Judicial Ethics Committee Opinions

Judicial Ethics Committee Opinions

Authority

The Judicial Ethics Committee may express its opinion on proper judicial conduct with respect to the provisions of the Nebraska Code of Judicial Conduct, either on its own initiative, at the request of a judge or candidate for judicial office, or at the request of a court or the Nebraska Commission on Judicial Qualifications.

The Committee also has the authority to make recommendations to the Nebraska Supreme Court for amendment of the Code of Judicial Conduct.

All opinions, beginning in 1989, are on file with the State Court Administrator and are available on this site. Please note that the Nebraska Code of Judicial Conduct has been revised three times since its original adoption; earlier opinions have not been revised to fit the current Code.

The 1989 Code governs opinions 89-1 to 92-6; the 1992 Code governs 92-7 to 09-1; and, the 2011 Code governs opinions *11-1 to present. *No opinions were issued in 2010, 2013, or 2018.

Membership

The Judicial Ethics Committee consists of seven members appointed by the Nebraska Supreme Court. Two of the members are from each of the county and district courts and one from the Court of Appeals. The remaining members are from any affected courts, but not from the Nebraska Supreme Court.

The Supreme Court designates one of the members as chair and one member as vice chair who serves in the event of disqualification or unavailability of the chair. Terms are staggered and individuals may be reappointed after a lapse of 1 year.

View the Judicial Ethics Committee.

Opinions 89-1 to 93-5 are PDF only and are searchable by question only, not by content.

Number: 22-2
Year: 2022
Question Presented:

Is a district judge whose brother is the county judge in two of the counties in the judge’s judicial district disqualified in the following situations?

1.  Appeals - When a party appeals a civil or criminal case from County Court to District Court?
  2.  A plea in abatement.
  A. If disqualification is required and is not waived, and another judge rules on the plea in abatement, is there any reason that he or she will have to handle the entire case to its conclusion?
  3.  Bindovers - No plea in abatement filed.
  4. Search warrants in which the defense is not challenging whether the magistrate was detached and neutral?
  5. Search warrants in which the defense is challenging whether the magistrate was detached and neutral?
  6. Will contests.
  7. Bond review hearings.
  8. Bridge Orders.

Number: 22-1
Year: 2022
Question Presented:

Is a district judge whose spouse is a deputy county attorney for one of the counties in the judge’s judicial district disqualified in the following situations?

  1. Cases involving enhanceable offenses:
    1. from cases involving an enhanceable offense (i.e. 5th offense DUI) in which the judge prosecuted one of the underlying offenses?
    2. from cases involving an enhanceable offense (i.e. 5th offense DUI) in which the judge’s spouse prosecuted one of the underlying offenses?
  2. Cases involving problem-solving courts:
    1. If the judge’s spouse has prosecuted the offense for which the defendant plead into a problem-solving court in County X, can that offender be transferred to the judge’s supervision in County Y?
    2. If the spouse was not the prosecutor assigned to the underlying offense can the judge accept transfer of the offender to County X if the spouse was simply a member of the treatment team in County Y?
    3. If the judge is disqualified, can that conflict be waived by the parties?
  3. Other cases:
    1. from cases where the judge’s spouse is prosecuting an unrelated case against the same party in another court? 
    2. Are there additional screening methods required of either the judge or his spouse to avoid conflict in the signing of warrants in which the spouse has assisted law enforcement with preparation of the affidavit for arrest warrant?
  4. Cases involving post-judgment actions such as modifications or contempt actions where the judge’s spouse acted as attorney in the original action, and if so, can this conflict be waived by the parties?
Number: 21-2
Year: 2021
Question Presented:

(1)  Whether it would be proper and/or appropriate and/or ethical to provide to a landlord an informational pamphlet in regards to available pre-trial mediation services when an eviction proceeding is initiated in County Court?
(2) Would it be appropriate and/or ethical to provide to a tenant an informational pamphlet in regards to available pre-trial mediation services as an attachment to the summons and complaint when an eviction proceeding is initiated in County Court?

Number: 21-1
Year: 2021
Question Presented:

Does the Nebraska Code of Judicial Conduct permit a judge:

1.  To allow a CASA Program to post pictures of the judge in court in an adoption proceeding (without identification of the child) on the Program’s website, social media, newsletter, etc., presumably for the purpose of showing the beneficial value of the Program to the legal system and to promote the Program?

2.  To allow a CASA Program to quote the judge on the beneficial value of the Program on the Program’s website, social media, newsletter, advertising materials, etc., presumably for the purpose of promoting the program to the public for recruitment of volunteers?

3.  To submit written correspondence to the local county board for the purpose of supporting funding of the CASA Program by the local county board?

4.  To attend the CASA Program’s annual fundraising event and dinner with the judge paying for the expense of the dinner?  The event and dinner are attended by the CASA Program staff, volunteers, and members of the community.  The primary purpose of the event is to raise funds for the Program.

5.  To speak at the CASA Program’s annual fundraiser event and dinner in support of the CASA Program without payment or benefit from speaking at the event and dinner?

6.  To speak at educational sessions for volunteers to the CASA Program regarding the Court’s expectations of the CASA volunteer?

Number: 20-2
Year: 2020
Question Presented:

Does a judge whose spouse is an administrative employee in the county attorney’s office of one of the counties in the judge’s judicial district have a conflict of interest when presiding over cases presented by the county attorney’s office?

Number: 20-1
Year: 2020
Question Presented:

The Judges in one Judicial District have received a letter from groups seeking to assist tenants in evictions.  The letter contains a number of suggestions and recommendations including, without limitation, that this court “1. Consolidate the evictions docket. … 2. Stagger the hearings. … 3. Inform pro se litigants of this service from the bench. … 4. Liberally grant continuances to allow use of safe proceedings. … (and) 5. Include information about legal services with the eviction summonses.”  Id. at 2-3.

Upon our review of the subject correspondence from Mr. Mumgaard, Ms. Heer Dale, and Mr. Sullivan, we have identified the following concerns and questions:

1.   In light of the fact that the court has been contacted by this group of Nebraska attorneys in this fashion, under the Nebraska Revised Code of Judicial Conduct, does the court have a duty to notify anyone (i.e. counsel for discipline, all opposing counsel) concerning the correspondence?  In addition, if this correspondence is an ex parte communication on a pending matter or impending matter, is that sufficient to notify all opposing counsel/parties by a letter on counsel table?

2.  Does the Code permit the court to meet with this group of attorneys as they request?

3.  With regard to their requests that the court “1. Consolidate the evictions docket…(and) 2. Stagger the hearings” because “[i]t would be impossible to staff this project four days every week,” does “the Code permit the court to change its calendar and group and spread cases to be heard in order to accommodate a specific group of lawyers?”

4.  Is it a violation of the Code for the court to “[i]nform pro se litigants of this service from the bench,” thereby promoting the services of a specific group of attorneys?

5.  Recognizing that eviction hearings require evidence including live testimony and exhibits, and that the Uniform Residential Landlord Tenant Act, Neb. Rev. Stat. § 76-1401 et seq., contains certain time requirements, including that such actions be brought to trial within 10 to 14 days of issuance of summons (§ 76-1443), that continuances be granted only for “extraordinary cause,” and then only if the tenant posts a bond in the amount of his or her past due rent and additional rent that will accrue (§ 76-1443), is it a violation of the Code for the court to “[l]iberally grant continuances….” as these attorneys request?

6.  Cognizant of  Nebraska Judicial Ethics Opinion 06-2, wherein this committee concluded that “[a]dvertisements unrelated to the judicial process, of either an education or promotional nature, should not be displayed near the courtroom as they advance private interests and convey an impression of influence.” Does the Code permit this court to ‘[i]nclude information about legal services with the eviction summonses”?

Number: 19-2
Year: 2019
Question Presented:

Does the Nebraska Revised Code of Judicial Conduct permit a judge to act as the treasurer for a nonprofit organization (high school legion baseball team)?  The duties would be limited to maintaining the financial records of the legion team, collecting player fees, collecting income from the sale of concessions, collecting income from gate fees (entrance to tournaments and games), and paying the various bills to vendors, coaches, and umpires.  This role would include the added language that the treasurer will not ask for any donations of any kind, nor will the treasurer be in charge of the charity fundraiser event (golf tournament) hosted annually by the organization.

Number: 19-1
Year: 2019
Question Presented:

“Does the Code of Judicial Conduct permit [sic] a county court duty judge from having ex parte communication with a county attorney to discuss warrantless affidavits and the arrestee’s criminal record for the purpose of setting an appropriate appearance bond when the courts are closed over the weekend and holidays?”

Number: 17-3
Year: 2017
Question Presented:

May a member of the judiciary who previously served as General Counsel for the Nebraska Department of Correctional Services (NDCS) preside over cases which involve claims brought directly by or on behalf of incarcerated individuals?

Number: 17-2
Year: 2017
Question Presented:

Is a district judge whose brother is county attorney for one of the counties in the judge’s judicial district disqualified in the following situations:

1.   from cases in which the deputy county attorney for the county is the attorney for the State and the judge’s brother did not appear in the case, nor sign the complaint, or participate in any way in the case;

2.   from cases in which the judge’s brother is appearing as attorney, if both parties “agree,” the judge may hear the case and such waiver can later be revoked;

3.   in reviewing affidavits for issuance of search warrants when the brother signs as notary and may have assisted the law enforcement affiant in preparation of the affidavit; and

4.   from appointing the judge’s brother as special prosecutor or guardian ad litem when the appointment is governed by a rotating list.

Number: 17-1
Year: 2017
Question Presented:
  1. Whether an active district court judge may participate as a sitting member of a “Justice Council” without contravening the Nebraska Constitution or Code of Judicial Conduct.
  2. The extent to which the advisory and legislative duties of a “Justice Council” are in conflict with the notion of separation of powers.
  3. Whether any lesson can be learned, which can be applied to this situation, from Nebraska Judicial Ethics Opinions 11-2 and 14-1 where the Committee advised a judge may serve as a member of a Safety Council, but should regularly evaluate the Council’s activities and thereafter service on the Council was found to raise an appearance of impropriety.
  4. If any of the above raises disqualifying ethical concerns, the extent to which a judge may nevertheless serve a limited role on the Council, and examples of the parameters of such a role.
Number: 16-4
Year: 2016
Question Presented:

Shall a county court judge recuse himself/herself from a case where the judges spouse is one of the attorneys in a prosecutors office (17 full-time attorneys) in the following circumstances:A) from the trial/proceedings of a defendant where the judges spouse did NOT file the criminal charge/complaint in County Court, but was the prosecutor participating at the...

Number: 16-3
Year: 2016
Question Presented:

May a judge or magistrate, at an employee's request, write a letter of recommendation for that employee discussing the employees abilities as an employee who has applied for a job in a different court? May the letter be on the courts letterhead? May the letter be signed with the title "Judge of the Court?" Would the same answer apply if the clerk was...

Number: 16-2
Year: 2016
Question Presented:

Shall a county court judge disqualify himself from adoption cases involving the adoption of children by same-sex married couples if the judge:a. is an openly professing and practicing evangelical Christian, that openly and publicly professes his faith in Jesus Christ as his Lord and Savior;b. prays to God, reads the Bible, gives financially to the church and Christian ministries, and...

Number: 16-1
Year: 2016
Question Presented:

May a judge serve on a guardian ad litem task force formed by a Board of County Commissioners for the stated purpose of discussion, consideration, and making recommendations to the Board as to the method by which guardian ad litems should be appointed in juvenile court proceedings in that county?

Number: 15-2
Year: 2015
Question Presented:

If clerk magistrates are married to Nebraska State Patrol Officers assigned to the same judicial district, may the clerk magistrate handle citations or complaints which involve their spouses in an official capacity, for example, sign citations issued by their spouse, collect fines for those citations, or be in the courtroom when the spouse testifies?

Number: 15-1
Year: 2015
Question Presented:

May a judge or clerk magistrate: refuse to perform marriages for same-sex couples; refuse to perform marriages for same-sex couples if the couple can be referred to another judge willing to perform the ceremony; refuse to perform same-sex marriages if based on a personal or sincerely held religious belief that marriage is between one man and one woman; refuse to conduct all marriages; or limit...

Number: 14-1
Year: 2014
Question Presented:

May a county judge serve as a member of the board of directors for the National Safety Council, Nebraska, when the Council administers that judges county court misdemeanor diversion program for the jurisdictions city prosecutor; the prosecutors office and the Council determine the diversion curriculum, and unsuccessful diversion candidates may later appear in front of the county judge for...

Number: 12-4
Year: 2012
Question Presented:

May a clerk magistrate accept donations from a community fundraiser to help defray her extensive medical bills because of illness?

Number: 12-3
Year: 2012
Question Presented:

May a person who has previously filed for election as a delegate to a county post primary political party convention and who by reason of the number of persons filing will automatically be certified by the election commissioner as an elected delegate avoid being in violation of the Nebraska Revised Code of Judicial Conduct upon seeking appointment to judicial office?