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In re J.K.

Supreme Court of Nebraska

July 13, 2018

In re Interest of J.K., a child under 18 years of age.
J.K., appellee. State of Nebraska, appellant.

         1. 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 of law.

         2. Appeal and Error. Appellate review of a court's use of inherent power is for an abuse of discretion.

         3. 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 evidence.

         4. 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.

         5. 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.

         6. Judges: Recusal: Time. The issue of judicial disqualification is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered.

         7. 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.

         8. ___: ___. 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.

         9. 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.

         10. 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.

         11. Judges: Recusal: Judgments. Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a trial judge.

         12. 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 impossible.

         13. 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.

         14. 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.

         15. 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 of impartiality.

          Appeal from the County Court for Washington County: C. Matthew Samuelson, Judge. Exception overruled.

          M. 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, for appellee.

          Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, and Papik, JJ., and Dobrovolny, District Judge.

          [300 Neb. 512] FUNKE, J.

         In a delinquency proceeding brought under the Nebraska Juvenile Code, [1] 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.

         I. BACKGROUND

         In 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.

         At 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.

         On 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.

         After 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.

         Nevertheless, 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 court.

         The 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.

         During 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.

         [300 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 ...

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