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Despite dismissal of appeal, advocates see opportunity for justice for those facing eviction

By: - July 24, 2023 5:00 am

Judges of the Nebraska Supreme Court (and when they were appointed), front row from left: Lindsey Miller-Lerman (1998), Chief Justice Michael Heavican (2006), William Cassel (2012). Back row, from left: Jonathan Papik (2018), Stephanie Stacy (2015), Jeffrey Funke (2016) and John Freudenberg (2018).

LINCOLN — Attorneys for renters facing eviction are expressing optimism that help will be coming for their clients, despite the dismissal Friday of an appeal before the Nebraska Supreme Court.

In the appeal, attorneys with Legal Aid of Nebraska and the Nebraska Appleseed Center argued that those facing eviction have a constitutional right to a jury trial before they lose their home.

The court ruled that the appeal was moot because an Omaha woman who had appealed had already been evicted from her apartment.

Three judges question constitutionality

But three judges on the seven-member State Supreme Court said that while the Nebraska Uniform Residential Landlord and Tenant Act provides that judges should decide eviction cases, that appears to run contrary to the Nebraska Constitution’s requirement that the “right of trial by jury shall remain inviolate.” 

In a concurring opinion written by Judge Jonathan Papik, the judges said that while the issue has not been decided in Nebraska courts, other courts have ruled that an eviction action is “legal in nature and … thus subject to similar constitutional jury trial guarantees.”

Papik questioned whether the State Legislature, by passing a law — in this case requiring a bench trial rather than a jury trial — could supersede the State Constitution.

Attorneys representing the subject of the appeal, Teresa Holcomb, said that for too long Nebraskans facing eviction have been denied a fair chance to oppose such an action.

“The concurring opinion filed has made it more clear than ever that the right to a trial by jury is recognized by our State’s Constitution. We will not rest until a final authoritative opinion is issued recognizing this critical right,” said Kasey Ogle, an attorney with Collective Impact Lincoln, a partnership between Nebraska Appleseed and Civic Nebraska.

‘Crime-free’ clause

Ken Smith of Nebraska Appleseed called evictions “a horribly unfair process” because of a lack of a right to a jury trial.

Attorneys for Holcomb also complained that bench trials for evictions occur so quickly that a tenant doesn’t have a fair chance to present a defense.

Caitlin Cedfeldt of Legal Aid of Nebraska represented Holcomb, who was evicted after her landlord, NP Dodge, claimed that she violated a “crime-free” clause in her lease agreement by threatening to attack two other residents in a common area.

Holcomb disagreed, maintaining that she uttered “words of frustration,” but she was denied an opportunity to present her case before a jury. Douglas County District Judge Michael Coffey ultimately ruled for NP Dodge, and Holcomb was evicted.

Others supporting Holcomb in her appeal were the ACLU of Nebraska, the Iowa/Nebraska NAACP, the Nebraska College of Law Civil Clinic, and Lindsay Belmont of Koenig|Dunne Law on behalf of the National Housing Law Project.

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Paul Hammel
Paul Hammel

Senior Reporter Paul Hammel has covered the Nebraska state government and the state for decades. Previously with the Omaha World-Herald, Lincoln Journal Star and Omaha Sun, he is a member of the Omaha Press Club's Hall of Fame. He grows hops, brews homemade beer, plays bass guitar and basically loves traveling and writing about the state. A native of Ralston, Nebraska, he is vice president of the John G. Neihardt Foundation.

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