Smith v. Wedekind, 923 N.W.2d 392

Background

Scott William Smith (pro se) filed a declaratory-judgment complaint challenging three prior orders (name change for his children, a protection order, and a divorce decree) and sought injunctive relief and court-appointed counsel.
Smith applied for in forma pauperis (IFP) status and submitted an affidavit of indigency.
The district court, invoking Neb. Rev. Stat. § 25-2301.02, denied Smith’s IFP application sua sponte and without a hearing, concluding his claims were legally frivolous as an improper collateral attack on prior orders; the court issued written findings as required by the statute.
On appeal Smith argued the lack of a hearing deprived him of access to courts and due process under the Nebraska and U.S. Constitutions.
Smith did not cite § 25-2301.02 in his brief and did not file the separate written notice required by Neb. Ct. R. App. P. § 2-109(E) when a party challenges the constitutionality of a statute or raises an as-applied constitutional claim.
The Nebraska Supreme Court affirmed, holding Smith implicitly challenged the constitutionality of § 25-2301.02 but failed to comply with § 2-109(E), so the court would not consider the constitutional argument.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether denial of IFP without a hearing violated access to courts and due process	Smith: denial without a hearing deprived him of Article I, §13 access and due process	District court: denial was authorized by §25-2301.02 because claims were frivolous; court provided written findings	Court: Smith implicitly challenged constitutionality of §25-2301.02 but failed to comply with §2-109(E); therefore court would not address the constitutional claim and affirmed denial
Whether a litigant must file §2-109(E) notice when implicitly challenging a statute authorizing the challenged act	Smith: did not file notice; argued constitutional violation nonetheless	State/Supreme Court: §2-109(E) notice is required for any challenge (facial or as-applied) to a statute authorizing the act	Court: strict compliance with §2-109(E) is required; notice was necessary and failure to file precludes consideration of the constitutional issue
Whether an implicit as-applied challenge to a statute triggers article V, §2 full-court review	Smith: characterized challenge as to court procedure, not statute	Supreme Court: a declaration that the act is unconstitutional would invalidate the statute authorizing it	Court: an appeal challenging an act explicitly permitted by statute is a case involving constitutionality of a legislative act and requires §2-109(E) notice and full-court consideration
Whether the court erred in finding Smith’s complaint frivolous	Smith: did not adequately argue this ground on appeal	District court: found complaint was an impermissible collateral attack and frivolous	Court: Smith did not assign or argue error on frivolousness finding; affirmed district court on that basis

Key Cases Cited

State v. Boche, 294 Neb. 912 (clarifies strict compliance with §2-109(E) is required for any facial or as-applied challenge to a statute)
Mumin v. Frakes, 298 Neb. 381 (recognizes interlocutory appellate review for IFP denials and related procedure)
Glass v. Kenney, 268 Neb. 704 (related precedent on appellate procedure and constitutional claims)
Ptak v. Swanson, 271 Neb. 57 (discusses notice requirements when constitutional issues are raised)
State v. Johnson, 269 Neb. 507 (addresses clerk notice and full-court processing of constitutional cases)
Holdrege Co-op Assn. v. Wilson, 236 Neb. 541 (authority on appellate consideration where statutory compliance affects review)
State v. Filholm, 287 Neb. 763 (procedural precedent cited regarding appellate assignments and arguments)