State ex rel. Unger v. State
293 Neb. 549
| Neb. | 2016Background
- Bryant L. Irish was convicted after a bench trial of DUI causing serious bodily injury; the court ordered a presentence report that included a victim questionnaire by Dillon Fales.
- Fales sued Stanton County in a separate tort action alleging injury from a police pursuit; his victim statement was used in Irish’s sentencing process.
- Stanton County (through Sheriff Michael Unger) sought the victim questionnaire from the presentence report via subpoena and later filed a petition for a public-records writ of mandamus in Lancaster County to obtain the presentence report or the portion containing Fales’ statements.
- The trial court issued an alternative writ and reviewed the questionnaire in camera, held it under seal, and dismissed Unger’s petition, finding presentence reports privileged and not public records.
- Unger appealed, arguing presentence reports are public records, that any privilege was waived, and that a peremptory writ should have been entered because respondents did not answer the alternative writ.
Issues
| Issue | Plaintiff's Argument (Unger) | Defendant's Argument (State/Respondents) | Held |
|---|---|---|---|
| Whether a presentence report is a "public record" under Neb. Rev. Stat. § 84-712 | Presentence report (or victim questionnaire within it) is a public record subject to disclosure; Unger sought it for use in civil litigation | § 29-2261(6) expressly privileges presentence reports; statute excludes them from public-records scheme | Presentence reports are privileged by § 29-2261(6) and are not public records; disclosure denied |
| Whether public disclosure in open court waived the privilege | Statements made at sentencing by counsel and the court rendered the report publicly disclosed | The sentencing remarks did not publicly disclose the presentence report itself; privilege remains | No public-court disclosure of the report occurred; privilege survives |
| Whether victim status or forgiveness by victim defeats the statutory privilege | Fales wasn’t a victim in the relevant sense because he minimized Irish’s culpability | Victim status was established by the criminal conviction; victim forgiveness does not remove victim status or statutory protection | Privilege attaches to the report regardless of the victim’s personal views |
| Whether respondents’ failure to answer the alternative writ required a peremptory writ/default judgment | Respondents defaulted by not filing an answer; Unger should have received a peremptory writ | Plaintiff waived default by proceeding to the merits; respondents nonetheless defended the petition at hearing | Unger waived default remedy by failing to timely seek a peremptory writ; no plain error in proceeding on merits |
Key Cases Cited
- Evertson v. City of Kimball, 278 Neb. 1 (defines mandamus as an extraordinary remedy and sets standards for bench-trial factual findings)
- State v. Albers, 276 Neb. 942 (explains § 29-2261(6) privilege for presentence reports)
- State v. Moyer, 271 Neb. 776 (discusses limited right of offender to review presentence reports)
- Mid America Agri Products v. Rowlands, 286 Neb. 305 (mandamus only lies to inferior tribunals; one judge cannot mandamus another)
- Blaser v. County of Madison, 285 Neb. 290 (defines plain-error standard)