# State v. Lotter

> Nebraska Supreme Court · November 6, 1998 · 255 Neb. 456

URL: https://www.frixlaw.com/law-library/cases/9720323

## Case

- **Full name:** State of Nebraska, Appellee, v. John L. Lotter, Appellant
- **Court:** Nebraska Supreme Court
- **Decided:** November 6, 1998
- **Citations:** 255 Neb. 456; 586 N.W.2d 591; 1998 Neb. LEXIS 224
- **Precedential status:** Published
- **Opinion:** Concurrence by Gerrard
- **Judges:** White, Caporale, Wright, Connolly, Gerrard, Stephan, McCormack
- **Cited by:** 106 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Disapproved on other grounds by State v. Hagens, 320 Neb. 65 (2025).
- Negative treatments: 2
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9720323

## How later opinions describe it (automated extraction)

- holding that “not all ex parte communications subject a judge to recusal” and “a trial judge must recuse himself or herself only when the ex parte communication poses a threat to the judge’s impartiality”
- holding that denial of motions for continuance was not an abuse of discretion
- holding no Brady violation exists when material evidence is disclosed prior to end of trial

## Opinion text

Gerrard, J.,
concurring.
I share Justice Connolly’s concern as to whether our current interpretation of Neb. Rev. Stat. §§ 29-2521.01 through 29-2521.04 (Reissue 1995), i.e., that proportionality reviews “should include only those cases in which the death penalty was imposed,” State v. Palmer, 224 Neb. 282, 328 , 399 N.W.2d 706, 736 (1986), accurately reflects the intent of the Legislature when 1978 Neb. Laws, L.B. 711, was passed 20 years ago. However, because a literal interpretation of §§ 29-2521.01 through 29-2521.04 would violate the separation of powers doctrine, see State v. Moore, 210 Neb. 457 , 316 N.W.2d 33 (1982), the principle of stare decisis properly requires adherence to State v. Palmer, supra, under these circumstances.
As has been noted before, “ ‘in most matters it is more important that the applicable rule of law be settled than that it be settled right. . . . This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation.’” (Emphasis supplied.) State v. Hingst, 251 Neb. 535, 539 , 557 N.W.2d 681, 684 (1997) (Cassel, D.J., concurring) (quoting Burnet v. Coronado Oil & Gas Co., 285 U.S. 393 , 52 S. Ct. 443 , 76 L. Ed. 815 (1932) (Brandeis, J., dissenting)). See, also, Crown Products Co. v. City of Ralston, 253 Neb. 1 , 567 N.W.2d 294 (1997) (Caporale, J., concurring).
We have determined that proportionality review is not constitutionally required before imposing the death penalty, see State v. Palmer, supra (citing Pulley v. Harris, 465 U.S. 37 , 104 S. Ct. 871 , 79 L. Ed. 2d 29 (1984)), and it is a firmly established rule of construction that where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court’s determination of the Legislature’s intent. State v. White, 254 Neb. 566 , 577 N.W.2d 741 (1998); State v. Atkins, 250 Neb. 315 , 549 N.W.2d 159 (1996); State v. Joubert, 246 Neb. 287 , *532 518 N.W.2d 887 (1994). The Legislature has never amended §§ 29-2521.01 through 29-2521.04.
Therefore, in the absence of a constitutional requirement for proportionality review, it is the province of the Legislature, not the courts, to amend §§ 29-2521.01 through 29-2521.04 if proportionality reviews are to be conducted in a manner that is both meaningful and properly within our power to review.
For these reasons, and because, in any event, Lotter’s penalty is no greater than penalties imposed in other cases with the same or similar circumstances (i.e., triple homicide) since April 20, 1973, see § 29-2521.02,1 concur in that part of the judgment affirming the penalty of death. In all other respects, I join in the opinion and judgment of the court.
Stephan, L, joins in this concurrence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9720323. Public record. Not legal advice.