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300 Nebraska Report

IN RE INTEREST OF J.K.

Cite as 300 Neb. 510

In re Interest of J.K., a 

under 18 years of age

State of Nebraska, appellant

v. J.K., appellee

___ N.W.2d ___

Filed July 13, 2018. No. S-17-982.

1. Judges: Recusal: Appeal and Error. A motion to disqualify a trial 

judge on account of prejudice is addressed to the sound discretion of the 

trial court. An order overruling such a motion will be affirmed on appeal 

unless the record establishes bias or prejudice as a matter of law.

2. Appeal and Error. Appellate review of a court’s use of inherent power 

is for an abuse of discretion.

3. Judgments: Words and Phrases. An abuse of discretion occurs when a 

trial court’s decision is based upon reasons that are untenable or unreasonable or if its action is clearly against justice or conscience, reason, 

and evidence.

4. 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.

5. Judges: Recusal: Appeal and Error. Once a case has been litigated, 

an appellate court will not disturb the denial of a motion to disqualify a 

judge and give litigants a second bite at the apple.

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. Under the Nebraska Revised Code of Judicial Conduct, 

a judge must recuse himself or herself from a case if the judge’s impartiality might reasonably be questioned.

8. ____: ____. Under the Nebraska Revised Code of Judicial Conduct, 

such instances in which the judge’s impartiality might reasonably be 

Nebraska Supreme Court Online Library

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

09/14/2018 08:09 AM CDT
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questioned specifically include where the judge has a personal bias or 

prejudice concerning a party or a party’s lawyer.

9. Judges: Recusal: Presumptions. A defendant seeking to disqualify a 

judge on the basis of bias or prejudice bears the heavy burden of overcoming the presumption of judicial impartiality.

10. Judges: Recusal. In evaluating a trial judge’s alleged bias, the question is whether 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.

11. Judges: Recusal: Judgments. Judicial rulings alone almost never constitute a valid basis for a bias or partiality motion directed to a 

trial judge.

12. Judges: Recusal. Opinions formed by the judge on the basis of facts 

introduced or events occurring in the course of the current proceedings, 

or of prior proceedings, do not constitute a basis for a bias or partiality 

motion unless they display a deep-seated favoritism or antagonism that 

would make fair judgment impossible.

13. Judges: Witnesses: Evidence. Comments by the judge presiding over a 

matter are clearly not evidence, because a judge may not assume the role 

of a witness.

14. Trial: Judges: Witnesses: Rules of Evidence. Neb. Rev. Stat. § 27-605 

(Reissue 2016) was drafted as a broad rule of incompetency designed to 

prevent a judge presiding at a trial from testifying as a witness in that 

trial on any matter whatsoever.

15. Trial: Judges: Witnesses. A judge’s taking the role of a witness in a 

trial before him or her is manifestly inconsistent with the judge’s customary role of impartiality.

Appeal from the County Court for Washington County: C. 

Matthew Samuelson, Judge. Exception overrul

M. Scott Vander Schaaf, Washington County Attorney, and, 

on brief, Emily A. Beamis for appellant.

Nicholas E. Wurth, of Law Offices of Nicholas E. Wurth, 

P.C., for appellee.

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

Papik, JJ., and Dobrovolny, District Ju
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300 Nebraska Report

IN RE INTEREST OF J.K.

Cite as 300 Neb. 510

Funke, 

In a delinquency proceeding brought under the Nebraska 

Juvenile Code,1 the county court for Washington County, sitting as a juvenile court, found the State of Nebraska failed to 

prove the allegations against the appellee, J.K., and dismissed 

the proceedings. The State filed this exception proceeding challenging the court’s rulings on a motion to recuse and a motion 

to join the case with that of another minor. Because we find the 

State’s assignments of error to be without merit, we overrule 

its exception.

I. BACKGROUND

In August 2015, J.K. and J.G., both male minors, were 

arrested by the Blair Police Department. The State filed criminal complaints against J.K. and J.G. under separate Washington 

County Court dockets. While J.K. and J.G. made their initial 

appearances together, J.K. had an individual preliminary hearing before the county court judge.

At J.K.’s preliminary hearing, the State called as a witness 

a Blair Police Department detective. The detective testified 

that Y.C., a female minor, reported being sexually assaulted 

by J.K. and J.G. on August 15, 2015. The detective stated that 

Y.C. had reported voluntarily going to the parking lot of her 

apartment building to spend time with J.K. and J.G., declining numerous sexual advances by J.K. and J.G. outside of the 

apartment building, J.K. and J.G. forcibly exposing and making contact with her breasts outside the apartment building, 

J.K. and J.G. taking her belongings into the apartment complex’s laundry room; J.K. forcing her into the apartment complex’s laundry room, J.K. and J.G. both digitally penetrating 

her vagina, and J.G. forcing her to have vaginal intercourse 

with him.

On cross-examination, the detective stated that while Y.C. 

had initially only told officers that she went home to her 

1 See Neb. Rev. Stat. §§ 43-245 to 43-2,129 (Reissue 2008 & Cum. Supp. 

2014).
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apartment after the assault, Y.C. subsequently reported voluntarily going to J.K.’s apartment shortly after she went home, 

to recover the cell phone case he had stolen from her. The 

detective also provided additional testimony about the events 

of the night, suggesting Y.C. had an existing relationship with 

J.K. and J.G.

After presenting the evidence, the parties made arguments 

regarding whether the State met its burden of establishing 

probable cause for the alleged crimes. The judge, on the 

record, engaged in discussion with J.K.’s counsel regarding 

his argument, Y.C.’s credibility, and whether Y.C.’s allegation 

alone amounted to probable cause. During this discussion, the 

court made the following statement:

One of the concerns — the biggest concern I have so far 

is why would an alleged victim go to the alleged perpetrator’s residence within an hour, or two, or five minutes, or 

whatever the case may be, within a short period of time, 

knock on his door, even if it’s to try to get my [sic] cell 

phone case. I find that a little unusual.

Nevertheless, the county court ruled there was probable 

cause to proceed with the felony counts against J.K. and bound 

the matter over to the district court for Washington County. In 

May 2016, the district court sustained J.K.’s motion to suppress 

J.K.’s statement to law enforcement made on August 17, 2015, 

and then ordered the matter transferred to juvenile court.

The State then filed a petition against J.K. in juvenile court, 

alleging first degree sexual assault and false imprisonment, 

under § 43-247(2). The same county judge who heard the preliminary hearing was assigned to sit as the judge for the juvenile court proceedings.

During a preadjudication hearing, J.K.’s attorney requested 

a continuance to file a motion to suppress statements made 

and evidence collected from J.K. on August 17, 2015. On 

November 3, 2016, the scheduled hearing on the motion to 

suppress was continued at the State’s request to allow the State 

to file a motion to recuse the judge.
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Before considering the motion to recuse, the court requested 

briefs from the parties and heard arguments on the issue of 

whether or not the juvenile court was bound by the district 

court’s order to suppress statements J.K. had made on August 

17, 2015. The court ultimately concluded it was not bound by 

the district court’s order to suppress, and the matter proceeded 

to a hearing on the State’s motion to recuse.

The motion to recuse asserted that the judge should be 

recused for bias or prejudice, under Neb. Rev. Code of Judicial 

Conduct § 5-302.11. The State submitted an affidavit, authored 

by the county attorney, describing the alleged biased or partial 

statements made by the judge during an off-the-record conversation with both parties’ counsel before the November 3, 

2016, hearing, including that the judge had read the district 

court’s order to suppress; absent “new” evidence, the court 

would make the exact same finding as the district court; and, 

in response to the State’s inquiry regarding the court’s ability to make its ruling without evidence, the judge stated that 

he “knew the law and would follow it.” The State also cited 

the above-quoted statement by the judge from the preliminary 

hearing about Y.C.’s credibility, which had been published in a 

local newspaper.

At the hearing on the motion to recuse, the State rested on 

its affidavit. The judge then called J.K.’s counsel as a witness, 

who testified that the statements the county attorney attributed 

to the judge were not a verbatim account of the judge’s statements. The judge then, while issuing his ruling on the motion, 

stated from the bench, regarding the off-the-record conversation, “[T]here’s several of the paragraphs in your affidavit 

that the Court strongly disagrees with as to the accuracy” and 

“I don’t recall saying things that you attribute to me” and, 

regarding the statement at the preliminary hearing, “It was 

certainly something that I heard during the course of the preliminary hearing.” Ultimately, the court overruled the motion 

for recusal.
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IN RE INTEREST OF J.K.

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In March 2017, the court entered an order overruling J.K.’s 

motion to suppress and set the matter for adjudication in 

June 2017. In April 2017, the State filed a motion for joinder 

regarding the petitions against J.K. and J.G. and an unrelated 

motion for continuance of J.K.’s adjudication.

The matters of joinder and continuation of the adjudication 

for J.K. came before the court, at which time J.K. and J.G. 

resisted the motion for joinder. The court denied the motion 

for joinder, finding that the cases were at differing procedural 

postures, and continued J.K.’s adjudication to July 2017.

After the adjudication hearing, the court ruled the State failed 

to prove its case beyond a reasonable doubt and dismissed the 

petition against J.K. The State appealed. We removed the case 

to our docket on our own motion pursuant to our authority to 

regulate the caseloads of the Nebraska Court of Appeals and 

this court.2

II. ASSIGNMENTS OF ERROR

The State assigns, restated, that the juvenile court erred 

when (1) the presiding judge failed to recuse himself after 

evidence was presented showing bias and partiality and (2) it 

failed to join J.K.’s and J.G.’s cases.

III. STANDARD OF REVIEW

[1] A motion to disqualify a trial judge on account of prejudice is addressed to the sound discretion of the trial court.3

An order overruling such a motion will be affirmed on appeal 

unless the record establishes bias or prejudice as a matter 

of law.4

[2,3] Appellate review of a court’s use of inherent power 

is for an abuse of discretion.5 An abuse of discretion occurs 

2 See Neb. Rev. Stat. § 24-1106(3) (Supp. 2017).

3 In re Interest of Kendra M. et al., 283 Neb. 1014, 814 N.W.2d 747 (2012).

4 Id.

5 Lombardo v. Sedlacek, 299 Neb. 400, 908 N.W.2d 630 (2018).
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when a trial court’s decision is based upon reasons that are 

untenable or unreasonable or if its action is clearly against 

justice or conscience, reason, and evidence.6

IV. ANALYSIS

1. Court’s Denial of Moti

Recusal Was Not E

The State argues the juvenile judge abused his discretion in failing to recuse himself, under Neb. Rev. Code of 

Judicial Conduct § 5-302.10(A), as well as § 5-302.11. Section 

5-302.10(A) states that “[a] judge shall not make any public 

statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court, or make any nonpublic statement that might 

substantially interfere with a fair trial or hearing.” Section 

5-302.11(A) states that “[a] judge shall disqualify himself or 

herself in any proceeding in which the judge’s impartiality 

might reasonably be questioned . . . .”

In support of its argument, the State identifies three separate actions of the judge that it argues violated these rules. 

First, the State asserts that the judge’s on-the-record statement about Y.C.’s credibility at a preliminary hearing violated § 5-302.10(A) as an improper public comment and violated § 5-302.11 by showing bias and partiality. Second, the 

State asserts that the judge’s off-the-record comments about 

the way it would rule on J.K.’s motion to suppress violated 

§ 5-302.10(A) as an improper nonpublic comment and violated 

§ 5-302.11 by showing bias and partiality. Finally, the State 

argues that the judge’s conduct at the motion for recusal hearing violated § 5-302.11 by showing bias and partiality.

J.K. contends that the State waived its argument that the 

judge acted with bias and partiality during the motion for 

recusal hearing because it never raised the issue to the trial 

court. J.K. also contends that the on-the-record statement during the preliminary proceeding was based on the evidence 

6 Id.
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presented and was, therefore, a judicial, not prejudicial, statement. Finally, J.K. argues that no matter what the judge may 

have stated in the off-the-record conversation, the judge clearly 

stated that he would follow the law.

(a) State Failed to Present Certain Basis 

for Disqualification to Juvenile Court

The State never alleged, either in its motion to recuse 

or at the hearing on its motion, that the judge violated 

§ 5-302.10(A). Instead, the only basis for recusal presented 

was the alleged violation of § 5-302.11. Further, despite 

reasserting its motion for recusal after the hearing, the State 

did not add the court’s conduct during the hearing on the 

motion for recusal as an additional basis for disqualification. 

Accordingly, the State failed to present either of these issues 

to the juvenile court for consideration.

[4-6] 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.7 Once a case has been litigated, an appellate court will not disturb the denial of a motion to disqualify 

a judge and give litigants a second bite at the apple.8 The 

issue of judicial disqualification is timely if submitted at the 

earliest practicable opportunity after the disqualifying facts 

are discovered.9

Because the State failed to timely submit these issue to the 

juvenile court, it waived its ability to obtain disqualification on 

either basis.

(b) Principles of Law Regarding § 5-302.11

[7-9] Under § 5-302.11 of the Nebraska Revised Code of 

Judicial Conduct, a judge must recuse himself or herself from 

7 State v. Buttercase, 296 Neb. 304, 893 N.W.2d 430 (2017).

8 Id.

9 Id.
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a case if the judge’s impartiality might reasonably be questioned. Such instances in which the judge’s impartiality might 

reasonably be questioned specifically include where the judge 

has a personal bias or prejudice concerning a party or a party’s 

lawyer.10 A defendant seeking to disqualify a judge on the basis

of bias or prejudice bears the heavy burden of overcoming the 

presumption of judicial impartiality.11

[10,11] Under the standard we have articulated for evaluating a trial judge’s alleged bias, the question is whether 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.12 Judicial rulings alone almost never 

constitute a valid basis for a bias or partiality motion directed 

to a trial judge.13

(c) Judge’s Statement at Preliminary Hearing 

Did Not Warrant Disqualification

We begin by noting that the State timely submitted this 

argument for the judge’s disqualification. While this incident 

occurred over a year before the motion to recuse, the matter had only recently been assigned to the judge sitting as a 

juvenile judge, and it was made before the judge decided any 

substantial issues in the juvenile proceedings.

As mentioned above, judicial rulings almost never constitute 

a valid basis for a partiality motion. As the U.S. Supreme Court 

stated in Liteky v. United States14:

The judge who presides at a trial may, upon completion 

of the evidence, be exceedingly ill disposed towards the 

10 Id.; § 5-302.11.

11 Buttercase, supra note 7.

12 Id. See, also, Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).

13 Buttercase, supra note 7. Accord Liteky v. United States, 510 U.S. 540, 

114 S. Ct. 1147, 127 L. Ed. 2d 474 (1994).

14 Liteky, supra note 13, 510 U.S. at 550-51.
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defendant, who has been shown to be a thoroughly reprehensible person. But the judge is not thereby recusable 

for bias or prejudice, since his knowledge and the opinion 

it produced were properly and necessarily acquired in the 

course of the proceedings, and are indeed sometimes (as 

in a bench trial) necessary to completion of the judge’s 

task. . . . “. . . If the judge did not form judgments of the 

actors in those court-house dramas called trials, he could 

never render decisions.”

[12] Therefore, “opinions formed by the judge on the basis 

of facts introduced or events occurring in the course of the 

current proceedings, or of prior proceedings,”15 do not “constitute a basis for a bias or partiality motion unless they display 

a deep-seated favoritism or antagonism that would make fair 

judgment impossible.”16

The record shows that the judge’s comment, regarding a 

determination of Y.C.’s credibility, was based solely on the 

evidence presented during the hearing, which expressed neither favoritism nor antagonism for either side. As a result, the 

judge’s impartiality could not be questioned by a reasonable 

person under an objective standard of reasonableness based on 

this comment.

(d) Evidence of Judge’s Off-the-Record 

Comment Did Not Warrant 

Disqualification

The only evidence presented by the State regarding the 

judge’s off-the-record comments was an affidavit from the 

county attorney. However, J.K.’s counsel testified that the affidavit did not state the judge’s comments verbatim. The State 

could have called J.K’s counsel to testify or request to crossexamine J.K.’s counsel to present further evidence of the comments but did not do so.

15 Id., 510 U.S. at 555.

16 Id.
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[13] We note that the judge made statements from the bench 

during the hearing regarding the content of his off-the-record 

comments. Though we do not comment on the procedure used 

by the judge, we do note that comments by a judge presiding 

over a matter are clearly not evidence, because a judge may not 

assume the role of a witness.17

[14,15] Neb. Rev. Stat. § 27-605 (Reissue 2016) provides: 

“The judge presiding at the trial may not testify in that trial as 

a witness. No objection need be made in order to preserve the 

point.” This rule was drafted as a broad rule of incompetency 

designed to prevent a judge presiding at a trial from testifying 

as a witness in that trial on any matter whatsoever.18 This prohibition applies not only to formal testimony but also to whenever the judge assumes the role of a witness.19 A judge’s taking 

the role of a witness in a trial before him or her is manifestly 

inconsistent with the judge’s customary role of impartiality.20

Therefore, we do not consider statements made by the court in 

such capacity.21

Nevertheless, the context of the judge’s alleged comment 

about the way the court would rule on J.K.’s motion to suppress does not support a finding of prejudice by the judge. 

First, the judge requested that the parties brief and argue the 

issue of whether he was bound by the district court’s order to 

suppress. This indicates that the judge’s alleged statement may 

have related to a belief that collateral estoppel required him to 

enter an identical order, rather than providing an indication of 

prejudicial reliance on extraneous material. Second, the judge’s 

alleged comment that he would follow the law in making his 

order rebuts any allegation that he intended to rule on the 

basis of bias or partiality. Further, the State has not identified 

17 State v. Baird, 259 Neb. 245, 609 N.W.2d 349 (2000).

18 State v. Sims, 272 Neb. 811, 725 N.W.2d 175 (2006).

19 Baird, supra note 17.

20 Id.

21 Id.
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anything in the judge’s ruling on the motion to suppress that 

would indicate that the judge in fact relied on any evidence that 

was not presented to the court.22

Noting the strong presumption of impartiality, we conclude 

that a reasonable person who knew the circumstances of the 

case would not question the judge’s impartiality under an 

objective standard of reasonableness. Therefore, this assignment of error is without merit.

2. Court Did Not Abuse Its Di

in Denying Motion 

The State argues that J.K.’s and J.G.’s proceedings were 

joinable under Neb. Rev. Stat. § 29-2002(2) (Reissue 2016) 

and that the court abused its discretion in denying its motion 

without engaging in the statutory analysis for joinder. J.K. 

contends that joinder is not permissible in juvenile proceedings because the juvenile code does not provide for such and 

the rules of criminal procedure are not applicable in juvenile 

proceedings, which are civil in nature. J.K. also argues that if 

joinder is permissible in juvenile proceedings, the motion was 

properly denied because of the differing procedural postures of 

the cases and the State’s long delay in requesting joinder.

At the time of the State’s motion for joinder, J.K.’s proceedings had been pending in the juvenile court for over a year 

and the adjudicatory hearing had been scheduled, absent a 

later motion to continue by the State. The State had not raised 

the issue of joinder, though without filing such a motion, until 

the hearing where the date for the adjudicatory hearing was 

initially set. Conversely, J.G.’s proceedings still had a pending 

motion to suppress J.G.’s statements before it could reach the 

adjudicatory stage.

The court determined that ordering the cases joined at that 

point in J.K.’s and J.G.’s proceedings would have caused 

excessive and unnecessary delay in adjudicating J.K. We need 

22 Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d 898 (2002).
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not decide whether J.K. correctly argues that the court lacked 

authority to join matters for adjudication, because here, the 

court denied the State’s motion for joinder. Even if the court 

had such authority, its denial of joinder under these circumstances would not have been an abuse of discretion.

V. CONCLUSION

For the preceding reasons, we overrule the State’s exception.

Exception overru

Heavican, C.J., concurr

I concur with the decision of the court, but write separately 

to caution that a trial court should refrain as much as possible 

from calling and questioning witnesses on its own motion, 

particularly where that witness is one of the attorneys in the 

underlying litigation and especially where the trial court then 

subjected counsel to a leading question.

Both Nebraska and federal law allow a trial court to call a 

witness on its own motion,1 the usual purpose of such interrogation being “to develop the truth.”2

 But this right of examination should be “‘“‘sparingly exercised.’”’”3

 In this instance, 

I observe that although the State objected to the trial court’s 

examination of counsel, it did not assign that action as error on 

appeal. As such, I join the opinion of the court.

1 Neb. Rev. Stat. § 27-614 (Reissue 2016); Fed. R. Evid. 614.

2 State v. Fix, 219 Neb. 674, 677, 365 N.W.2d 471, 473 (1985).

3 State v. Brehmer, 211 Neb. 29, 44, 317 N.W.2d 885, 894 (1982), disapproved on other grounds, State v. Dominguez, 290 Neb. 477, 860 N.W.2d 

732 (2015).

Cassel, J., concurring.

I join the court’s opinion and write separately only to suggest 

that the purported absence of any statutory basis for joinder of 

adjudication proceedings in juvenile law violation cases deserves 

the attention of the Legislature.