Yes, Trump Is (Still) Engaged in an Attempted Coup; and Yes, It Might Lead to a Constitutional Crisis and a Breaking Point

NEIL H. BUCHANAN

UF Levin College of Law professor and economist Neil H. Buchanan explains why Donald Trump’s actions reflect an attempted coup and might still lead to a constitutional crisis. In this column, Buchanan first explains what a coup is and describes the ways that Trump has failed in his attempts thus far. Buchanan warns about how all this could still end in a constitutional crisis that Trump creates and exploits to stay in power.

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Estate of Moore

Citation: 2020 ND 249

Opinion Date: November 19, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Business Law, Trusts & Estates

Donald Moore, Scott Moore, and the Glenn W. Moore & Sons partnership appealed an amended judgment ordering the partnership to pay $140,206 to Delbert Moore’s step-children, Charles Minard, Candice Eberhart, and Terry Minard. Before his death, Delbert Moore was a partner with his brother Donald Moore and nephew Scott Moore in the Glenn W. Moore & Sons partnership, a ranching business. Delbert Moore’s will directed that a majority of his real property be sold within six months of his death and the proceeds be distributed to his three step-children, Charles Minard, Candice Eberhart, Terry Minard, and his nephew Scott Moore. His will also devised his one-third interest in the partnership to his three step- children. Delbert Moore’s real property sold in May 2015. The partnership and Delbert Moore’s estate each hired an accountant to prepare an accounting of the partnership’s profits and losses; the Estate’s one-third share of the partnership’s profits was $140,206. The partnership argues the district court erred in adopting the Estate’s accounting of the partnership’s profits and losses. Finding no reversible error in the district court's judgment, the North Dakota Supreme Court affirmed.

Gooss v. Gooss, et al.

Citation: 2020 ND 233

Opinion Date: November 19, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Civil Procedure, Family Law

This action concerned child support for the parties’ child, J.T.G. A Nevada court granted Vickie Lenard (aka Gooss) primary residential responsibility for J.T.G. The court awarded Jeffrey Gooss parenting time and required him to pay child support at $350.00 per month, which included $50.00 in child support arrears. In the event Lenard relocated from Nevada to Colorado, Gooss’s child support obligation would be waived, and he would only bear travel expenses for himself and J.T.G. However, Lenard never relocated to Colorado, but she did relocate on multiple occasions to several other states with J.T.G. North Dakota requested a modification of child support when Lenard moved to North Dakota in 2019. Gooss challenged the district court’s jurisdiction to modify the child support originally ordered by the Nevada court. Gooss argued travel expenses were part of the parenting plan, and North Dakota lacked jurisdiction to modify the child custody arrangement issued by another state under the Uniform Child Custody Jurisdiction and Enforcement Act (“UCCJEA”). Gooss also challenged the calculation of child support, argued imposing child support was inequitable, and claimed a deviation for travel expenses was necessary. The district court held a hearing on the motions where it heard testimony and considered evidence and ultimately modified the child support obligation. Finding the North Dakota trial court had jurisdiction to modify the obligation, and no other reversible error, the North Dakota Supreme Court affirmed the modification.

Krolik v. Muscha

Citation: 2020 ND 240

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Civil Procedure, Family Law

Cody Muscha appealed a domestic violence protection order, arguing he was provided with the wrong date for the hearing, therefore, he was deprived of his due process right to be heard. In affirming the district court's order, the North Dakota Supreme Court found that contrary to Muscha’s argument, the requirements of procedural due process were satisfied. Notice was provided to Muscha on January 8, 2020, well in advance of the January 16 hearing. The notice was reasonably calculated to inform him of a proceeding which had the potential to adversely affect his legal interests. Muscha’s failure to recognize the discrepancy between what he was allegedly told by the deputy and what the hearing notice stated, and his failure to appear at the hearing, could not be imputed to the district court, even assuming Muscha was provided with an incorrect date. Therefore, the district court did not err by issuing the permanent domestic violence protection order.

North Dakota v. Conry

Citation: 2020 ND 247

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Levi Conry was charged with leaving the scene of an accident involving damage to a motor vehicle. Conry entered into a plea agreement with the State and pleaded guilty. As part of the agreement Conry received a deferred imposition of sentence on the charge of leaving the scene of an accident involving damage to a motor vehicle. The district court accepted the plea agreement and imposed conditions on Conry according to the terms of the plea agreement. The order deferring imposition of sentence stated: “The Court reserves jurisdiction to determine restitution within 90 days.” The State subsequently submitted a statement seeking $11,352.93 in restitution. Conry requested a hearing after which the district court entered an order denying the restitution claim in its entirety. The court found the terms of the plea agreement allowed the court to order no restitution. The State appealed that order. Finding that the State had no statutory right to appeal a restitution order in a criminal case, the North Dakota Supreme Court determined it lacked jurisdiction over the State's appeal and dismissed it.

North Dakota v. Gates

Citation: 2020 ND 237

Opinion Date: November 19, 2020

Judge: Lisa K. Fair McEvers

Areas of Law: Constitutional Law, Criminal Law

Joan Gates appealed a district court order denying her motion for summary judgment filed in her criminal case. In 2013, a jury found Gates guilty of misapplication of entrusted property, a class B felony, for her actions while she was personal representative of the Estate of Lela Gates. The North Dakota Supreme Court concluded Gates’ appellate brief failed to provide the Court with a reasonable opportunity to address any alleged errors made by the district court. Therefore, the appeal was dismissed.

North Dakota v. Hajicek

Citation: 2020 ND 231

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Timothy Hajicek appealed after he conditionally pled guilty to driving under the influence. Hajicek claimed the district court erred in denying his motion to suppress evidence because a University of North Dakota police officer acting outside his jurisdiction was without official capacity and without the official power to seize. The North Dakota Supreme Court affirmed, concluding the UND police officer was lawfully responding to a request for assistance under N.D.C.C. 44-08-20(3).

North Dakota v. Polk

Citation: 2020 ND 248

Opinion Date: November 19, 2020

Judge: Gerald W. VandeWalle

Areas of Law: Constitutional Law, Criminal Law

Marcus Polk was convicted by jury of aggravated assault. He appealed. The North Dakota Supreme Court concluded sufficient evidence of serious bodily injury supported Polk’s conviction for aggravated assault. Furthermore, the Court concluded the trial court did not abuse its discretion when it excluded testimony from three Fargo police officers.

North Dakota v. Vaagen

Citation: 2020 ND 241

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Constitutional Law, Criminal Law

Amy Vaagen appealed an order revoking her unsupervised probation and imposing a period of confinement. In 2018, Vaagen pleaded guilty to preventing arrest, possession of a controlled substance, and possession of drug paraphernalia. The district court deferred imposition of Vaagen’s sentence. The court also ordered Vaagen to submit to random drug urinalysis testing once a week for the duration of her probation. The urinalysis testing condition was orally announced during sentencing but was not included in the original order. In 2019, the district court sua sponte issued an amended order deferring imposition of sentence. The amended order contained the urinalysis condition. Months later, the State petitioned to revoke Vaagen's probation based on alleged violations of the urinalysis testing condition. After a third petition, the court revoked Vaagen’s unsupervised probation. On December 18, 2019, the court sentenced Vaagen to a period of confinement. She appealed, arguing the district court improperly amended the order under which her probation was revoked. Finding no reversible error, the North Dakota Supreme Court affirmed the revocation.

Wisham v. North Dakota

Citation: 2020 ND 250

Opinion Date: November 19, 2020

Judge: Jon J. Jensen

Areas of Law: Constitutional Law, Criminal Law

Derek Wisham appeals from an order denying his application for post-conviction relief. In 2014, Wisham was charged with gross sexual imposition and assault. On December 21, 2015, Wisham pled guilty to a charge of sexual imposition, a class B felony, and assault, a class A misdemeanor. He was sentenced to ten years of incarceration with all but four years suspended for two years on the sexual imposition charge and one year straight time on the assault charge, with credit for time served on both counts. The State moved for summary judgment on Wisham's application for relief; Wisham failed to timely respond to the State's request. The North Dakota Supreme Court, therefore, affirmed dismissal of his application.

Christianson v. NDDOT

Citation: 2020 ND 245

Opinion Date: November 19, 2020

Judge: Jerod E. Tufte

Areas of Law: Criminal Law, Government & Administrative Law

Kyle Christianson appealed a district court’s judgment affirming the North Dakota Department of Transportation’s suspension of his driving privileges based on his conviction in Canada for a driving under the influence offense. Christianson argued the Department lacked jurisdiction because the Canadian statute did not define an equivalent offense, and that the hearing officer failed to provide a fair and impartial hearing. The North Dakota Supreme Court affirmed the Department’s suspension and disqualification of Christianson’s noncommercial and commercial driving privileges.

Jundt v. NDDOT

Citation: 2020 ND 232

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Criminal Law, Government & Administrative Law

Corey Jundt appealed a district court judgment affirming an administrative hearing officer’s decision to suspend Jundt’s driving privileges for 180 days for driving under the influence. Jundt argued the hearing officer erred in suspending his driving privileges because the arresting officer failed to read him the implied consent advisory. The North Dakota Supreme Court affirmed, concluding the implied consent requirements of N.D.C.C. 39-20-01 did not apply when an individual consented to a chemical test.

North Dakota, et al. v. P.K.

Citation: 2020 ND 235

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Family Law

W.A. appealed a district court order finding P.K. the father of V.G.A. and awarding P.K. and W.A. equal decision-making responsibility, P.K. primary residential responsibility, W.A. parenting time, and ordering W.A. to pay child support. W.A. argued the district court did not follow proper procedure in adjudicating primary residential responsibility to P.K. Finding no reversible error, the North Dakota Supreme Court affirmed the district court.

WSI v. Oden

Citation: 2020 ND 243

Opinion Date: November 19, 2020

Judge: Jon J. Jensen

Areas of Law: Government & Administrative Law, Labor & Employment Law, Personal Injury

Chris Oden appealed a judgment entered against him in a collection action after the district court granted summary judgment in favor of the State, through Workforce Safety and Insurance, (“WSI”). In May 2010, Oden was injured in Missouri while employed by Minot Builders Supply Associates as a truck driver. After review, the North Dakota Supreme Court concluded the court did not abuse its discretion in denying Oden’s motion to dismiss for insufficient service of process, and did not err in granting summary judgment to WSI.

Grengs v. Grengs

Citation: 2020 ND 242

Opinion Date: November 19, 2020

Judge: Jon J. Jensen

Greg Grengs appealed a judgment and decree of divorce entered September 3, 2019, and two post-trial orders. On appeal, Grengs asserted: (1) the district court erred in dismissing his post-trial motion to set aside the judgment; (2) argued the parties’ settlement agreement should not be enforced because prior to the agreement the court erred in finding the parties’ post-marital agreement to be unenforceable; (3) contended he was not competent to consent to the settlement agreement; and (4) asserted the court erred in finding him in contempt for failing to execute a mortgage to encumber property he did not hold title to as an individual. Finding no reversible error, the North Dakota Supreme Court affirmed the district court.

Estate of Lindvig

Citation: 2020 ND 236

Opinion Date: November 19, 2020

Judge: Daniel J. Crothers

Areas of Law: Real Estate & Property Law, Trusts & Estates

Gail Howard, Bruce Lindvig, and Milton Lindvig, personally and as Successor Personal Representative to the Estate of Ralph H. Lindvig, (together “the estate of Ralph Lindvig”) appealed a judgment entered in consolidated formal probate proceedings. In 2007, due to financial concerns related to paying for Ralph's care, his wife Dorothy Lindvig, acting as Ralph's attorney in fact, sold portions of Ralph's interests in the land he received from his parents to Milton Lindvig, Ralph's brother. The transfers were made by two warranty deeds, each of which severed the minerals and reserved them to Ralph and Dorothy as joint tenants. In May of 2007, Dorothy, again acting as Ralph's attorney in fact, conveyed the Wattam land to herself by warranty deed. When Ralph died, Dorothy was the personal representative of his estate. After her death in 2009, she was replaced by Milton. Dorothy died intestate, survived by a brother and her sister, Patricia Jellum, who was the personal representative of Dorothy's estate. The estate of Ralph Lindvig filed a petition in Dorothy's probate proceedings to set aside the intestate distribution of the minerals she severed and the Wattam land she conveyed to herself. The estate argued the transfers were beyond Dorothy's authority because they diminished the size of his estate and were not approved by a court, all in contravention of the power of attorney’s gifting provisions. The parties stipulated to consolidating the two probates as formal administrations. The probate court determined Dorothy did not breach her fiduciary duties by engaging in improper self-dealing. The North Dakota Supreme Court affirmed the probate court's judgment.

MDU v. Behm

Citation: 2020 ND 234

Opinion Date: November 19, 2020

Judge: Jerod E. Tufte

Areas of Law: Real Estate & Property Law

Lavern Behm appealed a judgment ordering Montana-Dakota Utilities Co. (“MDU”) to pay him $17,443 in attorney’s fees and costs incurred in an eminent domain action. Behm argued his constitutional rights were violated in the eminent domain action, and the district court erred by failing to award him some of the attorney’s fees he requested. Finding no reversible error, the North Dakota Supreme Court affirmed.