Nebraska Supreme Court: Mandatory Bench Trials for Residential Evictions May Violate Constitutional Jury Guarantee

NP Dodge Mgmt. Co. v. Holcomb, 314 Neb. 748 (2023). 

The Nebraska Uniform Residential Landlord and Tenant Act (“Act”) provides an expedited trial process for residential evictions.  Evictions begin when the landlord issues the tenant a notice of termination.  Neb. Rev. Stat. §§ 76-1431 & 76-1437.  After the statutory notice period, the landlord may file a complaint for restitution and cause service of a summons.  §§ 76-1441 & 76‑1442.  Under section 76-1446, trial must occur 10-14 days after issuance of the summons, and “[t]he action shall be tried by the court without a jury.”

After failing to pay rent, Teresa Holcomb (“Tenant”) received a notice and complaint.  She denied the allegations and requested a jury trial.  The county court, however, denied Tenant’s request, conducted a bench trial and entered judgment in favor of NP Dodge (“Landlord”).

Tenant appealed the decision.  She argued the judgment violated her constitutional right to a jury trial.  The Nebraska Constitution, article I, section six states, “[t]he right of trial by jury shall remain inviolate.” 

A month later, while Tenant’s appeal remained pending, the county court granted a writ of restitution, and a constable evicted Tenant.  The district court rejected Tenant’s arguments on appeal, and Tenant appealed to the Nebraska Supreme Court.

The Nebraska Supreme Court affirmed because Tenant’s appeal was moot.  A case is moot when the factual circumstances or events underlying the dispute have changed to the extent that the initially presented issues are no longer relevant.  Courts typically dismiss a case as moot when they cannot grant meaningful relief to the parties.  Tenant had sought to stay in her apartment.  But because Tenant’s eviction had already occurred, there was nothing the court could do to grant her relief even if they agreed with her arguments.

The court also considered whether the public interest exception applied.  That exception allows courts to consider an otherwise moot case if:  (1) significant questions are at stake, (2) public officials need authoritative adjudication and (3) the same or similar problems will recur.  The court, however, declined to use that exception.  Although the jury-right issue under the Act may recur in future cases, this was the only known challenge thus far.  The court thus dismissed Tenant’s appeal.

While the majority declined to directly consider the mandatory-bench-trial provision under the Act, Justice Jonathan Papik questioned its constitutionality in a concurring opinion (joined by Justices Lindsey Miller-Lerman and Jeffrey Funke).  Despite acknowledging this appeal was moot, the concurrence “expressed doubts about the constitutionality of the bench trial provision.”  The concurrence argued evictions are actions for possession of real property.  Such actions were traditionally legal rather than equitable in nature, and legal actions qualified for the Nebraska Constitution’s jury-trial right.  See Schmid v. Simmons, 311 Neb. 48 (2022).  The concurrence invited future challenges to the NURLTA’s bench trial provision and also suggested the Legislature should reconsider the provision.

Relying on the mootness doctrine, this opinion stops short of invalidating the Act’s mandatory bench-trial provision.  The three-judge concurrence, however, indicates the court may invalidate that provision in a future case.

Hannes D. Zetzsche
Nyla A. Khan, Summer Associate