Sibling Disqualification In Nebraska

From the web page of the Nebraska Supreme Court

The Judicial Ethics Committee has released an opinion addressing a question regarding disqualification when an attorney is related to a judge.

Question Posed: 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.

The Committee’s response can be viewed online at https://supremecourt.nebraska.gov/sites/default/files/ethics-opinions/Judicial/17-2.pdf

From the linked opinion

this committee adopts the reasoning of the above-referenced committees in numerous jurisdictions and finds that in the present situation, a judge should recuse herself from all cases prosecuted by her sibling and all deputy county attorneys appointed by and supervised by him.

On waiver

this committee takes no position on that issue. However, the fact that the potential withdrawal of the waiver of disqualification may be an issue would suggest that while a waiver of disqualification may be allowed, it may not be wise as a general practice.

 Search warrants

this committee finds the judge would be disqualified.

Appointments

This committee finds that the Code prohibits a judge appointing her brother as a special prosecutor or guardian ad litem.

(Mike Frisch)