State v. Luis D. (In re Interest of Luis D.)

29 Neb.App. 495

956 N.W.2d 25

IN RE Interest of LUIS D., a child under 18 years of age.

State of Nebraska, appellant,

v.Luis D., appellee.

No. A-20-727.

Court of Appeals of Nebraska.

Filed February 9, 2021.

Andrew T. Erickson, Deputy Sarpy County Attorney, for appellant.

Colleen Dostal, Deputy Sarpy County Public Defender, for appellee.

Moore, Bishop, and Welch, Judges.

Bishop, Judge.

I. INTRODUCTION

A petition was filed in the separate juvenile court of Sarpy County against the appellee, Luis D., alleging three Class I misdemeanor offenses. At the time of the incidents which led to the charges, Luis was 17 years old and approximately a month away from turning 18. The State filed a motion to transfer the proceedings from the juvenile court to the county or district court. The juvenile court denied the transfer based on its interpretation of Neb. Rev. Stat. § 43-246.01(2) (Reissue 2016), concluding that only the juvenile court had jurisdiction over a juvenile who was age 16 or 17 at the time of an alleged misdemeanor offense. The State appeals. We reverse, and remand for further proceedings.

II. BACKGROUND

A "Juvenile Petition" was filed in the juvenile court on August 27, 2020, alleging that on August 11, Luis committed three Class I misdemeanor offenses: third degree domestic assault, obstructing a peace officer, and resisting arrest. On September 2, the State filed a motion to transfer jurisdiction to the county court or district court, alleging that the factors outlined in Neb. Rev. Stat. § 43-276(1) (Supp. 2019) weighed in favor of transferring the case from the juvenile court.

On September 10, 2020, a hearing took place on the motion to transfer. At the outset of the hearing, the juvenile court indicated that it had talked with counsel "as to the issue of whether or not this [c]ourt has exclusive original jurisdiction, meaning this case cannot be transferred to adult court[,]" and that it would not decide the matter that day so that the attorneys could "submit something in writing." The court then proceeded with the receipt of evidence. Exhibit 1 (police reports) and exhibit 2 ("JUSTICE printout" reflecting criminal history) were received without objection. A witness from the Sarpy County juvenile probation office testified.

A further hearing took place on October 5, 2020, at which time the juvenile court received exhibit 3 (State's written argument) and exhibit 4 (Luis’ counsel's written argument) related to the juvenile court's concern about authority to transfer under § 43-246.01. The juvenile court entered an order that same day concluding that § 43-246.01 gave it "exclusive original jurisdiction as to any juvenile who was 16 or 17 years of age at the time of the alleged offense pursuant to Sec. 43-246.01(2) and, by virtue of such, the Motion to Transfer is denied." The State timely filed an appeal the next day.

III. ASSIGNMENT OF ERROR

The State failed to include a separate assignments of error section in its brief, but a heading in the argument section of its brief contends, restated, that the juvenile court erred in denying its motion to transfer based upon the court's interpretation of § 43-246.01(2).

In order 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.

U.S. Pipeline v. Northern Natural Gas Co. , 303 Neb. 444, 930 N.W.2d 460 (2019). See, also, Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev. 2014) (requirements for assignments of error section in brief of appellant; consideration of case is limited to errors assigned and discussed). Headings in the argument section of a brief do not satisfy the requirements of § 2-109(D)(1). D.W. v. A.G. , 303 Neb. 42, 926 N.W.2d 651 (2019). When a party's brief fails to comply with § 2-109(D)(1), we may proceed as though the party failed to file a brief or, alternatively, examine the proceedings for plain error. D.W. v. A.G., supra . Plain error is error plainly evident from the record and of such a nature that to leave it uncorrected would result in damage to the integrity, reputation, or fairness of the judicial process. Id.

However, because this case involves a matter of statutory interpretation, we will independently review the juvenile court's interpretation of § 43-246.01.

IV. STANDARD OF REVIEW

Statutory interpretation is a question of law, which an appellate court resolves independently of the trial court. In re Interest of Seth C. , 307 Neb. 862, 951 N.W.2d 135 (2020).

V. ANALYSIS

At issue in this case is whether § 43-246.01(2) and its use of the language "[e]xclusive original jurisdiction" can be reconciled with Neb. Rev. Stat. § 43-274(5) (Supp. 2019) and its use of the language "concurrent jurisdiction." Section 43-246.01(2) grants the juvenile court "[e]xclusive original jurisdiction" over any juvenile who was 16 or 17 years of age at the time he or she committed an offense, other than a traffic offense, which would constitute a misdemeanor or an infraction. However, it also provides that proceedings initiated under "this subdivision (2) may be transferred as provided in section 43-274." Section 43-274(5) indicates that "[w]hen a transfer from juvenile court to county court or district court is authorized because there is concurrent jurisdiction , the county attorney or city attorney may move to transfer the proceedings." (Emphasis supplied.) It appears the juvenile court must have concluded that since a transfer under its exclusive original jurisdiction pursuant to § 43-246.01(2) was subject to the provisions of § 43-274, and § 43-274(5) authorized transfers only when there is concurrent jurisdiction with a county or district court, then a transfer was not permitted in this instance.

While we understand the potential for confusion created by the statutory language noted above, we conclude that the plain language of the statutes and Nebraska Supreme Court precedent compel a different interpretation than the one reached by the juvenile court. As we explain in more detail later, the use of the language "[e]xclusive original jurisdiction" in § 43-246.01(1) and (2) means that certain matters must be commenced in the juvenile court if they fall into any of the categories covered in those subsections. In other words, there is no discretion by a county attorney or city attorney to file such matters initially in the county or district court; they must be filed in the juvenile court. On the other hand, § 43-246.01(3) provides for "[c]oncurrent original jurisdiction" over the categories covered in that subsection, meaning there is discretion on whether to initially file such cases in the juvenile court, county court, or district court.

The concurrent jurisdiction language used in § 43-274(5) means only that the transfer must involve matters over which the county court or district court would otherwise have subject matter jurisdiction. Subject matter jurisdiction is the power of a tribunal to hear and determine a case in the general class or category to which the proceedings in question belong and to deal with the general subject matter involved. In re Estate of Adelung , 306 Neb. 646, 947 N.W.2d 269 (2020). While county courts have been given jurisdiction of criminal matters classified as misdemeanors or infractions via Neb. Rev. Stat. § 24-517 (Cum. Supp. 2018), that statute does not provide for county court jurisdiction over felonies; other statutes, however, do authorize county court judges to play a role in felony matters. See State v. A.D. , 305 Neb. 154, 939 N.W.2d 484 (2020). As for district courts, the Nebraska Constitution provides such courts with both chancery and common-law jurisdiction, and such other jurisdiction as the Legislature may provide; Neb. Rev. Stat. § 24-302 (Reissue 2016) provides that district courts shall have and exercise general, original, and appellate jurisdiction in all matters, both civil and criminal, except where otherwise provided. See Webb v. Nebraska Dept. of Health & Human Servs. , 301 Neb. 810, 920 N.W.2d 268 (2018).

Therefore, although the case before us had to originate under the juvenile court's exclusive original jurisdiction as required by § 43-246.01(2), the Legislature also specifically granted to the juvenile court the ability to transfer such cases to the county or district court so long as those courts otherwise have subject matter jurisdiction. As we explain next, certain juvenile criminal matters are statutorily reserved for the juvenile court's exclusive jurisdiction from beginning to end; however, depending on the juvenile's age and the nature of the offense, such matters may be transferred to the county or district court.

1. STATUTORY LANGUAGE

The full text of § 43-246.01 is set forth below, and beginning with subsection (2), we have provided bracketed abbreviated explanations of references made to certain other statutory provisions. Section 43-246.01 states:

The juvenile court shall have:

(1) Exclusive original jurisdiction as to:

(a) Any juvenile described in subdivision (3) or (11) of section 43-247;

(b) Any juvenile who was under sixteen years of age at the time the alleged offense was committed and the offense falls under subdivision (1) of section 43-247;

(c) A party or proceeding described in subdivision (5) or (7) of section 43-247; and

(d) Any juvenile who was under fourteen years of age at the time the alleged offense was committed and the offense falls under subdivision (2) of section 43-247; (2) Exclusive original jurisdiction as to:

(a) Beginning January 1, 2015, any juvenile who is alleged to have committed an offense under subdivision (1) of section 43-247 [act other than traffic offense which would constitute a misdemeanor or an infraction] and who was sixteen years of age at the time the alleged offense was committed, and beginning January 1, 2017, any juvenile who is alleged to have committed an offense under subdivision (1) of section 43-247 and who was sixteen years of age or seventeen years

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