Oral Arguments are happening now.View them on the web or via Mobile App on iPhone / iPad or Android (4.0+).

You are here

Supreme Court Call - Case Summaries

Tuesday, September 2, 2014

S-13-0806, State v. Anoroy Loyuk (Appellant)

Lancaster County, Judge Paul D. Merritt, Jr.

Attorneys: Valerie McHargue (Public Defender’s Office for Appellant) --- Kimberly Klein (Attorney General’s Office)

Criminal: Sexual Abuse of an Inmate or Parolee, 1st degree

Proceedings below: Appellant was found guilty by a jury. He was sentenced to an 18 month probation sentence. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: I. The district court erred by failing to sustain the Motion to Quash the Information because the statute upon which the charge is based is overbroad, vague and generally violative of Appellant's rights to freedom of intimate association, due process, privacy and Equal Protection under the First, Fifth and Fourteenth Amendments; II. The district court erred by failing to instruct the jury on: (i) The proper elements of the charge, (ii) The definition of "person"; (iii) The definition of "subject"; and (iv) The lack of recording Appellant's statement pursuant to Ncb. Rev. Stat. § 29-4504 (Reissue 2008). III. The evidence was insufficient to support the verdict of guilty to the charge of Sexual Abuse of an Inmate or Parolee, 1st degree. 

S-13-0963, State of Nebraska ex rel. Counsel for Discipline of the Nebraska Supreme Court (Relator) v. James Connor (Respondent)

Original Action

Attorneys: Thomas J. Anderson and Tim J. Kielty (for Respondent) --- Kent Frobish (Assistant Counsel for Discipline)

Civil: Attorney Discipline

Proceedings below: After Formal charges were submitted, a hearing was held before the Referee. The Referee submitted a report finding that respondent had violated the Rules of Professional Conduct and his oath of office as an attorney. The referee recommended a 90 day license suspension. The respondent filed exceptions to the report.

Issues: The referee erred in (1) failing to find PTSD is a mitigating factor; (2) recommending a 90 day suspension. 

S-13-1014, Gaver v. Schneider’s O.K. Tire Company, Inc.

Platte County, Judge Robert R. Steinke

Attorneys: Ralph A. Froehlich (Locher, Pavelka, Dostal, Braddy & Hammes) (for Appellant); Stan A. Emerson (Sipple, Hansen, Emerson, Schumacher & Klutman)

Civil: Enforceability of noncompetition agreement

Proceedings Below: The district court entered a declaratory judgment finding that two noncompetition agreements between the parties were invalid and unenforceable.

Issues: The district court erred in concluding that the noncompetition agreement was unenforceable under Nebraska law.

S-13-0929, Federal National Mortgage Association v. Brian S. Marcuzzo and Dona M. Marcuzzo (appellants)

Sarpy County District Court, Honorable William B. Zastera

Attorneys: Douglas W. Ruge for appellants; Dustin J. Kessler (Fitzgerald Schorr) for appellee

Civil: Forcible entry and detainer/quiet title

Proceedings below: County court ordered appellants to deliver possession to appellee in a forcible entry and detainer action after appellee obtained title via a deed of trust foreclosure. District court affirmed on appeal.

Issues: The county court and the district court erred in 1) ruling that the county court had the power to continue the restitution action rather than dismissing it, and 2) ruling that the final order on restitution was proper and could have been entered by the county court as it had jurisdiction.

S-14-0020, State v. Jesus Castillo-Zamara (Appellant)

Hall County District Court, Judge James D. Livingston

Attorneys: George R. Love (Attorney General’s Office) --- Gerard A. Piccolo (Public Defender’s Office) (Appellant)

Criminal: First degree sexual assault, a Class II felony

Proceedings below: Appellant was convicted following a jury trial. 

Issues: 1) Appellant received ineffective assistance of counsel, 2) The district court erred in not granting the joint motion for mistrial, and 3) The district court erred in making certain evidentiary rulings.

S-11-0504, State v. Charles E. Kays (Appellant)

Douglas County, Judge Leigh Ann Retelsdorf

Attorneys: George R. Love (Attorney General’s Office) --- Frank E. Robak, Sr. (Appellant)

Criminal: Sexual assault of a child, 1st degree (one count); Sexual assault of a child, 3rd degree (2 counts)

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced 15 to 15 years on Count I with 20 months to 5 years for the 3rd degree assault convictions. The Court of Appeals affirmed. See State v. Kays, 21 Neb. App. 376 (2013) (Irwin, J., dissenting). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues on Review: 1. Appellant contends that his Constitutional due process rights and rights to trial by jury were violated by the Court reporter's actions, and lack of a credible bill of exceptions, other than the bill of exceptions and exhibits from the remand hearing which show the violations of Appellant's rights herein, and that the District Court on remand ruled in error in finding that the replaced bill of exceptions was credible, to serve as the bill of exceptions in this case. 2. The existing replaced bill of exceptions is not credible to defeat the showing that in the original bill of exceptions, the District Court in complete violation of the law and both State and U.S. Constitutional, failed to select and discharge an alternate juror prior to submission of the case to the jury for deliberation in accordance with Neb. Rev. Stat. Sec. 29-2004(2) and 29-2005, and the Nebraska and U.S. Constitutions, resulting in substantial prejudice and violation of Appellant's Constitutional and Statutory rights by presence of the alternate juror in the jury room throughout deliberation, verdict, and polling returning a guilty verdict on all three courts against the Appellant by a 13 member jury without Appellant's express consent or waiver of his Constitutional and

Statutory right to a 12 member jury mandates vacation of the verdict, barring retrial by Appellant's Constitutional right against double jeopardy. 3. The Appellant did not receive a fair and impartial trial by jury in that the evidence was insufficient, and his rights to due process were further violated by the prosecutor's highly prejudicial statements and conduct in the presence of the jury, which also included references to the Appellant's testimony as a "liar" or “lying", and the ineffective assistance of Appellant's trial counsel. 4. The sentence imposed by the Trial Court is excessive and an abuse of discretion. 5. The majority's conclusion herein by the Court of Appeals erroneously upheld "that the term "disability" as used in NE. Ct. R. App. P. 2-105(5) (rev. 2010) encompasses "situations where a judge has recused himself or herself due to a conflict of interest. Such an interpretation, as evidenced by the facts of the present case, defeats the very purpose of § 2-105(5) and seriously undermines the sanctity of judicial proceedings and public confidence and trust in such proceedings. Although the majority opinion references some actions of the court reporter that led to this appeal, the majority has understated the severity of the court reporter's misconduct." Irwin, Judge dissenting opinion. (Court of Appeals herein)

NE. Ct. R. App. P. 2-105(5)

Wednesday, September 3, 2014

S-13-0805, State v. Niccole A. Wetherell (Appellant)

Sarpy County, Judge William Zastera

Attorneys: Stacy M. Foust (Attorney General’s Office) --- Pro Se Appellant

Civil: Postconviction (Life sentence)

Proceedings below: The trial court denied Appellant postconviction relief without an evidentiary hearing.

Issues: The life sentence imposed on Ms. Wetherell by the District Court can be considered as cruel and unusual punishment due to the fact she was still a minor (according to Neb. Rev. Stat. § 43-2101) at the time this crime was committed. Therefore violating the Eighth Amendment to the United States Constitution. Also, Article 1, 59 of the Constitution of the State of Nebraska.

S-13-0826, Millennium Laboratories, Inc. and Amos Burdine and Jackson Benefield [appellants] v. Brian Ward

Sarpy County, Honorable William B. Zastera

Attorneys: James P. Fitzgerald (McGrath North) and Lance A. Etcheverry (Skadden, Arps, Slate, Meagher & Flom, LLP, of Los Angeles, CA) for appellants; Michael T. Hilgers and Carrie S. Dolton (Gober Hilgers LLC) and Heather A. Boice (Perkins Coie LLP of Chicago, IL) for appellee.

Civil: Action for tortious interference with business relationship, violation of Deceptive Trade Practices Act, violation of Consumer Protection Act, slander, and libel

Proceedings below: District court granted appellee’s motion to dismiss, finding the action was barred by res judicata

Issues: Did the district court 1) err in relying on documents not submitted into evidence and not judicially noticed, 2) improperly find the current action involves the same parties or their privies as a prior Florida action, 3) improperly find the Florida court was a court of competent jurisdiction over appellee, 4) err in finding an order denying leave to amend a counterclaim was a final judgment on the merits, or 5) err in finding a prior Florida action involved the same claims and causes of action?

 

 

S-13-0807, State v. Travis Larkin (Appellant)

Lancaster County, Judge Steven D. Burns

Attorneys: John Jorgensen (Public Defender’s Office for Appellant) --- Stacy M. Foust (Attorney General’s Office)

Criminal: 3rd degree sexual assault of a child

Proceedings below: A jury found Appellant guilty of 3rd degree assault of a child. He was sentenced 1-3 years in prison.  The State filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The district court erred in permitting the admission of prior sex acts under Neb. Rev. Stat.

§ 27 -414 (Cum. Supp. 2012). II. The district court erred in prohibiting the presentation of evidence by the defense concerning the prior sex acts introduced by the state. III. The district court erred in failing to properly instruct the jury with a limiting instruction concerning the admission of the prior sex acts evidence. IV. Appellant was denied his right to effective counsel under the Sixth Amendment to the United States Constitution and Article 1, sec. 11 of the Nebraska State Constitution. V. The remaining, properly admitted evidence adduced at trial was insufficient as a matter of law to prove beyond a reasonable doubt the charge contained in the Information to the effect that the Appellant committed the offense of Sexual Assault of a Child, 3'd degree. VI. The sentence imposed against Appellant was excessive and constituted an abuse of discretion on the part of the district court.

S-13-0995) State obo Connor H. v. Blake Goering v. Amanda Haufle (Appellant)
S-13-1000) In re Name Change of Haufle

(Consolidated Appeals)

Johnson County, Judge Daniel E. Bryan, Jr.

Attorneys: Marc Odgaard (Hanson, Hrock & Kuntz) for Appellant; Diane Merwin (Frankhauser, Nelsen, Wertz, Ziskey & Merwin) for the Appellee

Civil: Name Change of Minor Child

Proceedings below: Blake Goering filed a complaint to modify order requesting his son Connor’s last name be changed from Haufle to Goering. Amanda Goodrich (formerly Amanda Haufle) filed a petition for name change, requesting Connor’s last name be changed to Goodrich. The matters were joined for trial. After trial, the district court granted Goering’s complaint and dismissed Goodrich’s petition, finding it was in the child’s best interests to have his last name changed to Goering.

Issues: The trial court erred by giving a preference to the surname of the biological father. The trial court erred in applying an incorrect burden of proof.

 

S-13-0653, State v. Daphne Hansen (Appellant)

Antelope County, Judge James G. Kube

Attorneys: Matthew M. Munderloh (Johnson & Mock) (Appellant) --- J. Kirk Brown (Attorney General’s Office)

Criminal: Second-degree arson, conspiracy to commit arson, and aiding consummation of a felony

Proceedings below: After a trial to the court, the court found Appellant guilty of the above crimes. She was sentenced to concurrent terms of 24 to 30 months for arson and conspiracy and a consecutive 6-12 months for aiding consummation of arson. The Court of Appeals affirmed in part and in part reversed and vacated, and cause remanded with directions to dismiss. See memorandum opinion in A-13-0653. Appellee State filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues: 1. The Court of Appeals erroneously construed the crime of "aiding consummation of a felony", Neb. Rev. Stat. § 28-205(1). 2. The Court of Appeals erred in concluding the State presented insufficient evidence to support the conviction of aiding consummation of a felony.

3. No plain error having been found, the Court of Appeals erred by granting relief upon a theory never argued by the appellant, and a theory upon which the State was affirmatively denied any opportunity to respond.

 

S-13-0901, State v. Ricky Sanders (Appellant)

Douglas County, Judge Gregory M. Schatz

Attorneys: Pro Se Appellant --- George R. Love (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The trial court denied Appellant’s motion for postconviction relief. Appellant filed a Petition to Bypass the Court of Appeals which was granted by the Nebraska Supreme Court.

Issues: The lower court committed reversible error in (1) denying Appellant the right to the opportunity to be heard; (2) failing to grant Appellant an evidentiary hearing, for trial and appellate counsel’s failure to assign as error that his conviction was obtained due to an unconstitutional statute. (3) Plain error occurred when Appellant was overruled on his motion for appointment of new appellate counsel. (4) The lower court committed reversible error in failing to grant Appellant an evidentiary hearing, for trial and appellate counsel’s failure to assign as error that his effective assistance of counsel was violated when counsel failed to moved to suppress illegally obtained evidence.

 

Thursday, September 4, 2014

S-13-1029, State v. Kerstin M. Piper a/k/a Kerstin Clarkson (Appellant)

Scotts Bluff County, Judge Randall L. Lippstreu

Attorneys: Nathan A. Liss (Attorney General’s Office) – Bell Island (Island & Huff PCLLO) (Appellant)

Criminal: DUI, 2nd offense

Proceedings below: A jury found Appellant guilty of DUI, 2nd offense. She was sentenced to a term of probation.

Issues: The court erred in determining that the rules of evidence did not apply to a motion to suppress hearing. The court erred in failing to sustain Appellant’s motion to suppress the stop based on a constitutionally invalid checkpoint.

 

 

S-12-1052, State v. William W. Matthews (Appellant)

Hall County, Judge William T. Wright

Attorneys: Gerard A. Piccolo (Public Defender) --- Melissa R. Vincent (Attorney General’s Office)

Criminal: Attempted murder; terroristic threats; use of a weapon

Proceedings below: A jury found Appellant guilty of the above crimes. He was sentenced on Count 1: 3 to 5 years in prison; Count II and V (terroristic threats): 20 months to 5 years; Counts II, IV and VI (use of a weapon): 5 to 5 years. The court ordered (1) the sentences in Counts I, III and V to run concurrently and (2) the sentences in Counts II, IV and VI to run consecutively to the concurrent sentences and consecutively to one another. The court applied 562 days of credit to each of Appellant’s sentences. The Court of Appeals affirmed in part as modified, vacated in part, and in part reversed and remanded for new trial. See State v. Matthews, 21 Neb. App. 869 (2014). Appellee filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues: The Court of Appeals erred in reversing Matthews' convictions for attempted first degree murder and use of a deadly weapon to commit a felony based upon its conclusion that the district court improperly excluded evidence concerning the victim's character.

 

S-13-0495, State of Nebraska v. Christopher M. Payne (Appellant)

District Court for Sarpy County, Hon. William B. Zastera

Attorneys:  Michael J. Wilson (Schaefer Shapiro LLC);

Nathan A. Liss (Assistant Attorney General)

Civil:  Postconviction

Proceedings below:  District court denied motion for postconviction relief without an evidentiary hearing after determining that claims were procedurally barred because there was no direct appeal of the defendant’s conviction.

Issues: The court erred in denying Appellant an evidentiary hearing on his motion. Even if this Court finds Payne's allegations of ineffective assistance of counsel procedurally barred, the plain error doctrine requires reversal.

 

           

 

S-13-1024, Kappas Enterprises, a Nebraska Limited Liability Company (Appellant) v. State of Nebraska, Department of Roads

Buffalo County, Judge William T. Wright

Attorneys: Barry K. Waid, Martel J. Bundy (Attorney General’s Office) --- Jason M. Bruno, Ryan A. Kehm (Sherrets Bruno & Vogt LLC) (Appellant)

Civil: Easements; dismissal of appeal

Proceedings below: The district court entered an order denying Kappas Motion to Amend its Petition on Appeal. The Court of Appeals dismissed the appeal for lack of jurisdiction under Neb. Ct. R. App. P. 2-107(A)(2). Appellant filed a Petition for Further Review which was granted by the Nebraska Supreme Court.

Issues: The Court of Appeals erred in declining to immediately review the district court’s refusal to allow Kappas to amend its petition and conduct a trial on the complete defenses to the condemnation of Kappas’ property that were only recently discovered. 

S-13-0977, Michelle Navarrette (Appellant) v. William Navarrette

Douglas County, Judge Marlon A. Polk

Attorneys: Lawrence G. Whelan (for Appellant); James A. Adams (for Appellee/cross-appellant)

Civil: Divorce

Proceedings Below: The district court vacated a decree of dissolution under its equity jurisdiction due to a conflict as to whether the husband, William Navarrette, received notice of final hearing.

Issues: Did the district court err in vacating the decree of dissolution?

Cross-Appeal: The court erred in ordering temporary alimony via the order dated October 18, 2011.

 

 

S-13-275, David Leon Frederick v. Falls City Economic Development and Growth Enterprise, Inc. and City of Falls City

Richardson County, Hon. Daniel E. Bryan

Attorneys: Jerald Rauterkus & Bonnie Boryca (Erickson Sederstrom, for Appellant Falls City Economic Development and Growth Enterprise Inc. (EDGE)); Michael R. Dunn (Halbert, Dunn & Halbert, for Appellee/Cross-Appellant Falls City); Stephen D. Mossman, J.L. Spray & Joshua E. Dethlefsen (Mattson Ricketts, for Appellee David Leon Frederick)

Civil: public records

Proceedings Below: Frederick made a public records request for the records of Falls City Economic Development and Growth Enterprise (EDGE). EDGE denied the request. The district court, with the exception of a few records, found that EDGE's records were public. Frederick was also awarded attorney fees. EDGE appeals, and Frederick cross-appeals.

Issues: I. The District Court erred in holding that EDGE's records are public records and that

EDGE was required to comply with Neb. Rev. Stat. § 84-712 et seq. II. The District Court erred in holding EDGE jointly and severally liable for attorney's fees and costs incurred by the Relator pursuant to Neb. Rev. Stat. $ 84-712.07 and in determining a reasonable amount of fees to award was $17,109.59.

Cross-Appeal of City of Falls City: The District Court erred in finding there was a clear duty existing on the part of the City of Falls City to provide the records of Falls City Economic Development and Growth Enterprise, Inc. to Relator. II. The District Court erred in finding the City of Falls City, through a delegation of authority to perform a governmental function, contracted with a private party to carry out a governmental function. III.  The District Court erred in finding Falls City Economic Development and Growth Enterprise, Inc. prepared records under the City of Falls City's delegation of authority. IV. The District Court erred in finding the City of Falls City was entitled to possess the materials to monitor Falls City Economic Development and Growth Enterprise, Inc. performance. V. The District Court erred in finding the records of Falls City Economic Development and Growth Enterprise Inc. are used by the City of Falls City to make a decision affecting public interest. VI. The District Court erred in finding that the records of Falls City Economic Development and Growth Enterprise, Inc. were public records in its Order of October 18, 2012 before Falls City Economic Development and Growth Enterprise, Inc. was a party to this action. VII. The District Court erred in its Order of October 18,2012 in ruling that no further evidence would be allowed from the City of Falls City. VIII. The District Court erred in finding the City of Falls City, Nebraska was jointly and severally liable for attorney fees and costs of Relator in the amount of $17,109.59.

Cross-Appeal of Frederick: The district court erred by finding that EDGE did not waive its right to claim statutory privileges by failing to follow the procedures set forth in Neb. Rev. Stat. § 84-712.04.

Friday, September 5, 2014

S-14-0158, Randy Thompson, SusanStraka, f/n/a Susan Luebbe, Susan Dunavan v. Dave Heineman

Governor of Nebraska, Patrick W. Rice, Acting Director, Department of Environmental Quality, Don Stenberg, State Treasurer of Nebraska (Appellants)

Lancaster County, Judge Stephanie Stacy

Attorneys: David A. Domina, Brian E. Jorde, Megan N. Mikolajczyk (DominaLaw Group pcllo) --- Katherine J. Spohn, Ryan S. Post, Blake E. Johnson (Attorney General’s Office) (Appellants) --- James G. Powers, Patrick D. Pepper (McGrath North Mullin & Kratz PCLLO) and Richard Klinger, Kathleen Mueller Lauren C. Freeman (Sidley Austin LLP) (Amicus Curiae Transcanada Keystone Pipeline LP)

Civil: Declaratory Judgment; Determination of constitutionality of LB 1161 (2012)

Proceedings below: the district court determined Appellees had standing as taxpayers to challenge the provisions of LB 1161; Appellees’ claims were not moot. The district court determined that LB 1161 violated Neb. Const. art. IV, § 20 by divesting the Public Service commission of control over common carriers. It further determined LB 1161 does not delegate legislative authority over eminent domain, does not constitute special legislation and does not unlawfully pledge the State’s credit. The district court deferred making any decision on Appellees’ due process claim.

Issues: The district court erred in (1) determining Appellees had standing as taxpayers to bring their claims; (2) determining an environmental review of a proposed pipeline route conducted by Nebraska Department of Environmental Quality and subsequently approved by the Governor for oil pipelines that are not intrastate common carriers divests the Public Service Commission of authority in violation of Neb. Const. art. IV, § 20; (3) considering evidence, E32, not admitted to the record.

Cross-Appeal: Error 1. The district court erred when it failed to hold that LB 1161 is unconstitutional and void because it fails to provide for judicial review and violates due process. Error 2. The district court erred when it failed to hold that LB 116l is unconstitutional and void because it confers upon the Governor the authority to grant a private entity power to exercise eminent domain. Error 3. The district court erred when it failed to hold that LB 1161 is void because it lacks legal standards against which to test applications for authority to act as a common carrier and is arbitrary. Error 4. The district court erred when it failed to hold LB 1161 is unconstitutional because it involves an unlawful pledge of state credit for a private citizen.

S-13-0660, State v. Jennifer Herrera (Appellant)

Scotts Bluff District Court, Judge Leo Dobrovolny

Attorneys: George R. Love (Attorney General’s Office) --- Jeremy C. Jorgenson (Appellant)

Criminal: Child abuse

Proceedings below: Following a jury trial, Appellant was convicted.

Issues: The district court erred in 1) admitting testimony about psychological dwarfism because the State failed to establish reliable and relevant evidence under Daubert, and 2) failing to receive the capstone interviews of the Herrera children at trial.

 

 

S-13-0659, State v. Carlos R. Herrera (Appellant)

Scottsbluff County District Court, Judge Leo Dobrovolny

Attorneys: George R. Love (Attorney General’s Office) --- David S. MacDonald (Appellant)

Criminal: Child abuse, serious injury, Class II felony

Proceedings below: Following a jury trial, Appellant was convicted.

Issues: The district court erred in 1) overruling Appellant’s Daubert motion to exclude evidence and “expert” testimony on psychological dwarfism, 2) finding Neb. Rev. Stat. §27-404(2) did not apply and the State could utilize allegations of prior bad acts by Appellant from a jurisdiction and venue other than Nebraska, preceding the date of the offense, and beyond the statute of limitations, and 3) failing to receive the capstone interviews of the Herrera children at trial.

 

 

S-14-0030, In Re Guardianship of Benjamin Eley

Lancaster County Court, Judge Thomas W. Fox

Attorneys: Chris Blomenberg (McHenry, Haszard, Roth, Hupp, Burkholder & Blomenberg, P.C., L.L.O.) --- Steffanie Garner Kotik (Kotik & McClure Law)(Appellant)

Civil: Guardianship

Proceedings below: The trial court appointed a guardian for Benjamin.

Issues: 1) The trial court erred in finding that Kendra Augustine is an appropriate guardian for Benjamin over the priority of the Benjamin’s mother and 2) The attorney appointed to represent Benjamin acted improperly in his representation as outlined in the Nebraska Rules of Professional Conduct.

 

 

S-13-0899, State v. Luis Fernando-Granados (Appellant)

Douglas County, Judge Duane C. Dougherty

Attorneys: James J. Regan (Appellant) --- Stacy M. Foust (Attorney General’s Office)

Civil: Postconviction

Proceedings below: The district court denied Appellant’s motion for postconviction relief without an evidentiary hearing.

Issues: 1. The District Court erred in denying the Defendant's Motion for Postconviction Relief without an evidentiary hearing. 2. The District Court erred in determining that the Defendant's Verified Motion for Postconviction Relief failed to state facts which, if proven, would not constitute an infringement of his rights under the Nebraska or federal Constitution, 3. The District Court erred in finding that the allegations set forth in the Defendant's Verified Motion for Postconviction Relief failed to show any prejudice to the Defendant from his claim of ineffective assistance of counsel at trial.

S-13-1066) In re Interest of Nathaniel M.
S-13-1067)
S-13-1068)

(Consolidated appeals)

Madison County Court, Judge Ross Stoffer

Attorneys: Neleigh N. Boyer (Special Assistant Attorney General for Nebraska Department of Health and Human Services) (Appellant) --- Gail Collins (Deputy Madison County Attorney) --- Brad Ewalt (counsel for juvenile)

Civil: Change in disposition for adjudicated youth

Proceedings below: The court sustained the State’s motion for a higher level of care in 2 cases and entered a dispositional order in one case. The juvenile was committed to the Office of Juvenile Services for placement at YRTC-Kearney. The court denied the State’s motion for change in disposition.

Issues: The trial court erred in (1) committing the juvenile to YRTC because he was under 14 years of age at the time of commitment and as such is prohibited by Neb. Rev. Stat. § 43-251.01(4) (Supp. 2013); overruling the State’s motions to change disposition and rescind the orders committing the juvenile to YRTC and enter orders for placement in detention because the commitment of the juvenile to YRTC is prohibited by Neb. Rev. Stat. § 43-251.01(4) because he is under 14 years of age.