In this challenge
by Sarpy County, Nebraska, to annexation ordinances enacted by the
City of Gretna, following a remand the district court for Sarpy
County found that the annexation ordinances were valid. Based upon
its de novo review of all issues in this equity action, the Nebraska
Supreme Court concluded that the annexation ordinances are invalid
because the lands they sought to annex are not contiguous or adjacent
to the corporate limits of Gretna, as required by Neb. Rev. Stat.
§ 17-405.01 (Reissue 1997).
County
of Sarpy v. City of Gretna, 273 Neb. 92 (2007)
Supreme
Court Headnotes
Annexation:
- [Ordinances:](Equity.)
An action to determine the validity of an annexation ordinance,
and enjoin its enforcement sounds in equity.
- [Boundaries:]
(Words and Phrases.) Contiguity means that the two connecting
boundaries should be substantially adjacent.
Appeal and
Error.
- On appeal
from an equity action, an appellate court decides factual questions
de novo on the record, and as to questions of both fact and law,
is obligated to reach a conclusion independent of the trial courts
determination. ••• Errors argued, but not assigned,
will not be considered on appeal.
Municipal
Corporations:
- [Annexation:]
- Substantial adjacency between a municipality and an annexed territory
exists when a substantial part of the municipality's boundary is
adjacent to a segment of the boundary of the city or village. (Boundaries.)
A municipal corporation has no power to extend or change its boundaries
otherwise then as provided by constitutional enactment or as empowered
by the Legislature by statute to do. (Statutes.) The power
delegated to municipal corporations to annex territory is to be
exercised in strict accord with the statute conferring it. (Words
and Phrases.)The terms contiguous and adjacent are used synonymously
and interchangeably, and if the territory sought to be annexed is
not contiguous to the municipality, the proceedings are without
legal effect.
Date Filed and Case No.: February 23, 2007. No. S- 05-748.
Court Appealed
From: District Court for Sarpy County: George a Thompson, Judge.
Attorneys
for the Appeal: Tamra L. W. Madsen and Michael A. Smith for
County of Sarpy, Nebraska, appellant. John K. Green and J. Patrick
Green for City of Gretna, Nebraska, appellee.
Justices:
Heavican, C. J., Wright, Connolly, Gerrard, Stephan, McCormack,
and Miller-lerman, JJ.
Authored
By: Stephan, J.
Summary:
Gretna, a city of the second class (located entirely within Sarpy
County) adopted ordinances to annex certain lands. Sarpy County
claimed that the annexations were illegal, null, and void because
the lands in question were neither suburban or suburban in character
nor contiguous or adjacent to the corporate limits of Gretna. Sarpy
County further alleged that by enacting the ordinances, Gretna sought
to unlawfully extend its extraterritorial zoning jurisdiction and
usurp the zoning and planning jurisdiction of the county. Sarpy
County alleged that it was adequately serving and maintaining the
lands which Gretna sought to annex and prayed for an order declaring
the annexation ordinances unlawful and void and enjoining their
enforcement and for an accounting of various fees collected from
the areas of expanded extraterritorial zoning jurisdiction resulting
from the annexation ordinances. The district court dismissed, finding
that the annexed areas were portions of State highways and right-of-ways
and that the areas adjacent to such roadways were urban and suburban
in nature. The court concluded that Gretna had a valid City interest
in the annexation to govern future land use within its zoning jurisdiction.
Sarpy County
appealed to the Nebraska Supreme Court and their sole assignment
of error was that the district court erred in entering a judgment
in favor of Gretna because the statutory requirements of adjacency
and contiguity of lands to be annexed to a city of the second class
were not met.
Are the two
parcels of land which Gretna sought to annex contiguous or adjacent
to its existing corporate limits? The Court noted that a municipal
corporation such as Gretna has no power to extend or change its
boundaries otherwise than as provided by constitutional enactment
or as it is empowered by the Legislature by statute to do. Nebraska
cities of the second class are authorized to annex, by ordinance,
Any contiguous or adjacent lands, lots, tracts, streets, or highways
as are urban or suburban in character, and in such direction as
may be deemed proper. § 17-405.01(1). Here, the district court
did not specifically find that the tracts in question were contiguous
or adjacent to Gretna's corporate limits, but its general finding
in favor of Gretna necessarily implied a determination that this
statutory requirement was met. As applied to annexation of streets
or roads projecting beyond the limits of a municipality, the Court
reminded that contiguous has been construed to mean contiguous in
the sense of adjacent and parallel to the existing municipal limits.
The invalidity of a strip annexation is not based upon the existence
of a larger tract at the distal end of the strip, but, rather, upon
the lack of substantial adjacency where the proximal end meets the
corporate limits of the city wrote the Court. Here, the connecting
point consisted merely of the width of the highway right-of-way
where it meets the municipal boundary. While the shape of a tract
does not determine whether it can be lawfully annexed, the lack
of substantial adjacency to an existing corporate boundary precludes
annexation under § 17-405.01" they ruled.
"It is
apparent from the record that Gretna attempted these annexations
for the purpose of controlling future growth by enlarging its zoning
jurisdiction, which by law extends 1 mile beyond its corporate limits.
See Neb. Rev. Stat. § 17-1001 (Cum. Supp. 2006). While a city
may have legitimate reasons for using its annexation power to achieve
planning and land use control objectives, it must nevertheless exercise
that power in strict compliance with the statute by which it is
conferred." The Court concluded that the annexations at issue
here were invalid because they did not meet the contiguity or adjacency
requirement of § 17-405.01. REVERSED AND REMANDED WITH DIRECTIONS.
In this habeas
corpus action, the Nebraska Supreme Court determines that, based
on long-established Nebraska law, that while petitioner (who was
serving a sentence for drug distribution) was lawfully free on bond,
he was not serving his sentence, and that the time he spent free
should not be credited against his maximum sentence for purposes
of determining his release date.
Tyler
v. Houston, 273 Neb. 100 (2007)
Supreme
Court Headnotes
Habeas Corpus.
- Habeas corpus
is a special civil proceeding providing a summary remedy to persons
illegally detained. ••• A writ of habeas corpus is
a remedy which is constitutionally available in a proceeding
to challenge and test the legality of a person's detention, imprisonment,
or custodial deprivation of liberty. ••• A writ of
habeas corpus is available only when the release of the petitioner
from the deprivation of liberty being attacked will follow as a
result of a decision in the petitioner's favor.
- [Proof.]
Habeas corpus requires the showing of legal cause, that is, that
a person is detained illegally and is entitled to the benefits of
the writ.
- [Prisoners:]
(Appeal and Error.) Neb. Rev. Stat. § 29-2823 (Reissue
1995) is intended to balance the interests of the State and the
prisoner in a habeas action by allowing the prisoner to ask for
immediate release, yet permitting the State to effectively seek
appellate review of a trial court's decision to grant the writ.
Criminal
Law:
- [Sentences.]
At common law, a convicted person erroneously at liberty was required,
when the error was discovered, to serve the full sentence imposed.
Sentences:
- [Bail Bond:]
(Time.) The doctrine of credit for time erroneously at liberty
is not applicable to a release on bail pursuant to Neb. Rev. Stat.
§ 29-2823 (Reissue 1995).
Bail Bond.
- Admission
to bail is regarded as a release from custody.
Date Filed
and Case No.: February 23, 2007. No. S-07-101.
Attorneys
for the Appeal: James R. Mowbray and Jerry L. Soucie for Billy
R. Tyler, petitioner. Jon Bruning and Linda L. Willard for Robert
P. Houston, Director, Nebraska Department of Correctional Services,
respondent.
Summary:
The petitioner in this original action for writ of habeas corpus,
Billy R. Tyler, is an inmate committed to the custody of the Nebraska
Department of Correctional Services (the Department). Tyler was
convicted in the Douglas County District Court of three counts of
delivery of a controlled substance and sentenced to 7 to 10 years'
imprisonment on each count, with the sentences to be served concurrently.
Tyler was to receive credit for 80 days' time served. The sentences
were imposed on 02/09/96. During the course of his imprisonment,
Tyler forfeited all of his "good time" credit. However,
Tyler challenged the forfeiture, and on 07/01/03, the Johnson County
District Court entered an order granting Tyler's pro se petition
for writ of habeas corpus, on the basis that Tyler's good time had
been improperly forfeited. 07/11/03 Tyler was released on bond pursuant
to an order of the district court. The State appealed.
On 11/21/03
the Nebraska Supreme Court decided an appeal from a similar challenge
raised by another inmate, and brought the reasoning of that decision
to the case at hand. The Court rejected the district court's reasoning
and summarily reversed the judgment and remanded the cause to the
district court for further consideration. The mandate was issued
on 03/26/04 and was spread on the record of the Johnson County District
Court on 03/29/04. Tyler was ordered to surrender himself to the
Department but failed to appear. On November 7, Tyler was arrested,
and on November 8, he was reincarcerated by the Department.
After filing
habeas petitions in Lancaster and Douglas counties, through his
newly appointed counsel, Tyler filed an application with the Nebraska
Supremes Court for leave to commence an original action for writ
of habeas corpus. Because of the appeals pending from the prior
pro se motions, the district court in neither Douglas nor Lancaster
County had jurisdiction to consider Tyler's claim for immediate
release and the Court granted Tyler's application.
Issue: Whether
or Not the Time That Petitioner Was Free on Bond, Pursuant to an
Order of the District Court Granting a Writ of Habeas Corpus, Should
Be Credited Against the Sentence That Petitioner Was Required to
Complete after the District Court's Order Was Reversed on Appeal?
The Court said that the issue in this original action for writ of
habeas corpus is whether the time that Tyler was free on bond, pursuant
to an order of the district court granting a writ of habeas corpus,
should be credited against the sentence that Tyler was required
to complete after the district court's order was reversed on appeal.
The Court reasoned that based on long-established Nebraska law,
that while Tyler was lawfully free on bond, he was not serving his
sentence, and that the time he spent free should not be credited
against his maximum sentence for purposes of determining his release
date. "The equitable doctrine of credit for time erroneously
at liberty is not applicable to these circumstances" wrote
the Court. Tyler's petition for writ of habeas corpus was denied.
WRIT OF HABEAS CORPUS DENIED.
Court Appealed
From: Petition for further review from the Nebraska Court of
Appeals, Irwin, Moore, and Cassel, Judges, on appeal thereto from
the District Court for Douglas County, Patricia A. Lamberty, Judge.
Attorneys
for the Appeal: Stefanie A. Martinez and James Walter Crampton
for Gary S. Muse, appellant. Jon Bruning, Attorney General, and
James D. Smith for State of Nebraska, appellee.
Summary:
In State v. Muse, 15 Neb. App. 13, 721 N.W.2d 661 (2006)
an amended information was amended a second time just before trial
and thereafter recorded in a manner outside of the norm in criminal
proceedings (i.e. it was not "file stamped.") The Nebraska
Court of Appeals affirmed, finding that the the district court had
jurisdiction under the "presumption of regularity" in
the proceedings. Judge Irwin dissented and said that the record
presented on appeal failed to demonstrate that the operative information
was ever properly filed before Muse's trial was held. Such a failure
created a jurisdictional defect which made the trial court's convictions
and sentences void. Judge Irwin called it an absurd result, allowing
convictions on the basis of an information which, as far as could
be affirmatively determined, may never have been filed and was apparently
not served on the defendant until the final day of a 3-day trial.
The dissent also questioned what effect such treatment of an information
might have on speedy trial questions. The Nebraska Supreme Court
took up the case on a petition for further review.
Does an information
need to be "file stamped" in order to be filed? The
Court was not persuaded by the concerns raised by Judge Irwin's
dissent, which cited State v. Baker, No. A-00-177, 2001 WL
221557 (Neb. App. Feb. 6, 2001) (not designated for permanent publication),
for the proposition that "the relevant information should not
be considered properly filed for purposes of speedy trial calculations
until it was file stamped." Muse, 15 Neb. App. at 31,
721 N.W2d at 675 (Irwin, J., dissenting). Judge Irwin thus concluded
that the lack of a file stamp on the second amended information
indicated the information was never properly filed and the district
court lacked jurisdiction. The Court wrote that in Baker, although
the information was file stamped, the defendant contended the information
had actually been filed before the date reflected on the stamp.
In its opinion, the Court of Appeals simply concluded there was
insufficient evidence in the record to suggest that the information
was filed on an earlier date. As such, the Court of Appeals determined
the file-stamped date controlled.
Conclusion:
"While we encourage the practice of using file stamps, we do
not read Baker as requiring that an information be file stamped
in order to be filed. As such, we affirm the decision of the Court
of Appeals" said the Court. AFFIRMED.
