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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United States v. Houtar

Court: US Court of Appeals for the Second Circuit

Docket: 19-3627

Opinion Date: November 13, 2020

Judge: Dennis G. Jacobs

Areas of Law: Criminal Law, Family Law, International Law

The Second Circuit affirmed defendant's conviction and sentence for international parental kidnapping and passport fraud. After determining that defendant's vagueness challenge fails insofar as it is premised on deficient notice, the court held that the International Parental Kidnapping Crime Act (IPKCA) is not unconstitutionally vague as applied to him. In this case, the IPKCA is not unconstitutionally vague as applied to someone who retains children abroad without first abducting them, when the children had not been in the United States for several years prior to the unlawful retention. The court also held that the district court properly applied two Sentencing Guidelines enhancements for substantial interference with the administration of justice and for fraudulent use of a United States passport.

Hardwick v. County of Orange

Court: US Court of Appeals for the Ninth Circuit

Docket: 17-56292

Opinion Date: November 18, 2020

Judge: Richard A. Paez

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

In November 1999, the SSA filed a dependency petition on behalf of plaintiff and her sister against their parents. The juvenile dependency court assumed jurisdiction over the children, but permitted them to remain in their mother's custody and to have supervised visitation with their father. In February 2000, the dependency court ordered that the children be removed from mother's custody. In 2001, mother filed an action in California superior court alleging that Orange County social workers violated her constitutional right to familial association. The jury returned verdicts in favor of mother against all defendants except one. Plaintiff filed this 2013 federal action alleging that defendants violated her Fourteenth Amendment right to familial association and her Fourth Amendment right against wrongful seizure. The Ninth Circuit held that where constitutional familial rights are at stake, there are identical companionship rights between a parent and child that could allow a plaintiff to invoke issue preclusion to bar relitigation of issues previously decided. However, in this case, plaintiff cannot assert issue preclusion because mother litigated more than just the overlapping companionship rights in her state court case and the panel cannot determine the basis for the jury's verdict. Therefore, plaintiff failed to establish that the issues litigated in the prior state proceeding were identical to the issues raised in her federal case.

Mississippi Department of Child Protection Services v. Bynum

Court: Supreme Court of Mississippi

Citation: 2019-SA-01568-SCT

Opinion Date: November 19, 2020

Judge: Maxwell

Areas of Law: Family Law, Government & Administrative Law

The Mississippi Department of Child Protection Services (MDCPS) sought to terminate involuntarily the parental rights of Jack Bynum, the putative father of a child in MDCPS' custody. The chancery court determined Bynum was both indigent and entitled to counsel. The chancellor appointed Bynum counsel and ordered MDCPS to pay his attorney's fees. MDCPS appealed. The agency argued Covington County should have paid for Bynum’s representation, just as it would if Bynum were an indigent criminal defendant. But the Mississippi Supreme Court found this was not a criminal case. "And the statutory scheme that directs the initiating county in criminal prosecutions to pay for indigent representation is expressly limited. It only applies to those 'charged with a felony, misdemeanor punishable by confinement for ninety (90) days or more, or commission of an act of delinquency.'” Thus, absent a legislative directive to assess an indigent parent’s attorney’s fees to Covington County, the chancery court did not abuse its legislatively conferred discretion by ordering MDCPS to pay Bynum’s attorney’s fees.

Higgins v. Currier

Court: Nebraska Supreme Court

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.

Gooss v. Gooss, et al.

Court: North Dakota Supreme Court

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

Court: North Dakota Supreme Court

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, et al. v. P.K.

Court: North Dakota Supreme Court

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.