Tierney v. Four H Land Co.

Finally, we conclude that the Department has failed to
plainly describe its methodologies so that they can be repli-
cated and assessed in compliance with § 46-713(1)(d).
We hold that the Department’s 2008 fully appropriated
determination for the Lower Niobrara River Basin was invalid.
We reverse and vacate the director’s order affirming that
determination.
R eveRsed and vacated.
James tieRney and JeffRey tieRney, appellants ,
v. fouR H land company limited
paRtneRsHip et al ., appellees.
798 N.W.2d 586
Filed June 3, 2011. 	No. S-10-103.
1. Judges: Recusal. A judge shall disqualify himself or herself in any proceeding in
which the judge’s impartiality might reasonably be questioned.
2. ____: ____. A trial judge should recuse himself or herself when a litigant dem-
onstrates 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 is shown.
3. 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.
4. Judges: Recusal: Time. The issue of judicial disqualification is timely if sub-
mitted at the earliest practicable opportunity after the disqualifying facts are
discovered.
5. Judges: Recusal: Appeal and Error. A traditional harmless error analysis is
inappropriate for review of questions of judicial disqualification.
6. ____: ____: ____. The disqualification of a judge is not a disqualification to
decide erroneously. It is a disqualification to decide at all.
7. ____: ____: ____. The three-factor special harmless error test in Liljeberg v.
Health Services Acquisition Corp., 486 U.S. 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 Code of Judicial Conduct.
8. Judges. When a judge is biased, his or her personal integrity and ability to
serve are thrown into question, placing a strain on the court that cannot easily
be erased.
Petition for further review from the Court of Appeals, inbody,
Chief Judge, and iRwin and caRlson, Judges, on appeal thereto
658 	281 NEBRASkA REPoRTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:45 AM CST

from the District Court for Lincoln County, JoHn p. muRpHy,
Judge. Judgment of Court of Appeals reversed, and cause
remanded with directions.
James J. Paloucek, of Norman, Paloucek & Herman Law
offices, for appellants.
Jay C. Elliott, of Elliott Law office, P.C., L.L.o., for appel-
lees Four H Land Company Limited Partnership and Western
Engineering Company, Inc.
Susan C. Williams for appellees Frank Aloi and Aloi Living
Trust.
H eavican, c.J., connolly, G eRRaRd, stepHan, mccoRmack ,
and milleR-leRman, JJ.
mccoRmack , J.
NATURE oF CASE
James Tierney and Jeffrey Tierney brought this action against
Four H Land Company Limited Partnership (Four H Land);
Western Engineering Company, Inc. (Western Engineering);
Frank Aloi, trustee of the Aloi Living Trust; and the Aloi
Living Trust (collectively the defendants) to compel them
to lower the elevation of a lakeside housing development
adjoining the Tierneys’ land. The district court granted sum-
mary judgment in favor of the defendants, and the Tierneys
appealed. While their appeal was pending, the Tierneys discov-
ered that the district court judge who issued the order harbored
a personal prejudice against their attorney. We reverse, and
remand with directions.
BACkGRoUND
aGReement and peRmit
The Tierneys are owners of real estate that adjoins 60.8 acres
of real property previously owned by Four H Land and cur-
rently owned by Aloi, trustee of the Aloi Living Trust, and the
Aloi Living Trust. In 1997, the 60.8 acres consisted primarily
of an alfalfa field on level ground with a line of cottonwood
trees and a road alongside the adjoining edge of the Tierneys’
property. The alfalfa field was somewhat lower than the road,
TIERNEy v. FoUR H LAND Co. 	659
Cite as 281 Neb. 658

and there were some depressed areas of wetlands. Four H Land
and Western Engineering wished to open and operate a sand
and gravel pit on the 60.8 acres. When the excavation was com-
plete, they planned to create a lake and fill in the surrounding
land for a housing development.
Four H Land and Western Engineering sought a conditional
use permit from the Lincoln County Planning Commission (the
Commission). The Tierneys objected that the sand and gravel
pit would be a nuisance. The Commission granted the permit
with the following conditions:
At the close of each phase of the sand and gravel pit
operation the area shall be leveled to its original topog-
raphy within one year of termination of each phase. The
areas not covered by water shall then be covered with four
inches (minimum) of topsoil and seeded with appropriate
native grasses to prevent erosion of the soil.
The 	Tierneys 	appealed 	the 	Commission’s 	decision.
Eventually, the Tierneys reached an agreement with Four
H Land and Western Engineering. The agreement provided
more detailed mining operation restrictions and stated in rele-
vant part:
As the operation in one phase is completed and the opera-
tion moves to the next phase, [Four H Land] and [Western
Engineering] shall reclaim the land in the phase of prior
operations by filling to at least its approximate original
topography, covered with a minimum of four (4) inches
of top soil and seeded with appropriate native grasses to
prevent erosion and to visually restore the site, except the
area to be used for a lake.
The terms and conditions of the August 11, 1998, agreement
were “to be incorporated into and made a part of the Conditional
Use Permit to be approved by the . . . Commission” and “[a]ll
of the other terms and conditions contained in the Conditional
Use Permit shall apply, except to the extent they are contrary to
or less restrictive than the terms agreed to in the settlement of
this controversy . . . .” That same date, the conditional use per-
mit was reissued by the Commission. The permit specifically
attached and incorporated the August 11 agreement.
660 	281 NEBRASkA REPoRTS

After completion of the gravel pit operation, the lake was
created and the surrounding land was prepared for the housing
development. The lots were raised to comply with flood plain
requirements. The parties agree that the lots, which comprise
most of the land, are higher in elevation than the previously
existing alfalfa field.
The Tierneys brought this action against the defendants on
April 9, 2009. They contend that the final elevation of the land
violated the agreement because the agreement required a return
to the preexisting elevation and the land was 6 to 8 feet higher.
Their action was brought before the Honorable John P. Murphy
of the Lincoln County District Court, and the Tierneys were
represented by James J. Paloucek.
In December 2009, the Tierneys filed a motion for summary
judgment and the defendants filed cross-motions for summary
judgment. Several depositions were submitted in support of
the motions disputing the intent of the permit and agreement.
on January 8, 2010, the district court granted summary judg-
ment in favor of the defendants. The court concluded that by
virtue of the “at least” language in the permit, the defendants
were required to return the land to the original elevation level
or higher, and that there was no dispute the elevation was “at
least” as high as it was before the gravel pit operation. The
court concluded that there was thus no material issue of fact
as to whether the defendants had complied with the permit and
agreement. The Tierneys appealed.
bias aGainst tieRneys’ attoRney
While the Tierneys’ appeal was pending, on July 13, 2010,
Paloucek received a letter from Judge Murphy. In the letter,
Judge Murphy wrote, “Because I hold you personally respon-
sible for the Florom fiasco, I am recusing myself from any
pending case or any future case involving your law firm.”
Since that time, Judge Murphy has, in fact, recused himself
from all cases involving the law offices of Norman, Paloucek
& Herman.
The Tierneys were allowed to amend their assignments of
error to allege that Judge Murphy erred in failing to recuse
himself, sua sponte, from deciding the case, because such bias
TIERNEy v. FoUR H LAND Co. 	661
Cite as 281 Neb. 658

must have existed at the time of the summary judgment hear-
ing. The Tierneys alleged that prior to receiving this letter, they
did not know that Judge Murphy harbored prejudice against
their attorney.
The source of the alleged bias stems from disciplinary pro-
ceedings against a former county court judge, kent E. Florom.
In 2008, Florom became involved in matters surrounding the
criminal prosecution and revocation of the teaching certifi-
cate of the head coach of the girls’ softball team on which
Florom’s daughter played. Florom tried to use his influence to
convince the prosecutor not to press charges and later threat-
ened Paloucek, who served on the school board, stating that
Paloucek would make an “enemy” if Paloucek supported the
action to remove the coach’s teaching certificate.
The Nebraska Commission on Judicial Qualifications (JQC)
filed a complaint charging Florom with violations of the
Nebraska Code of Judicial Conduct. A hearing was held before
a special master appointed by this court, and Paloucek testified
at the hearing. The special master concluded there was clear
and convincing evidence that Florom’s conduct violated the
Nebraska Code of Judicial Conduct. By November 5, 2009, the
JQC issued the recommendation that Florom be removed from
judicial office. on July 9, 2010, we independently reviewed
the findings of the JQC and removed Florom from judi-
cial office.1
couRt of appeals opinion
The Nebraska Court of Appeals, in a memorandum opin-
ion, affirmed Judge Murphy’s order granting the defendants’
motions for summary judgment and denying the Tierneys’
cross-motion for summary judgment.2 The Court of Appeals
held that the alleged 8- to 10-foot-high berm complied with
the provisions in the conditional use permit requiring a berm
at least 6 feet high and that this provision was not contrary to
1 See In re Complaint Against Florom, 280 Neb. 192, 784 N.W.2d 897
(2010).
2 Tierney v. Four H Land Co., No. A-10-103, 2010 WL 4354243 (Neb. App.
Nov. 2, 2010) (selected for posting to court Web site).
662 	281 NEBRASkA REPoRTS

or less restrictive than the terms of the agreement. The Court
of Appeals concluded that it did not need to reach the issue of
Judge Murphy’s failure to recuse himself because it had made
an independent determination of the correctness of the grant
of summary judgment. We granted the Tierneys’ petition for
further review.
ASSIGNMENTS oF ERRoR
on further review, the Tierneys assert that the Court of
Appeals erred in (1) concluding as a matter of law that the
berm currently surrounding the lake is in compliance with the
initial application and conditional use permit which required a
minimum 6-foot berm, (2) affirming the district court’s order
granting the defendants’ motions for summary judgment, (3)
affirming the district court’s order denying the Tierneys’ motion
for summary judgment, (4) failing to address the assigned error
regarding the district court judge’s failure to recuse himself, and
(5) failing to find that the Tierneys’ due process rights required
reversal for new proceedings before an unbiased judge.
STANDARD oF REVIEW
[1] A judge shall disqualify himself or herself in any pro-
ceeding in which the judge’s impartiality might reasonably
be questioned.3
ANALySIS
The Tierneys argue that they had a right to have the summary
judgment motions decided by a judge who was not disqualified
because of admitted bias against their attorney. We conclude
that the decision by Judge Murphy should be vacated and that
it was error for the Court of Appeals to apply a traditional
harmless error analysis to the disqualification issue. Without
addressing the underlying merits of this dispute, we reverse,
and remand to the Court of Appeals with directions to vacate
the judgment and remand the cause for a new hearing.
The Nebraska Revised Code of Judicial Conduct requires
that “[a] judge shall hear and decide matters assigned to the
3 Neb. Rev. Code of Judicial Conduct § 5-302.11(A) (previously found at
Neb. Code of Judicial Conduct § 5-203(E)).
TIERNEy v. FoUR H LAND Co. 	663
Cite as 281 Neb. 658

judge, except when disqualification is required.”4 The code
further states that “[a] judge shall disqualify himself or herself
in any proceeding in which the judge’s impartiality might rea-
sonably be questioned . . . .”5 Under the code, such instances in
which the judge’s impartiality might reasonably be questioned
specifically include where “[t]he judge has a personal bias or
prejudice concerning a party or a party’s lawyer . . . .”6
[2] We have explained that a trial judge should recuse him-
self 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 reason-
ableness, even though no actual bias or prejudice is shown.7 By
Judge Murphy’s own admission, the so-called Florom fiasco
caused him to have a personal bias against the Tierneys’
attorney. While Judge Murphy did not announce his bias until
after Florom was removed from judicial office, a reasonable
observer would conclude that this same bias was present when
Judge Murphy decided the parties’ cross-motions for summary
judgment. At the time of the summary judgment hearing, the
disciplinary proceedings against Florom were well underway.
Paloucek had already testified before the special master, and
the JQC had already recommended removal. A reasonable
observer would find it unlikely that Judge Murphy was igno-
rant of the ongoing disciplinary proceedings against his col-
league. And a reasonable observer would conclude that Judge
Murphy’s bias against the Tierneys’ attorney was not formed
suddenly at the moment Florom was dismissed from judicial
office. Judge Murphy should have recused himself from decid-
ing the motions for summary judgment.
[3] Since the Tierneys were unaware of the bias that formed
the basis of Judge Murphy’s disqualification, they did not
waive the disqualification issue by failing to raise it before the
motions for summary judgment were decided. A party is said
4 Neb. Rev. Code of Judicial Conduct § 5-302.7 (previously found at
§ 5-203(B)(1)).
5 § 5-302.11(A) (previously found at § 5-203(E)).
6 § 5-302.11(A)(1) (previously found at § 5-203(E)(1)(a)).
7 Huber v. Rohrig, 280 Neb. 868, 791 N.W.2d 590 (2010).
664 	281 NEBRASkA REPoRTS

to have waived his or her right to obtain a judge’s disqualifica-
tion 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.8 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.’”9
[4] But, as the court in Urias v. Harris Farms, Inc.,10
explained, the rule that it is generally too late to raise the issue
of disqualification after the matter is submitted for decision
rests on the principle that a party may not gamble on a favor-
able decision. This principle does not apply when the facts con-
stituting the disqualification are unknown, because no gamble
could have been purposefully made.11 Instead, the issue of dis-
qualification is timely if submitted at the “‘earliest practicable
opportunity’ after the disqualifying facts are discovered.”12
In this case, the Tierneys were not delaying raising the issue
of Judge Murphy’s recusal until they could know whether they
would be granted summary judgment. Despite the defendants’
argument that it was ostensibly common knowledge that Judge
Murphy and Florom were friends, Paloucek could not have
known that because of this friendship, Judge Murphy would
harbor such bias against him for his unintended role in Florom’s
disciplinary proceedings. We conclude that the Tierneys raised
the disqualification issue at the earliest practicable opportunity
after the disqualifying facts were discovered.
[5,6] We must consider, however, whether Judge Murphy’s
failure to recuse himself is subject to a harmless error analysis.
The Court of Appeals did not reach the issue of whether Judge
8 See Jim’s, Inc. v. Willman, 247 Neb. 430, 527 N.W.2d 626 (1995), disap-
proved on other grounds, Gibilisco v. Gibilisco, 263 Neb. 27, 637 N.W.2d
898 (2002).
9 McCully, Inc. v. Baccaro Ranch, 279 Neb. 443, 450, 778 N.W.2d 115, 120
(2010).
10 Urias v. Harris Farms, Inc., 234 Cal. App. 3d 415, 285 Cal. Rptr. 659
(1991).
11 Id.
12 Id. at 425, 285 Cal. Rptr. at 664.
TIERNEy v. FoUR H LAND Co. 	665
Cite as 281 Neb. 658

Murphy should have recused himself because it concluded that
any disqualification, if present, was harmless in light of the
Court of Appeals’ independent conclusion that the decision
granting summary judgment to the defendants was correct. We
hold that this type of approach is inappropriate for review of
questions of judicial disqualification. As we said in Harrington
v. Hayes County,13 where we held that harmless error review
was inappropriate for statutory judicial disqualification, “The
disqualification . . . is not a disqualification to decide errone-
ously. It is a disqualification to decide at all.”
While we have never specifically addressed whether harm-
less error review is likewise inappropriate for disqualification
under the Nebraska Code of Judicial Conduct, we find that the
same reasoning applies.
Most other jurisdictions hold that actions by a disquali-
fied judge are not subject to traditional harmless error review,
regardless of whether the disqualification is by statute or judi-
cial code.14 In Blaisdell v. City of Rochester,15 for instance, the
13 Harrington v. Hayes County, 81 Neb. 231, 236, 115 N.W. 773, 774 (1908).
See, also, State v. Vidales, 6 Neb. App. 163, 571 N.W.2d 117 (1997).
14 See, e.g., Christie v. City of El Centro, 135 Cal. App. 4th 767, 37 Cal.
Rptr. 3d 718 (2006); People v. Dist. Ct., 192 Colo. 503, 560 P.2d 828
(1977); Abington Ltd. Partnership v. Heublein, 246 Conn. 815, 717
A.2d 1232 (1998); In re M.C., 8 A.3d 1215 (D.C. 2010); Butler v. Biven
Software, Inc., 222 Ga. App. 88, 473 S.E.2d 168 (1996); Petzold v. Kessler
Homes, Inc., 303 S.W.3d 467 (ky. 2010); Blaisdell v. City of Rochester,
135 N.H. 589, 609 A.2d 388 (1992); People v. Alteri, 47 A.D.3d 1070, 850
N.y.S.2d 258 (2008); Matter of Estate of Risovi, 429 N.W.2d 404 (N.D.
1988); Cuyahoga Co. Bd. of Mental Retardation v. Association, 47 ohio
App. 2d 28, 351 N.E.2d 777 (1975); Mosley v. State, 141 S.W.3d 816 (Tex.
App. 2004). See, also, Hall v. Small Business Admin., 695 F.2d 175 (5th
Cir. 1983); Tennant v. Marion Health Care Foundation, 194 W. Va. 97,
459 S.E.2d 374 (1995); Leslie W. Abramson, Appearance of Impropriety:
Deciding When a Judge’s Impartiality “Might Reasonably Be Questioned,”
14 Geo. J. Legal Ethics 55 (2000). But see, Ajadi v. Commissioner of
Correction, 280 Conn. 514, 911 A.2d 712 (2006); H & S Horse Vans v
Carras, 144 Mich. App. 712, 376 N.W.2d 392 (1985); Sargent County
Bank v. Wentworth, 547 N.W.2d 753 (N.D. 1996); Reilly by Reilly v.
Southeastern Pa. Transp., 507 Pa. 204, 489 A.2d 1291 (1985); State v.
Alonzo, 973 P.2d 975 (Utah 1998).
15 Blaisdell v. City of Rochester, supra note 14.
666 	281 NEBRASkA REPoRTS

court was confronted with an action presided over by a judge
who should have disclosed to the parties a familial relationship
with a member of the law firm that represented one of the par-
ties which would have disqualified him under the applicable
judicial code of conduct. Despite the fact that the plaintiff did
not raise the issue of recusal until a year after the case was
dismissed as barred by the doctrine of res judicata, the court
found that the issue was timely. And despite the contention that
there was no actual personal relationship between the judge
and his relative, the court found there was an appearance of
impropriety which should not be overlooked.
The court in Blaisdell vacated the order and subsequent
related orders without addressing their underlying legal mer-
its. It rejected a harmless error review, saying: “In our opin-
ion, it would be inconsistent with the goals of our code to
require certain standards of behavior from the judiciary in
the interest of avoiding the appearance of partiality, but then
to allow a judge’s ruling to stand when those standards have
been violated.”16
In Cuyahoga Co. Bd. of Mental Retardation v. Association,17
the court similarly held that when the undisputed facts are such
that a trial judge is under a clear and mandatory duty to dis-
qualify himself under the applicable code of judicial conduct,
the judge’s attempt to act in violation of that duty by continuing
to hear the case will be vacated and the underlying merits of
the dispute will not be reached on appeal. The court explained
that the canons of judicial conduct are binding and mandatory
unless otherwise indicated. These standards were not intended
to be “empty admonitions which a trial judge could openly dis-
regard, subject only to retrospective disciplinary action against
himself, with no effect upon the improper actions which the
canons were designed to protect against.”18
In Scott v. U.S.,19 the court systematically set forth the
reasons it believed that a traditional harmless error analysis
16 Id. at 594, 609 A.2d at 391.
17 Cuyahoga Co. Bd. of Mental Retardation v. Association, supra note 14.
18 Id. at 33-34, 351 N.E.2d at 782-83.
19 Scott v. U.S., 559 A.2d 745 (D.C. 1989).
TIERNEy v. FoUR H LAND Co. 	667
Cite as 281 Neb. 658

is inappropriate for judicial disqualification issues. First, a
traditional harmless error analysis is best suited for review
of “‘discrete exercises of judgment’” by lower courts where
information is available that makes it possible to gauge the
effect of a decision on the trial as a whole.20 Second, the tradi-
tional harmless error rule presumes the existence of an impar-
tial judge.21 Third, a review of the record for actual prejudice
under the traditional harmless error standard is inconsistent
with the goal of the American Bar Association’s Model Code
of Judicial Conduct,22 which is to prevent even the appearance
of impropriety.23
We agree that a traditional harmless error analysis is inap-
propriate. Any attempt to determine or ameliorate actual preju-
dice through a traditional harmless error analysis would under-
mine the high function of the judicial process that the ethical
canons are designed to protect. We must decide, then, what the
appropriate test is.
Several courts have adopted the view that all actions by
a judge who is disqualified are void per se.24 However, in
Liljeberg v. Health Services Acquisition Corp.,25 the U.S.
Supreme Court set forth a more flexible three-factor test to
determine when orders issued by a disqualified judge should be
20 Id. at 750 (quoting Young v. U.S. ex rel. Vuitton et Fils S. A., 481 U.S. 787,
107 S. Ct. 2124, 95 L. Ed. 2d 740 (1987)).
21 Id. (citing Rose v. Clark, 478 U.S. 570, 106 S. Ct. 3101, 92 L. Ed. 2d 460
(1986).
22 See, currently, Model Code of Judicial Conduct Canon 2, rule 2.11(a)
(2007).
23 Scott v. U.S., supra note 19.
24 See, e.g., Christie v. City of El Centro, supra note 14; People v. Dist. Ct.,
supra note 14; Butler v. Biven Software, Inc., supra note 14; Petzold v.
Kessler Homes, Inc., supra note 14; Blaisdell v. City of Rochester, supra
note 14; People v. Alteri, supra note 14; Matter of Estate of Risovi, supra
note 14; Cuyahoga Co. Bd. of Mental Retardation v. Association, supra
note 14.
25 Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 108 S. Ct.
2194, 100 L. Ed. 2d 855 (1988).
668 	281 NEBRASkA REPoRTS

vacated on appeal. The Liljeberg test is sometimes referred to
as a “special harmless error test.”26
Based on the appearance of impropriety, the lower appel-
late court in Liljeberg had vacated the trial court’s judgment
after the appeal was final, pursuant to Fed. R. Civ. P. 60(b)(6).
The Supreme Court agreed that the judge should have recused
himself. The Court found the judge had violated 28 U.S.C.
§ 455(a) (2006), which provides that any judge shall “‘dis-
qualify himself in any proceeding in which his impartiality
might reasonably be questioned.’”27 The trial judge sat on the
board of trustees of a university which stood to benefit from a
decision in favor of the plaintiff, but the judge did not become
conscious of this connection until after the judgment. The
defendants did not learn of the trial judge’s interest in the dis-
pute until 10 months after the judgment.
The Court explained that the judge’s consciousness of the
circumstances creating the appearance of impropriety was
not an element of a violation of § 455(a). The Court rejected
the argument that if awareness of the conflict is an element
of disqualification, the judge is called upon to perform an
impossible feat—to recuse himself or herself when not know-
ing of the need to do so. It is not an impossible feat, the
Court explained, because the disqualification provision can
be applied retroactively. The oversight can later be rectified
so that public confidence in the impartiality of the judiciary
is maintained.28
The Court explored under what circumstances vacatur was
the appropriate method of rectifying such judicial lapses. It
concluded that a traditional harmless error analysis robbed the
litigants of effective relief, and was inappropriate.29 But it also
26 See In re M.C., supra note 14, 8 A.3d at 1232. Accord U.S. v. O’Keefe, 169
F.3d 281 (5th Cir. 1999).
27 Liljeberg v. Health Services Acquisition Corp., supra note 25, 486 U.S. at
858.
28 Liljeberg v. Health Services Acquisition Corp., supra note 25.
29 See id.
TIERNEy v. FoUR H LAND Co. 	669
Cite as 281 Neb. 658

rejected “a draconian remedy for every violation.”30 Instead,
in concluding that vacatur was the proper remedy under the
facts presented in Liljeberg, the Court considered three fac-
tors: (1) the risk of injustice to the parties in the particular
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.31 The Court placed special
emphasis on this last factor, noting, “We must continuously
bear in mind that ‘to perform its high function in the best way
“justice must satisfy the appearance of justice.”’”32
The Court first considered the third factor because it was
the most important one: The risk that public faith in the judi-
ciary would be undermined as a result of the violation.33 In
this regard, the court noted that, while the case at hand may
not have involved actual knowledge of the conflict, it would
be difficult for the general public to understand how personal
concerns can be so forgotten by busy federal judges. A judge’s
forgetfulness is “‘not the sort of objectively ascertainable fact
that can avoid the appearance of partiality.’”34 The Court also
concluded that the violation at issue was “neither insubstantial
nor excusable.”35 Instead, the “facts create[d] precisely the kind
of appearance of impropriety that § 455(a) was intended to pre-
vent.”36 Thus, this factor weighed heavily in favor of vacating
the trial court’s judgment.
Second, the Court considered whether denial of relief would
produce injustice in other cases. The Court determined that
it would not. Quite the opposite, the Court concluded that
vacating the judgment would have prophylactic value, since it
might encourage future judges and litigants “to more carefully
examine possible grounds for disqualification and to promptly
30 Id., 486 U.S. at 862.
31 Liljeberg v. Health Services Acquisition Corp., supra note 25.
32 Id., 486 U.S. at 864.
33 Id.
34 Id., 486 U.S. at 860.
35 Id., 486 U.S. at 867.
36 Id.
670 	281 NEBRASkA REPoRTS

disclose them when discovered.”37 After finding that the first
two factors warranted vacatur, the Court concluded: “It is
therefore appropriate to vacate the judgment unless it can be
said that respondent did not make a timely request for relief, or
that it would otherwise be unfair to deprive the prevailing party
of its judgment.”38
In considering prejudice to the parties, the Court noted that
an “analysis of the merits of the underlying litigation sug-
gests that there is a greater risk of unfairness in upholding the
judgment . . . than there is in allowing a new judge to take
a fresh look at the issues.”39 The Court also pointed out that
the parties did not show special hardship by reason of their
reliance on the original judgment. Finally, the respondent’s
request to vacate was timely despite being made for the first
time on appeal, because the respondent did not know of the
facts surrounding the disqualification until that time. Thus,
the Court found no compelling reason not to vacate the lower
court’s judgment. Several other jurisdictions have adopted the
Liljeberg special harmless error test in determining whether to
vacate court orders by a judge who should have recused him-
self or herself.40
[7] We believe that the Liljeberg test is the best means of
determining when the rulings of a judge, who should have
recused himself or herself, will be vacated, and we hereby
adopt it. Applying the Liljeberg test to the facts of this case,
we conclude that Judge Murphy’s order on the parties’ cross-
motions for summary judgment should be vacated.
First, the risk of undermining the public’s confidence in the
judicial process is high. Judge Murphy’s failure to inform the
37 Id., 486 U.S. at 868.
38 Id.
39 Id.
40 See, Abington Ltd. Partnership v. Heublein, supra note 14; In re M.C.,
supra note 14; Petzold v. Kessler Homes, Inc., supra note 14; Mosley v.
State, supra note 14; Tennant v. Marion Health Care Foundation, supra
note 14.
TIERNEy v. FoUR H LAND Co. 	671
Cite as 281 Neb. 658

parties of his bias was “neither insubstantial nor excusable.”41
Whether Judge Murphy was consciously aware of the extent
of his bias against Paloucek at the time of the summary judg-
ment hearing, the reasonable observer would question his
impartiality in light of his subsequent letter and his sua sponte
prospective recusal from ever again hearing anything brought
by Paloucek or his firm.
[8] Unlike other circumstances leading to an appearance of
impropriety which a reasonable observer could conclude had
no actual effect on the trial court’s judgment, a charge of bias
“‘must be deemed at or near the very top in seriousness.’”42 It
is the basic precept to our system of justice that a judge must
be free of all taint of bias and partiality.43 Thus, “‘bias kills
the very soul of judging—fairness.’”44 When a judge is biased,
his or her “‘personal integrity and ability to serve are thrown
into question, placing a strain on the court that cannot easily
be erased.’”45
Next, considering the risk to future litigants, we conclude
that vacatur will only provide a benefit. Given the importance
of the charge of bias, relief in this case will prevent injustice in
some future case by encouraging judges and litigants to more
carefully examine possible grounds for bias and promptly dis-
close them when discovered. Thus, under Liljeberg, the lower
court’s judgment must be vacated unless the risk of unfairness
to the parties cautions against it.
The defendants have made no showing of special hardship
by reason of their reliance on the original judgment. And, as
already discussed, although the issue of Judge Murphy’s bias
was not raised until the pendency of this appeal, the Tierneys
raised the issue at their earliest opportunity. There is little to
41 See Liljeberg v. Health Services Acquisition Corp., supra note 25, 486
U.S. at 867.
42 McKenna v. Delente, 123 Conn. App. 137, 144, 1 A.3d 260, 266 (2010).
43 See People v. Dist. Ct., supra note 14.
44 McKenna v. Delente, supra note 42, 123 Conn. App. at 144-45, 1 A.3d
at 266.
45 Id. at 145, 1 A.3d at 266.
672 	281 NEBRASkA REPoRTS

lose and much to be gained by letting a different judge examine
the parties’ motions for summary judgment.
We find it unnecessary and inappropriate in this case to
address the underlying merits of the motions. An analysis
of whether Judge Murphy’s decision was correct could not
adequately erase the taint of his bias or the appearance of such
bias. Not only for the sake of the parties, but for the public as
a whole and its faith in the judicial system, we conclude that
the Court of Appeals’ judgment must be reversed. We express
no implicit or explicit approval of the Court of Appeals’ legal
conclusions regarding the construction of the permit and con-
tract here in dispute, but hold that the Court of Appeals erred in
applying a harmless error analysis to Judge Murphy’s failure to
recuse himself from the summary judgment hearing.
CoNCLUSIoN
We find the grounds alleged under the Nebraska Code of
Judicial Conduct sufficiently serious to warrant vacatur. We
reverse, and remand to the Court of Appeals with directions
to vacate the judgment below and remand the cause for a
new summary judgment hearing before another judge to be
appointed by this court.
R eveRsed and Remanded witH diRections.
wRiGHt, J., not participating.
STATE Ex REL. CoUNSEL FoR DIS. v. PIERSoN 	673
Cite as 281 Neb. 673
state of nebRaska ex Rel . counsel foR discipline of
tHe nebRaska supReme couRt, RelatoR, v.
RobeRt J. pieRson, Respondent.
798 N.W.2d 580
Filed June 3, 2011. 	No. S-10-304.
1. Disciplinary Proceedings. A proceeding to discipline an attorney is a trial de
novo on the record.
2. Disciplinary Proceedings: Proof. To sustain a charge in a disciplinary proceed-
ing against an attorney, the Counsel for Discipline must establish a charge by
clear and convincing evidence.
3. Disciplinary Proceedings: Appeal and Error. When no exceptions to the
referee’s findings of fact are filed, the Nebraska Supreme Court may consider the
referee’s findings final and conclusive.