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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 challenge 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 matter 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.

Nebraska Supreme Court Online Library

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

02/05/2021 01:08 AM CST
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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 constitutionality 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 speeding 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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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 outside 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, challenging 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, reasoning, 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 prosecuted 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 violated 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 requirements of Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is determined 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 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.

Section 2-109(E) ensures, in light of the constitutional 

requirement that no legislative act shall be held unconstitutional 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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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 litigant must strictly comply with § 2-109(E) whenever the litigant 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 desirability of having a full court to hear the appeal and the Attorney 

General’s duties to defend the State’s statutes are not diminished by the fact that the challenge was indirectly rather than 

directly made. Whenever we 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 § 2-109(E) or else the matter necessarily implicating 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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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 constitutionality 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 constitutionality 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

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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 constitutionality 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 statute, 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.