In re Interest of Luis D. , 29 Neb. Ct. App. 495 ( 2021 )

Nebraska Supreme Court Online Library
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495In re Interest of Luis D., a child
under 18 years of age.
State of Nebraska, appellant,
v. Luis D., appellee.
___ N.W.2d ___
Filed February 9, 2021. No. A-20-727.
1. Statutes: Appeal and Error. Statutory interpretation is a question of
law, which an appellate court resolves independently of the trial court.
2. Criminal Law: Courts: Juvenile Courts: Jurisdiction. A juvenile fit-
ting into the categories described in Neb. Rev. Stat. § 43-246.01(1) and
(2) (Reissue 2016) must always be commenced in the juvenile court;
however, proceedings initiated under § 43-246.01(2) are subject to
transfer to the county or district court for further proceedings under the
criminal code.
3. Juvenile Courts: Jurisdiction. Proceedings fitting under Neb. Rev.
Stat. § 43-246.01(1) (Reissue 2016) must always be filed via a juvenile
petition and must always proceed to completion in the juvenile court.
4. Courts: Juvenile Courts: Jurisdiction. Actions involving juveniles fit-
ting into categories under Neb. Rev. Stat. § 43-246.01(3) (Reissue 2016)
may be initiated either in the juvenile court or in the county or district
court and may be transferred as provided in Neb. Rev. Stat. § 43-274(Supp. 2019).
5. Statutes. A court must attempt to give effect to all parts of a statute,
and if it can be avoided, no word, clause, or sentence will be rejected
as superfluous or meaningless; it is not within the province of a court to
read anything plain, direct, and unambiguous out of a statute.
6. Criminal Law: Prosecuting Attorneys: Courts: Juvenile Courts:
Jurisdiction: Legislature. A city or county attorney has authority to
seek a transfer to the criminal court when both the juvenile court and
the criminal court have statutory jurisdiction; the county court and dis-
trict court have statutory jurisdiction over criminal matters, except in
those instances where the Legislature has preserved such matters to the
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495exclusive jurisdiction of the juvenile court, such as in Neb. Rev. Stat.
§ 43-246.01(1) (Reissue 2016).
7. Statutes: Judicial Construction: Legislature: Intent: Presumptions.
Where a statute has been judicially construed and that construction has
not evoked an amendment, it will be presumed that the Legislature has
acquiesced in the court’s determination of the Legislature’s intent.
Appeal from the Separate Juvenile Court of Sarpy County:
Lawrence D. Gendler, Judge. Reversed and remanded for
further proceedings.
Andrew T. Erickson, Deputy Sarpy County Attorney, for
appellant.
Colleen Dostal, Deputy Sarpy County Public Defender, for
appellee.
Moore, Bishop, and Welch, Judges.
Bishop, Judge.
I. INTRODUCTION
A petition was filed in the separate juvenile court of Sarpy
County against the appellee, Luis D., alleging three Class I
misdemeanor offenses. At the time of the incidents which
led to the charges, Luis was 17 years old and approximately
a month away from turning 18. The State filed a motion to
transfer the proceedings from the juvenile court to the county
or district court. The juvenile court denied the transfer based
on its interpretation of Neb. Rev. Stat. § 43-246.01(2) (Reissue
2016), concluding that only the juvenile court had jurisdic-
tion over a juvenile who was age 16 or 17 at the time of an
alleged misdemeanor offense. The State appeals. We reverse,
and remand for further proceedings.
II. BACKGROUND
A “Juvenile Petition” was filed in the juvenile court on
August 27, 2020, alleging that on August 11, Luis commit-
ted three Class I misdemeanor offenses: third degree domestic
assault, obstructing a peace officer, and resisting arrest. On
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495September 2, the State filed a motion to transfer jurisdiction
to the county court or district court, alleging that the factors
outlined in Neb. Rev. Stat. § 43-276(1) (Supp. 2019) weighed
in favor of transferring the case from the juvenile court.
On September 10, 2020, a hearing took place on the motion
to transfer. At the outset of the hearing, the juvenile court indi-
cated that it had talked with counsel “as to the issue of whether
or not this [c]ourt has exclusive original jurisdiction, meaning
this case cannot be transferred to adult court[,]” and that it
would not decide the matter that day so that the attorneys could
“submit something in writing.” The court then proceeded with
the receipt of evidence. Exhibit 1 (police reports) and exhibit 2
(“JUSTICE printout” reflecting criminal history) were received
without objection. A witness from the Sarpy County juvenile
probation office testified.
A further hearing took place on October 5, 2020, at which
time the juvenile court received exhibit 3 (State’s written argu-
ment) and exhibit 4 (Luis’ counsel’s written argument) related
to the juvenile court’s concern about authority to transfer under
§ 43-246.01. The juvenile court entered an order that same day
concluding that § 43-246.01 gave it “exclusive original juris-
diction as to any juvenile who was 16 or 17 years of age at the
time of the alleged offense pursuant to Sec. 43-246.01(2) and,
by virtue of such, the Motion to Transfer is denied.” The State
timely filed an appeal the next day.
III. ASSIGNMENT OF ERROR
The State failed to include a separate assignments of error
section in its brief, but a heading in the argument section of its
brief contends, restated, that the juvenile court erred in denying
its motion to transfer based upon the court’s interpretation of
§ 43-246.01(2).
In order to be considered by an appellate court, an alleged
error must be both specifically assigned and specifically argued
in the brief of the party asserting the error. U.S. Pipeline v.
Northern Natural Gas Co., 303 Neb. 444, 930 N.W.2d 460- 498 -
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495(2019). See, also, Neb. Ct. R. App. P. § 2-109(D)(1)(e) (rev.
2014) (requirements for assignments of error section in brief
of appellant; consideration of case is limited to errors assigned
and discussed). Headings in the argument section of a brief do
not satisfy the requirements of § 2-109(D)(1). D.W. v. A.G.,
303 Neb. 42, 926 N.W.2d 651 (2019). When a party’s brief
fails to comply with § 2-109(D)(1), we may proceed as though
the party failed to file a brief or, alternatively, examine the
proceedings for plain error. D.W. v. A.G., supra. Plain error is
error plainly evident from the record and of such a nature that
to leave it uncorrected would result in damage to the integrity,
reputation, or fairness of the judicial process. Id.However, because this case involves a matter of statu-
tory interpretation, we will independently review the juvenile
court’s interpretation of § 43-246.01.
IV. STANDARD OF REVIEW
[1] Statutory interpretation is a question of law, which an
appellate court resolves independently of the trial court. In re
Interest of Seth C., 307 Neb. 862, 951 N.W.2d 135 (2020).
V. ANALYSIS
At issue in this case is whether § 43-246.01(2) and its use of
the language “[e]xclusive original jurisdiction” can be recon-
ciled with Neb. Rev. Stat. § 43-274(5) (Supp. 2019) and its use
of the language “concurrent jurisdiction.” Section 43-246.01(2)
grants the juvenile court “[e]xclusive original jurisdiction”
over any juvenile who was 16 or 17 years of age at the time he
or she committed an offense, other than a traffic offense, which
would constitute a misdemeanor or an infraction. However, it
also provides that proceedings initiated under “this subdivision
(2) may be transferred as provided in section 43-274.” Section
43-274(5) indicates that “[w]hen a transfer from juvenile court
to county court or district court is authorized because there is
concurrent jurisdiction, the county attorney or city attorney
may move to transfer the proceedings.” (Emphasis supplied.)
It appears the juvenile court must have concluded that since
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495a transfer under its exclusive original jurisdiction pursuant to
§ 43-246.01(2) was subject to the provisions of § 43-274, and
§ 43-274(5) authorized transfers only when there is concurrent
jurisdiction with a county or district court, then a transfer was
not permitted in this instance.
While we understand the potential for confusion created by
the statutory language noted above, we conclude that the plain
language of the statutes and Nebraska Supreme Court precedent
compel a different interpretation than the one reached by the
juvenile court. As we explain in more detail later, the use of the
language “[e]xclusive original jurisdiction” in § 43-246.01(1)
and (2) means that certain matters must be commenced in the
juvenile court if they fall into any of the categories covered
in those subsections. In other words, there is no discretion
by a county attorney or city attorney to file such matters ini-
tially in the county or district court; they must be filed in the
juvenile court. On the other hand, § 43-246.01(3) provides for
“[c]oncurrent original jurisdiction” over the categories covered
in that subsection, meaning there is discretion on whether to
initially file such cases in the juvenile court, county court, or
district court.
The concurrent jurisdiction language used in § 43-274(5)
means only that the transfer must involve matters over which
the county court or district court would otherwise have subject
matter jurisdiction. Subject matter jurisdiction is the power
of a tribunal to hear and determine a case in the general class
or category to which the proceedings in question belong and
to deal with the general subject matter involved. In re Estate
of Adelung, 306 Neb. 646, 947 N.W.2d 269 (2020). While
county courts have been given jurisdiction of criminal mat-
ters classified as misdemeanors or infractions via Neb. Rev.
Stat. § 24-517 (Cum. Supp. 2018), that statute does not pro-
vide for county court jurisdiction over felonies; other statutes,
however, do authorize county court judges to play a role in
felony matters. See State v. A.D., 305 Neb. 154, 939 N.W.2d
484 (2020). As for district courts, the Nebraska Constitution
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Cite as 29 Neb. App. 495provides such courts with both chancery and common-law
jurisdiction, and such other jurisdiction as the Legislature may
provide; Neb. Rev. Stat. § 24-302 (Reissue 2016) provides
that district courts shall have and exercise general, original,
and appellate jurisdiction in all matters, both civil and crimi-
nal, except where otherwise provided. See Webb v. Nebraska
Dept. of Health & Human Servs., 301 Neb. 810, 920 N.W.2d
268 (2018).
Therefore, although the case before us had to originate under
the juvenile court’s exclusive original jurisdiction as required
by § 43-246.01(2), the Legislature also specifically granted
to the juvenile court the ability to transfer such cases to the
county or district court so long as those courts otherwise have
subject matter jurisdiction. As we explain next, certain juvenile
criminal matters are statutorily reserved for the juvenile court’s
exclusive jurisdiction from beginning to end; however, depend-
ing on the juvenile’s age and the nature of the offense, such
matters may be transferred to the county or district court.
1. Statutory Language
The full text of § 43-246.01 is set forth below, and begin-
ning with subsection (2), we have provided bracketed abbrevi-
ated explanations of references made to certain other statutory
provisions. Section 43-246.01 states:
The juvenile court shall have:
(1) Exclusive original jurisdiction as to:
(a) Any juvenile described in subdivision (3) or (11) of
section 43-247;
(b) Any juvenile who was under sixteen years of age
at the time the alleged offense was committed and the
offense falls under subdivision (1) of section 43-247;
(c) A party or proceeding described in subdivision (5)
or (7) of section 43-247; and
(d) Any juvenile who was under fourteen years of age
at the time the alleged offense was committed and the
offense falls under subdivision (2) of section 43-247;
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495(2) Exclusive original jurisdiction as to:
(a) Beginning January 1, 2015, any juvenile who is
alleged to have committed an offense under subdivi-
sion (1) of section 43-247 [act other than traffic offense
which would constitute a misdemeanor or an infraction]
and who was sixteen years of age at the time the alleged
offense was committed, and beginning January 1, 2017,
any juvenile who is alleged to have committed an offense
under subdivision (1) of section 43-247 and who was six-
teen years of age or seventeen years of age at the time the
alleged offense was committed; and
(b) Any juvenile who was fourteen years of age or
older at the time the alleged offense was committed and
the offense falls under subdivision (2) of section 43-247
[act which would constitute a felony] except offenses
enumerated in subdivision (1)(a)(ii) of section 29-1816
[offense punishable as Class I, IA, IB, IC, ID, II, or
IIA felony].
Proceedings initiated under this subdivision (2) may be
transferred as provided in section 43-274; and
(3) Concurrent original jurisdiction with the county
court or district court as to:
(a) Any juvenile described in subdivision (4) of section
43-247 [traffic offense];
(b) Any proceeding under subdivision (6) [termination
of parental rights], (8) [ward whose guardianship is dis-
rupted or terminated], (9) [adoption or guardianship], or
(10) [paternity or custody] of section 43-247;
(c) Any juvenile described in subdivision (1)(a)(ii) of
section 29-1816 [offense punishable as Class I, IA, IB,
IC, ID, II, or IIA felony]; and
(d) Until January 1, 2017, any juvenile who is alleged
to have committed an offense under subdivision (1) of
section 43-247 and who was seventeen years of age at the
time the alleged offense was committed.
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495Proceedings initiated under this subdivision (3) may be
transferred as provided in section 43-274.
(Emphasis supplied.)
[2,3] Notably, subsections (1) and (2) of § 43-246.01
both commence with the juvenile court having “[e]xclusive
original jurisdiction,” meaning any case involving a juvenile
fitting into the categories described in those two subdivisions
must always be commenced in the juvenile court. See In re
Interest of Tyrone K., 295 Neb. 193, 887 N.W.2d 489 (2016).
However, unlike § 43-246.01(1), § 43-246.01(2) provides that
“[p]roceedings initiated under this subdivision (2) may be
transferred as provided in section 43-274[.]” Therefore, when
juveniles commit an offense fitting under § 43-246.01(2), an
action “against these juvenile offenders must always be initi-
ated in juvenile court by filing a juvenile petition, but [they]
are subject to transfer to county or district court for further
proceedings under the criminal code.” In re Interest of Tyrone
K., 295 Neb. at 198-99, 887 N.W.2d at 494. In contrast, pro-
ceedings fitting under § 43-246.01(1) “must always be filed
via a juvenile petition and must always proceed to completion
in juvenile court.” In re Interest of Tyrone K., 295 Neb. at 198,
887 N.W.2d at 494.
[4] Finally, § 43-246.01(3) provides for “[c]oncurrent origi-
nal jurisdiction with the county court or district court” for the
categories described in subparts (a) through (d). This means
that actions involving juveniles fitting into any of these catego-
ries may be initiated either in juvenile court or in the county or
district court. See In re Interest of Tyrone K., supra. A proceed-
ing initiated under § 43-246.01(3) may also be transferred as
provided in § 43-274.
In the present case, Luis was charged with three Class I
misdemeanor offenses. He was 17 years old at the time of the
incidents leading to the charges. Neb. Rev. Stat. § 43-247(1)
(Reissue 2016) provides that the juvenile court in each county
shall have jurisdiction of
[a]ny juvenile who has committed an act other than a
traffic offense which would constitute a misdemeanor or
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Cite as 29 Neb. App. 495an infraction under the laws of this state, or violation of
a city or village ordinance, and who, beginning in July 1,
2017, was eleven years of age or older at the time the act
was committed.
Luis was clearly more than 11 years of age at the time of his
misdemeanor offenses, so the juvenile court has jurisdiction
over Luis’ case pursuant to § 43-247(1). In next looking at
§ 43-246.01(1)(b), which applies to misdemeanor offenses
for juveniles under the age of 16, it is evident that Luis does
not fit into this category because of his age. Accordingly,
§ 43-246.01(1) does not apply here, and this is the only
subsection under § 43-246.01 which requires always being
filed in juvenile court and always proceeding to comple-
tion in juvenile court. See In re Interest of Tyrone K., supra.Instead, the circumstances involved here fall under the juve-
nile court’s “[e]xclusive original jurisdiction” pursuant to
§ 43-246.01(2)(a), which applies to 16-year-old or ­17-year-old
juveniles who have committed a nontraffic, misdemeanor
offense. Further, the statute plainly states that “[p]roceedings
initiated under this subdivision (2) may be transferred as pro-
vided in section 43-274[.]” § 43-246.01(2).
[5] However, as noted earlier, it appears that the “concur-
rent jurisdiction” language of § 43-274(5) may have contrib-
uted to the confusion in this case when trying to reconcile
it with the “[e]xclusive original jurisdiction” language used
in § 43-246.01(2). Section 43-274(5) states, in relevant part,
“When a transfer from juvenile court to county court or dis-
trict court is authorized because there is concurrent jurisdic-
tion, the county attorney or city attorney may move to trans-
fer the proceedings.” It appears the juvenile court construed
§ 43-274(5) to allow for transfers only when there is “[c]oncur-
rent original jurisdiction” between the courts as set forth in
§ 43-246.01(3), and since § 43-246.01(2)(a) granted the juve-
nile court “[e]xclusive original jurisdiction” over any juvenile,
age 16 or 17, who has committed a misdemeanor offense, then
there was no concurrent jurisdiction and the case could not be
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Cite as 29 Neb. App. 495transferred. But as noted previously, there would be concurrent
jurisdiction over Luis’ misdemeanor offenses in adult court
if the juvenile court determined the circumstances justified
granting a transfer. Also, of significance, the juvenile court’s
interpretation necessarily requires ignoring the last sentence of
§ 43-246.01(2), which very clearly states that “[p]roceedings
initiated under this subdivision (2) may be transferred as pro-
vided in section 43-274[.]” And a court must attempt to give
effect to all parts of a statute, and if it can be avoided, no word,
clause, or sentence will be rejected as superfluous or meaning-
less; it is not within the province of a court to read anything
plain, direct, and unambiguous out of a statute. In re Interest of
Sabrina K., 262 Neb. 871, 635 N.W.2d 727 (2001).
Additionally, as pointed out by the State, the Nebraska
Supreme Court has already construed §§ 43-246.01(2) and
43-274(5) to allow for a transfer from the juvenile court to the
county or district court.
2. Nebraska Supreme Court Cases
(a) In re Interest of Tyrone K.
The Nebraska Supreme Court first examined the construc-
tion of § 43-246.01 in In re Interest of Tyrone K., 295 Neb.
193, 887 N.W.2d 489 (2016). The court’s primary focus in
that case was whether an order granting a motion to transfer
proceedings from juvenile court to county court was a final,
appealable order; it ultimately concluded it was not. However,
the court first provided an overview of new juvenile statutes
enacted in 2014 through 2014 Neb. Laws, L.B. 464. The
court pointed out that “[f]rom 1974 to 2014, when a juvenile
committed a law violation, the relevant juvenile delinquency
statute gave the prosecuting attorney substantial discretion
regarding whether to file charges in criminal court, file delin-
quency proceedings in juvenile court, or offer juvenile pretrial
diversion or mediation.” In re Interest of Tyrone K., 295 Neb.
at 197, 887 N.W.2d at 493. The court described that L.B. 464
“limited the discretion of prosecutors to decide whether a
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Cite as 29 Neb. App. 495case should be filed in juvenile or criminal court” by installing
“a three-tiered jurisdictional structure that specifies the court
in which a case should be filed, depending on the age of the
juvenile and the nature of the alleged law violation” as “first
set out” in § 43-246.01. In re Interest of Tyrone K., 295 Neb. at
198, 887 N.W.2d at 494. Under an opinion subheading entitled
“Exclusive Original Jurisdiction,” the court addressed the first
of the three subsections of § 43-246.01, clarifying that
[s]ection 43-246.01(1) grants exclusive original juris-
diction to the juvenile court over offenders who (1) are
under 16 years of age and committed a misdemeanor or
infraction, other than a traffic offense, or (2) are under 14
years of age and committed a felony. Proceedings against
these juvenile offenders must always be filed via a juve-
nile petition and must always proceed to completion in
juvenile court.
In re Interest of Tyrone K., 295 Neb. at 198, 887 N.W.2d at 494
(emphasis supplied).
Under an opinion subheading entitled “Original Jurisdiction
Subject to Transfer,” the court described the second subsection
of § 43-246.01, further clarifying that
[s]ection 43-246.01(2) grants original jurisdiction to
the juvenile court over juvenile offenders who are (1)
16 years of age and committed a misdemeanor or (2)
14 years of age or older and committed a felony lesser
in grade than a Class IIA. Actions against these juvenile
offenders must always be initiated in juvenile court by
filing a juvenile petition, but are subject to transfer to
county or district court for further proceedings under the
criminal code.
In re Interest of Tyrone K., 295 Neb. at 198-99, 887 N.W.2d
at 494 (emphasis supplied). (We note that because the juvenile
court petition at issue was filed in 2015, the court’s explana-
tion above only refers to juvenile offenders who are 16 years of
age who have committed a misdemeanor. The statute in effect
at that time also indicated that beginning January 1, 2017, this
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or 17 years of age.)
Under an opinion subheading entitled “Concurrent Jurisdic-
tion,” the court described the third subsection of § 43-246.01,
stating that
[s]ection 43-246.01(3) grants to the juvenile court and
the county or district courts concurrent jurisdiction over
juvenile offenders who (1) commit a traffic offense that is
not a felony or (2) are 14 years of age or older and com-
mit a Class I, IA, IB, ID, II, or IIA felony. Actions against
these juveniles may be initiated either in juvenile court or
in the county or district court.
In re Interest of Tyrone K., 295 Neb. 193, 199, 887 N.W.2d
489, 494 (2016) (emphasis supplied).
[6] When addressing the petition filed in the juvenile court
and the prosecutor’s simultaneous motion to transfer the pro-
ceedings to criminal court, the Nebraska Supreme Court stated
that § 43-274(5) controlled in that circumstance. It noted that
§ 43-274(5) “authorizes a city or county attorney to seek a
transfer to criminal court when both the juvenile court and
the criminal court have statutory jurisdiction.” In re Interest
of Tyrone K., 295 Neb. at 200, 887 N.W.2d at 495. And as we
discussed previously, the county court and district court have
statutory jurisdiction over criminal matters, except in those
instances where the Legislature has preserved such matters
to the exclusive jurisdiction of the juvenile court, such as in
§ 43-246.01(1).
In In re Interest of Tyrone K., supra, the juvenile court peti-
tion alleged that 16-year-old Tyrone K. committed four counts
of theft by receiving stolen property and one count of operat-
ing a motor vehicle to avoid arrest. The violations were clas-
sified as “two Class III felonies, a Class IV felony, and two
Class I misdemeanors.” Id. at 195, 887 N.W.2d at 492. The
court found that for purposes of classification, all of the allega-
tions against Tyrone, except the allegation of operating a motor
vehicle to avoid arrest, put Tyrone in the category of juvenile
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initiated in juvenile court by filing a juvenile petition, but are
subject to transfer to county or district court for further pro-
ceedings under the criminal code.” In re Interest of Tyrone K.,
295 Neb. at 198-99, 887 N.W.2d at 494. However, the count
of operating a motor vehicle to avoid arrest put Tyrone in the
category of juvenile offenders described in § 43-246.01(3),
which may be initiated either in the juvenile court or in the
county or district court. See In re Interest of Tyrone K., supra.
Importantly, the court stated:
All of the offenses allegedly committed by Tyrone are
offenses over which both the juvenile court and the crim­
inal court can exercise jurisdiction under the new statu-
tory scheme. With respect to such offenses, if the action
is initiated in juvenile court, a party can move to transfer
it to county or district court via § 43-274(5) (Reissue
2016) . . . .
In re Interest of Tyrone K., 295 Neb. at 199, 887 N.W.2d at 494.
Luis attempts to distinguish In re Interest of Tyrone K. on
the basis that one of Tyrone’s offenses was a traffic offense,
which would subject him to the concurrent jurisdiction of
the juvenile court and criminal court under § 43-246.01(3).
Luis appears to be suggesting that In re Interest of Tyrone K.
should not be applied here, because in addition to involving
offenses falling under § 43-246.01(2), that case also involved
an offense falling under § 43-246.01(3), which specifically
provides for “[c]oncurrent original jurisdiction.” Presumably,
Luis is suggesting that because § 43-246.01(3) specifically
refers to “[c]oncurrent original jurisdiction,” then the “concur-
rent jurisdiction” language of § 43-274(5) supports transfer
of only those cases falling under § 43-246.01(3). We do not
read In re Interest of Tyrone K. to support Luis’ distinction. In
fact, as discussed next, another case decided by the Supreme
Court 1 week after In re Interest of Tyrone K. was decided
reiterates its determination in In re Interest of Tyrone K. that
§ 43-246.01(2) provides for transfer from the juvenile court to
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Cite as 29 Neb. App. 495the county or district court, even when the offenses charged all
fall under § 43-246.01(2), as in the present case.
(b) In re Interest of Sandrino T.
In In re Interest of Sandrino T., 295 Neb. 270, 888 N.W.2d
371 (2016), the juvenile charges included three Class IIIA felo-
nies and three Class IV felonies, all of which would fit within
the category described in § 43-246.01(2)(b). The Nebraska
Supreme Court stated:
Although actions against juvenile offenders who fall
under § 43-246.01(2) must always be initiated in juve-
nile court by filing a juvenile petition, they are subject to
transfer to county or district court for further proceed-
ings under the criminal code. . . . As noted, the State
filed motions to transfer each case to county court under
§ 43-274(5) and the juvenile court granted the motions.
In re Interest of Sandrino T., 295 Neb. at 273-74, 888 N.W.2d
at 374 (emphasis supplied).
Although the offenses alleged in the present matter fall
under § 43-246.01(2)(a) rather than § 43-246.01(2)(b), as in In
re Interest of Sandrino T., the last sentence of § 43-246.01(2)
states that “[p]roceedings initiated under this subdivision (2)
may be transferred as provided in section 43-274”; there is no
distinction made between § 43-246.01(2)(a) and (b) in terms of
which proceedings may be transferred.
(c) In re Interest of Steven S.
In In re Interest of Steven S., 299 Neb. 447, 908 N.W.2d
391 (2018), the juvenile was 17 years old when he and another
juvenile escaped from custody while being transported to a
youth rehabilitation and treatment center. A petition was filed
in juvenile court, charging the juvenile with escape, a Class
IV felony offense. The State simultaneously filed a motion to
transfer the case from the juvenile court to the county court.
After an evidentiary hearing, the juvenile court concluded
that the State had proved by a preponderance of the evidence
that the matter should be transferred to the county court. The
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IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495juvenile appealed, claiming the evidence was insufficient to
support the transfer.
In reaching its decision to affirm the juvenile court’s deci-
sion, the Nebraska Supreme Court noted that “transfers from
juvenile to ‘adult’ court [were] a recent development.” Id.
at 453, 908 N.W.2d at 396. It pointed out that in 2014, “legis-
lation dictated that the county attorney or city attorney file the
petition in the court with jurisdiction as outlined in what became
codified as Neb. Rev. Stat. § 43-246.01 (Reissue 2016).” In re
Interest of Steven S., 299 Neb. at 454, 908 N.W.2d at 396. The
court then proceeded to consider the appropriate standard of
review to be applied to such appeals, and it concluded in its de
novo review of the record that the juvenile court did not abuse
its discretion in ordering the case transferred from the juvenile
court to the county court.
Notably, in In re Interest of Stephen S., supra, because the
juvenile was charged with a Class IV felony, § 43-246.01(2)(b)
would have applied, as in In re Interest of Sandrino T., supra.
That subsection applies to any juvenile who was 14 years of
age or older at the time of the alleged offense and the offense
was a felony classified lower than a Class IIA felony. Although,
as previously discussed, the juvenile court had “[e]xclusive
original jurisdiction” under § 43-246.01(2)(b), any proceedings
brought under § 43-246.01(2)(a) or (b) may be transferred to
county or district court once initially filed in the juvenile court.
Nothing in In re Interest of Steven S., supra, suggests that the
juvenile court lacked the authority to transfer the case from the
juvenile court to the county court; rather, the juvenile court’s
decision to transfer the matter to the county court was affirmed
by our Supreme Court.
3. Summary
The statutory language itself, along with the Supreme Court
cases construing the pertinent statutes as discussed above,
indicate that § 43-246.01(2) and § 43-274(5) do in fact allow
for cases described in § 43-246.01(2) to be transferred to the
- 510 -
Nebraska Court of Appeals Advance Sheets
29 Nebraska Appellate Reports
IN RE INTEREST OF LUIS D.
Cite as 29 Neb. App. 495county or district court once the case is initially filed in the
juvenile court.
[7] We also observe that since the Nebraska Supreme Court’s
decisions discussed above, neither § 43-246.01, § 43-247, nor
§ 43-274 have been amended in any way to ­demonstrate
the Legislature’s disagreement with how our Supreme Court
has construed these statutes. The Legislature did amend
§ 43-274 to address the issue of whether a juvenile trans-
fer order was a final, appealable order in the new statutory
scheme. Section 43-274(5) was amended in 2017 to provide
that “[a]n order granting or denying transfer of the case from
juvenile court to county or district court shall be considered
a final order for the purposes of appeal.” See Neb. Rev. Stat.
§ 43-274(5) (Cum. Supp. 2018). See, also, 2017 Neb. Laws,
L.B. 11, § 2. Section 43-274 was again amended in 2019, alter-
ing the processes concerning restorative justice practices or
services with respect to juvenile offenders. See § 43-274 (Supp.
2019). See, also, 2019 Neb. Laws, L.B. 595, § 28. Of note, the
language stating that “[w]hen a transfer from juvenile court
to county court or district court is authorized because there
is concurrent jurisdiction, the county attorney or city attorney
may move to transfer the proceedings” has not changed. See
§ 43-274(5) (Supp. 2019). Where a statute has been judicially
construed and that construction has not evoked an amendment,
it will be presumed that the Legislature has acquiesced in the
court’s determination of the Legislature’s intent. Drought v.
Marsh, 304 Neb. 860, 937 N.W.2d 229 (2020).
VI. CONCLUSION
The juvenile court erred in concluding that § 43-246.01(2)
and § 43-274(5) precluded the transfer of this case from the
juvenile court to the criminal court. We therefore reverse, and
remand for further proceedings, beginning with consideration
of the merits of the State’s motion to transfer.
Reversed and remanded for
further proceedings.