Nebraska
Author
Shawn D. Renner
Cline, Williams, Wright, Johnson & Oldfather, L.L.P.
1900 US Bank Building
Lincoln NE 68508
Phone: 402-474-6900; Fax: 402-474-5393
Email: srenner@clinewilliams.com
Last updated: March 2018
CompareOpen Courts Compendium
CompareI. Introduction: Access rights in the jurisdiction
CompareA. The roots of access rights
Article I, section 13 of the Nebraska Constitution provides in part: “All courts shall be open. . . .” Nebraska law states: “All judicial proceedings of all courts established in this state shall be open to the attendance of the public unless otherwise specifically provided by statute.” Neb. Rev. Stat. § 24-1001 (Reissue 2016). In addition, Nebraska’s Security, Privacy, and Dissemination of Criminal History Information Act provides, in part, that “court records of any judicial proceeding” “shall be considered public record for purposes of dissemination.” Neb. Rev. Stat § 29-3521 (Reissue 2016).
The Nebraska Supreme Court has acknowledged the common law presumption of access to judicial records. State v. Cribbs, 237 Neb. 947, 469 N.W.2d 108 (1991) (affirming trial court release to homicide victim’s relatives of psychiatric reports and mental evaluations received in evidence at annual review of status of person acquitted by reason of insanity). The Nebraska Supreme Court requires lower courts to “weigh the conflicting rights of the public and the defendant and to make explicit in the record the factors used in the decision to release evidence from judicial proceedings” under the common-law presumption of access. Id. at 952, 469 N.W.2d at 112.
The Nebraska Public Records Act, Neb. Rev. Stat. § 84-712, et seq. (Reissue 2014), applies to courts. State ex rel. Griggs v. Meeke, 19 Neb. 106, 26 N.W. 620 (1886); State ex rel. Newby v. Elsworth, 61 Neb. 444, 85 N.W. 439 (1901); see also State ex rel. Veskrna v. Steel, 296 Neb. 581, 894 N.W.2d 788 (2017) (State public records statutes do not violate separation of powers principles when applied to records concerning judicial branch education). Under the Public Records Act, records “of or belonging to” the state or its constituent parts are public records unless a statute makes a record confidential, or a given record falls within one or more of 20 exceptions enumerated in the Public Records Act. A record which could otherwise be withheld under the Public Records Act must be deemed public if it has been “publicly disclosed in an open court, open administrative proceeding, or open meeting or disclosed by a public entity pursuant to its duties. . . .” Neb. Rev. Stat. § 84 712.05 (Reissue 2014).
The Nebraska Supreme Court has promulgated “Guidelines for use by Nebraska Courts in Determining When and Under What Conditions a Hearing Before Such Court May be Closed in Whole or in Part to the Public” (hereinafter “Nebraska Guidelines”). Neb. S. Ct. R. § 6-201 et seq. The Guidelines are consistent with and generally incorporate the First Amendment principles set out in Press-Enterprise I and II.
Effective March 1, 2017, the Nebraska Supreme Court has promulgated rules which allow expanded news media coverage of trial court proceedings. Neb. S. Ct. R. § 6-2001 through 6-2005. “‘Expanded news media coverage’ includes broadcasting, recording, photographing, and live electronic reporting of judicial proceedings by the news media for gathering and disseminating news in any medium.” Id. at § 6-2002(A).
CompareB. Overcoming a presumption of openness
CompareC. Procedural prerequisites to closure
The procedural aspects of the Nebraska Guidelines are consistent with those set out in Press Enterprise II.
CompareII. Procedure for asserting right of access to proceedings and records
CompareA. Media standing to challenge closure
There are no Nebraska cases or statutes on the topic of media standing to challenge closure generally. The Nebraska Guidelines require the clerk of a court to give notice of any hearing on a request to close a hearing to any person who has filed a request for such notice with the clerk. Neb. S. Ct. R. § 6-203. The Nebraska Guidelines require the courts to “afford all interested persons, including the general public, a reasonable opportunity to be present and prepare for such a hearing.” Id.
CompareB. Procedure for requesting access in criminal cases
There is no Nebraska case law on this topic. The Nebraska Guidelines require the clerk of a court to give notice of any hearing on a request to close a hearing to any person who has filed a request for such notice with the clerk. Neb. S. Ct. R. § 6-203. The Nebraska Guidelines require the courts to “afford all interested persons, including the general public, a reasonable opportunity to be present and prepare for such a hearing.” Id.
A request for court records under Nebraska Public Records Act can be made by a letter. Neb. Rev. Stat. §84-712(4) (Reissue 2014). The Nebraska Supreme Court has held that “no third party has a right to intervene in a criminal prosecution.” State ex rel. Nebraska Press Ass’n. v. Stuart, 194 Neb. 783, 788, 236 N.W.2d 794, 798 (1975), rev’d on other grounds, Nebraska Press Ass’n. v. Stuart, 427 U.S. 539 (1976). The Nebraska Supreme Court employs a Public Information Officer:
Ms. Janet Bancroft
Nebraska Supreme Court Public Information Officer
Room 1220, Nebraska State Capitol
PO Box 98910
Lincoln NE 68509
Phone: 402-471-3205; Fax: 402-471-2197
Email: janet.bancroft@nebraska.gov
C. Procedure for requesting access in civil matters
There is no Nebraska case law on this topic. The Nebraska Guidelines require the clerk of a court to give notice of any hearing on a request to close a hearing to any person who has filed a request for such notice with the clerk. Neb. S. Ct. R. § 6-203. The Nebraska Guidelines require the courts to “afford all interested persons, including the general public, a reasonable opportunity to be present and prepare for such a hearing.” Id.
A request for court records under Nebraska Public Records Act can be made by a letter. Neb. Rev. Stat. § 84-712(4) (Reissue 2014).
CompareD. Obtaining review of initial court decisions
No case law. Appeal would be an option only when formal intervention has been allowed by the lower court. The courts of Nebraska have jurisdiction to issue writs of mandamus to inferior tribunals. Neb. Const. Art. V, Sec. 2 (Nebraska Supreme Court’s original jurisdiction); Neb. Rev. Stat. §§ 25-2156 to 2169 (Reissue 2016).
CompareIII. Access to criminal proceedings
CompareA. In general
CompareB. Pretrial proceedings
The Nebraska Guidelines contemplate that the only criminal case hearings that may be closed in whole or in part to the public are hearings where the voluntariness of a confession may be seriously disputed, or where the defendant is seeking to suppress evidence allegedly obtained illegally. In such circumstances, the court may close all or part of such a hearing only upon finding, in writing:
(A) that the evidence establishes an adequate basis to support a finding that there is a substantial likelihood that irreparable damage to the accused’s right to a fair trial will result from conducting the questioned proceedings in public,
(B) that a substantial likelihood exists that reasonable alternatives to closure will not adequately protect the accused’s right to a fair trial; and
(C) there is a substantial likelihood that closure will be effective in protecting against the perceived harm.
Neb. S. Ct. R. § 6-204.
CompareC. Criminal trials
No Nebraska law addresses closing all or a portion of a criminal trial to the public. The Nebraska Guidelines contemplate the possibility that some portion of a trial at which the voluntariness of a confession or the suppression of evidence will be decided may be closed, but the author is not aware of that happening. See Neb. S. Ct. R. Sec. 6-602(A).
CompareD. Post-trial proceedings
CompareE. Appellate proceedings
No Nebraska law. The author is not aware of an oral argument before either the Nebraska Supreme Court or the Nebraska Court of appeals ever being closed to the public. Neb. Ct. R. App. Prac. 9(D) provides in part:
Compare(D) Content of Briefs. BRIEFS FILED WITH CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.
IV. Access to criminal court records
CompareA. In general
CompareB. Arrest records
Arrest records can be obtained through the clerk of the court issuing the arrest warrant. Mugshots, whether in the possession of a court clerk or criminal justice agency, are specifically deemed to be public records. Neb. Rev. Stat. § 29-3521(1) (Reissue 2016).
CompareC. Dockets
Court dockets are public records. State ex rel. Newby v. Elsworth, 61 Neb. 444, 85 N.W. 439 (1901). Docket information can be accessed through the clerk of the court. Docket information can also be accessed on line through the “JUSTICE” system available on the State of Nebraska’s official web service. Seewww.nebraska.gov/faqs/justice. JUSTICE can be accessed via a subscription or via a one-time search fee of $15.
CompareD. Warrants, wiretaps and related materials
Search warrants and supporting materials do not become public until after the warrant has been executed and has been filed, together with the return, with the clerk of the court. Neb. Rev. Stat. § 29-817 (Reissue 2016). The Nebraska Supreme Court has held that materials supporting an application for a search warrant may be sealed if necessary to protect confidential informant information, and there is no First Amendment right of public access to an affidavit in support of a search warrant in that context. In re Search Warrant for 3628 V Street, 262 Neb. 77, 628 N.W.2d 272 (2001).
It is unlawful to disclose the fact that a wiretap has been authorized if done to obstruct, impede or prevent the communications interception. Neb. Rev. Stat. § 86-290(1)(e) (Reissue 2016). It is also unlawful to use or disclose the contents of an intercepted communication. Id., § 86-290(1)(c) and (d). Applications made and orders issued allowing the interception of communications shall be sealed by the judge allowing the interception. Neb. Rev. Stat. § 86-293(8)(b) (Reissue 2014).
CompareE. Discovery materials
There is no Nebraska law on access to discovery materials in criminal cases. To the extent discovery materials are filed with the clerk of a court or are offered or received into evidence, they become public records. SeeNeb. Rev. Stat. § 84-712.05 (Reissue 2014) (“The following records, unless publicly disclosed in an open court, open administrative proceeding or open meeting or disclosed by a public entity pursuant to its duties, may be withheld from the public by the lawful custodian of the records”).
CompareF. Pretrial motions and records
Opinions and orders ought always to be publicly available. Transcripts of preliminary hearings and suppression hearings are public unless all or a portion of any such hearing was closed pursuant to the Nebraska Guidelines. Indictments and information are public once the indictment or information is filed with the clerk and the case is docketed. Neb. Rev. Stat. § 29-1414 (Reissue 2016); Neb. Rev. Stat. § 29-1604 (Reissue 2016). Briefs are not filed with the clerk, but rather are delivered to the presiding judge. The Nebraska Attorney General has opined that briefs are nonetheless public records. Neb. Atty. Gen. Op. No. 04030 (12-27-04).
CompareG. Trial records
Documents publicly disclosed in open court ought to be public records. Neb. Rev. Stat. § 84 712.05 (Reissue 2008). The word “ought” is used intentionally. There is an argument, not resolved by case law, that a document that is required to be treated as confidential by some other statute does not become public under the Public Records Act by virtue of being disclosed in open court. There does not appear to be any such other statute that would make psychiatric reports generally confidential, although psychiatric reports prepared as part of a presentence report are confidential. See Section on “Post-trial records” below.
CompareH. Post-trial records
Presentence investigation reports, which may include psychiatric examinations and victim statements, are privileged and shall not be disclosed to anyone except a judge, probation officials, and others entitled by law to receive such information. Neb. Rev. Stat. § 29-2261 (Reissue 2016). However, in State v. Cribbs, 237 Neb. 947, 469 N.W.2d 108 (1991), the court held that a murder victim’s relatives had a common law right of access to psychiatric treatment reports received in evidence at an annual review hearing for a defendant found not guilty by reason of insanity.
CompareI. Appellate records
Information required by statute to be confidential remains confidential when included in an appellate record. Neb. Ct. R. App. Prac. § 2-109(D) provides:
Compare(D) Contents of Briefs. BRIEFS FILED WITH THE CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.
J. Other criminal court records issues
CompareV. Access to civil proceedings
CompareA. In general
“All judicial proceedings of all courts established in this state must be open to the attendance of the public unless otherwise specially provided by statute.” Neb. Rev. Stat. § 24-1001 (Reissue 2008).
The purposes section of the Nebraska Guidelines provides that:
Compare[A]s a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party’s right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.
B. Pre-trial proceedings
Pretrial conferences and motion hearings are often held in a judge’s chambers as a matter of comfort and/or convenience to the court and counsel. The author’s experience has been that such hearings are moved to the courtroom, thus open to the public, upon request by any member of the public. While there is no Nebraska case law, depositions are usually conducted in private law offices, where the public does not have a legal right to be.
CompareC. Trials
“All judicial proceedings of all courts established in this state must be open to the attendance of the public unless otherwise specially provided by statute.” Neb. Rev. Stat. § 24-1001 (Reissue 2008).
The purposes section of the Nebraska Guidelines provides that:
Compare[A]s a general principle it is the view of the judiciary of the State of Nebraska that proceedings should be open to the public at all times and only closed, in whole or in part, where evidence presented to the court establishes that by permitting all or part of the proceeding to remain open to the public, a party’s right to a fair trial will be substantially and adversely affected and there are no other reasonable alternatives available to protect against such substantial and adverse effect.
D. Post-trial proceedings
CompareE. Appellate proceedings
No Nebraska law. The author is not aware of an oral argument before either the Nebraska Supreme Court or the Nebraska Court of appeals ever being closed to the public. Neb. Ct. R. App. Prac. 9(D) provides in part:
Compare(D) Content of Briefs. BRIEFS FILED WITH CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in §2-109(C)(1) to (3), to the portion of the record which is confidential.
VI. Access to civil records
CompareA. In general
The Nebraska Public Records Act, Neb. Rev. Stat. §84-712, et seq. (Reissue 2014), applies to courts. State ex rel. Griggs v. Meeke, 19 Neb. 106, 26 N.W. 620 (1886); State ex rel. Newby v. Elsworth, 61 Neb. 444, 85 N.W. 439 (1901). Under the Public Records Act, records “of or belonging to” the State or its constituent parties are public records unless some other statute makes them confidential or a given record falls within one or more of 16 exceptions enumerated in the Public Records Act. A record which could otherwise be withheld under the Public Records Act must be deemed public if it has been “publicly disclosed in an open court, open administrative proceeding, or open meeting or disclosed by a public entity pursuant to its duties.” Neb. Rev. Stat. § 84-712.05 (2016 Cum. Supp.).
CompareB. Dockets
Court dockets are public records. State ex rel. Newby v. Elsworth, 61 Neb. 444, 85 N.W. 439 (1901). Docket information can be accessed through the clerk of the court. Docket information can also be accessed on line through the “JUSTICE” system available on the State of Nebraska’s official web service. See www.nebraska.gov/faqs/justice. JUSTICE can be accessed via a subscription or via a one-time search fee of $15.
CompareC. Discovery materials
Discovery materials filed with the clerk of the court or disclosed in open court ought to be publicly available. There is no Nebraska law on public access to discovery materials not so filed or disclosed. Section 6-326(C) of the Nebraska Rules of Discovery permits the court to enter protective orders, including orders that allow parties not to disclose trade secrets, and that allow parties to file discovery materials under seal.
CompareD. Pre-trial motions and records
CompareE. Trial records
CompareF. Settlement records
Settlement agreements filed with the court or approved by the court should be publicly available. Most private party settlements are not filed or judicially approved, and Nebraska law does not prohibit them from containing confidentiality clauses.
Neb. Rev. Stat. § 84-713 (Reissue 2014) effective September 3, 2010, requires public entities (except the State) to maintain a public, written record of all settled claims. Any settlement by a public entity, except the State, with financial consideration in excess of $50,000 or 1% of the entity’s budget, whichever is less, must be approved at an open meeting.
CompareG. Post-trial records
CompareH. Appellate records
Information required by statute to be confidential remains confidential when included in an appellate record. Neb. Ct. R. App. Prac. § 2-109(D) provides:
Compare(D) Contents of Briefs. BRIEFS FILED WITH THE CLERK OF THE SUPREME COURT AND COURT OF APPEALS SHALL NOT BE CONFIDENTIAL. A brief shall not contain a reproduction, quotation, or extensive paraphrase of material which is declared by any statute or other rule of the Supreme Court to be confidential. Instead, parties or counsel may include a citation in the brief, as set forth in § 2-109(C)(1) to (3), to the portion of the record which is confidential.
I. Other civil court records issues
Court records are available via remote electronic access on Nebraska’s official website, www.Nebraska.gov. The system, known as “JUSTICE,” provides access to court case records in the county and district courts. Prior to the launch of this system in 2005, requestors had to either call, email or visit the courthouse to access the information they needed. Any citizen with a credit card and the first and last name of the person to be searched can access all public information about a court case, including:
- Case detail, such as the date and outcome of the trial, what the case was about, and the name of the presiding judge
- Party listing, including the names of plaintiffs, defendants, and associated attorneys
- Court cost information, including all fees associated with the case
- Payments made by and to the court
- Register of actions, including all actions prior to, during, and after the case.
VII. Jury and grand jury access
CompareA. Access to voir dire
No Nebraska law.
CompareB. Juror identities, questionnaires and other records
“Generally, impaneling an anonymous jury is a drastic measure that should only be undertaken in limited circumstances. . . .” State v. Sandoval, 280 Neb. 309, 326-27, 788 N.W.2d 172, 195 (7-30-2010). A court should not impanel an anonymous or innominate jury unless it “(1) concludes that there is a strong reason to believe the jury needs protection and (2) takes reasonable precautions to minimize any prejudicial effects on the defendant and to ensure that his or her fundamental rights are protected.” Id. at 327, 788 N.W.2d at 195-96.
Per Neb. Rev. Stat. § 25-1635, it is unlawful for anyone to disclose the names of persons drawn to serve as grand or petit jurors until the persons are picked for actual service as jurors. Neb. Rev. Stat. § 25-1637(4) (Reissue 2016) provides:
Compare(4) The contents of any records or papers used by the jury commissioner or the clerk in connection with the selection process and not made public under Chapter 25, article 16, shall not be disclosed, except in connection with the preparation or presentation of a motion under subsection (1) of this section, until after all persons on the revised proposed juror list have been discharged. The parties in a case may inspect, reproduce, and copy the records or papers at all reasonable times during the preparation and pendency of a motion under subsection (1) of this section.
C. Grand jury proceedings and records
Names of grand jurors may be disclosed only upon order of a judge. Neb. Rev. Stat. § 25-1635(1) (Reissue 2016). When a grand jury is empaneled to investigate the death of a person being apprehended or in law enforcement custody, a transcript of testimony before the grand jury, including exhibits, is filed with the empaneling court and is available for public inspection. Neb. Rev. Stat. § 29-1407.01(2)(b) (Reissue 2016). When a grand jury is empaneled for some other reason, a transcript is prepared and filed with the court, but is sealed and not available for public inspection. Neb. Rev. Stat. § 29-1407.01(2)(a) (Reissue 2016). When a grand jury is empaneled to investigate the death of a person being apprehended or in law enforcement custody, if it declines to indict and returns a “no true bill,” the grand jury prepares a report explaining its findings and any recommendations it determines to be appropriate; such report is filed with the empaneling court and is available for public inspection. Neb. Rev. Stat. § 29-1406(2)(g) (Reissue 2016). No such report is prepared if the grand jury is empaneled for some other reason. A judge may only release grand jury testimony to the witness giving the testimony, and it was error to rely on federal law in releasing grand jury testimony to a prosecutor. In re Grand Jury of Lancaster County, 269 Neb. 436, 693 N.W.2d 295 (2005). Grand jurors swear an oath to keep their deliberations secret unless called upon to make disclosures in court. Neb. Rev. Stat. §§ 29-1404 and 1405 (Reissue 2016).
CompareD. Interviewing jurors
There is no Nebraska law on interviewing petit jurors. Grand jurors swear an oath to keep their deliberations secret unless called upon to make disclosures in court. Neb. Rev. Stat. §§ 29-1404 and 1405 (Reissue 2016).
CompareVIII. Proceedings involving minors
Nebraska law does not generally close juvenile court proceedings to the public, but does restrict access to various records relating to juvenile proceedings. However, hearings concerning a juvenile court petition alleging that the juvenile is mentally ill and dangerous are closed to the public, except at the request of the juvenile or the juvenile’s parents. Neb. Rev. Stat. § 43-277.01 (Reissue 2016).
Generally, information in juvenile court files other than pleadings, orders, decrees and judgments is confidential. Neb. Rev. Stat. § 43-2,108(3) (Reissue 2016). Various governmental agencies, but not the public, may obtain confidential records from a juvenile court file if ordered by the presiding judge. Id.
When a juvenile has been cited or taken into custody but was (1) released without a juvenile petition or criminal complaint having been filed; (2) offered juvenile pretrial diversion; (3) subject to certain types of juvenile adjudication; (4) charged with misdemeanor marijuana or paraphernalia possession; or (5) charged with another misdemeanor or infraction, the juvenile may request that records, including court records, be sealed if the juvenile successfully completed probation, supervision, or a rehabilitation program under the Juvenile Code. The court may order the records sealed if it finds that the juvenile has been rehabilitated to a satisfactory degree. Neb. Rev. Stat. §§ 43-2,108.01 through 2,108.05 (Reissue 2016).
CompareA. Delinquency
In juvenile dependency proceedings pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), pleadings, orders, and decrees and judgments are public documents, but medical, psychiatric, and social welfare reports and the records of juvenile probation officers as they relate to individual proceedings in juvenile court are confidential. Neb. Rev. Stat. § 43-2,108 (Reissue 2016).
CompareB. Dependency
In juvenile dependency proceedings pursuant to Neb. Rev. Stat. § 43-247(3)(a) (Reissue 2016), pleadings, orders, and decrees and judgments are public documents, but medical, psychiatric, and social welfare reports and the records of juvenile probation officers as they relate to individual proceedings in juvenile court are confidential. Neb. Rev. Stat. § 43-2,108 (Reissue 2016).
CompareC. Other proceedings involving minors
In juvenile proceedings alleging that the juvenile is mentally ill and dangerous to himself or others (Neb. Rev. Stat. § 43-247(3)(c) (Reissue 2016)), all court records relating to the action are confidential and not available to the public.
Court files in adoption cases are not publicly available. Neb. Rev. Stat. § 43-113 (Reissue 2016).
CompareD. Prohibitions on photographing or identifying juveniles
CompareE. Minor testimony in non-juvenile courts
CompareIX. Special proceedings
CompareA. Tribal Courts in the jurisdiction
CompareB. Probate
CompareC. Competency and commitment proceedings
Commitment hearings before a Mental Health Board are closed to the public. Neb. Rev. Stat. § 71-951 (Reissue 2009) provides:
All mental health board hearings under the Nebraska Mental Health Commitment Act shall be closed to the public except at the request of the subject and shall be held in a courtroom or at any convenient and suitable place designated by the mental health board. The board shall have the right to conduct the proceeding where the subject is currently residing if the subject is unable to travel.
Records relating to a mental health petition are confidential. Neb. Rev. Stat. § 71-961(1) (Reissue 2009). Those records remain confidential if the commitment order is appealed to the district court. In re Michael M., 6 Neb. App. 560, 574 N.W.2d 774 (1998). There is an open issue whether cases remain confidential when appealed to the Nebraska Supreme Court or Nebraska Court of Appeals. In re Michael M., supra. See Neb. Rev. Stat. § 71-930 (Reissue 2009) (“A final order of the district court [under the Mental Health Commitment Act] may be appealed to the Court of Appeals in accordance with the procedure in criminal cases.”).
CompareD. Attorney and judicial discipline
Attorney discipline proceedings are confidential. Neb. S. Ct. R. § 3-318(A) provides:
(A) The hearings, records, or proceedings of the Counsel for Discipline, the Committee on Inquiry, and the Disciplinary Review Board are confidential and shall not be made public except that the pendency, subject matter, and status of an investigation may be disclosed by the Committee on inquiry involved or the Disciplinary Review Board if
(1) the Respondent has waived confidentiality, either in writing or by public disclosure of information regarding the proceeding; or
(2) the proceeding is based upon conviction of a crime.
Attorney discipline decisions are ultimately made by the Nebraska Supreme Court. Most filings made with the Supreme Court relating to attorney discipline become public, either upon filing or when the disciplinary case is finally disposed.
Requests for disciplinary action against a judge are initially processed by the Commission on Judicial Qualifications. See Neb. Const. Art. V, Secs. 28-31. The preliminary investigations and hearings by the Commission on Judicial Qualifications are confidential Neb. S. Ct. R. § 5-104. If the Commission concludes that formal proceedings are warranted, it files a public complaint with the Nebraska Supreme Court. Neb. S. Ct. R. § 5-105. Hearing on the formal complaint is public and filings made, including any decisions, after the complaint is filed with the Supreme Court are also public. Neb. S. Ct. R. § 5-121.
CompareE. Immigration proceedings
CompareF. Other proceedings
CompareX. Restrictions on participants in litigation
CompareA. Media standing to challenge third-party gag orders
No Nebraska law.
CompareB. Gag orders on the press
No third parties may intervene in criminal proceedings. State v. Simants, 194 Neb. 783, 236 N.W.2d 794 (1975). The news media may challenge a gag order via an original mandamus action in the Nebraska Supreme Court. Id. The Nebraska Supreme Court’s opinion approving a narrowed gag order imposed on the press in State v. Simants was reversed by the U.S. Supreme Court in Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976).
CompareC. Gag orders on participants
In In re Interest of T.T., 18 Neb. App. 176, 779 N.W.2d 602 (2009), the Nebraska Court of Appeals reversed a gag order entered by the Juvenile Court, which prohibited the juvenile’s parents from publicly disclosing information about the juvenile, including his medical information, in the context of public debate concerning Nebraska’s “Safe Haven” law. The Court of Appeals held that there is a “heavy presumption of unconstitutionality of a prior restraint on speech,” and that there was “no evidence proving imminent harm to T.T. of a magnitude that justifies a prior restraint on speech.” Id. at 198, 779 N.W.2d at 621. The parents were parties to the adjudication involving the juvenile.
CompareD. Interviewing judges
Section 5-203(B)(9) of the Nebraska Code of Judicial Conduct generally prohibits judges from commenting on pending litigation. Some Nebraska judges are sometimes willing to give interviews on general topics related to the judicial system, but are not required to do so.
CompareXI. Other issues
CompareA. Interests often cited in opposing a presumption of access
The Nebraska appellate courts have not directly addressed the various interests that might weigh against access in the constitutional context. However, the Nebraska Guidelines largely mirror the First Amendment factors established in Press Enterprise. Thus, § 6-204 of the Nebraska Guidelines states:
Upon entering an order of closure, the court shall articulate written findings as follows:
(A) that the evidence establishes an adequate basis to support a finding that there is a substantial likelihood that irreparable damage to the accused’s right to a fair trial will result from conducting the questioned proceedings in public,
(B) that a substantial likelihood exists that reasonable alternatives to closure will not adequately protect the accused’s right to a fair trial; and
(C) there is a substantial likelihood that closure will be effective in protecting against the perceived harm.
The burden of establishing such facts shall be upon the moving party.
Similarly, in connection with the common law right of access, the Nebraska Supreme Court has recognized that access decisions “are normally left to the ‘informed discretion’ of the courts. . . after ‘weighing the interests advanced by the parties in light of the public interest and the duty of the courts.’” State v. Cribbs, 237 Neb. 947, 951, 469 N.W.2d 108, 111 (1991).
Protection of undercover officers or witnesses
Although the court held that the First Amendment access right does not apply to affidavits offered in support of the issuance of a search warrant because such documents have not historically been open to the press and the public, the opinion in In re Search Warrant for 3628 V. Street, 262 Neb. 77, 628 N.W.2d 272 (2001) suggests that if such historical precedent had existed, the State’s interest in protecting the anonymity of a confidential informant would be weighed against the asserted right to access. See also Neb. Rev. Stat. § 27-510 (Reissue 2016) (providing an evidentiary privilege to government “to refuse to disclose the identity of a person who has furnished information relating to or assisting in an investigation of a possible violation of law to a law enforcement officer or member of a legislative committee or its staff conducting an investigation” under certain circumstances).
Trade secrets or sensitive business information
Neb. Rev. Stat. § 87-505 (Reissue 2014), a part of the Nebraska Trade Secrets Act, states:
In an action under the Trade Secrets Act, the court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include, but not be limited to, granting protective orders in connection with discovery proceedings and ordering nondisclosure of the alleged trade secret by the parties’ attorneys, witnesses, or experts. The disclosure or publication of a trade secret in a court proceeding or as a result thereof shall not constitute an abandonment of the secret.
One of the exceptions to Nebraska’s Public Records Act allows a custodian to withhold from the public: “Trade secrets, academic and scientific research work which is in progress and unpublished, and other proprietary or commercial information which if released would give advantage to business competitors and serve no public purpose.”
Neb. Rev. Stat. § 84-712.05(3) (Reissue 2014).
National security and state secrets
Nebraska law does not allow for a court hearing to be closed in order to protect state secrets, but does provide an evidentiary privilege: “The government has a privilege to refuse to give evidence and to prevent any public officer from giving evidence as to communications made by or to such public officer in official confidence when the public interest would suffer by the disclosure.”
Neb. Rev. Stat. § 27-509(1) (Reissue 2008).
CompareB. Cameras and other technology in the courtroom
Effective March 1, 2017, the Nebraska Supreme Court has promulgated rules allowing “expanded news media coverage” in all county and district courtrooms in the state. Neb. S. Ct. R. §§ 6-2001 through 2005. Expanded news media coverage “includes broadcasting, recording, photographing, and live electronic reporting of judicial proceedings by the news media for gathering and disseminating news in any medium.” Id. at § 6-2002(A).
Expanded news media coverage is prohibited in: (1) pretrial criminal motions; (2) grand juries; (3) juvenile court; (4) criminal and civil cases where the plaintiff and/or defendant is under 19 years of age; (5) dissolution/divorce/modification/child support enforcement; (6) adoptions; (7) paternity cases; (8) protection order hearings; (9) guardianship/conservatorship/probate cases; (10) trade secret cases; and criminal and civil jury selection. Neb. S. Ct. R. § 6-2003(F). Expanded news media coverage of the testimony of an alleged victim/witness in civil or criminal cases when the victim/witness is under the age of 19 and the proceedings relate to sexual abuse or sexual assault is prohibited by Neb. S. Ct. R. § 6-2003(D)(2). A judge may deny expanded media coverage of a witness upon objection and a showing of good cause. Neb. S. Ct. R. § 6-2003(D)(1).
The Nebraska Supreme Court has designated media coordinators. Requests for expanded media coverage are made to the news media coordinator assigned to the court for which coverage is sought. Neb. S. Ct. R. § 6-2004(A)(1). Requests are made through a form available on the Supreme Court’s website, must be filed with the clerk of the court for which expanded coverage is requested, and must be filed at least seven business days before the proceeding is to begin. Id. Copies of the request must be served on the parties to the proceeding, the Supreme Court PIO, the appropriate court administrator and the judge presiding over the proceeding. Neb. S. Ct. R. § 6-2004(B)(2). Any party to the proceeding may object to expanded media coverage. The objection is served on the requester, other parties, the Supreme Court PIO, the appropriate court administrator and the presiding judge. Neb. S. Ct. R. § 6-2004(C)(2). The judge may rule on the objection the basis of the objection alone, or may take evidence. Neb. S. Ct. R. § 6-2004(C)(3). To sustain the objection, the judge must find that “under the circumstances of the particular proceeding, such coverage would interfere with the rights of the parties to a fair trial.” Neb. S. Ct. R. § 6-2003(B). The granting or denial of an objection to expanded media coverage is not appealable. Neb. S. Ct. R. § 6-2004(C)(5).
Technical requirements and specifications for equipment to be used in expanded media coverage are described in Neb. S. Ct. R. § 6-2005.
Permanent pool cameras are installed in the courtrooms of both the Nebraska Supreme Court and the Nebraska Court of Appeals, and oral arguments before those courts may be photographed, recorded, and broadcast, using such pool equipment. Neb. S. Ct. R. § 2-117 and 2-118.
CompareC. Tips for covering courts in the jurisdiction
The County Courts have jurisdiction over: misdemeanor cases, including traffic and municipal ordinance violations; preliminary hearings in felony cases; civil cases involving less than $53,000; small claims involving less than $2,700; probate, guardianship, conservatorship, adoption and eminent domain; and often function as juvenile courts (except in Douglas, Sarpy and Lancaster counties). Douglas, Sarpy and Lancaster Counties have separate Juvenile Courts that have jurisdiction over County Court juvenile cases. The County Courts serve 12 districts and have 58 judges.
District Courts have trial court general jurisdiction in felony cases, domestic relation cases, and civil cases. As an appellate court, the District Courts can hear some County Court appeals and administrative agency appeals. The District Courts serve 12 districts and have 55 judges.
The Workers’ Compensation Courts has seven judges that hear cases throughout the state. They have jurisdiction over injuries and illnesses caused by occupations.
The Court of Appeals consists of six judges. Panels of three judges hear appeals throughout the state. The Court of Appeals acts as an intermediate appellate court, and hears all trial court appeals except those heard by the Supreme Court pursuant to: mandatory jurisdiction; direct appeal status; removal procedures; and bypass procedures.
The Nebraska Supreme Court is made up of a Chief Justice and six judges. It is the highest appellate court and hears discretionary appeals from the Court of Appeals. It hears mandatory appeals in capital cases and cases concerning the constitutionality of statutes. It may also hear cases removed from or that have bypassed the Court of Appeals or by a petition of further review after the Court of Appeals has decided a case. It also has original jurisdiction over specified cases.
The contact information for the courts can be found on the Nebraska Judicial Branch website at www.supremecourt.ne.gov. Press questions can be answered at www.supremecourt.ne.gov/press. The courts can also be contacted at:
Administrative Office of the Courts
1445 K Street
1213 State Capitol
P. O. Box 98910
Lincoln, NE 68509-8910
Phone: 402-471-3730
Fax: 402-471-2197
Briefs and transcripts can be obtained by contacting the clerk of the court where the case is being heard. For example, Supreme Court briefs can be obtained by contacting the Clerk of the Supreme Court. Fees will vary with court and length of document. If a court reporter has recorded a proceeding but has not been requested by the court or a party to transcribe the recording, anyone requesting that a transcript be prepared will have to pay for same.
Generally, eating and drinking are prohibited in courtrooms. Most judges require that cell phones be turned off while the owner is in the courtroom, although cell phones may be used with permission granted under the expanded news media coverage rules. The clerk of the court should be consulted before computers are used in a courtroom, as judges’ practices vary. The expanded news media coverage rules permit reporters to use computers and other electronic devices to engage in live coverage of judicial proceedings, subject to obtaining approval in advance.
Both the Nebraska Press Association and the Nebraska Broadcasters Association operate legal “hotlines” available to their members. Hotline attorneys can provide information to NPA and NBA members regarding Nebraska courts.
The clerks of particular courts are generally willing and able to answer questions about the operation of their courts.
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