Heckman v. Marchio
894 N.W.2d 296
Neb.2017Background
- Bryan R. Heckman filed a paternity, custody, and support action against Regina M. Marchio.
- Heckman moved to disqualify Marchio’s privately retained counsel; the district court granted the motion and denied Marchio’s motion to reconsider.
- Marchio filed an immediate (interlocutory) appeal from the disqualification order; the Nebraska Supreme Court took the case.
- The appeal relied on this court’s 1997 decision in Richardson v. Griffiths, which had allowed interlocutory appeals from counsel-disqualification orders under a judge-made exception to the final-order requirement.
- The Supreme Court considered whether Richardson (and its progeny) lawfully created appellate jurisdiction absent statutory authorization and whether disqualification orders can be effectively reviewed after final judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether an order disqualifying counsel is immediately appealable | Heckman: appeal not authorized unless statute provides for it | Marchio: Richardson exception permits interlocutory appeal of disqualification orders | Held: Not appealable absent statutory authorization; appeal dismissed |
| Validity of the Richardson exception to final-order requirement | Heckman: courts lack power to create new categories of appeal | Marchio: court-made exception (Richardson) controls | Held: Richardson exception was judicial legislation; overruled to the extent it authorized interlocutory appeals without statute |
| Whether an appellate court may expand jurisdiction without legislative authorization | Heckman: separation of powers forbids courts from enlarging appellate jurisdiction | Marchio: (implicit) judicially created doctrines can be applied | Held: Legislature alone prescribes appellate jurisdiction; courts cannot usurp that role |
| Whether effective review of disqualification orders can occur after final judgment | Heckman: effective review post-judgment is feasible | Marchio: interlocutory review is necessary to protect party interests | Held: Following U.S. Sup. Ct. precedent, effective review after final judgment is possible; policy change should come from Legislature |
Key Cases Cited
- Richardson v. Griffiths, 251 Neb. 825 (1997) (Nebraska decision that previously allowed interlocutory appeals from disqualification orders)
- Maddocks v. Ricker, 403 Mass. 592 (1988) (Massachusetts case whose collateral-order reasoning was adopted in Richardson)
- Richardson-Merrell Inc. v. Koller, 472 U.S. 424 (1985) (U.S. Supreme Court holding that orders disqualifying counsel in civil cases are not appealable under the federal collateral-order doctrine)
- Huskey v. Huskey, 289 Neb. 439 (2014) (statement of the principle that Nebraska appellate jurisdiction must be provided by the Legislature)