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STATE v. COBLE

Cite as 299 Neb. 434

State of Nebraska, appellee, v.

Kaitlyn N. Coble, appella

___ N.W.2d ___

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

1. Judgments: Jurisdiction: Appeal and Error. 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.

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 jurisdiction 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 pursuant 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 

Nebraska Supreme Court Online Library

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

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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 separate 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 doctrine of legislative acquiescence, if it does not purport to interpret the 

statutory text.

Appeal from the District Court for Lancaster County, Joh

A. Colborn, Judge, on appeal thereto from the County Cour

for Lancaster County, Matthew L. Acton, Judge. Vacated

dismissed.

Jennifer Gaughan and Marian G. Heaney, of Legal Aid of 

Nebraska, for appellant.
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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, St

Funke, J

Funke, 

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 dismissed 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 criminal case, captioned as “Motion to Seal Records.” It requested 

that the court issue an “[o]rder making all the records 
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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 procedure 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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V. ANALYSIS

1. Jurisdiction: Final 

[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 jurisdiction 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 affirming, 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 categories of final orders:

An order affecting a substantial right in an action, 

when such order in effect determines the action and prevents 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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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 completed 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 certain 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 provide 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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the public record” as specified by the statute under certain 

circumstances, such as a dismissal or acquittal of the criminal 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: Su

Matter Jurisdict

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 jurisdiction 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 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.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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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 jurisdiction. 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 jurisdiction 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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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 matters 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 jurisdiction 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 procedure for its enforcement. Section 29-3528 provides that 

whenever a state agency or political subdivision, or officer or employee thereof, fails to comply with the requirements 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 individual 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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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 earlier dismissed.

Because the relief sought by Coble’s motion exceeded the 

scope of her criminal case and was not an incidental matter 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 postconviction 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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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 authorize 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 mandated 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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[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 interpretation 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 statutory 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 dismiss

Wright and Kelch, JJ., not participati

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”).