Heckman v. Marchio
| Citation | 894 N.W.2d 296,296 Neb. 458 |
| Decision Date | 21 April 2017 |
| Docket Number | No. S-16-379,S-16-379 |
| Parties | Bryan R. HECKMAN, appellee, v. Regina M. MARCHIO, appellant. |
| Court | Supreme Court of Nebraska |
Jeremy Jorgenson and David J. Reed, of Jorgenson, Reed & VandenBosch, L.L.C., Omaha, for appellant.
Julie Fowler and Brendan M. Kelly, of Fowler & Kelly Law, L.L.P., for appellee.
Heavican, C.J., Wright, Miller-Lerman, Cassel, Stacy, Kelch, and Funke, JJ.
This is an appeal from an order disqualifying counsel in a civil case. Twenty years ago, this court "adopt[ed] the rule articulated in [a Massachusetts decision1 ]" to allow for an immediate appeal from a nonfinal order such as this.2 In doing so, we improperly exceeded our statutory and constitutional authority. Because an appeal from the order at issue is not statutorily authorized, we dismiss the appeal.
Bryan R. Heckman filed a complaint against Regina M. Marchio, seeking to establish paternity, custody, and support of a minor child born to the parties. Sometime thereafter, he moved to disqualify Marchio's attorney. Following a hearing on the motion, the district court entered an order granting the motion to disqualify Marchio's attorney. Marchio timely filed a motion to reconsider, which the court denied. Marchio filed a purported appeal from that order, and we moved the case to our docket.3
Marchio assigns seven errors, all of which relate to the district court's disqualification of her privately retained legal counsel.
A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.4
Marchio asserts that the order of disqualification is appealable under Richardson v. Griffiths.5 As explained below, we exceeded our statutory and constitutional authority in adopting the so-called Richardson exception to the final order requirement. In doing so, we improperly circumvented our final order statute6 and improperly expanded our own jurisdiction.
Recently, we stated that in order for this court to have jurisdiction over an appeal, appellate jurisdiction must be specifically provided by the Legislature.7 This fundamental principle was not new. In 1873, this court stated that "no appeal exists except by authority of statute"8 and that "appeals do not exist by any right other than by statute."9 Over and over, we have iterated that the right of appeal in Nebraska is "purely statutory."10 In other words, unless a statute provides for an appeal, such right does not exist.11 The right to appeal did not exist at common law.12
The Nebraska Constitution allocates the regulation of appellate jurisdiction to the Legislature, not to this court. Except in those cases wherein original jurisdiction is specifically conferred by Neb. Const. art. V, § 2, the Nebraska Supreme Court exercises appellate jurisdiction.13 The Nebraska Constitution expressly provides for "such appellate jurisdiction as may be provided by law."14 The Nebraska Constitution also divides the powers of the government into three distinct departments—legislative, executive, and judicial. 15
Nebraska's separation of powers clause16 prohibits the three governmental branches from exercising the duties and prerogatives of another branch.17 These constitutional provisions prevent courts from inventing rules to enlarge appellate jurisdiction.
We have applied these principles in numerous ways. We have said that an appellate court acquires no jurisdiction unless the appellant has satisfied the statutory requirements for appellate jurisdiction.18 We have also said that when the Legislature fixes the time for taking an appeal, the courts have no power to extend the time directly or indirectly.19 Long ago, we explained that the Legislature has general power to fix the time limit for taking an appeal and, having prescribed such time, that the trial court has no power to extend the time directly or indirectly.20
Directly to the point, we have said that for an appellate court to acquire jurisdiction of an appeal, the party must be appealing from a final order or a judgment.21 And we have recited this principle or its equivalent so many times as not to require further citation.
In 1997, this court decided Richardson v. Griffiths .22 We were confronted with an issue similar to the issue now before us. In Richardson , the issue was whether a law firm should be disqualified from representing the appellants because of a prior contact between one of the appellees and an attorney with the law firm. We observed that the district court's order disqualifying the law firm was not a final order, but we deter-mined that the order was appealable under an exception to the final order requirement.
We did not, however, provide any statutory authority for the purported exception. Rather, we quoted the holding from a Massachusetts case that " ‘if the appeal from an order of disqualification involves issues collateral to the basic controversy and if an appeal from a judgment dispositive of the entire case would not be likely to protect the client's interests, interlocutory review is appropriate.’ "23 Without any analysis as to how that rule fits with our statutory requirement of a final order, we adopted the rule as an exception to the final order requirement. In subsequent cases, we referred to the above rule as the " Richardson exception to the final order requirement."24 We have used our decision in Richardson or its progeny on eight occasions (one implicitly) to provide for jurisdiction.25 On one occasion, we allowed an appeal from an order disqualifying an attorney under a concept referred to as the "collateral order doctrine."26 But the U.S. Supreme Court has disallowed interlocutory appeals of orders disqualifying counsel in civil cases and has specifically held that such orders do not fall within the collateral order doctrine applicable in the federal court system.27 Our Richardson decision did not mention the U.S. Supreme Court's decision.
This absence of any statutory basis for the Richardson exception did not go unnoticed. One commentator stated:
An appellate court has only the jurisdiction that the statutes give. The court glossed over that fact in Richardson when it recognized an exception to the final judgment rule for which it cited no statutory basis. It is unlikely that the omission of a statutory cite was inadvertent. Section 25-1902 specifies three types of final orders, which implies that there are no others. The court therefore has no statutory basis for recognizing another type of final order.28
This court should not have adopted the Richardson exception to the final order requirement. We used it to provide for appellate jurisdiction where none would otherwise exist. Through the enactment of statutes, the Legislature has prescribed when a court may exercise appellate jurisdiction; the judicial branch may not circumvent such statutory authorization. Just as courts have no power to extend the time set by the Legislature for taking an appeal,29 courts have no power to allow an appeal when it is not authorized by statute.
The commentator,30 in a respectful way, exposed our usurpation of legislative authority. He recommended using the language of the collateral order doctrine because "[i]t squares with what the court is doing."31 And then, recognizing that we had "no statutory basis for recognizing another type of final order"32 and that our interpretation was "neither supported by the language nor the history of the statute,"33 he attempted to cover our mistake in the rubric of legislative acquiescence. That gave us too much credit.
Legislative acquiescence does not apply. Where a statute has been judicially construed and that construction has not evoked an amendment, it will be presumed that the Legislature has acquiesced in the court's determination of the Legislature's intent.34 But in applying the Richardson exception, we have never purported to interpret a statute as allowing for an interlocutory appeal. Thus, there has been no interpretation of any statute in which the Legislature could be characterized to have acquiesced. Quite to the contrary, this court admitted that the disqualification order "d [id] not meet any of the definitions of a final order."35 Nonetheless, without citing any statute, we baldly proclaimed an exception.
Moreover, in analogous circumstances, judges have soundly rejected legislative acquiescence. In State v. Burlison ,36 a concurring opinion addressed a dissent's assertion that the Legislature acquiesced in this court's earlier holding (overruled in Burlison ) that malice was an essential element of second degree murder. We observed in Burlison that all crimes are statutory in Nebraska.37 Here, as we have already explained, appellate jurisdiction in Nebraska is purely statutory. The concurrence stated:
An appellate court is empowered to construe a statute, but it may not assume the role of the Legislature. Therefore, judicial construction is constitutionally permissible, but judicial legislation is not. Insertion of the element of malice into [Neb. Rev. Stat.] § 28-304 [ (Reissue 2016) ] was not a judicial construction of the legislative intent of the statute, but amounted to judicial legislation, which violated article II, § 1, of the Nebraska Constitution.38
Although Burlison addressed substantive law and we address procedure, the same principle applies to appellate jurisdiction: An appellate court is empowered to construe a statute governing when an appeal may be taken, but it may not engage in judicial legislation by proclaiming an exception contrary to statute. The Richardson exception was not a judicial construction of § 25-1902 ; instead, adoption of the exception amounted to judicial legislation.
Respect for precedent should not prevent us from restoring our adherence to the Nebraska Constitution and sta...
To continue reading
Request your trial
-
Moser v. State
..., 546 U.S. 481, 126 S. Ct. 1252, 163 L. Ed. 2d 1079 (2006).36 See Doe v. Omaha Pub. Sch. Dist. , supra note 8.37 Heckman v. Marchio , 296 Neb. 458, 894 N.W.2d 296 (2017).38 Id.39 Id.40 Id.41 See Doe v. Omaha Pub. Sch. Dist. , supra note 8.42 Britton v. City of Crawford , supra note 22, 282 ......
-
State v. Heather N. (In re Michael N.)
...right of the client. See Richardson v. Griffiths , 251 Neb. 825, 560 N.W.2d 430 (1997), overruled on other grounds, Heckman v. Marchio , 296 Neb. 458, 894 N.W.2d 296 (2017). As we explained, an order disqualifying counsel affects a "peripheral matter" rather than the subject matter of the l......
-
State v. Thalken
...Rev. Stat. § 24-204 (Reissue 2016) ; Nebraska Dept. of Health & Human Servs. v. Struss, 261 Neb. 435, 623 N.W.2d 308 (2001).35 See, e.g., Heckman v . Marchio, 296 Neb. 458, 894 N.W.2d 296 (2017).36 See id.37 Neb. Const. art. V, § 2.38 See Heckman v. Marchio , supra note 35.39 See Neb. Const......
-
Webb v. Neb. Dep't of Health & Human Servs.
...821, 545 N.W.2d 749 (1996).15 Neb. Const. art. V, § 2. Accord Boyd v. Cook , 298 Neb. 819, 906 N.W.2d 31 (2018).16 Heckman v. Marchio , 296 Neb. 458, 894 N.W.2d 296 (2017).17 Id .18 See Big John’s Billiards v. State , 283 Neb. 496, 811 N.W.2d 205 (2012).19 E.D., supra note 13.20 Neb. Rev. S......