(Photo courtesy of the Nebraska Unicameral Information Office)

This is the latest in a series of posts I have done criticizing Nebraska’s legalized child abandonment laws. You can find my earlier posts via my Nebraska tag.

***

Nebraska has an incredible State Capitol, it’s a shame to see it used as the venue where the Nebraska Governor and Legislature are abandoning some of the state’s most needy kids.

Regular readers know, I oppose all legalized child abandonment laws, so while I’m going to detail the latest machinations relating to the ‘new and improved’ dump bills (what I’ve dubbed dump law 2.0) the bottom line remains, if any of these bills succeed, Nebraska will continue to fail those most vulnerable and least able to defend their own rights.

Today Nebraska’s Attorney General weighed in on the likely constitutionality (or lack thereof) regarding LB 3 (Annette Dubas’ two tier bill.)

Via Monday’s Nebraska Legislative Journal (link opens a PDF) we get the details on the Attorney General’s opinion on:

Whether LB 3 is within the scope of the Governor’s call for a special session of the Legislature relating to child abandonment.

Again, we’re deep down in the technical issues of what can and cannot be done within the scope of the special session itself. Back on November 14th (Friday) when LB 3 was introduced, Speaker Michael Flood requested an opinion from the Attorney General on LB 3.

The One-Hundredth Nebraska Legislature began its First Special Session on November 14, 2008. That special session was convened pursuant to a 44 LEGISLATIVE JOURNAL Proclamation issued by the Governor on October 29, 2008, under authority of art. IV, § 8 of the Nebraska Constitution. The Governor’s Proclamation called the Legislature into special session “for the purpose of considering and enacting legislation on only” two subjects. Those subjects are:

1. Enacting legislation to limit the application of 2008 Neb. Laws LB 157, Neb. Rev. Stat. § 29-121, by reducing the maximum age of children to whom the statute applies; and

2. To appropriate funds to the Legislative Council for the necessary expenses of the extraordinary session herein called.

Neb. Rev. Stat. § 29-121, the statute specifically addressed in the Governor’s proclamation, reads as follows:

No person shall be prosecuted for any crime based solely upon the act of leaving a child in the custody of an employee on duty at a hospital licensed by the State of Nebraska. The hospital shall promptly contact appropriate authorities to take custody of the child.

Your opinion request, which we received late in the afternoon on November 14, pertains to LB 3 from the First Special Session. You wish to know whether, in our view, LB 3 “is within the scope of the Governor’s call for a special session of the Legislature to enact legislation that limits the application of Neb. Rev. Stat. § 29-121?” For the reasons discussed below, we believe that it is not.

(Emphasis added.)

I’ll let readers go over the details of why via the Legislative Journal link if they are so inclined, suffice it to say, just as I predicted, to date the only real options the legislature has open to it is setting an age limit (again I advocate Zero point Zero, i.e. no kids at all) and how to pay for the special session.

Much of this opinion is based upon an earlier decision the Attorney General rendered:

This is the second opinion request which we have received regarding legislation proposed for the First Special Session and the scope of the Governor’s call. In our Op. Att’y Gen. No. 08008 (November 14, 2008), we indicated that legislation proposed by Senator Pahls was likely outside the scope of the Governor’s call for the special session.

Much of the first opinion is quoted in relation to LB 3 in the Legislative Journal piece. This paragraph summarizes:

It is well established that the legislature while in special session can transact no business except that for which it was called together. . . . The proclamation may state the purpose for which the Legislature is convened in broad, general terms or it may limit the consideration to a specified phase of a general subject. The Legislature is free to determine in what manner the purpose shall be accomplished, but it must confine itself to the matters submitted to it by the proclamation. . . .

Now how exactly the above relates to these three resolutions:

LR1 – Congratulate the Lindsay Holy Family High School Boys’ Cross Country Team for winning the Class D state championship

LR2 – Congratulate Thomas Wilson Hall for earning the rank of Eagle Scout

and

LR3 – Congratulate Matthew Willaert Wallen for earning the rank of Eagle Scout

is all just a bit beyond my legislative know-how, (but apparently when they’re not busy making yet still more of Nebraska’s abandoned kids they have to do something to fill the time and justify spending that $68,761.)

The Attorney General’s opinion also points out what he feels is beyond the constitutional scope of the special session, (speaking of the Governor):

He has not summoned the Legislature to consider and legislate with regard to other legal, medical or administrative ramifications that might flow from the relinquishment of a child at a licensed hospital or from the exemption from criminal prosecution itself.

and from further down:

…the supreme court’s restrictive view of what legislation is considered germane to a special session call does not allow the Legislature to consider bills which go beyond the specified phase of the Governor’s call and which deal in broad terms with child abandonment, the duties of governmental and private institutions, and the duties and rights of parents. Those additional legislative issues must wait, at this point, until the Legislature is assembled in its regular session.

Which has, just as I said, left their hands tied when it comes to offering any other form of concrete help to Nebraska’s kids and families.

The Nebraska Attorney General lays out very clearly, he believes LB 3:

…if enacted during the special session, is in violation of the Nebraska Constitution and void.

So where does this leave us?

Well for starters, with many hours of testimony that was heard Monday afternoon. (I’ll be working with that later on,) which was almost universally about at precisely what age Nebraska’s unequal treatment under law was going to kick in…2-3 days/that magic 72 hours? 30 days? A 2 month minimum? At 6-8 months? 1 year? 2 years?

As I’ve said before Zero point zero is the only way for Nebraska to ensure all kids receive “Equality Before the Law.” Anything else is an arbitrarily picked point in time that ensures a class of kids in Nebraska receive unequal treatment under Nebraska law.

Governor Heineman laid out his stance in a radio interview:

The governor said today that he’s flexible on an age limit and is willing to work with the legislature.

“Somewhere between 3 and 30 days is appropriate,” Heineman said on a statewide radio call-in show broadcast from KFOR in Lincoln.

So, again, where are we? For the moment anyway, stuck with LB 1, (the 72 hour bill) and the amendments that have been offered to date:

Sen. Bill Avery- AM 1- 1 year
Sen. Chris Langemeier- AM 2- 30 Days

Which is to say so far the legislators have accepted inequitable treatment, now they’re merely quibbling over the exact point that inequality will be applied.

We are still waiting for even one Nebraska legislator to step up and introduce a bill with an age cap set at zero point zero, a bill that would put a stop to the practice of child dumping in Nebraska.

The Attorney General’s opinion clearly leaves room for for a Zero point Zero bill:

Therefore, during the First Special Session, the Legislature may lower the maximum age of covered children to whatever age it chooses, or not at all.

(Emphasis added.)

In fact, given the current constraints of the special session, a Zero point Zero bill would be the ONLY means by which the legislature could effectively repeal the dump bill.

Unless and until that happens, we’re merely debating how many abandoned kids can dance on the head of that legalized dump pin.

A damn sad state of affairs, and one under which Nebraska’s kids will continue to lose.

***

All state enabled and encouraged legalized abandonment schemes fail kids.

Zero out the dump law.

***

I’ve been carefully studying the parameters of what can and cannot be done to the Nebraska dump law during the special session. If I read the Nebraska Special Session Legislative Journal first day summary (link opens a PDF) correctly, (and if their analysis on it is correct), then the legislature’s hands are in many ways tied.

Essentially, all they will be able to pass would be an age limitation on the pre-existing legalized child abandonment law. Programs to help older kids etc would apparently have to be considered separately in the upcoming session next January.

Nebraska Governor Dave Heineman in defining the goal of the special session so narrowly, has made it all but impossible for state legislators to do anything until the regular session to actually help these families in need. No matter how much legislators want to tackle the problem and build solutions, the narrow definition apparently means nothing can be done in the special session.

That said, this then provides a genuine opportunity to finally decouple getting kids and families help from child abandonment. If there’s nothing that legislators can do in the special session other than tackle the age limit, then the best thing they can do is put an end to legalized child abandonment, take abandonment out of the equation all together as the ‘costs’ of even trying to get a kid help must never be the world they’ve known, their family, friends, school, and home.

But ultimately Kids and families are not getting the help they need with the legalized abandonment law, doubly so for the 12 “attempted abandonments” not even counted in the official Nebraska tabulation. For those 12 kids, they have been by and large shit-outta-luck, to the point of even being written out of the official history. For them, the Nebraska “haven” was anything but.

The very reason the law was passed in the first place was allegedly to protect kids in immediate danger, yet none of the kids surrendered were found to be in danger of immanent harm by Nebraska’s own DHHS.

Further, the existing law, as we’ve documented here in these blog posts in excruciating detail causes additional harm.

Rather than a second failed attempt at an aged down dump law, (a dump law 2.0) and a missed opportunity, it’s time for Nebraska legislators to take the lead. Join Washington D.C. in being a real haven for kids, where no children can be dumped legally.

Age the dump law down to 0.0.

Within the parameters the Governor has set out, that would be the closest in practice legislators could fashion to full, permanent repeal until January. It would put on the age cap the governor has mandated, but also stop the practice of legalized child dumping in Nebraska.

Any other age limit is arbitrary.

Some kids would be dumpable, some would not. (Just as currently, many arbitrary decisions are being made about which kids will be accepted and which are being rejected.)

Zero point zero is the only way for Nebraska to ensure all kids receive “Equality Before the Law”

ZeropointZero is the only way to be fair. It ensures all Nebraska’s children are treated equally.

Any other age limit artificially creates multiple tiers of differing treatment under Nebraska law.

Speaking as an adoptee from a State with multiple tiers of records access, I can explain in no uncertain terms what it means to be treated differently merely because my birthdate falls on an arbitrarily determined side of an artificially created line. It has meant living daily with the realities of unequal treatment under law.

What kids desperately need now is an advocate, a legislator willing to stand up for them and present a Zero point Zero bill.

As things currently stand in the special session, not one legislator has introduced any form of bill to end the practice of child dumping. The clock is ticking. As I’ve said over and over again, every single day a dump law is on the books is bad for kids.

How many more kids are going to have to undergo legalized abandonment before someone in a position to actually change their circumstances finally stands up to say “enough!”?

Worse, how many more kids are going to have to undergo legalized abandonment under dump law 2.0 as a result of an arbitrarily thrown together piece of legislation that was less than a week from introduction to being enacted?

Kids deserve better than abandonment, at any age.

Zero out the dump law!