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CAMPBELL v. HANSEN

Cite as 298 Neb. 669

Herbert Lee Campbell, appel

v. Brad Hansen, app

___ N.W.2d ___

Filed January 12, 2018. No. S-17-399.

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 fro

District Court for Johnson County, Vicky L. Johnson, Ju

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, St

Funke, JJ

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

02/23/2018 09:13 AM CST
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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 

1 Mumin v. Frakes, ante p. 381, ___ N.W.2d ___ (2017).
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from the denial of IFP status on appeal. It subsequently overruled Campbell’s motion for rehearing. We granted Campbell’s 

petition for further review and later ordered the appeal to be 

submitted without oral argument.

ASSIGNMENT OF ERROR

Campbell assigns that the Court of Appeals erred in concluding that after the district court dismissed his request to proceed 

IFP on appeal, he had 30 days in which to pay a docket fee or 

appeal the May 5, 2017, denial of IFP status.

STANDARD OF REVIEW

[1] 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

ANALYSIS

We first dispense with one of Campbell’s arguments in support of his petition for further review. He asserted that the May 

5, 2017, denial of IFP status was not for appeal purposes, but, 

rather, was a second denial to proceed IFP on his petition for 

writ of habeas corpus. Although we disagree, Campbell’s confusion is somewhat understandable.

The district court’s form of order presented three possible 

options for the court to select as its ruling. The court selected 

the following option:

The Court hereby denies Motion to Proceed in Forma 

Pauperis[.] The legal positions advanced by petitioner 

are frivolous. The writ is a collateral attack on a judgment of a valid conviction. The court had jurisdiction 

of the parties and subject matter and such a writ will 

not lie. See Peterson v. Houston, 284 Neb. 861 (2012). 

The party filing the application shall have thirty days 

2 State v. Carter, 292 Neb. 16, 870 N.W.2d 641 (2015).
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to proceed with an action or appeal upon payment of 

fees, costs, or security.

The court’s ruling did not specifically state that it was denying IFP for purposes of appeal. But the option for granting the 

motion to proceed IFP stated that it was “for appeal purposes.” 

Given this context and because Campbell filed the motion with 

his notice of appeal, we are satisfied that the court’s denial of 

IFP status in the May 2017 order was addressed to his substitute for the statutory docket fee on appeal and not in further 

response to his initial motion to proceed IFP.

Campbell also asserted that “the district court was without jurisdiction to enter the May 5, 2017 order.”3

 Although 

Campbell did not elaborate, he cited State v. Carter4 and Neb. 

Rev. Stat. § 25-2301.02 (Reissue 2016). Section 25-2301.02 

authorized Campbell’s interlocutory appeal from the denial of 

his first motion to proceed IFP and would have required that 

he be provided with a free transcript of the hearing on IFP eligibility, had there been such a hearing. To the extent Campbell 

is arguing that the district court could not interfere with his 

right to an interlocutory appeal of the denial of his request to 

proceed IFP, we agree.

[2] We recently clarified that a court does not have authority to deny a second request to proceed IFP made as part of 

an interlocutory appeal seeking appellate review of an initial 

denial of a request to proceed IFP.5 As we explained in Glass 

v. Kenney 6 and repeated in Mumin v. Frakes,

7

 when an IFP 

application is denied and the applicant seeks leave to proceed IFP in order to obtain appellate review of that denial, 

the trial court does not have authority to issue an order that 

3 Brief for appellant in support of petition for further review at 3. 4 State v. Carter, supra note 2.

5 See Mumin v. Frakes, supra note 1.

6 See Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).

7 See Mumin v. Frakes, supra note 1.
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would interfere with such appellate review. Here, the district 

court did just that. After denying Campbell’s application to 

proceed IFP at the commencement of the case, the court also 

denied his application to proceed IFP on appeal from the initial denial.

At this juncture, the procedural posture of Campbell’s case 

diverges from that in Glass v. Kenney and Mumin v. Frakes. 

In those cases, the applicant also filed an appeal from the 

denial of IFP status on appeal. Here, Campbell did not do 

so. For that reason, the Court of Appeals concluded it lacked 

jurisdiction.

[3] But Campbell took the necessary steps to vest jurisdiction with the Court of Appeals. In an interlocutory appeal 

from an order denying leave to proceed IFP, an appellate court 

obtains jurisdiction over the appeal upon the timely filing of 

a notice of appeal and a proper IFP application and affidavit.8

Campbell timely filed a notice of appeal, a motion to proceed 

IFP, and a poverty affidavit. Thus, the Court of Appeals erred 

in dismissing the appeal for lack of jurisdiction.

The Court of Appeals did not have the benefit of our Mumin 

v. Frakes opinion, and its dismissal is understandable under 

the circumstances. In Glass v. Kenney and State v. Carter,

9

 the 

applicants each filed two appeals—one appeal from an initial 

order denying IFP and a second appeal from an order denying IFP on appeal. Thus, the Court of Appeals was under the 

impression that Campbell should have paid a docket fee or 

appealed the May 2017 denial of IFP status.

But as our Mumin v. Frakes opinion explained, because 

another statute authorizes commencement of a habeas corpus 

proceeding without advance payment of fees,10 Campbell’s 

petition for a writ of habeas corpus was properly filed with 

the district court whether the first motion to proceed IFP 

8 See Glass v. Kenney, supra note 6.

9 State v. Carter, supra note 2.

10 See Neb. Rev. Stat. § 29-2824 (Reissue 2016).
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was granted or denied. Moreover, requiring an appeal from 

the second motion to proceed IFP unnecessarily multiplies 

appeals. As we pointed out in Mumin v. Frakes, where no 

prepayment of fees or costs is required, deferring the ruling 

on an IFP application would permit a trial court to reach the 

merits of the case without a lengthy delay resulting from an 

interlocutory appeal from an order denying IFP. Here, as in 

Mumin v. Frakes, there was no district court order directly 

ruling on the petition for writ of habeas corpus. Rather, 

Campbell’s appeal ran solely from the first order denying IFP 

status. According to § 25-2301.02, Campbell was entitled to 

appellate review of the district court’s initial denial of IFP 

status. He cannot be required to pay a docket fee in order to 

obtain such review; rather, his poverty affidavit served as a 

substitute for the statutory docket fee otherwise required.11

The Court of Appeals erred in dismissing the appeal for lack 

of jurisdiction.

CONCLUSION

Because the Court of Appeals acquired jurisdiction upon 

Campbell’s timely filing of a notice of appeal, accompanied 

by an application for IFP status and poverty affidavit, we 

reverse its decision dismissing the appeal. We remand the 

cause to the Court of Appeals for a determination on the merits of the error assigned by Campbell regarding the denial of 

his first motion to proceed IFP.

 Reversed and remande

further proceedi

Wright, J., not participating

11 See Neb. Rev. Stat. §§ 25-1912 and 33-103 (Reissue 2016).