State v. Denton , 307 Neb. 400 ( 2020 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
10/23/2020 09:13 AM CDT
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. DENTON
Cite as 307 Neb. 400
State of Nebraska, appellee, v.
Elijah W. Denton, appellant.
___ N.W.2d ___
Filed October 2, 2020. No. S-19-939.
1. Appeal and Error. To be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued in the
brief of the party asserting the error.
2. Constitutional Law: Statutes: Appeal and Error. The constitutionality
of a statute presents a question of law, which an appellate court indepen-
dently reviews.
3. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. An appellant challenging the constitutionality of a statute
must strictly comply with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014).
4. Constitutional Law: Rules of the Supreme Court: Statutes: Notice:
Appeal and Error. Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) requires
that a party presenting a case involving the federal or state constitution-
ality of a statute must file and serve notice thereof with the Supreme
Court Clerk by separate written notice or in a petition to bypass at the
time of filing such party’s brief.
5. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. Strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev.
2014) is necessary whenever a litigant challenges the constitutional-
ity of a statute, regardless of how that constitutional challenge may
be characterized.
Appeal from the District Court for Lancaster County, Jodi
L. Nelson, Judge, on appeal thereto from the County Court
for Lancaster County, Joseph E. Dalton, Judge. Judgment of
District Court affirmed.
David Tarrell, of Berry Law Firm, for appellant.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. DENTON
Cite as 307 Neb. 400
Robert E. Caples, Assistant Lincoln City Prosecutor, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Elijah W. Denton implicitly attacks the constitutionality of
a state statute 1 prohibiting jury trials for criminal cases arising
under city ordinances. Denton was denied a jury trial for the
alleged violation of a municipal ordinance prohibiting battery, 2
despite a separate ordinance 3 imposing a 10-year ban upon
possession of firearms by a person convicted of violating the
battery ordinance. On appeal to this court from his convic-
tion and sentence under the battery ordinance, Denton failed
to comply with the procedural rule governing constitutional
challenges to statutes. 4 Because we strictly apply the rule, we
affirm the judgment.
BACKGROUND
Denton’s legal challenge does not rely upon any facts under-
lying his conviction. Thus, we need not summarize them.
Instead, Denton relies upon three city ordinances. The bat-
tery ordinance 5 defined the crime of which he was con-
victed. For a conviction under the battery ordinance, a pen-
alty ordinance 6 prescribed a maximum penalty of 6 months’
­imprisonment, a $500 fine, or both, 7 and directed that the
1
Neb. Rev. Stat. § 25-2705 (Reissue 2016).
2
Lincoln Mun. Code § 9.12.010(b) (1997) (battery ordinance).
3
See Lincoln Mun. Code § 9.36.100 (2008) (firearm ban ordinance).
4
See Neb. Ct. R. App. P. § 2-109(E) (rev. 2014).
5
See § 9.12.010(b) (“[i]t shall be unlawful for any person intentionally,
knowingly, or recklessly to: 1. Cause bodily injury to another person; or 2.
Strike another person”).
6
Lincoln Mun. Code § 1.24.010 (2006) (penalty ordinance).
7
§ 1.24.010(a).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. DENTON
Cite as 307 Neb. 400
penalty be “­cumulative with and in addition to . . . any other
penalty, punishment, or sentence specified by this code.” 8
The firearm ban ordinance stated in relevant part: “It shall
be unlawful for any person to possess any firearm within the
corporate limits or on any property of the City of Lincoln
outside the corporate limits when that person has been con-
victed of any one of the following offenses within the last ten
years: . . . the [battery ordinance].” 9
Prior to trial, Denton filed a written motion for jury trial.
After a hearing, the county court pronounced a denial of
the motion. The court’s written order overruled the motion,
because “any possible collateral consequences under the
Lincoln Municipal Code does not make the instant offense a
serious offense thus entitling [Denton] to a trial by jury under
either the U.S. or Nebraska Constitutions.”
Following a bench trial, the county court convicted Denton
of violating the battery ordinance. The court imposed only a
$250 fine.
Denton timely appealed the county court judgment to the
district court. The district court relied in part upon § 25-2705,
which states in pertinent part that “[e]ither party to any case
in county court, except criminal cases arising under city . . .
ordinances, . . . may demand a trial by jury.” The district court
affirmed the county court’s judgment.
Denton filed a timely appeal to the Nebraska Court of
Appeals. At the time he filed his appellate brief, he did not
file or serve either “a separate written notice or [a] notice in
a Petition to Bypass” regarding “the federal or state consti-
tutionality” of § 25-2705. 10 We moved Denton’s appeal to
our docket. 11
8
§ 1.24.010(c).
9
§ 9.36.100.
10
See § 2-109(E).
11
Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. DENTON
Cite as 307 Neb. 400
ASSIGNMENT OF ERROR
Denton’s brief on appeal assigns only one error: The district
court erred in affirming the county court’s denial of his motion
for a jury trial.
[1] Prior to filing his brief in the Court of Appeals, Denton
filed a “Notice of Errors.” In that document, Denton also
assigned that the district court erred in affirming the county
court’s denial of his disclosure motion. But to be considered by
an appellate court, an alleged error must be both specifically
assigned and specifically argued in the brief of the party assert-
ing the error. 12 Denton does not assign nor argue the alleged
disclosure motion error in his brief, and therefore, we will not
address it.
STANDARD OF REVIEW
[2] The constitutionality of a statute presents a question of
law, which an appellate court independently reviews. 13
ANALYSIS
[3,4] An appellant challenging the constitutionality of a stat-
ute must strictly comply with § 2-109(E). 14 Section 2-109(E)
requires that a party presenting a case involving the federal or
state constitutionality of a statute must file and serve notice
thereof with the Supreme Court Clerk by separate written
notice or in a petition to bypass at the time of filing such par-
ty’s brief. 15 The party must also provide the Attorney General
with a copy of its brief. 16 Without strict compliance with
12
State v. Dixon, 306 Neb. 853, 947 N.W.2d 563 (2020).
13
State v. Jenkins, 303 Neb. 676, 931 N.W.2d 851 (2019), cert. denied ___
U.S. ___, 140 S. Ct. 2704, 206 L. Ed. 2d 844 (2020).
14
See, State v. Epp, 299 Neb. 703, 910 N.W.2d 91 (2018); State v. Boche,
294 Neb. 912, 885 N.W.2d 523 (2016).
15
Epp, supra note 14.
16
See Boche, supra note 14.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. DENTON
Cite as 307 Neb. 400
§ 2-109(E), this court will not address a constitutional chal-
lenge to a statute. 17
Section 2-109(E) ensures that this court has notice of a con-
stitutional challenge. 18 As the Nebraska Constitution empowers
this court to declare a legislative act unconstitutional only by
a supermajority of at least five judges, the court must secure a
full court to hear an appeal regarding the constitutionality of a
statute. 19 Section 2-109(E) assists the court to do so.
Section 2-109(E) also guarantees that notice of a consti-
tutional challenge to a statute is provided to the Attorney
General. The statutes may not precisely articulate the Attorney
General’s duty to defend the constitutionality of state stat-
utes. 20 But in State v. Douglas, 21 we recognized that the
Attorney General has some duties which are not purely statu-
tory and are sometimes referred to as the “common-law duties
of the office.” There, we cited a treatise which articulates the
common-law duties of the Attorney General, including that he
or she must defend duly adopted statutory enactments that are
not unconstitutional. 22 Because the Attorney General cannot
defend the constitutionality of a statute if the Attorney General
has not been notified of the challenge, strict compliance with
§ 2-109(E) is necessary to ensure that the appeal may be
staffed and handled accordingly. 23
[5] Because notice is needed, strict compliance with
§ 2-109(E) is necessary whenever a litigant challenges the
17
See, Epp, supra note 14; Boche, supra note 14.
18
See Boche, supra note 14.
19
See id. See, generally, Neb. Const. art. V, § 2.
20
See, Neb. Rev. Stat. § 84-203 (Reissue 2014) (“authorized to . . . defend
. . . any . . . matter . . . in which the state may be . . . interested”); Neb.
Rev. Stat. § 84-205(10) (Reissue 2014).
21
State v. Douglas, 217 Neb. 199, 349 N.W.2d 870 (1984).
22
See, id.; 7 Am. Jur. 2d Attorney General § 5 (2017) (citing Com. ex rel.
Beshear v. Com. ex rel. Bevin, 498 S.W.3d 355 (Ky. 2016)).
23
See Boche, supra note 14.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. DENTON
Cite as 307 Neb. 400
constitutionality of a statute, regardless of how that consti-
tutional challenge may be characterized. 24 It does not mat-
ter if the litigant explicitly challenges a statute, as this court
remains bound to the requirements of article V of the Nebraska
Constitution. 25 Therefore, as long as this court must deter-
mine the constitutionality of a statute in deciding an appeal,
§ 2-109(E) applies. 26
Here, Denton implicitly challenges the constitutionality of
§ 25-2705, which precludes a defendant from obtaining a jury
trial for the criminal prosecution of an ordinance. 27 Denton
argues that § 25-2705 cannot apply to him because his con-
stitutional right to a jury trial was triggered by the additional
penalties he will suffer from being convicted of violating the
assault ordinance. 28 Even if we agree with Denton, we cannot
provide him a jury trial without declaring § 25-2705 unconsti-
tutional as applied in his case, because the statute leaves no
discretion for a court to grant a jury trial for the criminal pros-
ecution of a city ordinance violation. 29
Because Denton implicitly challenged the constitutionality
of § 25-2705, he needed to comply with § 2-109(E). Denton
did not provide a separate notice or a petition to bypass to
the Supreme Court Clerk. 30 On appeal to this court, the State
is represented by an assistant city attorney. Our record does not
show that the Attorney General received a copy of Denton’s
brief. 31 Consequently, Denton failed to provide notice to this
court and the Attorney General. He did not strictly comply
24
See Smith v. Wedekind, 302 Neb. 387, 923 N.W.2d 392 (2019).
25
See id. See, generally, Neb. Const. art. V, § 2.
26
See Wedekind, supra note 24.
27
See State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992).
28
See § 9.36.100(a).
29
See Cozzens, supra note 27.
30
See § 2-109(E).
31
See id.
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Nebraska Supreme Court Advance Sheets
307 Nebraska Reports
STATE v. DENTON
Cite as 307 Neb. 400
with § 2-109(E), and therefore, we cannot consider Denton’s
only assigned error.
CONCLUSION
Denton implicitly challenged the constitutionality of a stat-
ute, but he failed to provide notice as required by § 2-109(E).
Because we are unable to reach the merits of his appeal, we
affirm the judgment of the district court.
Affirmed.