Heckman v. Marchio, 296 Neb. 458

Background

Bryan R. Heckman sued Regina M. Marchio seeking paternity, custody, and child support.
Heckman moved to disqualify Marchio’s privately retained counsel; the district court granted the motion and denied Marchio’s motion to reconsider.
Marchio filed a purported appeal from the nonfinal disqualification order, and the case was moved to the Nebraska Supreme Court.
The Nebraska Supreme Court had previously (in Richardson v. Griffiths) recognized an exception permitting interlocutory appeals of certain disqualification orders despite the absence of a final judgment.
The court reconsidered that doctrine here, addressing whether it had statutory or constitutional authority to hear an interlocutory appeal from a counsel-disqualification order.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the Supreme Court has jurisdiction to hear an interlocutory appeal from an order disqualifying counsel	Marchio argued the order is appealable under the Richardson exception allowing interlocutory appeals of disqualification orders	Heckman relied on the statutory final-order requirement, arguing no appeal lies absent statutory authorization	The court held it lacks jurisdiction: interlocutory appeals of disqualification orders are not authorized by statute and Richardson is overruled to that extent
Whether the Richardson exception comported with statutory and constitutional limits on appellate jurisdiction	Marchio urged reliance on precedent allowing collateral-order review in such circumstances	Heckman argued precedent conflicted with Nebraska’s statutory final-order scheme and separation of powers	The court held Richardson was judicial legislation without statutory basis and violated separation-of-powers principles; it cannot create new categories of appeal
Whether legislative acquiescence cured any defect in Richardson	Marchio suggested continued use of Richardson implied legislative acquiescence	Heckman argued no statutory construction occurred and thus no acquiescence; the Legislature never enacted a statute authorizing such appeals	The court found no legislative acquiescence and rejected that justification
Whether effective review after final judgment can protect the party harmed by counsel disqualification	Marchio argued interlocutory review may be necessary to protect interests	Heckman and the court relied on U.S. Supreme Court precedent that postjudgment review and setting aside verdicts can provide effective relief	The court agreed with federal precedent that effective postjudgment review is feasible and left policy changes to the Legislature

Key Cases Cited

Richardson v. Griffiths, 251 Neb. 825 (1997) (Nebraska case that created the interlocutory appeal exception for disqualification orders; overruled to the extent it authorized such appeals)
Maddocks v. Ricker, 403 Mass. 592 (1988) (Massachusetts decision whose rule Nebraska had adopted in Richardson)
Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (U.S. Supreme Court holding disqualification orders in civil cases are not reviewable under the federal collateral-order doctrine)
Huskey v. Huskey, 289 Neb. 439 (2014) (reiterating that Nebraska appellate jurisdiction must be provided by the Legislature)