Unicameral standards for county diversion programs OK under Sep-Powers

Polikov v. Neth, 270 Neb. 29 June 24, 2005. No. S-04-081. State standards the Unicameral imposed upon county diversion programs did not violate the Nebraska Separation of Powers doctrine of State Constitution.Neb. Const. art. II, § 1. The court concludes that for formal diversion programs the power to design a formal pretrial diversion program is a legislative function and that thus, §§ 29-3601 through 29-3609 do not violate the separation of powers clause. When a county attorney prosecutes crimes and traffic offenses, the prosecutor acts on behalf of the State of Nebraska and not just his county. Prosecutors have discretion whether to charge anyone with a crime, therefore the court holds that the formal diversion procedures do not close out continued use of informal diversion on a case by case basis. Sarpy county was well known for allowing diversion for a wide range of traffic offenses including DWI, in part to patronize non-profit organizations that conducted the traffic programs. It appears that although the programs will have to scale back, they still may be under the table.