May a judge hear a default judgment motion in a case from which a family conflict would require trial recusal?

Plain-English summary

A judge said a first cousin might have a financial interest in a civil matter and acknowledged that the conflict would require disqualification if the matter went to trial. The question was whether the judge could still hear a default judgment motion.

The Committee did not decide whether the stated family facts independently required recusal. It assumed the judge’s stated trial disqualification and concluded that the same conflict extended to a default judgment motion.

A default judgment involved a signed judgment and judicial discretion, not merely a ministerial step. The Committee said hearing that motion would create an appearance problem, especially if the judge later recused from a motion to set aside the judgment.

Currency note

This opinion was issued in 1996, before Nebraska's adoption of the 2011 Revised Code of Judicial Conduct. Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific requirement.

Common questions

Q: Did the Committee decide that this cousin’s interest itself required recusal?

A: No. It assumed the judge’s stated trial conflict and addressed whether that conflict also reached default judgment.

Q: Is a default judgment motion purely ministerial under the opinion?

A: No. The Committee said the judge exercises control and discretion over the proceeding.

Q: How broadly did the conclusion apply?

A: The Committee said a clear conflict requiring trial recusal required recusal from all aspects of the case.

Background and rules framework

The opinion quoted former Nebraska Canons 2A and 3E(1), including the family relationship provision of Canon 3E(1)(d)(i). It applied the appearance and impartiality standards to default judgment proceedings.

Citations and references

Former Nebraska Code of Judicial Conduct: Canons 2A, 3E(1), and 3E(1)(d)(i).

See also

• NE Judicial Ethics Op. 96-4: Sibling’s Partners

Source

• Landing page: Nebraska Judicial Ethics Committee opinions
• Original PDF: Opinion 96-5

Original opinion text

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

Nebraska Ethics Advisory Opinion 96-5

Question Presented--
A judge, who has jurisdiction in certain civil matters in which his first cousin has a possible financial interest, states that he would be compelled to disqualify himself if the matter came to trial. Must the judge also disqualify himself from hearing a motion for default judgment?

Conclusion
A judge must recuse himself from hearing a motion for default judgment if a family relationship would require his disqualification from presiding at a trial. Recusal would be necessary in a case where the judge has a disqualifying family relationship, even in the instance of a motion for default judgment.

Applicable Code Sections

CANON 2

A Judge Shall Avoid Impropriety and the Appearance of Impropriety in all of the Judge’s Activities

A. A judge shall respect and comply with the law and shall act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
....

CANON 3

A Judge Shall Perform the Duties of Judicial Office Impartially and Diligently

....
E. DISQUALIFICATION.
(1) A judge shall not participate in any proceeding in which the judge’s impartiality reasonably might be questioned, including but not limited to instances where:
....
(d) the judge or a judge’s spouse, or a person within the fourth degree of relationship to either of them, or the spouse of such a person:
(i) is a party to the proceeding, or an officer, director or trustee of a party.

Nebraska Ethics Advisory Opinion
96-5
Released: November 1996
Page 1 of 2
Discussion
The question presented states that the judge acknowledges the existence of a conflict requiring his recusal if the case were tried. Without analyzing whether the facts presented require recusal, if the judge has an ethical conflict sufficient to disqualify him from the matter if tried, he necessarily has a conflict in hearing a motion for default judgment. Even though it is by default, the judge enters a judgment for a party that is signed by the judge. To the community, this appears to be a finding in favor of the prevailing party and an entry of judgment for the prevailing party. Further, a judge hearing a motion for default judgment is not acting in a purely ministerial fashion. The judge exercises some control and discretion over the proceeding. Moreover, the judge may be asked at a later date to set aside the default judgment. At a minimum, there would be an appearance of impropriety if the judge who did not initially recuse himself from the hearing on entering a default judgment, suddenly felt compelled to recuse himself once a request is made to set aside his judgment. The appearance of impropriety requires a judge to recuse himself from all aspects of the case in which he would have a clear conflict if the matter went to trial.

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 Code of Judicial Conduct. Questions concerning ethical matters for judges should be directed to the Ethics Advisory Committee.

APPROVED AND ADOPTED BY THE
COMMITTEE ON NOVEMBER 13, 1996

Judge Darvid Quist
Judge Michael McGill
Judge Stephen M. Swartz
Judge Toni G. Thorson
Judge Lindsey Miller-Lerman
Judge Cloyd Clark
Judge Donald Rowlands

Nebraska Ethics Advisory Opinion
96-5
Released: November, 1996
Page 2 of 2