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2020-01-17 22:02:17.59715+00

Trussell

*297OPINION. Trussell: The record in this case establishes the facts that during the year 1919 the petitioner was a foreign corporation and that it then received from a domestic corporation a payment of $20,043.05, which was made and received pursuant to the terms of a written contract, the provisions of which are set out in the findings of fact. The liability, if any, of the petitioner to income and profits taxes, or either of the same, is governed by the provisions of the Eevenue Act of 1918. Section 233 (b) of the Eevenue Act of 1918 provides: In the case of a foreign corporation gross income includes only the gross income from sources ivitMn the United States, including tlie interest on bonds," notes, or other interest-bearing obligations of residents, corporate or otherwise, dividends from resident corporations, and including all amounts received *298(although paid under a contract for the sale of goods or otherwise) representing profits on the manufacture and disposition of goods within the United States. (Italics supplied.) Section 237 of the Revenue Act of 1918 provides: That in the case of foreign corporations subject to taxation under this title not engaged in trade or business within the United States and not having any office or place of business therein, there shall be deducted and withheld at the source in the same manner and upon the same items of income as is provided in section 221 a tax equal to 10 per centum thereof, and such tax shall be returned and paid in the same manner and subject to the same conditions as provided in that section: Provided, That in the case of interest described in subdivision (b) of that section the deduction and withholding shall be at the rate of 2 per centum. In tlie Treasury Department regulations, made in pursuance of the Revenue Act of 1918, some of the pertinent provisions are: Akt. 503. Corporations Viable to tav. — Every corporation, domestic or foreign, not exempt under section 231 of the statute, is liable to the tax. * * * Abt. 625. Retwrns of foreign corporations. — Every foreign corporation having income from sources within the United States must make a return of income on form 1120. If such a corporation has no office or place of business here, but has a resident agent, he shall make the return. It is not necessary, however, for it to be required to make a return that the foreign corporation shall be engaged in business in this country or that it have any office, branch, or agency in the United States. Although the issue is raised it does not appear to be seriously contended- on the part of the petitioner that the payment which is the subject matter of this action was not an income payment, and upon consideration of all the testimony and the record in this case we hold that the petitioner was in receipt of an income payment in the amount above mentioned and that it is liable to an income tax upon such income computed in accordance with the statute. In respect of petitioner’s liability to an excess-profits tax we find in section 301 (b) that “every corporation” (with certain exceptions not important here) shall be subject to the excess-profits taxes levied by Title III of the Revenue Act of 1918, and in section 320 (a) (3) there is a provision that the income subject to the excess-profits tax shall be the same income which is subject to the income tax under Title II. In this Title III, levying excess-profits taxes, there is not only no exemption of foreign corporations, but, on the other hand, there are several provisions directly applicable to the computation of taxes upon such foreign corporations. The petitioner challenges its alleged liability to an excess-profits tax on the ground that it was not engaged in business within the *299United States and cites in support of its position several court decisions such as Cadwalader v. Lederer, 273 Fed. 879; affd., 274 Fed. 753. This and the other cases cited involve individual persons made subject to excess-profits tax under the Act of 1917 upon such part of the income of such persons as was derived from the carrying on of a business. These cases are not applicable to a corporation under the Act of 1918, whether such corporation be domestic or foreign. We are thus brought to the conclusion that this petitioner is not only liable to the so-called normal tax levied by Title II of the Revenue Act of 1918, but is also liable to the excess-profits tax levied by Title III of said Act. Petitioner has further challanged the legality of the excess-profits tax computed by the respondent on the further grounds that the petitioner has been compared with corporations engaged in the importing business and alleging that such corporations are not proper comparisons. • The record does not show what corporations the respondent has used in arriving at his determination of the rate of excess-profits tax; neither has petitioner moved for the redeter-mination of its liability to excess-profits tax under the provisions of the Board’s Rule 62 (c). It appears, however, from the deficiency letter addressed to the petitioner that the excess-profits tax has been computed as in the amount of $3,064.58, which is approximately 15.3 per cent of petitioner’s income from sources within the United States. This figure of excess-profits-tax liability appears on its face to be sufficiently modest in amount as not to warrant the presumption that it is out of proportion either in ratio or in total amount to taxes paid by other taxpayers, whether foreign or domestic, and we are of the opinion that the petitioner has no proper ground of complaint on account of the amount of the liability alleged. Judgment will he entered for the respondent.

2020-12-04 14:09:12.255275+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007434PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:09 AM CST - 512 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 Brian Chaney, appellant, v. Robert B. Evnen, in his official capacity as Nebraska Secretary of State, et al., appellees. ___ N.W.2d ___ Filed October 16, 2020. No. S-20-660. 1. Motions to Dismiss: Pleadings: Appeal and Error. An appellate court reviews a district court’s order granting a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all rea- sonable inferences in favor of the nonmoving party. 2. Rules of the Supreme Court: Pleadings: Appeal and Error. An appel- late court reviews the district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, an appellate court reviews de novo any underlying legal conclusion that the proposed amendments would be futile. 3. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, for which an appellate court has an obligation to reach an independent conclusion irrespective of the decision made by the court below. 4. Moot Question: Jurisdiction: Appeal and Error. Although mootness does not prevent appellate jurisdiction, it is a justiciability doctrine that can prevent courts from exercising jurisdiction. 5. Moot Question. Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute’s resolution that existed at the beginning of the litigation. 6. Actions: Moot Question. An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action. 7. Moot Question: Words and Phrases. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive.  - 513 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 8. Moot Question. The central question in a mootness analysis is whether changes in circumstances have forestalled any occasion for meaning- ful relief. 9. Pleadings: Equity. A prayer for general equitable relief is to be con- strued liberally and will often justify granting relief in addition to that contained in the specific prayer, provided it fairly conforms to the case made by the petition and the evidence. 10. ____: ____. The prayer for general relief in an equity action is as broad as the pleadings and the equitable powers of the court sufficient to authorize any judgment to which the party is entitled under the plead- ings and the evidence. 11. Motions to Dismiss: Pleadings. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face. In cases in which a plaintiff does not or cannot allege specific facts showing a neces- sary element, the factual allegations, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a rea- sonable expectation that discovery will reveal evidence of the element or claim. 12. Motions to Dismiss: Pleadings: Appeal and Error. When reviewing an order dismissing a complaint, an appellate court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion. 13. Constitutional Law: Initiative and Referendum. The right of initia- tive is precious to the people and is one which courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. 14. Pleadings: Words and Phrases. Pleading facts with particularity means the who, what, when, where, and how: the first paragraph of any news- paper story. Appeal from the District Court for Lancaster County: Robert R. Otte, Judge. Affirmed. Scott A. Lautenbaugh, of Law Offices of Scott Lautenbaugh, for appellant. Douglas J. Peterson, Attorney General, and Ryan S. Post for appellee. Mark C. Laughlin and Daniel J. Gutman, of Fraser Stryker, P.C., L.L.O., for appellees Albert Davis III et al.  - 514 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Fruedenberg, JJ. Per Curiam. Brian Chaney filed a lawsuit in which he sought to prevent Nebraska voters from amending provisions of the Delayed Deposit Services Licensing Act, Neb. Rev. Stat §§ 45-901 to 45-931 (Reissue 2016 & Cum. Supp. 2018), through a ballot initiative measure. Chaney alleged that some individuals who signed the initiative petition wished to withdraw their signa- tures. He also asserted that certain petition circulators did not comply with a Nebraska statute and committed fraud during the petition process. The district court dismissed Chaney’s lawsuit, and Chaney appeals. Finding no error in the district court’s decision, we affirm. I. BACKGROUND 1. Initiative This case concerns an initiative measure which, if adopted, would establish a statutory cap on the annual percentage rate that delayed deposit services licensees may charge. We recently decided another case involving this initiative petition. See Thomas v. Peterson, ante p. 89, ___ N.W.2d ___ (2020). In Thomas, we held that the ballot title prepared by the Nebraska Attorney General which referred to delayed deposit service licensees as “payday lenders” was not insufficient or unfair. See id. This case concerns the same initiative petition, but raises different legal arguments. 2. Chaney’s Complaint On August 31, 2020, Chaney filed a lawsuit naming Secretary of State Robert B. Evnen (the Secretary); Albert Davis III; Thomas A. Wagoner, Jr.; and Fr. Damian Zuerlein as defendants. Davis, Wagoner, and Zuerlein are the sponsors of the initiative petition at issue. Chaney identified the action as one to enjoin the Secretary from including the petition on the  - 515 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 November 3, 2020, general election ballot, pursuant to Neb. Rev. Stat. § 32-1412(2) (Cum. Supp. 2016). In the complaint, Chaney alleged that in June 2020, the sponsors submitted signatures in support of the initiative peti- tion to the Secretary. According to the complaint, each signa- ture page included a sworn and notarized statement from the petition circulator asserting, among other things, that the circu- lator “‘stated to each signer the object of the petition as printed on the petition before he or she affixed his or her signature to the petition.’” After those signatures were verified by county election officials, the Secretary certified on July 31, 2020, that all statutory requirements were met to place the initiative meas­ure on the November 3 general election ballot. Chaney’s complaint did not contest the Secretary’s determi- nation that the sponsors submitted sufficient signatures from the requisite number of counties as required by article III, § 2, of the Nebraska Constitution. Rather, he asserted that 188 of the signatories wished to withdraw their signatures or that their signatures were otherwise invalid. Chaney alleged that when those individuals signed the petition, the petition circulators did not read the object of the petition to them. He also alleged that each of those individuals would not have signed the peti- tion if the object had been read to them. Chaney attached to his complaint 188 affidavits. The affida- vits are substantially identical, with limited handwritten details relevant to each individual affiant including the county in which the affiant resided. Each affiant swore that the “circula- tor did not read to me the statement regarding the object of the petition that I now know was printed on the petition page” and that “I would not have signed the petition had the object statement been stated to me before the circulator asked for my signature.” Based on these allegations, Chaney asserted that the signa- tures were procured in violation of Neb. Rev. Stat. § 32-628 (Reissue 2016) and that the circulators committed fraud. He also alleged that the 188 affiants wished to withdraw their  - 516 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 signatures. The complaint claimed that without the signatures of the affiants, the petition was no longer supported by signa- tures from the requisite 5 percent of the registered voters in 38 counties. In his prayer for relief, Chaney requested the “issuance of a temporary and permanent injunction enjoining the Secretary from placing the legally insufficient Petition on the November 3, 2020 general election ballot.” He also prayed “[f]or such other further relief as the Court may deem just and equitable.” 3. Motions Hearing After the filing of the complaint, Chaney filed a motion for a temporary injunction. The sponsors filed a motion to dismiss for failure to state a claim upon which relief could be granted or, in the alternative, a motion for summary judgment. The sponsors also filed a motion to continue Chaney’s motion for temporary injunction. The district court held a hearing concerning the foregoing motions on September 8, 2020. At that hearing, counsel for Chaney, the Secretary, and the sponsors offered evidence and argument concerning the motions. 4. Dismissal Order On September 9, 2020, the district court issued an order sustaining the sponsors’ motion to dismiss and overruling Chaney’s motion for temporary injunction. The district court held that Chaney’s signature withdrawals were untimely and that he failed to allege fraud with particularity. In the course of concluding that Chaney had not adequately alleged fraud, the court reasoned that § 32-628(3) “does not require petition cir- culators to read the object statement ‘verbatim to each person beforehand.’ . . . Rather, ‘it is sufficient that circulators sum- marize, generally, the object or purpose of the petition in a way that is not misleading.’” In ordering dismissal, the district court further stated that Chaney “is not given leave to amend because the amendment  - 517 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 to his Complaint would not change the allegations in the affi- davits attached therein.” II. ASSIGNMENTS OF ERROR Chaney assigns, condensed and restated, that the district court erred (1) by granting the motion to dismiss and (2) by not giving him the opportunity to amend his complaint. III. STANDARD OF REVIEW [1] An appellate court reviews a district court’s order grant- ing a motion to dismiss de novo, accepting the allegations in the complaint as true and drawing all reasonable inferences in favor of the nonmoving party. Chafin v. Wisconsin Province of Society of Jesus, 301 Neb. 94 , 917 N.W.2d 821 (2018). [2] An appellate court reviews the district court’s denial of a motion to amend under Neb. Ct. R. Pldg. § 6-1115(a) for an abuse of discretion. However, we review de novo any under- lying legal conclusion that the proposed amendments would be futile. Kelly v. Saint Francis Med. Ctr., 295 Neb. 650 , 889 N.W.2d 613 (2017). [3] Statutory interpretation presents a question of law, for which an appellate court has an obligation to reach an indepen- dent conclusion irrespective of the decision made by the court below. J.S. v. Grand Island Public Schools, 297 Neb. 347 , 899 N.W.2d 893 (2017). IV. ANALYSIS 1. Mootness [4] The Secretary and sponsors contend that we should not reach the merits of this appeal because it is now moot. They argue that the specific relief Chaney sought in this case pursuant to § 32-1412(2)—an order enjoining the Secretary from certifying or printing the initiative petition on the bal- lot—is no ­longer available because the official ballot has been certified and copies of the ballot have been printed. Although mootness does not prevent appellate jurisdiction, it  - 518 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 is a justiciability doctrine that can prevent courts from exercis- ing jurisdiction. Nesbitt v. Frakes, 300 Neb. 1 , 911 N.W.2d 598 (2018). Accordingly, our analysis in this case begins not with Chaney’s assignments of error, but with the question of whether this case is moot. [5-8] Mootness refers to events occurring after the filing of a suit which eradicate the requisite personal interest in the dispute’s resolution that existed at the beginning of the litiga- tion. State ex rel. Peterson v. Ebke, 303 Neb. 637 , 930 N.W.2d 551 (2019). An action becomes moot when the issues initially presented in the proceedings no longer exist or the parties lack a legally cognizable interest in the outcome of the action. Id. A moot case is one which seeks to determine a question that no longer rests upon existing facts or rights—i.e., a case in which the issues presented are no longer alive. Id. The central question in a mootness analysis is whether changes in circum- stances have forestalled any occasion for meaningful relief. See id. [9,10] As noted, the Secretary and the sponsors contend this case is moot because the specific relief Chaney requested pursuant to § 32-1412(2) can no longer be ordered. But even if that relief cannot be granted, it is not the only relief Chaney requested. Chaney also requested “such other further relief as the Court may deem just and equitable.” We understand this language to be a prayer for general equitable relief. Such a prayer is to be construed liberally and will often justify grant- ing relief in addition to that contained in the specific prayer, provided it fairly conforms to the case made by the petition and the evidence. Daugherty v. Ashton Feed and Grain Co., Inc., 208 Neb. 159 , 303 N.W.2d 64 (1981). The prayer for general relief in an equity action is as broad as the pleadings and the equitable powers of the court sufficient to authorize any judgment to which the party is entitled under the pleadings and the evidence. Sullivan v. General United Life Ins. Co., 209 Neb. 872 , 312 N.W.2d 277 (1981). The relevant question in the mootness analysis in this case is thus whether any meaningful  - 519 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 relief could be provided in the event Chaney were to prevail. We believe the answer to this question is yes. The Secretary decides disputed points of election law, but those decisions only retain the force of law until changed by the courts. See Neb. Rev. Stat. § 32-201 (Reissue 2016). This court has previously entertained requests for relief after the certification of a ballot initiative but before the election. See, Stewart v. Advanced Gaming Tech., 272 Neb. 471 , 723 N.W.2d 65 (2006); State ex rel. Wieland v. Beermann, 246 Neb. 808 , 523 N.W.2d 518 (1994). See, also, Neb. Rev. Stat. §§ 32-801 (Reissue 2016) and 32-402.01 (Reissue 1993) (Secretary shall certify issues at least 50 days before general election). And in one such case, State ex rel. Wieland v. Beermann, supra , we provided relief. There, a citizen sought a writ of manda- mus compelling the Secretary to remove proposed legisla- tive resolutions from the general election ballot because the required explanatory statements had been filed after the statu- tory deadline. We granted the writ and then directed removal of the measures from the general election ballot just days before the election. It is safe to presume that at the time of our decision in State ex rel. Weiland, printing of the ballots had already begun. Although the relief in State ex rel. Wieland arose out of our mandamus jurisdiction rather than our appellate jurisdiction, it suggests that we could direct the legal removal of the peti- tion from the ballot even if we could not direct its physical removal. We see no reason why, if Chaney were entitled to prevail, we could not do the same here. Based on our holding in State ex rel. Wieland, circumstances as they now stand have not forestalled any occasion for the meaningful relief requested by Chaney. Therefore, dismissal on mootness grounds is inappropriate. 2. Failure to State Claim Turning now to the merits of Chaney’s appeal, we begin with his various arguments concerning the district court’s  - 520 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 dismissal of his complaint for failure to state a claim. On this topic, we note that although the parties submitted evidence at the hearing on the motion to dismiss, the district court did not convert the motion to dismiss to a motion for summary judg- ment or consider the evidence submitted by the parties. See Neb. Ct. R. Pldg. § 6-1112(b) (if, on motion to dismiss for failure to state claim, matters outside pleading are presented to and not excluded by court, motion shall be treated as one for summary judgment). Chaney, however, does not assign error to the district court’s decision to decide the motion to dismiss on the pleadings alone, and all of the parties’ argu- ments on appeal focus on whether Chaney’s complaint stated a claim upon which relief could be granted, rather than whether he could withstand summary judgment. We thus confine our analysis to the issue of whether Chaney adequately stated a claim as well. [11,12] In considering whether Chaney stated a claim, we apply well-known principles. To prevail against a motion to dismiss for failure to state a claim, a plaintiff must allege sufficient facts to state a claim to relief that is plausible on its face. Schaeffer v. Frakes, 306 Neb. 904 , 947 N.W.2d 714 (2020). In cases in which a plaintiff does not or cannot allege specific facts showing a necessary element, the factual allega- tions, taken as true, are nonetheless plausible if they suggest the existence of the element and raise a reasonable expectation that discovery will reveal evidence of the element or claim. Id. When reviewing an order dismissing a complaint, an appel- late court accepts as true all facts which are well pled and the proper and reasonable inferences of law and fact which may be drawn therefrom, but not the plaintiff’s conclusion. Holloway v. State, 293 Neb. 12 , 875 N.W.2d 435 (2016). For purposes of a motion to dismiss, a court is not obliged to accept as true a legal conclusion couched as a factual allegation, and threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id. - 521 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 As noted in the background section above, Chaney identi- fied three different theories in his complaint why certain peti- tion signatures should not be given effect. He claimed that sig- natories wished to withdraw their signatures, that circulators did not comply with § 32-628(3), and that circulators engaged in fraud. We will take up each of these theories, beginning with Chaney’s claim that the individuals who signed affi- davits attached to his complaint wished to withdraw their signatures. (a) Signature Withdrawal Although not mentioned in Chaney’s complaint, a Nebraska statute, Neb. Rev. Stat. § 32-632 (Reissue 2016), allows peti- tion signatories to withdraw their signatures by following cer- tain steps. Section 32-632 provides: Any person may remove his or her name from a peti- tion by an affidavit signed and sworn to by such person before the election commissioner, the county clerk, or a notary public. The affidavit shall be presented to the Secretary of State, election commissioner, or county clerk prior to or on the day the petition is filed for verification with the election commissioner or county clerk. Relying on this statute, the district court concluded that Chaney’s signature withdrawals were untimely. It reasoned that Chaney had alleged that the Secretary certified the petition for the general election ballot on July 31, 2020, and that the dead- line for removing signatures under § 32-632 was thus some- time before that date. None of Chaney’s affidavits, however, were signed before August 20. Section 32-632 allows petition signatories to withdraw their signatures and provides no indication that a signatory must provide any particular reason in order to effectuate the with- drawal of his or her signature. To the extent petition signatories wish to have their signature withdrawn simply because they no longer wish to support an initiative petition, we conclude that they must do so in compliance with § 32-632. If such signature  - 522 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 withdrawals could be effectuated outside of § 32-632, the restrictions of that section would have no force. There is no indication that the 188 individuals who signed affidavits attached to Chaney’s complaint complied with § 32-632. As the district court observed, those affidavits were signed weeks after the Secretary certified the petition for the ballot. In addition, Chaney’s complaint also provides no indi- cation that those ballots were presented to any of the officials specified by § 32-632. Accordingly, we find that the district court did not err to the extent it concluded that Chaney did not state a claim upon which relief could be granted merely by alleging that the individuals who signed affidavits attached to his complaint wished to withdraw their signatures. In response to the district court’s finding that the signature withdrawals were not timely, Chaney argues that the Secretary did not make the signed petitions available to him until after the petition had been certified for the ballot. He argues that the deadline to seek the court’s involvement cannot be before the identities of petition signers are made available by the Secretary. While the availability of the identities of the peti- tion signers may have made it close to impossible for Chaney to contact petition signers to inquire about whether they were interested in withdrawing their signature, there is nothing in our record that suggests signatories were precluded from seeking signature withdrawal in compliance with § 32-632. In short, Chaney argues that challengers to an initiative petition must have the opportunity to obtain the identities of petition signers and contact them before the time to withdraw their signatures expires. We view this as a policy argument properly directed to the Legislature. At oral argument, counsel for the Secretary argued that § 32-632 is the sole means by which signatures can be with- drawn or declared invalid and thus that the signatures in sup- port of this initiative petition are not open to challenge even if Chaney could show that circulators did not comply with § 32-628(3) or engaged in fraud. Chaney argues to the contrary.  - 523 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 We find, however, that we need not resolve the parties’ compet- ing positions on this issue, because, as we will explain, Chaney did not adequately allege that circulators failed to comply with § 32-628(3) or engaged in fraud. (b) Compliance With § 32-628(3) Chaney also contends that circulators failed to comply with § 32-628(3). In support of this theory, Chaney alleged that peti- tion circulators did not read the object statement of the petition to his supporting affiants. He argues petition circulators were required to do so by § 32-628(3). As we will explain, however, we disagree. Section 32-628(3) requires that every sheet of a petition which contains signatures be accompanied by an affidavit from the circulator. The statute provides that the affidavit shall be in “substantially the following form” and goes on to list various items, including that the circulator “stated to each signer the object of the petition as printed on the petition before he or she affixed his or her signature to the petition.” § 32-628(3). Chaney argues that this language requires the circulator to read the object statement of the petition to the signatory verbatim. The Secretary and the sponsors counter that a ver- batim reading is not required. While they concede that the circulator cannot say anything false or misleading, they argue this language allows the circulator to summarize the object statement. In our view, both Chaney on the one hand and the Secretary and the sponsors on the other have made plausible arguments based on the statutory text. In the end, however, we side with the Secretary and the sponsors and conclude that a verbatim reading of the object statement is not required. In support of this conclusion, we note that the affidavit described in § 32-628(3) need not include the exact language of the stat- ute but must only be in “substantially the following form.” (Emphasis supplied.)  - 524 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 [13] While we find that the Secretary and the sponsors have the better textual argument, our reading of § 32-628(3) is largely informed by the fact that we are interpreting a statute pertaining to the exercise of the people’s power of initiative. As we have often said, the right of initiative is precious to the people and is one which courts are zealous to preserve to the fullest tenable measure of spirit as well as letter. See, e.g., Christensen v. Gale, 301 Neb. 19 , 917 N.W.2d 145 (2018). To that end, we have also emphasized that statutory provisions authorizing initiative petitions should be construed in such a manner that the legislative power reserved in the people is effectual and should not be circumscribed by restrictive legisla- tion or narrow and strict interpretation of the statutes pertaining to its exercise. Id. We find those principles applicable here and conclude that requiring petition circulators to read the object statement of the petition to each signatory verbatim would be a narrow and strict interpretation of § 32-628(3) that could unduly restrict the power of initiative. We find confirmation of our conclusion from a recent case in which we relied on the same principles to resolve a question of statutory interpretation related to the initiative and refer- endum process. In Hargesheimer v. Gale, 294 Neb. 123 , 881 N.W.2d 589 (2016), the plaintiffs alleged that a referendum petition should be removed from the ballot because the statu- torily required list of sponsors did not include Governor Pete Ricketts. The plaintiffs alleged that Governor Ricketts qualified as a sponsor because he contributed money to the referendum campaign and supported it publicly. We rejected this argument, holding that only those who agreed to assume responsibility for the initiative and referendum petition process qualified as sponsors. In support of our conclusion, we noted that the argument urged by the plaintiffs would “tend to restrict the powers of initiative and referendum by making compliance with the statute more precarious.” Id. at 134, 881 N.W.2d at 597-98. We reasoned that if we were to adopt plaintiffs’ reading of  - 525 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 “‘sponsoring the petition’” to include individuals who par- ticipated in or supported the petition process, we would “inject ambiguity and make adherence difficult” and “expose the peti- tion process to procedural challenges and the risk of defects unrelated to the substance of the petition.” Id. at 134, 881 N.W.2d at 598. Much like the reading urged by the plaintiffs in Hargesheimer, we believe that the reading advanced by Chaney would “mak[e] compliance with the statute more pre- carious” and “expose the petition process to procedural chal- lenges and the risk of defects unrelated to the substance of the petition.” See 294 Neb. at 134, 881 N.W.2d at 598 . Having concluded that petition circulators were not required to read the object statement of the petition to signatories, we find Chaney’s claim for relief based on a violation of § 32-628(3) crumbles. The only way in which Chaney alleges that circulators did not comply with § 32-628(3) is by failing to read the object statement to signatories. (c) Fraud [14] This leaves only Chaney’s argument that petition sig- natures were subject to invalidation because circulators com- mitted fraud and that he adequately alleged the details of such fraud. As we evaluate this theory, we must do so under a dif- ferent pleading standard. Under our pleading rules, claims of fraud are subject to a heightened pleading standard. Our rules of pleading provide that “[i]n all averments of fraud, . . . the circumstances constituting fraud . . . shall be stated with par- ticularity.” Neb. Ct. R. Pldg. § 6-1109(b) (rev. 2008). Pleading facts with particularity means the who, what, when, where, and how: the first paragraph of any newspaper story. Chafin v. Wisconsin Province Society of Jesus, 301 Neb. 94 , 917 N.W.2d 821 (2018). With this standard in mind, we take up Chaney’s allegations of fraud. The complaint did not make any factual allegations suggest- ing that circulators committed fraud on petition signatories, let alone plead such details with particularity. The complaint does  - 526 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 not allege, for example, any of the “who, what, when, where, and how” details concerning the provision of misleading infor- mation to signatories. The only factual allegations that even approach the neces- sary level of particularity are Chaney’s assertions that circula- tors defrauded the Secretary by asserting that “they stated to each signer the object of the petition as printed on the peti- tion.” But Chaney claims this was fraudulent solely because circulators did not read the object statement as printed on the petition. Chaney’s fraud allegation thus collapses back into his argument that a circulator can only “‘state[] to each signer the object of the petition as printed on the petition’” by reading that statement verbatim. We have concluded that is not the case and thus conclude that Chaney has not adequately alleged that circulators defrauded the Secretary. Boiled to its essence, Chaney’s complaint alleged only that certain petition circulators did not read the object state- ment of the petition to certain signatories and that signatories decided that they wished to withdraw their signatures. As we have explained, those allegations, even if true, do not estab- lish that the circulators failed to comply with § 32-628(3) or that they committed fraud. And, to the extent that individual signatories simply decided that they wanted to withdraw their signatures, they could do so only through the means set forth by the Legislature, not via this lawsuit. Because Chaney’s factual allegations, even if true, do not establish a right to the relief he seeks, the district court did not err in finding that the complaint failed to state a claim upon which relief could be granted. 3. Leave to Amend Not Required Finally, Chaney claims that the district court erred in not allowing him the opportunity to amend his complaint. Chaney acknowledges, however, that he never asked that the district court grant him leave to amend his complaint. The Secretary  - 527 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 and the sponsors argue that the district court could not abuse its discretion by declining to grant leave to amend when it was not asked to do so. A number of federal circuit courts have concluded that a trial court cannot abuse its discretion by denying leave to amend when it was not requested. See, e.g., U.S. ex rel. Shara Ambrosecchia v. Paddock Labs., 855 F.3d 949 (8th Cir. 2017); Fletcher-Harlee v. Pote Concrete Contractors, 482 F.3d 247 (3d Cir. 2007); Sinay v. Lamson & Sessions Co., 948 F.2d 1037 (6th Cir. 1991); Coates v. Illinois State Bd. of Ed., 559 F.2d 445 (7th Cir. 1977). We, however, do not appear to have ever specifically adopted that rule. And, we have said that “[a]s a general rule, when a court grants a motion to dismiss for fail- ure to state a claim, a party should be given leave to amend absent undue delay, bad faith, unfair prejudice or futility.” Eadie v. Leise Properties, 300 Neb. 1 41, 150, 912 N.W.2d 715 , 722 (2018). But even if we have left open the possibility that a trial court could abuse its discretion by dismissing a complaint without allowing for amendment in the absence of a request for leave to amend, it remains true that, as a practical matter, it will be more difficult for a plaintiff to show that the district court has abused its discretion by doing so. Without such a request, the trial and appellate courts will likely be left to guess at what amendments plaintiff might seek to make and thus have no way to know whether the problems with the dismissed complaint can be cured. Hargesheimer v. Gale, 294 Neb. 123 , 881 N.W.2d 589 (2016), illustrates the difficulty of showing that a district court erred by not allowing leave to amend when the plaintiffs made no request to do so. In that case, the plaintiffs argued that the district court should not have dismissed their complaint with prejudice, but granted them leave to amend. We noted, how- ever, that they did not make a request to amend the complaint and that they did not show how an amendment could cure the problems with the dismissed complaint.  - 528 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports CHANEY v. EVNEN Cite as 307 Neb. 512 Like the plaintiffs in Hargesheimer, Chaney has not shown how an amendment could have cured his failure to state a claim upon which relief could be granted. Chaney pled that 188 petition signatories wished to withdraw their signatures because they were procured by fraud and that the object state- ments were not read to signatories. However, we have con- cluded that the withdrawals were untimely submitted and that Chaney’s allegations of fraud, even if they could render the withdrawals timely, were based on an incorrect understanding and application of § 36-328(3). Upon our review of the record, we conclude that Chaney has made no showing how amend- ment could have cured these defects. Because Chaney neither moved for leave to amend nor showed how the defects in his complaint could have been cured, the district court did not err by declining to grant him leave to amend. V. CONCLUSION For the reasons we have explained, the district court did not err by dismissing Chaney’s complaint or by not providing him with the opportunity to amend his complaint. Accordingly, we affirm. Affirmed.

2020-12-04 14:09:19.72535+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007407PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:09 AM CST - 393 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 State of Nebraska, appellee, v. Kenneth E. Hurd, appellant. ___ N.W.2d ___ Filed October 2, 2020. No. S-19-919. 1. Sentences: Appeal and Error. An appellate court will not disturb a sen- tence imposed within the statutory limits absent an abuse of discretion by the trial court. 2. Judgments: Words and Phrases. An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unrea- sonable or if its action is clearly against justice or conscience, reason, and evidence. 3. Statutes: Appeal and Error. Statutory interpretation presents a ques- tion of law, which an appellate court reviews independently of the lower court. 4. ____: ____. An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous. 5. Courts: Sentences. A sentencing court has wide latitude and discretion to impose any sentence within the statutory limits. Appeal from the District Court for Seward County: James C. Stecker, Judge. Affirmed. Jim K. McGough and Nathan S. Lab, of McGough Law, P.C., L.L.O., for appellant. Douglas J. Peterson, Attorney General, and Kimberly A. Klein for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 394 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 Heavican, C.J. INTRODUCTION Kenneth E. Hurd pled no contest to a misdemeanor charge of child abuse. He was sentenced to 1 year’s imprisonment. He appealed, and we moved this case to our docket to answer the question of whether, under Neb. Rev. Stat. § 81-1848 (Cum. Supp. 2018), a victim may both fill out a victim impact state- ment to be included in the presentence investigation report and also write and read a separate letter to be offered at the defendant’s sentencing hearing. We conclude that the plain lan- guage of § 81-1848 allows both a victim impact statement and a written letter and that Hurd’s sentence was not excessive. We accordingly affirm. FACTUAL BACKGROUND Hurd was charged by information with incest. Pursuant to a plea agreement, Hurd subsequently pled no contest to one count of misdemeanor child abuse. In return for Hurd’s no con- test plea, the State agreed to recommend probation. A presentence investigation report was completed. The vic- tim included a victim impact statement, consisting of responses to a questionnaire drafted by the probation office, and ­suggested that she believed probation would be appropriate. The proba- tion officer completing the report indicated the same. At the sentencing hearing, the State offered a factual basis alleging that Hurd resided with his wife and the alleged victim in this case and that Hurd subjected the victim to emotional trauma and physical abuse. The State also requested that the victim be permitted to read aloud a separate letter that she had written to Hurd. That request was granted over Hurd’s objec- tion. The contents of the letter were read into the record, and the letter itself was entered into evidence. Hurd was subse- quently sentenced to 1 year’s imprisonment. Hurd appeals.  - 395 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 ASSIGNMENTS OF ERROR Hurd assigns, renumbered, that the district court abused its discretion by (1) allowing the victim to submit a statement to be included in the presentence investigation report and allow- ing her to also read a separate letter that was then offered into evidence for purposes of sentencing and (2) relying on state- ments suggesting that Hurd had committed first degree sexual assault in sentencing him to the maximum 1-year sentence of imprisonment allowable for his conviction for misdemeanor child abuse. STANDARD OF REVIEW [1,2] An appellate court will not disturb a sentence imposed within the statutory limits absent an abuse of discretion by the trial court. 1 An abuse of discretion occurs when a trial court’s decision is based upon reasons that are untenable or unreason- able or if its action is clearly against justice or conscience, reason, and evidence. 2 [3] Statutory interpretation presents a question of law, which an appellate court reviews independently of the lower court. 3 ANALYSIS Interpretation of § 81-1848(1)(d). In his first assignment of error, Hurd argues that the district court erred in allowing the victim to provide a victim impact statement for the presentence investigation report and to also read and offer to the court a separate, written statement. As relevant, § 81-1848 provides: (1) Victims as defined in section 29-119 shall have the . . . right[]: .... 1 State v. Price, 306 Neb. 38 , 944 N.W.2d 279 (2020). 2 Id. 3 State v. Galvan, 305 Neb. 513 , 941 N.W.2d 183 (2020).  - 396 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 (d) To be notified by the county attorney by any means reasonably calculated to give prompt actual notice of the following: .... (iv) The victim’s right to make a written or oral impact statement to be used in the probation officer’s prepa- ration of a presentence investigation report concerning the defendant; .... (vii) The victim’s right to submit a written impact statement at the sentencing proceeding or to read his or her impact statement submitted pursuant to subdivision (1)(d)(iv) of this section at the sentencing proceeding. We held in State v. Galindo, 4 and reiterated in State v. Thieszen, 5 that § 81-1848 of the Nebraska Crime Victim’s Reparations Act provides a list of baseline rights and that the act “does not seek to limit the sentencing court’s traditional discretion to consider evidence from a variety of sources.” Hurd’s assignment of error presents two issues—whether the victim was entitled to submit both a victim impact state- ment under § 81-1848(1)(d)(iv) and a written impact statement under § 81-1848(1)(d)(vii) and whether the district court erred in allowing the victim to read the second impact statement at sentencing before making the written version part of the record. These issues require this court to consider the language of § 81-1848. There is no allegation on appeal that the State violated the plea agreement. [4] An appellate court will not resort to interpretation to ascertain the meaning of statutory words that are plain, direct, and unambiguous. 6 In this case, the language of § 81-1848 plainly states that the victim had both the right to offer a written statement for 4 State v. Galindo, 278 Neb. 599 , 670, 774 N.W.2d 190 , 245 (2009). 5 See State v. Thieszen, 300 Neb. 112 , 912 N.W.2d 696 (2018). 6 State v. Montoya, 305 Neb. 581 , 941 N.W.2d 474 (2020).  - 397 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 the presentence investigation report under subsection (1)(d)(iv) and to also offer a written impact statement at the time of sentencing under subsection (1)(d)(vii). As the State notes, the ability to do so seems to be a “peculiar quirk” of that section, but the language is nevertheless plain in allowing both. 7 The victim here did both, as was permitted by statute, and we find no error in the district court’s allowing both to be considered at sentencing. We note that Hurd objected to the written letter offered at sentencing on the ground that the victim had offered a written statement for inclusion in the presentence investigation report. We also note that Hurd further objected to facts relating to a sexual assault included in the report. But Hurd did not seek a continuance as a result of the reading or offering of the victim’s letter, nor did he argue that the information alleged in the letter read and offered at sentencing was unknown to him. We also observe that the same plain language set forth above does not explicitly reserve to a victim the right to read aloud a separate victim impact statement drafted for purposes of sentencing, as occurred in this case. But as we have previ- ously noted, the rights set forth in § 81-1848 are baseline rights and do not limit a sentencing court’s discretion to consider evidence from a variety of sources. Where Hurd has failed to demonstrate that he was prejudiced by the victim’s reading her letter, a written version was, in any case, made available to the court. 8 The district court has discretion to consider many things in determining a sentence, as will be discussed below. Allowing this letter to be read, rather than simply offered, is consistent with this discretion. Hurd’s first assignment of error is with- out merit. 7 Brief for appellee at 11. 8 See State v. Scott, 284 Neb. 703 , 824 N.W.2d 668 (2012).  - 398 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 Consideration of Charges Dropped Pursuant to Plea Agreement. In his second assignment of error, Hurd assigns that the district court erred in relying on allegations originally charged, but ultimately dismissed, in order to sentence him to the maxi- mum sentence allowed for his conviction. The State relied on State v. Janis 9 to support its position that it was not an abuse of discretion for the district court to con- sider dismissed charges when sentencing a defendant: “It must be assumed, we think, that a trial judge knows the difference between information that is pertinent to the issue before him and that which is unfounded rumor. The law invests a trial judge with a wide discretion as to the sources and types of information used to assist him in determining the sentence to be imposed within statutory limits.” It is hard for us to understand how a trial court may properly consider information of the appellant’s behavior if no charges are filed, but may not consider the underlying facts if a charge is filed and later dismissed, not because the facts are untrue, but due to a plea bargain. While we do not mean to suggest . . . that a trial court is free to consider any matter having no relevance or basis, we do mean to say that a trial court is, indeed, given wide discretion and where it appears that a sentence imposed is within statutory and constitutional limitations, it will not be disturbed on appeal in the absence of an abuse of discretion on the part of the trial court. Hurd argues that his case is distinguishable from Janis because “the district court in this matter improperly con- cluded that [Hurd] was guilty of a more serious and dismissed charge and abused its discretion by excluding consideration of a probationary sentence because the court believed that [Hurd] would not admit to the more serious charge.” 10 Having 9 State v. Janis, 207 Neb. 491 , 495, 299 N.W.2d 447 , 449-50 (1980) (quot­ ing State v. Rapp, 184 Neb. 156 , 165 N.W.2d 715 (1969)). 10 Brief for appellant at 12.  - 399 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. HURD Cite as 307 Neb. 393 reviewed the district court’s comments made at sentencing, we disagree with this characterization. [5] As noted above, we have observed that a sentencing court has wide latitude and discretion to impose any sentence within the statutory limits: “It is a long accepted practice in this state that before sentencing a defendant after conviction a trial judge has a broad discretion in the source and type of evidence he may use to assist him in determining the kind and extent of punishment to be imposed within the limits fixed by statute. Highly relevant, if not essential, to his determina- tion of an appropriate sentence is the gaining of knowl- edge concerning defendant’s life, character, and previous conduct. In gaining this information, the trial court may consider reports of probation officers, police reports, affi- davits, and other information including his own observa- tions of the defendant. A presentence investigation has nothing to do with the issue of guilt. The rules governing due process with respect to the admissibility of evidence are not the same in a presentence hearing as in a trial in which guilt or innocence is the issue. The latitude allowed a sentencing judge at a presentence hearing to determine the nature and length of punishment, other than in recidi- vist cases, is almost without limitation as long as it is relevant to the issue.” 11 The sentence imposed was supported by the facts of this case and the victim’s statement, and it was within the district court’s discretion. Hurd’s second assignment of error is with- out merit. CONCLUSION We affirm the judgment of conviction and the sentence of the district court. Affirmed. 11 Rapp, supra note 9, 184 Neb. at 157-58 , 165 N.W.2d at 716.

2020-12-04 14:08:53.478127+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007469PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:08 AM CST - 695 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 State of Nebraska, appellee, v. Aaron Teppert, appellant. ___ N.W.2d ___ Filed November 6, 2020. No. S-19-688. 1. Sentences: Prior Convictions: Appeal and Error. A sentencing court’s determination concerning the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent convic- tion, will be upheld on appeal unless the sentencing court’s determina- tion is clearly erroneous. 2. Convictions: Presumptions: Right to Counsel: Waiver: Proof. Convictions obtained after Gideon v. Wainwright, 372 U.S. 335 , 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), are entitled to a presumption of regular- ity such that records of conviction are admissible unless the defendant can show that he or she did not have or waive counsel at the time of conviction. 3. Sentences: Prior Convictions: Proof. In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. Appeal from the District Court for Scotts Bluff County: Andrea D. Miller, Judge. Affirmed. Paul Payne and Darin J. Knepper, Deputy Scotts Bluff Public Defenders, for appellant. Douglas J. Peterson, Attorney General, and Matthew Lewis for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ.  - 696 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 Papik, J. Aaron Teppert appeals his conviction for driving under the influence (DUI), fourth offense. He argues that the district court erred by receiving evidence of a prior conviction offered by the State in support of sentence enhancement. We find that the district court did not err and therefore affirm. BACKGROUND Teppert was charged with and pleaded guilty to DUI and driving under suspension. At the subsequent sentence enhance- ment proceeding, the State sought to introduce evidence of three prior DUI convictions. Teppert did not object to the dis- trict court’s receipt of two of the prior DUI convictions, and those convictions are not at issue in this appeal. Teppert did object to the admission of court records showing that he was convicted of DUI in 2010 in Red Willow County Court. He argued that those records were inadmissible because they did not affirmatively show that he had counsel or had knowingly, intelligently, and voluntarily waived the right to counsel before entering his guilty plea in that case. We will discuss the content of the court records at issue in more detail in the analysis section below. The district court overruled Teppert’s objection, found that the current conviction was his fourth offense, and sentenced Teppert accordingly. Teppert appeals. ASSIGNMENT OF ERROR Teppert assigns one error on appeal. He contends the district court erred by receiving the records of his 2010 DUI convic- tion for purposes of sentence enhancement. STANDARD OF REVIEW [1] A sentencing court’s determination concerning the con- stitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court’s determina- tion is clearly erroneous. State v. Orduna, 250 Neb. 602 , 550  - 697 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 N.W.2d 356 (1996), overruled on other grounds, State v. Vann, 306 Neb. 91 , 944 N.W.2d 503 (2020). ANALYSIS Law Governing Admissibility of Records of Prior Convictions in Enhancement Proceedings. As both parties recognized at oral argument, the legal land- scape on the issue raised in this appeal changed after the dis- trict court proceedings and the filing of briefs in this case. For many years, this court held that evidence of a prior conviction was inadmissible unless the State proved that, at the time of the prior conviction, the defendant either had counsel or knowingly, intelligently, and voluntarily waived the right to counsel. See, e.g., State v. Nowicki, 239 Neb. 130 , 474 N.W.2d 478 (1991), overruled, Vann, supra . See, also, Orduna, supra . Under this rule, if a record was silent as to whether the defendant had or validly waived counsel in the prior proceeding, evidence of that conviction was not admissible; affirmative evidence that the defendant’s Sixth Amendment right to counsel was honored in the prior proceeding was required. See, e.g., State v. Garcia, 281 Neb. 1 , 792 N.W.2d 882 (2011), overruled, Vann, supra . At the enhancement proceeding in this case, Teppert relied on this line of cases to argue that the district court should not receive evidence of the 2010 DUI conviction. [2] Earlier this year in Vann, supra , we overruled this line of cases. In Vann, we concluded that the rule prohibiting courts from presuming that prior convictions were obtained in com- pliance with the Sixth Amendment was based on a reading of a U.S. Supreme Court case, Burgett v. Texas, 389 U.S. 109 , 88 S. Ct. 258, 19 L. Ed. 2d 319 (1967), that the U.S. Supreme Court later rejected in Parke v. Raley, 506 U.S. 20 , 113 S. Ct. 517 , 121 L. Ed. 2d 391 (1992). In light of Parke, we concluded that convictions obtained after the recognition of a federal constitu- tional right to counsel in state court in Gideon v. Wainwright, 372 U.S. 335 , 83 S. Ct. 792 , 9 L. Ed. 2d 799 (1963), are “entitled to a presumption of regularity such that records of conviction are admissible unless the defendant can show that  - 698 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 he or she did not have or waive counsel at the time of convic- tion.” Vann, 306 Neb. at 102 , 944 N.W.2d at 512. Additionally, we noted that many other state and federal courts apply the same rule, including some courts that once applied the rule we followed prior to Vann. While the fact of a prior conviction was an element of the underlying offense in Vann, we made clear that the same rule would apply to the use of prior convictions in sentence enhancement proceedings. At oral argument, counsel for Teppert acknowledged that if Vann applied, the records of the 2010 DUI conviction would be entitled to a presumption of regularity and Teppert would have the burden to show he did not have or validly waive counsel at the time of that conviction. He argued, however, that because the enhancement proceeding occurred prior to the release of our opinion in Vann, we should reverse, and remand to the district court so that Teppert would have the opportunity to present evidence to carry his burden. Counsel for the State argued that no remand was necessary because the records were admissible whether the case is governed by Vann or the line of cases Vann overruled. We do not believe remand is required. As we will explain, even under the pre-Vann law, the district court did not err by receiving evidence of the convictions. Records Admissible Under Pre-Vann Law. [3] In a proceeding to enhance a punishment because of prior convictions, the State has the burden to prove the fact of prior convictions by a preponderance of the evidence and the trial court determines the fact of prior convictions based upon the preponderance of the evidence standard. See, State v. Hall, 270 Neb. 669 , 708 N.W.2d 209 (2005); State v. Hurbenca, 266 Neb. 853 , 669 N.W.2d 668 (2003). Prior to our decision in Vann, in order for evidence of a prior conviction to be admit- ted for enhancement purposes, the State also had the burden to show by a preponderance of the evidence that the defendant had or waived counsel at the time of the prior conviction. See, e.g., Hall, supra.  - 699 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 At the enhancement proceeding, the State offered various authenticated court records from a 2010 criminal case. Those records show that Teppert was charged with DUI, pleaded guilty, and was sentenced accordingly. The State argues that a September 30, 2010, journal entry and order from that case also shows that Teppert validly waived counsel before entering his guilty plea. The journal entry and order states that Teppert pleaded guilty and was found guilty, followed by sections summarizing the advisements given and the arraignment: APPEARANCES AND ADVISEMENT .... Defendant advised of the nature of the above charges, all possible penalties, effect of conviction on non-citizens, and each of the following rights: Counsel; Appointed Counsel; Trial; Jury Trial; Confront Accusers; Subpoena Witnesses; Remain Silent; Request Transfer to Juvenile Court; Defendant’s Presumption of Innocence; State’s Burden of Proof . . . ; Right to Appeal. Indigency inquiry held[:] Defendant adjudged indigent, public defender appointed. ARRAIGNMENT Defendant advised of and waived rights. Defendant waives jury trial. Defendant enters above pleas. Pleas entered knowingly, intelligently, voluntarily, and a factual basis for plea(s) found. Teppert argues that the district court could not have found that he validly waived his right to counsel at the plea hear- ing for his 2010 DUI conviction based on the journal entry and order. Teppert maintains that the journal entry and order is silent as to whether he validly waived his right to counsel before entering his guilty plea. We disagree. Teppert points out that the journal entry and order does not directly state that Teppert knowingly, intelligently, and volun- tarily waived the right to counsel. Nonetheless, we find that  - 700 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 one could reasonably conclude from the information included in the journal entry and order that Teppert validly waived the right to counsel. After stating that Teppert was advised of a number of rights, including the right to counsel, the journal entry and order states that Teppert was “advised of and waived rights.” Read together, we believe it fair to infer that Teppert waived the specific rights referred to earlier, including the right to counsel. The journal entry and order also contain several indications that Teppert waived his right to counsel knowingly, intelli- gently, and voluntarily. First, the fact that Teppert was advised about his rights before waiving them suggests a knowing, intelligent, and voluntary waiver. Second, the journal entry and order shows that after entering his guilty plea, Teppert invoked his right to counsel and was appointed counsel for sentencing. Teppert’s exercise of his right to counsel for the sentencing phase of the case also suggests he understood the right. Finally, the notation that Teppert entered his plea know- ingly, intelligently, and voluntarily shows that his waiver of counsel was also done knowingly, intelligently, and vol- untarily. We explored the relationship between a valid plea and a valid waiver of the right to counsel in State v. Orduna, 250 Neb. 602 , 550 N.W.2d 356 (1996), overruled on other grounds, State v. Vann, 306 Neb. 91 , 944 N.W.2d 503 (2020). In Orduna, like this case, a record of the defendant’s prior conviction expressly stated that he had made a knowing, intelligent, and voluntary guilty plea, but did not expressly state that he had knowingly, intelligently, and voluntarily waived the right to counsel. We nonetheless found that the records affirmatively demonstrated a valid waiver of the right to counsel. We reasoned that if a trial court finds that a plea was entered knowingly, intelligently, and voluntarily, and the record reflects that the defendant also waived the right to counsel, the right to counsel must also have been waived knowingly, intelligently, and voluntarily. As we explained, “a plea cannot be legally sufficient unless those elements  - 701 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. TEPPERT Cite as 307 Neb. 695 underlying the plea are also legally sufficient.” Id. at 611, 550 N.W.2d at 362-63. As noted above, a sentencing court’s determination concern- ing the constitutional validity of a prior plea-based conviction, used for enhancement of a penalty for a subsequent conviction, will be upheld on appeal unless the sentencing court’s determi- nation is clearly erroneous. Orduna, supra . Given all that the district court could fairly conclude from the journal entry and order, we cannot say the district court clearly erred by finding that Teppert knowingly, intelligently, and voluntarily waived his right to counsel prior to entering his guilty plea for his 2010 DUI conviction. Because Teppert failed to demonstrate that the district court erred even if this case is reviewed under the more restric- tive rule governing the admissibility of prior convictions that applied prior to Vann, we see no basis to reverse the decision of the district court. CONCLUSION The district court did not err by receiving records of Teppert’s 2010 DUI conviction and finding that his conviction in this case was his fourth offense. We affirm. Affirmed.

2020-12-04 14:09:21.97719+00

https://www.nebraska.gov/apps-courts-epub/public/viewOpinion?docId=N00007408PUB

Nebraska Supreme Court Online Library www.nebraska.gov/apps-courts-epub/ 12/04/2020 08:09 AM CST - 400 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 State of Nebraska, appellee, v. Elijah W. Denton, appellant. ___ N.W.2d ___ Filed October 2, 2020. No. S-19-939. 1. Appeal and Error. To be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party asserting the error. 2. Constitutional Law: Statutes: Appeal and Error. The constitutionality of a statute presents a question of law, which an appellate court indepen- dently reviews. 3. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal and Error. An appellant challenging the constitutionality of a statute must strictly comply with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014). 4. 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 federal or state constitution- ality 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. 5. Constitutional Law: Rules of the Supreme Court: Statutes: Appeal and Error. Strict compliance with Neb. Ct. R. App. P. § 2-109(E) (rev. 2014) is necessary whenever a litigant challenges the constitutional- ity of a statute, regardless of how that constitutional challenge may be characterized. Appeal from the District Court for Lancaster County, Jodi L. Nelson, Judge, on appeal thereto from the County Court for Lancaster County, Joseph E. Dalton, Judge. Judgment of District Court affirmed. David Tarrell, of Berry Law Firm, for appellant.  - 401 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 Robert E. Caples, Assistant Lincoln City Prosecutor, for appellee. Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, Papik, and Freudenberg, JJ. Cassel, J. INTRODUCTION Elijah W. Denton implicitly attacks the constitutionality of a state statute 1 prohibiting jury trials for criminal cases arising under city ordinances. Denton was denied a jury trial for the alleged violation of a municipal ordinance prohibiting battery, 2 despite a separate ordinance 3 imposing a 10-year ban upon possession of firearms by a person convicted of violating the battery ordinance. On appeal to this court from his convic- tion and sentence under the battery ordinance, Denton failed to comply with the procedural rule governing constitutional challenges to statutes. 4 Because we strictly apply the rule, we affirm the judgment. BACKGROUND Denton’s legal challenge does not rely upon any facts under- lying his conviction. Thus, we need not summarize them. Instead, Denton relies upon three city ordinances. The bat- tery ordinance 5 defined the crime of which he was con- victed. For a conviction under the battery ordinance, a pen- alty ordinance 6 prescribed a maximum penalty of 6 months’ ­imprisonment, a $500 fine, or both, 7 and directed that the 1 Neb. Rev. Stat. § 25-2705 (Reissue 2016). 2 Lincoln Mun. Code § 9.12.010(b) (1997) (battery ordinance). 3 See Lincoln Mun. Code § 9.36.100 (2008) (firearm ban ordinance). 4 See Neb. Ct. R. App. P. § 2-109(E) (rev. 2014). 5 See § 9.12.010(b) (“[i]t shall be unlawful for any person intentionally, knowingly, or recklessly to: 1. Cause bodily injury to another person; or 2. Strike another person”). 6 Lincoln Mun. Code § 1.24.010 (2006) (penalty ordinance). 7 § 1.24.010(a).  - 402 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 penalty be “­cumulative with and in addition to . . . any other penalty, punishment, or sentence specified by this code.” 8 The firearm ban ordinance stated in relevant part: “It shall be unlawful for any person to possess any firearm within the corporate limits or on any property of the City of Lincoln outside the corporate limits when that person has been con- victed of any one of the following offenses within the last ten years: . . . the [battery ordinance].” 9 Prior to trial, Denton filed a written motion for jury trial. After a hearing, the county court pronounced a denial of the motion. The court’s written order overruled the motion, because “any possible collateral consequences under the Lincoln Municipal Code does not make the instant offense a serious offense thus entitling [Denton] to a trial by jury under either the U.S. or Nebraska Constitutions.” Following a bench trial, the county court convicted Denton of violating the battery ordinance. The court imposed only a $250 fine. Denton timely appealed the county court judgment to the district court. The district court relied in part upon § 25-2705, which states in pertinent part that “[e]ither party to any case in county court, except criminal cases arising under city . . . ordinances, . . . may demand a trial by jury.” The district court affirmed the county court’s judgment. Denton filed a timely appeal to the Nebraska Court of Appeals. At the time he filed his appellate brief, he did not file or serve either “a separate written notice or [a] notice in a Petition to Bypass” regarding “the federal or state consti- tutionality” of § 25-2705. 10 We moved Denton’s appeal to our docket. 11 8 § 1.24.010(c). 9 § 9.36.100. 10 See § 2-109(E). 11 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).  - 403 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 ASSIGNMENT OF ERROR Denton’s brief on appeal assigns only one error: The district court erred in affirming the county court’s denial of his motion for a jury trial. [1] Prior to filing his brief in the Court of Appeals, Denton filed a “Notice of Errors.” In that document, Denton also assigned that the district court erred in affirming the county court’s denial of his disclosure motion. But to be considered by an appellate court, an alleged error must be both specifically assigned and specifically argued in the brief of the party assert- ing the error. 12 Denton does not assign nor argue the alleged disclosure motion error in his brief, and therefore, we will not address it. STANDARD OF REVIEW [2] The constitutionality of a statute presents a question of law, which an appellate court independently reviews. 13 ANALYSIS [3,4] An appellant challenging the constitutionality of a stat- ute must strictly comply with § 2-109(E). 14 Section 2-109(E) requires 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 par- ty’s brief. 15 The party must also provide the Attorney General with a copy of its brief. 16 Without strict compliance with 12 State v. Dixon, 306 Neb. 853 , 947 N.W.2d 563 (2020). 13 State v. Jenkins, 303 Neb. 676 , 931 N.W.2d 851 (2019), cert. denied ___ U.S. ___, 140 S. Ct. 2704 , 206 L. Ed. 2d 844 (2020). 14 See, State v. Epp, 299 Neb. 703 , 910 N.W.2d 91 (2018); State v. Boche, 294 Neb. 912 , 885 N.W.2d 523 (2016). 15 Epp, supra note 14. 16 See Boche, supra note 14.  - 404 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 § 2-109(E), this court will not address a constitutional chal- lenge to a statute. 17 Section 2-109(E) ensures that this court has notice of a con- stitutional challenge. 18 As the Nebraska Constitution empowers this court to declare a legislative act unconstitutional only by a supermajority of at least five judges, the court must secure a full court to hear an appeal regarding the constitutionality of a statute. 19 Section 2-109(E) assists the court to do so. Section 2-109(E) also guarantees that notice of a consti- tutional challenge to a statute is provided to the Attorney General. The statutes may not precisely articulate the Attorney General’s duty to defend the constitutionality of state stat- utes. 20 But in State v. Douglas, 21 we recognized that the Attorney General has some duties which are not purely statu- tory and are sometimes referred to as the “common-law duties of the office.” There, we cited a treatise which articulates the common-law duties of the Attorney General, including that he or she must defend duly adopted statutory enactments that are not unconstitutional. 22 Because the Attorney General cannot defend the constitutionality of a statute if the Attorney General has not been notified of the challenge, strict compliance with § 2-109(E) is necessary to ensure that the appeal may be staffed and handled accordingly. 23 [5] Because notice is needed, strict compliance with § 2-109(E) is necessary whenever a litigant challenges the 17 See, Epp, supra note 14; Boche, supra note 14. 18 See Boche, supra note 14. 19 See id. See, generally, Neb. Const. art. V, § 2. 20 See, Neb. Rev. Stat. § 84-203 (Reissue 2014) (“authorized to . . . defend . . . any . . . matter . . . in which the state may be . . . interested”); Neb. Rev. Stat. § 84-205(10) (Reissue 2014). 21 State v. Douglas, 217 Neb. 199 , 349 N.W.2d 870 (1984). 22 See, id.; 7 Am. Jur. 2d Attorney General § 5 (2017) (citing Com. ex rel. Beshear v. Com. ex rel. Bevin, 498 S.W.3d 355 (Ky. 2016)). 23 See Boche, supra note 14.  - 405 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 constitutionality of a statute, regardless of how that consti- tutional challenge may be characterized. 24 It does not mat- ter if the litigant explicitly challenges a statute, as this court remains bound to the requirements of article V of the Nebraska Constitution. 25 Therefore, as long as this court must deter- mine the constitutionality of a statute in deciding an appeal, § 2-109(E) applies. 26 Here, Denton implicitly challenges the constitutionality of § 25-2705, which precludes a defendant from obtaining a jury trial for the criminal prosecution of an ordinance. 27 Denton argues that § 25-2705 cannot apply to him because his con- stitutional right to a jury trial was triggered by the additional penalties he will suffer from being convicted of violating the assault ordinance. 28 Even if we agree with Denton, we cannot provide him a jury trial without declaring § 25-2705 unconsti- tutional as applied in his case, because the statute leaves no discretion for a court to grant a jury trial for the criminal pros- ecution of a city ordinance violation. 29 Because Denton implicitly challenged the constitutionality of § 25-2705, he needed to comply with § 2-109(E). Denton did not provide a separate notice or a petition to bypass to the Supreme Court Clerk. 30 On appeal to this court, the State is represented by an assistant city attorney. Our record does not show that the Attorney General received a copy of Denton’s brief. 31 Consequently, Denton failed to provide notice to this court and the Attorney General. He did not strictly comply 24 See Smith v. Wedekind, 302 Neb. 387 , 923 N.W.2d 392 (2019). 25 See id. See, generally, Neb. Const. art. V, § 2. 26 See Wedekind, supra note 24. 27 See State v. Cozzens, 241 Neb. 565 , 490 N.W.2d 184 (1992). 28 See § 9.36.100(a). 29 See Cozzens, supra note 27. 30 See § 2-109(E). 31 See id. - 406 - Nebraska Supreme Court Advance Sheets 307 Nebraska Reports STATE v. DENTON Cite as 307 Neb. 400 with § 2-109(E), and therefore, we cannot consider Denton’s only assigned error. CONCLUSION Denton 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.