Summary
holding that right to appeal is purely statutory and cannot be modified by court
Summary of this case from State v. MeltonOpinion
No. S-16-379
04-21-2017
Bryan R. HECKMAN, appellee, v. Regina M. MARCHIO, appellant.
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.
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.
Cassel, J.
INTRODUCTION
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 decision ]" to allow for an immediate appeal from a nonfinal order such as this. 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.
See Maddocks v. Ricker, 403 Mass. 592, 531 N.E.2d 583 (1988).
Richardson v. Griffiths, 251 Neb. 825, 831, 560 N.W.2d 430, 435 (1997).
BACKGROUND
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.
See Neb. Rev. Stat. § 24-1106(3) (Reissue 2016).
ASSIGNMENTS OF ERROR
Marchio assigns seven errors, all of which relate to the district court's disqualification of her privately retained legal counsel.
STANDARD OF REVIEW
A jurisdictional issue that does not involve a factual dispute presents a question of law, which an appellate court independently decides.
Addy v. Lopez, 295 Neb. 635, 890 N.W.2d 490 (2017).
ANALYSIS
Marchio asserts that the order of disqualification is appealable under Richardson v. Griffiths. 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 statute and improperly expanded our own jurisdiction.
Richardson v. Griffiths , supra note 2.
See Neb. Rev. Stat. § 25-1902 (Reissue 2016).
FOUNDATION AND CONSTITUTIONAL UNDERPINNINGS FOR APPELLATE 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. This fundamental principle was not new. In 1873, this court stated that "no appeal exists except by authority of statute" and that "appeals do not exist by any right other than by statute." Over and over, we have iterated that the right of appeal in Nebraska is "purely statutory." In other words, unless a statute provides for an appeal, such right does not exist. The right to appeal did not exist at common law.
See Huskey v. Huskey, 289 Neb. 439, 855 N.W.2d 377 (2014).
The Sioux City and Pacific R. R. v. Washington County, etc., 3 Neb. 30, 34 (1873).
Irwin, et ux. v. Calhoun & Croxton, 3 Neb. 453, 454 (1873).
See Huskey v. Huskey , supra note 7, 289 Neb. at 448, 855 N.W.2d at 385. Accord, Languis v. DeBoer, 181 Neb. 32, 146 N.W.2d 750 (1966) ; Elliott v. City of Auburn, 172 Neb. 1, 108 N.W.2d 328 (1961) ; McDonald v. Rentfrow, 171 Neb. 479, 106 N.W.2d 682 (1960) ; Watkins v. Dodson, 159 Neb. 745, 68 N.W.2d 508 (1955) ; From v. Sutton, 156 Neb. 411, 56 N.W.2d 441 (1953) ; Mid-Continent Airlines, Inc. v. State Board, 154 Neb. 371, 48 N.W.2d 81 (1951) ; Loup River Public Power District v. Platte County, 135 Neb. 21, 280 N.W. 430 (1938) ; Roberts v. City of Mitchell, 131 Neb. 672, 269 N.W. 515 (1936) ; McCague Investment Co. v. Metropolitan Water District, 101 Neb. 820, 165 N.W. 158 (1917) ; Whedon v. Lancaster County, 76 Neb. 761, 107 N.W. 1092 (1906) ; Hacker v. Howe, 72 Neb. 385, 101 N.W. 255 (1904) ; Clarke v. Nebraska Nat. Bank, 49 Neb. 800, 69 N.W. 104 (1896) ; Chicago, B. & Q. R. Co. v. Headrick, 49 Neb. 286, 68 N.W. 489 (1896).
See From v. Sutton , supra note 10.
See, id. ; Hanika v. State, 87 Neb. 845, 128 N.W. 526 (1910) ; Wilcox v. Saunders, 4 Neb. 569 (1876).
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. The Nebraska Constitution expressly provides for "such appellate jurisdiction as may be provided by law." The Nebraska Constitution also divides the powers of the government into three distinct departments—legislative, executive, and judicial. Nebraska's separation of powers clause prohibits the three governmental branches from exercising the duties and prerogatives of another branch. These constitutional provisions prevent courts from inventing rules to enlarge appellate jurisdiction.
Huskey v. Huskey , supra note 7.
Neb. Const. art. V, § 2.
See Neb. Const. art. II, § 1.
Id.
Adams v. State, 293 Neb. 612, 879 N.W.2d 18 (2016).
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. 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. 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.
See Wright v. Omaha Pub. Sch. Dist., 280 Neb. 941, 791 N.W.2d 760 (2010).
See Fitzgerald v. Fitzgerald, 286 Neb. 96, 835 N.W.2d 44 (2013).
See Morrill County v. Bliss, 125 Neb. 97, 249 N.W. 98 (1933).
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. And we have recited this principle or its equivalent so many times as not to require further citation.
See Nichols v. Nichols, 288 Neb. 339, 847 N.W.2d 307 (2014).
RICHARDSON EXCEPTION
In 1997, this court decided Richardson v. Griffiths . 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.
Richardson v. Griffiths , supra note 2.
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.’ " 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." We have used our decision in Richardson or its progeny on eight occasions (one implicitly) to provide for jurisdiction. On one occasion, we allowed an appeal from an order disqualifying an attorney under a concept referred to as the "collateral order doctrine." 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. Our Richardson decision did not mention the U.S. Supreme Court's decision.
Id. at 831, 560 N.W.2d at 435, quoting Maddocks v. Ricker , supra note 1.
See Trainum v. Sutherland Assocs., 263 Neb. 778, 783, 642 N.W.2d 816, 820 (2002). Accord, Mutual Group U.S. v. Higgins, 259 Neb. 616, 611 N.W.2d 404 (2000) ; Hawkes v. Lewis, 255 Neb. 447, 586 N.W.2d 430 (1998). See, also, State v. Dunlap, 271 Neb. 314, 710 N.W.2d 873 (2006) ; State of Florida v. Countrywide Truck Ins. Agency, 270 Neb. 454, 703 N.W.2d 905 (2005) ; Pennfield Oil Co. v. Winstrom, 267 Neb. 288, 673 N.W.2d 558 (2004).
See, Beller v. Crow, 274 Neb. 603, 742 N.W.2d 230 (2007) ; State v. Kawa, 270 Neb. 992, 708 N.W.2d 662 (2006) ; State v. Ehlers, 262 Neb. 247, 631 N.W.2d 471 (2001) ; Mutual Group U.S. v. Higgins , supra note 24; Detter v. Schreiber, 259 Neb. 381, 610 N.W.2d 13 (2000) ; Hawkes v. Lewis , supra note 24; Bechtold v. Gomez, 254 Neb. 282, 576 N.W.2d 185 (1998) ; Richardson v. Griffiths , supra note 2.
See Jacob North Printing Co. v. Mosley, 279 Neb. 585, 779 N.W.2d 596 (2010).
See Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985).
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.
John P. Lenich, What's So Special About Special Proceedings? Making Sense of Nebraska's Final Order Statute, 80 Neb. L. Rev. 239, 308 (2001).
John P. Lenich, What's So Special About Special Proceedings? Making Sense of Nebraska's Final Order Statute, 80 Neb. L. Rev. 239, 308 (2001).
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, courts have no power to allow an appeal when it is not authorized by statute.The commentator, 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." And then, recognizing that we had "no statutory basis for recognizing another type of final order" and that our interpretation was "neither supported by the language nor the history of the statute," he attempted to cover our mistake in the rubric of legislative acquiescence. That gave us too much credit.
See Fitzgerald v. Fitzgerald , supra note 19.
See Lenich, supra note 28.
Id. at 307.
Id. at 308.
Id.
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. 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." Nonetheless, without citing any statute, we baldly proclaimed an exception.
Parnell v. Good Samaritan Health Sys., 260 Neb. 877, 620 N.W.2d 354 (2000).
Richardson v. Griffiths , supra note 2, 251 Neb. at 830, 560 N.W.2d at 434.
Moreover, in analogous circumstances, judges have soundly rejected legislative acquiescence. In State v. Burlison , 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. Here, as we have already explained, appellate jurisdiction in Nebraska is purely statutory. The concurrence stated:
State v. Burlison, 255 Neb. 190, 583 N.W.2d 31 (1998) (Wright, J., concurring; Connolly and Gerrard, JJ., join).
State v. Burlison , supra note 36.
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.
Id. at 201-02, 583 N.W.2d at 39 (Wright, J., concurring; Connolly and Gerrard, JJ., join).
Id. at 201-02, 583 N.W.2d at 39 (Wright, J., concurring; Connolly and Gerrard, JJ., join).
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 statutes. We have said that while the doctrine of stare decisis is entitled to great weight, it is grounded in the public policy that the law should be stable, fostering both equality and predictability of treatment. And we have recognized that overruling precedent is justified when the purpose is to eliminate inconsistency. Thus, we said that remaining true to an intrinsically sounder doctrine better serves the values of stare decisis than following a more recently decided case inconsistent with the decisions that came before it. The U.S. Supreme Court has identified a number of relevant factors in deciding whether to adhere to the principle of stare decisis, including workability, the antiquity of the precedent, whether the decision was well reasoned, whether experience has revealed the precedent's shortcomings, and the reliance interests at stake. The Court explained that "reliance interests are important considerations in property and contract cases, where parties may have acted in conformance with existing legal rules in order to conduct transactions." But we see no history showing that people have structured their transactions or behavior in reliance on the Richardson exception. Here, fundamental principles compel corrective action. Having recognized, however belatedly, that the Richardson exception represents judicial legislation proscribed by the Nebraska Constitution, we cannot allow the doctrine of stare decisis to perpetuate our mistake.
State v. Hausmann, 277 Neb. 819, 765 N.W.2d 219 (2009).
See id.
Id.
See Citizens United v. Federal Election Comm'n, 558 U.S. 310, 130 S.Ct. 876, 175 L.Ed.2d 753 (2010).
Id., 558 U.S. at 365, 558 U.S. 310.
We therefore overrule our decision in Richardson v. Griffiths and cases relying upon it to the extent that they authorized appellate jurisdiction in the absence of a judgment or final order and without specific statutory authorization.
Richardson v. Griffiths , supra note 2.
See, Jacob North Printing Co. v. Mosley , supra note 26 (collateral order doctrine); Beller v. Crow , supra note 25; State v. Kawa , supra note 25; State v. Ehlers , supra note 25; Mutual Group U.S. v. Higgins , supra note 24; Detter v. Schreiber , supra note 25; Hawkes v. Lewis , supra note 24; Bechtold v. Gomez , supra note 25. See, also, McKenzie v. City of Omaha, 12 Neb.App. 109, 668 N.W.2d 264 (2003).
Although policy reasons were proffered in support of such an exception, these arguments must be addressed to the Legislature. We acknowledge that two states have specifically authorized an interlocutory appeal from an order disqualifying an attorney for any party. But the key policy question is whether a disqualification order can effectively be reviewed following a judgment on the merits. The U.S. Supreme Court decisively concluded that effective review was possible. All that is required is a "willing[ness] when necessary to set aside verdicts—even when they result from lengthy civil proceedings." We rely upon the Legislature, exercising its proper constitutional authority, to determine whether the Richardson exception should be placed in our statutory law.
See Ark. R. App. P.—Civ. 2(a)(8) (2014), and Ill. S. Ct. R. 306(a)(7) (eff. Mar. 8, 2016).
See Richardson-Merrell Inc. v. Koller , supra note 27.
Id., 472 U.S. at 442, 105 S.Ct. 2757 (Brennan, J., concurring).
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CONCLUSION
Because this appeal was not taken from a final order and because we overrule our line of decisions purporting to authorize an interlocutory appeal, we dismiss the appeal.
APPEAL DISMISSED .