In re Interest of D.H. ( 2023 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/09/2023 08:07 AM CST
- 458 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458In re Interest of D.H., alleged to be a
mentally ill and dangerous person.
D.H., appellee, v. Mental Health Board of
the 10th Judicial District, appellant.
___ N.W.2d ___
Filed November 9, 2023. No. S-23-032.
1. Courts: Appeal and Error. A district court by definition abuses its dis-
cretion when it makes an error of law.
2. Judgments: Appeal and Error. An appellate court independently
reviews questions of law decided by a lower court.
3. Courts: Judgments: Time. No court is required to persist in error, and
if the court concludes that a former ruling was wrong, the court may
correct it at any time while the case is still in the court’s control.
Appeal from the District Court for Adams County: Morgan
R. Farquhar, Judge. Affirmed.
David A. Bergin, Deputy Adams County Attorney, for
appellant.
D.H., pro se.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
Papik, and Freudenberg, JJ.
Papik, J.
In 1995, after D.H. attempted suicide, a mental health board
initiated and obtained a mental health commitment. As a result
of that commitment, federal and state law restricted D.H.’s
rights to purchase and possess firearms. Decades later, D.H.,
pursuant to Nebraska statute, asked the mental health board to
- 459 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458remove those firearm restrictions. After a hearing, the board
denied D.H.’s petition, and D.H. sought review in the district
court. The district court initially affirmed the board’s deci-
sion, but later sustained D.H.’s motion to reconsider, alter, or
amend its earlier order and ordered reinstatement of D.H.’s
firearm rights. The board appeals, arguing only that the district
court must have misapplied the standard of review in grant-
ing D.H.’s motion to reconsider, alter, or amend. We disagree
and affirm.
BACKGROUND
Mental Health Commitment.
In 1995, after sustaining a work-related head injury and
experiencing difficulties in his marriage, D.H. attempted sui-
cide by overdosing on prescription medications. He was 21
years old at the time.
After the suicide attempt, D.H. was admitted to the Hastings
Regional Center under a commitment by the Mental Health
Board of the 10th Judicial District of Nebraska (the board).
Upon admission, D.H. stated that he had “done a foolish
thing.” He was diagnosed with an adjustment disorder, and he
received no additional medications. D.H. was assigned treat-
ment plans to work on his ability “to think and problem-solve”
and to deal with his anger. After about 30 days, D.H. was dis-
charged, having been deemed “capable of functioning in the
community with continue[d] outpatient treatment.”
In 2022, upon the State’s motion asserting that D.H. had
successfully completed the ordered treatment, the board dis-
missed D.H.’s commitment.
Petition to Remove Firearm-Related Disabilities.
As a result of D.H.’s mental health commitment, federal
and state statutes restricted his rights to purchase and possess
firearms. See, e.g., 18 U.S.C. § 922(g) (2018); Neb. Rev. Stat.
§ 69-2404 (Reissue 2018). In 2011, however, the Nebraska
Legislature enacted a statute that created a procedure whereby
those subject to firearm restrictions as a result of a mental
- 460 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458health-related commitment or adjudication can petition to have
those restrictions removed. See Neb. Rev. Stat. § 71-963(Reissue 2018). D.H. filed such a petition after his commitment
was dismissed.
Section 71-963 entitles a petitioner to a hearing before the
mental health board that initiated the commitment and requires
the petitioner to prove by clear and convincing evidence that
(1) he or she will not be likely to act in a manner dangerous to
public safety, and (2) removing the firearm restrictions would
not be contrary to the public interest. See § 71-963(2)(a)(i). If
a petition filed under § 71-963 is granted, the commitment or
adjudication “shall be deemed not to have occurred” for certain
statutes that would otherwise restrict the petitioner’s firearm
rights. See § 71-963(5).
Evidence Presented to the Board;
the Board Denies Petition.
The board conducted a hearing on D.H.’s petition. The board
took judicial notice of certain mental health records in its file
pertaining to D.H.’s commitment.
D.H. testified. Consistent with the records generated in 1995,
he explained the circumstances of his commitment. Other than
the suicide attempt in 1995, D.H. denied ever contemplating
suicide, trying to harm himself, or abusing substances. He
denied any additional mental health diagnoses.
D.H. testified that his only criminal history was a 2004 con-
viction for criminal mischief, less than $200, for which he was
sentenced to pay a $50 fine. D.H. recounted that he was cited
for the offense because he punched a sign. The board received
a record of the criminal mischief conviction and a fingerprint
check by the Nebraska State Patrol showing no other crimi-
nal history.
At the time of the hearing, D.H. had been married for 14
years and was employed by two ride-hailing services. D.H. tes-
tified that he wanted a firearm to protect his family, especially
when traveling to visit his children in other states.
- 461 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458The board also received letters attesting to D.H.’s character.
In the letters, relatives, coworkers, and a former employer gen-
erally described D.H. as stable, responsible, hard-working, and
adept at communicating with a variety of people.
The board denied D.H.’s request for removal of firearm
disabilities. It found that D.H. had “failed to meet the neces-
sary requirements as enumerated under Nebraska Statute.”
(Emphasis omitted.)
Appeal to District Court.
D.H. appealed the board’s decision to the district court
pursuant to § 71-963(4). As it did at that time, § 71-963(4)
provides, “The petitioner may appeal a denial of the requested
relief to the district court, and review on appeal shall be de
novo.” The district court’s record on appeal consisted solely
of the filings and proceedings before the board, which were
filed contemporaneously in the district court. See Neb. Rev.
Stat. § 71-917 (Reissue 2018). The district court did not hear
or receive any new evidence. Neither party challenges this pro-
cedure in this appeal.
The district court initially entered an order affirming the
board’s denial of D.H.’s petition. The order identified the stan-
dard of review as “de novo” and then stated that “no evidence
of abuse of discretion is evident in the record by the [board].”
The district court further stated that the board “acts as the trier
of fact and this Court gives significant deference to the factual
determination of the [board].” The district court concluded that
“a de novo review of the record shows no abuse of discretion,
and it [cannot] be shown that the [board] failed to accurately
weigh the changed circumstances under the statutory scheme
with the evidence that was provided.”
D.H. filed a motion to reconsider, alter, or amend. In the
motion, he alleged that the district court misapplied the de
novo standard of review set forth in § 71-963. Citing Meier v.
State, 227 Neb. 376, 417 N.W.2d 771 (1988), a case brought
under the Administrative Procedure Act, D.H. asserted that a
- 462 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458de novo standard of review requires the court to make inde-
pendent findings of fact without reference to those made by
the tribunal from which appeal is taken. According to D.H.,
the district court erred when it gave “significant deference” to
the board’s factual determinations and when it found “no abuse
of discretion” by the board. D.H. further asserted that he had
provided ample evidence to support every requirement set forth
in § 71-963.
The district court entered a subsequent order sustaining
D.H.’s motion to reconsider, alter, or amend and reversing the
board’s decision. In that subsequent order, the district court
stated that it had considered all the information presented and
found that D.H. had shown by clear and convincing evidence
that he was not likely to act in a manner dangerous to the
community and that granting the relief requested would not
be contrary to the public interest. The district court therefore
ordered that D.H.’s petition be granted and that his firearm
rights be reinstated. From that order, the board appeals.
ASSIGNMENT OF ERROR
The board assigns that the district court erred in sustain-
ing D.H.’s motion to reconsider, alter, or amend the previ-
ous order.
STANDARD OF REVIEW
[1,2] We have not previously identified the standard of
review that applies when an appellate court is asked to review
a district court’s decision made under § 71-963. And we need
not recognize a complete standard of review for all facets
of such appeals today. The board contends that the district
court erred by sustaining D.H.’s motion to reconsider, alter,
or amend its previous order. More specifically, the board
appears to argue that the district court committed an error of
law by misapplying the governing standard of review in sus-
taining D.H.’s motion. We review rulings on a motion to alter
or amend for an abuse of discretion. See BCL Properties v.
Boyle, 314 Neb. 607, 992 N.W.2d 440 (2023). We have also
- 463 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458recognized that a district court “by definition abuses its discre-
tion when it makes an error of law.” Stone Land & Livestock
Co. v. HBE, 309 Neb. 970, 973, 962 N.W.2d 903, 907 (2021),
quoting Koon v. United States, 518 U.S. 81, 116 S. Ct. 2035,
135 L. Ed. 2d 392 (1996) (internal quotation marks omitted).
An appellate court independently reviews questions of law
decided by a lower court. Bruce Lavalleur, P.C. v. Guarantee
Group, 314 Neb. 698, 992 N.W.2d 736 (2023).
ANALYSIS
The board’s sole argument in this appeal is that the district
court necessarily misapplied the “de novo” standard of review
imposed by § 71-963(4). The board contends that, under our
decision in Meier, supra, the district court, in conducting a
de novo review, was not to ignore the findings made by the
board or the fact that the board saw and heard the witnesses
who appeared before it. But, according to the board, the dis-
trict court must have ignored the board’s findings and the fact
that it saw and heard the witnesses when the court ultimately
found D.H. was entitled to relief. As the board sees it, that is
the only possible explanation for the district court’s reversal of
course after its initial decision. We disagree.
The board is correct that Meier v. State, 227 Neb. 376, 382-
83, 417 N.W.2d 771, 776-77 (1988), stated that in conducting a
de novo review of an agency decision, a court is not to “ignore
the findings made by [the agency] and the fact that it saw and
heard [the] witnesses who appeared before it.” Contrary to
the board’s argument, however, we see no basis to conclude
that the district court disregarded this aspect of its de novo
standard of review. The district court’s ultimate order did not
state it was ignoring any findings made by the board or the fact
that the board heard and saw the witnesses. And, as we will
explain, we can identify other plausible explanations for the
district court’s decision to amend its initial order.
First, the district court may have determined that it had
applied the wrong standard of review in its initial order. The
- 464 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458initial order referred on multiple occasions to the absence
of an “abuse of discretion” by the board. Section 71-963(4),
however, does not mention abuse of discretion as the govern-
ing standard of review and instead provides that the district
court’s “review on appeal shall be de novo.”
Relatedly, it also strikes us as possible that the district court
determined that it had given unwarranted deference to the
board in its initial order. The district court’s initial order stated
that it had given “significant deference to the factual deter-
mination of the [board]” (emphasis supplied). In a de novo
review, a court is not to ignore the findings of fact made by the
inferior tribunal and the fact that the inferior tribunal saw and
heard the witnesses who appeared at its hearing. See In re App.
No. P-12.32 of Black Hills Nebraska Gas, 311 Neb. 813, 976
N.W.2d 152 (2022). But neither does a de novo review require
the reviewing court to defer to the lower tribunal’s findings.
As we have often said, in a de novo standard of review, where
the evidence is in conflict, an appellate court will consider
and may give weight to the fact that the inferior tribunal
observed the witnesses and accepted one version of the facts
rather than another. Id. See, also, In re Margaret L. Matthews
Revocable Trust, 312 Neb. 381, 979 N.W.2d 259 (2022);
Schmid v. Simmons, 311 Neb. 48, 970 N.W.2d 735 (2022); In
re Application No. OP-0003, 303 Neb. 872, 932 N.W.2d 653(2019); Denali Real Estate v. Denali Custom Builders, 302
Neb. 984, 926 N.W.2d 610 (2019). Here, the district court may
have determined that, under the circumstances, significant def-
erence was not justified.
[3] Finally, we cannot dismiss the possibility that the
district court simply reappraised the evidence upon receiv-
ing D.H.’s motion to reconsider, alter, or amend and, after
a second look, reached a different conclusion. As we have
observed, no court is required to persist in error, and if the
court concludes that a former ruling was wrong, the court
may correct it at any time while the case is still in the court’s
control. Pinnacle Enters. v. City of Papillion, 302 Neb. 297,
- 465 -
Nebraska Supreme Court Advance Sheets
315 Nebraska Reports
IN RE INTEREST OF D.H.
Cite as 315 Neb. 458923 N.W.2d 372 (2019). D.H.’s motion to reconsider, alter, or
amend afforded the district court an opportunity to reconsider
its earlier ruling, and it was entitled to conclude that its initial
order was simply incorrect.
In sum, we see no basis to conclude that the district court
committed the error of law the board claims or otherwise
abused its discretion in sustaining D.H.’s motion to reconsider,
alter, or amend. And because the board makes no argument
that the evidence was insufficient to support the district court’s
decision, we do not consider that issue.
CONCLUSION
The board has not demonstrated any error on the part of the
district court. We therefore affirm.
Affirmed.