Heckman v. Marchio, 296 Neb. 458

Background

Bryan R. Heckman sued Regina M. Marchio to establish paternity, custody, and child support.
Heckman moved to disqualify Marchio’s privately retained counsel; the district court granted the motion and denied Marchio’s timely motion to reconsider.
Marchio filed an interlocutory appeal from the attorney-disqualification order; the Nebraska Supreme Court docketed the appeal.
The appeal relied on Richardson v. Griffiths, a 1997 Nebraska decision that allowed interlocutory appeals from disqualification orders as an exception to the final-order requirement.
The Supreme Court in this case reexamined Richardson and concluded the court lacked statutory authority to create that exception, implicating separation of powers and the Legislature’s exclusive power to define appellate jurisdiction.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an order disqualifying counsel is immediately appealable	Marchio argued Richardson v. Griffiths permits interlocutory appeals from disqualification orders	Heckman (and court majority view) defended final-order requirement; no statutory authorization exists for interlocutory appeal	The court held such interlocutory appeals are not authorized absent statute and dismissed the appeal
Whether the court may create exceptions to statutory final-order requirements	Marchio relied on judicially created Richardson exception	Heckman argued creation of such exceptions improperly usurps legislative power	The court held creating the Richardson exception was judicial legislation in excess of constitutional authority
Whether past judicial practice and legislative acquiescence validate the exception	Marchio cited prior decisions relying on Richardson and suggested acquiescence	Heckman argued there was no statutory construction for the Legislature to acquiesce to	The court found legislative acquiescence inapplicable and rejected reliance interests as insufficient to preserve Richardson
Whether effective review after final judgment is adequate to protect rights following disqualification	Marchio argued interlocutory review needed to protect client interests	Heckman and precedent (U.S. Sup. Ct.) argued postjudgment review can be effective, including setting aside verdicts when necessary	The court relied on the U.S. Supreme Court’s view that effective postjudgment review is possible and placed policy changes with the Legislature

Key Cases Cited

Richardson v. Griffiths, 251 Neb. 825 (1997) (Nebraska decision adopting interlocutory-review exception for disqualification orders)
Maddocks v. Ricker, 403 Mass. 592 (1988) (Massachusetts decision articulating collateral-order rationale for interlocutory review)
Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (U.S. Supreme Court holding disqualification orders in civil cases not reviewable under the federal collateral-order doctrine)
Huskey v. Huskey, 289 Neb. 439 (2014) (reiterating that appellate jurisdiction in Nebraska is provided by statute)
State v. Burlison, 255 Neb. 190 (1998) (discussion rejecting judicial legislation and addressing limits of judicial construction)
Citizens United v. Federal Election Comm’n, 558 U.S. 310 (2010) (stare decisis factors and considerations for overruling precedent)