When must a district judge recuse because the judge’s spouse is a deputy county attorney?

Plain-English summary

A district judge married to a deputy county attorney asked about several criminal and post-judgment settings. The Committee said neither the judge’s nor the spouse’s prosecution of an earlier, final conviction used to enhance a new offense automatically disqualified the judge from the new case. The judge should disclose the judge’s own earlier involvement because disputed facts may make the judge a witness; if the spouse is likely to be a material witness about the earlier case, disqualification applies unless properly waived.

For problem-solving courts, the Committee treated the original prosecution and subsequent program supervision as one proceeding. A judge may not take supervision of a transferred case if the spouse prosecuted its underlying offense or served on its treatment team as the prosecutor. Those conflicts may be waived after the on-record disclosure and party-and-counsel agreement required by § 5-302.11(C).

The spouse’s prosecution of an unrelated case against the same person in another county does not itself disqualify the judge. If the judge learns the spouse acted as an attorney in a proceeding before the judge, however, recusal is required unless waived. The Committee declined to advise the spouse on screening procedures. For a later modification or contempt action following a case in which the spouse acted, it found no automatic disqualification but said the judge should disclose the spouse’s prior role so the parties can raise whether the new matter rests on the same or similar facts.

In practice

The opinion separates a final earlier conviction, a continuing problem-solving proceeding, a wholly unrelated case, and a later action under the same case number. It attaches different disclosure, disqualification and waiver consequences to the spouse’s role in each setting.

Common questions

Q: Does the spouse’s prosecution of an old conviction automatically prevent the judge from hearing a new enhanced-offense case?

A: No. The Committee treated the earlier conviction as a separate proceeding, but identified a possible conflict if the spouse is likely to be a material witness about disputed facts.

Q: Can the judge supervise a transferred problem-solving case in which the spouse prosecuted the charge?

A: The Committee said no without a waiver under § 5-302.11(C), because the spouse acted as a lawyer in the same continuing proceeding.

Q: Does an unrelated prosecution of the same person in another county require recusal?

A: The Committee said it does not, on the facts presented, because the spouse is not acting as an attorney in the matter before the judge.

Background and rules framework

The opinion applies § 5-302.11’s impartiality, spouse-as-lawyer, material-witness and waiver provisions. It distinguishes a completed proceeding from an ongoing problem-solving court case and considers whether a later action presents the same or similar factual basis as the spouse’s earlier work.

Citations and references

Nebraska Revised Code of Judicial Conduct:

• Canon 1 and §§ 5-301.0, 5-302.2, 5-302.4 and 5-302.11, including § 5-302.11(C)’s waiver procedure.

Cases and opinions discussed:

• Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002), objective impartiality standard.
• Nebraska Judicial Ethics Committee Opinion 01-2, concerning a judge’s earlier work as a county attorney and later modification or contempt cases.

See also

• NE Judicial Ethics Op. 24-1: Judge’s spouse in law enforcement
• NE Judicial Ethics Op. 22-2: Sibling judges and recusal

Source

• Landing page: Nebraska Judicial Ethics Committee opinions
• Original PDF: Opinion 22-1

Original opinion text

Best-effort text extraction from the official PDF. The linked PDF is authoritative.

Nebraska Judicial Ethics Committee Opinion 22-1

Questions Presented--
Is a district judge whose spouse is a deputy county attorney for one of the counties in the judge’s judicial district disqualified in the following situations?
1. Cases involving enhanceable offenses: a. from cases involving an enhanceable offense (i.e. 5th offense DUI) in which the judge prosecuted one of the underlying offenses? b. from cases involving an enhanceable offense (i.e. 5th offense DUI) in which the judge’s spouse prosecuted one of the underlying offenses?
2. Cases involving problem-solving courts: a. If the judge’s spouse has prosecuted the offense for which the defendant plead into a problem-solving court in County X, can that offender be transferred to the judge’s supervision in County Y? b. If the spouse was not the prosecutor assigned to the underlying offense can the judge accept transfer of the offender to County X if the spouse was simply a member of the treatment team in County Y? c. If the judge is disqualified, can that conflict be waived by the parties?
3. Other cases: a. from cases where the judge’s spouse is prosecuting an unrelated case against the same party in another court? b. Are there additional screening methods required of either the judge or his spouse to avoid conflict in the signing of warrants in which the spouse has assisted law enforcement with preparation of the affidavit for arrest warrant?
4. Cases involving post-judgment actions such as modifications or contempt actions where the judge’s spouse acted as attorney in the original action, and if so, can this conflict be waived by the parties?

Statement of Facts
The party requesting the opinion is a district judge serving in a district which has multiple counties. He is married to a Deputy County Attorney in an office in one of the counties in the district. The judge’s primary place of office is not in the county in which the spouse prosecutes, but he could be asked to hear cases in that county. The counties are geographically adjacent, and the judge is aware that parties are, on occasion, involved in the court system in both counties. The judge previously prosecuted in the county in which the spouse currently prosecutes. The spouse’s prosecution caseload is almost entirely in the district court and includes felony criminal prosecutions, child support enforcement actions, civil actions on behalf of the county, and mental health board actions which can be appealed to the district court.

Applicable Code Sections
Preamble to the Code (Reissue 2008 & Cum. Supp. 2014)
Neb. Rev. Code of Judicial Conduct, Canon 1 and § 5-301.0

Nebraska Judicial Ethics Committee Opinion 22-1 Available on-line at www.supremecourt.ne.gov Page 1 of 11

Neb. Rev. Code of Judicial Conduct, § 5-302.2
Neb. Rev. Code of Judicial Conduct, § 5-302.4
Neb. Rev. Code of Judicial Conduct, § 5-302.11

References in Addition to Nebraska Revised Code of Judicial Conduct Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002) Black’s Law Dictionary, 1457 (11th ed. 2019)

Discussion
The revised Code took effect January 1, 2011, and replaced the former Code of Judicial Conduct. The Revised Code employs the term “disqualification” instead of “recusal.” Comment [1] to Rule 2.11 (Section 5-302.11) states that in many jurisdictions, the term “recusal” is used interchangeably with the term “disqualification.” Both terms are used interchangeably in this opinion.

The preamble to the Nebraska Code of Judicial Conduct states:

[1] An independent, fair and impartial judiciary is indispensable to our system of justice. The Nebraska legal system is based upon the principle that an independent, impartial, and competent judiciary, composed of men and women of integrity, will interpret and apply the law that governs our society. Thus, the judiciary plays a central role in preserving the principles of justice and the rule of law. Inherent in all the Rules contained in this Code are the precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to maintain and enhance confidence in the legal system.
[2] Judges should maintain the dignity of judicial office at all times, and avoid both impropriety and the appearance of impropriety in their professional and personal lives. They should aspire at all times to conduct that ensures the greatest possible public confidence in their independence, impartiality, integrity, and competence.
[3] The Nebraska Revised Code of Judicial Conduct establishes standards for the ethical conduct of judges and judicial candidates. It is not intended as an exhaustive guide for the conduct of judges and judicial candidates, who are governed in their judicial and personal conduct by general ethical standards as well as by the Code. The Code is intended, however, to provide guidance and assist judges in maintaining the highest standards of judicial and personal conduct, and to provide a basis for regulating their conduct through disciplinary agencies.
The applicable Code sections read as follows:

§ 5-301.0. Canon 1.
A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and appearance of impropriety.
....
§ 5-302.2. Impartiality and fairness.
A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially.
....
§ 5-302.4. External influences on judicial conduct.
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(A) A judge shall not be swayed by public clamor or fear of criticism.
(B) A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.
(C) A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge.
....
§ 5-302.11. Disqualification.
(A) A judge shall disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:
(1) The judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.
(2) The judge knows that the judge, the judge’s spouse or domestic partner, or a person within the fourth degree of relationship to either of them, or the spouse or domestic partner of such a person is:
(a) a party to the proceeding, or an officer, director, general partner, managing member, or trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis interest that could be substantially affected by the proceeding; or
(d) likely to be a material witness in the proceeding.
(3) The judge knows that he or she, individually or as a fiduciary, or the judge’s spouse, domestic partner, parent, or child, or any other member of the judge’s family residing in the judge’s household, has an economic interest in the subject matter in controversy or in a party to the proceeding.
....
(6) The judge:
(a) served as a lawyer . . . in the matter in controversy . . . .
(b) served in governmental employment, and in such capacity participated personally and substantially as a lawyer . . . concerning the proceeding . . . .
(C) A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into a permanent record of the proceeding.

COMMENT
[1] Under this Rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (6) apply. In many jurisdictions, the term “recusal” is used interchangeably with the term “disqualification.” [2] A judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.
....

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[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.
The “Terminology” section of the Code states:

“Member of the judge’s family” means a spouse, domestic partner, child, grandchild, parent, grandparent, or other relative or person with whom the judge maintains a close familial relationship. . . .
“Member of a judge’s family residing in the judge’s household” means any relative of a judge by blood or marriage, or a person treated by a judge as a member of the judge’s family, who resides in the judge’s household.

As stated by this Committee in previous Advisory Opinions, the appearance of impropriety must be avoided with as much zeal as improprieties themselves.

Under § 5-302.11(A)(2), a judge must disqualify himself/herself, in general, where a spouse is a person who has more than a minimis interest that could be substantially affected by the proceeding or is likely to be a witness.
Further, under § 5-302.11, comment 1, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of § 5-302.11 (A)(1) through (6) apply.

A judge should recuse himself/herself in any case in which his/her spouse is involved as the judge’s impartiality might be reasonably questioned. Where there is an appearance of partiality to a reasonable observer, disqualification is necessary. The test for an appearance of partiality is meant to be an objective one; whether an objective, disinterested observer fully informed of the relevant facts would entertain a significant doubt that the judge in question was impartial.
Jeffrey M. Shaman et al., Judicial Conduct and Ethics § 4.25 (3rd ed. 2000).

In Gibilisco v. Gibilisco, 263 Neb. 27, 34, 637 N.W.2d 898, 904 (2002), the Nebraska Supreme Court stated:

[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. This test is consistent with Canon 2 of the Nebraska Code of Judicial Conduct, which requires that a judge avoid impropriety and the appearance of impropriety in all activities, and Canon 3, which requires that a judge perform all duties impartially.

Citing State v. Pattno, 254 Neb. 733, 579 N.W.2d 503 (1998).
Black’s Law Dictionary, 1457 (11th ed. 2019), defines “proceeding” as follows:
“The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.” Nebraska Judicial Ethics Committee Opinion 22-1 Available on-line at www.supremecourt.ne.gov Page 4 of 11

Analysis and Opinion

Issues Involving Enhanceable Offenses:

Question 1(a): The first question presented is whether a judge is disqualified from cases involving an enhanceable offense (i.e. 5th offense DUI) in which the judge prosecuted one of the underlying offenses. In presiding over such a case, a judge would be required to rule on whether an alleged prior conviction is a valid conviction for purposes of enhancing the present offense. The primary question to be answered regarding the prior case is whether the defendant was represented by counsel in the prior case, or if the defendant knowingly, voluntarily, and intelligently waived his right to counsel in the prior case. The judge would also decide whether the State had met its burden to show that the defendant had been convicted of the prior offense and whether the prior offense was a proper offense for the purpose of enhanceablility as to its date and type of offense.

Under § 5-302.11 a judge is disqualified when “the judge’s impartiality might reasonably be questioned, including but not limited to the following circumstances:” when “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding” or when “[the judge is] acting as an attorney in the proceeding [or is] a person who has more than a de minimis interest that could be substantially affected by the proceeding [or] served as a lawyer . . . in the matter in controversy . . . . ”

To resolve many of issues raised in the present request, it is necessary to address the meaning of the term “proceeding” as it applies to the Code. Black’s Law Dictionary, 1457 (11th ed. 2019) provides the following as its first definition for the term “proceeding”: “The regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment.”

One of this Committee’s previous opinions, Opinion 20-2 also touches on this issue. In that opinion, the Committee was asked to advise a judge who had previously acted as a deputy county attorney for child support enforcement. Addressing cases in which the judge was asked to rule on the current contempt of a party in a case which had been commenced when the judge was a supervising attorney in the county attorney’s office, the Committee found that the judge was disqualified in cases when a bench warrant was issued when the judge was still in the county attorney’s office, but that the judge would not be disqualified in cases in which the contempt or facts necessitating modification of the original child support order had arisen after the time the judge had left the county attorney’s office. The Committee stated:

Once all issues in the matter that was initiated during the period of time that the judge was the deputy county attorney have been resolved through a final order or dismissal by the court, a later matter, not arising out of the same facts involving different and separate facts, would not result in the disqualification of the judge.

In the present situation, the Committee does not believe that the judge is “acting as an attorney in the proceeding.” The prior offense was a separate “proceeding” in which the defendant was convicted of a crime. The prior conviction was a final, appealable order. The

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present case is a separate “proceeding.” The Committee does not believe that the judge has any “interest that could be substantially affected by the proceeding.”

The Committee does not believe that the limited inquiries required of a judge regarding the previous offenses would mean that the judge “served as a lawyer . . . in the matter in controversy.” § 5-302.11(6)(a). The “matter in controversy” in the present case is whether the defendant committed the present enhancable offense, and whether the prior conviction is a valid conviction for enhanceablity purposes. None of the matters “in controversy” in the present case are affected by the judge’s appearance as attorney in the prior case. Likewise, no action which may have been taken or not taken by the judge in his previous role as prosecutor in the prior case have any bearing on the present “matter in controversy.”

The Committee does not believe that “a reasonable person who knew the circumstances of the case would question the judge’s impartiality under an objective standard of reasonableness.” See Giblisco, 263 Neb. 27, 34, 637 N.W.2d 898, 904 (2002).

For the reasons set out above, the Committee does not believe the judge is automatically disqualified from a case in which he acted as prosecutor for a prior offense being used to enhance a present case.

However, the Committee believes unique cases may arise where the judge may “have personal knowledge of facts that are in dispute in the proceeding.” For example, if one party in the present case argues that the written record (such as a journal entry) for the prior offense does not accurately reflect what happened in that proceeding, it is possible that the judge could “have personal knowledge of facts that are in dispute in the proceeding” and therefore be a necessary witness in the present case. In this situation, the judge would be disqualified. There may also be other unique situations where the judge was a prosecutor for a prior offense where the facts would indicate that the judge could be disqualified. Because such case specific situations may arise, the Committee advises the judge to disclose to the parties his involvement in the prior case to give the parties an opportunity to file a Motion to Recuse for the reason that he has “personal knowledge of facts that are in dispute in the proceeding.”

Question 1(b): The second question presented is whether a judge would be disqualified in cases where his spouse had prosecuted one of the prior cases being used to enhance a present enhanceable offense. In this situation, the applicable sections of the Code state that a judge is disqualified when “[t]he judge knows that . . . the judge’s spouse . . . is acting as a lawyer in the proceeding . . . or . . . likely to be a material witness in the proceeding.” § 5-302.11(2)(b) and (d).

As stated above, the Committee believes that the prior case being used to enhance the present case was a separate “proceeding” from that currently before the judge. As such, the Committee does not believe that the judge is automatically disqualified from the present case. However, just as set out above, if it becomes apparent to the judge that the issues involving the validity of the prior offense would cause the court to have to look beyond the written record in the case, the spouse could have personal knowledge of the facts of the prior case such that she could become a witness. If the spouse was “likely to be a material witness in the proceedings,” the judge would be subject to disqualification, unless waived by the parties. § 5-302.11(A)(2)(d) and (C).

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Issues Involving Problem-Solving Courts:

As background, the following is an outline of the administrative and operational steps in a case where a defendant is admitted into problem-solving court (PSC). These steps are the standards adopted by the Supreme Court for all adult dui and drug courts. According to the standards, the “PSC team” consists of the presiding judge, prosecutor, defense attorney, PSC coordinator, community supervision officer, mental health professional (typically a therapist), law enforcement officer and a social worker.

1. Referral process. Referrals of potential candidates to a PSC program are solely in the discretion of the county attorney. Normally, there is very little involvement by a judge in such referral process other than an occasional request made by the judge of the county attorney and the defendant’s counsel as to whether PSC has been considered for a particular defendant.
2. Eligibility determination. Upon referral, a defendant prepares an application which is examined and reviewed by the PSC coordinator and supervising officer. The judge has no role in the eligibility determination. A defendant is typically determined to be eligible if they have a high risk to re-offend (generally an LSCMI score of 18 or above) and has a high need (usually a mild, moderate, or severe substance use disorder). If the defendant has a high risk and high need, the defendant is eligible and can be considered for PSC enrollment.
3. Acceptance (suitability). Once the eligibility determination is made the referral is sent to the PSC team. The PSC team considers the eligibility determinations to ascertain whether the defendant is suitable for the program conducted by the PSC. Suitability typically addresses issues such as available resources to provide the necessary treatment required for the defendant, whether there are participants in the program who must be separated or otherwise kept apart, and whether there is a community-based objection to the person’s participation. Typically, because of the discretion exercised by the county attorney, there are very few times when a candidate is not suitable. At the end of the conference on the suitability the judge determines whether the person will be accepted into the PSC program.
4. Plea. The defendant enters a plea to a felony conviction in the county of the charge. For this answer, it is assumed the defendant entered a plea in County Y, and that the judge’s spouse was either the prosecuting attorney or an active member of the office.
5. Staffings. A person admitted into PSC appears before the court for regular review sessions. The review sessions are preceded by a meeting of the PSC team which is typically called the “staffing.” At the staffing, the defendant’s progress is reviewed, incentives or sanctions are reviewed, and in some cases, whether a sanction involving the deprivation of liberty, i.e. jail time is appropriate. At the staffings, the coordinator and supervising officer provide reports pertaining to the defendant’s progress including attendance at counseling, progress in counseling, employment, communication with family, pro-social activities, drug testing and participation in other PSC programs.
Generally, adjustments to the care or treatment of the defendant are approved at the staffings.
6. In-court review sessions. In-court review sessions are conducted in the courtroom with the judge presiding, the participant, the coordinator, and supervisor present. The

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participant’s performance is reviewed by the judge, and the judge makes comments to praise or to suggest changes in the defendant’s participation based on the information provided from the staffing.
7. Successful completion. When a participant successfully completes all requirements of the PSC program, the participant is eligible to withdraw the guilty plea to the felony charges and to have the conviction set aside and the charges dismissed. At this stage in the process the participant returns to the court in which the original charges were filed and reports to the court and receives the dismissal of the charge.
8. Termination for noncompliance. If a participant is determined to have failed to have materially complied with any part of the PSC program the defendant can be terminated from the program. The determination occurs in the county in which the participant has been supervised. The PSC team meets, considers the circumstances, and recommends that the defendant be terminated. The judge presiding in the PSC makes the final decision and the judge advises the defendant at an in-court session of his/her rights upon termination, orders a pre-sentence investigation, sets a bond, and sets a sentencing date.
9. Termination hearing. If the defendant is dissatisfied with the decision to terminate, the defendant can request a hearing before an impartial judge on whether the termination was for good reason. If the defendant seeks such a hearing, a judge other than the judge presiding in the PSC will hear the case.
10. Sentencing. Upon an unsuccessful termination, the defendant is returned to the court in which he or she entered the plea and is given a sentence by the judge in that court.

The section of the Nebraska revised code of judicial conduct which has the most direct application is § 5-302.11(a)(2)(b) which provides, in pertinent part, that a judge must disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned including, but not limited to a circumstance where the judge knows that the judge’s spouse is acting as a lawyer “in the proceeding.”

Reviewing the steps outlined above, it appears a question of disqualification may arise in steps 3, 5, 6, 7 and 8 of PSC programs. The following answers assume the judge and/or the spouse are involved in one of steps 3, 5, 6, 7 or 8.

Question 2a. If the spouse has filed or participated in prosecution of the offense in which the defendant has pled into a problem-solving court in County Y (spouse’s county), can that offender be transferred to the judge’s supervision in County X (judge’s duty station)?

The resolution of this question and the other questions depends on the definition of “proceeding.” The Committee acknowledges that cases which proceed in problem-solving courts look very different, procedurally, than those which are handled fully in the traditional court setting. The initial hearings, including the plea hearing where the defendant is admitted to the problem-solving court are traditional in nature. The matter then continues in a less formal manner as it proceeds through the problem-solving court process. One could argue, because of the structure of the problem-solving court process, that there are two separate “proceedings” occurring. However, while the defendant is enrolled in the problem-solving court he or she has not been sentenced nor has the case been dismissed, and no final appealable order has been entered in the case. As such, the Committee believes that the defendant is still involved in a single “proceeding.”

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The Code states a judge is disqualified when “[t]he judge knows that . . . the judge’s spouse . . . is acting as a lawyer in the proceeding.” § 5-302.11(2)(b) As such, the judge is disqualified, and could not accept the transfer if he were to be supervising the case.

However, pursuant to § 5-302.11(C):

A judge subject to disqualification under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose on the record the basis of the judge’s disqualification and may ask the parties and their lawyers to consider, outside the presence of the judge and court personnel, whether to waive disqualification. If, following the disclosure, the parties and lawyers agree, without participation by the judge or court personnel, that the judge should not be disqualified, the judge may participate in the proceeding. The agreement shall be incorporated into a permanent record of the proceeding.

The present question does not involve a question of personal “bias or prejudice” under § 5-302.11(A)(1). Therefore, the judge may disclose on the record his spouse’s involvement in the proceeding, and the disqualification could be waived by the parties if they chose to do so.

Question 2b. If the spouse was not the prosecutor assigned to the underlying offense can the judge accept transfer of the offender to County X if the spouse was simply a member of the treatment team in County Y and recuses herself from the decision making or participation related to that offender as soon as the transfer request is made.

As set out above, the Committee believes that a defendant in a problem-solving court is involved in a single “proceeding” even when his or her case is in the non-traditional setting of the problem-solving court.

This request raises the question of what it means to act “as a lawyer in the proceeding.” § 5-302.11(2)(b) [emphasis supplied]. In this scenario, the spouse would not have acted specifically as the prosecutor of the defendant during this portion of the case. However, one of the positions on the treatment team is reserved for a prosecutor, and the spouse would be serving as a member of the treatment team in her role as prosecutor. As such, the Committee believes that the spouse has acted as “a lawyer in the proceeding.” Therefore, the Committee believes that the judge is subject to disqualification in such a case as a transfer from another county, unless the conflict is waived by the parties pursuant to § 5-302.11(C).

Question 2c. If any of the scenarios in question 2 would prohibit the transfer of an offender between County X and County Y, is that conflict waivable if fully disclosed by the judge of the spouse.

The present questions do not involve issues of personal “bias or prejudice” under § 5- 302.11(A)(1). Therefore, the judge may disclose on the record his spouse’s involvement in the proceeding, and the disqualification could be waived by the parties if they chose to do so. § 5- 302.11(C).

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Other Cases:

Question 3a: Is a judge disqualified from cases involving a party where the judge’s spouse is prosecuting an unrelated case against the same party in another county?

The unrelated case in another county in this scenario is clearly not the same “proceeding,” nor is the spouse acting as an attorney “in the matter.” Based on the authority and reasoning set out above, the Committee does not believe that this is a “proceeding in which the judge’s impartiality might reasonably be questioned.” § 5-302.11(A). The spouse has no personal stake in the matter, and is acting only as a governmental attorney representing the interests of the state.

As such, the Committee does not believe there is a basis for disqualification.

Question 3b: It is beyond the scope of this Committee to offer advice to the spouse of the judge as to what actions are appropriate to take as an attorney. It is also beyond the scope of this Committee to craft a screening procedure to address such situations. If the judge becomes aware at any stage of a proceeding that his spouse acted as an attorney, he is subject to disqualification and must recuse himself, unless the disqualification is waived by the parties pursuant to § 5-302.11(C).

Question 4: Is a judge disqualified from post-judgment actions such as modifications or contempt actions where the judge’s spouse acted as attorney in the original action, and if so, can this conflict be waived by the parties?

This Committee issued an opinion in Opinion 01-2 which has some similarities to the present case. In that case, the Committee advised that a judge who had previously acted as a county attorney who was involved in an initial child support case was not automatically disqualified in a case for contempt or modification of the initial child support order. The Committee advised that the judge was not automatically disqualified so long as the present matter did not involve the “same or similar factual situation.” However, the Committee advised the judge to disclose his prior involvement to the parties to determine if any of the parties wished to argue that the present matter involved the “same or similar factual situation.”

Because the factual basis in Opinion 01-2 dealt with the previous involvement of the judge, and not the judge’s spouse, it invokes a different section of the Code than the present factual basis. The basis for the opinion in Opinion 01-2 was § 5-302.11(A)(2) of the Code, which requires disqualification if the judge served “as a lawyer . . . in the matter in controversy.” In the present situation, the Committee must look to § 5-302.11(A)(6) of the Code, which requires disqualification when a judge or his spouse “is . . . acting as an attorney in the matter [or is] a person who has more than a de minimis interest that could be substantially affected by the proceeding.” Under either section, the judge must also consider whether “the judge’s impartiality might reasonably be questioned.”

Despite the slightly different standard set out in the Code between disqualification of the
judge based on his own prior representation and the representation of his spouse, the Committee believes that the reasoning of Opinion 01-2 should be applied to the present case as well. There is a greater opportunity for a judge’s impartiality to be questioned in this scenario than in the Nebraska Judicial Ethics Committee Opinion 22-1 Available on-line at www.supremecourt.ne.gov Page 10 of 11

scenario presented in Question 3a, because the proceeding takes place with the same case caption and case number as the case where the spouse was involved as prosecutor. As such, the Committee believes that the judge is not automatically disqualified, but should disclose the spouse’s prior involvement to the parties and their lawyers. This should be done to determine whether any of the parties wish to argue that the present matter involves the “same or similar factual basis.”

Disclaimer
This opinion is advisory only and is based on the specific facts and questions submitted by the person or organization requesting the opinion pursuant to appendix A of the Nebraska Revised Code of Judicial Conduct. Questions concerning ethical matters for judges should be directed to the Judicial Ethics Committee.

APPROVED AND ADOPTED BY THE COMMITTEE
ON APRIL 18, 2022

Judge James C. Stecker
Judge Jeffrey M. Wightman
Judge Michael W. Pirtle
Judge Matthew L. Acton
Judge Reggie L. Ryder
Judge Julie D. Smith
Judge Travis P. O’Gorman

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