Summary:
The State appeals an order out of the county court of Washington County dismissing the proceedings against J.K. The State’s exceptions include that the Judge should have recused himself and should have joined the case with another minor’s case. The Court here overrules the exceptions.
In 2015, J.K. and J.G. were arrested and separate complaints were filed. J.K. had his preliminary hearing alone and a detective testified that a female minor, Y.C., reported being sexually assaulted by J.K. Y.C. reported hanging out with J.K. and J.G. in the parking lot of her apartment building. She also said that both boys digitally penetrated her and that J.G. had vaginal intercourse with her. She also reported voluntarily going to J.K.’s apartment after to get a cell phone case he had stolen from her. The Judge then had an on the record discussion with J.K.’s counsel about his argument and Y.C.’s credibility. He found that there was probable cause and moved the case to district court. The district court sustained a motion to suppress J.K.’s statements to law enforcement and then transferred the case to juvenile court. A petition was then filed in juvenile court and the county court judge was assigned the case.
The State made a motion to recuse the judge and J.K.’s attorney made a motion to suppress his statements. The Court requested briefs from both parties on the recusal and whether the juvenile court was bound by the district court’s motion on suppression.
The motion to recuse was based on bias or prejudice under Neb. Rev. Code of Judicial Conduct § 5-302.11 because of the on the record conversation detailed above and an off the record conversation with both attorneys stating that if there was no new evidence he would agree with the district courts assessment of the motion to suppress. At the hearing on the motion to recuse, the judge called J.K.’s attorney who testified that the statements on the motion were not verbatim statements from the judge. The Court overruled the motion for recusal.
The State filed a motion to join J.K. and J.G.s’ cases, which the court denied as the cases came in a different procedural postures. J.K. had his adjudication hearing in July 2017 where the Court ruled that the State did not prove the allegations beyond a reasonable doubt.
The state assigns error to the failure of the judge to recuse himself and the failure to join the cases.
A motion to disqualify a judge is based on the sound discretion of the trial court and the request to overrule a motion is affirmed unless the record establishes bias or prejudice as a matter of law. In re Interest of Kendra M. et al., 283 Neb. 1014 (2012). Review of a court’s use of power is for an abuse of discretion.
Whether a judge must recuse himself is governed by Neb. Rev. Code of Judicial Conduct § 5-302.10(A) and § 5-302.11. Here, the State did not timely submit the issue of recusal to the juvenile court under § 5-302.10(A) and so waived its ability to obtain disqualification. The state did submit timely its argument for disqualification under § 5-302.11. There is a heavy burden on the moving party to overcome the presumption of judicial impartiality. The Court here concludes that a reasonable person who knew the circumstances of the case would not think that the judge was being improper, especially noting the strong presumption of impartiality.
In regards to joinder, the Court did not abuse its discretion.
The State’s exception is overruled.
Chief Justice Heavican concurs, noting that a trial judge should not call and question witnesses on its own motion as much as possible. The right to examine witnesses should be “sparingly exercised.”
Justice Cassel concurs, suggesting that joinder of adjudication proceedings in juvenile law cases deserves attention from the Legislature.