State v. Coble , 299 Neb. 434 ( 2018 )


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    Nebraska Supreme Court A dvance Sheets
    299 Nebraska R eports
    STATE v. COBLE
    Cite as 
    299 Neb. 434
    State of Nebraska, appellee, v.
    K aitlyn N. Coble, appellant.
    ___ N.W.2d ___
    Filed March 23, 2018.    No. S-17-769.
    1.	 Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
    dictional issue which does not involve a factual dispute is a matter of
    law which requires an appellate court to reach its conclusions indepen-
    dent from a trial court.
    2.	 Jurisdiction: Appeal and Error. Before reaching the legal issues
    presented for review, it is the duty of an appellate court to determine
    whether it has jurisdiction over the matter before it.
    3.	 Courts: Final Orders: Appeal and Error. Final orders and judgments
    issued by a county court may be appealed to district court.
    4.	 Courts: Final Orders: Jurisdiction: Appeal and Error. A district
    court order affirming, reversing, or remanding an order or judgment of
    the county court is itself a final order that an appellate court has jurisdic-
    tion to review.
    5.	 Judgments. An order affecting a substantial right that is issued upon a
    summary application in an action after judgment under Neb. Rev. Stat.
    § 25-1902 (Reissue 2016) is an order ruling on a postjudgment motion
    in an action.
    6.	 Words and Phrases. A substantial right is an essential legal right, not a
    mere technical right.
    7.	 Criminal Law: Judgments. An order regarding the statutory right to
    remove criminal record history information from the public record pur-
    suant to Neb. Rev. Stat. § 29-3523 (Reissue 2016) affects a substantial
    right for purposes of Neb. Rev. Stat. § 25-1902 (Reissue 2016).
    8.	 Jurisdiction: Appeal and Error. Where a lower court lacks subject
    matter jurisdiction to adjudicate the merits of a claim, issue, or question,
    an appellate court also lacks the power to determine the merits of the
    claim, issue, or question presented to the lower court.
    9.	 ____: ____. When an appellate court is without jurisdiction to act, the
    appeal must be dismissed. However, an appellate court has the power to
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    determine whether it lacks jurisdiction over an appeal because the lower
    court lacked jurisdiction to enter the order; to vacate a void order; and,
    if necessary, to remand the cause with appropriate directions.
    10.	 Pleadings: Words and Phrases. In a legal action, the function of a
    motion is not to initiate new litigation, but to bring before the court for
    ruling some material but incidental matter arising in the progress of the
    case in which the motion is filed.
    11.	 Jurisdiction. Jurisdiction over a motion is dependent upon the court’s
    having jurisdiction over the case in which the motion is filed.
    12.	 ____. A court has jurisdiction to issue orders on motions pertaining to
    incidental matters within the scope of the action over which the court
    has jurisdiction.
    13.	 Actions: Jurisdiction. A court lacks subject matter jurisdiction to hear
    motions that seek an order granting relief beyond the scope of the action
    at hand unless the motion is authorized by statute. A litigant must file a
    new action when seeking such relief.
    14.	 Actions: Words and Phrases. An action is a distinct and separate
    court proceeding, governed by separate pleadings and requiring a sepa-
    rate process.
    15.	 Courts: Appeal and Error. A higher court is not bound by a precedent
    of an inferior court under the doctrine of stare decisis.
    16.	 ____: ____. The doctrine of stare decisis does not require a court to
    blindly perpetuate its prior interpretation of the law if it concludes the
    prior interpretation was clearly incorrect.
    17.	 Statutes: Judicial Construction: Legislature: Presumptions: Intent.
    Where a statute has been judicially construed and that construction has
    not evoked an amendment, it will be presumed that the Legislature has
    acquiesced in the court’s determination of the Legislature’s intent.
    18.	 Statutes: Judicial Construction: Legislature: Intent. The doctrine of
    legislative acquiescence applies only when there is a statutory provision
    to interpret.
    19.	 ____: ____: ____: ____. A court’s holding is not protected by the doc-
    trine of legislative acquiescence, if it does not purport to interpret the
    statutory text.
    Appeal from the District Court for Lancaster County, John
    A. Colborn, Judge, on appeal thereto from the County Court
    for Lancaster County, M atthew L. Acton, Judge. Vacated and
    dismissed.
    Jennifer Gaughan and Marian G. Heaney, of Legal Aid of
    Nebraska, for appellant.
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    STATE v. COBLE
    Cite as 
    299 Neb. 434
    Marcee A. Brownlee, Assistant Lincoln City Attorney, for
    appellee.
    Christopher L. Eickholt, of Eickholt Law, L.L.C., and Amy
    A. Miller, of American Civil Liberties Union Foundation of
    Nebraska, for amicus curiae American Civil Liberties Union
    of Nebraska.
    Ryan P. Sullivan, for amicus curiae University of Nebraska
    Civil Clinical Law Program.
    Heavican,   C.J.,   Miller-Lerman,          Cassel,   Stacy,   and
    Funke, JJ.
    Funke, J.
    I. INTRODUCTION
    Kaitlyn N. Coble filed a motion to seal the record of
    her citation for two misdemeanors which were subsequently
    dismissed. The county court overruled Coble’s motion, and
    the district court affirmed. We conclude that Coble’s motion
    was not authorized by statute and that thus, the county court
    lacked jurisdiction to consider the motion. As a result, the
    district court and this court lack jurisdiction to review the
    merits of the county court’s order. We do not reach the merits
    of whether Coble would be entitled to have her record sealed
    were she to use a proper procedure. We vacate the county
    court and district court orders and dismiss this appeal.
    II. BACKGROUND
    In 2013, Coble, who was 18 years of age at the time, was
    issued a uniform complaint and citation for two misdemeanors.
    After completing a diversion program, the charges were dis-
    missed on the city attorney’s motion.
    In 2017, Coble filed a motion in the county court for
    Lancaster County, under the same case number as her crimi-
    nal case, captioned as “Motion to Seal Records.” It requested
    that the court issue an “[o]rder making all the records
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    associated with this case ‘non-public’ pursuant to Neb. Rev.
    Stat. § 29-3523.” The county court issued an order overruling
    Coble’s motion.
    In doing so, the county court concluded that the proce-
    dure utilized by Coble (filing a motion to seal in the criminal
    case), in spite of having no basis in Neb. Rev. Stat. § 29-3523
    (Reissue 2016), was authorized by the Nebraska Court of
    Appeals’ opinion in State v. Blair.1
    The court then concluded that Coble was seeking retroactive
    application of a recent statutory amendment to § 29-3523, but
    the court refused to apply it retroactively because it deemed
    the amendment to be a substantive change. The court then
    determined that under the version of the statute in effect at the
    time of the dismissal of Coble’s charges, the statute applied
    only to a “notation of arrest,”2 not to records of citations. Thus,
    the court concluded that Coble was not entitled to the relief
    she sought.
    Coble appealed to the district court, which generally agreed
    with the county court’s analysis and affirmed.
    III. ASSIGNMENTS OF ERROR
    Coble’s two assignments of error, restated and summarized,
    claim that the district court erred by affirming the county
    court’s order overruling her motion to seal.
    IV. STANDARD OF REVIEW
    [1] Determination of a jurisdictional issue which does not
    involve a factual dispute is a matter of law which requires an
    appellate court to reach its conclusions independent from a
    trial court.3
    1
    State v. Blair, 
    17 Neb. Ct. App. 611
    , 
    767 N.W.2d 143
    (2009).
    2
    See § 29-3523 (Reissue 2008).
    3
    Kozal v. Nebraska Liquor Control Comm., 
    297 Neb. 938
    , 
    902 N.W.2d 147
          (2017).
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    STATE v. COBLE
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    V. ANALYSIS
    1. Jurisdiction: Final Order
    [2] Before reaching the legal issues presented for review, it
    is the duty of an appellate court to determine whether it has
    jurisdiction over the matter before it.4
    The State argues that this court lacks appellate jurisdiction
    because the county court’s order was not a final, appealable
    order. While the county court’s order was a final order, we
    conclude that the county court lacked subject matter jurisdic-
    tion to enter the order. Thus, we lack jurisdiction to review
    the merits of the county court’s order.
    [3,4] Final orders and judgments issued by a county court
    may be appealed to district court.5 A district court order affirm-
    ing, reversing, or remanding an order or judgment of the
    county court is itself a final order that an appellate court has
    jurisdiction to review.6
    Neb. Rev. Stat. § 25-1902 (Reissue 2016) defines three cat-
    egories of final orders:
    An order affecting a substantial right in an action,
    when such order in effect determines the action and pre-
    vents a judgment, and an order affecting a substantial
    right made in a special proceeding, or upon a summary
    application in an action after judgment, is a final order
    which may be vacated, modified or reversed, as provided
    in this chapter.7
    [5] An order “affecting a substantial right” that is issued
    “upon a summary application in an action after judgment”
    under § 25-1902 is “an order ruling on a postjudgment motion
    in an action.”8
    4
    Id.
    5
    Neb. Rev. Stat. § 25-2728 (Reissue 2016). See, also, Boyd v. Cook, 
    298 Neb. 819
    , 
    906 N.W.2d 31
    (2018).
    6
    Orr v. Knowles, 
    215 Neb. 49
    , 
    337 N.W.2d 699
    (1983). See, also, Neb. Rev.
    Stat. § 25-1911 (Reissue 2016).
    7
    See, also, Boyd v. Cook, supra note 5.
    8
    See Heathman v. Kenney, 
    263 Neb. 966
    , 969, 
    644 N.W.2d 558
    , 561 (2002).
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    Coble sought to seal the record of her citation by filing a
    motion in the case in which she had been charged. However,
    Coble’s case had been dismissed years earlier, after she com-
    pleted a diversion program. Because the case had already been
    dismissed, the county court’s order overruling Coble’s motion
    was an order ruling on a postjudgment motion.9
    [6,7] And the order affects a substantial right. A substantial
    right is an essential legal right, not a mere technical right.10 The
    right invoked by Coble was the statutory right to remove the
    record of her citation from the public record, no mere technical
    right. Thus, the county court’s order on Coble’s motion was
    a final order, because it affected a substantial right and was
    issued upon a summary application in an action after judgment.
    2. L.B. 505
    Before addressing the dispositive jurisdictional issue in this
    case, we review the recent amendments to § 29-3523 in 2016
    Neb. Laws, L.B. 505. Section 29-3523 generally protects cer-
    tain criminal history record information and prohibits, subject
    to exceptions, the dissemination of this information.
    In 2016, the Legislature enacted significant amendments to
    § 29-3523 in L.B. 505. The stated purpose of the enactment
    was to “strengthen the privacy provisions of Neb. Rev. Stat.
    §29-3523” in order to “protect[] legally innocent Nebraskans
    from the stigma of a permanent public criminal record.”11
    While the previous version of the statute applied only to
    a “notation of arrest,”12 L.B. 505 amended the statute to pro-
    vide that “in the case of an arrest, citation in lieu of arrest, or
    referral for prosecution without citation, all criminal history
    record information relating to the case shall be removed from
    9
    See 
    id. 10 In
    re Interest of LeVanta S., 
    295 Neb. 151
    , 
    887 N.W.2d 502
    (2016).
    11
    Introducer’s Statement of Intent, L.B. 505, 104th Leg., 1st Sess. (Feb. 5,
    2015).
    12
    § 29-3523 (Reissue 2008).
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    the public record” as specified by the statute under certain
    circumstances, such as a dismissal or acquittal of the crimi-
    nal charges.13
    L.B. 505 also provides that when criminal charges are filed,
    but are then dismissed or the defendant is acquitted, the court
    must then “[o]rder that all records, including any information
    or other data concerning any proceedings relating to the case
    . . .”14 be sealed and provide notice of the order to relevant
    criminal justice agencies.15
    3. Jurisdiction: Subject
    M atter Jurisdiction
    In this case, we need not reach the merits of whether Coble
    is entitled to have the record of her case sealed, because we
    conclude that the county court lacked subject matter juris-
    diction to reach that question. Coble’s motion to seal sought
    relief that went beyond the scope of the original criminal
    case in which it was filed, and the motion was not authorized
    by statute.
    [8,9] Where a lower court lacks subject matter jurisdic-
    tion to adjudicate the merits of a claim, issue, or question, an
    appellate court also lacks the power to determine the merits
    of the claim, issue, or question presented to the lower court.16
    When an appellate court is without jurisdiction to act, the
    appeal must be dismissed. However, an appellate court has the
    power to determine whether it lacks jurisdiction over an appeal
    because the lower court lacked jurisdiction to enter the order;
    to vacate a void order; and, if necessary, to remand the cause
    with appropriate directions.17
    13
    § 29-3523(3) (Reissue 2016).
    14
    § 29-3523(4)(a).
    15
    See Neb. Rev. Stat. § 29-3509 (Reissue 2016) (defining “[c]riminal justice
    agency”).
    16
    Kozal v. Nebraska Liquor Control Comm., supra note 3.
    17
    
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    Because the county court lacked jurisdiction over Coble’s
    motion, the district court and this court lack jurisdiction to
    review the merits of the county court’s order.
    (a) County Court Lacked
    Subject Matter Jurisdiction
    The jurisdictional defect in this case is not, as the State
    argued, one of finality, but is one of subject matter jurisdic-
    tion. The problem stems from the fact that Coble sought relief
    by filing a motion in a case that had been dismissed years
    earlier—a procedure that has no basis in statute—rather than
    utilizing the procedure authorized by statute to enforce the
    rights created by § 29-3523 and surrounding sections.18
    [10-13] In a legal action, the function of a motion is not to
    initiate new litigation, but to bring before the court for ruling
    some material but incidental matter arising in the progress
    of the case in which the motion is filed.19 Jurisdiction over a
    motion is therefore dependent upon the court’s having jurisdic-
    tion over the case in which the motion is filed.20 A court has
    jurisdiction to issue orders on motions pertaining to incidental
    matters within the scope of the action over which the court
    has jurisdiction.21 But it necessarily follows that a court lacks
    subject matter jurisdiction to hear motions that seek an order
    granting relief beyond the scope of the action at hand unless
    18
    See Neb. Rev. Stat. § 29-3528 (Reissue 2016).
    19
    See State v. McNerny, 
    239 Neb. 887
    , 
    479 N.W.2d 454
    (1992). See, also,
    generally, D.T. v. W.G., 
    210 So. 3d 1143
    (Ala. Civ. App. 2016); People v.
    Picklesimer, 
    48 Cal. 4th 330
    , 
    226 P.3d 348
    , 
    106 Cal. Rptr. 3d 239
    (2010);
    Hickson v. State, 
    39 Kan. App. 2d 678
    , 
    182 P.3d 1269
    (2008).
    20
    See, id.; Mtr. of North Shore Hosp. v. McConico, 
    39 Misc. 2d 1032
    ,
    
    242 N.Y.S.2d 402
    (1963) (cited by this court in State v. McNerny, supra
    note 19).
    21
    See, Morrison v. Patterson, 
    221 Iowa 883
    , 
    267 N.W. 704
    (1936) (cited by
    this court in State v. McNerny, supra note 19); Caperton v. Winston Co.
    Fair Ass’n, 
    169 Miss. 503
    , 
    153 So. 801
    (1934) (cited by this court in State
    v. McNerny, supra note 19).
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    the motion is authorized by statute.22 A litigant must file a new
    action when seeking such relief.23
    Of course, a motion that goes beyond those incidental mat-
    ters contained within the scope of a case could be authorized
    by statute.24 But in this case, § 29-3523 does not authorize the
    filing of a motion to make criminal history record information
    nonpublic. And the relief sought by a motion like Coble’s is an
    order directed to criminal justice agencies to seal the criminal
    history record information. Such relief goes beyond the scope
    of the original criminal case over which the county court had
    jurisdiction. The county court thus lacked subject matter juris-
    diction to issue an order on Coble’s motion to seal.
    Not only is there no statutory basis for enforcing the privacy
    protections of § 29-3523 by filing a motion, but the Security,
    Privacy, and Dissemination of Criminal History Information
    Act25 (of which § 29-3523 is a part) provides a different pro-
    cedure for its enforcement. Section 29-3528 provides that
    whenever a state agency or political subdivision, or offi-
    cer or employee thereof, fails to comply with the require-
    ments of various sections—including § 29-3523—“any person
    aggrieved may bring an action, including but not limited to an
    action for mandamus, to compel compliance and such action
    may be brought in the district court of any district in which
    the records involved are located or in the district court of
    Lancaster County.”
    [14] Importantly, § 29-3528 authorizes an aggrieved indi-
    vidual to “bring an action,” not to file a motion in the criminal
    case the record of which he or she seeks to seal. An “action” is
    22
    See Caperton v. Winston Co. Fair Ass’n, supra note 21.
    23
    See, id.; Mtr. of North Shore Hosp. v. McConico, supra note 20.
    24
    See, generally, State v. McNerny, supra note 19; Mtr. of North Shore
    Hosp. v. McConico, supra note 20; Morrison v. Patterson, supra note 21;
    Caperton v. Winston Co. Fair Ass’n, supra note 21.
    25
    Neb. Rev. Stat. §§ 29-209, 29-210, 29-3501 to 29-3528, and 81-1423
    (Reissue 2016).
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    a distinct and separate court proceeding, governed by separate
    pleadings and requiring a separate process.26 Thus, the proper
    procedure for Coble to enforce her rights under § 29-3523
    (assuming she could establish that her criminal history record
    information is still in the public record) would be to file a
    separate action in district court. But here, Coble did not file a
    new action in district court pursuant to § 29-3528, but, instead,
    filed a motion in county court in the case that had been ear-
    lier dismissed.
    Because the relief sought by Coble’s motion exceeded the
    scope of her criminal case and was not an incidental mat-
    ter therein, and because there was no statutory basis for her
    motion, the county court lacked jurisdiction to issue an order
    on the motion.
    (b) State v. Blair
    This conclusion runs headlong into the Court of Appeals’
    holding in State v. Blair,27 the case on which Coble relies.
    Coble correctly argues that Blair endorsed the procedure she
    utilized in seeking to vindicate her rights under § 29-3523—
    filing a motion in the case which she sought to seal. But
    we conclude that Blair wrongly approved of this procedure,
    and we disapprove of it to the extent it is inconsistent with
    this opinion.
    (i) Overview of Holding in Blair
    In Blair, the motion under review was labeled a “motion to
    expunge.”28 After the district court granted the defendant post-
    conviction relief and ordered a new trial, the county attorney
    declined to retry him and dismissed the charges. The defendant
    subsequently filed his motion to expunge the record of his
    arrest and charges pursuant to § 29-3523. The district court
    overruled the motion, and Blair appealed.
    26
    See In re Interest of D.I., 
    281 Neb. 917
    , 
    799 N.W.2d 664
    (2011).
    27
    State v. Blair, supra note 1.
    28
    
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    The State argued that the defendant’s appeal of the denial of
    his motion to expunge should not be addressed by the Court
    of Appeals, because the procedure used by the defendant was
    not authorized by § 29-3523. The then-current version of
    § 29-3523(2)(c)—now codified at § 29-3523(3)(c)—required
    that a notation of arrest be removed from the public record 3
    years after the arrest if charges were filed and then dismissed
    by the court or prosecutor. The State argued that this statutory
    language “appears to apply automatically and does not autho-
    rize a person to file a petition to expunge.”29
    The Court of Appeals rejected the State’s argument. The
    court acknowledged that the statutory language “appears to be
    self-executing—specifically, if the conditions fit, a notation of
    dismissal shall be made on the defendant’s record.”30 But it
    concluded that “even though [the defendant] did not need to
    file a petition to expunge, the fact that he did so does not mean
    that [the defendant’s] claim cannot be addressed.”31 However,
    the Court of Appeals concluded that the district court did not
    err in overruling the defendant’s motion, because he had failed
    to present any evidence that the record of his arrest was still
    part of the public record.32
    In this case, the county court and district court were correct
    insofar as they concluded that the procedure used by Coble
    was authorized by the Court of Appeals’ Blair opinion. Like
    the procedure blessed in Blair, Coble filed a motion within the
    same criminal case as the record she was seeking to seal, rather
    than filing a separate action. The procedure used by Coble is
    legally indistinguishable from that in Blair. The county and
    district courts correctly adhered to binding precedent as man-
    dated by the doctrine of vertical stare decisis.33
    29
    
    Id. at 614,
    767 N.W.2d at 146.
    30
    
    Id. 31 Id.
    32
    
    Id. 33 See
    State v. Hausmann, 
    277 Neb. 819
    , 
    765 N.W.2d 219
    (2009).
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    [15,16] However, this court is not bound by a precedent
    of the Court of Appeals under the doctrine of stare decisis.34
    Further, even if a Court of Appeals’ decision was afforded the
    same weight as one of our own precedents, the doctrine of
    stare decisis does not require us to blindly perpetuate a prior
    interpretation of the law if we conclude the prior interpreta-
    tion was clearly incorrect.35 As we have set forth, the filing
    of a motion to seal criminal history records under § 29-3523
    is not authorized by statute. Therefore, the holding in Blair
    was incorrect.
    However, Coble argues that we should adhere to the Blair
    decision under the doctrine of legislative acquiescence.
    (ii) Legislative Acquiescence
    [17] We have said that “[w]here a statute has been judicially
    construed and that construction has not evoked an amendment,
    it will be presumed that the Legislature has acquiesced in the
    court’s determination of the Legislature’s intent.”36
    [18,19] But the doctrine of legislative acquiescence applies
    only when there is a statutory provision to interpret.37 In
    Heckman v. Marchio,38 we rejected the argument that we
    should adhere to our prior decisions creating the collateral
    order doctrine of appellate jurisdiction, because those decisions
    “never purported to interpret a statute as allowing for” such
    appeals. Similarly here, there is simply no statutory provision
    allowing for the use of a motion to enforce the rights set forth
    34
    See State v. Barranco, 
    278 Neb. 165
    , 
    769 N.W.2d 343
    (2009).
    35
    See Davis v. State, 
    297 Neb. 955
    , 
    902 N.W.2d 165
    (2017).
    36
    Heckman v. Marchio, 
    296 Neb. 458
    , 465, 
    894 N.W.2d 296
    , 301 (2017).
    37
    
    Id. See, generally,
    Jones v. Liberty Glass Co., 
    332 U.S. 524
    , 
    68 S. Ct. 229
    ,
    
    92 L. Ed. 142
    (1947); State v. Spencer Gifts, LLC, 
    304 Kan. 755
    , 
    374 P.3d 680
    (2016); Wenke v. Gehl Co., 
    274 Wis. 2d 220
    , 
    682 N.W.2d 405
    (2004);
    Hoffman v. ND Workers Compensation Bureau, 
    651 N.W.2d 601
    (N.D.
    2002).
    38
    Heckman v. Marchio, supra note 
    36, 296 Neb. at 465
    , 894 N.W.2d at
    302-03.
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    in § 29-3523 (with the inapplicable exception of subsection
    (6)). The extent of the Court of Appeals’ reasoning in Blair
    on this issue was that “even though [the defendant] did not
    need to file a petition to expunge, the fact that he did so does
    not mean that [the defendant’s] claim cannot be addressed.”39
    This conclusion is not protected by the doctrine of legislative
    acquiescence, because it does not purport to interpret the statu-
    tory text.
    VI. CONCLUSION
    We need not and do not address the merits of whether Coble
    was entitled to the relief she sought. Nor do we endorse the
    county and district courts’ conclusion that Coble was seeking
    a retroactive application40 of the amendments in L.B. 505 to
    § 29-3523. Because we conclude that the county court lacked
    jurisdiction, we lack jurisdiction and the district court lacked
    jurisdiction to review the merits of the county court’s order.
    We vacate the county court’s order and the district court’s order
    and dismiss this appeal.
    Vacated and dismissed.
    Wright and K elch, JJ., not participating.
    39
    State v. Blair, supra note 1, 17 Neb. App. at 
    614, 767 N.W.2d at 146
    .
    40
    See, generally, Millennium Solutions v. Davis, 
    258 Neb. 293
    , 
    603 N.W.2d 406
    (1999); Antonin Scalia & Bryan A. Garner, Reading Law: The
    Interpretation of Legal Texts 263 (2012) (discussing presumption against
    retroactivity and stating that “retroactivity ought to be judged with regard
    to the act or event that the statute is meant to regulate”).