Must a judge recuse from state criminal prosecutions while the county attorney opposes the judge in a personal tax appeal?

Plain-English summary

A judge appealed the assessed value of a personal residence. The county attorney represented the county in that dispute and also prosecuted criminal cases that could come before the judge.

The Committee distinguished those criminal cases, brought for the state, from cases involving the county or county board as a party. It found no required recusal from criminal prosecutions if the judge could decide them fairly and lacked personal bias or antipathy toward the county attorney.

While the assessment appeal remained pending, the Committee said the judge should disqualify from cases naming the county or county board. It also called for recusal from criminal cases if the judge concluded that personal bias prevented impartial adjudication.

Currency note

Opinion 96-7 was released in March 1997, 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 Treat this page as historical context, not current guidance.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: Must the judge recuse from every prosecution handled by the county attorney?

A: No. The Committee said state criminal cases did not automatically require recusal on these facts.

Q: Which matters required disqualification during the tax appeal?

A: The Committee identified cases in which the county or county board was a named litigant.

Q: What if the appeal caused personal animosity toward the prosecutor?

A: The opinion said the judge should recuse if that bias or antipathy prevented impartial adjudication of criminal cases.

Background and rules framework

The opinion applied former Nebraska Canon 3E(1)’s impartiality standard and Canon 2’s appearance-of-impropriety standard to the pending personal tax appeal.

Citations and references

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

See also

• NE Judicial Ethics Op. 96-8: Lawyer Litigant

Source

• Landing page: Nebraska Judicial Ethics Committee opinions
• Original PDF: Opinion 96-7

Original opinion text

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

Nebraska Ethics Advisory Opinion 96-7

Question Presented--
Must a judge disqualify from criminal cases prosecuted by the county attorney when that judge is a party to a pending appeal challenging the assessed value of the judge’s personal residence?

Conclusion
No. Criminal cases are brought in the name of the state, not the county. Absent any personal antipathy between the county attorney and the judge, there is no requirement that the judge disqualify or recuse himself or herself from criminal cases. The judge should disqualify himself or herself in any cases where the county or the county board is a named litigant.

Statement of Facts
The judge is an appellant before the Tax Equalization and Review Commission, appealing the action of the board of equalization which reviewed the assessed value of the judge’s personal residence. The county attorney represents the county in the dispute.

Applicable Code Sections
Neb. Code of Jud. Cond., Canon 3E (1) (“a judge shall not participate in any proceeding in which the judge’s impartiality reasonably might be questioned”) and Canon 2 (“A Judge Shall Avoid Impropriety and the Appearance of Impropriety”) (rev. 1996)

Discussion
It is well settled that the judge is disqualified to preside over a case in which he or she has a financial or property interest that could be affected by the outcome of the case. The judge’s interest in the assessed valuation of a personal residence would disqualify the judge from hearing his or her own case, and the appearance of impropriety would disqualify the judge from hearing any other case with the same party, the county board or the county, as long as the valuation appeal was pending. Whether the judge is disqualified from all cases where the county attorney represents a party is a different matter.
The county attorney is required to represent the county in the valuation dispute, and that relationship would be adversarial to the judge and the judge’s interests. The county attorney is also required to prosecute criminal cases on behalf of the state, and these prosecutions could come before the same judge. However, the judge in the criminal cases has no interest, financial or otherwise, in the outcome of the criminal cases, and the criminal prosecutions are not filed with the county as a party, but are filed on behalf of the state to enforce the state criminal laws. As long as the judge could fairly decide the cases on the facts and law presented, there would be no need for disqualification, no impropriety, or no appearance of impropriety.
A judge presented with a motion to disqualify from criminal cases in this situation should assess whether an objective, disinterested observer fully informed of the relevant facts would entertain

Nebraska Ethics Advisory Opinion
96-7
Released: March 1997
Page 1 of 2
a significant doubt that the judge in question was impartial. In this case, there are no indicators that the judge would be biased. The judge should also assess whether any personal bias or antipathy toward the county attorney exists because of the assessment dispute. If the judge determines subjectively that personal bias or antipathy exists to the extent that the criminal cases could not be tried impartially, the judge should disqualify himself or herself. Absent any objective indications of an interest in the cases or any subjective determination of bias, the judge should overrule a motion to disqualify or recuse.

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 MARCH 10, 1997

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
96-7
Released: March, 1997
Page 2 of 2