In re Interest of J.K., a child under 18 years of age.
J.K., appellee. State of Nebraska, appellant.
Judges: Recusal: Appeal and Error. A motion
to disqualify a trial judge on account of prejudice is
addressed to the sound discretion of the trial court. An
order overruling such a motion will be affirmed on appeal
unless the record establishes bias or prejudice as a matter
Appeal and Error. Appellate review of a
court's use of inherent power is for an abuse of
Judgments: Words and Phrases. An abuse of
discretion occurs when a trial court's decision is based
upon reasons that are untenable or unreasonable or if its
action is clearly against justice or conscience, reason, and
Judges: Recusal: Waiver. A party is said to
have waived his or her right to obtain a judge's
disqualification when the alleged basis for the
disqualification has been known to the party for some time,
but the objection is raised well after the judge has
participated in the proceedings.
Judges: Recusal: Appeal and Error. Once a
case has been litigated, an appellate court will not disturb
the denial of a motion to disqualify a judge and give
litigants a second bite at the apple.
Judges: Recusal: Time. The issue of judicial
disqualification is timely if submitted at the earliest
practicable opportunity after the disqualifying facts are
Judges: Recusal. Under the Nebraska Revised
Code of Judicial Conduct, a judge must recuse himself or
herself from a case if the judge's impartiality might
reasonably be questioned.
___. Under the Nebraska Revised Code of Judicial Conduct,
such instances in which the judge's impartiality might
reasonably be [300 Neb. 511] questioned specifically include
where the judge has a personal bias or prejudice concerning a
party or a party's lawyer.
Judges: Recusal: Presumptions. A defendant
seeking to disqualify a judge on the basis of bias or
prejudice bears the heavy burden of overcoming the
presumption of judicial impartiality.
Judges: Recusal. In evaluating a trial
judge's alleged bias, the question is whether a
reasonable person who knew the circumstances of the case
would question the judge's impartiality under an
objective standard of reasonableness, even though no actual
bias or prejudice was shown.
Judges: Recusal: Judgments. Judicial rulings
alone almost never constitute a valid basis for a bias or
partiality motion directed to a trial judge.
Judges: Recusal. Opinions formed by the
judge on the basis of facts introduced or events occurring in
the course of the current proceedings, or of prior
proceedings, do not constitute a basis for a bias or
partiality motion unless they display a deep-seated
favoritism or antagonism that would make fair judgment
Judges: Witnesses: Evidence. Comments by the
judge presiding over a matter are clearly not evidence,
because a judge may not assume the role of a witness.
Trial: Judges: Witnesses: Rules of Evidence.
Neb. Rev. Stat. § 27-605 (Reissue 2016) was drafted as a
broad rule of incompetency designed to prevent a judge
presiding at a trial from testifying as a witness in that
trial on any matter whatsoever.
Trial: Judges: Witnesses. A judge's
taking the role of a witness in a trial before him or her is
manifestly inconsistent with the judge's customary role
from the County Court for Washington County: C. Matthew
Samuelson, Judge. Exception overruled.
Scott Vander Schaaf, Washington County Attorney, and. on
brief, Emily A. Beamis for appellant.
Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth, PC,
Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and
Papik, JJ., and Dobrovolny, District Judge.
Neb. 512] FUNKE, J.
delinquency proceeding brought under the Nebraska Juvenile
Code,  the county court for Washington County,
sitting as a juvenile court, found the State of Nebraska
failed to prove the allegations against the appellee, J.K.,
and dismissed the proceedings. The State filed this exception
proceeding challenging the court's rulings on a motion to
recuse and a motion to join the case with that of another
minor. Because we find the State's assignments of error
to be without merit, we overrule its exception.
August 2015, J.K. and J.G., both male minors, were arrested
by the Blair Police Department. The State filed criminal
complaints against J.K. and J.G. under separate Washington
County Court dockets. While J.K. and J.G. made their initial
appearances together, J.K. had an individual preliminary
hearing before the county court judge.
J.K.'s preliminary hearing, the State called as a witness
a Blair Police Department detective. The detective testified
that Y.C., a female minor, reported being sexually assaulted
by J.K. and J.G. on August 15, 2015. The detective stated
that Y.C. had reported voluntarily going to the parking lot
of her apartment building to spend time with J.K. and J.G,
declining numerous sexual advances by J.K. and J.G. outside
of the apartment building, J.K. and J.G. forcibly exposing
and making contact with her breasts outside the apartment
building, J.K. and J.G. taking her belongings into the
apartment complex's laundry room; J.K. forcing her into
the apartment complex's laundry room, J.K. and J.G. both
digitally penetrating her vagina, and J.G. forcing her to
have vaginal intercourse with him.
cross-examination, the detective stated that while Y.C. had
initially only told officers that she went home to her [300
Neb. 513] apartment after the assault, Y.C. subsequently
reported voluntarily going to J.K.'s apartment shortly
after she went home, to recover the cell phone case he had
stolen from her. The detective also provided additional
testimony about the events of the night, suggesting Y.C. had
an existing relationship with J.K. and J.G.
presenting the evidence, the parties made arguments regarding
whether the State met its burden of establishing probable
cause for the alleged crimes. The judge, on the record,
engaged in discussion with J.K.'s counsel regarding his
argument, Y.C.'s credibility, and whether Y.C.'s
allegation alone amounted to probable cause. During this
discussion, the court made the following statement:
One of the concerns - the biggest concern I have so far is
why would an alleged victim go to the alleged
perpetrator's residence within an hour, or two, or five
minutes, or whatever the case may be, within a short period
of time, knock on his door, even if it's to try to get my
[sic] cell phone case. I find that a little unusual.
the county court ruled there was probable cause to proceed
with the felony counts against J.K. and bound the matter over
to the district court for Washington County. In May 2016, the
district court sustained J.K.'s motion to suppress
J.K.'s statement to law enforcement made on August 17,
2015, and then ordered the matter transferred to juvenile
State then filed a petition against J.K. in juvenile court,
alleging first degree sexual assault and false imprisonment,
under § 43-247(2). The same county judge who heard the
preliminary hearing was assigned to sit as the judge for the
juvenile court proceedings.
a preadjudication hearing, J.K.'s attorney requested a
continuance to file a motion to suppress statements made and
evidence collected from J.K. on August 17, 2015. On November
3, 2016, the scheduled hearing on the motion to suppress was
continued at the State's request to allow the State to
file a motion to recuse the judge.
Neb. 514] Before considering the motion to recuse, the court
requested briefs from the parties and heard arguments on the
issue of whether or not the juvenile court was bound by the
district court's order to suppress statements J.K. had
made on August 17, 2015. The court ultimately concluded it
was not bound by the district court's ...