REQUESTED BY: Stephen L. Von Riesen, Hall County Attorney
OPINION BY: Paul L. Douglas, Attorney General, J. Kirk Brown, Assistant Attorney General
QUESTION: Do the provisions of LB 568 which mandate certain conditions of probation violate the power of the courts under the separation of powers doctrine?
You inquire whether, by the creation of mandatory conditions of probation, the Legislature has violated Article II, Constitution of the State of Nebraska, regarding separation of governmental powers. Implicit in this inquiry is the question of whether the courts of this state have inherent power to place a person on probation.
The concept that Nebraska courts have powers of probation in the absence of legislative authorization was rejected in Cooper v. State, 100 Neb. 367, 160 N.W. 92 (1916). That theory was again specifically rejected in State v. Randolph, 183 Neb. 506, 162 N.W.2d 123 (1968). If the Legislature has the sole authority in this state to create the option of probation and to deny probation to specific classes of offenses, in our opinion it does not violate the concept of separation of powers by mandating certain conditions of probation for specific offenses.