Smith v. Wedekind, 302 Neb. 387

Background

Scott William Smith (pro se) filed a declaratory-judgment complaint challenging three prior orders (children’s name change, protection order, and divorce decree) and sought injunction, counsel, and declarations of unconstitutionality.
Smith applied to proceed in forma pauperis and submitted an affidavit of indigence.
The district court, invoking Neb. Rev. Stat. § 25-2301.02, denied Smith’s IFP application sua sponte and without an evidentiary hearing, concluding his claims were legally frivolous (collateral attack).
The court included a written statement of reasons for denial, as § 25-2301.02 requires when no hearing is held.
On appeal Smith argued the lack of a hearing violated his state and federal due process and open-courts rights; he did not cite § 25-2301.02 in his brief and did not file the separate constitutional-notice required by Neb. Ct. R. App. P. § 2-109(E).
The Nebraska Supreme Court affirmed, holding Smith implicitly challenged the constitutionality of § 25-2301.02 but failed to provide the § 2-109(E) notice, so the court would not consider the constitutional argument.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denying IFP without a hearing violated due process and open-courts	Smith: denial without hearing deprived him of constitutional rights	Court/State: denial was authorized by § 25-2301.02 when court finds claims frivolous and no hearing is required; court supplied written reasons	The court treated Smith’s argument as an implicit challenge to § 25-2301.02; because Smith failed to file the § 2-109(E) notice, the court would not reach the constitutional issue and affirmed the denial
Whether a litigant must file § 2-109(E) notice when appeal implicitly challenges a statute authorizing the contested act	Smith: did not file notice; argued constitutionality of court’s action	Court: § 2-109(E) notice required whenever constitutionality of a statute is presented, including implicit/as-applied challenges	Court held § 2-109(E) strict compliance is required; notice was required and failure to give it precludes consideration of the constitutional claim
Whether an implicit challenge to a statute that authorizes an act triggers full-court review under Neb. Const. art. V, § 2	Smith: characterized claim as challenge to court procedure, not statute	Court/State: if the statute explicitly authorizes the act, a ruling on the act’s constitutionality necessarily implicates the statute	Court held such implicit challenges are cases "involving the constitutionality of an act of the Legislature" and must be noticed under § 2-109(E) so the full court can hear them
Whether the district court abused discretion in finding Smith’s claims frivolous (and therefore denying IFP)	Smith: contended denial without hearing was improper procedure	Court/State: district court found claims were impermissible collateral attacks and frivolous; provided written findings as required	Smith did not challenge the frivolousness finding on appeal; court declined to address it and affirmed the denial

Key Cases Cited

State v. Boche, 294 Neb. 912, 885 N.W.2d 523 (Neb. 2016) (§ 2-109(E) covers facial and as-applied challenges and requires strict compliance)
Mumin v. Frakes, 298 Neb. 381, 904 N.W.2d 667 (Neb. 2017) (interlocutory appellate review of IFP determinations)
Glass v. Kenney, 268 Neb. 704, 687 N.W.2d 907 (Neb. 2004) (procedural requirements for appellate notice in constitutional cases)
Ptak v. Swanson, 271 Neb. 57, 709 N.W.2d 337 (Neb. 2006) (role of clerk notice when constitutional issue is raised)
State v. Johnson, 269 Neb. 507, 695 N.W.2d 165 (Neb. 2005) (notice and processing of constitutional appeals)
Holdrege Co-op Assn. v. Wilson, 236 Neb. 541, 463 N.W.2d 312 (Neb. 1990) (rule on appellate consideration when procedural statutory requirements are not met)
State v. Filholm, 287 Neb. 763, 848 N.W.2d 571 (Neb. 2014) (standards for appellate assignment and argument)