Thompson v. Millard Pub. Sch. Dist. No. 17 , 302 Neb. 70 ( 2019 )

Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
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Nebraska Supreme Court A dvance Sheets
302 Nebraska R eports
THOMPSON v. MILLARD PUB. SCH. DIST. NO. 17
Cite as 302 Neb. 70
K im M. Thompson, an individual, appellant,
v. M illard P ublic School District No. 17
and M illard P ublic Schools Board
of Education, appellees.
___ N.W.2d ___
Filed January 18, 2019. No. S-18-140.
1. Judges: Recusal. A recusal motion is initially addressed to the discre-
tion 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 presump-
tion 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.
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THOMPSON v. MILLARD PUB. SCH. DIST. NO. 17
Cite as 302 Neb. 70
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: Peter
C. Bataillon, Judge. Affirmed in part, and in part vacated and
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, Stacy, Funke,
Papik, and Freudenberg, JJ.
Cassel, J.
INTRODUCTION
Kim M. Thompson resigned from her employment with a
school district after the district, asserting she had been insub-
ordinate, offered her the option to resign in lieu of termina-
tion. 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 differ-
ent 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 con-
sensual 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 termina-
tion of her employment.
Acting without counsel, Thompson originally brought suit
against Millard claiming (1) retaliation, (2) hostile work envi-
ronment, (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 dis-
trict 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 over-
ruled 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 con-
struction 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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THOMPSON v. MILLARD PUB. SCH. DIST. NO. 17
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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 dis-
pute 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
A ppearance of Impartiality
[2,3] A judge should recuse himself or herself when a liti-
gant demonstrates that a reasonable person who knew the cir-
cumstances 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 wit-
ness 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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THOMPSON v. MILLARD PUB. SCH. DIST. NO. 17
Cite as 302 Neb. 70
and the judge should have recused himself. Thompson con-
tends 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 suf-
ficient 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 sum-
mary 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 determin-
ing 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 per-
son 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 relation-
ship” 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 pur-
poses 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. Ct. 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 dif-
ferent 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 appear-
ance 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 rela-
tionship 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 persua-
sive 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 hir-
ing 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.
Timeliness
[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 disquali-
fication is timely if submitted at the earliest practicable oppor-
tunity 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 practica-
ble opportunity, but she renewed the motion at each practicable
opportunity. Thus, Thompson did not waive her right to obtain
judicial disqualification.
A ppropriate R emedy
[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 appropri-
ate 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 appro-
priate 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 con-
sider 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 compa-
rable 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 dis-
trict 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 judg-
ment 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 assign-
ments 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.
A ffirmed in part, and in part vacated
and remanded with directions.
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.