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THOMPSON v. MILLARD PUB. SCH. DIST. NO. 17

Cite as 302 Neb. 70

Kim M. Thompson, an individual, appe

v. Millard Public School District 

and Millard Public School

of Education, appelle

___ N.W.2d ___

Filed January 18, 2019. No. S-18-140.

1. Judges: Recusal. A recusal motion is initially addressed to the discretion of the judge to whom the motion is directed.

2. ____: ____. A 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 

was shown.

3. Judges: Recusal: Presumptions. A party alleging that a judge acted 

with bias or prejudice bears a heavy burden of overcoming the presumption of judicial impartiality.

4. Rules of the Supreme Court: Judges: Witnesses: Words and Phrases. 

For purposes of Neb. Rev. Code of Judicial Conduct § 5-302.11(A)(2)(d), 

a material witness is one who can testify about matters having some 

logical connection with the consequential facts, especially if few others, 

if any, know about those matters; a person who is capable of testifying 

in some relevant way in a legal proceeding.

5. 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.

6. Judges: Recusal: Time. The issue of judicial disqualification is timely 

if submitted at the earliest practicable opportunity after the disqualifying 

facts are discovered.

7. Judges: Recusal: Appeal and Error. The three-factor special harmless 

error test in Liljeberg v. Health Services Acquisition Corp., 486 U.S. 

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

03/29/2019 09:07 AM CDT
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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 

Revised Code of Judicial Conduct.

Appeal from the District Court for Douglas County: Pete

C. Bataillon, Judge. Affirmed in part, and in part vacated an

remanded with directions.

Abby Osborn and Joy Shiffermiller, of Shiffermiller Law 

Office, P.C., L.L.O., for appellant.

Duncan A. Young, Jeff C. Miller, and Keith I. Kosaki, of 

Young & White Law Office, for appellees.

Heavican, C.J., Miller-Lerman, Cassel, Stac

Papik, and Freudenberg, 

Cassel, J.

INTRODUCTION

Kim M. Thompson resigned from her employment with a 

school district after the district, asserting she had been insubordinate, offered her the option to resign in lieu of termination. Thompson then filed suit against Millard Public School 

District No. 17 and its school board (collectively Millard). 

In the midst of her employment discrimination suit against 

Millard, the district court judge assigned to the case became 

aware that due to a new claim asserted after counsel appeared 

for Thompson, his brother-in-law was a potential witness. At 

that point, Thompson moved for recusal and Millard moved 

for summary judgment on Thompson’s remaining claims. The 

district court overruled the motion to recuse and granted 

summary judgment on all remaining claims. Because the 

judge’s brother-in-law was likely to be a material witness, the 

judge should have recused himself. We vacate in part, and 

remand for a new summary judgment hearing with a different judge.
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THOMPSON v. MILLARD PUB. SCH. DIST. NO. 17

Cite as 302 Neb. 70

BACKGROUND

Thompson, a former project manager of Millard, had a consensual extramarital affair with an independent contractor for 

Millard. After their tumultuous breakup, the contractor’s wife 

sent a complaint to Millard’s superintendent about privacy and 

safety concerns for her children due to Thompson’s online and 

offline behavior. In July 2014, following an insubordinate act, 

Millard requested Thompson’s resignation in lieu of termination of her employment.

Acting without counsel, Thompson originally brought suit 

against Millard claiming (1) retaliation, (2) hostile work environment, (3) false light/invasion of privacy, (4) intentional 

infliction of emotional distress, and (5) breach of contract. 

Millard moved for partial summary judgment on claims (3) 

through (5). The district court granted summary judgment on 

those claims. After they were disposed, Thompson obtained 

counsel. Millard then moved for summary judgment on the 

retaliation and hostile work environment claims.

At the summary judgment hearing, off the record, the district court judge became aware that his brother-in-law, Stephen 

Mainelli, was a potential witness for Thompson. Thompson 

moved for recusal.

At the recusal hearing, Millard stated that it was undisputed 

that Mainelli was hired in January 2014 as a project manager 

and assumed the same job description as Thompson. Thompson 

argued she intended to call Mainelli as a witness, because his 

testimony would be relevant to show other areas or examples 

of discrimination. Millard argued that even if Mainelli was a 

witness, he would not be competent to testify, because there 

was no issue of his hiring, salary, or Thompson’s firing about 

which he could competently testify. The court took the matter 

under advisement.

While the recusal motion remained under advisement, 

Thompson amended her complaint and added a claim under 

the Equal Pay Act of 1963, 29 U.S.C. § 206(d) (2012). The 

amended complaint alleged as follows:
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THOMPSON v. MILLARD PUB. SCH. DIST. NO. 17

Cite as 302 Neb. 70

In December, 2013, [Millard] hired [Mainelli] as project 

manager to begin working January 31, 2014, which was 

[Thompson’s] same position;

. . . His rate of pay at hire was $96,163. [Thompson’s] 

salary while being in the job 8 and 1⁄2 years of [sic] 

$88,985;

. . . The failure to pay [Thompson] the same sum of 

money as male employees in a similar position is a willful 

violation of the Equal Pay Act . . . .

Shortly after the complaint was amended, the court issued 

an order denying the motion to recuse. Reasoning that because 

Millard would not call Mainelli as a witness and the outcome 

of Thompson’s litigation would not impact Mainelli, the court 

concluded that the judge’s impartiality would not be questioned 

under an objective standard of reasonableness. The court overruled the motion for recusal.

Millard moved for summary judgment on the Equal Pay 

Act claim. Thompson renewed her motion to recuse. At the 

summary judgment and renewed recusal hearing, Thompson 

argued that Mainelli’s testimony would be relevant for the 

comparison of qualifications and finding a pretextual motive 

for hiring Mainelli at a higher pay. Millard argued that 

Mainelli’s testimony was not relevant, because he could not 

testify to the decisionmaking process behind his employment. 

From the bench, the court overruled the renewed motion 

for recusal.

In analyzing the merits of the Equal Pay Act claim, the court 

compared both Thompson’s and Mainelli’s work experiences. 

The court extensively described Mainelli’s 38 years of construction industry experience. The court stated that Mainelli had 

“exemplary professional qualifications” and that Thompson’s 

former supervisor knew Mainelli had “a considerable amount 

of skill and a depth of experience and technical knowledge.” 

Yet when the court discussed Thompson’s qualifications, it 

summarized her 15 years of experience in two sentences. The 
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judge granted Millard’s motions for summary judgment on the 

three remaining claims.

Thompson filed a timely appeal, which we moved to our 

docket.1

ASSIGNMENTS OF ERROR

Thompson assigned, condensed and restated, that the district 

court erred in (1) failing to recuse himself, (2) applying the 

prohibited market forces theory, (3) failing to find a dispute 

of material fact that Millard retaliated against Thompson for 

engaging in protected activity, and (4) failing to find a dispute of material fact that Millard violated Thompson’s right 

to be free from discrimination, harassment, and a hostile 

work environment.

STANDARD OF REVIEW

[1] A recusal motion is initially addressed to the discretion 

of the judge to whom the motion is directed.2

ANALYSIS

Appearance of Impartia

[2,3] A 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 was shown.3 A party alleging that 

a judge acted with bias or prejudice bears a heavy burden of 

overcoming the presumption of judicial impartiality.4

Thompson argues that because Mainelli was listed as a witness and he was the comparator for the Equal Pay Act claim, 

a reasonable person would question the judge’s impartiality 

1 Neb. Rev. Stat. § 24-1106(3) (Cum. Supp. 2018).

2 State v. Thompson, 301 Neb. 472, 919 N.W.2d 122 (2018).

3 Id.

4 Torres v. Morales, 287 Neb. 587, 843 N.W.2d 805 (2014).
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and the judge should have recused himself. Thompson contends that before the events with the contractor came to light, 

Thompson’s supervisor had been grooming her to take over 

his job; but afterward, a decision was made to hire Mainelli 

and groom him to take over that position and terminate 

Thompson’s employment. This, she argues, was by itself sufficient to demonstrate that an objectively reasonable person 

would question the judge’s impartiality. She also contends 

that the judge’s failure to recuse is not harmless error and that 

the cause must be remanded for assignment to a new judge to 

erase the taint of bias.

However, Thompson conceded at oral argument that summary judgment on Thompson’s original claims (3) through 

(5) was proper and unaffected by the later development 

regarding the judge’s brother-in-law. Therefore, in determining whether recusal was mandatory and how to remedy its 

denial, we discuss recusal only in relation to the remaining 

claims of retaliation, a hostile work environment, and the 

Equal Pay Act.

Judicial disqualification is codified under Neb. Rev. Code of 

Judicial Conduct § 5-302.11. “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.”5 One specific circumstance that 

requires a judge to disqualify himself or herself is when a person within the “fourth degree of relationship” to the judge, the 

judge’s spouse, or the judge’s domestic partner is likely to be 

a material witness in the proceeding.6

Neither party disputes that Mainelli was within the fourth 

degree of relationship to the judge. Under the terminology 

section of the judicial code, a “fourth degree of relationship” includes brothers and sisters. During the first motion 

for recusal, Thompson clarified on the record that the judge’s 

5 § 5-302.11(A).

6 See § 5-302.11(A)(2)(d).
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wife is Mainelli’s sister. Because the judge’s wife is in a fourth 

degree relationship with Mainelli, so is the judge.7

[4] Although Nebraska case law has discussed when a 

judge is a material witness for purposes of being compelled 

to testify regarding a case over which she or he was or had 

been presiding,8 we have not addressed a situation where a 

witness related to the judge is a material witness, such that 

recusal would be mandatory under § 5-302.11(A)(2)(d). The 

judicial code does not define “material witness.” Black’s Law 

Dictionary defines material witness as “[a] witness who can 

testify about matters having some logical connection with the 

consequential facts, esp. if few others, if any, know about those 

matters; a person who is capable of testifying in some relevant 

way in a legal proceeding.”9 We adopt this definition for purposes of § 5-302.11(A)(2)(d).

This definition appears consistent with decisions from other 

states which have considered disqualification of a judge where 

the judge has a relationship with someone who is a witness or 

has an interest in the case. The Louisiana Supreme Court, in 

State v. Daigle,

10 reasoned that a judge should have recused 

himself in a capital murder trial when the victim’s widow had 

a longtime working relationship with the judge, they were 

social media friends, and she was designated as a “penalty 

phase witness.” In People v. Suazo,

11 the Supreme Court of 

7 See Morton v. Benton Publishing Co., 291 Ark. 620, 727 S.W.2d 824 

(1987) (by affinity, judge was in same degree of relationship to wife’s 

relative as wife was by consanguinity).

8 See, State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006); Village of 

Exeter v. Kahler, 9 Neb. App. 1, 606 N.W.2d 862 (2000).

9 Black’s Law Dictionary 1839 (10th ed. 2014). See, also, Rubashkin 

v. United States, Nos. 13-CV-1028-LRR, 08-CR-1324-LRR, 2016 WL 

237119 (N.D. Iowa Jan. 20, 2016).

10 See, State v. Daigle, 241 So. 3d 999, 1000 (La. 2018) (analyzing recusal 

under Due Process Clause of 14th Amendment using framework from 

Rippo v. Baker, ___ U.S. ___, 137 S. Ct. 905, 197 L. Ed. 2d 167 (2017)).

11 See People v. Suazo, 120 A.D.3d 1270, 992 N.Y.S.2d 138 (2014).
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New York, Appellate Division, remanded a hearing to a different judge when the original judge was the trier of fact and 

had to determine the credibility of a detective who was married 

to the judge’s law clerk. The appellate court reasoned that the 

judge should have recused himself to maintain the appearance of impartiality. In Ex parte Jackson,

12 the Supreme Court 

of Alabama reasoned that a judge’s brother’s affiliation as a 

“director” of the defendant’s bank, even though the legal relationship of the bank and brother may not be true, was sufficient 

to reasonably question the judge’s impartiality and that the 

judge should have recused himself. We find these cases persuasive and consistent with this definition of a material witness.

Mainelli’s testimony would have a logical connection and 

relevance to the Equal Pay Act claim. Mainelli was the sole 

comparator for the Equal Pay Act claim and potentially would 

have relevant information of the hiring process. From the hiring process and salary determination, as well as the testimony 

of his experience and qualifications for the job, Mainelli’s 

testimony was likely to make him a material witness. Contrary 

to Millard’s argument that Mainelli was simply one of 3,000 

full- and part-time employees of Millard, Mainelli was the 

only employee who shared Thompson’s job. Out of Millard’s 

3,000 employees, the only employees whose experiences and 

qualifications were relevant to the Equal Pay Act claim were 

Thompson and Mainelli. Thus, Mainelli’s testimony would 

be relevant and have a logical connection to the Equal Pay 

Act claim, making him likely to be a material witness, such 

that one would reasonably question the judge’s impartiality. 

Therefore, § 5-302.11(A)(2)(d) mandated disqualification of 

the judge.

Timeline

[5,6] Because the judicial code mandated disqualification of 

the judge, we must determine if Thompson waived her right to 

12 See Ex parte Jackson, 508 So. 2d 235 (Ala. 1987).
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obtain disqualification. 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.13 The issue of judicial disqualification is timely if submitted at the earliest practicable opportunity after the disqualifying facts are discovered.14

Thompson moved for recusal at the earliest practicable 

opportunity. The earliest opportunity to request recusal was 

after the judge told the parties, at the summary judgment 

hearing, that Mainelli was his brother-in-law. At that point, 

Thompson did so. After Thompson added the Equal Pay Act 

claim to the complaint, specifically naming Mainelli as the 

comparator, she renewed her motion to recuse. Not only did 

Thompson submit her motion to recuse at the earliest practicable opportunity, but she renewed the motion at each practicable 

opportunity. Thus, Thompson did not waive her right to obtain 

judicial disqualification.

Appropriate Reme

[7] Because the judge’s impartiality might reasonably be 

questioned and Thompson did not waive her right to obtain 

disqualification, we analyze whether vacatur is the appropriate remedy under the three-factor special harmless error test in 

Liljeberg v. Health Services Acquisition Corp.15 The Liljeberg

test 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 Revised Code of 

Judicial Conduct.16 In Liljeberg, “the Court considered three 

factors: (1) the risk of injustice to the parties in the particular 

13 Tierney v. Four H Land Co., 281 Neb. 658, 798 N.W.2d 586 (2011).

14 Id.

15 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct. 

2194, 100 L. Ed. 2d 855 (1988).

16 See Tierney, supra note 13.
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case, (2) the risk that the denial of relief will produce injustice 

in other cases, and (3) the risk of undermining the public’s 

confidence in the judicial process.”17

As we noted in Tierney v. Four H Land Co.,

18 we first consider the third factor, because it is the most important. In this 

case, the risk of undermining the public’s confidence in the 

judicial process is high. Although the judge did inform the 

parties of his relationship with Mainelli, the circumstances 

changed once Thompson added the Equal Pay Act claim. At 

that point, the judge was conscious of the role Mainelli could 

play in the litigation.

As the U.S. Supreme Court said in a somewhat comparable factual situation, “These facts create precisely the kind 

of appearance of impropriety that [the federal judicial code] 

was intended to prevent.”19 When Thompson first moved 

to recuse the judge, the Equal Pay Act claim had not yet 

been asserted. At that point, there was not an appearance of 

impartiality, because Mainelli would not have been relevant 

for the retaliation or hostile work environment claims. But 

once Thompson added the Equal Pay Act claim, Mainelli 

became highly relevant to the litigation. At that point, the 

judge’s impartiality was reasonably questioned.20 The judge’s 

impartiality was questioned further when he evaluated and 

compared his brother-in-law’s experience, qualifications, and 

hiring process with Thompson. The risk of undermining the 

public’s confidence in the judicial process is simply too high 

under these circumstances.

The risk to future litigants will be lessened by vacatur. 

Although this particular circumstance is rarely seen, when 

the circumstance does appear, as it does here, it imports a 

17 Id. at 670, 798 N.W.2d at 595.

18 See id.

19 Liljeberg, supra note 15, 486 U.S. at 867.

20 See Liljeberg, supra note 15 (analyzing when judge should have become 

aware and did become aware of fiduciary conflict which raised appearance 

of impropriety).
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reasonable question of the judge’s impartiality. This case will 

prevent injustice in future cases by encouraging judges to 

more carefully examine possible grounds for disqualification. 

“Thus, under Liljeberg, the lower court’s judgment must be 

vacated unless the risk of unfairness to the parties cautions 

against it.”21

Regarding the fairness to these particular litigants, the district court’s analysis of the merits suggests a greater risk of 

unfairness in upholding the judgment than in directing a new 

judge to review the issues. The court’s lengthy analysis of 

Mainelli’s experience and qualifications in the summary judgment order is suggestive. Millard made no showing of special 

hardship by reason of reliance on the original judgment. “There 

is little to lose and much to be gained by letting a different 

judge examine the [party’s] motions for summary judgment.”22

Under the Liljeberg test, vacatur is the appropriate remedy in 

this case.

Because an analysis on the merits would not erase the taint 

of bias, we express no opinion on the merits of the remaining 

claims. Therefore, we do not address Thompson’s other assignments of error. Our decision affects only those orders made 

after Thompson amended the complaint to add the Equal Pay 

Act claim.

CONCLUSION

Therefore, we affirm the judgment to the extent of the 

claims disposed before the assertion of the Equal Pay Act 

claim. We vacate the judgment regarding the disposition of 

the retaliation, hostile work environment, and Equal Pay Act 

claims and remand the cause for a new summary judgment 

hearing before another judge to be appointed by this court.

 Affirmed in part, and in part v

and remanded with directi

21 Tierney, supra note 13, 281 Neb. at 672, 798 N.W.2d at 597.

22 Id. at 672-73, 798 N.W.2d at 597.