372 N.W.2d 445 (Neb. 1985), 84-703, State v. Sinica

Docket Nº:84-703.
Citation:372 N.W.2d 445, 220 Neb. 792
Opinion Judge:WHITE, J.
Party Name:STATE of Nebraska, Appellant, v. Peter M. SINICA, Appellee.
Attorney:Michael G. Heavican, Lancaster County Attorney, and David W. Stempson, for appellant. Laureen Van Norman, for appellee.
Case Date:August 23, 1985
Court:Supreme Court of Nebraska

Page 445

372 N.W.2d 445 (Neb. 1985)

220 Neb. 792

STATE of Nebraska, Appellant,

v.

Peter M. SINICA, Appellee.

No. 84-703.

Supreme Court of Nebraska.

August 23, 1985

Page 446

Syllabus by the Court

1. Constitutional Law: Statutes: Standing. A person may have standing to facially challenge an enactment for overbreadth because it may reach a substantial amount of constitutionally protected conduct.

2. Constitutional Law: Marriage. The right to privacy protected by the fourteenth [220 Neb. 793] amendment includes a right to freedom of choice in marriage and family decisions.

3. Constitutional Law: Minors: Parental Rights. Parents have a fundamental liberty interest protected by the due process guarantees of the fourteenth amendment in the care, custody, and management of their children.

4. Constitutional Law: Statutes: Appeal and Error. When a statute is facially challenged as to overbreadth and vagueness, our first task is to determine whether the enactment reaches a substantial amount of constitutionally protected conduct.

5. Statutes: Appeal and Error. In deciding whether a statute is overbroad, a court should evaluate the ambiguous as well as unambiguous scope of the enactment. To this extent the vagueness of a law affects overbreadth analysis.

6. Statutes: Minors: Words and Phrases. The term "cruelly punished" as used in Neb.Rev.Stat. § 28-707(1)(b) (Cum.Supp.1984) has acquired a relatively widely accepted connotation in the law and is capable of an easily understood meaning, as distinguished from the reasonable discipline of a child allowed by the common law and protected by the Constitution.

7. Statutes: Legislature: Intent: Appeal and Error. In construing a statute we will presume that the Legislature intended a sensible rather than absurd result, and we will endeavor to interpret the statute in a manner consistent with the Constitution.

8. Constitutional Law: Minors: Words and Phrases. Child abuse is not a constitutionally protected activity.

9. Statutes: Standing. In order to have standing to challenge a vague statute, one must not have engaged in conduct which is clearly proscribed by the statute and cannot complain of the vagueness of the law as applied to the conduct of others.

Michael G. Heavican, Lancaster County Atty., and David W. Stempson, Lincoln, for appellant.

Laureen Van Norman, Lincoln, for appellee.

KRIVOSHA, C.J., and BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

WHITE, Justice.

This is an appeal from a decision of the district court for Lancaster County, Nebraska, in a criminal case.

Pursuant to Neb.Rev.Stat. § 29-2315.01 (Cum.Supp.1984), the State filed an application for leave to docket an appeal to this court, taking exceptions to the ruling of the lower court. We sustain one of the exceptions.

[220 Neb. 794] Appellee, Peter M. Sinica, was arrested and charged with child abuse, specifically that he "did knowingly or intentionally cause or permit Peter M. Sinica, Jr., a minor child, to be cruelly punished." Appellee was bound over to the district court after a preliminary hearing. Appellee raised the question of the constitutionality of the statute in both the county court and the district court. The trial court sustained a motion to quash the information, holding

Page 447

that Neb.Rev.Stat. § 28-707(1) (Cum.Supp.1984) is "so vague that it violates due process of law."

In its order the district court mistakenly cited the statute the appellee was charged under as Neb.Rev.Stat. § 28-708 (Cum.Supp.1984). While this section contains similar language, it applies to "incompetent or disabled" persons, not minor children. Taken as a whole, however, the trial judgment clearly refers to § 28-707(1), and we assume the court intended it to refer to the proper statute. See State v. Olson, 217 Neb. 130, 347 N.W.2d 862 (1984).

The appellee is the...

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