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Smith v. Wedekind

Supreme Court of Nebraska

March 1, 2019

Scott William Smith, individually and on behalf of Aiden James Smith and Kayleigh-Ann Marie Smith, minor children, appellant,
v.
Brandy Leigh Wedekind and Zach Wedekind, a married couple, appellees.

         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 challenge may be characterized.

         [302 Neb. 388] 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 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 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 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.

         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 hearing, 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 [302 Neb. 389] unconstitutional. The plaintiff did not file a notice under Neb. Ct. R. App. P. § 2-109(E) (rev. 2014), ...


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