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SMITH v. WEDEKIND

Cite as 302 Neb. 387

Scott William Smith, individually and on 

of Aiden James Smith and Kayleigh-

Smith, minor children, appellant, v.

Leigh Wedekind and Zach Wedek

a married couple, appellees

___ N.W.2d ___

Filed March 1, 2019. No. S-18-516.

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.

Nebraska Supreme Court Online Library

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

05/17/2019 09:08 AM CDT
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Cite as 302 Neb. 387

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 

Smith, Judge. Affirmed

Scott William Smith, pro se.

No appearance for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Freudenberg, 

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 
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Cite as 302 Neb. 387

unconstitutional. The plaintiff did not file a notice under Neb. 

Ct. R. App. P. § 2-109(E) (rev. 2014), which is required whenever a party is “presenting a case involving the federal or state 

constitutionality of a statute.” We affirm.

BACKGROUND

Scott William Smith, representing himself pro se, filed a 

complaint individually and on behalf of his children for declaratory judgment under Neb. Rev. Stat. § 25-21,159 (Reissue 

2016), seeking “[d]eclaratory relief from” three orders under 

different dockets. The first order was a name change of Smith’s 

children. The second order was a protection order. The third 

order was a divorce decree between himself and Brandy Leigh 

Wedekind, the mother of the children. Wedekind and her current husband were named as defendants in the action.

Smith asked in his complaint for an immediate injunction 

under Neb. Rev. Stat. § 25-21,156 (Reissue 2016) against 

the enforcement of the protection order. Smith also asked for 

court-appointed counsel for himself and his children. Finally, 

Smith requested that the court declare the validity of 16 allegations pertaining to the alleged unconstitutionality of the three 

orders challenged in his complaint.

Smith applied to proceed in forma pauperis, submitting an 

affidavit demonstrating that he was unable to pay the costs of 

litigation. Citing to § 25-2301.02, the court denied the order 

sua sponte and without a hearing. The court reasoned that 

the complaint asserted a legally frivolous position, because 

it constituted an impermissible collateral attack on the dissolution decree, protection order, and name change order. 

Smith appeals.

ASSIGNMENTS OF ERROR

Smith assigns that the district court abused its discretion 

and committed plain error by failing to conduct a hearing 

on his motion to proceed in forma pauperis before making 

its decision.
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STANDARD OF REVIEW

[1] 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.1

ANALYSIS

Smith appeals from an order denying his application to 

proceed in forma pauperis. Section 25-2301.02 provides a 

statutory right of interlocutory appellate review of a decision 

denying in forma pauperis eligibility.2 Smith’s sole argument 

on appeal is that because the court failed to hold a hearing 

before determining the merits of his application to proceed in 

forma pauperis, he was deprived of open access to the courts 

as guaranteed by article I, § 13, of the Nebraska Constitution 

and due process under the Nebraska and federal Constitutions. 

Despite the district court’s explicit reference to § 25-2301.02, 

Smith does not refer to the statute in his appellate brief.

Section 25-2301.02 authorizes the court to deny an application to proceed in forma pauperis, without a hearing, under the 

circumstances presented in this case. Section 25-2301.02 states 

in relevant part:

An evidentiary hearing shall be conducted on the objection unless the objection is by the court on its own motion 

on the grounds that the applicant is asserting legal positions which are frivolous or malicious. If no hearing is 

held, the court shall provide a written statement of its 

reasons, findings, and conclusions for denial of the applicant’s application to proceed in forma pauperis which 

shall become a part of the record of the proceeding.

Thus, Smith’s constitutional challenge to the act of the district 

court in denying his application without a hearing implicitly 

1 State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (2016).

2 See, Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (2017); Glass v. 

Kenney, 268 Neb. 704, 687 N.W.2d 907 (2004).
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challenges the constitutionality of § 25-2301.02 that explicitly authorizes the district court to deny, without a hearing, an 

application to proceed in forma pauperis.

Smith failed to file a separate written notice with this 

court of a constitutional question and failed to serve upon the 

Attorney General, who is not a party to this action, a copy of 

his brief. Such notice is required under § 2-109(E) whenever a 

party is “presenting a case involving the federal or state constitutionality of a statute.”

[2] Section 2-109(E) 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 Section 2-109(E) also provides that if the 

Attorney General is not already a party to the action, a copy 

of the brief assigning unconstitutionality must be served on the 

Attorney General within 5 days of the filing of the brief with 

the Supreme Court Clerk. Section 2-109(E) states in full:

Cases Involving Constitutional Questions. 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 written 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 unconstitutionality 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.

The rule corresponds to the mandate of article V, § 2, of the 

Nebraska Constitution, which provides in pertinent part:

A majority of the members [of the Supreme Court] sitting shall have authority to pronounce a decision except 

3 See, Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (2006); State v. 

Johnson, 269 Neb. 507, 695 N.W.2d 165 (2005).
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in cases involving the constitutionality of an act of the 

Legislature. No legislative act shall be held unconstitutional except by the concurrence of five judges. . . . The 

judges of the Supreme Court, sitting without division, 

shall hear and determine all cases involving the constitutionality of a statute and all appeals involving capital 

cases and may review any decision rendered by a division 

of the court. In such cases, in the event of the disability 

or disqualification by interest or otherwise of any of 

the judges of the Supreme Court, the court may appoint 

judges of the district court or the appellate court to sit 

temporarily as judges of the Supreme Court, sufficient to 

constitute a full court of seven judges.

[3,4] A notice to the Supreme Court Clerk assists the clerk 

and this 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

[5-7] In State v. Boche,

6

 we held that the constitutionality 

of a statute for purposes of article V, § 2, of the Nebraska 

Constitution and § 2-109(E) includes both facial and as-applied 

challenges. This court has repeatedly held that strict compliance with § 2-109(E) is required for the court to address a 

constitutional claim.7 In Boche, we clarified that “strict compliance with § 2-109(E) is necessary whenever a litigant challenges the constitutionality of a statute, regardless of how that 

constitutional challenge may be characterized.”8 If a party fails 

4 State v. Boche, supra note 1; State v. Johnson, supra note 3.

5 State v. Johnson, supra note 3.

6 State v. Boche, supra note 1.

7 Ptak v. Swanson, supra note 3.

8 State v. Boche, supra note 1, 294 Neb. at 918, 885 N.W.2d at 529.
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to observe § 2-109(E), this court will not consider the constitutionality of the statute under attack.9

The question presented by this appeal is whether a litigant 

must file a notice under § 2-109(E) whenever the litigant 

implicitly challenges the constitutionality of a statute that, 

while not addressed in the appellate brief, explicitly authorizes 

the very act the litigant claims is unconstitutional. We hold that 

notice under § 2-109(E) is required under such circumstances.

[8] In such circumstances, a declaration by this court that 

the act complained of on appeal is unconstitutional would 

necessarily render unconstitutional the statute that explicitly 

authorizes the act. 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.

[9,10] Accordingly, this court must have notice under 

§ 2-109(E) 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. Further, the Attorney General has a right to 

notice that the constitutionality of a statute is being implicitly 

challenged in order to decide whether to file a brief of amicus 

curiae in the case. A litigant cannot avoid the requirements of 

§ 2-109(E) and the concurrent requisite scrutiny for invalidating statutory provisions merely by failing to cite to the statute 

that authorizes the constitutionally challenged act.

The district court’s action in this case of denying the 

application to proceed in forma pauperis was authorized by 

§ 25-2301.02. The objection to in forma pauperis status was on 

the court’s own motion on the ground that Smith was asserting legal positions that were frivolous. The court provided a 

9 Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (1990).
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written statement of its reasons, findings, and conclusions for 

denial of Smith’s application to proceed in forma pauperis in 

its order denying the application.

Because Smith did not file a notice compliant with 

§ 2-109(E), we do not address his arguments on appeal concerning the constitutionality of the district court’s decision to 

deny without a hearing his application to proceed in forma 

pauperis, expressly permitted by § 25-2301.02. The constitutionality of not providing a hearing before denying Smith’s 

application was the only issue adequately assigned and argued 

on appeal.10 Smith does not assign and argue that the court 

erred in its determination that his complaint asserted a frivolous 

legal position. Therefore, we affirm the district court’s order.

CONCLUSION

For the foregoing reasons, we affirm the order below denying Smith’s application to proceed in forma pauperis.

Affirmed

10 See State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (2014).