Teens were allegedly abused by state employees. It will be hard to sue the state.

The former state employee who sexually abused Jennifer Martin’s son now sits in jail. But Martin sees the employee’s impact every day: Her 17-year-old son is more anxious, quicker to anger. 

She resents the state of Nebraska for the abuse that happened at  the state-run Youth Rehabilitation and Treatment Center in Kearney. And she can think of one way the state could start to make amends: continuing to pay for his therapy. Right now, it’s court-ordered. Someday, it won’t be.

But parents like Martin have few good options to sue the state for money. In Nebraska, lawyers say, it’s nearly impossible to successfully sue under state law for abuse committed by public employees.

State senators have consistently tried to change the related laws. But they have been met with resistance from other lawmakers and state leaders who often cite the potential cost to taxpayers. That was the case in 2024, when Gov. Jim Pillen vetoed a bill meant to help victims of child abuse in political subdivisions like public schools.

At least 37 boys have raised sexual-abuse-related allegations at YRTC-Kearney, according to a report from the Inspector General of Nebraska Child Welfare. The same report found that the center’s culture allowed the abuse.

The scandal is injecting new energy into lawmakers’ reform efforts ahead of the 2027 session. The Governor’s Office didn’t answer when asked by the Flatwater Free Press if Pillen would oppose a bill meant to make it easier for the YRTC families to sue the state for compensation.

“If indeed it is such a cost burden upon government entities and taxpayers, how many child abusers and sexual predators are they employing in the first place?” said state Sen. Danielle Conrad, a Democrat from Lincoln who supported the vetoed bill.

At the heart of the issue is sovereign immunity, a doctrine reaching back to common law in England barring kings from being sued in their courts. 

Nebraska law allows people to sue the state for money to address property damage, injuries and death caused by a public employee’s “negligent or wrongful act or omission.” Crucially, it also includes a list of exempt situations.

A decade ago, someone could have successfully brought a claim against the state in a case of abuse by state employees, said former state Sen. Steve Lathrop, a Democrat and personal injury attorney who chaired the Legislature’s Judiciary Committee. They could have argued that negligent hiring practices or negligent supervision allowed the abuse.

Then, in 2020, came the Nebraska Supreme Court decision in Moser v. State. 

“Moser is watershed from the perspective that we were doing things a completely different way before that case,” said Jennifer Turco Meyer, board president of the Nebraska Association of Trial Attorneys.

In that case, a state prison inmate nearing his parole hearing was killed by his roommate, who was serving a life sentence for murder. Prison authorities  had  double-bunked them in restrictive housing, allegedly bucking prison regulations while ignoring red flags that included the killer’s objection.

The Supreme Court found, by a 5-1 margin, that the state had immunity from a negligence lawsuit because of an exemption for claims “arising out of” assault or battery. 

Lawmakers “may wish to revisit” sovereign immunity in cases like this, then-Chief Justice Michael Heavican wrote for the majority. But that’s their job, he wrote, and not the court’s.

The lone dissenting judge, Justice Lindsey Miller-Lerman, called it “dubious” that they would choose to interpret the same statutory language differently than the U.S. Supreme Court had.

“The Moser case means never having to say you’re sorry,” said Maren Chaloupka, an attorney in Scottsbluff.

Just four months after that decision, Lathrop and state Sen. Justin Wayne, both Democrats from Omaha, proposed bills to address it. One made it to the floor. Neither passed into law.

Many more attempts to change the relevant laws for the state and political subdivisions followed, including from former state Sen. Steve Halloran, a Republican from Hastings. The Judiciary Committee approved and prioritized his bill in 2023, but it never came up for a vote by the full Legislature. 

Another Wayne bill was the closest to becoming law. It specifically applied to political subdivisions like school districts and the abuse of children. 

“If your argument is schools will go broke, then we‬ have a bigger problem,” Wayne said in floor debate. 

It passed the full Legislature in 2024 on the final day of session, on a 28-17 vote. Pillen vetoed it, and it was too late for an override vote.

In a letter explaining his veto, Pillen said the bill was too broad. It would “substantially erode sovereign immunity protections” and cost taxpayers, he wrote. 

Lawmakers of both major political parties have taken issue with that veto.

“It’s very easy, on one hand, to say that your purpose in life is to protect children,” Halloran said in a phone interview. “And then, on the other hand, protecting government subdivisions from a liability lawsuit supersedes that. I mean, which is it?”

Conrad has introduced bills since, but they haven’t left the Judiciary Committee after facing resistance from chair Sen. Carolyn Bosn and others. Bosn, Republican from Lincoln, said in an interview that she had seen only one version of a bill like this she would support: a compromise amendment to Wayne’s bill that never went anywhere.

“Hitting a private business in the pocketbook does motivate change. … Hitting a public entity just results in higher taxes,” Bosn said in floor debate.

Conrad plans to introduce legislation again in 2027, and Bosn said she has heard of others working on the issue, as well. 

“I have, and remain open to having, those conversations,” she said.

Bosn said offender accountability needs to be lawmakers’ top priority, along with setting standards for preventative measures like employee background checks, training and education.

A spokeswoman for Pillen declined to answer whether Pillen would sign a bill to open a path for YRTC families to sue. She declined to offer other actions the state might take to help the boys that state employees allegedly harmed.

“The Governor’s office will not speculate as to hypothetical future legal or legislative scenarios,” spokeswoman Laura Strimple said in an email. “That would not be in the interest of the victims, nor of the taxpayers.”

Right now, the victims’ families have limited options if they want money from the state.

Maybe they will have enough evidence for a federal civil rights case, Chaloupka and others said. The Moser case, for example, went forward at the federal level and settled.

That’s a long road and much heavier lift, Chaloupka said. Keith Dornan, a lawyer for Martin’s family, said this is the route they intend to take.

“We have attempted to communicate with the Attorney General’s Office to resolve this, and we haven’t heard anything back from them,” Dornan said. “And so, filing in federal court is the only option we have available.”

They could get restitution in an abuser’s criminal case, Meyer said. But restitution is difficult if it’s not a property crime, said Buffalo County Attorney Shawn Eatherton, whose office is prosecuting former YRTC employees. 

In the criminal case of Martin’s abuser, Martha Ruiz Palacios, Eatherton said nothing was provided – such as counseling or medical bills – that the court could consider for restitution. 

Three other ex-employees have been arrested and charged related to their conduct with teens at the YRTC. Prosecutors recently filed to dismiss charges against two of them, Katrina Fewkes and Tarah Ross, because they couldn’t find their alleged victim. Judges dismissed the cases. Eatherton said his office intends to refile if the victim is located.

A family also could sue the ex-employee who abused their child, said Wayne, but it’s unlikely that person has much money or a solid job.

Or they could try to bring a negligence claim against the state and argue theories that haven’t been addressed in other Supreme Court cases, Meyer said.

There are cases working through state courts today that could provide some clarity on when exemptions apply. 

Earlier this year, the state Supreme Court heard arguments in a case in which a mom sued a school district, arguing the school was negligent in supervising staff who abused their largely nonverbal, disabled son. In part, lawyers argued their claims don’t fall under the exemption for claims “arising out of” assault because the abuse was emotional.

But the most obvious path, lawyers say, is currently blocked.

The issue of when and how Nebraskans can sue the government is bigger than any one alleged victim or case argued current and former lawmakers from both political parties. Without this route to hold the state accountable, they argued that the state is short on incentives to quickly address bad behavior.  

“Without strong accountability and oversight measures in place … it perpetuates a culture of abuse and increases the risk and incentive for abuse to continue,” Conrad said. “We don’t and we wouldn’t allow this to happen in our homes or our businesses or our private schools.”

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