§ 25-2705 — Trial by jury; demand for; exceptions; time; laws applicable

Nebraska § 25-2705

• Jurisdiction: Nebraska
• Ch. 25: Courts; Civil Procedure

Text

(1) Either
party to any case in county court, except criminal cases arising under city
or village ordinances, traffic infractions, other infractions, and any matter
arising under the Nebraska Probate Code or the Nebraska Uniform Trust Code,
may demand a trial by jury. In civil cases, the demand shall be in writing
and shall be filed with the court:
(a) By a plaintiff
on the date the complaint is filed with the court;
(b) By a defendant on
or before the date the answer is filed with the court;
(c) By a counterclaimant
on the date the counterclaim is filed with the court;
(d) By a counterclaim
defendant on or before the date the reply to the counterclaim is filed with
the court;
(e) By a third-party plaintiff on the date the third-party complaint
is filed with the court;
(f) By a third-party defendant on or before the date the answer
to the third-party complaint is filed with the court;
(g) By a cross-claimant
on the date the cross-claim is filed with the court; and
(h) By a cross-claim
defendant on or before the date the answer to the cross-claim is filed with
the court.
(2) All
provisions of law relating to juries in the district courts shall apply to
juries in the county courts, and the district court jury list shall be used,
except that juries in the county courts shall consist of six persons.

Legislative History

Source: Laws 1972, LB 1032, § 36; Laws 1973, LB 6, § 1; Laws 1973, LB 548, § 1; Laws 1975, LB 481, § 5; Laws 1979, LB 534, § 6; Laws 1984, LB 13, § 18; Laws 1987, LB 77, § 4; R.S.Supp.,1988, § 24-536; Laws 2003, LB 130, § 116; Laws 2011, LB669, § 19. Cross References: Nebraska Probate Code, see section 30-2201. Nebraska Uniform Trust Code, see section 30-3801. Annotations: 1. Constitutionality of statute 2. When right exists 3. Necessity for demand 4. Miscellaneous 1. Constitutionality of statute This section, which denies jury trials for criminal cases arising under city or village ordinances or from traffic infractions, is unconstitutional to the extent it denies a jury trial to defendants charged with third-offense driving while intoxicated or greater who are subject to a sentence of up to 6 months in jail and a 15-year operator's license suspension. State v. Wiltshire, 241 Neb. 817, 491 N.W.2d 324 (1992). There is no right to a jury trial for violations of municipal ordinances. State v. Blair, 230 Neb. 775, 433 N.W.2d 518 (1988). Where the constitutionality of this section, insofar as it requires the defendant to request a jury trial, was not raised at any time prior to appeal, it will not be considered on appeal. State v. Hiross, 211 Neb. 319, 318 N.W.2d 291 (1982). This section, providing for jury trials in the municipal courts except criminal cases arising under city or village ordinances, does not violate Article I, section 6, of Nebraska Constitution. State v. Flores, 209 Neb. 302, 307 N.W.2d 523 (1981). 2. When right exists A defendant is not entitled to a jury trial in a prosecution for violation of a municipal ordinance. State v. Cozzens, 241 Neb. 565, 490 N.W.2d 184 (1992). A demand for a jury trial by a defendant is necessary to involve the statutory right to a jury trial. State v. Miller, 226 Neb. 576, 412 N.W.2d 849 (1987). This section does not provide a right to a jury trial for the violation of a municipal ordinance where the offense charged is petty. State v. Richter, 225 Neb. 871, 408 N.W.2d 324 (1987). A defendant who appears pro se must make a proper demand for a jury trial pursuant to this section or that right will be deemed waived. State v. Lafler, 224 Neb. 613, 399 N.W.2d 808 (1987). In municipal court prosecution for operating a vehicle while under the influence, defendant enjoys no constitutional right to trial by jury, and untimely request constituted waiver. State v. Nielsen, 199 Neb. 597, 260 N.W.2d 321 (1977). There is no constitutional right to trial before a twelve-member jury on a petit offense. State v. Soester, 199 Neb. 477, 259 N.W.2d 921 (1977). Under this section, defendant is expressly granted the right to a jury trial in the county court and municipal court. State v. Young, 194 Neb. 544, 234 N.W.2d 196 (1975). 3. Necessity for demand To invoke this statutory right, an accused must make a demand for a jury trial by filing a timely request in accordance with the court rules. State v. Bishop, 224 Neb. 522, 399 N.W.2d 271 (1987). As reflected by this section, the right to a jury trial is part of our fundamental law. State v. Kennedy, 224 Neb. 164, 396 N.W.2d 722 (1986). Challenger of this section must show he or she would receive a benefit by a declaration of invalidity before standing will be allowed. State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986). A demand is required to invoke the statutory right to a jury trial. State v. Vernon, 218 Neb. 539, 356 N.W.2d 887 (1984). There is no constitutional right to a jury trial for an offense carrying a minimum sentence of six months or less and, while this section gives a statutory right to a jury trial in such cases, a demand must be made in order to invoke this right. State v. Mangelsen, 207 Neb. 213, 297 N.W.2d 765 (1980). 4. Miscellaneous No right to jury trial if charged under municipal ordinance equivalent to section 39-669.07. State v. Lynch, 223 Neb. 849, 394 N.W.2d 651 (1986). A defendant in a criminal case may make an oral request for a jury trial at the time of arraignment or may make the request in writing according to the rules set by the trial court. State v. Gerber, 206 Neb. 75, 291 N.W.2d 403 (1980). Supreme Court will take judicial notice of all rules of district, separate juvenile, county, municipal, and workmen's compensation courts on file with the Clerk of the Supreme Court. State v. Barrett, 200 Neb. 553, 264 N.W.2d 434 (1978). Under this section, a trial court is not required to advise a defendant, charged with a petty offense, of his or her statutory right to a jury trial or the time and manner which must be followed to invoke that right, even if he elects to proceed pro se, when that defendant is penalized only by fine. State v. Golden, 8 Neb. App. 601, 599 N.W.2d 224 (1999).