State v. Coble

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
03/23/2018 08:12 AM CDT

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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

State of Nebraska, appellee, v.
K aitlyn N. Coble, appellant.
___ N.W.2d ___

Filed March 23, 2018. No. S-17-769.

 1. Judgments: Jurisdiction: Appeal and Error. Determination of a juris-
dictional issue which does not involve a factual dispute is a matter of
law which requires an appellate court to reach its conclusions indepen-
dent from a trial court.
 2. Jurisdiction: Appeal and Error. Before reaching the legal issues
presented for review, it is the duty of an appellate court to determine
whether it has jurisdiction over the matter before it.
 3. Courts: Final Orders: Appeal and Error. Final orders and judgments
issued by a county court may be appealed to district court.
 4. Courts: Final Orders: Jurisdiction: Appeal and Error. A district
court order affirming, reversing, or remanding an order or judgment of
the county court is itself a final order that an appellate court has jurisdic-
tion to review.
 5. Judgments. An order affecting a substantial right that is issued upon a
summary application in an action after judgment under Neb. Rev. Stat.
§ 25-1902 (Reissue 2016) is an order ruling on a postjudgment motion
in an action.
 6. Words and Phrases. A substantial right is an essential legal right, not a
mere technical right.
 7. Criminal Law: Judgments. An order regarding the statutory right to
remove criminal record history information from the public record pur-
suant to Neb. Rev. Stat. § 29-3523 (Reissue 2016) affects a substantial
right for purposes of Neb. Rev. Stat. § 25-1902 (Reissue 2016).
 8. Jurisdiction: Appeal and Error. Where a lower court lacks subject
matter jurisdiction to adjudicate the merits of a claim, issue, or question,
an appellate court also lacks the power to determine the merits of the
claim, issue, or question presented to the lower court.
  9. ____: ____. When an appellate court is without jurisdiction to act, the
appeal must be dismissed. However, an appellate court has the power to
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

determine whether it lacks jurisdiction over an appeal because the lower
court lacked jurisdiction to enter the order; to vacate a void order; and,
if necessary, to remand the cause with appropriate directions.
10. Pleadings: Words and Phrases. In a legal action, the function of a
motion is not to initiate new litigation, but to bring before the court for
ruling some material but incidental matter arising in the progress of the
case in which the motion is filed.
11. Jurisdiction. Jurisdiction over a motion is dependent upon the court’s
having jurisdiction over the case in which the motion is filed.
12. ____. A court has jurisdiction to issue orders on motions pertaining to
incidental matters within the scope of the action over which the court
has jurisdiction.
13. Actions: Jurisdiction. A court lacks subject matter jurisdiction to hear
motions that seek an order granting relief beyond the scope of the action
at hand unless the motion is authorized by statute. A litigant must file a
new action when seeking such relief.
14. Actions: Words and Phrases. An action is a distinct and separate
court proceeding, governed by separate pleadings and requiring a sepa-
rate process.
15. Courts: Appeal and Error. A higher court is not bound by a precedent
of an inferior court under the doctrine of stare decisis.
16. ____: ____. The doctrine of stare decisis does not require a court to
blindly perpetuate its prior interpretation of the law if it concludes the
prior interpretation was clearly incorrect.
17. Statutes: Judicial Construction: Legislature: Presumptions: Intent.
Where a statute has been judicially construed and that construction has
not evoked an amendment, it will be presumed that the Legislature has
acquiesced in the court’s determination of the Legislature’s intent.
18. Statutes: Judicial Construction: Legislature: Intent. The doctrine of
legislative acquiescence applies only when there is a statutory provision
to interpret.
19. ____: ____: ____: ____. A court’s holding is not protected by the doc-
trine of legislative acquiescence, if it does not purport to interpret the
statutory text.

Appeal from the District Court for Lancaster County, John
A. Colborn, Judge, on appeal thereto from the County Court
for Lancaster County, M atthew L. Acton, Judge. Vacated and
dismissed.
Jennifer Gaughan and Marian G. Heaney, of Legal Aid of
Nebraska, for appellant.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

Marcee A. Brownlee, Assistant Lincoln City Attorney, for
appellee.

Christopher L. Eickholt, of Eickholt Law, L.L.C., and Amy
A. Miller, of American Civil Liberties Union Foundation of
Nebraska, for amicus curiae American Civil Liberties Union
of Nebraska.

Ryan P. Sullivan, for amicus curiae University of Nebraska
Civil Clinical Law Program.

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

Funke, J.
I. INTRODUCTION
Kaitlyn N. Coble filed a motion to seal the record of
her citation for two misdemeanors which were subsequently
dismissed. The county court overruled Coble’s motion, and
the district court affirmed. We conclude that Coble’s motion
was not authorized by statute and that thus, the county court
lacked jurisdiction to consider the motion. As a result, the
district court and this court lack jurisdiction to review the
merits of the county court’s order. We do not reach the merits
of whether Coble would be entitled to have her record sealed
were she to use a proper procedure. We vacate the county
court and district court orders and dismiss this appeal.

II. BACKGROUND
In 2013, Coble, who was 18 years of age at the time, was
issued a uniform complaint and citation for two misdemeanors.
After completing a diversion program, the charges were dis-
missed on the city attorney’s motion.
In 2017, Coble filed a motion in the county court for
Lancaster County, under the same case number as her crimi-
nal case, captioned as “Motion to Seal Records.” It requested
that the court issue an “[o]rder making all the records
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

associated with this case ‘non-public’ pursuant to Neb. Rev.
Stat. § 29-3523.” The county court issued an order overruling
Coble’s motion.
In doing so, the county court concluded that the proce-
dure utilized by Coble (filing a motion to seal in the criminal
case), in spite of having no basis in Neb. Rev. Stat. § 29-3523
(Reissue 2016), was authorized by the Nebraska Court of
Appeals’ opinion in State v. Blair.1
The court then concluded that Coble was seeking retroactive
application of a recent statutory amendment to § 29-3523, but
the court refused to apply it retroactively because it deemed
the amendment to be a substantive change. The court then
determined that under the version of the statute in effect at the
time of the dismissal of Coble’s charges, the statute applied
only to a “notation of arrest,”2 not to records of citations. Thus,
the court concluded that Coble was not entitled to the relief
she sought.
Coble appealed to the district court, which generally agreed
with the county court’s analysis and affirmed.

III. ASSIGNMENTS OF ERROR
Coble’s two assignments of error, restated and summarized,
claim that the district court erred by affirming the county
court’s order overruling her motion to seal.

IV. STANDARD OF REVIEW
[1] Determination of a jurisdictional issue which does not
involve a factual dispute is a matter of law which requires an
appellate court to reach its conclusions independent from a
trial court.3

 1
State v. Blair, 17 Neb. App. 611, 767 N.W.2d 143 (2009).
 2
See § 29-3523 (Reissue 2008).
 3
Kozal v. Nebraska Liquor Control Comm., 297 Neb. 938, 902 N.W.2d 147
(2017).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

V. ANALYSIS
1. Jurisdiction: Final Order
[2] Before reaching the legal issues presented for review, it
is the duty of an appellate court to determine whether it has
jurisdiction over the matter before it.4
The State argues that this court lacks appellate jurisdiction
because the county court’s order was not a final, appealable
order. While the county court’s order was a final order, we
conclude that the county court lacked subject matter jurisdic-
tion to enter the order. Thus, we lack jurisdiction to review
the merits of the county court’s order.
[3,4] Final orders and judgments issued by a county court
may be appealed to district court.5 A district court order affirm-
ing, reversing, or remanding an order or judgment of the
county court is itself a final order that an appellate court has
jurisdiction to review.6
Neb. Rev. Stat. § 25-1902 (Reissue 2016) defines three cat-
egories of final orders:
An order affecting a substantial right in an action,
when such order in effect determines the action and pre-
vents a judgment, and an order affecting a substantial
right made in a special proceeding, or upon a summary
application in an action after judgment, is a final order
which may be vacated, modified or reversed, as provided
in this chapter.7
[5] An order “affecting a substantial right” that is issued
“upon a summary application in an action after judgment”
under § 25-1902 is “an order ruling on a postjudgment motion
in an action.”8

 4
Id.
 5
Neb. Rev. Stat. § 25-2728 (Reissue 2016). See, also, Boyd v. Cook, 298
Neb. 819, 906 N.W.2d 31 (2018).
 6
Orr v. Knowles, 215 Neb. 49, 337 N.W.2d 699 (1983). See, also, Neb. Rev.
Stat. § 25-1911 (Reissue 2016).
 7
See, also, Boyd v. Cook, supra note 5.
 8
See Heathman v. Kenney, 263 Neb. 966, 969, 644 N.W.2d 558, 561 (2002).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

Coble sought to seal the record of her citation by filing a
motion in the case in which she had been charged. However,
Coble’s case had been dismissed years earlier, after she com-
pleted a diversion program. Because the case had already been
dismissed, the county court’s order overruling Coble’s motion
was an order ruling on a postjudgment motion.9
[6,7] And the order affects a substantial right. A substantial
right is an essential legal right, not a mere technical right.10 The
right invoked by Coble was the statutory right to remove the
record of her citation from the public record, no mere technical
right. Thus, the county court’s order on Coble’s motion was
a final order, because it affected a substantial right and was
issued upon a summary application in an action after judgment.
2. L.B. 505
Before addressing the dispositive jurisdictional issue in this
case, we review the recent amendments to § 29-3523 in 2016
Neb. Laws, L.B. 505. Section 29-3523 generally protects cer-
tain criminal history record information and prohibits, subject
to exceptions, the dissemination of this information.
In 2016, the Legislature enacted significant amendments to
§ 29-3523 in L.B. 505. The stated purpose of the enactment
was to “strengthen the privacy provisions of Neb. Rev. Stat.
§29-3523” in order to “protect[] legally innocent Nebraskans
from the stigma of a permanent public criminal record.”11
While the previous version of the statute applied only to
a “notation of arrest,”12 L.B. 505 amended the statute to pro-
vide that “in the case of an arrest, citation in lieu of arrest, or
referral for prosecution without citation, all criminal history
record information relating to the case shall be removed from

 9
See id.
10
In re Interest of LeVanta S., 295 Neb. 151, 887 N.W.2d 502 (2016).
11
Introducer’s Statement of Intent, L.B. 505, 104th Leg., 1st Sess. (Feb. 5,
2015).
12
§ 29-3523 (Reissue 2008).
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Nebraska Supreme Court A dvance Sheets
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STATE v. COBLE
Cite as 299 Neb. 434

the public record” as specified by the statute under certain
circumstances, such as a dismissal or acquittal of the crimi-
nal charges.13
L.B. 505 also provides that when criminal charges are filed,
but are then dismissed or the defendant is acquitted, the court
must then “[o]rder that all records, including any information
or other data concerning any proceedings relating to the case
. . .”14 be sealed and provide notice of the order to relevant
criminal justice agencies.15
3. Jurisdiction: Subject
M atter Jurisdiction
In this case, we need not reach the merits of whether Coble
is entitled to have the record of her case sealed, because we
conclude that the county court lacked subject matter juris-
diction to reach that question. Coble’s motion to seal sought
relief that went beyond the scope of the original criminal
case in which it was filed, and the motion was not authorized
by statute.
[8,9] Where a lower court lacks subject matter jurisdic-
tion to adjudicate the merits of a claim, issue, or question, an
appellate court also lacks the power to determine the merits
of the claim, issue, or question presented to the lower court.16
When an appellate court is without jurisdiction to act, the
appeal must be dismissed. However, an appellate court has the
power to determine whether it lacks jurisdiction over an appeal
because the lower court lacked jurisdiction to enter the order;
to vacate a void order; and, if necessary, to remand the cause
with appropriate directions.17

13
§ 29-3523(3) (Reissue 2016).
14
§ 29-3523(4)(a).
15
See Neb. Rev. Stat. § 29-3509 (Reissue 2016) (defining “[c]riminal justice
agency”).
16
Kozal v. Nebraska Liquor Control Comm., supra note 3.
17
Id.
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

Because the county court lacked jurisdiction over Coble’s
motion, the district court and this court lack jurisdiction to
review the merits of the county court’s order.

(a) County Court Lacked
Subject Matter Jurisdiction
The jurisdictional defect in this case is not, as the State
argued, one of finality, but is one of subject matter jurisdic-
tion. The problem stems from the fact that Coble sought relief
by filing a motion in a case that had been dismissed years
earlier—a procedure that has no basis in statute—rather than
utilizing the procedure authorized by statute to enforce the
rights created by § 29-3523 and surrounding sections.18
[10-13] In a legal action, the function of a motion is not to
initiate new litigation, but to bring before the court for ruling
some material but incidental matter arising in the progress
of the case in which the motion is filed.19 Jurisdiction over a
motion is therefore dependent upon the court’s having jurisdic-
tion over the case in which the motion is filed.20 A court has
jurisdiction to issue orders on motions pertaining to incidental
matters within the scope of the action over which the court
has jurisdiction.21 But it necessarily follows that a court lacks
subject matter jurisdiction to hear motions that seek an order
granting relief beyond the scope of the action at hand unless

18
See Neb. Rev. Stat. § 29-3528 (Reissue 2016).
19
See State v. McNerny, 239 Neb. 887, 479 N.W.2d 454 (1992). See, also,
generally, D.T. v. W.G., 210 So. 3d 1143 (Ala. Civ. App. 2016); People v.
Picklesimer, 48 Cal. 4th 330, 226 P.3d 348, 106 Cal. Rptr. 3d 239 (2010);
Hickson v. State, 39 Kan. App. 2d 678, 182 P.3d 1269 (2008).
20
See, id.; Mtr. of North Shore Hosp. v. McConico, 39 Misc. 2d 1032,
242 N.Y.S.2d 402 (1963) (cited by this court in State v. McNerny, supra
note 19).
21
See, Morrison v. Patterson, 221 Iowa 883, 267 N.W. 704 (1936) (cited by
this court in State v. McNerny, supra note 19); Caperton v. Winston Co.
Fair Ass’n, 169 Miss. 503, 153 So. 801 (1934) (cited by this court in State
v. McNerny, supra note 19).
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Nebraska Supreme Court A dvance Sheets
299 Nebraska R eports
STATE v. COBLE
Cite as 299 Neb. 434

the motion is authorized by statute.22 A litigant must file a new
action when seeking such relief.23
Of course, a motion that goes beyond those incidental mat-
ters contained within the scope of a case could be authorized
by statute.24 But in this case, § 29-3523 does not authorize the
filing of a motion to make criminal history record information
nonpublic. And the relief sought by a motion like Coble’s is an
order directed to criminal justice agencies to seal the criminal
history record information. Such relief goes beyond the scope
of the original criminal case over which the county court had
jurisdiction. The county court thus lacked subject matter juris-
diction to issue an order on Coble’s motion to seal.
Not only is there no statutory basis for enforcing the privacy
protections of § 29-3523 by filing a motion, but the Security,
Privacy, and Dissemination of Criminal History Information
Act25 (of which § 29-3523 is a part) provides a different pro-
cedure for its enforcement. Section 29-3528 provides that
whenever a state agency or political subdivision, or offi-
cer or employee thereof, fails to comply with the require-
ments of various sections—including § 29-3523—“any person
aggrieved may bring an action, including but not limited to an
action for mandamus, to compel compliance and such action
may be brought in the district court of any district in which
the records involved are located or in the district court of
Lancaster County.”
[14] Importantly, § 29-3528 authorizes an aggrieved indi-
vidual to “bring an action,” not to file a motion in the criminal
case the record of which he or she seeks to seal. An “action” is

22
See Caperton v. Winston Co. Fair Ass’n, supra note 21.
23
See, id.; Mtr. of North Shore Hosp. v. McConico, supra note 20.
24
See, generally, State v. McNerny, supra note 19; Mtr. of North Shore
Hosp. v. McConico, supra note 20; Morrison v. Patterson, supra note 21;
Caperton v. Winston Co. Fair Ass’n, supra note 21.
25
Neb. Rev. Stat. §§ 29-209, 29-210, 29-3501 to 29-3528, and 81-1423
(Reissue 2016).
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Nebraska Supreme Court A dvance Sheets
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STATE v. COBLE
Cite as 299 Neb. 434

a distinct and separate court proceeding, governed by separate
pleadings and requiring a separate process.26 Thus, the proper
procedure for Coble to enforce her rights under § 29-3523
(assuming she could establish that her criminal history record
information is still in the public record) would be to file a
separate action in district court. But here, Coble did not file a
new action in district court pursuant to § 29-3528, but, instead,
filed a motion in county court in the case that had been ear-
lier dismissed.
Because the relief sought by Coble’s motion exceeded the
scope of her criminal case and was not an incidental mat-
ter therein, and because there was no statutory basis for her
motion, the county court lacked jurisdiction to issue an order
on the motion.
(b) State v. Blair
This conclusion runs headlong into the Court of Appeals’
holding in State v. Blair,27 the case on which Coble relies.
Coble correctly argues that Blair endorsed the procedure she
utilized in seeking to vindicate her rights under § 29-3523—
filing a motion in the case which she sought to seal. But
we conclude that Blair wrongly approved of this procedure,
and we disapprove of it to the extent it is inconsistent with
this opinion.
(i) Overview of Holding in Blair
In Blair, the motion under review was labeled a “motion to
expunge.”28 After the district court granted the defendant post-
conviction relief and ordered a new trial, the county attorney
declined to retry him and dismissed the charges. The defendant
subsequently filed his motion to expunge the record of his
arrest and charges pursuant to § 29-3523. The district court
overruled the motion, and Blair appealed.

26
See In re Interest of D.I., 281 Neb. 917, 799 N.W.2d 664 (2011).
27
State v. Blair, supra note 1.
28
Id.
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Nebraska Supreme Court A dvance Sheets
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STATE v. COBLE
Cite as 299 Neb. 434

The State argued that the defendant’s appeal of the denial of
his motion to expunge should not be addressed by the Court
of Appeals, because the procedure used by the defendant was
not authorized by § 29-3523. The then-current version of
§ 29-3523(2)(c)—now codified at § 29-3523(3)(c)—required
that a notation of arrest be removed from the public record 3
years after the arrest if charges were filed and then dismissed
by the court or prosecutor. The State argued that this statutory
language “appears to apply automatically and does not autho-
rize a person to file a petition to expunge.”29
The Court of Appeals rejected the State’s argument. The
court acknowledged that the statutory language “appears to be
self-executing—specifically, if the conditions fit, a notation of
dismissal shall be made on the defendant’s record.”30 But it
concluded that “even though [the defendant] did not need to
file a petition to expunge, the fact that he did so does not mean
that [the defendant’s] claim cannot be addressed.”31 However,
the Court of Appeals concluded that the district court did not
err in overruling the defendant’s motion, because he had failed
to present any evidence that the record of his arrest was still
part of the public record.32
In this case, the county court and district court were correct
insofar as they concluded that the procedure used by Coble
was authorized by the Court of Appeals’ Blair opinion. Like
the procedure blessed in Blair, Coble filed a motion within the
same criminal case as the record she was seeking to seal, rather
than filing a separate action. The procedure used by Coble is
legally indistinguishable from that in Blair. The county and
district courts correctly adhered to binding precedent as man-
dated by the doctrine of vertical stare decisis.33

29
Id. at 614, 767 N.W.2d at 146.
30
Id.
31
Id.
32
Id.
33
See State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).
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STATE v. COBLE
Cite as 299 Neb. 434

[15,16] However, this court is not bound by a precedent
of the Court of Appeals under the doctrine of stare decisis.34
Further, even if a Court of Appeals’ decision was afforded the
same weight as one of our own precedents, the doctrine of
stare decisis does not require us to blindly perpetuate a prior
interpretation of the law if we conclude the prior interpreta-
tion was clearly incorrect.35 As we have set forth, the filing
of a motion to seal criminal history records under § 29-3523
is not authorized by statute. Therefore, the holding in Blair
was incorrect.
However, Coble argues that we should adhere to the Blair
decision under the doctrine of legislative acquiescence.
(ii) Legislative Acquiescence
[17] We have said that “[w]here a statute has been judicially
construed and that construction has not evoked an amendment,
it will be presumed that the Legislature has acquiesced in the
court’s determination of the Legislature’s intent.”36
[18,19] But the doctrine of legislative acquiescence applies
only when there is a statutory provision to interpret.37 In
Heckman v. Marchio,38 we rejected the argument that we
should adhere to our prior decisions creating the collateral
order doctrine of appellate jurisdiction, because those decisions
“never purported to interpret a statute as allowing for” such
appeals. Similarly here, there is simply no statutory provision
allowing for the use of a motion to enforce the rights set forth

34
See State v. Barranco, 278 Neb. 165, 769 N.W.2d 343 (2009).
35
See Davis v. State, 297 Neb. 955, 902 N.W.2d 165 (2017).
36
Heckman v. Marchio, 296 Neb. 458, 465, 894 N.W.2d 296, 301 (2017).
37
Id. See, generally, Jones v. Liberty Glass Co., 332 U.S. 524, 68 S. Ct. 229,
92 L. Ed. 142 (1947); State v. Spencer Gifts, LLC, 304 Kan. 755, 374 P.3d
680 (2016); Wenke v. Gehl Co., 274 Wis. 2d 220, 682 N.W.2d 405 (2004);
Hoffman v. ND Workers Compensation Bureau, 651 N.W.2d 601 (N.D.
2002).
38
Heckman v. Marchio, supra note 36, 296 Neb. at 465, 894 N.W.2d at
302-03.
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in § 29-3523 (with the inapplicable exception of subsection
(6)). The extent of the Court of Appeals’ reasoning in Blair
on this issue was that “even though [the defendant] did not
need to file a petition to expunge, the fact that he did so does
not mean that [the defendant’s] claim cannot be addressed.”39
This conclusion is not protected by the doctrine of legislative
acquiescence, because it does not purport to interpret the statu-
tory text.
VI. CONCLUSION
We need not and do not address the merits of whether Coble
was entitled to the relief she sought. Nor do we endorse the
county and district courts’ conclusion that Coble was seeking
a retroactive application40 of the amendments in L.B. 505 to
§ 29-3523. Because we conclude that the county court lacked
jurisdiction, we lack jurisdiction and the district court lacked
jurisdiction to review the merits of the county court’s order.
We vacate the county court’s order and the district court’s order
and dismiss this appeal.
Vacated and dismissed.
Wright and K elch, JJ., not participating.

39
State v. Blair, supra note 1, 17 Neb. App. at 614, 767 N.W.2d at 146.
40
See, generally, Millennium Solutions v. Davis, 258 Neb. 293, 603 N.W.2d
406 (1999); Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 263 (2012) (discussing presumption against
retroactivity and stating that “retroactivity ought to be judged with regard
to the act or event that the statute is meant to regulate”).