Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
08/10/2018 09:09 AM CDT




                                                       - 510 -
                                  Nebraska Supreme Court A dvance Sheets
                                          300 Nebraska R eports
                                               IN RE INTEREST OF J.K.
                                                  Cite as 300 Neb. 510




                                        In   re I nterest of J.K., a child
                                             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 unrea-
                    sonable 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 disqualify-
                    ing 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 impar-
                    tiality might reasonably be questioned.
                8.	 ____: ____. Under the Nebraska Revised Code of Judicial Conduct,
                    such instances in which the judge’s impartiality might reasonably be
                                    - 511 -
             Nebraska Supreme Court A dvance Sheets
                     300 Nebraska R eports
                           IN RE INTEREST OF J.K.
                              Cite as 300 Neb. 510

     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 over-
     coming the presumption of judicial impartiality.
10.	 Judges: Recusal. In evaluating a trial judge’s alleged bias, the ques-
     tion 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 con-
     stitute 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 cus-
     tomary role of impartiality.

  Appeal from the County Court for Washington County: C.
M atthew Samuelson, Judge. Exception overruled.

  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, Funke, and
Papik, JJ., and Dobrovolny, District Judge.
                                   - 512 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                           IN RE INTEREST OF J.K.
                              Cite as 300 Neb. 510

   Funke, J.
   In a delinquency proceeding brought under the Nebraska
Juvenile Code,1 the county court for Washington County, sit-
ting 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 chal-
lenging 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 crimi-
nal 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 hear-
ing 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., declin-
ing numerous sexual advances by J.K. and J.G. outside of the
apartment building, J.K. and J.G. forcibly exposing and mak-
ing contact with her breasts outside the apartment building,
J.K. and J.G. taking her belongings into the apartment com-
plex’s laundry room; J.K. forcing her into the apartment com-
plex’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).
                              - 513 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                      IN RE INTEREST OF J.K.
                         Cite as 300 Neb. 510

apartment after the assault, Y.C. subsequently reported volun-
tarily 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 perpetra-
      tor’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 pre-
liminary hearing was assigned to sit as the judge for the juve-
nile 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.
                              - 514 -
           Nebraska Supreme Court A dvance Sheets
                   300 Nebraska R eports
                      IN RE INTEREST OF J.K.
                         Cite as 300 Neb. 510

   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 con-
versation 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 abil-
ity 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 state-
ments. The judge then, while issuing his ruling on the motion,
stated from the bench, regarding the off-the-record conversa-
tion, “[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 pre-
liminary hearing.” Ultimately, the court overruled the motion
for recusal.
                                      - 515 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                             IN RE INTEREST OF J.K.
                                Cite as 300 Neb. 510

   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 preju-
dice 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).
                             - 516 -
            Nebraska Supreme Court A dvance Sheets
                    300 Nebraska R eports
                     IN RE INTEREST OF J.K.
                        Cite as 300 Neb. 510

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 Motion for
                    R ecusal Was Not Error
   The State argues the juvenile judge abused his discre-
tion 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 out-
come or impair the fairness of a matter pending or impend-
ing 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 sepa-
rate actions of the judge that it argues violated these rules.
First, the State asserts that the judge’s on-the-record state-
ment about Y.C.’s credibility at a preliminary hearing vio-
lated § 5-302.10(A) as an improper public comment and vio-
lated § 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 hear-
ing 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 dur-
ing the preliminary proceeding was based on the evidence

 6	
      Id.
                                     - 517 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                            IN RE INTEREST OF J.K.
                               Cite as 300 Neb. 510

presented and was, therefore, a judicial, not prejudicial, state-
ment. 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 appel-
late 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.
                                     - 518 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                            IN RE INTEREST OF J.K.
                               Cite as 300 Neb. 510

a case if the judge’s impartiality might reasonably be ques-
tioned. 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 evalu-
ating 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 mat-
ter 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.
                                      - 519 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                              IN RE INTEREST OF J.K.
                                 Cite as 300 Neb. 510

      defendant, who has been shown to be a thoroughly rep-
      rehensible 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 “consti-
tute 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 nei-
ther 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 affi-
davit did not state the judge’s comments verbatim. The State
could have called J.K’s counsel to testify or request to cross-
examine J.K.’s counsel to present further evidence of the com-
ments but did not do so.

15	
      Id., 510 U.S. at 555.
16	
      Id.
                                     - 520 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                            IN RE INTEREST OF J.K.
                               Cite as 300 Neb. 510

   [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 pro-
hibition applies not only to formal testimony but also to when-
ever 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 sup-
press 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.
                                     - 521 -
                Nebraska Supreme Court A dvance Sheets
                        300 Nebraska R eports
                            IN RE INTEREST OF J.K.
                               Cite as 300 Neb. 510

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 assign-
ment of error is without merit.

             2. Court Did Not A buse Its Discretion
                 in Denying Motion for Joinder
   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 proceed-
ings 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 proceed-
ings 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).
                                    - 522 -
               Nebraska Supreme Court A dvance Sheets
                       300 Nebraska R eports
                           IN RE INTEREST OF J.K.
                              Cite as 300 Neb. 510

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 circum-
stances would not have been an abuse of discretion.
                          V. CONCLUSION
      For the preceding reasons, we overrule the State’s exception.
                                           Exception overruled.
   Heavican, C.J., concurring.
   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 interro-
gation being “to develop the truth.”2 But this right of examina-
tion 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), disap­
      proved 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.
