May a county judge disregard a district court’s specific remand instructions because the judge disagrees?

Plain-English summary

A county judge asked whether the judge could disregard specific directions in a district court order and mandate after the district court sat as an appellate court in a forcible entry and detainer case. The judge disagreed with the instructions.

The Committee answered no. It read Nebraska Revised Code of Judicial Conduct § 5-301.1, which requires a judge to comply with the law, together with Nebraska appellate decisions requiring a lower court to obey specific remand instructions. The Committee expressly declined to decide whether the particular remand was proper or whether the district court had authority to give those instructions in that case.

In practice

Under this opinion, disagreement with specific appellate remand directions does not permit a county judge to depart from the mandate. The opinion resolves that ethics question without ruling on the correctness of the district court’s order.

Common questions

Q: May the county judge change the result directed by the appellate court?

A: No. The Committee said a lower court given specific instructions on remand has no discretion to deviate from them.

Q: Did the Committee decide whether the district court’s remand was legally proper?

A: No. It expressly made no finding on the propriety of the remand or the district court’s authority to issue those particular instructions.

Background and rules framework

The opinion applies Nebraska Revised Code of Judicial Conduct § 5-301.1, which says a judge shall comply with the law, and cites Nebraska appellate decisions on the binding effect of a mandate with specific instructions.

Citations and references

Nebraska Revised Code of Judicial Conduct:

• § 5-301.1, compliance with law.

Cases:

• Molina v. Salgado-Bustamante, 21 Neb. App. 75, 837 N.W.2d 553 (2013), remand and limits on trial-court action.
• Jurgensen v. Ainscow, 160 Neb. 208, 69 N.W.2d 856 (1955), obedience to a specific appellate mandate.
• Robertson v. Jacobs Cattle Co., 292 Neb. 195, 874 N.W.2d 1 (2015), specific remand instructions.
• VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d 651 (2007), specific remand instructions.

See also

• NE Judicial Ethics Op. 26-1: Recusal After Evaluating Attorney for Judicial Vacancy

Source

• Landing page: Nebraska Judicial Ethics Committee opinions
• Original PDF: Opinion 26-2

Original opinion text

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

Nebraska Judicial Ethics Committee Opinion 26-2

Question Presented--
Can a county judge disregard the Order and Mandate from the district court, sitting as an appellate court, when the county judge disagrees with the specific directions and rulings of the district court?

Conclusion
No. A judge shall comply with the law. When a lower court is given specific instructions on remand, it must comply with the specific instructions and has no discretion to deviate from the mandate.

Statement of Facts
The relevant facts, summarized, are as follows: The judge requesting the instant opinion presided over a forcible entry and detainer trial in county court. The verdict was appealed to the district court. The appeal was dismissed by the district court and remanded for further proceedings. In the order and mandate from the district court, the district judge gave the county court specific instructions. The county judge disagrees with those specific instructions and asks whether those instructions can be ignored by the county court on remand.

Applicable Code Sections
Neb. Rev. Code of Judicial Conduct § 5-301.1

References in Addition to Nebraska Revised Code of Judicial Conduct Molina v. Salgado-Bustamante, 21 Neb. App. 75, 837 N.W.2d 553 (2013). Jurgensen v. Ainscow, 160 Neb. 208, 69 N.W.2d 856 (1955). Robertson v. Jacobs Cattle Co., 292 Neb. 195, 874 N.W.2d 1 (2015). VanHorn v. Nebraska S t at e Racing Comm., 273 Neb. 737, 732 N.W.2d 651 (2007).

Discussion
Neb. Rev. Code of Judicial Conduct § 5-301.1 provides that “[a] judge shall comply with the law.” In appellate procedure, a “remand” is an appellate court’s order returning a proceeding to the court from which the appeal was originated for further action in accordance with the remanding order. Molina v. Salgado-Bustamante, 21 Neb. App. 75, 837 N.W.2d 553 (2013). Nebraska appellate courts have made it clear that after receiving a mandate, a trial court is without power to affect the rights and duties outside the scope of the remand. Id. Nebraska courts have consistently held that when a lower court is given specific instructions on remand, it must comply with the specific instructions and has no discretion to deviate from the mandate. See id. See, also, Robertson v. Jacobs Cattle Co, 292 Neb. 195, 874 N.W.2d 1 (2015); VanHorn v. Nebraska State Racing Comm., 273 Neb. 737, 732 N.W.2d 651 (2007).

Nebraska Judicial Ethics Committee Opinion 26-2 Available on-line at www.supremecourt.ne.gov Page 1 of 2

In Jurgensen v. Ainscow, 160 Neb. 208, 211, 69 N.W.2d 856, 858 (1955), the Nebraska Supreme Court explained as follows:

“When a particular judgment is directed by the appellate court, the lower court is not acting on its own motion, but in obedience to the order of its superior. What that superior says it shall do, it must do, and that alone. Public interests require that an end shall be put to litigation, and when a given cause has received the consideration of this court, its merits determined, and then remanded with specific directions, the court to which such mandate is directed has no power to do anything but to obey the mandate; otherwise, litigation would never be ended, and the supreme tribunal of the state would be shorn of that authority over inferior tribunals with which it is invested by our fundamental law. . . .”

(Emphasis supplied.)

In this case, the district court is properly sitting as an appellate court. The Committee makes no comment or finding whether the remand issued to the county court was proper or whether it had the power in this case to make specific instructions. The question presented is limited to whether the county court can disregard the mandate that was issued by the superior court. The answer is clearly no, given the case law cited above.

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 SEPTEMBER 21, 2026

Judge Matthew L. Acton
Judge Michael W. Pirtle (not participating)
Judge Travis P. O’Gorman
Judge Andrew R. Lange
Judge Bryan C. Meismer
Judge Mary M. Z. Stevens
Judge Timothy E. Hoeft

Nebraska Judicial Ethics Committee Opinion 26-2 Available on-line at www.supremecourt.ne.gov Page 2 of 2