In re Interest of A.M.

C ross -A ppeAl
Mark and Tammy, who were given leave to intervene in the
juvenile proceedings as Meridian’s maternal grandparents, have
filed a cross-appeal in which they contend that the juvenile
court erred in not placing Meridian with Jeffrey and Karen.
However, any interest or right which Mark and Tammy may
have had by virtue of their biological relationship to Meridian
ceased to exist when the parental rights of their daughter,
Tiffani, were terminated.35 Accordingly, they lack standing to
cross-appeal.
CONCLUSION
For the foregoing reasons, we conclude that the intervenors-
appellants and cross-appellants lack standing, and we therefore
dismiss the appeal and the cross-appeal.
A ppeAl dismissed.
Wright, J., not participating.
in re interest of A.m., Jr ., Alleged to be
A dAngerous sex offender .
A.m., Jr ., AppellAnt, v. mentAl heAlth boArd
of the 11th JudiCiAl distriCt, Appellee .
797 N.W.2d 233
Filed May 13, 2011. 	No. S-10-320.
1. Mental Health: Appeal and Error. The district court reviews the determination
of a mental health board de novo on the record.
2. Judgments: Appeal and Error. In reviewing a district court’s judgment, an
appellate court will affirm unless it finds, as a matter of law, that clear and con-
vincing evidence does not support the judgment.
3. Constitutional Law: Statutes: Appeal and Error. Whether a statute is consti-
tutional presents a question of law, which the Nebraska Supreme Court resolves
independently of the lower court’s determination.
4. Due Process. Due process requires a neutral, or unbiased, adjudicatory
decisionmaker.
35 See, In re Interest of Destiny S., supra note 12; In re Interest of Kayle C. &
Kylee C., supra note 12; In re Interest of Ditter, 212 Neb. 855, 326 N.W.2d
675 (1982).
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Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

5. Administrative Law: Presumptions. Administrative adjudicators serve with a
presumption of honesty and integrity.
6. Administrative Law: Recusal: Presumptions: Proof. A party seeking to dis-
qualify an adjudicator because of bias or prejudice bears the heavy burden of
overcoming the presumption of impartiality.
7. Administrative Law. Factors that may indicate partiality or bias of an adjudi-
cator are a pecuniary interest in the outcome of the proceedings, a familial or
adversarial relationship with one of the parties, and a failure by the adjudicator to
disclose the suspect relationship.
8. Administrative Law: Recusal: Presumptions. An adjudicator should not hear
a case when a litigant demonstrates that a reasonable person who knew the cir-
cumstances of the case would question the adjudicator’s impartiality under an
objective standard of reasonableness, even though no actual bias or prejudice
is shown.
9. Administrative Law: Due Process. Although due process requires disqualifica-
tion when the administrative adjudicator has actually prejudged the precise facts
at issue, due process does not require the disqualification of one who has merely
been exposed to or investigated the facts at issue.
10. Statutes: Legislature: Intent. In construing a statute, a court determines and
gives effect to the legislative intent behind the enactment.
11. Statutes: Appeal and Error. Absent a statutory indication to the contrary, an
appellate court gives words in a statute their ordinary meaning.
12. Constitutional Law: Equal Protection. The Nebraska and federal equal
protection Clauses grant the same level of protection. both require the State to
treat similarly situated people alike.
13. Constitutional Law: Statutes. The 14th Amendment does not forbid statutes and
statutory changes to have a beginning and thus to discriminate between the rights
of an earlier and later time.
14. Constitutional Law: Statutes: Proof. The burden of establishing the unconstitu-
tionality of a statute is on the one attacking its validity.
15. Statutes: Special Legislation. A legislative act constitutes special legislation if
(1) it creates an arbitrary and unreasonable method of classification or (2) it cre-
ates a permanently closed class.
16. Constitutional Law: Statutes: Special Legislation. When the Legislature con-
fers privileges on a class arbitrarily selected from many who are standing in the
same relation to the privileges, without reasonable distinction or substantial dif-
ference, then the statute in question has resulted in the kind of improper discrimi-
nation prohibited by the Nebraska Constitution.
17. Special Legislation. Classifications for the purpose of legislation must be real
and not illusive; they cannot be based on distinctions without a substantial
difference.
18. Constitutional Law: Special Legislation. The general test of constitutionality
for prohibitions against special legislation is reasonableness of classification and
uniformity of operation.
19. ____: ____. Classification is proper if the special class has some reasonable dis-
tinction from other subjects of a like general character, which distinction bears
IN re INTereST OF A.M. 	483
Cite as 281 Neb. 482

some reasonable relation to the legitimate objectives and purposes of the legisla-
tion. The question is always whether the things or persons classified by the act
form by themselves a proper and legitimate class with reference to the purpose of
the act.
20. Constitutional Law. Nebraska’s separation of powers clause prohibits the
three governmental branches from exercising the duties and prerogatives of
another branch.
21. ____. The separation of powers clause prevents a branch from delegating its own
duties or prerogatives except as the constitution directs or permits.
22. Administrative Law. Administrative agencies are capable of exercising quasi-
judicial functions.
23. Criminal Law: Statutes: Legislature. The prohibition against bills of attainder
prohibits trials by the Legislature, and it forbids the imposition of punishment by
the Legislature on specific persons.
24. Criminal Law: Statutes: Words and Phrases. A bill of attainder is a legislative
act that applies to named individuals or to easily ascertained members of a group
in a way that inflicts punishment on them without a judicial trial.
25. Criminal Law: Statutes. To constitute a bill of attainder, the law must (1)
specify the affected persons, (2) inflict punishment, and (3) lack a judicial trial.
26. Constitutional Law: Statutes: Proof. Only the clearest proof suffices to estab-
lish the unconstitutionality of a statute as a bill of attainder.
27. Constitutional Law. The protection against ex post facto laws is the same under
the Nebraska and federal Constitutions.
28. Constitutional Law: Criminal Law: Statutes. Any statute which punishes as a
crime an act previously committed which was innocent when done, which makes
more burdensome the punishment for a crime after its commission, or which
deprives one charged with a crime of any defense available according to law at
the time when the act was committed is prohibited as ex post facto.
29. Constitutional Law: Criminal Law: Other Acts: Time. It is only criminal
punishment that the ex post Facto Clause prohibits. The retroactive application
of civil disabilities and sanctions is permitted.
30. Sentences: Statutes: Intent. To determine whether a statute imposes criminal
punishment or civil sanctions, a court applies the two-pronged intent-effects test.
31. Convicted Sex Offender: Legislature: Intent. The Legislature enacted the Sex
Offender registration Act to establish a civil regulatory scheme to protect the
public from sex offenders.
32. Convicted Sex Offender: Statutes: Sentences. The Sex Offender Commitment
Act does not constitute ex post facto legislation because it is not punitive in
nature.
33. Constitutional Law: Double Jeopardy. The protections of the Double Jeopardy
Clauses of the state and federal Constitutions are coextensive.
34. Statutes: Double Jeopardy. If a statute is not punitive, it does not violate the
Double Jeopardy Clause.
35. Constitutional Law: Criminal Law: Statutes. The void-for-vagueness doctrine
requires that a penal statute define the criminal offense with sufficient definite-
ness that ordinary people can understand what conduct is prohibited and in a
manner that does not encourage arbitrary and discriminatory enforcement.
484 	281 NebrASKA repOrTS

36. Ordinances: Appeal and Error. When evaluating an ordinance for vagueness, an
appellate court does not seek mathematical certainty, but, rather, flexibility and
reasonable breadth.
37. Statutes. A statute will not be deemed vague if it uses ordinary terms which find
adequate interpretation in common usage and understanding.
38. Constitutional Law: Statutes. The void-for-vagueness doctrine applies to civil
as well as criminal statutes.
39. Sentences: Prior Convictions. A court cannot use a void conviction to enhance
punishment for a later offense.
40. Convicted Sex Offender: Sentences. Commitment under Nebraska’s Sex
Offender Commitment Act is a civil restraint that does not enhance punishment.
41. Prior Convictions: Collateral Attack. A defendant cannot collaterally attack his
or her conviction in a separate proceeding for errors stemming from Boykin v.
Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. ed. 2d 274 (1969).
42. Due Process: Trial: Confessions. It is a violation of the Due process Clause to
use a defendant’s involuntary statement against him or her at a criminal trial.
43. Constitutional Law: Miranda Rights. The Fifth Amendment precludes the use
of compelled testimony and goes further by requiring Miranda warnings for some
custodial interrogations.
44. Convicted Sex Offender: Mental Health: Evidence. Under Neb. rev. Stat.
§ 71-955 (reissue 2009), a mental health board in a proceeding under the Sex
Offender Commitment Act cannot consider any evidence that would be inadmis-
sible in a criminal proceeding.
45. Criminal Law: Trial: Confessions: Expert Witnesses. In a criminal trial, the
prosecution cannot use for any purpose a defendant’s involuntary statements or
any evidence that is directly or indirectly derived from them. This includes an
expert’s opinion based on them.
46. Criminal Law: Prior Convictions: Confessions: Evidence. even after convic-
tion, if a person in prison or on probation is compelled to make incriminating
statements, those statements are inadmissible in a later criminal proceeding for
any crime other than the crime for which the person has been convicted.
47. Self-Incrimination: Time. In most contexts, the privilege against self-
incrimination is not self-executing. A person must timely invoke it, or it will
be lost.
48. Presentence Reports. routine presentence interviews, even if the defendant is in
custody, are not normally considered coercive interrogations.
49. Constitutional Law: Self-Incrimination: Probation and Parole. The State
cannot constitutionally carry out a threat to revoke probation for the legitimate
exercise of the Fifth Amendment privilege.
50. Appeal and Error. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues are likely to recur
during further proceedings.
51. Trial: Expert Witnesses. It is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to give his or her
opinion about an issue in question.
52. Rules of Evidence: Mental Health. Mental health boards must apply the rules
of evidence.
IN re INTereST OF A.M. 	485
Cite as 281 Neb. 482

53. Rules of Evidence: Expert Witnesses. Neb. evid. r. 703, Neb. rev. Stat.
§ 27-703 (reissue 2008), permits experts to base their opinions on facts that
are not admissible into evidence if experts in their field reasonably rely on
such facts.
54. Convicted Sex Offender: Due Process. because a hearing under the Sex
Offender Commitment Act may result in a serious deprivation of the defendant’s
interest in liberty, the State’s evidence must be sufficiently reliable to comply
with due process.
55. Convicted Sex Offender: Due Process: Hearsay: Presentence Reports.
because hearsay can permeate the evidence used to commit a sex offender, a
victim’s hearsay statements in police reports or presentence reports must have
special indicia of reliability to satisfy due process.
56. Constitutional Law: Convicted Sex Offender: Trial: Witnesses. Neb. rev.
Stat. § 71-954 (reissue 2009) gives defendants subject to the Sex Offender
Commitment Act the same right to confront and cross-examine witnesses as the
state and federal Constitutions.
Appeal from the District Court for Dawson County: JAmes
e. 	doyle 	iv, 	Judge. 	reversed 	and 	remanded 	for 	further
proceedings.
Derek L. Mitchell, Dawson County public Defender, for
appellant.
Jon bruning, Attorney General, and Stephanie Zeeb Caldwell
for appellee.
heAviCAn, 	C.J., 	Wright, 	C onnolly, 	gerrArd, 	stephAn,
mCC ormACk, and miller-lermAn, JJ.
C onnolly, J.
In the early 1990’s, a jury found A.M. guilty of first degree
sexual assault and the court sentenced him to prison. In 2008,
shortly before his expected release, the State filed a petition
under the Sex Offender Commitment Act (SOCA)1 to have him
declared a dangerous sex offender and committed to inpatient
care. The Mental Health board of the 11th Judicial District
(board) found by clear and convincing evidence that A.M.
was a dangerous sex offender. It further found that neither vol-
untary hospitalization nor other treatment alternatives would
prevent A.M. from reoffending. A.M. appealed to the district
1 Neb. rev. Stat. § 71-1201 et seq. (reissue 2009).
486 	281 NebrASKA repOrTS

court, asserting a litany of constitutional and evidentiary errors.
The district court rejected A.M.’s claims and found that there
was clear and convincing evidence to have A.M. committed.
A.M. appeals.
I. bACKGrOUND
A.M. was convicted of first degree sexual assault in late
1993 or early 1994. The jury found that A.M. was over the age
of 19 and had sex with a 15-year-old girl, violating Neb. rev.
Stat. § 28-319 (reissue 1989). The court sentenced him to 10
to 30 years’ imprisonment.
Shortly before A.M.’s release date of September 10, 2008,
the State filed a petition with the board. The State sought
a hearing to determine whether A.M. was a dangerous sex
offender and whether he should be placed in the custody of the
Department of Health and Human Services (DHHS).
1. preliminAry motions
The parties filed several prehearing procedural motions.
The State sought access to the inmate file that the Department
of Correctional Services kept on A.M. It claimed that the file
was necessary because one of the State’s experts, a private
psychologist, would need it to form an opinion regarding A.M.
The court granted the motion. A.M. objected to the motion
and moved for rehearing. After rehearing, the court affirmed
its order granting the motion. It concluded that the file “may
contain the only recorded evidence of [A.M.’s] recent conduct,
which evidence is germane to a determination of whether the
subject is a dangerous sex offender.”
before the hearings began, A.M. moved in limine to exclude
evidence. A.M. sought to exclude any “statements, deposi-
tions, or any other documents, evidence etc.” coming from a
1992 conviction that was later vacated. The board overruled
this motion.
A.M. also objected to the makeup of the board. A.M. moved
to have the board members recuse themselves for various rea-
sons. A.M. moved to have one board member, Mark Jones,
M.D., recuse himself because Jones was a member of a medi-
cal practice group that had previously treated A.M. A.M. was
unhappy with his treatment and was considering a lawsuit
IN re INTereST OF A.M. 	487
Cite as 281 Neb. 482

against Jones. Jones recused himself. The board assigned an
alternate member to complete the panel.
2. the evidenCe At the boArd’s heAring
The State’s experts performed a psychological evaluation to
determine if A.M. was a dangerous sex offender. A.M. refused
to participate or be interviewed for the evaluation, so the psy-
chologists based their findings on records of A.M.’s conviction
and behavior in prison. The psychologists’ report states that this
is an accepted practice among mental health professionals.
The report noted that while A.M. did initially accept some
general mental health treatment while in prison, he refused to
participate in a program designed specifically for sex offenders.
The report also stated, however, that A.M. had received some
sex offender treatment ordered as a condition of probation for
an earlier sexual assault that A.M. had committed before the
one that sent him to prison. A.M. was dismissed from that pro-
gram in April 1993 for noncompliance with treatment goals,
dishonesty, and failure to complete assignments.
In addition to his 1993 conviction for first degree sexual
assault, A.M. apparently also had a 1992 conviction for third
degree sexual assault, although a court later vacated this con-
viction. This vacated conviction is a flashpoint in this appeal.
Despite irregularities in the plea process, the county court
sentenced A.M. to probation. During court-ordered treatment,
A.M. allegedly admitted to sex offenses for which he was never
charged. During the sex offender treatment, A.M. repeatedly
minimized his actions. A polygraph also indicated that A.M.
was likely not complying with the terms of his probation. The
State’s psychologists relied on these facts from the vacated
conviction in forming their opinions regarding A.M., which
they memorialized in their report and testified to at the com-
mitment hearing. A.M. objected to the State’s experts’ reliance
on these facts in their report and testimony. The board admit-
ted the report into evidence and allowed the experts to base
their opinions on these facts.
The State called three experts to testify at the hearing. The
first was Alan Levinson, psy.D. He stated that he had based
his opinion on facts that he had gathered from witnesses’
488 	281 NebrASKA repOrTS

statements and the presentence investigation. He stated that
these were documents that mental health professionals would
consult in forming their opinions. He went further, however,
and mentioned facts contained in these sources, such as the
number of victims and their gender. Levinson apparently
assigned importance to these facts: While he stated that A.M.
met the statutory criteria for a dangerous sex offender, he con-
ceded that if the underlying facts were not true, A.M. “cannot
be diagnosed with pedophilia.”
Mark Weilage, ph.D., another of the State’s experts, testified
that he relied on mental health records, institutional records,
and the presentence investigation. He testified that mental
health experts normally rely on such documents in forming
their opinions. Weilage testified that it was his opinion that
A.M. was a dangerous sex offender.
The State’s third expert was Mary paine, ph.D. paine testi-
fied that in forming her opinion, she reviewed A.M.’s prison
files, offense reports, mental health records, and the presentence
investigation. paine testified in detail about the earlier incidents
and treatment, including facts from the vacated conviction. At
places, it appears as if paine was reading directly from her
sources. paine opined that A.M. met the criteria to be a danger-
ous sex offender and that inpatient treatment would be neces-
sary. but she conceded that her opinion was contingent on the
underlying facts being true.
A.M. made countless objections to the admission of the
underlying facts. The State argued that it was not offering
the statements for substantive purposes, but, rather, so that the
board could see how the experts arrived at their opinions. The
board allowed the testimony.
The State’s psychologists ultimately concluded that A.M.
met the statutory definition of a dangerous sex offender. The
psychologists stated that A.M. had a “mental health diagno-
sis of pedophilia, Sexually attracted to females, nonexclu-
sive type.” This diagnosis, the psychologists claimed, would
increase his likelihood of engaging in repeat acts of sexual vio-
lence. Also factoring into the psychologists’ opinions were that
A.M. repeatedly minimized his actions, lacked empathy for his
victims, and refused to take responsibility for his actions. The
IN re INTereST OF A.M. 	489
Cite as 281 Neb. 482

psychologists concluded that A.M. would be unlikely to benefit
from attending any type of sex offender treatment.
Unlike the State’s experts, A.M.’s expert, bruce D. Gutnik,
M.D., a registered psychiatrist, interviewed A.M. Gutnik stated
that if the information on which the psychologists based their
opinions were indeed true, then A.M. would meet the defini-
tion of a dangerous sex offender. If, however, A.M. was truth-
ful in his statements to Gutnik, there would be no clinical
diagnosis of pedophilia. Ultimately, Gutnik was ambivalent.
He stated, “I must leave it to the court to determine which
historical information is accurate and therefore, whether or
not [A.M.] meets the criteria of [§] 83-174.01 as a dangerous
sex offender.”
3. the boArd’s deCision
The board found that the State proved by clear and convinc-
ing evidence that A.M. is a dangerous sex offender within the
meaning of Neb. rev. Stat. § 83-174.01(1)(a) (reissue 2008).
Namely, the board found that A.M. suffered from a mental
illness, pedophilia, that makes him likely to engage in repeat
acts of sexual violence and unable to control his criminal
behavior. The board found that inpatient treatment was neces-
sary. The board ordered that A.M. be committed to the custody
of DHHS.
4. distriCt C ourt’s deCision
A.M. appealed to the district court. The court affirmed the
board’s decision. The court rejected A.M.’s claims that the fol-
lowing statutes are unconstitutional because they are bills of
attainder and ex post facto laws: Neb. rev. Stat. §§ 29-4014
(reissue 2008), 71-916 (reissue 2009), 71-1202 (reissue
2009), and 83-174 (reissue 2008). The court also found that
the laws did not violate the special legislation or the equal pro-
tection clauses. Finally, the court found that the laws did not
violate the separation of powers doctrine.
(a) Disposition of procedural Issues
The district court ruled on several procedural issues. It found
that the release of the inmate file was not improper. The court
490 	281 NebrASKA repOrTS

found A.M.’s claim that the board is biased because its mem-
bers are trained by DHHS “is rank speculation” and without
merit. The court rejected an argument that because Sherry
Warner, the Dawson County District Court clerk, sat on the
board, the board was partial and biased. Further, the court
found that Warner was a “layperson” within the meaning of the
statute because she was not a member of one of the listed pro-
fessions in Neb. rev. Stat. § 71-915 (reissue 2009). The court
also found that the chairperson of the board had the authority
to name an alternate member to replace Jones, who had been
recused because he had previously treated A.M.
(b) Disposition of evidentiary Issues
The court concluded that none of A.M.’s evidentiary assign-
ments of error were meritorious. It also found that no law
required the exclusion of statements that A.M. made during
his probation, even if the probation was ordered as punish-
ment for a conviction that was later vacated. The court ruled
that experts could rely on the statements and other evidence
uncovered during A.M.’s probation, even if the evidence would
not be otherwise admissible. The court noted that Nebraska
evidence law allows experts to rely on evidence that is other-
wise inadmissible in forming their opinions. It stated that all
that is required is that the evidence be of a type that experts
typically rely on when forming opinions. The court concluded
that this requirement was satisfied. Finally, the court found that
the evidence was clear and convincing that A.M. was a danger-
ous sex offender and that involuntary commitment was the only
means available that would suffice to prevent further harm to
the public.
II. ASSIGNMeNTS OF errOr
A.M. assigns, restated and renumbered, that the district court
erred in failing to determine the following:
(1) 	The 	makeup 	of 	the 	board 	was 	improper, 	which
deprived A.M. of an impartial adjudicator and thus violated
due process.
(2) Sections 29-4014 and 71-1202 violate the equal protection
Clauses of the state and federal Constitutions.
IN re INTereST OF A.M. 	491
Cite as 281 Neb. 482

(3) Sections 29-4014 and 71-1202 violate the prohibi-
tion against special laws in article III, § 18, of the state
Constitution.
(4) Sections 29-4014 and 71-1202 violate the separation of
powers doctrine of the state Constitution.
(5) Sections 29-4014 and 71-1202 violate the prohibitions
against ex post facto laws, bills of attainder, and double jeop-
ardy found in the state and federal Constitutions.
(6) Section 83-174.01 is unconstitutionally vague.
(7) The board’s determination that A.M. was a danger-
ous sex offender was unsupported by clear and convincing
evidence because the determination was based upon inadmis-
sible evidence.
(8) The State’s argument that A.M. is an untreated sex
offender unconstitutionally shifted the burden of proof from
the State to A.M.
(9) A.M. was denied his First Amendment and due process
rights when a psychologist was allowed to testify regarding
A.M.’s inmate file.
III. STANDArD OF reVIeW
[1,2] The district court reviews the determination of a men-
tal health board de novo on the record.2 In reviewing a district
court’s judgment, we will affirm unless we find, as a matter
of law, that clear and convincing evidence does not support
the judgment.3
[3] Whether a statute is constitutional presents a question
of law, which we resolve independently of the lower court’s
determination.4
IV. ANALYSIS
1. due proCess
A.M. first argues that the board was improperly constituted.
We have grouped these arguments under the umbrella of due
process. A.M. focuses on three points. First, he argues that
2 In re Interest of D.V., 277 Neb. 586, 763 N.W.2d 717 (2009).
3 Id.
4 See In re Interest of J.R., 277 Neb. 362, 762 N.W.2d 305 (2009).
492 	281 NebrASKA repOrTS

§ 71-916 deprives him of due process because it provides that
mental health boards will be trained by DHHS, which is the
agency that maintains custody of sex offenders. Second, A.M.
attacks the participation of Warner, the district court clerk.
A.M. claims that she is not a “layperson” within the mean-
ing of § 71-915. He also claims that she is biased because,
as district court clerk, she may have come across documents
in A.M.’s earlier cases and thus had prior knowledge of the
circumstances. Finally, A.M. argues that the board was not
constituted in accordance with the statutes.
(a) Alleged bias of the board
A.M. argues that because the board acted in a quasi-judicial
fashion, the judiciary, and not DHHS, should train board mem-
bers. He contends that DHHS’ training of board members ren-
ders them biased against defendants. Section 71-916 provides
that DHHS “shall provide appropriate training to members
and alternate members of each mental health board and shall
consult with consumer and family advocacy groups in the
development and presentation of such training.” DHHS is also
required to provide the boards with blank forms for warrants,
certificates, and other documents that the boards need to carry
out their duties.5
[4-8] We have stated that due process requires a neutral, or
unbiased, adjudicatory decisionmaker.6 Such decisionmakers
serve with a presumption of honesty and integrity.7 A party
seeking to disqualify an adjudicator because of bias or preju-
dice bears the heavy burden of overcoming the presumption of
impartiality.8 Factors that may indicate partiality or bias of an
adjudicator are a pecuniary interest in the outcome of the pro-
ceedings, a familial or adversarial relationship with one of the
parties, and a failure by the adjudicator to disclose the suspect
5 § 71-916.
6 See Murray v. Neth, 279 Neb. 947, 783 N.W.2d 424 (2010).
7 See, id.; Barnett v. City of Scottsbluff, 268 Neb. 555, 684 N.W.2d 553
(2004).
8 See Urwiller v. Neth, 263 Neb. 429, 640 N.W.2d 417 (2002).
IN re INTereST OF A.M. 	493
Cite as 281 Neb. 482

relationship.9 An adjudicator should not hear a case when a
litigant demonstrates that a reasonable person who knew the
circumstances of the case would question the adjudicator’s
impartiality under an objective standard of reasonableness,
even though no actual bias or prejudice is shown.10
A.M. does not allege, much less prove, any facts that show
bias. He does not allege that any board member had a pecu-
niary interest in the outcome. Nor does he allege that any
board member who heard the matter had a familial or adver-
sarial relationship. And finally, he points to no specific train-
ing procedure that is prejudicial to his right to an impartial
adjudicator.
It is A.M.’s burden to show bias. His baseless speculation as
to collusion between DHHS and the board members because
DHHS trains the board members fails to satisfy this burden.
A.M. has failed to show that § 71-916 deprived him of his right
to an unbiased adjudicator.
(b) Warner’s participation
A.M. also argues that board member Warner, the district
court clerk, is biased because she handled documents relating
to A.M.’s convictions. He also claims that she is not a lay-
person within the meaning of § 71-915(2).
(i) Exposure to A.M.’s Records Does Not
Disqualify Warner as an Adjudicator
[9] A.M. argues that Warner had personal knowledge of
the facts because she worked as the district court clerk when
A.M. was the defendant in two criminal cases and that thus,
she is not impartial. The same bias principles discussed above
govern whether the board was so biased as to deprive A.M. of
due process, and we need not repeat them. However, more on
point, we stated in Central Platte NRD v. State of Wyoming,11
“Although 	due 	process 	requires 	disqualification 	when 	the
9 See Murray, supra note 6.
10 See Urwiller, supra note 8.
11 Central Platte NRD v. State of Wyoming, 245 Neb. 439, 466, 513 N.W.2d
847, 865 (1994).
494 	281 NebrASKA repOrTS

administrative adjudicator has actually prejudged the precise
facts at issue, due process does not require the disqualification
of one who has merely been exposed to or investigated the
facts at issue.”
These criminal cases occurred in the early 1990’s. Obviously,
court clerks deal with hundreds if not thousands of cases a year.
To claim that Warner would remember the details of any case
almost 20 years later seems farfetched. but even if she did,
under Central Platte NRD, it does not matter. Unless A.M. can
show that Warner had actually prejudged the issues—a claim
he does not make—her mere exposure to the facts of the case
does not disqualify her as an impartial decisionmaker.
(ii) Warner Qualified as a Layperson
A.M. also argues that Warner, as the district court clerk, was
not a “layperson” within the meaning of § 71-915(2). Section
71-915(2) states in part:
each mental health board shall consist of an attorney
licensed to practice law in this state and any two of the
following but not more than one from each category: A
physician, a psychologist, a psychiatric social worker, a
psychiatric nurse, a clinical social worker, or a layperson
with a demonstrated interest in mental health and sub-
stance dependency issues.
[10,11] In construing a statute, we determine and give effect
to the legislative intent behind the enactment.12 And absent a
statutory indication to the contrary, we give words in a statute
their ordinary meaning.13
Webster’s dictionary defines “layman” as “one of the laity;
one who is not a clergyman or who is not a member of a
specified profession, as of law, medicine, etc.”14 The profes-
sions specified by § 71-915(2) are a lawyer, a physician, a
psychologist, a psychiatric social worker, a psychiatric nurse,
and a clinical social worker. A.M. has not argued that Warner
12 See State v. Mena-Rivera, 280 Neb. 948, 791 N.W.2d 613 (2010).
13 Id.
14 Webster’s encyclopedic Unabridged Dictionary of the english Language
813 (1994).
IN re INTereST OF A.M. 	495
Cite as 281 Neb. 482

falls into one of these categories. because a “layman” is one
“who is not a member of a specified profession,” it follows that
Warner is a layperson.
(c) The board Has Authority to
Appoint an Alternate Member
A.M.’s final due process argument is that the board chair-
person lacked the authority to assign an alternate to sit on the
board after Jones was recused. A.M. argues that the statute,
§ 71-915(1), requires the presiding district court judge to
appoint a replacement board member.
Section 71-915(1) states that the “presiding judge in each
district court judicial district shall create at least one . . . men-
tal health board[] in such district and shall appoint sufficient
members and alternate members to such boards.”
Section 71-915(3) states that a board “shall have the power
to issue subpoenas, to administer oaths, and to do any act
necessary and proper for the board to carry out its duties. No
mental health board hearing shall be conducted unless three
members or alternate members are present and able to vote.”
Here, Jones recused himself because he had previously
treated A.M. for a cardiac condition and A.M. apparently was
considering a lawsuit against Jones. Although the replacement
member was not originally assigned to this board, she had pre-
viously been appointed as an alternate.
The board has the power “to do any act necessary and
proper for the board to carry out its duties.” Further, the board
must have three members.15 Assigning a previously appointed
alternate member to serve so that the board has the required
three members is certainly an act “necessary and proper” for
the board to carry out its duties.
In sum, A.M.’s due process arguments have no merit.
2. equAl proteCtion
[12] A.M. next challenges §§ 29-4014 and 71-1202 under the
equal protection Clauses of the state and federal Constitutions.
The Nebraska and federal equal protection Clauses grant the
15 § 71-915.
496 	281 NebrASKA repOrTS

same level of protection. both require the State to treat simi-
larly situated people alike.16
Section 	29-4014 	is 	a 	statute 	under 	the 	Sex 	Offender
registration Act (SOrA).17 It requires that certain inmates
undergo 	sex 	offender 	counseling 	while 	incarcerated. 	The
inmates may refuse without being punished, but if they do
refuse, they must undergo an evaluation before their release.
Section 71-1202 states the purpose of SOCA. Under SOCA,
if a person is determined to be a dangerous sex offender, he or
she may be involuntarily committed.
[13] The two statutes in question were enacted in 2006.
A.M.’s argument is that the two statutes treat people differently
based upon whether they were released from prison before or
after the effective date of the statute. The U.S. Supreme Court,
however, has said that “the Fourteenth Amendment does not
forbid statutes and statutory changes to have a beginning and
thus to discriminate between the rights of an earlier and later
time.”18 A.M.’s equal protection argument has no merit.
3. speCiAl legislAtion
A.M. also argues that §§ 29-4014 and 71-1202 constitute
“special laws” that violate Neb. Const. art. III, § 18. A.M.’s
special legislation argument is the same as his equal protec-
tion argument: Treating people who are still incarcerated on
the effective date of the statute differently than those who were
previously released is unconstitutional. We disagree.
[14,15] “The burden of establishing the unconstitutionality
of a statute is on the one attacking its validity.”19 “‘The focus
of the prohibition against special legislation is the prevention of
legislation which arbitrarily benefits or grants “special favors”
16 See Citizens for Eq. Ed. v. Lyons-Decatur Sch. Dist., 274 Neb. 278, 739
N.W.2d 742 (2007).
17 See Neb. rev. Stat. § 29-4001 et seq. (reissue 2008 & Cum. Supp.
2010).
18 Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 505, 31 S. Ct. 490, 55
L. ed. 561 (1911).
19 Bergan Mercy Health Sys. v. Haven, 260 Neb. 846, 850, 620 N.W.2d 339,
344 (2000).
IN re INTereST OF A.M. 	497
Cite as 281 Neb. 482

to a specific class. A legislative act constitutes special legisla-
tion if (1) it creates an arbitrary and unreasonable method of
classification or (2) it creates a permanently closed class.’”20
[16-19] When the Legislature confers privileges on a class
arbitrarily selected from many who are standing in the same
relation to the privileges, without reasonable distinction or sub-
stantial difference, then the statute in question has resulted in
the kind of improper discrimination prohibited by the Nebraska
Constitution. Classifications for the purpose of legislation must
be real and not illusive; they cannot be based on distinctions
without a substantial difference.21 The analysis of a special
legislation inquiry focuses on the Legislature’s purpose in
creating the class and asks if there is a “substantial difference
of circumstances” to suggest the expediency of diverse legis-
lation.22 The general test of constitutionality for prohibitions
against special legislation is reasonableness of classification
and uniformity of operation.23 And classification is proper if
the special class has some reasonable distinction from other
subjects of a like general character, which distinction bears
some reasonable relation to the legitimate objectives and pur-
poses of the legislation.24 The question is always whether the
things or persons classified by the act form by themselves a
proper and legitimate class with reference to the purpose of
the act.25
The fact that § 29-4014 operates only on inmates still incar-
cerated on the operative date of the statute does not render
it unconstitutional under the special legislation clause. The
purpose of § 29-4014 and the rest of SOrA is to protect the
public from sex offenders.26 Section § 29-4014 advances this
20 Yant v. City of Grand Island, 279 Neb. 935, 940, 784 N.W.2d 101, 106
(2010), quoting Hug v. City of Omaha, 275 Neb. 820, 749 N.W.2d 884
(2008). See Haman v. Marsh, 237 Neb. 699, 467 N.W.2d 836 (1991).
21 Hug, supra note 20.
22 Id. at 826, 749 N.W.2d at 890.
23 See Bergan Mercy Health Sys., supra note 19.
24 Id.
25 Id.
26 Slansky v. Nebraska State Patrol, 268 Neb. 360, 685 N.W.2d 335 (2004).
498 	281 NebrASKA repOrTS

purpose by requiring incarcerated sex offenders to undergo
counseling. Those who were already released from custody
before the operative date would be difficult, if not impossible,
to treat. After release, such inmates could have left Nebraska.
Such inmates would no longer be subject to Nebraska law.
Those who were still in custody, however, can be ordered to
treatment. Thus, there is a “substantial difference of circum-
stances” between those who are still in prison and those who
are not. Finally, A.M. does not argue that this statute creates a
closed class.
A.M.’s challenge to § 71-1202 also fails because SOCA
does not limit its application to those who are still imprisoned
on its effective date; SOCA applies to anyone alleged to be
a dangerous sex offender, regardless of whether they are still
incarcerated. In other words, the statute does not make the clas-
sification that A.M. claims it does. Nor does the statute create
a closed class. His argument that § 71-1202 violates the special
legislation clause of the Nebraska Constitution fails.
4. sepArAtion of poWers
A.M. argues that §§ 29-4014 and 71-1202 violate the sepa-
ration of powers principle found in the state Constitution by
“encroaching upon powers belonging to the judicial branch of
government.”27 Although his argument is difficult to follow,
A.M. seems to argue that the statutes impose judicial functions
on the executive branch.
[20,21] Nebraska’s separation of powers clause28 prohibits
the three governmental branches from exercising the duties
and prerogatives of another branch.29 Additionally, it prevents a
branch from delegating its own duties or prerogatives except as
the constitution directs or permits.30
27 brief for appellant at 18.
28 Neb. Const. art. II, § 1.
29 In re Petition of Nebraska Community Corr. Council, 274 Neb. 225,
738 N.W.2d 850 (2007); Polikov v. Neth, 270 Neb. 29, 699 N.W.2d 802
(2005).
30 In re Petition of Nebraska Community Corr. Council, supra note 29.
IN re INTereST OF A.M. 	499
Cite as 281 Neb. 482

[22] We have, however, long held that administrative agen-
cies are capable of exercising quasi-judicial functions.31 We
previously addressed a challenge that an act of the Legislature
unconstitutionally delegated judicial power to the tax com-
missioner.32 In rejecting that challenge, we stated that the
conferral of quasi-judicial duties upon state agencies does not
conflict with the constitutional provisions relating to the judi-
ciary. We noted that this is “particularly true where such pow-
ers and duties relate to matters which are peculiarly affected
with a public interest and where provision is made for appeal
from decisions of such officers or agencies to the courts.”33
In Hadden v. Aitken,34 we reached a similar result and used
almost identical language. Further, the Legislature bases the
Administrative procedure Act upon this very notion. A.M.’s
argument that administrative agencies cannot exercise quasi-
judicial powers has no merit.
5. bills of AttAinder
A.M. next argues that the challenged statutes are impermis-
sible bills of attainder.
[23-26] The prohibition against bills of attainder “prohibits
trials by a legislature, and it forbids the imposition of punish-
ment by the legislature on specific persons.”35 A bill of attainder
is a legislative act that applies to named individuals or to easily
ascertained members of a group in a way that inflicts punish-
ment on them without a judicial trial.36 It is “an implementation
of the separation of powers, a general safeguard against legisla-
tive exercise of the judicial function, or more simply—trial by
31 See, Anderson v. Tiemann, 182 Neb. 393, 155 N.W.2d 322 (1967); Hadden
v. Aitken, 156 Neb. 215, 55 N.W.2d 620 (1952), overruled on other
grounds, Stauffer v. Weedlun, 188 Neb. 105, 195 N.W.2d 218 (1972).
32 Anderson, supra note 31.
33 Id. at 403, 155 N.W.2d at 329.
34 Hadden, supra note 31.
35 State v. Palmer, 257 Neb. 702, 717, 600 N.W.2d 756, 770 (1999).
36 See, id. See, also, Nixon v. Administrator of General Services, 433 U.S.
425, 97 S. Ct. 2777, 53 L. ed. 2d 867 (1977); State v. Galindo, 278 Neb.
599, 774 N.W.2d 190 (2009).
500 	281 NebrASKA repOrTS

legislature.”37 The prohibition on bills of attainder proscribes
legislation that singles out disfavored persons and carries out
summary punishment for past conduct.38 To constitute a bill
of attainder, the law must (1) specify the affected persons,
(2) inflict punishment, and (3) lack a judicial trial.39 Only the
clearest proof suffices to establish the unconstitutionality of a
statute as a bill of attainder.40
Neither of the challenged statutes constitutes a bill of attain-
der because the Legislature has not determined guilt, it has
merely imposed burdens on those whom the judicial branch has
already found guilty.41 Section 29-4014 limits its application to
“[a]ny person convicted of a crime requiring registration as a
sex offender,” and § 71-1202 states that SOCA’s purpose “is to
provide for the court-ordered treatment of sex offenders who
have completed their sentences.” Obviously, for sex offenders
to have been sentenced, it is necessary for them to have first
been convicted by a court. In sum, because the Legislature is
not the branch determining guilt, these statutes do not consti-
tute bills of attainder.
6. ex post fACto
[27] 	A.M. 	next 	challenges 	§§ 	29-4014 	and 	71-1202
under the ex post Facto Clauses of the state and federal
Constitutions. but like many other constitutional provisions,
the protections offered by each are ordinarily the same.42
Thus, only one analysis is necessary.43 Further, we note that
37 United States v. Brown, 381 U.S. 437, 442, 85 S. Ct. 1707, 14 L. ed. 2d
484 (1965).
38 Brown, supra note 37.
39 See, id.; Galindo, supra note 36.
40 Galindo, supra note 36.
41 See, Wright v. Iowa Dept. of Corrections, 747 N.W.2d 213 (Iowa 2008);
State v. Williams, 88 Ohio St. 3d 513, 728 N.e.2d 342 (2000); Com. v.
Mountain, 711 A.2d 473 (pa. Super. 1998); State v. Larson, No. A05-40,
2006 WL 618857 (Minn. App. Mar. 14, 2006) (unpublished decision);
Montgomery v. Leffler, No. H-08-011, 2008 WL 5147935 (Ohio App.
Dec. 5, 2008) (unpublished decision).
42 Galindo, supra note 36; In re Interest of J.R., supra note 4.
43 See Slansky, supra note 26.
IN re INTereST OF A.M. 	501
Cite as 281 Neb. 482

we have recently considered ex post facto challenges to our
sex offender laws.44
[28] Any statute which punishes as a crime an act previously
committed which was innocent when done, which makes more
burdensome the punishment for a crime after its commission,
or which deprives one charged with a crime of any defense
available according to law at the time when the act was com-
mitted is prohibited as ex post facto.45
[29] It is only criminal punishment, however, that the ex
post Facto Clause prohibits. The retroactive application of
civil disabilities and sanctions is permitted.46 Thus, we must
determine whether the statutes impose either civil disabilities
or criminal punishment.
[30] To do so, we apply the two-pronged intent-effects test.47
We must first “‘ascertain whether the legislature meant the
statute to establish “civil” proceedings.’”48 This is a question of
statutory construction.49
If the intention of the legislature was to impose punish-
ment, that ends the inquiry. If, however, the intention was
to enact a regulatory scheme that is civil and nonpunitive,
we must further examine whether the statutory scheme is
“‘so punitive either in purpose or effect as to negate [the
State’s] intention’ to deem it ‘civil.’”50
because we ordinarily defer to the Legislature’s stated intent,
only the clearest proof will suffice to override legislative intent
44 See, e.g., State v. Simnick, 279 Neb. 499, 779 N.W.2d 335 (2010); In re
Interest of J.R., supra note 4; Slansky, supra note 26; State v. Worm, 268
Neb. 74, 680 N.W.2d 151 (2004).
45 Galindo, supra note 36.
46 See In re Interest of J.R., supra note 4.
47 See id.
48 Smith v. Doe, 538 U.S. 84, 92, 123 S. Ct. 1140, 155 L. ed. 2d 164 (2003),
quoting Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 138 L. ed.
2d 501 (1997).
49 Hendricks, supra note 48.
50 Smith, supra note 48, 538 U.S. at 92, quoting Hendricks, supra note 48.
502 	281 NebrASKA repOrTS

and transform what has been denominated a civil remedy into
a criminal penalty.51
In determining whether the statutory scheme is so punitive
that it transforms the statute from a civil statute to a crimi-
nal statute, we refer to the seven factors noted in Kennedy v.
Mendoza-Martinez.52 The factors are neither “‘exhaustive nor
dispositive.’”53 They are “‘useful guideposts.’”54 The following
seven factors serve as our guideposts:
“‘(1) “[w]hether the sanction involves an affirmative dis-
ability or restraint”; (2) “whether it has historically been
regarded as punishment”; (3) “whether it comes into play
only on a finding of scienter”; (4) “whether its operation
will promote the traditional aims of punishment—retribu-
tion and deterrence”; (5) “whether the behavior to which
it applies is already a crime”; (6) “whether an alternative
purpose to which it may rationally be connected is assign-
able for it”; and (7) “whether it appears excessive in rela-
tion to the alternative purpose assigned.”’”55
(a) § 29-4014
[31] We previously determined in State v. Worm56 that
the Legislature enacted SOrA to establish a civil regulatory
scheme to protect the public from sex offenders. We reaffirmed
this legislative intent in Slansky v. Nebraska State Patrol.57 In
those cases, we analyzed SOrA’s notification and registration
requirements. but § 29-4014 presents a different situation. It
51 See, Smith, supra note 48; Hendricks, supra note 48.
52 Kennedy v. Mendoza-Martinez, 372 U.S. 144, 83 S. Ct. 554, 9 L. ed. 2d
644 (1963).
53 Smith, supra note 48, 538 U.S. at 97, quoting United States v. Ward, 448
U.S. 242, 100 S. Ct. 2635, 65 L. ed. 2d 742 (1980).
54 Id., 538 U.S. at 97, quoting Hudson v. United States, 522 U.S. 93, 118 S.
Ct. 488, 139 L. ed. 2d 450 (1997).
55 Worm, supra note 44, 268 Neb. at 85, 680 N.W.2d at 161, quoting State v.
Isham, 261 Neb. 690, 625 N.W.2d 511 (2001).
56 Worm, supra note 44.
57 Slansky, supra note 26.
IN re INTereST OF A.M. 	503
Cite as 281 Neb. 482

provides for treatment for inmates who are already impris-
oned for certain offenses. Section 29-4014, however, does not
impose any discipline for the refusal to participate. Instead,
the inmate must merely undergo a civil commitment evalua-
tion before his or her release. Although this statute is of a
different flavor than registration and notification requirements,
we still believe that the Legislature’s intent was to establish
a civil regulatory scheme for sex offenders. In other words,
in enacting this statute, it was not the Legislature’s intent to
punish. Having determined that the Legislature did not intend
§ 29-4014 as punishment, we look to the seven Kennedy fac-
tors. Again, we note that only the clearest proof will suffice to
overcome our view that the Legislature intended § 29-4014 to
operate as a civil statute.
Section 29-4014 imposes no affirmative disability or restraint.
While it does say that certain inmates shall attend treatment and
counseling, it imposes no penalty on those who refuse to par-
ticipate. Those who refuse only undergo an evaluation. Section
29-4014 itself does not prohibit any inmate or sex offender
from doing anything he would otherwise be able to do.
Section 29-4014 does not further the traditional punitive
justifications of retribution or deterrence. First, treatment may
benefit the offender, thus undercutting any claim of its retribu-
tive nature. Second, § 29-4014 only applies to those who
are already “committed to the Department of Correctional
Services,” i.e., in prison. prison itself is already a signifi-
cant deterrent. It is unlikely that § 29-4014 adds any addi-
tional deterrence.
There are alternative purposes for treatment other than pun-
ishment. Namely, the program is designed to treat sex offend-
ers. And the statute is not excessive in the light of this alterna-
tive purpose; the statute is well tailored to further this purpose,
and its burdens are not onerous.
We recognize that some of the Kennedy factors may cut in
favor of § 29-4014 as being considered punishment. For exam-
ple, it does not apply unless there has already been a criminal
act. We conclude, however, that most of the factors weigh in
favor of § 29-4014 being a civil statute. Certainly, the evidence
to the contrary does not rise to the “clearest proof” standard.
504 	281 NebrASKA repOrTS

We hold that § 29-4014 is not punitive and thus does not vio-
late the ex post Facto Clause.
(b) § 71-1202
[32] We recently held that SOCA, in its entirety, does not
constitute ex post facto legislation because it is not punitive in
nature.58 Accordingly, A.M.’s argument that § 71-1202, which
is a part of SOCA, is ex post facto is without merit.
7. double JeopArdy
[33,34] 	A.M. 	next 	argues 	that 	the 	challenged 	statutes
violate the Double Jeopardy Clauses of the state and fed-
eral Constitutions, whose protections are coextensive.59 but
because we determined in our ex post facto analysis that nei-
ther statute is punitive, neither statute can violate the Double
Jeopardy Clause.60
8. vAgueness of § 83-174.01
A.M. argues that § 83-174.01(1) and (2) are vague and
thus 	unconstitutional. 	The 	challenged 	subsections 	read 	in
their entirety:
(1) Dangerous sex offender means (a) a person who
suffers from a mental illness which makes the person
likely to engage in repeat acts of sexual violence, who
has been convicted of one or more sex offenses, and
who is substantially unable to control his or her criminal
behavior or (b) a person with a personality disorder which
makes the person likely to engage in repeat acts of sexual
violence, who has been convicted of two or more sex
offenses, and who is substantially unable to control his or
her criminal behavior.
(2) Likely to engage in repeat acts of sexual violence
means the person’s propensity to commit sex offenses
resulting in serious harm to others is of such a degree as
to pose a menace to the health and safety of the public.
58 In re Interest of J.R., supra note 4.
59 See id.
60 Slansky, supra note 26.
IN re INTereST OF A.M. 	505
Cite as 281 Neb. 482

Specifically, A.M. alleges that the term “sexual violence” in
subsection (1) and the terms “serious harm” and “pose a men-
ace” used in subsection (2) are unconstitutionally vague.
[35-38] “The void-for-vagueness doctrine requires that a
penal statute define the criminal offense with sufficient defi-
niteness that ordinary people can understand what conduct is
prohibited and in a manner that does not encourage arbitrary
and discriminatory enforcement.”61 In brief, a statute must not
forbid or require the doing of an act in terms so vague that
persons of common intelligence must necessarily guess at its
meaning and differ as to its application.62 “[W]hen evaluating
an ordinance for vagueness, we do not seek mathematical cer-
tainty, but, rather, flexibility and reasonable breadth. Moreover,
a statute will not be deemed vague if it uses ordinary terms
which find adequate interpretation in common usage and under-
standing.”63 The void-for-vagueness doctrine applies to civil as
well as criminal statutes.64
The first phrase that A.M. argues is vague, “sexual violence,”
is actually part of a larger phrase that is defined in subsection
(2) of the statute. We believe that the definition is adequate.
Secondly, A.M. argues that “serious harm” is impermissibly
vague. While it would be difficult to state precisely at what
point harm becomes “serious,” we do not require mathemati-
cal certainty in a statute. We require that the statute be specific
enough so that it put people of ordinary intelligence on notice
of what is forbidden and prohibit arbitrary enforcement. We
believe that the phrase “serious harm,” when considered within
the larger phrase “sex offenses resulting in serious harm to
others,” does so sufficiently.
Finally, A.M. attacks the phrase “pose a menace.” “Menace,”
in its noun form, means “something that threatens to cause evil,
61 State v. Rung, 278 Neb. 855, 866, 774 N.W.2d 621, 632 (2009).
62 Agena v. Lancaster Cty. Bd. of Equal., 276 Neb. 851, 758 N.W.2d 363
(2008).
63 Maxon v. City of Grand Island, 273 Neb. 647, 654, 731 N.W.2d 882, 888
(2007).
64 See Agena, supra note 62.
506 	281 NebrASKA repOrTS

harm, injury, etc; a threat.”65 Again, the meaning here is clear.
In stating, “to pose a menace to the health and safety of the
public,” the Legislature is talking about those who threaten the
health and safety of the public.
Summing up A.M.’s constitutional arguments, A.M. has
thrown 	a 	constitutional 	paintball 	at 	an 	appellate 	canvas.
He missed.
9. A dmissibility of experts’ opinions
A.M. next contends that the district court erred in uphold-
ing the board’s conclusion that A.M. is a dangerous sex
offender. He argues the State’s experts considered evidence
that violated his constitutional rights or the Nebraska evidence
rules. Specifically, he contends that the evidence relied on by
the State’s experts violated his due process rights, his Fifth
Amendment privilege against self-incrimination, and his right
to confront witnesses under Neb. rev. Stat. § 71-954 (reissue
2009). He argues that the hearing was fundamentally unfair
because the experts relied on unsubstantiated and untested
hearsay statements made many years earlier. And he argues
that the board should not have considered, as fruit of the poi-
sonous tree, any evidence obtained as a result of his vacated
1992 conviction.
(a) County Court’s 1992 errors Do Not require
exclusion of A.M.’s Statements or Information
Gathered in presentence Investigation
The issue is whether a mental health board must exclude
a defendant’s incriminating statements made in a presentence
investigation or court-ordered counseling when a court has
vacated the defendant’s conviction for Boykin66 errors. The par-
ties have not cited, and our research has not uncovered, any
cases directly on point. but we believe that the district court
reached the correct conclusion.
65 Webster’s, supra note 14 at 894.
66 Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. ed. 2d 274
(1969).
IN re INTereST OF A.M. 	507
Cite as 281 Neb. 482

Here, the record includes a 2003 postconviction order in
which the district court vacated A.M.’s 1992 conviction in
county court. The district court concluded that while A.M. had
agreed with his attorney’s statement of the plea agreement, the
county court had failed to ensure A.M.’s plea was voluntary.
The record from the 1992 plea hearing was not made part of
this record. but the district court found that A.M. had signed
the county court judge’s journal entry and order that recited
A.M.’s plea of no contest and set his conditions for probation.
It also stated that A.M. had signed an amended order reciting
his conditions for probation. A.M. does not challenge these
findings. The district court further determined that the board’s
record showed that the State’s experts had not relied upon the
fact of A.M.’s 1992 conviction or the predicate facts for that
conviction. It concluded that the vacation of his conviction did
not require the exclusion of A.M.’s statements during treatment
on probation or any information gathered during the 1992 pre-
sentence investigation. We agree.
[39-41] A court cannot use a void conviction to enhance
punishment 	for 	a 	later 	offense.67 but 	commitment 	under
Nebraska’s SOCA is a civil restraint that does not enhance
punishment.68 Further, the facts recited by the district court
show Boykin errors, and we do not permit a defendant to collat-
erally attack his or her conviction in a separate proceeding for
such errors.69 So we do not believe that the 2003 postconviction
order precluded the use of evidence that resulted from A.M.’s
1992 conviction.
However, we also do not believe that the State could use
evidence obtained through official or judicial misconduct to
deprive a defendant of his or her liberty at a subsequent
trial.70 This includes a state expert’s opinion relying on such
67 See, e.g., State v. Reimers, 242 Neb. 704, 496 N.W.2d 518 (1993).
68 See In re Interest of J.R., supra note 4.
69 See State v. Kuehn, 258 Neb. 558, 604 N.W.2d 420 (2000).
70 See, Harrison v. United States, 392 U.S. 219, 88 S. Ct. 2008, 20 L. ed. 2d
1047 (1968); Wong Sun v. United States, 371 U.S. 471, 83 S. Ct. 407, 9 L.
ed. 2d 441 (1963).
508 	281 NebrASKA repOrTS

evidence.71 but this record fails to show any misconduct that
would warrant applying an exclusionary rule. If A.M. had
appealed from his 1992 conviction, we would have reversed his
conviction for the Boykin errors cited by the district court. but
the county court’s errors did not rise to misconduct that would
have tainted A.M.’s subsequent statements made during his pre-
sentence investigation or court-ordered treatment. We conclude
that the 2003 district court order vacating A.M.’s 1992 convic-
tion did not require the board to exclude any expert opinion
relying on his statements.
(b) The board erred in Failing to Determine
Whether the State’s experts relied on
A.M.’s Compelled Statements
[42-44] Next, we consider whether the use of A.M.’s state-
ments by the State’s experts violated his due process rights
or his privilege against self-incrimination under the Fifth
Amendment.72 It is a violation of the Due process Clause to
use a defendant’s involuntary statement against him or her at
a criminal trial.73 The Fifth Amendment similarly precludes
the use of compelled testimony and goes further by requiring
Miranda warnings for some custodial interrogations. Thus,
both the Fifth Amendment and Due process Clause pro-
hibit the use of a person’s involuntary statements at a later
criminal trial.74 And under Neb. rev. Stat. § 71-955 (reissue
2009), a mental health board in a SOCA proceeding cannot
71 See Harrison, supra note 70. See, also, 29 Charles Alan Wright & Victor
James Gold, Federal practice and procedure § 6273 (1997 & Supp.
2010).
72 See Malloy v. Hogan, 378 U.S. 1, 84 S. Ct. 1489, 12 L. ed. 2d 653
(1964).
73 Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. ed. 2d 694
(1966).
74 See, Dickerson v. United States, 530 U.S. 428, 120 S. Ct. 2326, 147 L. ed.
2d 405 (2000), citing Bram v. United States, 168 U.S. 532, 18 S. Ct. 183,
42 L. ed. 568 (1897). See, also, New Jersey v. Portash, 440 U.S. 450, 99
S. Ct. 1292, 59 L. ed. 2d 501 (1979); 1 Wayne r. LaFave et al., Criminal
procedure § 2.10(b) (3d ed. 2007).
IN re INTereST OF A.M. 	509
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consider any evidence that would be inadmissible in a crimi-
nal proceeding.
[45] In a criminal trial, the prosecution cannot use for any
purpose a defendant’s involuntary statements or any evidence
that is directly or indirectly derived from them.75 This includes
an expert’s opinion based on them.76 So we consider whether
A.M.’s statements were compelled, which would preclude an
expert’s opinion based on them in a criminal trial.
[46,47] even after conviction, if a person in prison or
on probation is compelled to make incriminating statements,
those statements are inadmissible in a later criminal pro-
ceeding for any crime other than the crime for which the
person has been convicted.77 but in most contexts, the privi-
lege against self-incrimination is not self-executing. A person
must timely invoke it, or it will be lost.78 There are, however,
limited exceptions. For example, under Miranda, custodial
police interrogations are an exception because courts consider
them inherently coercive.79 An exception also exists when
remaining silent is threatened by punishment or consequences
significant enough to compel a person to make incriminat-
ing statements.80
but we do not believe that A.M. has shown coercive official
conduct merely by claiming that he made incriminating state-
ments during a presentence investigation. If a court officer
interviewed A.M., such an interview would be closer to the
75 See, Portash, supra note 74; Mincey v. Arizona, 437 U.S. 385, 98 S. Ct.
2408, 57 L. ed. 2d 290 (1978); Kastigar v. United States, 406 U.S. 441,
92 S. Ct. 1653, 32 L. ed. 2d 212 (1972).
76 See, People v Tyson, 423 Mich. 357, 377 N.W.2d 738 (1985); In re
Commitment of Mark, 308 Wis. 2d 191, 747 N.W.2d 727 (2008).
77 See Minnesota v. Murphy, 465 U.S. 420, 104 S. Ct. 1136, 79 L. ed. 2d 409
(1984).
78 See, id.; Roberts v. United States, 445 U.S. 552, 100 S. Ct. 1358, 63 L. ed.
2d 622 (1980); Garner v. United States, 424 U.S. 648, 96 S. Ct. 1178, 47
L. ed. 2d 370 (1976); Maness v. Meyers, 419 U.S. 449, 95 S. Ct. 584, 42
L. ed. 2d 574 (1975).
79 See Murphy, supra note 77.
80 See, McKune v. Lile, 536 U.S. 24, 122 S. Ct. 2017, 153 L. ed. 2d 47
(2002); Murphy, supra note 77.
510 	281 NebrASKA repOrTS

probation interview that the U.S. Supreme Court considered
in Minnesota v. Murphy.81 There, the Court distinguished a
mandatory interview with a probation officer from the coercion
inherent in a custodial police interrogation. And it held that
Miranda warnings were not required. because the defendant
“revealed incriminating information instead of timely asserting
his Fifth Amendment privilege, his disclosures were not com-
pelled incriminations.”82
The Court also rejected the defendant’s argument that he
was compelled to make incriminating statements by the penalty
of having his probation revoked if he was untruthful. It noted
that the statute requiring the defendant to answer a probation
officer’s questions truthfully did not condition his probation
on waiving his Fifth Amendment privilege. Also, “no direct
evidence [showed] that [the defendant] confessed because he
feared that his probation would be revoked if he remained
silent.”83 because the defendant could not have reasonably
believed that invoking the privilege would lead to revocation,
his failure to invoke the privilege was not excused and his
statements were voluntary.
[48] Here, we assume from the experts’ opinions that A.M.
made incriminating statements that were included in the pre-
sentence investigation. but the record does not contain the
report or any evidence that reveals to whom A.M. allegedly
made 	incriminating 	statements. 	routine 	presentence 	inter-
views, even if the defendant is in custody, are not normally
considered coercive interrogations.84 And A.M. does not claim
that any state officer threatened him with punishment if he
refused to make incriminating statements. Thus, he has failed
to show that his statements made in the presentence investiga-
tion were compelled.85
81 Murphy, supra note 77.
82 Id., 465 U.S. at 440.
83 Id., 465 U.S. at 437.
84 See, U.S. v. Jones, 266 F.3d 804 (8th Cir. 2001); Baumann v. United States,
692 F.2d 565 (9th Cir. 1982).
85 See, e.g., People v. Goodner, 7 Cal. App. 4th 1324, 9 Cal. rptr. 2d 543
(1992).
IN re INTereST OF A.M. 	511
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[49] but in Murphy, the Court also clarified that “the State
could not constitutionally carry out a threat to revoke proba-
tion for the legitimate exercise of the Fifth Amendment privi-
lege.”86 A “classic penalty situation” arises “if the State, either
expressly or by implication, asserts that invocation of the privi-
lege would lead to revocation of probation.”87 In that circum-
stance, a probationer’s “failure to assert the privilege would
be excused, and the probationer’s answers would be deemed
compelled and inadmissible in a criminal prosecution.”88
Under this reasoning, many courts have held that sex offender
treatment programs that required a defendant to complete the
program as a condition of probation explicitly or implicitly
threatened the probationer with punishment—revocation of
probation—if the probationer fails to admit to sexual conduct.89
Thus, the offender’s compelled, incriminating statements can-
not be used against him in a subsequent criminal trial.90
We agree with these courts. If A.M. made incriminating
statements under the explicit or implicit threat that the court
would revoke his probation if he failed to comply with sex
offender treatment, then his failure to invoke his privilege
against self-incrimination would be excused. And his state-
ments would be inadmissible against him in a criminal trial.
Further, because any use of his statements in a criminal trial
would violate his Fifth Amendment privilege, an expert for
the State could not base an opinion on them. Section 71-955
applies these rules to a SOCA hearing. but while A.M. raised
this issue, the board failed to consider whether the experts
relied on any incriminating statements that A.M. made under
86 Murphy, supra note 77, 465 U.S. at 438.
87 Id., 465 U.S. at 435.
88 Id.
89 See, Mace v. Amestoy, 765 F. Supp. 847 (D. Vt. 1991); State v. Eccles, 179
Ariz. 226, 877 p.2d 799 (1994) (en banc); People v. Elsbach, 934 p.2d 877
(Colo. App. 1997); Gilfillen v. State, 582 N.e.2d 821 (Ind. 1991); State v.
Kaquatosh, 600 N.W.2d 153 (Minn. App. 1999); State v. Fuller, 276 Mont.
155, 915 p.2d 809 (1996). See, also, Gyles v. State, 901 p.2d 1143 (Alaska
App. 1995).
90 See, Elsbach, supra note 89; Fuller, supra note 89.
512 	281 NebrASKA repOrTS

the explicit or implicit threat of revocation. We therefore
reverse the order of commitment and remand the cause for a
determination of this issue.
[50] In addition, because the issues are likely to recur on
remand, we address A.M.’s argument that the State’s experts’
opinions were unreliable and violated his right to confront wit-
nesses. An appellate court may, at its discretion, discuss issues
unnecessary to the disposition of an appeal where those issues
are likely to recur during further proceedings.91
(c) reliability of experts’ Opinions
A.M. contends that the district court erred in upholding the
board’s conclusion that he is a dangerous sex offender. He
argues that the board based its conclusion on expert testimony
that was unreliable.
[51-53] It is within the trial court’s discretion to determine
whether there is sufficient foundation for an expert witness to
give his or her opinion about an issue in question.92 Mental
health boards must apply the rules of evidence.93 Neb. evid. r.
70394 permits experts to base their opinions on facts that are
not admissible into evidence if experts in their field reasonably
rely on such facts. The State’s experts all testified that experts
in their field generally rely on the presentence investigation,
offense reports, and other sources that they consulted.
[54] rule 703 was designed to promote efficiency.95 It was
intended to reduce the time spent to introduce into evidence a
factual basis for the expert’s opinion when the expert has relied
upon data produced by others.96 We recognize that other courts
have held that experts who testify in mental health and sex
offender commitment hearings can rely on police reports and
91 Tyma v. Tyma, 263 Neb. 873, 644 N.W.2d 139 (2002).
92 Liberty Dev. Corp. v. Metropolitan Util. Dist. of Omaha, 276 Neb. 23, 751
N.W.2d 608 (2008).
93 See § 71-955.
94 Neb. rev. Stat. § 27-703 (reissue 2008).
95 29 Wright & Gold, supra note 71, § 6272.
96 Id.
IN re INTereST OF A.M. 	513
Cite as 281 Neb. 482

sentencing reports.97 but because a SOCA hearing may result
in a serious deprivation of the defendant’s interest in liberty,
the State’s evidence must be sufficiently reliable to comply
with due process.98
[55] Obviously, an expert’s opinion based on inadmissible
evidence is only as reliable as the evidence on which it is
based. This is because an expert who “relies on an out-of-court
statement in reaching an opinion . . . has inferred that the facts
asserted in it are true.”99 Further, in sex offender commitment
cases, if the underlying facts of an expert’s opinion are unreli-
able, “a significant portion of the foundation of the resulting
[dangerousness] finding is suspect.”100 Other courts have con-
cluded that because hearsay can permeate the evidence used to
commit a sex offender, a victim’s hearsay statements in police
reports or presentence reports must have special indicia of reli-
ability to satisfy due process.101 We agree.
We do not attempt to set out every indicia of reliability for
hearsay statements in these reports. but we agree that whether
a defendant pleaded guilty or was found guilty of the crime
for which the reports were created is a critical consideration
for determining the reliability of a victim’s unsworn accusa-
tions in such reports: “As a result of such a conviction, some
portion, if not all, of the alleged conduct will have been
already either admitted in a plea or found true by a trier of
fact after trial.”102 Courts may also consider trial transcripts and
97 See, e.g., U.S. v. LeClair, 338 F.3d 882 (8th Cir. 2003); In re Williams,
841 So. 2d 531 (Fla. App. 2003), overruled on other grounds, In re
Commitment of Debolt, 19 So. 3d 335 (Fla. App. 2009); Com. v. Wynn,
277 Va. 92, 671 S.e.2d 137 (2009); In re Civil Commitment of R.S., No.
SVp 450-07, 2008 WL 5194450 (N.J. App. Dec. 12, 2008) (unpublished
decision).
98 See, e.g., Kenley v. Neth, 271 Neb. 402, 712 N.W.2d 251 (2006).
99 29 Wright & Gold, supra note 71, § 6273 at 320.
100 See People v. Otto, 26 Cal. 4th 200, 210-11, 26 p.3d 1061, 1068, 109 Cal.
rptr. 2d 327, 335 (2001).
101 See, id.; Jenkins v. State, 803 So. 2d 783 (Fla. App. 2001).
102 See Otto, supra note 100, 26 Cal. 4th at 211, 26 p.3d at 1068, 109 Cal.
rptr. 2d at 336.
514 	281 NebrASKA repOrTS

whether the defendant challenged the use of a victim’s hear-
say statements.103
because evidence underlying an expert’s opinion need not,
indeed in some cases should not, be admitted into evidence, the
board’s focus should be on the reliability of the out-of-court
declarant’s hearsay statement and not on the statement’s “fit”
within any hearsay exception. All that is required is that the
underlying facts bear sufficient reliability so that due process
is not violated. Thus, if the board finds that any of A.M.’s
hearsay statements were voluntary, they would be reliable as a
statement against interest.104
(d) right to Confront Witnesses
[56] Finally, A.M. argues that the board’s admission of
these experts’ opinions violated his right to confront witnesses.
It is true that § 71-954 gives SOCA defendants the same right
to confront and cross-examine witnesses as the state and fed-
eral Constitutions. but federal courts have held that because
the expert is the only witness testifying against the defendant,
the defendant’s ability to cross-examine the expert satisfies the
requirement of the Confrontation Clause so long as the under-
lying statements are not relayed to the jury.105
but when an expert testifies to out-of-court accusations or
other testimonial statements, both hearsay and Confrontation
Clause issues are presented.106 So we agree with A.M. that the
board should not have permitted the experts to testify about the
underlying statements they relied on.
V. CONCLUSION
We conclude the following:
• A.M.’s arguments as to the bias and composition of the
board fail.
103 See id.
104 See State v. Holecek, 260 Neb. 976, 621 N.W.2d 100 (2000).
105 See, e.g., U.S. v. Pablo, 625 F.3d 1285 (10th Cir. 2010); U.S. v. Lombardozzi,
491 F.3d 61 (2d Cir. 2007). See, also, 29 Wright & Gold, supra note 71,
§ 6275 n.24.
106 See, Jenkins, supra note 101; People v. Jensen, No. 235372, 2004 WL
2533270 (Mich. App. Nov. 9, 2004) (unpublished decision).
IN re INTereST OF A.M. 	515
Cite as 281 Neb. 482

• A.M.’s equal protection challenges are meritless.
• The challenged statutes do not violate the special legisla-
tion clause.
• A.M.’s separation of powers argument is without merit.
• The challenged statutes are not bills of attainder.
• because the challenged statutes do not inflict punishment,
they do not violate the ex post Facto or Double Jeopardy
Clauses.
• Section 83-174.01 is not unconstitutionally vague.
• The evidentiary issues present require remand.
• On remand, the board must determine if A.M. was com-
pelled to make the incriminating statements.
• The board must also ensure that the facts underlying the
experts’ opinions are sufficiently reliable.
• And the board must prohibit the experts from introducing
the underlying facts through their testimony because such a
practice violates A.M.’s right to confrontation.
• We have considered A.M.’s other assignments of error and
conclude that none of those issues warrant discussion.
We reverse, and remand for further proceedings consistent
with this opinion.
reversed And remAnded for
further proCeedings.
the villAge of hAllAm , A politiCAl subdivision
of the stAte of nebrAskA, Appellee , v.
l.g. bArCus & sons , inC., A kAnsAs
CorporAtion, AppellAnt.
798 N.W.2d 109
Filed May 13, 2011. 	No. S-10-406.
1. Summary Judgment. Summary judgment is proper if the pleadings and admis-
sible evidence offered at the hearing show that there is no genuine issue as to any
material facts or as to the ultimate inferences that may be drawn from those facts
and that the moving party is entitled to judgment as a matter of law.
2. Summary Judgment: Appeal and Error. In reviewing a summary judgment, an
appellate court views the evidence in the light most favorable to the party against
whom the judgment was granted, giving that party the benefit of all reasonable
inferences deducible from the evidence.
516 	281 NebrASKA repOrTS