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Campbell v. Hansen

Supreme Court of Nebraska

January 12, 2018

Herbert Lee Campbell, appellant.
v.
Brad Hansen, appellee.

         1. Judgments: Jurisdiction: Appeal and Error. A jurisdictional question which does not involve a factual dispute is determined by an appellate court as a matter of law, which requires the appellate court to reach a conclusion independent from the lower court's decision.

         2. Affidavits: Appeal and Error. When an in forma pauperis application is denied and the applicant seeks leave to proceed in forma pauperis in order to obtain appellate review of that denial, the trial court does not have authority to issue an order that would interfere with such appellate review.

         3. Jurisdiction: Affidavits: Appeal and Error. In an interlocutory appeal from an order denying leave to proceed in forma pauperis, an appellate court obtains jurisdiction over the appeal upon the timely filing of a notice of appeal and a proper in forma pauperis application and affidavit.

         Petition for further review from the Court of Appeals, Inbody, RiEDMANN, and Arterburn, Judges, on appeal thereto from the District Court for Johnson County, Vicky L. Johnson, Judge. Judgment of Court of Appeals reversed, and cause remanded for further proceedings.

          Herbert Lee Campbell, pro se.

          Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee.

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

         [298 Neb. 670] CASSEL, J.

         INTRODUCTION

         This appeal presents a slightly different question from our recent decision in Mumin v. Frakes[1] Here, the question is whether a petitioner for habeas corpus relief whose initial motion to proceed in forma pauperis (IFP) was denied and who takes a timely interlocutory appeal from that denial, accompanied by a motion to proceed IFP on appeal, must file a second appeal where the district court also denies the second IFP motion. Because the Nebraska Court of Appeals' summary dismissal incorrectly determined that a second appeal was necessary, we reverse, and remand for further proceedings.

         BACKGROUND

         Herbert Lee Campbell filed a petition for writ of habeas corpus along with a motion to proceed IFP and poverty affidavit. The district court for Johnson County denied the motion by placing an "X" on the line corresponding to the following: "The Court hereby denies Motion to Proceed [IFP] for reason this is a meritless/frivolous action. The party filing the application shall have thirty days to proceed with an action or appeal upon payment of fees, costs, or security.''

         Within 30 days, Campbell initiated an appeal from the district court to the Court of Appeals, by filing a notice of appeal along with a second motion to proceed IFP and a second poverty affidavit. On May 5, 2017, the district court denied the second motion to proceed IFP, that is, the motion to proceed IFP on appeal. The court's order stated that the legal positions advanced were frivolous and that Campbell had 30 days to proceed with an action or appeal upon payment of fees, costs, or security.

         On June 26, 2017, the Court of Appeals summarily dismissed the appeal. The court determined that it lacked jurisdiction, because Campbell did not pay a docket fee or appeal by June 5 [298 Neb. 671] from the denial of IFP status on appeal. It subsequently overruled Campbell's motion for rehearing. We granted Campbell's ...


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