Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
02/26/2021 08:08 AM CST
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. CATLIN
Cite as 308 Neb. 294
State of Nebraska, appellee,
v. Nicholas L. Catlin,
appellant.
___ N.W.2d ___
Filed January 29, 2021. No. S-20-313.
1. Rules of the Supreme Court: Notice: Appeal and Error. Whether a
party has complied with the notice requirements of Neb. Ct. R. App.
P. § 2-109(E) (rev. 2014) is determined de novo upon a review of
the record.
2. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal
and Error. Without strict compliance with Neb. Ct. R. App. P. § 2-109(E)
(rev. 2014), an appellate court will not address a constitutional challenge
to a statute.
3. ____: ____: ____: ____. A litigant must strictly comply with Neb. Ct.
R. App. P. § 2-109(E) (rev. 2014) whenever the litigant challenges the
constitutionality of a statute, regardless of how that constitutional chal-
lenge may be characterized.
4. ____: ____: ____: ____. As long as an appellate court must determine
the constitutionality of a statute in deciding an appeal, Neb. Ct. R. App.
P. § 2-109(E) (rev. 2014) applies.
5. ____: ____: ____: ____. Whenever an appellate court must determine
the constitutionality of a statute in deciding an appeal, the party filing
the brief explicitly or implicitly challenging the statute must strictly
comply with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) or else the mat-
ter necessarily implicating the constitutionality of the statute will not
be addressed.
6. Constitutional Law: Statutes: Prosecuting Attorneys: Notice: Appeal
and Error. When the State is not represented by the office of the
Attorney General, the prosecution having instead been handled by a city
or county attorney, a copy of the brief that raises the constitutionality of
a statute must be served on the Attorney General.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. CATLIN
Cite as 308 Neb. 294
7. ____: ____: ____: ____: ____. An appellate court cannot assume that
the Attorney General has notice of a challenge to the constitution-
ality of a statute in an appeal in which the State is represented by
another office.
Appeal from the District Court for Lancaster County, Lori
A. Maret, Judge, on appeal thereto from the County Court for
Lancaster County, Timothy C. Phillips, Judge. Judgment of
District Court affirmed.
Joe Nigro, Lancaster County Public Defender, and Nathan
Sohriakoff for appellant.
Christine A. Loseke, Assistant Lincoln City Prosecutor, for
appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Freudenberg, J.
NATURE OF CASE
The defendant implicitly attacks the constitutionality of a
state statute prohibiting jury trials for criminal cases arising
under city ordinances. Because the defendant failed to comply
with the procedural rule governing constitutional challenges to
statutes, we affirm the judgment.
BACKGROUND
After a bench trial, Nicholas L. Catlin was found guilty in
the county court for Lancaster County of driving under the
influence, second offense, in violation of Lincoln Mun. Code
§ 10.16.030 (2017). He was also tried and convicted of speed-
ing and operating a vehicle without a driver’s license.
Before trial, the county court overruled Catlin’s motion
to quash the complaint for the reason that a conviction of
driving under the influence, second offense, would implicate
Lincoln Mun. Code § 9.36.100 (2008), which provides for
a 10-year ban on the possession of firearms in the city of
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. CATLIN
Cite as 308 Neb. 294
Lincoln. Catlin asserted that § 9.36.100 violates due proc
ess. The county court also overruled Catlin’s demand for a
jury trial.
Section 9.36.100 lists a number of offenses upon conviction
of which it shall be unlawful for 10 years for the convicted
person to possess any firearm within the corporate limits of the
city of Lincoln or on any property of the city of Lincoln out-
side the corporate limits. Most pertinent to Catlin, § 9.36.100
describes that for any person who has been convicted within
the past 10 years of two or more offenses of driving under
the influence in violation of the Lincoln Municipal Code or
Nebraska statute, it shall be unlawful to possess any firearm
within the corporate limits or on any property of the city of
Lincoln outside of the corporate limits.
Catlin appealed his convictions to the district court, chal-
lenging the constitutionality of § 9.36.100 and assigning that
the trial court erred when it (1) failed to grant Catlin’s motion
to quash and (2) failed to grant Catlin’s demand for a jury trial.
The district court affirmed the county court’s judgment, rea-
soning, among other things, that Neb. Rev. Stat. § 25-2705(1)
(Reissue 2016) dictates that persons charged with violating city
ordinances do not have a right to a jury trial.
Catlin perfected an appeal of the district court’s order. A
copy of Catlin’s brief was served on a city attorney who pros-
ecuted the case. It was not served on the Attorney General.
We granted Catlin’s petition to bypass the Nebraska Court of
Appeals. The petition to bypass was served upon the same city
attorney. It was not served upon the Attorney General. On our
own motion, we submitted the case without oral argument.
ASSIGNMENT OF ERROR
Catlin assigns that the Lancaster County District Court erred
when it failed to find that the Lancaster County Court had vio-
lated his right to jury trial.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. CATLIN
Cite as 308 Neb. 294
STANDARD OF REVIEW
[1] Whether a party has complied with the notice require-
ments of Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is deter-
mined de novo upon a review of the record.
ANALYSIS
We agree with the State that we cannot reach Catlin’s only
assigned error in his appeal, because it inextricably involves an
implied challenge to the constitutionality of a statute, for which
Catlin failed to provide notice as required by § 2-109(E).
Section 2-109(E) mandates that a party presenting a case
involving the federal or state constitutionality of a statute must
file and serve notice thereof with the Supreme Court Clerk by
separate written notice or in a petition to bypass at the time of
filing such party’s brief and provide the Attorney General with
a copy of its brief if the Attorney General is not already a party
to the case. Section 2-109(E) states in full:
A party presenting a case involving the federal or state
constitutionality of a statute must file and serve notice
thereof with the Supreme Court Clerk by a separate writ-
ten notice or by notice in a Petition to Bypass at the time
of filing such party’s brief. If the Attorney General is not
already a party to an action where the constitutionality of
the statute is in issue, a copy of the brief assigning uncon-
stitutionality must be served on the Attorney General
within 5 days of the filing of the brief with the Supreme
Court Clerk; proof of such service shall be filed with the
Supreme Court Clerk.
Section 2-109(E) ensures, in light of the constitutional
requirement that no legislative act shall be held unconsti-
tutional except by the concurrence of five judges, 1 that this
court will secure a full court to hear an appeal challenging
the constitutionality of a statute. 2 It also ensures that the
1
See, generally, Neb. Const. art. V, § 2.
2
See State v. Denton, 307 Neb. 400, 949 N.W.2d 344 (2020).
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. CATLIN
Cite as 308 Neb. 294
Attorney General has been notified of the challenge to the
constitutionality of a statute, so that the Attorney General may
carry out the common-law duty to defend all duly adopted
statutory enactments that are not unconstitutional. 3
[2,3] Without strict compliance with § 2-109(E), this court
will not address a constitutional challenge to a statute. 4 A liti-
gant must strictly comply with § 2-109(E) whenever the liti-
gant challenges the constitutionality of a statute, “regardless of
how that constitutional challenge may be characterized.” 5
[4,5] We recently explained in State v. Denton 6 that “[i]t does
not matter if the litigant explicitly challenges a statute . . . ;”
“as long as this court must determine the constitutionality of
a statute in deciding an appeal, § 2-109(E) applies.” After all,
§ 2-109(E) refers broadly to a case or action “involving the
federal or state constitutionality of a statute” or “where the
constitutionality of the statute is in issue.” Further, the desir-
ability of having a full court to hear the appeal and the Attorney
General’s duties to defend the State’s statutes are not dimin-
ished by the fact that the challenge was indirectly rather than
directly made. Whenever we must determine the constitutional-
ity of a statute in deciding an appeal, the party filing the brief
explicitly or implicitly challenging the statute must strictly
comply with § 2-109(E) or else the matter necessarily implicat-
ing the statute will not be addressed.
Catlin makes no mention of § 25-2705 in his appellate brief
or in his petition to bypass. Regardless of Catlin’s failure to
acknowledge it, his appeal necessarily involves a challenge to
the constitutionality of § 25-2705.
Section 25-2705(1) states, “Either party to any case in
county court, except criminal cases arising under city or
3
See id.
4
Id.
5
Id. at 405, 949 N.W.2d at 347.
6
Id. at 405, 949 N.W.2d at 347-48.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. CATLIN
Cite as 308 Neb. 294
village ordinances, . . . may demand a trial by jury.” We held
in Denton that a very similar appeal, challenging the denial
of a jury trial for an alleged violation implicating the firearm
ban in § 9.36.100, was necessarily an implicit challenge to
§ 25-2705. 7
We explained that the appellant’s argument that the court
erred in denying a jury trial implicitly challenged the constitu-
tionality of § 25-2705, because § 25-2705 “leaves no discretion
for a court to grant a jury trial for the criminal prosecution of
a city ordinance violation.” 8 As such, we could not find merit
to the appellant’s arguments regarding the right to a jury trial
without declaring § 25-2705 unconstitutional as applied in
his case.
Denton is directly controlling on the question of whether
Catlin must strictly comply with § 2-109(E). He must. The
error raised in Catlin’s appeal necessarily involves the consti-
tutionality of a statute.
And we find that Catlin did not strictly comply with
§ 2-109(E), because he did not serve the Attorney General
with a copy of his brief. In Denton, we held that the required
notice under § 2-109(E) was not given, because the appellant
did not provide a separate notice or a petition to bypass to
the Supreme Court Clerk and the record did not show that the
Attorney General received a copy of the appellant’s brief. In
that appeal, as here, the State was represented by an assistant
city attorney.
We have otherwise had little occasion to address under
§ 2-109(E) service on the Attorney General when the State is a
party to the action but where the office of the Attorney General
has not been involved in the litigation. To the extent the notice
in Denton was found to be insufficient because the brief was
not served on the Attorney General, it is also apposite to the
case at bar.
7
Id.
8
Id. at 405, 949 N.W.2d at 348.
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Nebraska Supreme Court Advance Sheets
308 Nebraska Reports
STATE v. CATLIN
Cite as 308 Neb. 294
[6,7] When the State is not represented by the office of the
Attorney General, the prosecution having instead been handled
by a city or county attorney, a copy of the brief that raises the
constitutionality of a statute must be served on the Attorney
General. While the party in the action might more broadly be
the State of Nebraska, for purposes of § 2-109(E), the Attorney
General is only a “party to [the] action” when its office is
directly involved in the litigation of the case. We cannot
assume that the Attorney General has notice of a challenge to
the constitutionality of a statute in an appeal in which the State
is represented by another office.
Catlin did not provide the Attorney General with a copy of
his brief. The Attorney General was not representing the State
in this litigation. Therefore, Catlin failed to strictly comply
with § 2-109(E). Accordingly, we cannot consider Catlin’s
assignment of error that implicitly challenges the constitution-
ality of § 25-2705. Because that is Catlin’s only assignment of
error, we affirm the judgment of the district court.
CONCLUSION
Catlin implicitly challenged the constitutionality of a stat-
ute, but he failed to provide notice as required by § 2-109(E).
Because we are unable to reach the merits of his appeal, we
affirm the judgment of the district court.
Affirmed.