State v. Ruffin

VI. CONCLUSION
We determine that an arbitration order which directs the
parties to arbitrate their dispute and stays the underlying
judicial action is a final, appealable order in a special pro-
ceeding under the second category of § 25-1902. We deter-
mine that § 25-2602.01(f)(4), which precludes provisions to
arbitrate future controversies in insurance contracts, is not
preempted by the FAA. Under the McCarran-Ferguson Act,
§ 25-2602.01(f)(4) regulates the business of insurance and
reverse preempts the FAA. But § 25-2602.01(f)(4) is pre-
empted by the FCIA and its implementing regulations, which
require arbitration. The McCarran-Ferguson Act does not apply
because the FCIA specifically relates to the business of insur-
ance. Finally, we conclude that the arbitration provision in
each crop insurance policy requires the parties to arbitrate
disputes over adjustment actions. The district court did not err
in ordering arbitration.
A ffirmed.
STATe v. rUFFIN 	611
Cite as 280 Neb. 611
StAte of NebrASkA, Appellee , v. lAmoNt ruffiN,
AlSo kNowN AS lAmoNt rolANd, AppellANt.
789 N.W.2d 19
Filed September 17, 2010. 	No. S-09-972.
1. Judgments: Appeal and Error. When dispositive issues on appeal present ques-
tions of law, an appellate court has an obligation to reach an independent conclu-
sion irrespective of the decision of the court below.
2. Jurisdiction: Affidavits: Fees: Appeal and Error. A poverty affidavit serves as
a substitute for the docket fee otherwise required upon appeal, and an in forma
pauperis appeal is perfected when the appellant timely files a notice of appeal and
a proper affidavit of poverty.
3. Affidavits: Good Cause: Appeal and Error. Generally, in the absence of good
cause evident in the record, it is necessary for a party appealing to personally sign
the affidavit in support of her or his motion to proceed in forma pauperis.
Petition for further review from the Court of Appeals, irwiN,
SieverS, and moore, Judges, on appeal thereto from the District
Court for Buffalo County, JohN p. iceNogle, Judge. Judgment
of Court of Appeals affirmed.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

Mitchel L. Greenwall, of Yeagley, Swanson & Murray,
L.L.C., for appellant.
Jon Bruning, Attorney General, and Kimberly A. Klein for
appellee.
wright, coNNolly, gerrArd, StephAN, mccormAck , and
miller-lermAN, JJ.
miller-lermAN, J.
NATUre OF CASe
The Nebraska Court of Appeals dismissed the appeal of
Lamont ruffin, also known as Lamont roland, for lack of
jurisdiction. ruffin filed a petition for further review, which
we granted. We ordered the case submitted without oral argu-
ment under Neb. Ct. r. App. P. § 2-111(B)(1) (rev. 2008). We
conclude that because the poverty affidavit filed in this appeal
was signed by his attorney rather than by ruffin and good
cause for not signing the poverty affidavit is not evident in
the record, the appellate courts were not vested with jurisdic-
tion over this appeal. On further review, we conclude that the
Court of Appeals’ ruling which dismissed the appeal was cor-
rect and consistent with State v. Dallmann, 260 Neb. 937, 621
N.W.2d 86 (2000). We therefore affirm the order of the Court
of Appeals which dismissed the appeal.
STATeMeNT OF FACTS
ruffin was convicted in 2004 of first degree sexual assault
and was sentenced to imprisonment for 18 to 40 years. ruffin’s
conviction and sentence were affirmed by the Court of Appeals
in 2004. See State v. Ruffin, No. A-04-313, 2004 WL 2792466
(Neb. App. Dec. 7, 2004) (not designated for permanent pub-
lication). ruffin filed a motion for postconviction relief on
December 31, 2008. The district court for Buffalo County
denied the motion on September 3, 2009, without an eviden-
tiary hearing. It is the postconviction action which gives rise to
the current case.
On October 1, 2009, ruffin filed a notice of intent to appeal
the denial of his motion for postconviction relief. On that day,
he also filed in the district court an application to proceed in
612 	280 NeBrASKA rePOrTS

forma pauperis and a poverty affidavit that was signed by his
attorney. On October 2, the district court granted the applica-
tion and ordered that ruffin be allowed to proceed in forma
pauperis.
Following a jurisdictional review, the Court of Appeals
issued an order to show cause why ruffin’s appeal should not
be dismissed for lack of jurisdiction. The Court of Appeals
noted in the order that although ruffin timely filed his notice
of appeal, the poverty affidavit, filed in lieu of the statutory
docket fee, was signed by ruffin’s attorney rather than by
ruffin himself. The Court of Appeals cited State v. Stuart,
12 Neb. App. 283, 671 N.W.2d 239 (2003), and In re Interest
of T.W. et al., 234 Neb. 966, 453 N.W.2d 436 (1990), for the
proposition that absent good cause evident in the record, a pov-
erty affidavit signed by an appellant’s counsel is not sufficient
to vest an appellate court with jurisdiction.
In his response to the show cause order in which he asserted
that the Court of Appeals had jurisdiction, ruffin relied on
Dallmann, supra. ruffin argued that if an application to pro-
ceed in forma pauperis on appeal has been filed and granted by
the trial court, an appellate court acquires jurisdiction when the
notice of appeal is filed regardless of who signed the poverty
affidavit. ruffin also asserted that because he was incarcerated
at the Nebraska State Penitentiary, a maximum security facility,
it was impossible for him to meet with his attorney anywhere
other than at the penitentiary, and therefore good cause existed
to allow his attorney to sign the poverty affidavit.
The Court of Appeals rejected ruffin’s arguments and show-
ing of cause and dismissed the appeal for lack of jurisdiction.
We granted ruffin’s petition for further review and ordered the
case submitted without oral argument.
ASSIGNMeNT OF errOr
ruffin asserts that the Court of Appeals erred by dismissing
his appeal for lack of jurisdiction.
STANDArD OF reVIeW
[1] When dispositive issues on appeal present questions of
law, an appellate court has an obligation to reach an independent
STATe v. rUFFIN 	613
Cite as 280 Neb. 611

conclusion irrespective of the decision of the court below. State
v. Head, 276 Neb. 354, 754 N.W.2d 612 (2008).
ANALYSIS
ruffin claims that the Court of Appeals erred when it con-
cluded that it lacked jurisdiction and dismissed this appeal.
As an initial matter, ruffin notes that he was granted in forma
pauperis status for purposes of appeal in the district court. He
asserts that the Court of Appeals had jurisdiction under the
reasoning in State v. Dallmann, 260 Neb. 937, 621 N.W.2d
86 (2000). ruffin maintains that an appellate court acquires
jurisdiction regardless of the condition of the poverty affidavit
when the notice of appeal is timely filed if the application to
proceed in forma pauperis has been filed and granted by the
trial court. ruffin also asserts that good cause existed as to
why his attorney should have been allowed to sign the poverty
affidavit. ruffin points to the fact that he was incarcerated at
a maximum security facility and that it was therefore impos-
sible for him to meet with his attorney anywhere other than at
the penitentiary. We conclude that ruffin misreads Dallmann
and that under Dallmann and the controlling civil procedure
statutes, and given the absence of good cause, the Court of
Appeals did not err when it dismissed this appeal.
We take this opportunity to discuss the proper reading of
Dallmann. In Dallmann, for reasons explained therein, we
excused the failure of the poverty affidavit to include state-
ments of the nature of the action, defense, or appeal, and the
belief that the affiant is entitled to redress. Dallmann does not
excuse a poverty affidavit which is untimely filed, not properly
notarized, or signed by an attorney rather than a party.
[2] Neb. rev. Stat. § 25-1912 (reissue 2008), applicable to
civil and criminal appeals, generally provides that an appeal
may be taken by filing a notice of appeal and depositing the
required docket fee with the clerk of the district court. We
have noted that a poverty affidavit serves as a substitute for
the docket fee otherwise required upon appeal and that an in
forma pauperis appeal is perfected when the appellant timely
files a notice of appeal and a proper affidavit of poverty.
See In re Interest of Fedalina G., 272 Neb. 314, 721 N.W.2d
614 	280 NeBrASKA rePOrTS

638 (2006). See, generally, Neb. rev. Stat. § 25-2301 et seq.
(reissue 2008).
[3] In In re Interest of T.W. et al., 234 Neb. 966, 453 N.W.2d
436 (1990), we noted that the poverty affidavits filed in the
appeals were not signed by the appellants but instead by their
attorneys. In In re Interest of T.W. et al., we stated that under
§ 25-2301 (reissue 1989), “the impoverished appellant, not her
or his attorney, [must] execute the affidavit which substitutes
for the payment of fees and costs and the posting of security.”
234 Neb. at 967, 453 N.W.2d at 437. We therefore stated that
“an affidavit of poverty executed by a party’s attorney does not
suffice.” Id. In In re Interest of T.W. et al., for reasons in addi-
tion to the statutory requirement, we disapproved the practice
of an attorney’s signing the affidavit, stating:
The practice of an attorney’s filing an affidavit on
behalf of his client asserting the status of that client is not
approved, inasmuch as not only does the affidavit become
hearsay, but it places that attorney in a position of a wit-
ness thus compromising his role as an advocate.
234 Neb. at 967-68, 453 N.W.2d at 437. We therefore stated
in In re Interest of T.W. et al. that “generally, in the absence
of good cause evident in the record, it is necessary for a party
appealing to personally sign the affidavit in support of her or
his motion to proceed in forma pauperis.” 234 Neb. at 968, 453
N.W.2d at 437.
At the time In re Interest of T.W. et al. was decided,
§ 25-2301, upon which we relied, provided as follows:
Any court of the State of Nebraska, except the Nebraska
Workers’ Compensation Court, or of any county shall
authorize the commencement, prosecution, or defense
of any suit, action, or proceeding, civil or criminal, or
appeal therein, without prepayment of fees and costs or
security, by a person who makes an affidavit that he or
she is unable to pay such costs or give security. Such
affidavit shall state the nature of the action, defense, or
appeal and affiant’s belief that he or she is entitled to
redress. An appeal may not be taken in forma pauperis
if the trial court certified in writing that it is not taken in
good faith.
STATe v. rUFFIN 	615
Cite as 280 Neb. 611

After an amendment in 1999, the relevant language was
transferred to § 25-2301.01 and provides:
Any county or state court, except the Nebraska Workers’
Compensation Court, may authorize the commencement,
prosecution, defense, or appeal therein, of a civil or crimi-
nal case in forma pauperis. An application to proceed in
forma pauperis shall include an affidavit stating that the
affiant is unable to pay the fees and costs or give security
required to proceed with the case, the nature of the action,
defense, or appeal, and the affiant’s belief that he or she
is entitled to redress.
In the earlier version of § 25-2301, applicable to civil and
criminal appeals, the language relative to the requirement that
the party execute the affidavit read that “a person . . . makes
an affidavit that he or she is unable to pay such costs or give
security.” Section 25-2301.01, applicable to civil and criminal
appeals, now requires the filing of “an affidavit stating that
the affiant is unable to pay the fees and costs.” It is obvious
that it is the financial condition of the party as affiant and
not the financial wherewithal of the attorney that is relevant.
Because the current statute refers to “the affiant” making state-
ments regarding his or her financial condition, it is clear that
§ 25-2301.01 still requires that the party, rather than the party’s
attorney, sign the affidavit.
Contrary to the foregoing statutory analysis, ruffin argues
that based on our decision in State v. Dallmann, 260 Neb. 937,
621 N.W.2d 86 (2000), an appellate court acquires jurisdiction
when the trial court has granted an application for in forma
pauperis status on appeal, regardless of whether there is a defi-
ciency in the poverty affidavit. ruffin misreads Dallmann.
In Dallmann, the appellant signed an affidavit that included
a statement that he was unable to pay the cost of the appeal but
did not include other statements listed in § 25-2301.01, namely,
a statement as to the nature of the action and a statement that
he believed he was entitled to redress. The State challenged
appellate jurisdiction on the basis that the poverty affidavit did
not include the statutorily indicated statements. We rejected the
State’s challenge and held that
if a request to proceed in forma pauperis is granted by
the district court, this court obtains jurisdiction when the
616 	280 NeBrASKA rePOrTS

notice of appeal is timely filed, and any failure of the affi-
davit to state the nature of the action or that the affiant is
entitled to redress under § 25-2301.01 will not divest this
court of jurisdiction.
260 Neb. at 948, 621 N.W.2d at 97. Our decision in Dallmann
referred to the in forma pauperis statutes applicable to civil
and criminal cases. We noted in Dallmann that § 25-2301.02
provides that an application to proceed in forma pauperis shall
be granted unless a timely objection regarding the merits of the
claim of poverty or the merits of the case is made on the basis
that the applicant either has sufficient funds to pay costs, fees,
or security or is asserting legal positions which are frivolous
or malicious. We stated that § 25-2301.02 “makes clear that
challenges to the ability of a defendant to proceed in forma
pauperis are to occur in the district court and that the district
court is charged with the responsibility of granting or denying
the motion to proceed in forma pauperis.” Dallmann, 260 Neb.
at 947, 621 N.W.2d at 96. We further stated:
It is not a function of this court to determine whether an
affidavit to proceed in forma pauperis contains specific
language stating the nature of the case and that the affiant
is entitled to redress. These determinations must be made
by the district court. Thus, any objection that the poverty
affidavit fails to state the nature of the action, defense, or
appeal, and the belief that the affiant is entitled to redress,
must also be raised in the district court.
Id. at 948, 621 N.W.2d at 96-97. For completeness, we now
observe that § 25-2301.02 permits an appeal to be reviewed de
novo on the record where a party objects to a ruling by the trial
court denying in forma pauperis status.
A reading of the opinion in Dallmann shows that it was
concerned with a poverty affidavit which failed to include
statements of the nature of the action, defense, or appeal, and
the belief that the affiant is entitled to redress. These purported
failures raised for the first time on appeal were overlooked
by this court for the reasons indicated in Dallmann. ruffin
attempts to expand the holding in Dallmann to forgive any
deficiency in the poverty affidavit where the trial court has
granted an application to proceed in forma pauperis. ruffin’s
reading of Dallmann is too broad.
STATe v. rUFFIN 	617
Cite as 280 Neb. 611

In that case, this court noted that we had “never addressed
whether all the exact requirements of the [in forma pauperis
statutes] had to be met in order to vest this court with jurisdic-
tion over an appeal.” State v. Dallmann, 260 Neb. 937, 946,
621 N.W.2d 86, 95 (2000). In Dallmann, we recognized that
in prior cases, we had “dismissed for lack of jurisdiction when
the appellant failed to properly sign the poverty affidavit under
oath,” and we did not disapprove of these cases. 260 Neb.
at 946, 621 N.W.2d at 96. See, In re Interest of T.W. et al.,
234 Neb. 966, 453 N.W.2d 436 (1990); State v. Hunter, 234
Neb. 567, 451 N.W.2d 922 (1990); In re Interest of K.D.B.,
233 Neb. 371, 445 N.W.2d 620 (1989). With this recognition
in mind, and in view of the statutory role played by the trial
court in assessing the merits of the claim of poverty upon an
objection raised under § 25-2301.02, we circumscribed our
holding in Dallmann. We limited the forgiveness in Dallmann
to the failure to include in the poverty affidavit statements
of the nature of the action, defense, or appeal, and the belief
that the affiant is entitled to redress in those cases in which
in forma pauperis status had been granted by the trial court
without objection.
We note that Dallmann did not change other requirements
related to the filing of poverty affidavits by persons seeking in
forma pauperis status, such as the requirement that “a poverty
affidavit must show on its face, by the certificate of an autho-
rized officer before whom it is taken, evidence that it was duly
sworn to by the party making the affidavit,” see In re Interest of
K.D.B., 233 Neb. at 372, 445 N.W.2d at 622, and the require-
ment that in order to vest the appellate courts with jurisdiction,
a poverty affidavit must be filed within the time that the docket
fee would otherwise have been required to be deposited, see
State v. Haase, 247 Neb. 817, 530 N.W.2d 617 (1995). An affi-
davit is a document with certain required characteristics, and
we believe that the Legislature’s use of the word “affidavit”
in the in forma pauperis statutes was deliberate and that the
“affidavit” in § 25-2301.01 continues to require the hallmarks
of an affidavit such as the signature of the affiant and a certifi-
cate of an authorized officer. Dallmann is thus limited and does
not change the requirement that the poverty affidavit must be
618 	280 NeBrASKA rePOrTS

properly signed under oath by the party, rather than the party’s
attorney, in order to serve as a substitute for the payment of
the docket fee and to vest an appellate court with jurisdiction.
See State v. Stuart, 12 Neb. App. 283, 671 N.W.2d 239 (2003).
ruffin did not sign the poverty affidavit, and such failure is not
excused under Dallmann.
Because Dallmann did not change the requirement that the
appellant rather than the appellant’s attorney must sign the
poverty affidavit, we must consider whether good cause is evi-
dent in the record as to why ruffin could not sign the affidavit
and it was necessary that his attorney sign it. ruffin cites no
authority for his argument that his confinement to a maximum
security prison was good cause for the poverty affidavit to be
signed by his attorney. Our reasoning relative to good cause
is reflected in In re Interest of T.W. et al., in which we con-
cluded therein that “[m]ere absence from the jurisdiction of
the court from which the appeal is being taken, without more,
does not show good cause for a party’s failure to sign a poverty
affidavit.” 234 Neb. at 968, 453 N.W.2d at 438. We recognize
that incarceration makes it inconvenient for ruffin’s attorney
to obtain ruffin’s signature on the poverty affidavit, but we
believe that such circumstance does not make it “an incredible,
if not impossible, burden,” as ruffin asserts in his memoran-
dum brief filed with this court. Good cause is not evident in
the record, and we cannot agree with ruffin that it was neces-
sary that his poverty affidavit be signed by his attorney rather
than by ruffin himself. The Court of Appeals did not err when
it determined that ruffin failed to show good cause why his
appeal should not be dismissed for lack of jurisdiction.
CONCLUSION
Notwithstanding the fact that the trial court granted in forma
pauperis status for purposes of appeal, State v. Dallmann,
260 Neb. 937, 621 N.W.2d 86 (2000), does not eliminate
the requirement that the appellant, rather than the appellant’s
attorney, must sign the poverty affidavit filed in support of in
forma pauperis status on appeal. In this case, ruffin did not
sign the affidavit and ruffin did not show good cause evident
in the record why it was necessary that the poverty affidavit
STATe v. rUFFIN 	619
Cite as 280 Neb. 611

be signed by ruffin’s attorney. Jurisdiction did not vest in the
appellate courts. Therefore, on further review, we affirm the
order of the Court of Appeals which dismissed this appeal for
lack of jurisdiction.
A ffirmed.
heAvicAN, C.J., not participating.
StAte of NebrASkA ex rel . couNSel for diScipliNe
of the NebrASkA Supreme court, relAtor , v.
thomAS J. liNdmeier , reSpoNdeNt.
788 N.W.2d 555
Filed September 17, 2010. 	No. S-09-1079.
Original action. Judgment of suspension.
Kent 	L. 	Frobish, Assistant 	Counsel 	for 	Discipline, 	for
relator.
David J. Cullan for respondent.
heAvicAN, 	c.J., 	wright, 	coNNolly, 	gerrArd, 	StephAN,
mccormAck , and miller-lermAN, JJ.
per curiAm.
INTrODUCTION
respondent, Thomas J. Lindmeier, was admitted to the
practice of law in the State of Nebraska on July 2, 1976. At all
relevant times, he was engaged in the private practice of law
in Omaha, Nebraska. On October 30, 2009, the Counsel for
Discipline of the Nebraska Supreme Court filed formal charges
consisting of two counts against respondent. In the first count,
it was alleged that by his conduct in July and August 2008 with
respect to a client matter, respondent violated his oath of office
as an attorney and various provisions of the Nebraska rules of
Professional Conduct. In the second count, it was alleged that
by his conduct in August and September 2008 with respect to
a different client matter, respondent violated his oath of office
as an attorney and two provisions of the Nebraska rules of
620 	280 NeBrASKA rePOrTS