City of Hastings v. Hughes

IN THE NEBRASKA COURT OF APPEALS
MEMORANDUM OPINION AND JUDGMENT ON APPEAL
CITY OF HASTINGS V. HUGHES
NOTICE: THIS OPINION IS NOT DESIGNATED FOR PERMANENT PUBLICATION
AND MAY NOT BE CITED EXCEPT AS PROVIDED BY NEB. CT. R. APP. P. § 2-102(E).
CITY OF HASTINGS, STATE OF NEBRASKA, APPELLEE,
V.
MARVIN HUGHES, APPELLANT.
Filed April 22, 2014. No. A-13-476.
Appeal from the District Court for Adams County, TERRI S. HARDER, Judge, on appeal
thereto from the County Court for Adams County, MICHAEL OFFNER, Judge. Judgment of
District Court affirmed.
Terry K. Barber, of Barber & Barber, P.C., L.L.O., for appellant.
Robert M. Sullivan, of Sullivan Shoemaker, P.C., L.L.O., for appellee.
INBODY, Chief Judge, and PIRTLE and RIEDMANN, Judges.
PIRTLE, Judge.
I. INTRODUCTION
Marvin Hughes appeals the order of the Adams County District Court affirming the order
of the Adams County Court convicting Hughes of 21 ordinance violations. For the reasons that
follow, we affirm.
II. BACKGROUND
Hughes is a resident of Hastings, Nebraska. Hughes owns a building located on Hastings
Avenue, which building which was formerly owned by the Hastings Public Schools. At the time
the building was owned by the Hastings Public Schools, the building was inspected by the State
Fire Marshal. When the building ceased to be used as a school, the responsibility for inspections
shifted to the Hastings Fire Department.
In July 2011, the fire department received notice from Hughes instructing the department
not to enter his property. The same notice was provided to the city administrator, city attorney,
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city clerk, city police chief, building inspector, electrical inspector, plumbing inspector, and
health inspector. The notices stated that Hughes would “not allow any trespass by any city
employee or individuals contracted by the city or any departments or agencies working in
conjunction with the city, to trespass or photograph any properties owned by Marvin E. Hughes
or any company owned by Marvin E. Hughes.” The notice also provided that he required a “land
use fee” of $5,000 per person per day if anyone entered his property and a “photograph fee” of
$1,000 per photograph taken.
After receiving the notice from Hughes, the city building inspector, Mark Evans, called
Hughes and requested an inspection. Evans testified that Hughes sent a notice to him that he
would be trespassing if he were to enter the property without written permission from Hughes.
On a few occasions, Hughes gave Evans permission to look at different places in the building,
but on other occasions, Hughes declined Evans’ request to inspect the property. Evans testified
that construction work was being performed at the building, but applications or permits had not
been submitted. He noted that one application was made by a tenant of the building, but it was
denied on the basis that a full building inspection was necessary prior to granting a permit for a
portion of the building.
The city electrical inspector, Lewis Seberg, testified that he was driving by the building
and saw electrical contractors parked in front of it. He contacted those contractors and
discovered there was work being done that would require a permit. Seberg testified that the
contractors told him Hughes did not want building permits taken out. Seberg contacted Hughes
by telephone and requested an inspection, and Hughes told him that permits had not been issued
and Seberg’s presence was not required. Seberg understood Hughes’ response to be a denial of
his request to inspect the property.
The fire department also received information that Hughes was performing electrical
work without a permit. According to the city fire chief, Kent Gilbert, performing electrical work
without a permit presents a serious concern, especially given the common occurrence of
electrical fires. He expressed concern for the safety of the businesses within the property, which
were open to the general public, and in the case of a fire, the risk to the inhabitants of the
building as well as potential emergency responders. He opined that an emergency existed, and
the issuance of a warrant for inspection of the premises was appropriate. As a result of these
concerns, Gilbert applied for a warrant to inspect Hughes’ property on or about August 10, 2011.
Gilbert’s affidavit for a warrant set forth that he believed an emergency existed which
necessitated an inspection of the premises and that the fire department requested entry in July
2011 “for purposes of determining the layout of the building, the uses employed in the building
and other factors that the Fire Department uses in determining whether or not to enter [a]
building if there is a fire.” The affidavit further set forth that this type of review is conducted
regularly to protect the lives of firefighters and possible building occupants and to develop a plan
for fire suppression for each structure in town. An inspection warrant was issued on August 10,
because the county court was satisfied that probable cause existed to check for dangerous
building conditions under the Hastings City Code.
After obtaining the warrant, on August 11, 2011, the property was inspected by the city
building inspector, electrical inspector, and fire prevention officer. As a result of the inspection,
on December 22, Hughes was charged in Adams County Court with numerous counts of
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violating ordinances of the City of Hastings, the International Building Code, the National
Electric Code, and the International Fire Code.
Hughes filed a “Motion to Quash Warrant and Suppress Evidence,” and after a hearing
on the issues, his motion was denied. The court found he failed to enter the warrant as evidence,
he provided no testimony, and he did not allege what evidence was found in the investigation
that should have been suppressed.
Following a bench trial, the county court found Hughes guilty on each count alleged in
the complaint. Hughes appealed to the Adams County District Court. On appeal, the exhibits
entered in the county court were not incorporated in the record on appeal to the district court.
The district court, based upon the record before it, affirmed the decision of the county court.
III. ASSIGNMENTS OF ERROR
On appeal, Hughes contends that the county court erred (1) in failing to find that the
warrant was invalid and in allowing evidence obtained as a result of an illegal entry onto his
property; (2) in not allowing a jury trial; (3) in not allowing him to challenge jurisdiction; (4) in
failing to recuse the county court judge; and (5) in holding Hughes, a pro se litigant, to a higher
standard of courtroom procedure.
Additionally, Hughes has assigned as error, but does not specifically argue, that (1) his
constitutional rights to equal protection and due process rights were violated, (2) the ordinances
were unconstitutional, and (3) there was insufficient evidence to support the findings of the trial
court. 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. City of Gordon v. Montana
Feeders Corp., 273 Neb. 402, 730 N.W.2d 387 (2007). See Neb. Ct. R. § 2-109(D)(1) (rev.
2012). Therefore, we decline to consider these assigned errors.
IV. STANDARD OF REVIEW
Upon appeal from a county court in a criminal case, a district court acts as an
intermediate appellate court, rather than a trial court, and its review is limited to an examination
of the county court record for error or abuse of discretion. State v. Wilson, 17 Neb. Ct. App. 846, 771
N.W.2d 228 (2009). Both a district court and a higher appellate court generally review appeals
from a county court for error appearing on the record. Id.
V. ANALYSIS
1. SUPPRESSION OF EVIDENCE OBTAINED
UPON ILLEGAL ENTRY
Hughes filed a “Motion to Quash Warrant and Suppress Evidence,” and after a hearing,
his motion was denied by the county court, because he failed to enter the warrant as evidence, he
provided no testimony, and he did not allege what evidence was found in the investigation that
should have been suppressed. Hughes raised this issue on appeal to the district court, which
found no error appearing on the record.
In reviewing a trial court’s ruling on a motion to suppress based on a claimed violation of
the Fourth Amendment, an appellate court applies a two-part standard of review: regarding
historical facts, the appellate court reviews the trial court’s findings for clear error; but whether
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those facts trigger or violate Fourth Amendment protection is a question of law that the appellate
court reviews independently of the trial court’s determination. State v. Nolan, 283 Neb. 50, 807
N.W.2d 520 (2012).
Upon appeal from a county court in a criminal case, a district court acts as an
intermediate appellate court, rather than a trial court, and its review is limited to an examination
of the county court record for error or abuse of discretion. State v. Wilson, supra. Both a district
court and a higher appellate court generally review appeals from a county court for error
appearing on the record. Id.
On appeal to this court, Hughes contends that the district court erred in affirming the
county court’s denial of his motion to quash and suppress evidence. He contends that, because
city officers entered his property without his permission, the evidence obtained as a result of that
illegal entry should have been suppressed.
Pursuant to Neb. Rev. Stat. § 29-832 (Reissue 2008), inspection warrants shall be issued
when consent for inspection has been denied. Additionally, neither consent nor a warrant is
required in emergency situations. Id.
The fire department requested entry in July 2011 “for purposes of determining the layout
of the building, the uses employed in the building and other factors that the Fire Department uses
in determining whether or not to enter [a] building if there is a fire.” This type of review is
conducted regularly to protect the lives of firefighters and possible occupants. Further, Gilbert’s
affidavit stated the fire department was in the process of developing a plan for fire suppression
for each structure in town; thus, there was no evidence that the fire department was simply
singling out this property for inspection. The record is uncontroverted that Hughes “ordered” the
fire department, city administrator, city attorney, city clerk, city police chief, building inspector,
electrical inspector, plumbing inspector, and health inspector not to enter his property.
Upon our review of the record, the evidence further establishes that Gilbert’s affidavit in
support of the warrant set forth that he believed an emergency existed necessitating an inspection
of Hughes’ building. The fire department was informed that Hughes was performing electrical
work without a permit, which presented a serious concern, especially given the common
occurrence of electrical fires. Gilbert expressed his concern for the safety of the businesses
within the property, which were open to the general public, and, in the case of a fire, the risk to
the inhabitants of the building as well as potential emergency responders. He opined that an
emergency existed and that the issuance of a warrant for inspection of the premises was
appropriate.
Upon our review of the record, we find no error appearing on the record regarding the
district court’s affirmance of the county court’s denial of Hughes’ motion to quash and suppress
evidence. Thus, this assignment of error is without merit.
2. REQUEST FOR JURY TRIAL
Hughes asserts the district court erred in affirming the county court’s denial of his request
for a jury trial. Hughes contends that denial of his right to a jury trial resulted in a violation of his
constitutional rights and a violation of his right to equal protection under the law. The city argues
that defendants charged with infractions are not entitled to a jury trial and that there is no
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constitutional right to a jury trial for petty offenses carrying a maximum sentence of 6 months or
less. See State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992).
Neb. Rev. Stat. § 25-2705 (Cum. Supp. 2012) states in part, “Either party to any case in
county court, except criminal cases arising under city or village ordinances, traffic infractions,
other infractions, and any matter arising under the Nebraska Probate Code or the Nebraska
Uniform Trust Code, may demand a trial by jury.” The right to a jury trial is protected by the
Nebraska Constitution for serious offenses, that is, an offense punishable by incarceration for
more than 6 months. State v. Cozzens, supra.
Hughes’ request for a jury trial was based on the language in the complaint, specifically
count 1, which stated:
On or about August 11, 2011, . . . Hughes did commence construction [on a building on]
Hastings [Avenue] without drawings or documents, sealed by a licensed architect,
contrary to the ordinances of the City of Hastings, Nebraska, and particularly contrary to
Hastings City Code Section 28-101, 107.1 of the International Building Code and Neb.
Rev. Stat. §81-3401 et. seq.
Hughes asserts that he was charged with a violation of a state statute and that although
the statute is unspecified, it could have been a misdemeanor carrying a possibility of a jail
sentence, therefore entitling him to a jury trial.
Our review of the evidence shows that, although the complaint references “Neb. Rev.
Stat. §81-3401 et. seq.,” the Engineers and Architects Regulation Act, Hughes was not actually
charged with a specific offense under the act and was never subject to the possible penalties
listed within the act. We find that the underlying charge in count 1 of the complaint was a
violation of the Hastings City Code and was, therefore, an infraction.
The evidence shows it was not the city’s intention to prosecute Hughes for a violation of
the Engineers and Architects Regulation Act. Rather, Hughes was to be charged with multiple
city ordinance violations. This conclusion is supported by the language of the complaint, which
states the possible penalty to be levied against Hughes for each count alleged was “$100.00 per
count pursuant to Sections 1-109 and 1-110 of the Hastings City Code. And further relief as
allowed in Chapter 1 of the International Property Maintenance Code.” The journal entry and
order of the county court for Adams County notes that Hughes pled not guilty to each charge and
that each charge was listed as an infraction.
During the arraignment proceedings, the court read each of the charges contained in the
complaint into the record. The court noted that count 1 alleged a violation of a city code, and
although it included the reference to “Neb. Rev. Stat. §81-3401,” the court did not reference any
charges or penalties associated with the Nebraska Revised Statutes. During the same proceeding,
the court stated, based on the complaint, “There’s no possibility of jail. This is not a
misdemeanor, it’s just a city code infraction.” The court stated that it was important for Hughes
to understand the charges and restated that Hughes was charged only with city code infractions,
not misdemeanors, and that there was no possibility of a penalty involving a jail sentence.
We conclude that each count contained in the complaint was an infraction carrying no
possibility of a jail sentence and that therefore, Hughes was not entitled to a jury trial under
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§ 25-2705. Hughes did not have the right to a jury trial, and we affirm the district court’s finding
that there was no clear error on the record in this regard.
3. FAILING TO ALLOW CHALLENGE
TO JURISDICTION
Hughes next contends that the district court erred in affirming the county court’s failure
to allow him to challenge the county court’s jurisdiction prior to his trial because (a) the city
attorney charged him with violation of a Nebraska statute and (b) the certified copies of the code
sections for which he was cited were not on file with the Adams County Court.
(a) City Attorney Charging Violation
of Nebraska Statute
We have determined that, in this case, the mere mention of an act contained in the
Nebraska Revised Statutes, without more, did not amount to an actual charge for violation of a
specific section of that act. Having found that counts 1 through 21 of the complaint alleged only
violations of the Hastings City Code, we need not determine whether a city attorney has
jurisdiction to charge a violation of the Nebraska Revised Statutes. See Svehla v. Beverly
Enterprises, 5 Neb. Ct. App. 765, 567 N.W.2d 582 (1997) (appellate court need not engage in
analysis which is not needed to adjudicate case and controversy before it). We affirm the
findings of the district court.
(b) Certified Copies of Code
Not on File With Court
Hughes also asserts the county court lacked jurisdiction over his case because certified
copies of the code sections for which he was cited were not on file with the Adams County Court
as required by Neb. Rev. Stat. § 25-2703 (Reissue 2008). For this reason, Hughes asserts that he
should not have been prosecuted and that there was not sufficient evidence to sustain his
convictions.
Section 25-2703 sets forth that “no city or village may prosecute complaints for
violations of ordinances unless such city or village has on file with the court a current copy of the
ordinances of such city or village.”
Although this statute does require ordinances to be kept on file with the court, there is no
corresponding requirement for copies of code sections, which is what Hughes is arguing.
National and international codes are not city ordinances and, therefore, are not required to be on
file with the local court according to the language of § 25-2703. Thus, upon our review of the
record, we find no clear error and find this assignment of error to be without merit.
4. RECUSAL OF TRIAL JUDGE
Hughes asserts the county court judge who presided over his trial violated the Nebraska
Code of Judicial Conduct and should have been recused. He asserts that because the trial judge
was the same judge who signed the warrant for the inspection of Hughes’ property, the judge
should have recused himself.
In order to demonstrate that a trial judge should have recused himself or herself, the
moving party must demonstrate that a reasonable person who knew the circumstances of the case
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would question the judge’s impartiality under an objective standard of reasonableness, even
though no actual bias or prejudice was shown. In re Interest of Jacob H. et al., 20 Neb. Ct. App. 680,
831 N.W.2d 347 (2013). In addition, a party seeking to disqualify a judge on the basis of bias or
prejudice bears the heavy burden of overcoming the presumption of judicial impartiality. Id.
At trial, Hughes told the judge that “if you should choose to do the trial, then you would
set yourself up for vicarious trespass because you was [sic] also the one that signed the illegal
inspection warrant of my building.” However, Hughes did not ask the judge to recuse himself,
and when the county court judge specifically asked Hughes if he would prefer a different judge,
Hughes chose not to request one. One may not waive an error, gamble on a favorable result, and,
upon obtaining an unfavorable result, assert the previously waived error. State v. Nadeem, 284
Neb. 513, 822 N.W.2d 372 (2012). Thus, we affirm the district court’s determination that there
was no error in this regard and this assignment of error is without merit.
5. STANDARD FOR PRO SE PARTIES
Hughes asserts that the district court erred in failing to find that the county court did not
err by holding Hughes, a pro se litigant, to a higher standard of courtroom procedure. In
Nebraska, a pro se party is held to the same standard as one who is represented by counsel. State
v. Lindsay, 246 Neb. 101, 517 N.W.2d 102 (1994). Further, upon our review of the record, it is
more than apparent that the trial judge was extremely patient with Hughes and gave Hughes wide
latitude during the trial of this matter. As a result, upon our review of the record, we find this
assignment of error is without merit.
VI. CONCLUSION
Upon our review of the record in this case, we find no clear error and affirm the district
court’s order which affirmed the county court’s order.
AFFIRMED.
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