Nebraska Revised Statute 24-1106
Chapter 24 Section 1106
See note regarding referendum petition following the source at the end of the section. Jurisdiction; direct review by Supreme Court; when; removal of case.
(1) In cases which were appealable to the Supreme Court before September 6, 1991, the appeal, if taken, shall be to the Court of Appeals except in cases in which life imprisonment has been imposed and cases involving the constitutionality of a statute.
(2) Any party to a case appealed to the Court of Appeals may file a petition in the Supreme Court to bypass the review by the Court of Appeals and for direct review by the Supreme Court. The procedure and time for filing the petition shall be as provided by rules of the Supreme Court. In deciding whether to grant the petition, the Supreme Court may consider one or more of the following factors:
(a) Whether the case involves a question of first impression or presents a novel legal question;
(b) Whether the case involves a question of state or federal constitutional interpretation;
(c) Whether the case raises a question of law regarding the validity of a statute;
(d) Whether the case involves issues upon which there is an inconsistency in the decisions of the Court of Appeals or of the Supreme Court; and
(e) Whether the case is one of significant public interest.
When a petition for direct review is granted, the case shall be docketed for hearing before the Supreme Court.
(3) The Supreme Court shall by rule provide for the removal of a case from the Court of Appeals to the Supreme Court for decision by the Supreme Court at any time before a final decision has been made on the case by the Court of Appeals. The removal may be on the recommendation of the Court of Appeals or on motion of the Supreme Court. Cases may be removed from the Court of Appeals for decision by the Supreme Court for any one or more of the reasons set forth in subsection (2) of this section or in order to regulate the caseload existing in either the Court of Appeals or the Supreme Court. The Chief Judge of the Court of Appeals and the Chief Justice of the Supreme Court shall regularly inform each other of the number and nature of cases docketed in the respective court.
- Laws 1991, LB 732, § 6;
- Laws 2015, LB268, § 3.
- Note: Section 24-1106 was amended by Laws 2015, LB 268, section 3. According to Article III, section 3, of the Constitution of Nebraska, the provisions of LB 268 have been suspended due to the certification by the Secretary of State of sufficient signatures on referendum petitions to suspend the taking effect of such act until the same has been approved by the electors of the state. The question will be submitted to the voters at the November 2016 general election. The prior version of section 24-1106 is found in the 2008 Reissue of Volume 2 of the Revised Statutes of Nebraska.
Subsection (1) of this section does not require that all constitutional arguments, no matter how insubstantial, bypass review by the Court of Appeals. For the constitutionality of a statute to be genuinely "involved" in an appeal, the constitutional issue must be real and substantial; not merely colorable. For a constitutional claim to be real and substantial, the contention must disclose a contested matter of right, which presents a legitimate question involving some fair doubt and reasonable room for disagreement. State v. Nelson, 274 Neb. 304, 739 N.W.2d 199 (2007).
The Nebraska Court of Appeals may determine the constitutionality of a municipal ordinance. State v. Ruisi, 9 Neb. App. 435, 616 N.W.2d 19 (2000).
The Nebraska Court of Appeals has jurisdiction to consider the constitutionality of a city ordinance. State v. Champoux, 5 Neb. App. 68, 555 N.W.2d 69 (1996).
While the Nebraska Court of Appeals does not have jurisdiction to determine the constitutionality of a statute, the court may, when necessary to the decision in a case, determine whether a constitutional question has properly been raised. Bartunek v. Geo. A. Hormel & Co., 2 Neb. App. 598, 513 N.W.2d 545 (1994).