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State v. Thomas8/13/2004
that "an information which charges an offense in language of a statute which is unconstitutional states no offense and the defect is jurisdictional." Id. at 727, 290 N.W.2d at 185, citing State v. Evjue, 253 Wis. 146, 33 N.W.2d 305 (1948). Thomas further points out that in State v. Torres, 254 Neb. 91, 574 N.W.2d 153 (1998), we cited People v. Starnes, 273 Ill. App. 3d 911, 653 N.E.2d 4, 210 Ill. Dec. 417 (1995), in which the Illinois Court of Appeals held that while a constitutional challenge to a statute under which a defendant is convicted cannot be waived, a defendant can waive such a challenge to the constitutionality of a collateral statute.
In both Valencia and Torres, the cited language was dicta. In Valencia, we did not hold that the alleged defect raised an issue of subject matter jurisdiction, and in Torres, we did not hold that a constitutional challenge to the charging statute could not be waived. We further note that in State v. Caddy, 262 Neb. 38, 628 N.W.2d 251 (2001), we disposed of an argument similar to that made in this case by assuming without deciding that a constitutional challenge to a charging statute was jurisdictional and could be raised at any time, but concluding that § 28-304 was not unconstitutionally vague as alleged in that case. We view the issue of whether a facial challenge to the constitutionality of a charging statute is an issue of subject matter jurisdiction as one on which this court has not definitively held.
This issue was addressed by the District of Columbia Court of Appeals in U.S. v. Baucum, 80 F.3d 539 (D.C. Cir. 1996). In that case, the court of appeals had declined to address the defendant's constitutional challenge to the underlying criminal statute on direct appeal because he had failed to preserve it at trial. In his petition for rehearing, the defendant argued for the first time that his constitutional challenge to the charging statute raised an issue of the district court's subject matter jurisdiction and that, therefore, he could not be deemed to have waived it. The court of appeals noted that there was authority to the contrary, but ultimately concluded that "the weight of the precedent, as well as prudential considerations, counsel toward treating facial constitutional challenges to presumptively valid statutes as non-jurisdictional." Id. at 540. The court reasoned:
At the time of [the defendant's] indictment (and still today), the federal law he was charged with violating, having never been declared unconstitutional, enjoyed a presumption of validity. When a federal court exercises its power under a presumptively valid federal statute, it acts within its subject-matter jurisdiction. . . . It is true that once a statute has been declared unconstitutional, the federal courts thereafter have no jurisdiction over alleged violations (since there is no valid "law of the United States" to enforce), but [the defendant's] belated assertion of a constitutional defect does not work to divest that court of its original jurisdiction to try him for a violation of the law at issue.
Id. at 540-41. The court further reasoned that because federal courts are obligated to address jurisdictional issues sua sponte, a rule that a constitutional challenge to a statute implicated subject matter jurisdiction would require federal courts to address a statute's validity as a threshold matter in any case. The court determined that such a requirement was contrary to established U.S. Supreme Court precedent declining to address constitutional questions not put in issue by the parties. See, also, U.S. v. Feliciano, 223 F.3d 102 (2d Cir. 2000).
We find this reasoning persuasive and therefore hold that a facial challenge to a pres
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