Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State ex rel. Unger v. State

Supreme Court of Nebraska

May 13, 2016


          Appeal from the District Court for Lancaster County: ROBERT R. OTTE, Judge.

         Vincent Valentino and Brandy Johnson for appellant.

         Douglas J. Peterson, Attorney General, and Elizabeth A. Gregory for appellees.

         HEAVICAN, C.J., WRIGHT, CONNOLLY, MILLER-LERMAN, CASSEL, and KELCH, JJ. STACY, J., not participating.


          [293 Neb. 550] Connolly, J.


         This appeal presents the issue of whether a presentence report is a public record. Michael Unger, the Stanton County Sheriff, petitioned for a public records writ of mandamus compelling the partial disclosure of an offender's presentence report containing any statements made by Dillon Fales, a victim of the offender's crime. Fales had sued Stanton County, Nebraska, for damages arising from injuries associated with the crime. Unger argued that the presentence report was a public record and that Fales' statement might be relevant to a contested issue in his civil suit. The court dismissed Unger's petition because it determined that presentence reports are privileged.[1] We likewise conclude that presentence reports are not public records because they are privileged by statute. We therefore affirm.


         [293 Neb. 551] BACKGROUND

         Bryant Irish's Criminal Case in Madison County District Court

         In 2014, the State charged Bryant L. Irish with driving under the influence of alcohol and causing serious bodily injury under Neb. Rev. Stat. § 60-6,198 (Cum. Supp. 2014). Section 60-6,198(1) provides: " Any person who, while operating a motor vehicle in violation of section 60-6,196 or 60-6,197, proximately causes serious bodily injury to another person or an unborn child of a pregnant woman shall be guilty of a Class IIIA felony . . . ."

         The court, with District Judge Mark A. Johnson presiding, convicted Irish after a bench trial. It found that Fales left a party in a pickup truck driven by Irish. A Stanton County deputy sheriff followed the pickup truck and activated the overhead lights on the deputy's cruiser. Irish missed a curve in the road and struck a culvert. Emergency responders transported Fales to a hospital because he was unable to move and had a head injury. The court determined that Irish operated a motor vehicle while under the influence of alcohol and that " such impairment by alcohol caused the motor vehicle accident which, in turn, proximately caused the serious bodily injury to his passenger . . . Fales." It ordered the probation office to prepare a presentence report for Irish's sentencing.

         At Irish's sentencing hearing, his attorney told the court that he had talked with Fales and that Fales " indicated to me that [he] could have been the one driving just as well," that Fales and Irish " were both in the wrong," and that they " s[aw] each other as interchangeable in this case." Irish's attorney said that Irish and Fales were " lifelong friends and remain so through this." The court noted the comments by Irish's attorney and said, " I will also take into account that the victim in this case has indicated he does not want [Irish] to go to jail but wants [him] to get probation." The court sentenced Irish to 180 days in jail and 60 months' probation.

         [293 Neb. 552] Tort Action in Madison County District Court

         Before the court sentenced Irish, Fales sued Stanton County under the Political Subdivisions Tort Claims Act.[2] Fales alleged that he was an innocent third party injured by the vehicular pursuit of Irish by the Stanton County Sheriff.

         In an answer to an interrogatory, Fales said that he completed a " Victim Questionnaire" for use in Irish's sentencing. In response to a request to produce any documents he authored for Irish's criminal case, Fales answered: " Do not have."

         Stanton County sent a " Subpoena Duces Tecum and Public Records Request" to Judge Johnson and the district probation office. The subpoenas asked Judge Johnson and the probation office to produce any victim questionnaire " included within the presentence investigation report prepared in the criminal matter of State v. Bryant Irish."

         Judge Johnson and the probation office moved to quash the subpoenas. The record does not show the outcome of their motion to quash. But Unger states in his brief that Stanton County " withdrew" the subpoenas.[3]

         Mandamus Action in Lancaster County District Court

         In 2015, Unger filed a " Complaint/Petition for Public Records Writ of Mandamus" in the Lancaster County District Court. The respondents are the State of Nebraska, Judge Johnson, the State of Nebraska's " District 7 Probation Office," and the State of Nebraska Office of Probation Administration. Unger alleged that Fales submitted a statement or questionnaire for use in Irish's sentencing. Unger claimed that Fales' submission might be relevant to whether Stanton County was liable to Fales in the tort action pending in the Madison County District Court.

          [293 Neb. 553] Unger claimed that he was entitled to a writ of mandamus under the public records statutes.[4] The court issued an alternative writ of mandamus which directed the respondents to produce the questionnaire for the court's in camera inspection. The court further ordered the respondents to show cause why the questionnaire was not a public record. The respondents did not file a responsive pleading.

         At the show cause hearing, the court received several exhibits, including the portion of Irish's presentence report consisting of Fales' questionnaire. The court held the questionnaire under seal. The respondents argued that Irish's presentence report was not a public record because a statute provides that presentence reports " shall be privileged." [5]

         The court dismissed Unger's petition. It reasoned that Fales' questionnaire was part of Irish's presentence report and that presentence reports ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.