State ex rel. Unger v. State , 293 Neb. 549 ( 2016 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska A dvance Sheets
293 Nebraska R eports
STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
State of Nebraska
ex rel. M ichael Unger,
County of Stanton,
sheriff of the
Nebraska, appellant, v. State of
Nebraska et al., appellees.
___ N.W.2d ___
Filed May 13, 2016. No. S-15-808.
1. Mandamus: Words and Phrases. Mandamus is a law action, and it is
an extraordinary remedy, not a writ of right.
2. Judgments: Appeal and Error. In a bench trial of a law action, the trial
court’s factual findings have the effect of a jury verdict. An appellate
court will not disturb them unless they are clearly erroneous.
3. Mandamus. Whether to grant a writ of mandamus is within the trial
court’s discretion.
4. Mandamus: Proof. A party seeking a writ of mandamus under Neb.
Rev. Stat. § 84-712.03 (Reissue 2014) has the burden to satisfy three
elements: (1) The requesting party is a citizen of the state or other
person interested in the examination of the public records; (2) the
document sought is a public record as defined by Neb. Rev. Stat.
§ 84-712.01 (Reissue 2014); and (3) the requesting party has been
denied access to the public record as guaranteed by Neb. Rev. Stat.
§ 84-712 (Reissue 2014).
5. ____: ____. If the requesting party satisfies its prima facie claim for
release of public records, the public body opposing disclosure must
show by clear and convincing evidence that Neb. Rev. Stat. § 84-712.05
(Reissue 2014) or Neb. Rev. Stat. § 84-712.08 (Reissue 2014) exempts
the record from disclosure.
6. Presentence Reports. A presentence report is not a public record.
7. Mandamus. A court may issue a writ of mandamus only to an inferior
tribunal, corporation, board, or person.
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STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
8. Mandamus: Default Judgments. The issuance of a peremptory writ of
mandamus because of a respondent’s failure to answer the alternative
writ is the equivalent of a default judgment.
9. Default Judgments: Waiver. A plaintiff waives the right to seek a
default judgment by failing to timely exercise that right and proceeding
to the merits.
10. Appeal and Error: Words and Phrases. Plain error is error uncom-
plained of at trial, plainly evident from the record, and of such a nature
that to leave it uncorrected would result in damage to the integrity, repu-
tation, or fairness of the judicial process.
Appeal from the District Court for Lancaster County: Robert
R. Otte, Judge. Affirmed.
Vincent Valentino and Brandy Johnson for appellant.
Douglas J. Peterson, Attorney General, and Elizabeth A.
Gregory for appellees.
Heavican, C.J., Wright, Connolly, Miller-Lerman, Cassel,
and K elch, JJ.
Connolly, J.
SUMMARY
This appeal presents the issue of whether a presentence
report is a public record. Michael Unger, the Stanton County
Sheriff, petitioned for a public records writ of mandamus
compelling the partial disclosure of an offender’s presentence
report containing any statements made by Dillon Fales, a vic-
tim of the offender’s crime. Fales had sued Stanton County,
Nebraska, for damages arising from injuries associated with
the crime. Unger argued that the presentence report was a
public record and that Fales’ statement might be relevant to a
contested issue in his civil suit. The court dismissed Unger’s
petition because it determined that presentence reports are
privileged.1 We likewise conclude that presentence reports are
not public records because they are privileged by statute. We
therefore affirm.
1
See Neb. Rev. Stat. § 29-2261(6) (Cum. Supp. 2014).
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STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
BACKGROUND
Bryant Irish’s Criminal Case in
M adison County District Court
In 2014, the State charged Bryant L. Irish with driving under
the influence of alcohol and causing serious bodily injury
under Neb. Rev. Stat. § 60-6,198 (Cum. Supp. 2014). Section
60-6,198(1) provides: “Any person who, while operating a
motor vehicle in violation of section 60-6,196 or 60-6,197,
proximately causes serious bodily injury to another person
or an unborn child of a pregnant woman shall be guilty of a
Class IIIA felony . . . .”
The court, with District Judge Mark A. Johnson presid-
ing, convicted Irish after a bench trial. It found that Fales left
a party in a pickup truck driven by Irish. A Stanton County
deputy sheriff followed the pickup truck and activated the
overhead lights on the deputy’s cruiser. Irish missed a curve
in the road and struck a culvert. Emergency responders trans-
ported Fales to a hospital because he was unable to move and
had a head injury. The court determined that Irish operated a
motor vehicle while under the influence of alcohol and that
“such impairment by alcohol caused the motor vehicle accident
which, in turn, proximately caused the serious bodily injury
to his passenger . . . Fales.” It ordered the probation office to
prepare a presentence report for Irish’s sentencing.
At Irish’s sentencing hearing, his attorney told the court that
he had talked with Fales and that Fales “indicated to me that
[he] could have been the one driving just as well,” that Fales
and Irish “were both in the wrong,” and that they “s[aw] each
other as interchangeable in this case.” Irish’s attorney said that
Irish and Fales were “lifelong friends and remain so through
this.” The court noted the comments by Irish’s attorney and
said, “I will also take into account that the victim in this case
has indicated he does not want [Irish] to go to jail but wants
[him] to get probation.” The court sentenced Irish to 180 days
in jail and 60 months’ probation.
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STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
Tort Action in M adison County
District Court
Before the court sentenced Irish, Fales sued Stanton County
under the Political Subdivisions Tort Claims Act.2 Fales alleged
that he was an innocent third party injured by the vehicular
pursuit of Irish by the Stanton County Sheriff.
In an answer to an interrogatory, Fales said that he com-
pleted a “Victim Questionnaire” for use in Irish’s sentencing.
In response to a request to produce any documents he authored
for Irish’s criminal case, Fales answered: “Do not have.”
Stanton County sent a “Subpoena Duces Tecum and Public
Records Request” to Judge Johnson and the district probation
office. The subpoenas asked Judge Johnson and the probation
office to produce any victim questionnaire “included within the
presentence investigation report prepared in the criminal matter
of State v. Bryant Irish.”
Judge Johnson and the probation office moved to quash the
subpoenas. The record does not show the outcome of their
motion to quash. But Unger states in his brief that Stanton
County “withdrew” the subpoenas.3
M andamus Action in Lancaster County
District Court
In 2015, Unger filed a “Complaint/Petition for Public
Records Writ of Mandamus” in the Lancaster County District
Court. The respondents are the State of Nebraska, Judge
Johnson, the State of Nebraska’s “District 7 Probation Office,”
and the State of Nebraska Office of Probation Administration.
Unger alleged that Fales submitted a statement or question-
naire for use in Irish’s sentencing. Unger claimed that Fales’
submission might be relevant to whether Stanton County was
liable to Fales in the tort action pending in the Madison County
District Court.
2
See Neb. Rev. Stat. §§ 13-901 to 13-928 (Reissue 2012).
3
Brief for appellant at 9.
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STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
Unger claimed that he was entitled to a writ of mandamus
under the public records statutes.4 The court issued an alter-
native writ of mandamus which directed the respondents to
produce the questionnaire for the court’s in camera inspection.
The court further ordered the respondents to show cause why
the questionnaire was not a public record. The respondents did
not file a responsive pleading.
At the show cause hearing, the court received several exhib-
its, including the portion of Irish’s presentence report consist-
ing of Fales’ questionnaire. The court held the questionnaire
under seal. The respondents argued that Irish’s presentence
report was not a public record because a statute provides that
presentence reports “shall be privileged.”5
The court dismissed Unger’s petition. It reasoned that Fales’
questionnaire was part of Irish’s presentence report and that pre-
sentence reports are not subject to the public records statutes.
Unger appeals from the order of the Lancaster County
District Court dismissing his petition for a writ of mandamus.
ASSIGNMENTS OF ERROR
Unger assigns, restated, that the court erred by (1) deter-
mining that Irish’s presentence report was not a public record,
(2) failing to determine that Fales waived any privilege that
attached to the presentence report, and (3) failing to enter a
peremptory writ of mandamus because the respondents did not
file an answer to the alternative writ of mandamus.
STANDARD OF REVIEW
[1-3] Mandamus is a law action, and we have defined it as
an extraordinary remedy, not a writ of right.6 In a bench trial of
a law action, the trial court’s factual findings have the effect of
a jury verdict.7 We will not disturb those findings unless they
4
See Neb. Rev. Stat. § 84-712.03(1)(a) (Reissue 2014).
5
§ 29-2261(6).
6
Evertson v. City of Kimball, 278 Neb. 1, 767 N.W.2d 751 (2009).
7
Id.
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STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
are clearly erroneous.8 Whether to grant a writ of mandamus is
within the trial court’s discretion.9
ANALYSIS
Irish’s Presentence R eport
Is Not a Public R ecord
Unger argues that he is entitled to the portion of Irish’s
presentence report containing Fales’ questionnaire. Neb. Rev.
Stat. § 84-712(1) (Reissue 2014) empowers any citizen of this
state or other interested person to examine and obtain copies
of public records, “[e]xcept as otherwise expressly provided by
statute . . . .” The phrase “public records” is defined by Neb.
Rev. Stat. § 84-712.01(1) (Reissue 2014):
Except when any other statute expressly provides that
particular information or records shall not be made pub-
lic, public records shall include all records and docu-
ments, regardless of physical form, of or belonging to this
state, any county, city, village, political subdivision, or
tax-supported district in this state, or any agency, branch,
department, board, bureau, commission, council, subunit,
or committee of any of the foregoing.
A person denied access to a public record may file for speedy
relief by a writ of mandamus under § 84-712.03.
[4,5] A party seeking a writ of mandamus under § 84-712.03
has the burden to satisfy three elements: (1) The requesting
party is a citizen of the state or other person interested in the
examination of the public records; (2) the document sought
is a public record as defined by § 84-712.01; and (3) the
requesting party has been denied access to the public record
as guaranteed by § 84-712.10 If the requesting party satisfies
its prima facie claim for release of public records, the public
body opposing disclosure must show by clear and convincing
8
Id.
9
Id.
10
Id.
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STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
evidence that Neb. Rev. Stat. § 84-712.05 (Reissue 2014) or
Neb. Rev. Stat. § 84-712.08 (Reissue 2014) exempts the record
from disclosure.11
The respondents argue that Irish’s presentence report is
not a public record because it is privileged. Section 29-2261
generally requires the preparation of a presentence report for
an offender convicted of a felony other than murder in the
first degree. The report may include the written statement of a
victim.12 Section 29-2261(6) provides that the resulting report
is privileged:
Any presentence report or psychiatric examination shall
be privileged and shall not be disclosed directly or indi-
rectly to anyone other than a judge, probation officers
to whom an offender’s file is duly transferred, the pro-
bation administrator or his or her designee, or others
entitled by law to receive such information . . . . The
court may permit inspection of the report or examina-
tion of parts thereof by the offender or his or her attor-
ney, or other person having a proper interest therein,
whenever the court finds it is in the best interest of a
particular offender. The court may allow fair opportunity
for an offender to provide additional information for the
court’s consideration.
We have stated that the first sentence in § 29-2261(6) sets
forth the general rule that information in a presentence report
is privileged and cannot be disclosed to anyone outside of the
persons listed.13 Even the offender has only a qualified right to
review his or her own report.14 Section 29-2261(7) and (8) then
in effect states that the Department of Correctional Services,
Board of Parole, Office of Parole Administration, and Supreme
Court or an agent of the Supreme Court acting under the
11
Id.
12
§ 29-2261(3).
13
State v. Albers, 276 Neb. 942, 758 N.W.2d 411 (2008).
14
State v. Moyer, 271 Neb. 776, 715 N.W.2d 565 (2006).
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Cite as 293 Neb. 549
d­ irection and supervision of the Chief Justice may access the
report in some circumstances.
[6] We conclude that Irish’s presentence report is not a pub-
lic record. Section 84-712.01(1) states that a document is not a
public record if “any other statute expressly provides that par-
ticular information or records shall not be made public . . . .”
Similarly, § 84-712(1) states that persons have a right to exam-
ine public records “[e]xcept as otherwise expressly provided
by statute . . . .” And § 29-2261 is a statute which expressly
provides otherwise—it says presentence reports are privileged.
We do not believe that the “others entitled by law to receive” a
presentence report under § 29-2261(6) include anyone entitled
to make a public records request, i.e., “all citizens of this state
and all other persons interested in the examination of the pub-
lic records.”15 If presentence reports were public records, the
privilege in § 29-2261(6) would be a mirage.
Nor does Unger have an equitable entitlement to Irish’s
presentence report under the public records statutes. He cites
§ 84-712.03(2), which provides in part: “In any suit filed under
this section, the court has jurisdiction to enjoin the public body
from withholding records, to order the disclosure, and to grant
such other equitable relief as may be proper.” Similarly, Neb.
Rev. Stat. § 84-712.07 (Reissue 2014) states that the statutes
“pertaining to the rights of citizens to access to public records
may be enforced by equitable relief.” Unger seems to argue
that the public records statutes give him an equitable right to
nonpublic records. He cites no authority for such a rule, and we
believe that equitable relief under §§ 84-712.03 and 84-712.07
must relate to a public record.
Unger also argues that he is entitled to Irish’s presentence
report because it was publicly disclosed in open court dur-
ing the sentencing hearing in Irish’s criminal case. He cites
§ 84-712.05, which lists exceptions to the general rule of
disclosure. Section 84-712.05 begins by stating an exception
15
§ 84-712(1).
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STATE EX REL. UNGER v. STATE
Cite as 293 Neb. 549
to the exceptions: “The following records, unless publicly dis-
closed in an open court, . . . may be withheld from the public
by the lawful custodian of the records . . . .” (Emphasis sup-
plied.) But § 84-712.05 applies only to materials which we
would otherwise consider public records. Presentence reports
are not, as a matter of first principles, public records.
Moreover, Irish’s presentence report was not “publicly dis-
closed in an open court.” Unger emphasizes that Irish’s attor-
ney told the court that Fales said he “could have been the one
driving” and that Fales and Irish saw themselves as “inter-
changeable.” But Irish’s attorney said that he obtained this
information by speaking with Fales directly. The sentencing
court’s comment that “the victim in this case had indicated he
does not want [Irish] to go to jail” does not amount to a public
disclosure of the presentence report.
Unger also contends that the privilege in § 29-2261(6) does
not apply because Fales was not a “victim.” First, we note
that the privilege in § 29-2261(6) attaches to the presentence
report, not the victim statement. Second, in convicting Irish
under § 60-6,198 after a bench trial, the Madison County
District Court found beyond a reasonable doubt that Fales was
a “victim” as that term is defined with reference to presentence
reports.16 Unger argues that Fales was not a victim because
he “expressed genuine concern for his friend . . . Irish.”17 But
victims of crime do not stop being victims when they forgive
the offender.
Finally, Unger argues that Fales waived the privilege in
§ 29-2261(6) when he purportedly tried to produce his ques-
tionnaire during discovery in the pending litigation in the
Madison County District Court. In this appeal, we are tasked
with deciding whether a presentence report is definitionally a
16
Compare § 29-2261(4), Neb. Rev. Stat. § 29-119(2)(a) (Cum. Supp. 2014),
and Neb. Rev. Stat. § 28-109(20) (Reissue 2008), with § 60-6,198(1)
and (2).
17
Brief for appellant at 13.
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“public record” so as to be the subject of a public records writ
of mandamus. Fales’ responses to discovery requests are not
germane to our inquiry.
Judge Johnson Is Not
an I nferior Officer
[7] Issuing a writ of mandamus to one of the respondents,
Judge Johnson, is inappropriate for another reason: Judge
Johnson is not an inferior officer. A court may issue a writ of
mandamus only to an inferior tribunal, corporation, board, or
person.18 Here, Unger asked a judge of the Lancaster County
District Court to issue a writ of mandamus to a judge of the
Madison County District Court in the latter’s capacity as
“District Judge.” One district court judge is not inferior to
another. So even if Irish’s presentence report was a public
record, mandamus would not lie against Judge Johnson.
Unger Waived the R espondents’
Failure to A nswer
[8] Finally, Unger argues that the court should have issued
a peremptory writ of mandamus because the respondents did
not file an answer. Under Neb. Rev. Stat. § 25-2162 (Reissue
2008), the parties on whom the alternative writ is served “may
show cause, by answer made, in the same manner as an answer
to a complaint in a civil action.” The writ and the answer are
the pleadings in the case and have the same effect and are sub-
ject to the same construction as the pleadings in a civil action.19
Neb. Rev. Stat. § 25-2163 (Reissue 2008) provides in part: “If
no answer be made, a peremptory mandamus must be allowed
against the defendant.” Issuing of a peremptory writ of manda-
mus because of a respondent’s failure to answer the alternative
writ is the equivalent of a default judgment.20
18
See, Mid America Agri Products v. Rowlands, 286 Neb. 305, 835 N.W.2d
720 (2013); 52 Am. Jur. 2d Mandamus § 301 (2011).
19
Neb. Rev. Stat. § 25-2164 (Reissue 2008).
20
John P. Lenich, Nebraska Civil Procedure § 20:11 (2008).
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[9] But Unger failed to seek a peremptory writ because of
the respondents’ default. A plaintiff waives the right to seek a
default judgment by failing to timely exercise that right and
proceeding to the merits.21 Unger chose to present evidence
and proceed to the merits of the mandamus action. The time for
him to raise the respondents’ default has passed.
[10] Unger asks us to notice the respondents’ failure to file
an answer as plain error. Plain error is error uncomplained of at
trial, 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.22 We conclude
that the court’s failure to enter a peremptory writ because of
the respondents’ failure to file an answer was not plain error.
The respondents did not file an answer, but they did submit a
brief and made arguments at the hearing on Unger’s mandamus
action to which Unger was able to respond. Unger does not
explain how he was prejudiced by the lack of answer, much
less how leaving the error uncorrected would harm the integ-
rity, reputation, or fairness of the judicial process.
CONCLUSION
Irish’s presentence report is not a public record. The court
therefore did not abuse its discretion by dismissing Unger’s
petition for a public records writ of mandamus. We affirm.
A ffirmed.
Stacy, J., not participating.
21
See, Laurel Baye Healthcare of Macon v. Neubauer, 315 Ga. App. 474,
726 S.E.2d 670 (2012); Shows v. Man Engines & Components, Inc., 364
S.W.3d 348 (Tex. App. 2012); Schwan v. Folden, 708 N.W.2d 863 (N.D.
2006); Kuykendall v. Circle, Inc., 539 So. 2d 1252 (La. App. 1989);
Demoski v. New, 737 P.2d 780 (Alaska 1987); Barber & McMurry v. Top-
Flite Develop., 720 S.W.2d 469 (Tenn. App. 1986); Whitehall Packing Co.
v. Safeway Truck Lines, 68 Wis. 2d 369, 228 N.W.2d 365 (1975); Lanning
v. Landgraf, 259 Iowa 397, 143 N.W.2d 644 (1966); 49 C.J.S. Judgments
§ 276 (2009).
22
Blaser v. County of Madison, 285 Neb. 290, 826 N.W.2d 554 (2013).