In re Interest of J.K.
915 N.W.2d 91
Neb.2018Background
- In Aug. 2015, minors J.K. and J.G. were separately charged after a female minor (Y.C.) reported sexual assaults; J.K. had an individual preliminary hearing where the court heard credibility-related testimony.
- At the preliminary hearing the judge commented on Y.C.’s credibility (questioning why she would return to an alleged perpetrator’s residence); the judge bound the felony counts over to district court.
- The district court later suppressed J.K.’s August 17, 2015 statement and transferred the matter to juvenile court. The same county judge was assigned to the juvenile proceedings.
- Before adjudication, the State moved to recuse the judge, alleging on- and off-the-record statements reflected bias; the judge heard the motion, called defense counsel as a witness, denied recusal, and later denied joinder of J.K.’s and J.G.’s cases.
- After an adjudication hearing the juvenile court found the State failed to prove the allegations beyond a reasonable doubt and dismissed the petition against J.K.; the State appealed the recusal and joinder rulings.
Issues
| Issue | State's Argument | J.K.'s Argument | Held |
|---|---|---|---|
| Whether judge should have been recused for bias under Neb. Code of Judicial Conduct § 5-302.11 | Judge’s on‑record credibility remark and alleged off‑the‑record comments show personal bias and partiality | Comments were judicial rulings/opinions based on record; off‑the‑record remarks were mischaracterized and judge said he would follow law | Denied — no objective basis for disqualification; judicial statements based on proceedings do not show disqualifying bias absent deep‑seated antagonism |
| Whether judge’s alleged nonpublic statements violated § 5‑302.10(A) (public/nonpublic comments) | Off‑the‑record remark that he would reach same suppression result shows improper comment and prejudgment | State failed to present this theory to trial court; judge invited briefing and indicated he would follow law | Waived before juvenile court; in any event, context (possible collateral‑estoppel concern) did not show prejudicial bias |
| Whether judge’s conduct during recusal hearing (calling defense counsel) required disqualification | Court’s conduct showed partiality and inappropriate role as witness | Defense counsel contradicted affidavit; judge’s bench comments are not evidence; judge did not display inability to be fair | Denied — judge’s bench statements cannot substitute as evidence of bias and judge did not display deep‑seated antagonism |
| Whether the court abused discretion by denying State’s motion to join J.K. and J.G. cases | Cases were joinable under statute; denial was erroneous | Joinder would unduly delay J.K.’s adjudication; cases were at different procedural postures | Denied — even if joinder were authorized, denial was not an abuse of discretion given differing postures and delay concerns |
Key Cases Cited
- Liteky v. United States, 510 U.S. 540 (1994) (opinions formed during proceedings normally do not warrant recusal absent deep‑seated favoritism or antagonism)
- State v. Buttercase, 296 Neb. 304 (2017) (standard for when a judge’s impartiality might reasonably be questioned)
- Lombardo v. Sedlacek, 299 Neb. 400 (2018) (abuse of discretion standard for exercising inherent power)
- State v. Baird, 259 Neb. 245 (2000) (judge may not testify; judge’s statements are not evidence)
- Gibilisco v. Gibilisco, 263 Neb. 27 (2001) (standard for reviewing discretionary decisions)