Update on Trump’s Coup: Do Not Think That This Is Guaranteed to End Well

NEIL H. BUCHANAN

UF Levin College of Law professor Neil H. Buchanan explains why “being patient with Trump” is a recipe for disaster, why there are still reasons to be guardedly optimistic, and why this all could still end very badly. Buchanan argues that the present situation is not guaranteed end badly, but he cautions that a Trump coup is eminently possible.

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State v. Cox

Citation: 307 Neb. 762

Opinion Date: November 13, 2020

Judge: Michael G. Heavican

Areas of Law: Civil Rights, Constitutional Law, Criminal Law

The Supreme Court affirmed Defendant's conviction of first degree murder, use of a deadly weapon to commit a felony, and possession of a deadly weapon by a prohibited person, holding that the district court did not err in admitting cell phone records for Defendant's phone and statements Defendant made to law enforcement. Prior to trial, Defendant filed motions to suppress his cell phone records and statements he made to law enforcement, arguing that the warrant authorizing the search of Defendant's cell phone records was obtained without probable cause and that his Miranda rights were violated when he invoked his right to remain silent and officers continued to question him. The district court denied the motion to suppress. The Supreme Court affirmed, holding (1) the district court did not err in admitting cell site location information evidence at trial; and (2) Defendant waived any right to assert error in the denial of his motion to suppress his statements made to law enforcement.

TDP Phase One, LLC v. Club at the Yard, LLC

Citation: 307 Neb. 795

Opinion Date: November 13, 2020

Judge: Freudenberg

Areas of Law: Contracts

The Supreme Court dismissed Tenant's appeal from an order of summary judgment in favor of Landlord on Landlord's claim seeking restitution of the premises pursuant to the forcible entry and detainer (FED) statutes, Neb. Rev. Stat. 25-21,219 through 25-21,235, holding that this Court was without jurisdiction over the appeal. Tenant failed to pay rent and refused to vacate the premises. Landlord subsequently brought this action for restitution pursuant to the FED statutes and also brought claims for breach of the lease agreement and breach of the guaranty agreement. Tenant counterclaimed, asserting several claims. The district court granted summary judgment in favor of Landlord on its FED claim, but the order did not resolve the remaining claims of either party. Tenant appealed but did not seek a Neb. Rev. Stat. 25-1315 certification from the district court. The Supreme Court dismissed the appeal, holding that the order of restitution disposing of the FED action did not satisfy section 25-1315(1), and therefore, this Court was without jurisdiction over Tenant's appeal.

State v. Jones

Citation: 307 Neb. 809

Opinion Date: November 13, 2020

Judge: Lindsey Miller-Lerman

Areas of Law: Criminal Law

The Supreme Court reversed the judgment of the district court summarily denying Defendant's motion to vacate or modify seeking reinstatement of his appeal a postconviction ruling, holding that the district court erred when it denied Defendant's motion without a hearing. Defendant was convicted of first degree murder and sentenced to life imprisonment. After Defendant brought an unsuccessful appeal he filed a petition for postconviction relief. The district court denied the petition without an evidentiary hearing. Defendant filed a timely notice of appeal, but his request to proceed in forma pauperis and the accompanying poverty affidavit were not timely filed. The Supreme Court dismissed the appeal for lack of jurisdiction. Defendant subsequently filed in the district court a motion to vacate or modify, seeking reinstatement of his appeal on the grounds that the negligent acts of prison officials in the mailroom at the penitentiary delayed the filing of his poverty affidavit. The district court denied the motion without a hearing. The Supreme Court reversed and remanded for a hearing on the motion, holding that Defendant's claim of official negligence was sufficient to obtain a hearing at which to submit proof to the court of his allegation of official negligence.

State v. Stack

Citation: 307 Neb. 773

Opinion Date: November 13, 2020

Judge: Papik

Areas of Law: Criminal Law

The Supreme Court affirmed Defendant's convictions and sentences for second degree murder and use of a deadly weapon to commit a felony, holding that there was no merit to the errors assigned and argued by Defendant. Specifically, the Supreme Court held (1) the district court did not err in declining to direct a verdict and finding the evidence was sufficient to support Defendant's convictions; (2) the district court did not err in determining that the evidence supported a conviction of second degree murder rather than sudden quarrel manslaughter; (3) the district court did not err in overruling Defendant's insanity defense; and (4) the district court did not impose excessive sentences.

Higgins v. Currier

Citation: 307 Neb. 748

Opinion Date: November 13, 2020

Judge: Papik

Areas of Law: Family Law

In this marital dissolution action, the Supreme Court reversed the judgment of the court of appeals to the extent it affirmed the district court's disposition of Husband's 401K accounts, holding that the court of appeals and the district court erred in their application of the active appreciation rule. In its dissolution decree, the district court found that Wife should be awarded $10,500 from a 401K account owned by Husband but otherwise awarded Husband all funds in his retirement and investment accounts. The court of appeals affirmed the decree. The Supreme Court reversed in part, arguing that although the value of the 401K account at issue at the time of the parties' marriage was Husband's nonmarital property, under the active appreciation rule, the growth in that account during the marriage was marital. The Supreme Court agreed, holding that the increase in the value of the 401K account should have been treated as marital property subject to equitable division, and the lower courts abused their discretion in finding otherwise.