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In re Tyrone K.

Supreme Court of Nebraska

December 2, 2016

In re Interest of Tyrone K., a child under 18 years of age.
v.
Tyrone K., appellant. State of Nebraska, appellee.

         1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.

         2. Juvenile Courts: Jurisdiction: Appeal and Error. In a juvenile case, as in any other appeal, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.

         3. Statutes: Appeal and Error. Statutory language is to be given its plain and ordinary meaning, and an appellate court will not resort to interpretation to ascertain the meaning of statutory words which are plain, direct, and unambiguous.

         4. Statutes. It is not within the province of a court to read a meaning into a statute that is not warranted by the language; neither is it within the province of a court to read anything plain, direct, or unambiguous out of a statute.

         5. Statutes: Legislature: Intent. In reading a statute, a court must determine and give effect to the purpose and intent of the Legislature as ascertained from the entire language of the statute considered in its plain, ordinary, and popular sense.

         6. __: __: __ . Components of a series or collection of statutes pertaining to a certain subject matter are in pari materia and should be conjunctively considered and construed to determine the intent of the Legislature, so that different provisions are consistent, harmonious, and sensible.

         7. Statutes: Courts. A court's proper role is to interpret statutes and clarify their meaning.

         [295 Neb. 194] 8. Statutes: Legislature: Public Policy. It is the Legislature's function through the enactment of statutes to declare what is the law and public policy of this state.

         9. Final Orders: Appeal and Error. Under Neb. Rev. Stat. § 25-1902 (Reissue 2016), an appellate court may review three types of final orders: (1) an order affecting a substantial right in an action that, in effect, determines the action and prevents a judgment; (2) an order affecting a substantial right made during a special proceeding; and (3) an order affecting a substantial right made on summary application in an action after a judgment is rendered.

         10. Final Orders: Words and Phrases. A substantial right is an essential legal right, not a mere technical right.

         11. Final Orders: Appeal and Error. A substantial right is affected if an order affects the subject matter of the litigation, such as diminishing a claim or defense that was available to an appellant before the order from which an appeal is taken.

         12. _:__. A substantial right is not affected for purposes of appeal when that right can be effectively vindicated in an appeal from the final judgment.

         13. Statutes: Judgments: Juvenile Courts: Appeal and Error. The fact that the statutory scheme enacted by 2014 Neb. Laws, L.B. 464, contains no specific provision regarding appellate review of juvenile transfer orders does not mean such orders are immune from appellate review on direct appeal after final judgment.

         14. Records: Appeal and Error. It is the appellant's burden to create a record for the appellate court which supports the errors assigned.

         15. Constitutional Law: Juvenile Courts: Criminal Law. There is no constitutional right to proceed in juvenile court rather than criminal court.

         16. Juvenile Courts: Criminal Law. A juvenile whose case may be transferred to criminal court has no right to have his or her case remain in juvenile court, and an order transferring such a case from juvenile to criminal court does not affect a substantial right.

         17. Constitutional Law: Juvenile Courts: Legislature. Access to juvenile court is a statutory right granted and qualified by the Legislature; it is not a constitutional imperative.

         18. Juvenile Courts: Criminal Law. Juveniles whose cases may be transferred to criminal court, and juveniles whose cases may be directly filed in criminal court, have no right to avoid the collateral consequences of a criminal conviction.

         Appeal from the Separate Juvenile Court of Lancaster County: Reggie L. Ryder, Judge. Appeal dismissed.

         [295 Neb. 195] Joe Nigro, Lancaster County Public Defender, and Sarah J. Safarik for appellant.

          Joe Kelly, Lancaster County Attorney, and Ashley J. Bohnet for appellee.

          Juliet Summers for amicus curiae Voices for Children in Nebraska and Christine Henningsen, of Center on Children, Families and the Law at the University of Nebraska-Lincoln, for amicus curiae Nebraska Youth Advocates.

          Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.

          Stacy, J.

         This case presents the issue of whether an order granting a motion to transfer a juvenile case to criminal court is final and appealable. We conclude it is not, and dismiss the appeal as premature.

         I. FACTS

         A petition filed in juvenile court on September 4, 2015, alleged 16-year-old Tyrone K. committed four counts of theft by receiving stolen property and one count of operating a motor vehicle to avoid arrest. The charges arose from a series of vehicle thefts which occurred after Tyrone escaped from a youth rehabilitation and treatment center. The alleged law violations were classified as two Class III felonies, a Class IV felony, and two Class I misdemeanors.[1] Due in part to Tyrone's extensive history in the juvenile court system, the prosecutor immediately moved to transfer the proceedings to county court for arraignment and further proceedings under the criminal code.[2] After conducting an evidentiary hearing, the juvenile court granted the motion to transfer. Tyrone filed this appeal. We moved the case to our docket on our own [295 Neb. 196] motion pursuant to our statutory authority to regulate the caseloads of the appellate courts of this state.[3]

         II. STANDARD OF REVIEW

         A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.[4]

         III. ASSIGNMENTS OF ERROR

         Tyrone assigns there was insufficient evidence for the juvenile court to transfer his case to county court.

         IV. ANALYSIS

         In a juvenile case, as in any other appeal, it is the duty of an appellate court to determine whether it has jurisdiction over the matter before it.[5] Neb. Rev. Stat. § 43-2, 106.01 (Reissue 2016) gives an appellate court jurisdiction to review "[a]ny final order or judgment entered by a juvenile court . . . ." Whether we have jurisdiction to review the juvenile court's transfer order at this point in the proceedings depends on whether Tyrone has appealed from either a judgment or a final order.

         A transfer order is not a judgment, and no party argues otherwise. The transfer order did not address or decide the merits of the alleged law violations and made no final determination of the parties' rights;[6] it merely determined the state court forum in which the case would proceed. Therefore, the threshold question presented here is whether Tyrone has appealed from a final order.

         Tyrone makes two arguments in support of his position that a transfer order is a final order. First, he argues the Legislature [295 Neb. 197] redefined transfer orders as final orders when it enacted 2014 Neb. Laws, L.B. 464. Second, he argues the transfer order is a final order under Neb. Rev. Stat. § 25-1902 (Reissue 2016), because it was made in a special proceeding and affects a substantial right. We address each argument in turn. Before doing so, however, it is necessary to provide an overview of the relevant statutes.

         1. Overview of New Juvenile Statutes

         From 1974 to 2014, when a juvenile committed a law violation, the relevant juvenile delinquency statutes gave the prosecuting attorney substantial discretion regarding whether to file charges in criminal court, file delinquency proceedings in juvenile court, or offer juvenile pretrial diversion or mediation.[7]If the prosecutor elected to file in criminal court, the juvenile could file a motion asking that the case be transferred to the juvenile court for further proceedings under the Nebraska Juvenile Code.[8]

         In 2014, through L.B. 464, the Legislature made significant changes to this statutory scheme. According to the Introducer's Statement of Intent:

Nebraska is one of the few states that allows prosecutors broad authority in deciding whether or not to file charges in adult or juvenile court. ... In 2010 in Nebraska, 45 percent of filings against youth were in adult court, despite the fact that nearly 90 percent of charges against youth in adult court were misdemeanors. Requiring more cases to originate in juvenile court will give more youth a chance at rehabilitation and reduce their chance of having a criminal record.[9]

         [295 Neb. 198] Generally speaking, L.B. 464 limited the discretion of prosecutors to decide whether a case should be filed in juvenile or criminal court, and replaced it with a three-tiered jurisdictional structure that specifies the court in which a case should be filed, depending on the age of the juvenile and the nature of the alleged law violation. The new jurisdictional structure is first set out in Neb. Rev. Stat. § 43-246.01 (Reissue 2016). The relevant sections of L.B. 464 became operative January 1, 2015.[10]

         (a) Exclusive Original Jurisdiction

         Section 43-246.01(1) grants exclusive original jurisdiction to the juvenile court over offenders who (1) are under 16 years of age and committed a misdemeanor or infraction, other than a traffic offense, or (2) are under 14 years of age and committed a felony[11] Proceedings against these juvenile offenders must always be filed via a juvenile petition and must always proceed to completion in juvenile court.[12] Tyrone does not fall into this category of juvenile offenders.

         (b) Original Jurisdiction Subject to Transfer

         Section 43-246.01(2) grants original jurisdiction to the juvenile court over juvenile offenders who are (1) 16 years of age and committed a misdemeanor[13] or (2) 14 years of age or older and committed a felony lesser in grade than a Class IIA.[14] Actions against these juvenile offenders must always be initiated in juvenile court by filing a juvenile petition, but are subject to transfer to county or district court [295 Neb. 199] for further proceedings under the criminal code.[15] All of the allegations against Tyrone, except the allegation of operating a motor vehicle to avoid arrest, put him in this category of juvenile offenders.

         (c) Concurrent Jurisdiction

         Section 43-246.01(3) grants to the juvenile court and the county or district courts concurrent jurisdiction over juvenile offenders who (1) commit a traffic offense that is not a felony or (2) are 14 years of age or older and commit a Class I, IA, IB, IC, ID, II, or IIA felony.[16] Actions against these juveniles may be initiated either in juvenile court or in the county or district court.[17] The ...


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