Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
05/26/2023 09:08 AM CDT
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
State of Nebraska, appellee, v.
Karl J. Dailey, appellant.
___ N.W.2d ___
Filed May 26, 2023. No. S-22-102.
1. Courts: Appeal and Error. Both the district court and a higher appellate court generally review appeals from the county court for error
appearing on the record.
2. Judgments: Appeal and Error. When reviewing a judgment for errors
appearing on the record, an appellate court’s inquiry is whether the decision conforms to the law, is supported by competent evidence, and is
neither arbitrary, capricious, nor unreasonable.
3. Appeal and Error. An appellate court independently reviews questions
of law in appeals from the county court.
4. Convictions: Appeal and Error. In an appeal of a criminal conviction,
an appellate court reviews the evidence in a light most favorable to
the prosecution.
5. Administrative Law: Statutes: Appeal and Error. The meaning and
interpretation of statutes and regulations are questions of law for which
an appellate court has an obligation to reach an independent conclusion
irrespective of the decision made by the court below.
6. Statutes. Statutory interpretation begins with the text, and the text is to
be given its plain and ordinary meaning.
7. Statutes: Legislature. It is a fundamental canon of statutory construction that words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute.
8. Appeal and Error: Words and Phrases. Appellate courts often turn to
dictionaries to ascertain a word’s plain and ordinary meaning.
9. Administrative Law. An administrative agency is limited in its rulemaking authority to powers granted to the agency by the statutes which
it is to administer. It may not employ its rulemaking power to modify,
alter, or enlarge portions of its enabling statute.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
10. ___. An administrative agency cannot employ its rulemaking authority to adopt regulations contrary to the statutes that it is empowered
to enforce.
11. Appeal and Error. Alleged errors of the lower court must be both specifically assigned and specifically argued in the brief of the party asserting the errors to be considered by an appellate court.
Appeal from the District Court for Dawes County, Derek
C. Weimer, Judge, on appeal thereto from the County Court
for Dawes County, Randin R. Roland, Judge. Judgment of
District Court affirmed.
Charles D. Brewster and Carson K. Messersmith, of
Anderson, Klein, Brewster & Brandt, for appellant.
Michael T. Hilgers, Attorney General, and Nathan A. Liss
for appellee.
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
and Papik, JJ., and Pankonin, District Judge.
Funke, J.
INTRODUCTION
Karl J. Dailey, the sheriff of Dawes County, Nebraska, challenges his conviction for official misconduct, in violation of
Neb. Rev. Stat. § 28-924 (Reissue 2016), for failing to receive
a lawfully committed prisoner into the county jail. The prisoner was arrested without a warrant for felony offenses. Dailey
argued that the prisoner was not lawfully committed to a jail
for purposes of
Neb. Rev. Stat. § 23-1703 (Reissue 2022),
because no court order directed the prisoner to jail. Dailey also
argued that he had discretion under Nebraska’s jail standards
(Jail Standards) as to whether to receive the prisoner. The district court for Dawes County rejected those arguments when
it affirmed Dailey’s conviction and sentence from the county
court. Finding no error, we affirm.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
BACKGROUND
On July 21, 2019, multiple law enforcement officers in
Dawes County were involved in a search for Jesse Sierra.
Sierra had previously been identified as a person of interest in
an alert about his missing girlfriend. Sierra’s girlfriend arrived
at a hospital in Chadron, Nebraska, on July 21, claiming that
Sierra assaulted her at a motel in Crawford, Nebraska. Both
Chadron and Crawford are located in Dawes County.
Upon learning that Sierra’s girlfriend was at the hospital,
the Chadron Police Department (CPD) reached out to the
Nebraska State Patrol (NSP) and the Dawes County sheriff’s
office, but did not directly contact Dailey. Dailey learned of the
search and called an NSP commander to convey that he “was
unhappy [with] how things were unfolding.” According to the
commander, Dailey believed that the NSP should have checked
with him to make sure it was “okay . . . to be assisting the
[CPD] in Crawford.”
Dailey went to the motel in Crawford where Sierra’s girlfriend was reportedly assaulted and spoke with an NSP lieutenant, as well as with NSP Trooper Jared Dusatko. Dailey told
the NSP officers that “you can expect zero cooperation from
me and my people in the future.” Dailey also said that “[i]f
I can arrange it, you won’t be booking prisoners in my jail
anymore; you can take them all the way to Scotts Bluff from
now on.”
Meanwhile, CPD Officer Sean Considine located Sierra
in Chadron. Sierra had a “minor abrasion” on his face and
was limping. Sierra claimed that he had been run over by a
vehicle. Medics spoke with Sierra onsite, and he was then
transported, by Considine, to the hospital in Chadron due to his
claimed injuries.
Dailey came to the scene of Sierra’s arrest while Sierra was
still present in Considine’s patrol vehicle. Dailey spoke with
Considine about Sierra’s medical issues and told Considine
to “[s]end [Sierra] to Scotts Bluff where they have medical care.”
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
Sierra was examined at the hospital, but was not admitted. He left the hospital in Dusatko’s custody. When they
left, Dusatko had a clear impression that “Dawes County
was not going to take [Sierra],” based on Dailey’s comments
at the motel in Crawford and the information relayed by
Considine. The NSP’s dispatch center also advised Dusatko
that the Dawes County jail would not take Sierra, based upon
a conversation that the dispatcher had with Dawes County
jail staff wherein the dispatcher asked whether the jail would
take Sierra “if he has a medical clearance.” Jail staff replied
that “[they] were told by the sheriff to not take [Sierra].”
However, Dusatko never physically presented Sierra at the
Dawes County jail.
Dusatko called the Box Butte County jail and asked whether
it would take Sierra. The staff declined, for reasons that
Dusatko could not recall at trial. Sheridan County jail staff
also declined to take Sierra. Dusatko then transported Sierra
approximately 100 miles to the Scotts Bluff County jail.
On July 21, 2019, the Dawes County jail had seven to nine
prisoners, and two staff members were on duty. The staff had
no medical training, and there were no medical resources
onsite. The cell normally used to hold prisoners like Sierra was
under construction, although it could potentially still have been
“available.” It is undisputed that no court order then directed
Sierra to jail.
During the NSP’s subsequent investigation of these events,
Dailey admitted that he was “abusive” toward the NSP officers because he was upset. He indicated that the jail refused
Sierra because Sierra was injured. However, Dailey also made
comments to the effect that the jail technically should have
accepted Sierra and then transported him to another jail, if necessary, but did not do so because of Dailey’s frustration with
the CPD and NSP.
Thereafter, Dailey was charged in the county court with
official misconduct for refusing to receive Sierra. Dailey
moved to quash the criminal complaint against him on the
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
grounds that sheriffs in Nebraska have discretion as to whether
to receive prisoners under the Jail Standards. That motion
was overruled.
County Court Proceedings
A bench trial was held in the county court for Dawes
County. At trial, the State presented testimony from six witnesses. Their testimony, as relevant to the present appeal, is
summarized below. The CPD chief testified that he was aware
of “one or two other times” when Dawes County jail staff
declined to receive a prisoner. However, he viewed those situations as different, because the jail had been full or did not
yet accept women. Although the NSP lieutenant testified that
he had not previously been asked for a medical clearance for
a prisoner, Considine and Dusatko testified that such forms
are standard with prisoners with medical issues. The CPD
chief, the NSP lieutenant, and Dusatko all testified that they
were not given a reason why the Dawes County jail did not
receive Sierra.
After the State rested, Dailey moved for dismissal, claiming that the State had failed to prove that Sierra was lawfully
committed to jail. The State countered that the plain meaning
of “lawfully committed” includes persons arrested without a
warrant. The State also argued that § 23-1703 must be read
together with the Nebraska statutes authorizing warrantless
arrests because it would make no sense to allow arrests without a warrant if officers had no place where they could house
arrestees. The county court agreed with the State, construing
§ 23-1703 to require jails to receive persons lawfully arrested
without a warrant.
Dailey then presented testimony from his four witnesses.
Their testimony, as relevant to this appeal, is summarized
below. A Dawes County jail supervisor testified that he was
not aware of another inmate who was denied admission for
medical reasons and that the jail had housed a murder suspect
in the past. An inspector for the Jail Standards division of
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
the Nebraska Commission on Law Enforcement and Criminal
Justice testified that it would not have been “advisable” for
the jail to house a prisoner with “some head injuries, contusions, . . . and a leg injury.” The inspector also testified that
the jail should house high-risk prisoners, like Sierra, only
if there were no other male prisoners and the jail was fully
staffed. According to the inspector, the Jail Standards permit
jails to “reject” prisoners “back into the custody of the arresting agency” if the jail staff believes immediate medical attention is necessary. The inspector further testified that jails may
also “refuse” prisoners who are fit for confinement and that
“sheriffs decline admissions . . . frequently because they just
can’t house that type of prisoner.” The sheriff of Box Butte
County testified similarly that she does not receive “any and
all arrestees” and had previously rejected prisoners on medical
and other grounds.
The county court found Dailey guilty. In so doing, it rejected
Dailey’s argument that there must be “some type of court
order” for a person to be lawfully committed. It also found
that Dailey’s argument that he could not accept Sierra due to
Sierra’s medical condition and high-risk status was inconsist
ent with the evidence. The county court observed that Dailey
stated that the jail would not accept Sierra before he ever saw
Sierra and before Sierra was medically examined. The county
court observed that Dailey subsequently told investigators that
he acted out of anger over the situation with Sierra.
Dailey was subsequently sentenced to a fine of $750.
District Court Proceedings
Dailey appealed to the district court for Dawes County,
which affirmed his conviction. The district court found that
Sierra was lawfully arrested and detained and, as such, had
been lawfully committed to the jail. The district court also
found that the Jail Standards cannot override statutory requirements and that Dailey did not actually state any concerns
based on the Jail Standards when refusing to receive Sierra.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
Instead, the district court found that Dailey was “upset” that
he was not personally involved in the search for Sierra and
“decided to flex his authority.”
Dailey appealed to the Nebraska Court of Appeals, and we
moved the matter to our docket. Following oral arguments,
we requested supplemental briefing from the parties as to
whether a prisoner must be physically presented to the jail
and denied admission for a sheriff to be convicted of official
misconduct for failing to receive a prisoner in violation of
§ 23-1703.
ASSIGNMENTS OF ERROR
Dailey assigns, restated, that the county court erred in finding that (1) the evidence was sufficient to find him guilty, (2)
law enforcement officers making an arrest have the authority
to lawfully commit the arrestee to jail, (3) Sierra was required
to be admitted to jail under § 23-1703, (4) a court order is
not required for lawful commitment to jail under § 23-1703,
(5) Dailey violated § 23-1703 when there was no evidence
that Sierra was presented at the jail after being medically
cleared, and (6) Sierra could not be denied admission due to
his injuries and high-risk status. Dailey also assigns that the
district court erred in affirming the county court’s judgment.
However, his arguments on appeal, restated, are that persons
lawfully arrested without a warrant are not lawfully committed to jail, the Jail Standards authorized Sierra’s exclusion
from jail, and sheriffs in Nebraska have inherent authority to
decline to admit arrestees.
STANDARD OF REVIEW
[1-3] Both the district court and a higher appellate court
generally review appeals from the county court for error
appearing on the record. 1 When reviewing a judgment for
errors appearing on the record, an appellate court’s inquiry
1
Scalise v. Davis, 312 Neb. 518,
980 N.W.2d 27 (2022).
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
is whether the decision conforms to the law, is supported
by competent evidence, and is neither arbitrary, capricious,
nor unreasonable. 2 However, an appellate court independently
reviews questions of law in appeals from the county court. 3
[4] In an appeal of a criminal conviction, we review the evidence in a light most favorable to the prosecution. 4
[5] The meaning and interpretation of statutes and regulations are questions of law for which an appellate court has an
obligation to reach an independent conclusion irrespective of
the decision made by the court below. 5
ANALYSIS
Interpretation of § 23-1703
Dailey argues that he cannot be found guilty of official
misconduct for failing to receive Sierra because there was no
“court order, mittimus, or even a warrant” directing Sierra
to jail and because, as such, Sierra was not “‘lawfully committed’” for purposes of § 23-1703. 6 The State counters that
the plain meaning of “lawful commitment” does not require a
court order. The State also argues that § 23-1703’s provisions
regarding the duties of sheriffs must be construed in conjunction with other Nebraska statutes authorizing warrantless
arrests. We agree with the State.
We first note that under the plain language of § 28-924(1),
a “public servant commits official misconduct if he knowingly violates any statute or lawfully adopted rule or regulation relating to his official duties.” Neither party disputes
2
Id.
3
Id.
4
State v. Anders, 311 Neb. 958,
977 N.W.2d 234 (2022).
5
REO Enters. v. Village of Dorchester, 312 Neb. 792,
981 N.W.2d 254
(2022).
6
Brief for appellant at 13.
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Nebraska Supreme Court Advance Sheets
314 Nebraska Reports
STATE V. DAILEY
Cite as 314 Neb. 325
that Dailey, as the sheriff of Dawes County, was a public
servant. As such, we focus our attention on whether Dailey
violated § 23-1703 by failing to receive Sierra as a lawfully
committed prisoner.
[6,7] To do so, we turn to the plain language of § 23-1703,
which was enacted in 1879 and has not been amended in relevant part since then. Statutory interpretation begins with the
text, and the text is to be given its plain and ordinary meaning. 7 It is a fundamental canon of statutory construction that
words generally should be interpreted as taking their ordinary
meaning at the time the Legislature enacted the statute. 8
[8] We often turn to dictionaries to ascertain a word’s plain
and ordinary meaning. 9 In this case, in 1879, dictionaries
generally defined “commit” to mean “impri[s]on” or “[s]end
to pri[s]on” and defined “commitment” to mean the “[a]ct of”
committing or an “order for” committing a person. 10 “Lawful”
and “lawfully” were defined to mean that which conforms to
law and may be described as just, right, and proper. 11 Some
dictionaries suggested that commitment “ought generally to
be made by Warrant” 12 or that commitment “in writing seems
more necessary than formerly” due to habeas concerns. 13
However, those statements, when they appeared, did not purport to exclude persons arrested without a warrant from
among those who were seen to be committed.
7
State v. Space, 312 Neb. 456,
980 N.W.2d 1 (2022).
8
State v. Godek, 312 Neb. 1004,
981 N.W.2d 810 (2022).
9
State v. Bryant, 311 Neb. 206,
971 N.W.2d 146 (2022).
10
See, e.g., John Walker, Critical Pronouncing Dictionary, and Expositor
of the English Language (1803) (unpaginated). Accord Noah Webster,
Compendious Dictionary of the English Language 58 (1806).
11
Webster, supra note 10; Walker, supra note 10.
12
Giles Jacob, A New Law-Dictionary (1729) (unpaginated).
13
1 Giles Jacob & Thomas Edlyne Tomlins, The Law-Dictionary: Explaining
the Rise, Progress, and Present State, of the English Law 508 (1811).
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STATE V. DAILEY
Cite as 314 Neb. 325
Such definitions were arguably consistent with the common law as to both warrantless arrests and the duties of sheriffs. At common law, “sheriffs, justices of the peace, coroners, constables and watchmen were entrusted with special
powers as conservators of the peace.” 14 Among their powers
was the authority to make arrests without a warrant for felonies and for misdemeanors involving a breach of the peace
committed in their presence. 15 Sheriffs, in turn, had among
their duties “commit[ting] to jail all felons, traitors, and other
misdoers.” 16 Following an arrest, it was the sheriff’s duty to
“confine in jail and safely keep all persons in his custody . . .
until lawfully discharged, and, if they escape, to pursue and
recapture them.” 17 Sheriffs were liable if they failed to take
proper precautions to protect their prisoners or if their prisoners escaped or were unlawfully released. 18 For example, in
an 1868 decision, the Alabama Supreme Court affirmed the
conviction of a special sheriff’s deputy who allowed a prisoner to escape. 19 A federal court took a similar view in 1894,
allowing recovery on a sheriff’s bond for the expenses of
recovering an escaped prisoner. 20
14
2 Ruling Case Law § 3 at 446 (William M. McKinney & Burdett A. Rich
eds., 1914).
15
Id. See, also, Diers v. Mallon, 46 Neb. 121, 126,
64 N.W. 722, 723 (1895)
(sheriffs, constables, and peace officers may make warrantless arrests
for felony offenses “in the absence of any express statutory provision”);
Simmerman v. State, 16 Neb. 615,
21 N.W. 387 (1884) (persons who are
not officers had statutory authority to make certain warrantless arrests).
16
24 Ruling Case Law § 6 at 916 (William M. McKinney & Burdett A. Rich,
eds., 1919).
17
Id. at 923.
18
Id.
19
Kavanaugh v. The State, 41 Ala. 399 (1868), overruled on other grounds,
Andrews v. The State, 78 Ala. 483 (1885).
20
State of Tennessee v. Hill, 60 F. 1005 (1894).
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STATE V. DAILEY
Cite as 314 Neb. 325
There appear to be fewer cases addressing a sheriff’s failure
to receive a lawfully committed arrestee. However, in an 1822
opinion, the Pennsylvania Supreme Court affirmed the conviction of a “keeper of the [Philadelphia] prison” for refusing to
receive a prisoner whom a city constable arrested without a
warrant for “committing a breach of the peace in [the constable’s] presence.” 21 That court found that the jailer was “bound
to receive a prisoner offered by a constable for safe keeping.” 22
In so doing, the court observed that a constable is “a known
officer, charged with the conservation of the peace, and whose
business it is to arrest those who have violated it.” 23 The court
further observed that it would be “strange” if private persons
had to obey and assist constables in suppressing breaches of the
peace, but “an officer of justice should be at liberty to refuse
the most efficient assistance of all, the confinement of the parties engaged.” 24 The court concluded that “officers of justice
are bound to assist each other in their several departments, and
to afford each other all the facilities which the public means
have put in their power.” 25
Subsequently, in a 1901 opinion, the Vermont Supreme
Court similarly stated that “the right to commit to jail follows
the right to arrest, with the limitation however that the officer should, as soon as circumstances will reasonably permit,
bring his prisoner before a proper magistrate for a preliminary
examination.” 26 In that case, a prisoner who killed a deputy
after escaping from jail defended himself by arguing that
his initial imprisonment was unlawful because there was no
21
The Commonwealth v. Deacon, 8 Serg. & Rawle 47, 47 (Pa. 1822).
22
Id. at 48.
23
Id.
24
Id.
25
Id.
26
State v. Shaw, 73 Vt. 149, 169-70,
50 A. 863, 869 (1901).
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STATE V. DAILEY
Cite as 314 Neb. 325
mittimus committing him to jail and that thus, he committed no crime in escaping. The court disagreed, finding that
a mittimus or court order expressly committing prisoners to
jail was “not essential to their legal commitment to jail.” 27
The court observed that a sheriff has a duty to take charge of
“persons before the court accused of crime”; otherwise, such
persons would be “in the custody of no one, and . . . at liberty
to go whither [they] will.” 28 The court reasoned that once the
accused was in legal custody, “the sheriff as executive officer
was charged with his safekeeping.” 29
In light of the plain meaning of “lawfully committed” in
1879 and the common law regarding warrantless arrests and
the duties of sheriffs, we reject Dailey’s argument that a court
order, mittimus, or warrant is required for a prisoner to be
lawfully committed to jail under § 23-1703. Instead, we find
that prisoners like Sierra, lawfully arrested without a warrant
on felony charges, are lawfully committed for purposes of
§ 23-1703.
Nor are we alone in taking such a view of statutory language
codifying the common-law duties of sheriffs. Other states have
adopted statutes like § 23-1703, 30 and the attorneys general of
those states have also opined that persons lawfully arrested
27
Id. at 165, 50 A. at 868.
28
Id.
29
Id. at 166,
50 A. at 868.
30
See, e.g., Ala. Code § 14-6-5 (2018);
Ark. Code Ann. § 12-41-503(b)
(Supp. 2009); Colo. Rev. Stat. Ann. § 17-26-103 (West 2020);
Iowa Code
Ann. § 356.2 (West 2013);
Kan. Stat. Ann. § 19-1930(a) (2007);
Ky. Rev.
Stat. Ann. § 71.040 (LexisNexis 2014);
Mass. Gen. Laws Ann. ch. 126,
§ 16 (West 2015);
Mich. Comp. Laws Ann. § 66.8 (West 2006);
Minn.
Stat. § 387.11 (2022);
Miss. Code Ann. § 19-25-35 (2012);
Mo. Ann. Stat.
§ 57.100(1) (West 2023);
Nev. Rev. Stat. § 248.050 (2021);
N.J. Stat. Ann.
§ 30:8-17 (West 2020);
Or. Rev. Stat. § 169.320(1) (2007);
S.C. Code
Ann. § 24-5-10 (2007);
Tenn. Code Ann. § 8-8-201(a)(3) (Supp. 2009);
Va. Code Ann. § 18.2-476 (2004);
W. Va. Code Ann. § 7-8-4 (LexisNexis
2006).
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without a warrant are lawfully committed to jail under their
states’ statutes. 31
For example, in 1989, the Iowa Attorney General took the
view that “actual commitment or conviction” is not required
for a person to be lawfully committed to jail under that state’s
statute. 32 Instead, there need only be an arrest for an offense for
which the arrestee could be imprisoned if convicted. 33 In reaching that conclusion, the Iowa Attorney General observed that
law enforcement officers have statutory authority to make warrantless arrests. Accordingly, the Iowa Attorney General reasoned that construing “lawfully committed” narrowly to mean
commitment by a court would be contrary to the Legislature’s
intent in enacting those statutes, because it “would obviously
hamper law enforcement efforts.” 34 The Tennessee Attorney
General took a similar view in a 1994 opinion, finding that the
term “commitment” was not limited to “formal commitment”;
rather, it encompassed any lawful holding, and he found a
“temporary holding” after an arrest and prior to an individual’s
appearance before a magistrate to be lawful. 35
31
See, e.g., Wash. Att’y Gen. Op. No. 4 (Dec. 23, 2004); Tenn. Att’y Gen.
Op. No. 02-015 (Feb. 6, 2002); Tenn. Att’y Gen. Op. No. 98-159 (Aug. 24,
1998); Tenn. Att’y Gen. Op. No. 94-041 (Mar. 31, 1994); Iowa Att’y Gen.
Op. No. 89-7-1 (July 3, 1989); Wash. Att’y Gen. Op. No. 9 (May 9, 1988);
Iowa Att’y Gen. Op. No. 82-6-9 (June 17, 1982); Ky. Att’y Gen. Op. No.
81-148 (Apr. 8, 1981); Wash. Att’y Gen. Op. No. 21 (Nov. 13, 1980); Ky.
Att’y Gen. Op. No. 72-780 (Nov. 28, 1972); Ohio Att’y Gen. Op. No.
972 (Sept. 8, 1927). But see, Tenn. Att’y Gen. Op. No. 89-23 (Feb. 13,
1989) (pretrial divertees not lawfully committed to jail because housing
them there is inconsistent with purpose of pretrial diversion); Ind. Att’y
Gen. Op. 34, 35 (May 20, 1903) (“tramps” who are picked up without
having committed crime and are not charged with one are not “lawfully
committed” to jail).
32
Iowa Att’y Gen. Op. No. 89-7-1, supra note 31 at 33.
33
Id.
34
Id. at 32.
35
Tenn. Att’y Gen. Op. No. 94-041, supra note 31 at 3.
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The various sources cited by Dailey in support of his argument that a court order is required for a prisoner to be lawfully
committed to jail are inapposite. For example, Dailey quotes
the following definition of “commitment” from the fourth edition of Black’s Law Dictionary:
In practice. The warrant or mittimus by which a court or
magistrate directs an officer to take a person to prison.
Authority for holding in prison one convicted of crime. .
. . A process directed to a ministerial officer by which a
person is to be confined in prison, usually issued by a
court or magistrate. . . .
....
The act of sending a person to prison by means of such
a warrant or order. 36
However, even assuming that that definition, which was drafted
after the enactment of § 23-1703 and addresses the noun “commitment” rather than the verb “commit,” were seen to be
applicable, it would not support Dailey’s argument. 37 Instead,
that definition itself says only that the commitment process
is “usually” directed by a court or magistrate. The definition
also encompasses any authority for confining a prisoner or any
process by which a prisoner is confined.
The same is generally true of the opinions from this and
other jurisdictions cited by Dailey. Those opinions sometimes
include statements to the effect that a “commitment is a warrant, order[,] or process by which a court or magistrate directs
a ministerial officer to take a person to prison or to detain
36
Black’s Law Dictionary 341 (4th ed. 1951).
37
Cf. Black’s Law Dictionary 329 (10th ed. 2014) (defining “commit”
to mean “[t]o send . . . to prison or to a mental health facility, esp. by
court order,” and “commitment” to include both act of confinement to
“prison, mental hospital, or . . . institution” and “order directing” such
confinement).
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him there.” 38 However, in all but one instance, those cases
did not purport to address whether lawful commitment could
result from a warrantless arrest. 39
The one exception is a 1912 opinion from the Vermont
Supreme Court, which expressly stated that detention following a legal arrest, “by virtue of either civil or criminal
process, or without process,” pending a court hearing does
not constitute a commitment to jail. 40 However, the court
there made clear that it was concerned with a specific statute,
requiring those under age 16 committed to jail to be kept
separate from older persons, that “refers to commitments in
the strict sense.” 41
Nor do we find persuasive the dissent’s suggestion that a
prisoner must be physically presented at a jail for a sheriff to
be found to have failed to “receive” the prisoner for purposes
of § 23-1703. The plain meaning of the term “receive” is “to
take, get, admit, hold, entertain.” 42 Nothing in that definition,
or in the language of § 23-1703, requires that a prisoner be
physically present at the jail for the sheriff to be found to
have refused to receive the prisoner. And, viewing the evidence in the light most favorable to the conviction, as our
standard of review requires, we believe there was competent
38
People ex rel. Allen v. Hagan, 170 N.Y. 46, 49,
62 N.E. 1086, 1087 (1902),
distinguished on other grounds, In re Joerns, 100 N.Y.S. 503,
51 Misc.
395 (1906).
39
Cf., State, ex rel. Marasco, v. Mundell, 127 Neb. 673,
256 N.W. 519
(1934); Cain v. Miller, 109 Neb. 441,
191 N.W. 704 (1922); Huffman v.
Koppelkom, 8 Neb. 344,
1 N.W. 243 (1879). See, also, Gilbert v. United
States, 23 Ct. Cl. 218 (1888); People v. Henderson,
235 N.Y.S. 173,
134
Misc. 228 (1929); People ex rel. Allen v.
Hagan, supra note 38.
40
In re Liola Edson, 85 Vt. 366, 369,
82 A. 664, 665 (1912).
41
Id.
42
Webster, supra note 10 at 249. See, also, Black’s Law Dictionary, supra
note 37 at 1460 (“receive” means “[t]o take (something offered, given,
sent, etc.); to come into possession of or get from some outside source”).
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evidence that Dailey refused to receive Sierra. As recounted
above, there was evidence that Dailey emphasized on numerous occasions that he would not accept Sierra as a prisoner,
as well as evidence that when an NSP dispatcher asked jail
staff whether they would take Sierra “if he has a medical
clearance,” jail staff replied that they had been instructed by
Dailey not to take Sierra.
Authority Under Nebraska’s
Jail Standards
Dailey also argues that he had authority under the Jail
Standards to decline to receive Sierra, because Sierra was
injured and a high-risk prisoner. The State counters that the
decision not to receive Sierra was not actually based on the
Jail Standards and that Dailey failed to “discuss or even recite
any provisions” of the Jail Standards that would support his
position. 43 We again agree with the State.
Dailey does not specifically cite the standard or standards
that he claims authorized his actions; instead, he relies on
testimony by an inspector for the Jail Standards division of
the Nebraska Commission on Law Enforcement and Criminal
Justice. However, even if Dailey could point to a specific
standard authorizing him to decline to receive Sierra, his
argument would be unavailing, because the trier of fact found
that Dailey’s claim that the decision not to receive Sierra was
based on the Jail Standards was not credible in light of the
evidence presented. The county court observed that Dailey
told the NSP that the jail would not receive Sierra before
Dailey ever saw Sierra and before Sierra was medically
examined. The county court also pointed to Dailey’s subsequent statement to investigators that he acted out of anger at
the perceived slight to his authority. We defer to the county
court’s determinations about the credibility of witnesses and
43
Brief for appellee at 20.
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the weight of the evidence here; such matters are for the
finder of fact. 44
[9,10] Moreover, as regulations, the Jail Standards could not
override a statutory requirement in any case. An administrative
agency is limited in its rulemaking authority to powers granted
to the agency by the statutes which it is to administer. 45 It may
not employ its rulemaking power to modify, alter, or enlarge
portions of its enabling statute. 46 An administrative agency
cannot employ its rulemaking authority to adopt regulations
contrary to the statutes that it is empowered to enforce. 47
Here, § 23-1703 expressly provides that sheriffs are “required
to receive those lawfully committed and to keep them . . .
until discharged by law.” That statutory requirement cannot be
altered by regulation.
Inherent Authority
Dailey further argues that absent a court order, county sheriffs “by law” have discretion to determine who is admitted
to jail, and that other law enforcement officers “do not, and
should not, have the authority” to compel sheriffs to accept
arrestees. 48 We disagree.
As the State observes, Dailey cites no authority for the
proposition that absent a court order, sheriffs effectively have
inherent authority to decline to receive arrestees. Nebraska
statutes provide that sheriffs shall exercise the powers and
perform the duties conferred and imposed upon them by other
statutes and by the common law. 49 However, Dailey has not
44
See, e.g., State v. Garcia, 311 Neb. 648,
974 N.W.2d 305 (2022).
45
See, e.g., Project Extra Mile v. Nebraska Liquor Control Comm., 283
Neb. 379,
810 N.W.2d 149 (2012), overruled on other grounds, Griffith v.
Nebraska Dept. of Corr. Servs., 304 Neb. 287,
934 N.W.2d 169 (2019).
46
Id.
47
Id.
48
Brief for appellant at 19.
49
Neb. Rev. Stat. § 23-1701.03 (Reissue 2022).
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identified any Nebraska statute or provision of the common
law authorizing sheriffs to decline to receive persons lawfully arrested. To the contrary, § 23-1703 expressly requires
sheriffs to receive those lawfully committed, and the common
law recognized both warrantless arrests and sheriffs’ duties to
receive lawful arrestees and maintain custody of them until
their release.
Remaining Assignments of Error
[11] Dailey assigned other errors in his brief on appeal.
However, only those errors previously discussed were argued
in Dailey’s brief on appeal. As such, we decline to consider
the remaining assignments of error. Alleged errors of the
lower court must be both specifically assigned and specifically
argued in the brief of the party asserting the errors to be considered by an appellate court. 50
CONCLUSION
Dailey’s argument that the district court erred in affirming
his conviction is without merit. Accordingly, we affirm the
judgment of the district court, which affirmed Dailey’s conviction and sentence from the county court.
Affirmed.
Freudenberg, J., not participating.
50
State v. Lessley, 312 Neb. 316,
978 N.W.2d 620 (2022).
Heavican, C.J., concurring in part, and in part dissenting.
I concur in that portion of the majority’s opinion which
holds that prisoners who are lawfully arrested without a warrant on a felony charge are lawfully committed for purposes
of
Neb. Rev. Stat. § 23-1703 (Reissue 2022). I further concur with the majority’s rejection of Dailey’s assertion that
sheriffs have discretion or inherent authority to determine
who can be admitted to the jails they oversee. And I concur
with the majority insofar as it concludes that Nebraska’s
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jail standards are regulations which cannot alter a statutory
requirement. However, I respectfully dissent from that portion
of the majority opinion affirming Dailey’s conviction.
Dailey was charged with official misconduct under
Neb.
Rev. Stat. § 28-924 (Reissue 2016). Section 28-924 provides
in part that “[a] public servant commits official misconduct
if he knowingly violates any statute or lawfully adopted rule
or regulation relating to his official duties.” In this instance,
Dailey was charged with not complying with the requirements
of § 23-1703. Section 23-1703 provides:
Except in counties where a county board of corrections
exists and has assumed responsibility over the jail pursuant to sections 23-2801 to 23-2806, the sheriff shall have
charge and custody of the jail, and the prisoners of the
same, and is required to receive those lawfully committed and to keep them himself or herself, or by his or her
deputy jailer, until discharged by law.
In order for Dailey to be convicted of official misconduct
under § 28-924, the State has the burden to show that he failed
to comply with his obligations under § 23-1703. 1 We have
held that penal statutes must be strictly construed. 2 While I
agree, as noted above, that Sierra was “lawfully committed,”
the State did not show that Dailey failed to “receive” Sierra. 3
The evidence is uncontroverted that Dusatko, a Nebraska
State Patrol trooper, did not present Sierra at the Dawes
County jail. Nor was evidence adduced that Dawes County
jail staff declined to receive Sierra after he was medically
cleared. Instead, Dusatko concluded, largely based upon
Dailey’s prior statements, that “Dawes County was not going
to take [Sierra].”
1
See State v. Lester, 295 Neb. 878,
898 N.W.2d 299 (2017).
2
State v. Godek, 312 Neb. 1004,
981 N.W.2d 810 (2022).
3
See § 23-1703.
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Even if I were to conclude that statements such as those
made by Dailey might be sufficient in some situations to
prove that a prisoner would not be received within the meaning of § 23-1703, and thus relieve the arresting officer of the
requirement of presenting that prisoner, in my view, Dailey’s
statements here did not meet that threshold.
It is clear from the record that Dailey was upset with the
State Patrol and how the investigation into Sierra’s actions
was proceeding. Indeed, the evidence is undisputed that Dailey
indicated that the State Patrol could “expect zero cooperation”
from the Dawes County sheriff’s office “in the future” and
that “if [Dailey] could arrange it, [the State Patrol] won’t
be booking prisoners in [the Dawes County] jail anymore.”
But these statements, as phrased, are divorced from the facts
surrounding the Sierra investigation and were phrased as
future actions.
In particular, the statement that Dailey hoped to “arrange
it” so that he did not have to accept prisoners from the State
Patrol suggests that Dailey understood that he might have to
do so in this instance. And, the evidence showed that Sierra
was in need of medical attention and that Dailey informed
an officer with the Chadron Police Department that Sierra
should be taken to the Scotts Bluff County jail because it had
access to medical care and not for any other reason. There is
no evidence that Dailey was informed that Sierra had been
medically cleared and was ready to be received at the Dawes
County jail.
While I agree with the majority that the Nebraska jail
standards cannot alter a statutory requirement, I note that the
record suggests that both Dailey and Dusatko were operating at
least in part under the assumption that Sierra needed medical
clearance to be admitted to the Dawes County jail.
In short, Dailey was not given the opportunity, upon
Sierra’s medical clearance at the hospital in Chadron, to
decline to receive Sierra at the Dawes County jail. In the
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absence of such a declination or refusal, we cannot find that
the State met its burden to show that Dailey was guilty of
official misconduct. The record shows that Dailey’s conviction rests only on Dusatko’s speculation that Dailey would
fail to receive him. As such, I would reverse Dailey’s conviction and remand the matter with instructions to dismiss the
charge against him.
Pankonin, District Judge, joins.
