Tierney v. Four H Land Co.Tierney v. Four H Land Co.
798 N.W.2d 586
Filed June 3, 2011. No. S-10-103.
- Judges: Recusal. A judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned.
- ____: ____. A trial judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge‘s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.
- Judges: Recusal: Waiver. A party is said to have waived his or her right to obtain a judge‘s disqualification when the alleged basis for the disqualification has been known to the party for some time, but the objection is raised well after the judge has participated in the proceedings.
- Judges: Recusal: Time. The issue of judicial disqualification is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered.
- Judges: Recusal: Appeal and Error. A traditional harmless error analysis is inappropriate for review of questions of judicial disqualification.
- ____: ____: ____. The disqualificatiоn of a judge is not a disqualification to decide erroneously. It is a disqualification to decide at all.
- ____: ____: ____. The three-factor special harmless error test in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988), should be used for determining when vacatur is the appropriate remedy for a trial judge‘s failure to recuse himself or herself when disqualified under the Nebraska Code of Judicial Conduct.
- Judges. When a judge is biased, his or her personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased.
Petition for further review from the Court of Appeals, Inbody, Chief Judge, and Irwin and Carlson, Judges, on appeal thereto
James J. Paloucek, of Norman, Paloucek & Herman Law Offices, for appellants.
Jay C. Elliott, of Elliott Law Office, P.C., L.L.O., for appellees Four H Land Company Limited Partnership and Western Engineering Company, Inc.
Susan C. Williams for appellees Frank Aloi and Aloi Living Trust.
Heavican, C.J., Connolly, Gerrard, Stephan, McCormack, and Miller-Lerman, JJ.
McCormack, J.
NATURE OF CASE
James Tierney and Jeffrey Tierney brought this action against Four H Land Company Limited Partnership (Four H Land); Western Engineering Company, Inc. (Western Engineering); Frank Aloi, trustee of the Aloi Living Trust; and the Aloi Living Trust (collectively the defendants) to compel them to lower the elevation of a lakeside housing development adjoining the Tierneys’ land. The district court granted summary judgment in favor of the defendants, and the Tierneys appealed. While their appeal was pending, the Tierneys discovered that the district court judge who issued the order harbored a personal prejudice against their attorney. We reverse, and remand with directions.
BACKGROUND
Agreement and Permit
The Tierneys are owners of real estate that adjoins 60.8 acres of real property previously owned by Four H Land and currently owned by Aloi, trustee of the Aloi Living Trust, and the Aloi Living Trust. In 1997, the 60.8 acres consisted primarily of an alfalfa field on level ground with a line of cottonwood trees and a road alongside the adjoining edge of the Tierneys’ property. The alfalfa field was somewhat lower than the road,
Four H Land and Western Engineering sought a conditional use permit from the Lincoln County Planning Commission (the Commission). The Tierneys objected that the sand and gravel pit would be a nuisance. The Commission granted the permit with the following conditions:
At the close of each phase of the sand and gravel pit operation the area shall be leveled to its original topography within one year of termination of each phase. The areas not covered by water shall then be covered with four inches (minimum) of topsoil and seeded with appropriate native grasses to prevent erosion of the soil.
The Tierneys appealed the Commission‘s decision. Eventually, the Tierneys reached an agreement with Four H Land and Western Engineering. The agreement provided more detailed mining operation restrictions and stated in relevant part:
As the operation in one phase is completed and the operation moves to the next phase, [Four H Land] and [Western Engineering] shall reclaim the land in the phase of prior operations by filling to at least its approximate original topography, covered with a minimum of four (4) inches of top soil and seeded with appropriate native grasses to prevent erosion and to visually restore the site, except the area to be used for a lake.
The terms and conditions of the August 11, 1998, agreement were “to be incorporated into and made a part of the Conditional Use Permit to be approved by the . . . Commission” and “[a]ll of the other terms and conditions contained in the Conditional Use Permit shall apply, except to the extent they are contrary to or less restrictive than the terms agreed to in the settlement of this controversy . . . .” That same date, the conditional use permit was reissued by the Commission. The permit specifically attached and incorporated the August 11 agreement.
The Tierneys brought this action against the defendants on April 9, 2009. They contend that the final elevation of the land violated the agreement because the agreement required a return to the preexisting elevation and the land was 6 to 8 feet higher. Their action was brought before the Honorable John P. Murphy of the Lincoln County District Court, and the Tierneys were represented by James J. Paloucek.
In December 2009, the Tierneys filed a motion for summary judgment and the defendants filed cross-motions for summary judgment. Several depositions were submitted in support of the motions disputing the intent of the permit and agreement. On January 8, 2010, the district court granted summary judgment in favor of the defendants. The court concluded that by virtue of the “at least” language in the permit, the defendants were required to return the land to the original elevation level or higher, and that there was no dispute the elevation was “at least” as high as it was before the gravel pit operation. The court concluded that there was thus no material issue of fact as to whether the defendants had complied with the permit and agreement. The Tierneys appealed.
Bias Against Tierneys’ Attorney
While the Tierneys’ appeal was pending, on July 13, 2010, Paloucek received a letter from Judge Murphy. In the letter, Judge Murphy wrote, “Because I hold you personally responsible for the Florom fiasco, I am recusing myself from any pending case or any future case involving your law firm.” Since that time, Judge Murphy has, in fact, recused himself from all cases involving the law offices of Norman, Paloucek & Herman.
The Tierneys were allowed to amend their assignments of error to allege that Judge Murphy erred in failing to recuse himself, sua sponte, from deciding the case, because such bias
The source of the alleged bias stems from disciplinary proceedings against a former county court judge, Kent E. Florom. In 2008, Florom became involved in matters surrounding the criminal prosecution and revocation of the teaching certificate of the head coach of the girls’ softball team on which Florom‘s daughter played. Florom tried to use his influence to convince the prosecutor not to press charges and later threatened Paloucek, who served on the school board, stating that Paloucek would make an “enemy” if Paloucek supported the action to remove the coach‘s teaching certificate.
The Nebraska Commission on Judicial Qualifications (JQC) filed a complaint charging Florom with violations of the Nebraska Code of Judicial Conduct. A hearing was held before a special master appointed by this court, and Paloucek testified at the hearing. The special master concluded there was clear and convincing evidence that Florom‘s conduct violated the Nebraska Code of Judicial Conduct. By November 5, 2009, the JQC issued the recommendation that Florom be removed from judicial office. On July 9, 2010, we independently reviewed the findings of the JQC and removed Florom from judiсial office.1
Court of Appeals Opinion
The Nebraska Court of Appeals, in a memorandum opinion, affirmed Judge Murphy‘s order granting the defendants’ motions for summary judgment and denying the Tierneys’ cross-motion for summary judgment.2 The Court of Appeals held that the alleged 8- to 10-foot-high berm complied with the provisions in the conditional use permit requiring a berm at least 6 feet high and that this provision was not contrary to
ASSIGNMENTS OF ERROR
On further review, the Tierneys assert that the Court of Appeals erred in (1) concluding as a matter of law that the berm currently surrounding the lake is in compliance with the initial application and conditional use permit which required a minimum 6-foot berm, (2) affirming the district court‘s order granting the defendants’ motions for summary judgment, (3) affirming the district court‘s order denying the Tierneys’ motion for summary judgment, (4) failing to address the assigned error regarding the district court judge‘s failure to recuse himself, and (5) failing to find that the Tierneys’ due process rights required reversal for new proceedings before an unbiased judge.
STANDARD OF REVIEW
[1] A judge shall disqualify himself or herself in any proceeding in which the judge‘s impartiality might reasonably be questioned.3
ANALYSIS
The Tierneys argue that they had a right to have the summary judgment motions decided by a judge who was not disqualified because of admitted bias against their attorney. We conclude that the decision by Judge Murphy should be vacated and that it was error for the Court of Appеals to apply a traditional harmless error analysis to the disqualification issue. Without addressing the underlying merits of this dispute, we reverse, and remand to the Court of Appeals with directions to vacate the judgment and remand the cause for a new hearing.
The Nebraska Revised Code of Judicial Conduct requires that “[a] judge shall hear and decide matters assigned to the
[2] We have explained that a trial judge should recuse himself or herself when a litigant demonstrates that a reasonable person who knew the circumstances of the case would question the judge‘s impartiality under an objective standard of reasonableness, even though no actual bias or prejudice is shown.7 By Judge Murphy‘s own admission, the so-called Florоm fiasco caused him to have a personal bias against the Tierneys’ attorney. While Judge Murphy did not announce his bias until after Florom was removed from judicial office, a reasonable observer would conclude that this same bias was present when Judge Murphy decided the parties’ cross-motions for summary judgment. At the time of the summary judgment hearing, the disciplinary proceedings against Florom were well underway. Paloucek had already testified before the special master, and the JQC had already recommended removal. A rеasonable observer would find it unlikely that Judge Murphy was ignorant of the ongoing disciplinary proceedings against his colleague. And a reasonable observer would conclude that Judge Murphy‘s bias against the Tierneys’ attorney was not formed suddenly at the moment Florom was dismissed from judicial office. Judge Murphy should have recused himself from deciding the motions for summary judgment.
[3] Since the Tierneys were unaware of the bias that formed the basis of Judge Murphy‘s disqualification, they did not waive the disqualification issue by failing to raise it before the motions for summary judgment were decided. A party is said
[4] But, as the court in Urias v. Harris Farms, Inc., 234 Cal. App. 3d 415, 285 Cal. Rptr. 659 (1991), explained, the rule that it is generally too late to raise the issue of disqualification after the mаtter is submitted for decision rests on the principle that a party may not gamble on a favorable decision. This principle does not apply when the facts constituting the disqualification are unknown, because no gamble could have been purposefully made.11 Instead, the issue of disqualification is timely if submitted at the “‘earliest practicable opportunity’ after the disqualifying facts are discovered.”12
In this case, the Tierneys were not delaying raising the issue of Judge Murphy‘s recusal until they could know whether they would be granted summary judgment. Desрite the defendants’ argument that it was ostensibly common knowledge that Judge Murphy and Florom were friends, Paloucek could not have known that because of this friendship, Judge Murphy would harbor such bias against him for his unintended role in Florom‘s disciplinary proceedings. We conclude that the Tierneys raised the disqualification issue at the earliest practicable opportunity after the disqualifying facts were discovered.
[5,6] We must consider, however, whether Judge Murphy‘s failure to recuse himself is subject to a harmless error analysis. The Court of Appеals did not reach the issue of whether Judge
While we have never specifically addressed whether harmless error review is likewise inappropriate for disqualification under the Nebraska Code of Judicial Conduct, we find that the same reasoning applies.
Most other jurisdictions hold that actions by a disqualified judge are not subject to traditional harmless error review, regardless of whether the disqualification is by statute or judicial code.14 In Blaisdell v. City of Rochester, 135 N.H. 589, 609 A.2d 388 (1992), for instance, the
The court in Blaisdell vacated the order and subsequent related orders without addressing their underlying legal merits. It rejected a harmless error review, saying: “In our opinion, it would be inconsistent with the goals of our code to require certain standards of behavior from the judiciary in the interest of avoiding the appearance of partiality, but then to allow a judge‘s ruling to stand when those standards have been violated.”16
In Cuyahoga Co. Bd. of Mental Retardation v. Association, 47 Ohio App. 2d 28, 351 N.E.2d 777 (1975), the court similarly held that when the undisputed facts are such that a trial judge is under a clear and mandatory duty to disqualify himself under the applicable code of judicial conduct, the judge‘s attempt to act in violation of that duty by continuing to hear the case will be vacated and the underlying merits of the dispute will not be reached on appeal. The court explained that the canons of judicial conduct are binding and mandatory unless otherwise indicated. These standards were not intended to be “empty admonitions which a trial judge could openly disregard, subject only to retrospective disciplinary action against himself, with no effect upon the improper actions which the canons were designed to protect against.”18
In Scott v. U.S., 559 A.2d 745 (D.C. 1989), the court systematically set forth the reasons it believed that a traditional harmless error analysis
We agree that a traditional harmless error analysis is inappropriate. Any attempt to determine or ameliorate actual prejudice through a traditional harmless error analysis would undermine the high function of the judicial process that the ethical canons are designed to protect. We must decide, then, what the appropriate test is.
Several courts have adopted the view that all actions by a judge who is disqualified are void per se.24 However, in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct. 2194, 100 L. Ed. 2d 855 (1988), the U.S. Supreme Court set forth a more flexible three-factor test to determine when orders issued by a disqualified judge should be
Based on the appearance of impropriety, the lower appellate court in Liljeberg had vacated the trial court‘s judgment after the appeal was final, pursuant to
The Court explained that the judge‘s consciousness of the circumstances creating the appearance of impropriety was not an element of a violation of
The Court explored under what circumstances vacatur was the appropriate method of rectifying such judicial lapses. It concluded that a traditional harmless error analysis robbed the litigants of effective relief, and was inappropriate.29 But it also
The Court first considered the third factor because it was the most important one: The risk that public faith in the judiciary would be undermined as a result of the violation.33 In this rеgard, the court noted that, while the case at hand may not have involved actual knowledge of the conflict, it would be difficult for the general public to understand how personal concerns can be so forgotten by busy federal judges. A judge‘s forgetfulness is “‘not the sort of objectively ascertainable fact that can avoid the appearance of partiality.‘”34 The Court also concluded that the violation at issue was “neither insubstantial nor excusable.”35 Instead, the “facts create[d] precisely the kind of appеarance of impropriety that
Second, the Court considered whether denial of relief would produce injustice in other cases. The Court determined that it would not. Quite the opposite, the Court concluded that vacating the judgment would have prophylactic value, since it might encourage future judges and litigants “to more carefully examine possible grounds for disqualification and to promptly
In considering prejudice to the parties, the Court noted that an “analysis of the merits of the underlying litigation suggests that there is a greater risk of unfairness in upholding the judgment . . . than there is in allowing a new judge to take a fresh look at the issues.”39 The Court also pointed out that the parties did not show special hardship by reason of thеir reliance on the original judgment. Finally, the respondent‘s request to vacate was timely despite being made for the first time on appeal, because the respondent did not know of the facts surrounding the disqualification until that time. Thus, the Court found no compelling reason not to vacate the lower court‘s judgment. Several other jurisdictions have adopted the Liljeberg special harmless error test in determining whether to vacate court orders by a judge who should have recused himself or herself.40
[7] We believe that the Liljeberg test is the best means of determining when the rulings of a judge, who should have recused himself or herself, will be vacated, and we hereby adopt it. Applying the Liljeberg test to the facts of this case, we conclude that Judge Murphy‘s order on the parties’ cross-motions for summary judgment should be vacated.
First, the risk of undermining the public‘s confidence in the judicial process is high. Judge Murphy‘s failure to inform the
[8] Unlike other circumstances leading to an appearance of impropriety which a reasonable observer could conclude had no actual effect on the trial court‘s judgment, a charge of bias “‘must be deemed at or near the very top in seriousness.‘”42 It is the basic precept to our system of justice that a judge must be free of all taint of bias and partiality.43 Thus, “‘bias kills the very soul of judging—fairness.‘”44 When a judge is biased, his or her “‘personal integrity and ability to serve are thrown into question, placing a strain on the court that cannot easily be erased.‘”45
Next, considering the risk to future litigants, we conclude that vacatur will only provide a benefit. Given the importance of the charge of bias, relief in this case will prevent injustice in some future case by encouraging judges and litigants to more carefully examine possible grounds for bias and promptly disclose them when discovered. Thus, under Liljeberg, the lower court‘s judgment must be vacated unless the risk of unfairness to the parties cautions against it.
The defendants have made no showing of special hardship by reason of their reliance on the original judgment. And, as already discussed, although the issue of Judge Murphy‘s bias was not raised until the pendency of this appeal, the Tierneys raised the issue at their earliest opportunity. There is little to
We find it unnecessary and inappropriate in this case to address the underlying merits of the motions. An analysis of whether Judge Murphy‘s decision was correct could not adequately erase the taint of his bias or the appearance of such bias. Not only for the sake of the parties, but for the public as a whole and its faith in the judicial system, we conclude that the Court of Appeals’ judgment must be reversed. We express no implicit or explicit approval of the Court of Appeals’ legal conclusions regarding the construction of the permit and contract here in dispute, but hold that the Court of Appeals erred in applying a harmless error аnalysis to Judge Murphy‘s failure to recuse himself from the summary judgment hearing.
CONCLUSION
We find the grounds alleged under the Nebraska Code of Judicial Conduct sufficiently serious to warrant vacatur. We reverse, and remand to the Court of Appeals with directions to vacate the judgment below and remand the cause for a new summary judgment hearing before another judge to be appointed by this court.
REVERSED AND REMANDED WITH DIRECTIONS.
WRIGHT, J., not participating.