Glantz v. Daniel
21 Neb. Ct. App. 89
Neb. Ct. App.2013Background
- Glantz filed a form petition for harassment protection against Daniel on June 18, 2012; ex parte order issued the same day.
- Daniel requested a hearing on June 27, 9 days after service; show cause hearing set for July 10.
- District court overruled Glantz’s objection to proceeding, allowed the hearing to proceed despite untimely hearing request, and heard testimony.
- Court recognized mootness but applied public-interest exception to address merits given statutory interpretation and public impact of harassment orders.
- Court held the 5-day hearing request deadline in § 28-311.09(7) is directory, not mandatory, and proceeded to evaluate whether sufficient evidence supported the order.
- District court ultimately dismissed the petition and ex parte order, concluding insufficient evidence and noting potential collateral consequences on parole were non-determinative to the result.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mootness public-interest exception | Glantz: moot; public interest justifies review. | Daniel: mootness governs; merits cannot be reached. | Public-interest exception applies; reach merits despite mootness. |
| Whether § 28-311.09(7) deadline is mandatory or directory | Glantz: deadline mandatory; hearing must be timely. | Daniel: deadline directory; delay does not invalidate process absent prejudice. | Deadline is directory; late hearing request did not prejudice Glantz; show-cause hearing proper. |
| Sufficiency of evidence for harassment order | Glantz: sequence of acts and texts show intimidation under statute. | Daniel: lack of direct, credible evidence tying acts to Daniel; some testimony contradicts. | Evidence insufficient to sustain a harassment order; district court did not err in dismissal. |
Key Cases Cited
- State v. Hense, 276 Neb. 313 (2008) (shall is mandatory but may be permissive in context)
- Hendrix v. Sivick, 19 Neb. App. 140 (2011) (shall may be construed permissively when appropriate)
- State v. $1,947, 255 Neb. 290 (1998) (time limitations may be directory where due process not affected)
- Forgey v. Neb. Dept. of Motor Vehicles, 15 Neb. App. 191 (2006) (time limitation directory when not central to objective)
- Thomsen v. Neb. Dept. of Motor Vehicles, 16 Neb. App. 44 (2007) (directory time limit in similar DMV context)
- In re Interest of Brandy M. et al., 250 Neb. 510 (1996) (juvenile/time requirements not always mandatory if best interests served)
- In re Interest of E.M., 13 Neb. App. 287 (2005) (mental health hearing time limits may be directory)
- State on behalf of Minter v. Jensen, 259 Neb. 275 (2000) (some deadlines are essential; others are not)
- Stoetzel v. Neth, 16 Neb. App. 348 (2008) (distinguishes mandatory vs. directory time limits in DMV context)