Thompson v. Millard Pub. Sch. Dist. No. 17
921 N.W.2d 589
Neb.2019Background
- Thompson resigned from employment with Millard Public School District after being asked to resign in lieu of termination following disciplinary issues and complaints arising from personal conduct.
- She sued Millard asserting retaliation, hostile work environment, privacy torts, IIED, breach of contract; summary judgment disposed of privacy/IIED/breach claims before she obtained counsel.
- After counsel appeared, Thompson amended to add an Equal Pay Act claim naming Stephen Mainelli (hired into Thompson’s prior role) as the sole comparator; Mainelli is the judge’s brother-in-law.
- The district judge learned during summary judgment proceedings that Mainelli was his brother-in-law; Thompson moved to recuse, renewing the motion after adding the Equal Pay Act claim.
- The court denied recusal and granted summary judgment for Millard on the remaining claims; the Nebraska Supreme Court found the judge should have disqualified himself because Mainelli was likely a material witness and vacated part of the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether judge must recuse because his brother-in-law is a likely material witness | Judge’s relationship to Mainelli creates an appearance of partiality; Mainelli is the sole comparator for the EPA claim and likely can testify about hiring, qualifications, and pay | Mainelli would not be a competent/relevant witness on hiring decisions or pay rationale; judge’s impartiality not reasonably questioned | Recusal was required under Neb. Code of Judicial Conduct §5-302.11(A)(2)(d); Mainelli was likely a material witness and judge should have disqualified himself |
| Whether Thompson waived recusal by not raising sooner | Thompson raised recusal at earliest practicable opportunity after learning of relationship and after amending to add Equal Pay Act claim | Millard implied the objection was untimely or waived because prior proceedings occurred | No waiver: motions timely and renewed after Equal Pay Act claim made Mainelli relevant |
| Appropriate remedy for denial of recusal | Vacatur and reassignment needed to cure appearance of impropriety and preserve public confidence | Uphold judgment because parties had full proceedings and no demonstrated bias affecting outcomes | Vacatur of orders entered after the Equal Pay Act claim was added; remand for new summary judgment hearing before a different judge under Liljeberg factors |
| Standard for "material witness" under disqualification rule | A material witness can testify to matters logically connected to consequential facts; few others know the matters; relevant testimony | (Defendant argued narrower relevance; e.g., Mainelli couldn’t testify to decision-making) | Court adopted Black’s Law Dictionary definition: capable of testifying in some relevant way; applied it to find Mainelli likely material |
Key Cases Cited
- Liljeberg v. Health Servs. Acquisition Corp., 486 U.S. 847 (1988) (establishes three-factor test for vacatur when a judge fails to recuse)
- Tierney v. Four H Land Co., 281 Neb. 658 (2010) (applies Liljeberg framework and emphasizes public confidence factor)
- State v. Thompson, 301 Neb. 472 (2018) (recusal and impartiality standards under Nebraska law)
- Torres v. Morales, 287 Neb. 587 (2014) (discusses burden to overcome presumption of judicial impartiality)
- Ex parte Jackson, 508 So. 2d 235 (Ala. 1987) (disqualification required where judge’s relative had a connection to a party, supporting appearance-of-impartiality analysis)