Rules of the District Court for the Third Judicial District
(Effective September 29, 1995; last amended September 23, 2015)
(Since November 1999)
November 29, 2000, Amendments
Appendix p.1 Amended with renumbering on p.2
Appendix p. 4 Amended
Appendix p. 10 Amended
Appendix pp. 14 - 23 Added
September 5, 2001, Amendment
Add Rule 3-2.F
January 9, 2003, Amendment
Rule 3-2 Amended
Rule 3-6 Amended
Rule 3-7 Amended
Rule 3-11 Amended
Appendix p. 13 Trial Notice Amended
June 2, 2004, Amendment
Add Rule 3-2.H
Rule 3-8 Typographical error corrected
Rule 3-9.B Extraneous language deleted
Rule 3-9.C Policy requiring parenting classes in certain situations made permanent
Rule 3-9.E Permitting exceptions to Property Statement requirement
Rule 3-9.G Added new section and the original 3-9.G is moved to 3-9.H
Rule 3-12 Moved to Rule 3-14 and Procedures for fee applications by Guardians ad litem are added
Rule 3-13 Deleted
Rule 3-15 Moved to Rule 3-13 and temporary rules previously contained in the Appendix are made a part of the Rules. Language in this Rule has been amended to reflect that the temporary policy is now permanently adopted.
November 2006 Amendment
Rule 3-2.E Delete
Rule 3-2.F through Rule 3-2.H are renumbered to 3-2.E through 3-2.G
Rule 3-2.H Add
Rule 3-9.E(2)(b) Delete reference to Wilson v. Wilson
Rule 3-9 final paragraph Insert limitation on adding to witness list
Exhibit A Insert Warning not to use account numbers
Joint Property Statement Insert Warning not to use account numbers and change references to Plaintiff and Defendant
Social Security/Gender filing Add
January 2008 Amendment
Rule 3-15 Added
Attachment D Add birthdates for children
June 2010 Amendment
Rule 3-9 Amended
Rule 3-13 Amended
Rule 3-15 Amended
Rule 3-16 New rule re file retention
Rule 3-17 New rule re detainer cases
Appendix-Table of Forms Amended
Form 1 Form number added
Form 2 Form number added
Form 3-Parenting Time Amended
Form 4 Form number added
Form 5 Form number added
Form 6 Form number added
Form 7 New form re Parenting Act compliance
September 2010 Amendments
Rule 3-2 Amended
Rule 3-15 Amended
Attachment D Removed
March 2011 Amendments
Table of Contents Added (not included in online version)
Rule 3-9 Amended
Form 7 Amended
Form 8 Added
June 2013 Amendments
Rule 3-9 Amended
Rule 3-13 Amended
Form 7 Deleted
Form 8 Renumbered as Form 7
Attachment A Deleted
Attachment B Deleted
Attachment C Re-lettered as Attachment A
November 2014 Amendments
Rule 3-2 Amended
Rule 3-11 Amended
Rule 3-13.001 Added
Rule 3-15 Amended
These rules for the District Court of the Third Judicial District (the court) shall become effective upon approval by the Supreme Court and publication in the Nebraska Advance Sheets and shall supplement the Uniform District Court Rules of Practice and Procedure adopted by the Supreme Court.
Approved effective September 29, 1995.
There shall be one term of court, commencing on January 1 and ending on December 31 of each calendar year. No order shall be required to either open or close any term of court.
Approved effective September 29, 1995; amended December 23, 1999.
A. Except as otherwise provided by law, pretrial and posttrial motions or similar filings in which a hearing is requested shall be in writing and filed with the Clerk of the District Court (the Clerk) not less than 5 days prior to hearing, except by permission of the court.
B. Counsel at the time of making said filing shall obtain a date for hearing thereon from the judge to whom the case is assigned or the judge's bailiff and file a notice of hearing with the filing. Unless approved by the judge, a hearing date must be obtained for each motion, even if motions in the same case are already scheduled.
C. Notice of said hearing shall be mailed or personally delivered to opposing counsel or party, if not represented by counsel, three full days prior to said hearing. The use of ordinary mail shall constitute sufficient compliance with this Rule, except as may be otherwise specifically required by statute or rule of the Supreme Court.
D. When the court is acting as an appellate court, a motion to dismiss for lack of jurisdiction may be filed at any time after an appeal has been docketed.
E. The inclusion of abusive or profane language in any petition or other pleading shall be considered by the court as "malicious" and result in the striking of such pleading, together with other sanctions which may include the denial or revocation of in forma pauperis status in the case and dismissal of the case.
F. If a party files a motion under Rule 12 of the Nebraska Rules of Pleading in Civil Actions intended to secure final disposition of the case without a trial, and the motion will require the admission of evidence beyond the pleadings, the moving party shall notify the opposing party of this intention and the parties shall follow the procedures applicable to motions for summary judgment set for in statute and these Rules.
G. The margin at the bottom of the first page of any pleading or other document filed with the Clerk of the District Court shall be at least 2 ¼ inches. This area is reserved for court use to permit affixing a filing stamp, bar code, exhibit identification markings and other official uses. No image, printing or marking of any nature may appear within the bottom margin except as made or authorized by the court or the court clerk.
H. Accompanying and separate and distinct from each decree of dissolution of marriage, order of paternity, or other child support order or order of modification of the same shall be an accompanying document in the format provided in Neb. Ct. R. § 6-1521(B) at Appendix 3, which shall contain necessary social security numbers, gender, and birthdates of each party and any minor child affected by the order. The separate filing of social security numbers shall be distributed to the Child Support division of the Nebraska Department of Health and Human Services, but shall not otherwise be made available without further court order. An image of the filing shall not be reproduced into any publically-viewable location in Justice. Social security numbers should not be contained in any other pleading filed with the court. No pleading or other document filed with the court and no exhibit used at trial shall contain a complete account number for any financial accounts or debts of any party. The same shall be redacted to the extent necessary to protect the information from misuse. By agreement of the parties, or as directed by the court, such information shall be identified in such a manner as the parties, counsel, the court, and the jury may be able to distinguish information between similar accounts or debts, or as may be necessary to establish relevance to the matter being litigated.
Approved effective September 29, 1995; amended effective December 23, 1999; Rule 3-2(F) amended September 19, 2001; Rule 3-2(G) amended January 3, 2003; Rule 3-2(H) amended July 14, 2004; Rule 3-2(E) through (H) amended November 2006; Rule 3-2(H) amended September 9, 2010; Rule 3-2(H) amended November 26, 2014.
No continuances shall be allowed, except for good cause shown, upon motion or stipulation and affidavit, pursuant to Nebraska statutes, and any motion for a continuance shall request continuance to a date and time certain to be set by the court.
Approved effective September 29, 1995; amended December 23, 1999.
Notice of a hearing for judgment or decree on default shall be given as provided for in Rule 3-2.
Approved effective September 29, 1995.
To curtail undue delay in the administration of justice, the court shall refuse to consider any and all motions relating to discovery, unless moving counsel, as part of the motion, makes a written showing that after personal consultation with counsel for opposing party(ies) and reasonable efforts to resolve differences, counsel are unable to reach an accord. This showing shall recite, additionally, the date, time and place of such conference and the name of all participants. As used herein, "counsel" includes parties who are acting pro se.
Approved effective September 29, 1995.
A. The moving party shall set forth in the brief in support of the motion for summary judgment, the basis for the motion, including the Rule of Procedure or statute under which the motion is filed, and a separate statement of each material fact as to which the moving party contends there is no genuine issue to be tried and as to each shall identify the specific document or portion thereof or discovery response or deposition testimony (by page and line) which it is claimed establishes the fact.
B. The party opposing a motion for summary judgment shall set forth in its opposing brief a separate statement of each material fact as to which it is contended there exists a genuine issue to be tried and as to each shall identify the specific documents or discovery response or deposition testimony (by page and line) which it is claimed established the fact.
Approved effective September 29, 1995; Rule 3-6(A) amended January 3, 2003.
A. No person, except the judges or the clerk, shall take from the courthouse or out of the office or possession of the clerk, any records, papers or files of the court pertaining to the causes therein, except by permission of the clerk, upon such conditions as the judges may impose. Any file so removed shall be returned to the clerk within 24 hours, unless otherwise ordered by a judge of the court.
B. Any request for court records made to the clerk by an incarcerated person shall be made through the records manager of the institution at which the inmate is housed. If the request is granted by the court, the incarcerated person shall be provided with copies made at the direction of the court. Original court records, including bills of exceptions shall not be provided to an incarcerated person.
C. Any damage, destruction, or alteration of an original court record, or any part thereof, by any pro se litigant requesting such record, whether he or she be incarcerated, may result in suspension of the privilege to check out original court records from the clerk.
D. No one, other than an official court reporter, may take the bill of exceptions apart for any purpose, without written authorization from the court.
Approved effective September 29, 1995; Rule 3-7(B) and (C) amended December 20, 2000; Rule 3-7(B) amended January 3, 2003; Rule 3-7(D) amended January 3, 2003.
A. As soon after filing of a case as is practicable, the court may enter an order of progression for the case. These orders may include:
(1) A date when all depositions and discovery allowed by law shall be completed and foreclosing reopening, except upon order for good cause shown;
(2) a date, time and place for pretrial conference; and
(3) a date and time for trial.
B. In the months of May and November of each year, or when otherwise directed by the court or any one of the judges, the clerk shall prepare a list of all pending civil cases and a list of all equity cases in which no action has been taken for six months prior thereto. An order shall then be entered requiring that cause be shown, within 30 days from the entry of said show cause order, as to why said cases shall not be dismissed for want of prosecution. Notice of said order shall be sent by mail to the attorney of record, or parties, if no attorney of record. If good cause is not shown, such cases shall be dismissed.
Approved effective September 29, 1995; amended December 23, 1999.
A. Application. This Rule 3-9 shall apply to all cases classified by the State Court Administrator as a domestic case, including, without limitation, divorce; paternity; grandparent visitation; any matter within the court's jurisdiction which involves child custody, parenting time, or support; or any matter governed by the Parenting Act.
B. Motion to Set for Trial. Except as set forth below, after the case is at issue or answer day has passed without response and an Exhibit A has been filed by the moving party, counsel or a party proceeding pro se may file a motion to set the case for trial. The motion shall be set for hearing upon at least 7 days’ notice.
In cases involving children, a hearing on a motion to set the case for trial may not be set by the court until the moving party has filed a certificate showing completion of the parenting classes required by statute and has completed mediation, unless mediation is waived.
C. Hearing on "Motion to Set for Trial." Each counsel or party proceeding pro se is to bring a completed Exhibit A (See Appendix Form 1) to the hearing. The matters to be covered at the hearing will include:
(1) Objections, if any, to the motion;
(2) Designation of the issues;
(3) Filing and exchange of an Exhibit A by the nonmoving party;
(4) Length of time for trial;
(5) Selecting a day and time for trial; and
(6) Additional mediation.
D. Document exchange prior to trial: Fourteen days prior to trial
(1) If there is no parenting plan to which the parties have agreed, counsel and parties proceeding pro se are to exchange with each other the parenting plan each intends to propose to the court.
(2) If there is no agreement on child support, counsel and parties proceeding pro se are to exchange with each other the child support calculation each intends to propose to the court together with the financial documents which support the proposed calculation.
(3) If there is no agreement on the division of assets and debts, counsel and parties proceeding pro se are to confer and jointly prepare a balance sheet or a joint property statement (Appendix Form 2) which shows the assets and debts of the marriage and how each party proposes to divide those assets and debts. If the issues include the division of household goods and furniture, a separate balance sheet or joint property statement (using Appendix Form 2) shall also be submitted showing how each party proposes the household goods and furniture be divided.
The parties are under a continuing duty to update all information that is required to appear on the Exhibit A; however, no amendment may be made to a party’s Exhibit A 5 or less days prior to trial without consent of the other party or leave of the court.
E. Child Support Guideline Calculations.
(1) In all matters in which a final order includes the setting of child support, a child support guideline calculation shall be completed in full (e.g., showing each party’s gross income) by the parties and submitted to the court. A copy of said child support guideline calculation shall be attached to every proposed order submitted to the court.
(2) If a deviation is proposed to be granted, the proposed order shall contain specific findings of fact which support the conclusion that a deviation is warranted, a completed worksheet 5 as specified in Neb. Ct. R. § 4-203, or both.
F. Parenting Plan. Each parenting plan submitted to the court shall contain a Parenting Time Schedule and shall set out, with specificity, the Parenting Responsibilities and Cooperation terms agreed to by the parties.
(a) Parenting Time Schedule. Appendix Form 3 is a standard parenting time schedule which, in the absence of unusual circumstances, the court finds provides reasonable parenting time for the noncustodial parent in cases in which the parties are unable to agree otherwise.
(b) Parenting Responsibilities and Cooperation. Appendix Form 4 contains the minimum parenting responsibilities and cooperation language that must be incorporated into each parenting plan. Additional responsibilities may be added as agreed to by the parties.
G. In the interests of preserving court time at final hearing or trial, the parties shall offer evidence in the format of Exhibit 1 (see Appendix Form 8). Nothing in this rule shall be construed to waive the requirement of live testimony, unless otherwise ordered by the court.
H. Decrees and Final Orders. All decrees or orders on domestic relations matters that are submitted to the court for signature must contain AS THE LAST PARAGRAPH OF THE DECREE OR ORDER the following paragraph:
To the extent there is any conflict between this Decree (Order) and any attachment or other document incorporated herein by reference, the language of this Decree (Order) shall supersede and control.
I. Modification Cases. Progression of modification cases shall proceed as set forth in this Rule 3‑9. Trials, hearings and pretrial matters on contested child support issues in which a child support order already exists shall be conducted by the district court referee. This does not apply to motions, applications or petitions in which non-child support issues are also raised. All scheduling matters of cases referred to the referee shall be presented to the referee. Matters assigned to the referee upon which the parties have reached written agreement may be submitted directly to the district court judge to whom the case is assigned, accompanied by an appropriate order.
J. Mediation. The court deems mediation to be a useful method to resolve disputes and begin to establish the new relationship the parties will need for the future of their children. Therefore, unless waived by the court, on and after July 1, 2010, in all cases governed by the Parenting Act, except those in which there are allegations of intimate domestic partner abuse or unresolved parental conflict as defined in Neb. Rev. Stat. § 43-2922, parties who have not executed an agreed upon Parenting Plan within 4 months after service of process or the filing of a voluntary appearance shall participate in mediation as set forth in the Parenting Act.
For cases in which there are allegations of intimate domestic partner abuse or unresolved parental conflict as defined in Neb. Rev. Stat. § 43-2922, parties who have not executed an agreed-upon Parenting Plan within 4 months after service of process or the filing of a voluntary appearance shall participate in the specialized alternative dispute resolution process as set forth in the Parenting Act unless waived by the court. The parties shall also participate in the specialized alternative dispute resolution process when referred there by a mediator.
Mediation or the alternative dispute resolution process shall be conducted by a person who qualifies as a Parenting Act mediator or approved specialized mediator as set forth in the Parenting Act and proceed under the standards of practice set forth in the Parenting Act and/or adopted by the State Court Administrator.
If a party fails to appear for mediation or the specialized dispute resolution process or fails to meaningfully participate in mediation or the specialized dispute resolution process, the court may impose sanctions including without limitation, dismissing the case for want of prosecution, assessing attorney fees and expenses incurred for trial and trial preparation, limiting the presentation of evidence, and such other sanction as may appear fair and just under the circumstances.
K. Specialized Alternative Dispute Resolution Process. The specialized alternative dispute resolution process shall begin with each parent meeting individually with a qualified mediator who shall educate each party about the process. The parties shall be allowed to have support persons attend sessions with them. The approved specialized mediator may establish such protocols for the process as he or she deems reasonable to protect the safety of any party, including a requirement that there be separate individual sessions for each party. Specialized alternative dispute resolution shall not proceed unless the parties are informed of the process, including any safety protocols that will be in effect and informed consent to proceed is obtained from both parties in writing.
L. Waiver and Opt-Out. The court may waive the requirement for mediation or permit the parties to opt-out of the specialized alternative dispute resolution process when
(1) there is good cause shown and the parents agree and such parental agreement is bona fide and not an attempt to avoid the purposes of the Parenting Act; or
(2) for good cause shown and when mediation or the specialized alternative dispute resolution process is not possible without undue delay or hardship to either parent.
Upon the filing of a motion for waiver or opt-out, the court shall hold an evidentiary hearing. The burden of proof shall be by clear and convincing evidence and rests with the party seeking the waiver or opt-out.
M. Disqualification. If a party believes there is good cause to disqualify or preclude another party from participating in the alternative dispute resolution process, that party may file a motion for disqualification or preclusion. After notice and a hearing on affidavits, the court, for good cause shown, may disqualify or preclude a party from participating.
N. Upon the completion or termination of mediation or specialized alternative dispute resolution, the parties shall file a notice of completion or termination with court (See Appendix Form 7).
Approved effective September 29, 1995; amended December 23, 1999; Rule 3-9(F) amended December 20, 2000; Rule 3-9(G) amended July 14, 2004; Rule 3-9(H) amended July 14, 2004; Rule 3-9(E) amended November 2006; Rule 3-9 amended June 23, 2010; Rule 3-9 amended March 23, 2011; Rule 3-9 amended June 12, 2013.
A. Application. This Rule 3-10 shall apply to all civil cases except those referred to in Rule 3-9.
B. Progression Order. After either (1) the case is at issue or (2) "answer day" has passed without response, the court may enter a case progression order on its own motion or at the request of a party. The progression order may include the mandatory exchange of information, discovery deadlines, provision for disclosure of expert witnesses, the date of the pretrial conference, the trial term at which the case will be tried or the trial date, together with such other provisions as the court may deem appropriate.
C. Filing of Trial Notice. When a case is at issue and there is no progression order entered, counsel may file with the clerk of the court a Trial Notice on the form contained in the Appendix to these rules. A copy of the Trial Notice shall be submitted to the judge to whom the case is assigned. The notice shall be simultaneously served on all opposing counsel of record.
D. Objection to Trial Notice. An objection to a Trial Notice shall be filed within 10 days of the date of service of the Trial Notice. The objection shall set forth with specificity the reasons for the objection and a statement of the objector's opinion of when the case will be ready for trial.
Approved effective December 23, 1999.
A. Intent. The court finds that matters relating to the establishment, modification, enforcement and collection of child/spousal support and to paternity matters should be handled by the court in an expeditious manner, so that parties may obtain needed orders and other action as quickly as possible. It is determined that the appointment of a child support referee is necessary to aid the court in meeting the case progression standards established by Nebraska Supreme Court rule and federal law.
B. Appointment. Each referee shall be appointed by order of the judges of the court and shall be an attorney in good standing admitted to the practice of law in the State of Nebraska. The referee shall be sworn or affirmed, and the oath for judicial officers shall be administered by the presiding judge of the court. The referee may be removed at any time by the court.
C. Duties. The referee shall hear matters pertaining to (1) the establishment, modification, enforcement and collection of child/spousal support; (2) paternity; and (3) all other matters permitted by law and assigned by the court. The referee shall have the power to summon and enforce the attendance of parties and witnesses, administer all necessary oaths, supervise pretrial preparation pursuant to the rules of discovery, grant continuances and adjournments, recommend the appointment of counsel for indigent parties and carry out any other duties permitted by law and assigned by the district court. The functions performed by the referee under expedited processes shall, at a minimum, include: (1) taking testimony and establishing a record; (2) evaluating evidence and making recommendations to establish and enforce orders; (3) accepting voluntary acknowledgment of support liability and stipulated agreements setting the amount of support and accepting voluntary acknowledgments of paternity; and (4) recommending default orders, if absent parents fail to respond with in the time specified by law.
D. Safeguards. Under the expedited processes established by this court rule:
(1) The due process rights of the parties shall be protected.
(2) The parties must be provided a copy of the recommendation of the referee and the ratified order.
(3) To be enforceable, the referee's recommendations must be entered as an order by a judge.
(4) If a case involves complex issues requiring judicial resolution, a temporary support obligation shall be recommended under these expedited processes and the unresolved issues shall be referred to the court.
E. Hearings. A hearing before a referee shall be conducted in the same manner as a hearing before the court. Testimony in such matters shall be preserved by tape recording or other prescribed measures and in accordance with prescribed standards. Transcripts of all hearings shall be available upon request and all costs of preparing the transcript shall be paid by the party for whom it is prepared, unless he or she has been determined to be indigent.
F. Findings and Recommendations. Upon the hearing of a matter, the referee shall prepare, in writing, his or her findings and recommendations to the parties or their attorneys and submit a report to the court containing findings of fact and recommendations and any and all exceptions.
G. Judicial Review. In all cases referred to a referee, the parties shall have the right to file an exception within 14 days of the date of the referee's Findings and Recommendations. The exception shall be accompanied by a praecipe requesting the preparation of the bill of exceptions of the proceedings before the referee. The hearing before the court on the exception shall be de novo on the record before the referee. The court may ratify or modify the recommendations of the referee and enter judgment based thereon. If no exception is filed, the court shall proceed to consider the referee's Findings and Recommendations and render a final order without further notice or hearing.
H. Case Progression. Actions to establish or enforce support obligations and/or paternity shall be completed in accordance with state and federal law.
Approved effective September 29, 1995; amended December 23, 1999; Rules 3-11(C) and (G) amended January 3, 2003; Rule 3-11(G) amended November 26, 2014.
Any civil or criminal case in which a jury is waived or which is to be tried to the court and which is expected to take 1 day or less to try may be assigned by the court to a Trial Term. A Trial Term is a period of time determined by each judge during which more than one case will be scheduled for trial. By order of the judge to whom the case is assigned, other requirements governing the progression of the case may be imposed. Cases assigned to a Trial Term for trial shall proceed to trial as follows:
(1) All counsel and persons having cases set for trial during a Trial Term shall be ready for trial whenever called during the next and all subsequent trial terms.
(2) The judge's bailiff will maintain a current list of cases set for trial during that judge's Trial Terms. Cases set for trial during a Trial Term will be called up for trial in the order in which they are listed thereon.
Approved effective December 23, 1999; renumbered from 3-14 to 3-12 and amended July 14, 2004 (original Rules 3-12 and 3-13 deleted July 14, 2004).
A. Applicability. These rules shall apply in every criminal proceeding in which the laws of the United States or the laws of the State of Nebraska establish a right to be represented by counsel. All parties who have a right to be represented by an attorney, including juveniles, shall have their eligibility for appointment of an attorney at public expense determined in conformance with these rules.
B. Definition of Terms. The following definitions shall be applied in connection with these rules:
(1) “Anticipated Cost of Counsel” shall mean the cost of retaining private counsel for representation on the matter before the court, as estimated by the court with reference, when applicable, to actual fees and retainers quoted for representation in the case by attorneys who practice in the area.
(2) “Available Funds” shall mean a party’s “liquid assets” and “disposable net monthly income” calculated after provision is made for the party’s bail obligations. For the purpose of determining “available funds,” the following definitions shall apply:
(3) “Basic Living Costs” shall mean the average amount of money spent each month for reasonable payments, including loan payments, toward living costs such as shelter, food, utilities, health care, transportation, clothing, education and child support, alimony, or other support payments.
(4) “Disposable Net Monthly Income” shall mean the income remaining each month after deducting amounts paid for income taxes, Social Security taxes, contributory retirement, union dues, and basic living costs.
(5) “Income” shall mean salary, wages, interest, dividends, rental income, and other earnings and cash payments such as amounts received from pensions, annuities, Social Security, and public assistance programs, and child support, alimony, and other support payments.
(6) “Liquid Assets” shall mean all real and personal property that is cash or that can be reasonably converted into cash, including pensions, deferred compensation plans, and individual retirement plans, cash on hand, funds provided by friends and relation for the purpose of providing legal services, savings accounts, stocks, bonds, certificates of deposit, and equity in any real or personal property. Any motor vehicle necessary to maintain employment shall not be considered a liquid asset.
(7) “Indigent,” for purposes of this rule, shall mean:
(a) A party who is:
(i) Receiving one of the following types of public assistance: Aid to Families with Dependent Children (AFDC), Emergency Aid to Elderly, Disabled and Children (EAEDC), poverty related veteran’s benefits, food stamps, refugee resettlement benefits, Medicaid, Supplemental Security Income (SSI), or County General Assistance Funds; or
(ii) Receiving an annual gross income of 125% or less of the current federally established poverty level; or
(iii) Residing in a public mental health facility or is the subject of a proceeding in which admission or commitment to such a facility is sought, provided that where the County Board of Mental Health or the Judge has reason to believe the party is not indigent, a determination of indigency shall be made in accordance with these Rules; or
(iv) Serving a sentence in a correctional institution and has no available funds; or
(v) Held in custody in jail and has no available funds; or,
(b) A party who the court determines is unable to retain legal counsel without prejudicing the party’s ability to provide economic necessities for the party or the party’s family based on a comparison of the party’s available funds and anticipated cost of counsel.
(8) “Party” shall mean a defendant, including a juvenile, in a criminal proceeding, in which a person has a right to counsel.
C. Judicial Advisement of the Right to Counsel. Whenever a party initially appears before the court without an attorney in any criminal proceeding where the right to counsel attaches, the judge shall advise the party, or if the party is a juvenile or is under guardianship, the party and a parent or legal guardian, where appropriate, that (1) the party has a right to be represented by an attorney in the proceeding and (2) if the court determines that the party, or the party’s parent or guardian where appropriate, wants, but cannot afford, the services of an attorney, that an attorney will be provided at public expense.
D. Affidavit of Indigency. A party who desires to proceed as an indigent with an attorney appointed by the court may be required to complete an affidavit under oath concerning his or her financial resources on a form consistent with Attachment A to the Comments associated with this Rule appearing in the Appendix Form 6 to these Rules. The affidavit shall require the party to list all financial resources relevant to a determination of indigence. The party shall be advised of the penalties for perjury.
E. Determination of Indigency. If the court finds that the party has not effectively waived his or her right to counsel, and the party has not arranged to obtain counsel, the court may receive the affidavit of indigency and may question the party under oath. After reviewing the information contained in the affidavit and, if applicable, the party’s testimony, the court may determine whether the party is indigent based on § B(7)(a), indigent based on § B(7)(b), or not indigent. The court first shall determine whether a party is indigent based on § B(7)(a). If the court finds that a party is not indigent under § B(7)(a), the court shall next determine whether the party is indigent under § B(7)(b). If the court finds the party indigent, it shall make its findings part of the court record.
F. Assignment of Counsel/Notice of Assignment. If the court finds that a party is indigent, the court shall appoint an attorney to provide representation for the party and enter an Order for Appointment of Counsel. The order shall include the name of the attorney assigned to represent the party or shall note the office of the public defender was appointed.
G. Review of Indigency Determination. A party’s indigency status may be reviewed in a formal hearing at any stage of a court proceeding if additional information regarding financial circumstances becomes available to the court. A party has a right to reconsideration in a formal hearing of the findings and conclusions regarding the party’s indigency.
H. Solicitation for Payment of Cost of Counsel. While determined to be indigent, a party may not be ordered, required, or solicited to make any payment toward the cost of counsel.
I. Inadmissibility of Information Obtained From Party. No information provided by a party pursuant to this rule may be used in any criminal or civil proceeding against the party except, in a prosecution for perjury or contempt committed in providing such information or in an attempt to enforce an obligation to reimburse the state for the cost of counsel.
Approved July 14, 2004; amended June 23, 2010; amended June 12, 2013.
A. Authority. Pursuant to Neb. Ct. R. §§ 6-1525 and 6-1467, the judges of the District and County Courts of Lancaster County (the Courts) adopt this rule to appoint counsel for any person who is financially unable to obtain representation in felony and misdemeanor cases pursuant to Neb. Rev. Stat. §§ 29-3901 to 29-3908 and §§ 29-3001 to 29-3004 (Reissue 2008 and Cum. Supp. 2012).
B. Statement of Policy. This rule shall be administered so that those eligible for services pursuant to Neb. Rev. Stat. §§ 29-3901 to 29-3908 and §§ 29-3001 to 29-3004 (Reissue 2008 and Cum. Supp. 2012) will not be deprived of representation because they are financially unable to pay for representation. The further objective of this rule is to particularize the process for court appointments in Lancaster County, Nebraska.
C. Appointment of Private Attorneys. The Lancaster County Public Defender’s Office shall have first priority to be appointed for any indigent defendant in all criminal cases within the county. In those cases where the Lancaster County Public Defender’s Office has a conflict and the case is one where the Nebraska Commission on Public Advocacy may be appointed, the Nebraska Commission on Public Advocacy will have priority for appointment. This rule establishes the process for the appointment of private attorneys to represent indigent defendants when the Public Defender and Nebraska Commission on Public Advocacy are not available. The rules for the composition, administration, and management of the panel of private attorneys pursuant to Neb. Ct. R. §§ 6-1525 and 6-1467 are set forth below.
D. Duties of Appointed Counsel. Attorneys appointed shall conform to the highest standards of professional conduct. Neb. Ct. R. of Prof. Cond. § 3-501.1 requires a lawyer to provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, preparation, and judgment reasonably necessary for the representation. If an attorney cannot properly represent a defendant on his/her charge(s), the attorney has a duty to decline appointment or withdraw from the case.
E. Composition of Panel. The panel of eligible attorneys shall consist of a list of all licensed attorneys who have requested and are willing to accept appointments in criminal cases in the district. The list shall include the name, Nebraska bar number, office address, telephone number, and email address of each attorney. The Lancaster County Court Appointment Coordinator shall maintain the list, and the information concerning the members of the panel (name, bar number, address, telephone, and email only) shall be open for public inspection upon request.
Attorneys who serve on the panel must be members in good standing of the Nebraska State Bar Association, are expected to demonstrate experience and knowledge of the Nebraska Rules of Criminal Procedure and the Nebraska Rules of Evidence, and must display skill in representation and trial advocacy. Members of the panel shall serve indefinitely and continuously at the pleasure of the Courts.
F. Procedure for Appointments. The Lancaster County Court and District Court use computer software which automatically selects attorneys for case appointment in an efficient and unbiased manner. Appointments from the panel will be made on a rotational basis, subject to the court’s discretion to make exception due to the nature and complexity of cases.
To facilitate the procedure and to ensure quality representation of indigent defendants in all types of cases, the panel of court-appointed attorneys will be divided into the following categories of appointment:
❑ Homicide-(Murder 1 or 2) & Felony 1 Cases ❑ Misdemeanor Cases
❑ Felony 2 and 2A Cases ❑ Traffic-DUI Cases
❑ Felony 3, 3A, and 4 Cases
G. Request for Appointment. To be considered for appointment to the panel, a private attorney shall complete the form entitled “Appointment Request Form” (Appendix A, County Court Rules) and shall file it with the Lancaster County Court Appointment Coordinator. The County and/or District Court judges will review the request and place the attorney on the list in the appropriate category/categories. In the event a decision is made that the attorney is placed in a category or categories different than those requested, he or she will be notified in writing. If an attorney disputes their category placement, he/she may submit their reason for such dispute. The dispute will then be considered by the County and/or District Court judges and a decision, made by a majority of the County and/or District Court judges will be provided to the attorney, in writing. Any private attorney on the panel may request to be removed from the panel at any time by sending a letter to the Lancaster County Court Appointment Coordinator, 575 South 10th Street, Lincoln, NE 68508, or by sending an email to email@example.com.
H. Maintenance of Panel. An attorney may be removed or suspended as appropriate, from one or more appointment categories by a majority decision of the County and/or District Court judges (depending upon the category). If an attorney is removed or suspended, he/she will be notified in writing. If an attorney disputes removal or suspension, he/she may respond by submitting a reason for the dispute and a current resume to the Court at the address or email in Paragraph G above. Reinstatement will then be considered by the County and District Court judges.
I. Effective Date. This rule shall become effective January 1, 2015.
Before the claim of any attorney appointed by the court is allowed, such attorney shall make a written motion for fees, positively verified, stating time and expenses in the case as allowed for in court appointed attorney fee guidelines published by the court. Counsel shall also state in the motion that counsel has not received and has no contract for the payment of any compensation by such defendant or anyone on the defendant’s behalf or, if counsel has received any fee or has a contract for the payment of same, counsel shall disclose the same fully so that the proper credit may be taken on counsel’s motion.
Before the claim of any court-appointed guardian ad litem is allowed, such guardian ad litem shall make a written motion for fees, positively verified, stating time and expenses in the case as allowed for in court appointed attorney fee guidelines published by the court. Counsel shall also state in the motion that counsel has not received and has no contract for the payment of any compensation by any party or anyone on a party’s behalf or, if the guardian ad litem has received any fee or has a contract for the payment of same, the guardian ad litem shall disclose the same fully so that the proper credit may be taken on the motion. If a purpose of the motion is to secure an order requiring Lancaster County to compensate the guardian ad litem, notice of the hearing on the motion shall be given to the Lancaster County Attorney as it is given to any other party.
Approved July 14, 2004; amended June 12, 2013.
The following rule covers broadcast of courtroom proceedings in courtrooms presided over solely by the Honorable Steven Burns.
In the discretion of the judge presiding, courtroom proceedings in these courtrooms may be broadcast, both audio and video, and may be televised, recorded, or photographed (hereafter collectively referred to as "broadcast") under the following conditions:
1. Cameras and sound equipment of quality and type approved by the Judge presiding in the case, will be fixed in place in the courtroom with field of view of the camera and field of range of microphones being approved by the Judge presiding over the proceedings. Other than the cameras identified herein, no other camera will be permitted in the courtroom, including a still camera without authorization of the presiding judge. The images produced by the camera in the courtroom should be of such a nature that still images may be retrieved.
2. The audio broadcast shall include only the statements made in open court and shall not include communications between counsel, between counsel and their clients, or bench conferences between counsel and the court.
3. Images of, or statements from, jurors will not be broadcast.
4. Jury selection will not be broadcast.
5. Unless approved by the judge presiding over the proceedings, the following cases will not be broadcast: matters involving grand juries, juveniles (persons under 19 years old), domestic matters, child custody, parenting time, sexual abuse, sexual assault, and protection orders.
6. The testimony of certain witnesses may not be broadcast. Those witnesses are: persons under age 19, a person who claims to be a victim of sexual abuse or sexual assault who will be called upon to testify about the abuse or assault, or a confidential informant's testimony about the matter upon which the person informed. Any witness may make a request to prevent that person's testimony from being broadcast, by making application to the Judge presiding over the proceeding indicating the reason the witness does not want their testimony broadcast.
7. Upon application of any party or counsel, the court may determine to not broadcast courtroom proceedings or terminate the broadcast of courtroom proceedings.
8. Upon application at least 14 days in advance of a scheduled hearing that may be broadcast, the court may permit other types of broadcast or recording equipment in the courtroom.
The images and sound produced from the courtroom will be available to any broadcast media licensed by the Federal Communications Commission, domiciled in the State of Nebraska, and any print media published in the State of Nebraska on a pool basis.
The trial judge overseeing the proceeding sought to be broadcast, recorded, or photographed retains sole and complete discretion to terminate the broadcast, recording, or photography (without explanation or warning) at any time during such proceeding.
The overriding principle shall be the guarantee of a fair trial to the litigants. Criteria may change from time to time based on factors which the court has not yet considered, experience with this project and the circumstances of individual cases.
Approved effective January 29, 2008; amended October 21, 2008; amended June 23, 2010; amended September 9, 2010; amended October 16, 2013; amended November 26, 2014; amended September 23, 2015.
Court files, exhibits, court reporter notes and/or tapes/disks, and any and all other documents and records under the control of the Clerk of the District Court, even for storage purposes, relating to a criminal case are not to be destroyed so long as a defendant is under the custody of the Nebraska Department of Correctional Services (i.e., in custody or on parole) or subject to lifetime community supervision by the Office of Parole Administration. If a question arises about whether a file or documents relating to a particular criminal case older than 20 years should be destroyed, the judge to whom the case is assigned or, if not specifically assigned to a sitting judge, then the sentencing judge’s successor, should be asked about the status of the case. (If there is not a successor judge, the case should be randomly reassigned and presented to the judge to whom it is assigned.)
Approved June 23, 2010.
It is the intent of the judges that a detainer case be set for the next available jury term of the assigned judge at the time of arraignment. Therefore, if a person makes a request for disposition of untried charges under either the Agreement on Detainers, Neb. Rev. Stat. § 29-759, or the provisions addressing disposition of untried charges, Neb. Rev. Stat. § 29-3801 et seq., the county attorney shall promptly notify the judge to whom the case is assigned. If the request was made while the case was pending in county court the judge shall be notified when the case is bound over to district court.
Approved June 23, 2010.