at the discretion of a District or County Court Judge within his or her courtroom, upon a finding of good cause.

A request for virtual conferencing in any court proceeding shall be filed with the court at least forty-eight (48) hours prior to the scheduled hearing.

Any party intending to offer an exhibit in a proceeding authorized to be conducted by virtual conferencing shall deliver the exhibit to the appropriate court representative (Court Reporter, District Court Clerk, Court Bailiff, Clerk Magistrate, Courtroom Clerk, etc.) in paper form, at least forty-eight (48) hours prior to the scheduled hearing, to permit the pre-marking of the exhibit number by the court representative. The party intending to offer an exhibit in a proceeding authorized to be conducted by virtual conferencing shall provide a copy of the exhibit, as pre-marked by the court representative, to opposing counsel and self-represented litigants, at least twenty-four (24) hours prior to the scheduled hearing.

All parties authorized to participate in a proceeding by virtual conferencing shall contact the appropriate court representative (Court Reporter, District Court Clerk, Court Bailiff, Clerk Magistrate, Courtroom Clerk, etc.) at least twenty-four (24) hours prior to the scheduled hearing, to obtain instructions and an invitation to participate in the proceeding by virtual conferencing.

Supreme Court Rules and Local Rules of the Fifth District governing courtroom conduct, decorum, attendance, and attire shall apply to all court proceedings conducted by virtual conferencing.

Approved February 16, 2023.

jared.callahan… March 22, 2024