Smith v. Wedekind , 302 Neb. 387 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/29/2019 09:07 AM CDT
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
Scott William Smith, individually and on behalf
of A iden James Smith and K ayleigh-A nn M arie
Smith, minor children, appellant, v. Brandy
Leigh Wedekind and Zach Wedekind,
a married couple, appellees.
___ N.W.2d ___
Filed March 1, 2019. No. S-18-516.
1. Judgments: Appeal and Error. When dispositive issues on appeal
present questions of law, an appellate court has an obligation to reach an
independent conclusion irrespective of the decision of the court below.
2. 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 constitutionality of a statute
must file and serve notice with the Supreme Court Clerk at the time of
filing the party’s brief.
3. Constitutional Law: Statutes: Notice: Appeal and Error. A notice to
the Supreme Court Clerk assists the clerk and the Nebraska Supreme
Court in ensuring that an appeal involving the constitutionality of a
statute is heard by the full court, as required by article V, § 2, of the
Nebraska Constitution.
4. ____: ____: ____: ____. When the issue of the constitutionality of a
statute is merely contained in an ordinary pleading, the Supreme Court
Clerk is not put on notice that the appeal should be specially processed.
5. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. The constitutionality of a statute for purposes of article V,
§ 2, of the Nebraska Constitution and Neb. Ct. R. App. P. § 2-109(E)
(rev. 2014) includes both facial and as-applied challenges.
6. ____: ____: ____: ____. Strict compliance with Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2014) is necessary whenever a litigant challenges the
constitutionality of a statute, regardless of how that constitutional chal-
lenge may be characterized.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
7. ____: ____: ____: ____. If a party fails to observe Neb. Ct. R. App. P.
§ 2-109(E) (rev. 2014), the Nebraska Supreme Court will not consider
the constitutionality of the statute under attack.
8. Constitutional Law: Statutes: Legislature: Appeal and Error.
Whether or not a constitutional challenge is characterized by an appel-
lant as a challenge to a statute, when the appeal challenges the constitu-
tionality of an act explicitly permitted by a statute, it is a case “involv-
ing the constitutionality of an act of the Legislature,” as described in
article V, § 2, of the Nebraska Constitution.
9. Constitutional Law: Rules of the Supreme Court: Notice: Statutes:
Appeal and Error. The Nebraska Supreme Court must have notice
under Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) of an implicit chal-
lenge to a statute that explicitly authorizes the alleged unconstitutional
act in order to ensure that the issue of the constitutionality of the statute
is heard by a full court.
10. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. A litigant cannot avoid the requirements of Neb. Ct. R.
App. P. § 2-109(E) (rev. 2014) and the concurrent requisite scrutiny for
invalidating statutory provisions merely by failing to cite to the statute
that authorizes the constitutionally challenged act.
Appeal from the District Court for Cass County: Michael A.
Smith, Judge. Affirmed.
Scott William Smith, pro se.
No appearance for appellees.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The plaintiff in a declaratory judgment action appeals
from the district court’s sua sponte denial, without a hear-
ing, of his application to proceed in forma pauperis. The
court did so under its authority conferred by Neb. Rev. Stat.
§ 25-2301.02 (Reissue 2016). The plaintiff does not challenge
the statute directly, but argues that the lack of a hearing was
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
unconstitutional. The plaintiff did not file a notice under Neb.
Ct. R. App. P. § 2-109(E) (rev. 2014), which is required when-
ever a party is “presenting a case involving the federal or state
constitutionality of a statute.” We affirm.
BACKGROUND
Scott William Smith, representing himself pro se, filed a
complaint individually and on behalf of his children for declar-
atory judgment under Neb. Rev. Stat. § 25-21,159 (Reissue
2016), seeking “[d]eclaratory relief from” three orders under
different dockets. The first order was a name change of Smith’s
children. The second order was a protection order. The third
order was a divorce decree between himself and Brandy Leigh
Wedekind, the mother of the children. Wedekind and her cur-
rent husband were named as defendants in the action.
Smith asked in his complaint for an immediate injunction
under Neb. Rev. Stat. § 25-21,156 (Reissue 2016) against
the enforcement of the protection order. Smith also asked for
court-appointed counsel for himself and his children. Finally,
Smith requested that the court declare the validity of 16 allega-
tions pertaining to the alleged unconstitutionality of the three
orders challenged in his complaint.
Smith applied to proceed in forma pauperis, submitting an
affidavit demonstrating that he was unable to pay the costs of
litigation. Citing to § 25-2301.02, the court denied the order
sua sponte and without a hearing. The court reasoned that
the complaint asserted a legally frivolous position, because
it constituted an impermissible collateral attack on the dis-
solution decree, protection order, and name change order.
Smith appeals.
ASSIGNMENTS OF ERROR
Smith assigns that the district court abused its discretion
and committed plain error by failing to conduct a hearing
on his motion to proceed in forma pauperis before making
its decision.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
STANDARD OF REVIEW
[1] When dispositive issues on appeal present questions
of law, an appellate court has an obligation to reach an inde-
pendent conclusion irrespective of the decision of the court
below.1
ANALYSIS
Smith appeals from an order denying his application to
proceed in forma pauperis. Section 25-2301.02 provides a
statutory right of interlocutory appellate review of a decision
denying in forma pauperis eligibility.2 Smith’s sole argument
on appeal is that because the court failed to hold a hearing
before determining the merits of his application to proceed in
forma pauperis, he was deprived of open access to the courts
as guaranteed by article I, § 13, of the Nebraska Constitution
and due process under the Nebraska and federal Constitutions.
Despite the district court’s explicit reference to § 25-2301.02,
Smith does not refer to the statute in his appellate brief.
Section 25-2301.02 authorizes the court to deny an applica-
tion to proceed in forma pauperis, without a hearing, under the
circumstances presented in this case. Section 25-2301.02 states
in relevant part:
An evidentiary hearing shall be conducted on the objec-
tion unless the objection is by the court on its own motion
on the grounds that the applicant is asserting legal posi-
tions which are frivolous or malicious. If no hearing is
held, the court shall provide a written statement of its
reasons, findings, and conclusions for denial of the appli-
cant’s application to proceed in forma pauperis which
shall become a part of the record of the proceeding.
Thus, Smith’s constitutional challenge to the act of the district
court in denying his application without a hearing implicitly
1
State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).
2
See, Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017); Glass v.
Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
challenges the constitutionality of § 25-2301.02 that explic-
itly authorizes the district court to deny, without a hearing, an
application to proceed in forma pauperis.
Smith failed to file a separate written notice with this
court of a constitutional question and failed to serve upon the
Attorney General, who is not a party to this action, a copy of
his brief. Such notice is required under § 2-109(E) whenever a
party is “presenting a case involving the federal or state consti-
tutionality of a statute.”
[2] Section 2-109(E) requires that a party presenting a case
involving the constitutionality of a statute must file and serve
notice with the Supreme Court Clerk at the time of filing
the party’s brief.3 Section 2-109(E) also provides that if the
Attorney General is not already a party to the action, a copy
of the brief assigning unconstitutionality must be served on the
Attorney General within 5 days of the filing of the brief with
the Supreme Court Clerk. Section 2-109(E) states in full:
Cases Involving Constitutional Questions. A party pre-
senting a case involving the federal or state constitution-
ality of a statute must file and serve notice thereof with
the Supreme Court Clerk by a separate written notice
or by notice in a Petition to Bypass at the time of filing
such party’s brief. If the Attorney General is not already a
party to an action where the constitutionality of the statute
is in issue, a copy of the brief assigning unconstitutional-
ity must be served on the Attorney General within 5 days
of the filing of the brief with the Supreme Court Clerk;
proof of such service shall be filed with the Supreme
Court Clerk.
The rule corresponds to the mandate of article V, § 2, of the
Nebraska Constitution, which provides in pertinent part:
A majority of the members [of the Supreme Court] sit-
ting shall have authority to pronounce a decision except
3
See, Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006); State v.
Johnson, 269 Neb. 507, 695 N.W.2d 165 (2005).
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
in cases involving the constitutionality of an act of the
Legislature. No legislative act shall be held unconstitu-
tional except by the concurrence of five judges. . . . The
judges of the Supreme Court, sitting without division,
shall hear and determine all cases involving the consti-
tutionality of a statute and all appeals involving capital
cases and may review any decision rendered by a division
of the court. In such cases, in the event of the disability
or disqualification by interest or otherwise of any of
the judges of the Supreme Court, the court may appoint
judges of the district court or the appellate court to sit
temporarily as judges of the Supreme Court, sufficient to
constitute a full court of seven judges.
[3,4] A notice to the Supreme Court Clerk assists the clerk
and this court in ensuring that an appeal involving the consti-
tutionality of a statute is heard by the full court, as required by
article V, § 2, of the Nebraska Constitution.4 When the issue of
the constitutionality of a statute is merely contained in an ordi-
nary pleading, the Supreme Court Clerk is not put on notice
that the appeal should be specially processed.5
[5-7] In State v. Boche,6 we held that the constitutionality
of a statute for purposes of article V, § 2, of the Nebraska
Constitution and § 2-109(E) includes both facial and as-applied
challenges. This court has repeatedly held that strict compli-
ance with § 2-109(E) is required for the court to address a
constitutional claim.7 In Boche, we clarified that “strict com-
pliance with § 2-109(E) is necessary whenever a litigant chal-
lenges the constitutionality of a statute, regardless of how that
constitutional challenge may be characterized.”8 If a party fails
4
State v. Boche, supra note 1; State v. Johnson, supra note 3.
5
State v. Johnson, supra note 3.
6
State v. Boche, supra note 1.
7
Ptak v. Swanson, supra note 3.
8
State v. Boche, supra note 1, 294 Neb. at 918, 885 N.W.2d at 529.
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
to observe § 2-109(E), this court will not consider the constitu-
tionality of the statute under attack.9
The question presented by this appeal is whether a litigant
must file a notice under § 2-109(E) whenever the litigant
implicitly challenges the constitutionality of a statute that,
while not addressed in the appellate brief, explicitly authorizes
the very act the litigant claims is unconstitutional. We hold that
notice under § 2-109(E) is required under such circumstances.
[8] In such circumstances, a declaration by this court that
the act complained of on appeal is unconstitutional would
necessarily render unconstitutional the statute that explicitly
authorizes the act. Whether or not a constitutional challenge is
characterized by an appellant as a challenge to a statute, when
the appeal challenges the constitutionality of an act explicitly
permitted by a statute, it is a case “involving the constitutional-
ity of an act of the Legislature,” as described in article V, § 2,
of the Nebraska Constitution.
[9,10] Accordingly, this court must have notice under
§ 2-109(E) of an implicit challenge to a statute that explicitly
authorizes the alleged unconstitutional act in order to ensure
that the issue of the constitutionality of the statute is heard
by a full court. Further, the Attorney General has a right to
notice that the constitutionality of a statute is being implicitly
challenged in order to decide whether to file a brief of amicus
curiae in the case. A litigant cannot avoid the requirements of
§ 2-109(E) and the concurrent requisite scrutiny for invalidat-
ing statutory provisions merely by failing to cite to the statute
that authorizes the constitutionally challenged act.
The district court’s action in this case of denying the
application to proceed in forma pauperis was authorized by
§ 25-2301.02. The objection to in forma pauperis status was on
the court’s own motion on the ground that Smith was assert-
ing legal positions that were frivolous. The court provided a
9
Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (1990).
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
SMITH v. WEDEKIND
Cite as 302 Neb. 387
written statement of its reasons, findings, and conclusions for
denial of Smith’s application to proceed in forma pauperis in
its order denying the application.
Because Smith did not file a notice compliant with
§ 2-109(E), we do not address his arguments on appeal con-
cerning the constitutionality of the district court’s decision to
deny without a hearing his application to proceed in forma
pauperis, expressly permitted by § 25-2301.02. The constitu-
tionality of not providing a hearing before denying Smith’s
application was the only issue adequately assigned and argued
on appeal.10 Smith does not assign and argue that the court
erred in its determination that his complaint asserted a frivolous
legal position. Therefore, we affirm the district court’s order.
CONCLUSION
For the foregoing reasons, we affirm the order below deny-
ing Smith’s application to proceed in forma pauperis.
A ffirmed.
10
See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).