In re Complaint Against Florom

VI. CONCLUSION
The decision of TERC is affirmed.
A ffirmed.
in re C omplAint AgAinst K ent e. florom ,
C ounty C ourt Judge of the 11th JudiCiAl
distriCt of the stAte of nebrAsKA.
stAte of nebrAsKA ex rel . C ommission on
JudiCiAl Q uAlifiCAtions , relAtor , v.
K ent e. florom , respondent.
784 N.W.2d 897
Filed July 9, 2010. 	No. S-35-090001.
1. Judges: Disciplinary Proceedings: Appeal and Error. In a review of the find-
ings and recommendations of the Commission on Judicial Qualifications, the
Nebraska Supreme Court shall review the record de novo and file a written opin-
ion and judgment directing action as it deems just and proper, and may reject or
modify, in whole or in part, the recommendation of the commission.
2. ____: ____: ____. In a review of the findings and recommendations of the
Commission on Judicial Qualifications, upon its independent inquiry, the Nebraska
Supreme Court must determine whether the charges against the respondent are
supported by clear and convincing evidence and which, if any, canons of the
Nebraska Code of Judicial Conduct and subsections of Neb. Rev. Stat. § 24-722
(Reissue 2008) have been violated.
3. ____: ____: ____. If violations of the Nebraska Code of Judicial Conduct and
subsections of Neb. Rev. Stat. § 24-722 (Reissue 2008) are found, the Nebraska
Supreme Court must then determine what discipline, if any, is appropriate under
the circumstances.
4. Judges: Disciplinary Proceedings. Conduct that clearly violates the Nebraska
Code of Judicial Conduct constitutes, at a minimum, a violation of Neb. Rev.
Stat. § 24-722(6) (Reissue 2008).
5. ____: ____. While the disciplinary recommendation of the Commission on
Judicial Qualifications is entitled to be given weight, it is incumbent upon the
Nebraska Supreme Court to independently fashion an appropriate penalty.
6. ____: ____. In a judicial discipline proceeding, the Nebraska Supreme Court
weighs the nature of the offenses with the purpose of the sanctions and examines
the totality of the evidence to determine the proper discipline.
7. ____: ____. In a judicial discipline proceeding, sanctions should be imposed
where necessary to safeguard the bench from those who are unfit.
8. ____: ____. The Nebraska Supreme Court disciplines a judge not for purposes of
vengeance or retribution, but to instruct the public and all judges of the impor-
tance of the function performed by judges in a free society.
192 	280 NEbRaSka REpORTS
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:46 AM CST

9. ____: ____. The goals of disciplining a judge in response to inappropriate con-
duct are to preserve the integrity of the judicial system as a whole and to provide
reassurance that judicial misconduct will not be tolerated.
10. ____: ____. The discipline imposed on a judge must be designed to announce
publicly the Nebraska Supreme Court’s recognition that there has been mis-
conduct. and appropriate discipline should discourage others from engaging in
similar conduct in the future.
11. ____: ____. a suspension may be used to impress the severity of misbehavior
upon those subject to discipline, but the primary motivation for proper conduct
by judges must always be respect for the law, not fear of punishment.
Original action. Judgment of removal.
anne E. Winner, of keating, O’Gara, Nedved & peter, p.C.,
L.L.O., for relator.
Susan L. kirchmann for respondent.
Wright, C onnolly, gerrArd, stephAn, mCC ormACK, and
miller-lermAn, JJ., and irWin, Judge.
per C uriAm.
This is a judicial discipline case brought by the relator, the
Nebraska Commission on Judicial Qualifications (Commission),
against the respondent, kent E. Florom, who has been a county
judge in the 11th Judicial District of Nebraska since august
23, 1991. The facts of this case are largely undisputed, and the
respondent admits his conduct was improper. Therefore, the
primary issue presented in this proceeding is the discipline to
be imposed. because the respondent’s course of conduct was
clearly, repeatedly contrary to the rules of judicial conduct, and
because suspension from office would be insufficient to correct
the damage wrought by the respondent’s behavior, we remove
the respondent from his office as a judge.
baCkGROUND
K rAmer CAse
On February 9, 2008, Sharon kramer, a North platte school
teacher and softball coach, asked the respondent to be an assist-
ant coach for the youth softball team on which the respondent’s
daughter played. He accepted.
a few weeks later, the respondent heard a rumor that
kramer was about to be arrested. The respondent approached
IN RE COmpLaINT aGaINST FLOROm 	193
Cite as 280 Neb. 192

the county attorney, Rebecca Harling, to discuss the case.
Harling explained that the charge involved theft from the North
platte High School booster club. The respondent, assuming
that it was some sort of misdemeanor theft, asked Harling
whether, if kramer paid restitution, that would satisfy the
victim. 	Conflicting 	evidence 	suggests 	that 	the 	respondent
may also have offered to persuade kramer to pay restitution.
Harling replied that kramer’s recordkeeping was so poor that
the amount of restitution was unknown.
The respondent later explained that he had spoken to Harling
because he wanted to find out about the allegations against
kramer and to find out whether his daughter was in any jeop-
ardy. The respondent also claimed he had been aware of the
amount of money that was involved in the softball team and
had hoped it was not connected to the alleged crime. The
respondent said he had not wanted his daughter’s team to be
hurt by association with kramer’s arrest. Harling, however,
said that none of those concerns had been expressed to her at
the time she and the respondent spoke.
On another occasion, kramer’s attorney, Russ Jones, and a
different prosecutor were in the respondent’s office on other
business. They were discussing kramer’s case between them-
selves. The respondent interjected and asked whether jail time
was being sought for kramer. The respondent also asked the
attorneys whether the case would be dismissed if restitution
was paid, and said he would pay the restitution. The respondent
told Jones to tell Harling that the respondent would put her
on “‘double secret probation.’” Jones believed the respondent
was joking, but conveyed the message. The respondent later
admitted there had been “no good reason” for him to have
interrupted the attorneys’ conversation, but also said he had just
been joking.
kramer was eventually charged with misdemeanor theft,
pursuant to a plea agreement. The respondent recused himself
from any official participation in the case. The matter was set
for a plea and sentencing on June 20, 2008. That day, Jones
told the respondent that the charges had become public and
that there was media interest. The respondent suggested to
Jones that kramer could plead early, or plead by waiver, in
194 	280 NEbRaSka REpORTS

order to avoid an appearance in open court. Harling rejected
those options.
Later, a few weeks after kramer had been sentenced, the
respondent asked Harling about subpoenas that had been issued
to the school booster club from which kramer had stolen. The
respondent suggested he had heard about the subpoenas from
law enforcement. Harling realized that the respondent was prob-
ably referring to subpoenas issued in connection with the revo-
cation of kramer’s teaching license by the State Department of
Education and that the respondent had apparently discussed the
case with a police department investigator.
On July 7, 2008, the respondent had a telephone conversa-
tion with Jim paloucek, who was a member of the North platte
school board and a lawyer practicing in Lincoln County, located
within the 11th Judicial District. The respondent had heard a
rumor that paloucek and another member of the board were
planning to take some sort of official action against kramer
as a result of her conviction. The respondent asked Jones, a
close friend of paloucek, to pass a message to paloucek that
if paloucek took action against kramer, paloucek would be
“‘making an enemy’” he did not want to make. The respond-
ent later admitted that he was the “enemy” paloucek would
be making and that he had not been joking. The respondent
explained that he had been angry.
after hearing about the respondent’s threat, paloucek and
his law partners placed a telephone call to the respondent and
asked him to confirm that he made the threat. The respond-
ent confirmed his threat, despite having been counseled by
another judge that his actions could be construed as trying to
influence a public official. paloucek described the respondent
as “cool,” calm, and “matter of fact.” The respondent said
paloucek would be making a mistake by taking action against
kramer. paloucek and one of his partners also reported that
the respondent told paloucek that “favors extended in the past
would not be extended in the future,” although the respondent
did not remember making that remark. paloucek expressed a
concern that the respondent was using his judicial office to
try to influence paloucek’s actions as an elected official. The
respondent replied that paloucek should ask for recusal when
IN RE COmpLaINT aGaINST FLOROm 	195
Cite as 280 Neb. 192

appearing in front of him. paloucek and his law partners have
done so since.
On July 15, 2008, the respondent wrote and signed a letter,
on his judicial letterhead, that was intended to help kramer
keep her job with the North platte school district. The letter
stated, in relevant part:
I have always felt that Sharon kramer was a person of
integrity. No one was more surprised than I at her breach
of public trust. as a judge, I see thousands of cases each
year where people have violated the law. Never have
I seen anyone step forward with the remorse and self-
responsibility that I witnessed from Sharon kramer.
The letter also commended kramer’s contrition and accept-
ance of responsibility, and recommended that kramer remain
employed by the school district.
The respondent later explained that the July 15, 2008, letter
had mistakenly been on judicial letterhead because his word
processor defaulted to his judicial stationery. The respondent
said that the July 15 letter had been intended to be confidential
to kramer, her attorney, and her union representative. but on
November 13, the respondent wrote another letter on behalf
of kramer, this time to the Nebraska professional practices
Commission, regarding kramer’s license to teach. That letter
was on a personal letterhead, but was substantially the same,
including the references to the respondent’s judicial office.
Juvenile CAse
In October 2007, L.W., a juvenile, came under the jurisdic-
tion of the Lincoln County Court sitting as a juvenile court,
and the respondent placed her on probation. L.W. was pros-
ecuted by Harling, and L.W.’s assigned caseworker was megan
Luebbe, of the Nebraska Department of Health and Human
Services. L.W. was also a player on the softball team that the
respondent later agreed to coach. In march 2008, after the
respondent agreed to coach L.W.’s softball team, Harling filed
a motion to revoke L.W.’s probation. The respondent recused
himself from the case. Nonetheless, after Luebbe appeared in
the respondent’s court on another matter, the respondent called
Luebbe into his chambers and told her he was speaking to
196 	280 NEbRaSka REpORTS

her “as a softball coach and not as a judge.” The respondent
explained his interest in L.W.’s case, talked about her talent as
a player, and asked about her placement recommendations.
Later, in order to facilitate L.W.’s participation with the
team, the respondent and his wife served as her chaperones,
which generally meant that after L.W.’s father dropped her
off at tournaments, the respondent and his wife watched her.
The respondent had chaperoned other players in the past,
although none had been involved in the juvenile court system.
Ultimately, L.W. was allowed to participate in softball tourna-
ments she would not have been able to attend had the respond-
ent not agreed to chaperone her.
and while L.W.’s juvenile case was pending, the respondent
spoke to Harling several times about the case. On one occa-
sion, the respondent asked Harling to “‘take care of [his] short-
stop,’” although the respondent later said he had just been teas-
ing Harling. On other occasions, the respondent asked Harling
about L.W.’s whereabouts and whether she would be permitted
to play softball and travel with the team. The respondent also
had several contacts with Luebbe regarding L.W.’s disposi-
tion. and despite the fact that the county judge handling the
case advised the respondent that he would not discuss the case
with the respondent, the respondent asked the assigned judge
one morning, over coffee, whether L.W.’s case had proceeded
to disposition.
disCiplinAry proCeedings
The respondent’s conduct was reported to the Commission,
which initiated an investigation. The Commission filed a com-
plaint charging the respondent with violating Canons 1, 2,
3, and 4 of the Nebraska Code of Judicial Conduct (Code).1
This court appointed a master to conduct a hearing.2 The
Commission found clear and convincing evidence that the
respondent had violated Canons 1, 2, 3, and 4, and addition-
ally found clear and convincing evidence that the respondent’s
conduct was prejudicial to the administration of justice and
1 See Neb. Code of Judicial Conduct §§ 5-201 to 5-204.
2 See Neb. Ct. R. § 5-107.
IN RE COmpLaINT aGaINST FLOROm 	197
Cite as 280 Neb. 192

had brought the judicial office into disrepute. The Commission
recommended that the respondent be removed from his judicial
office. The respondent filed a petition in this court objecting
to certain conclusions reached by the Commission and to the
Commission’s disciplinary recommendation.
aSSIGNmENTS OF ERROR
The respondent argues that removal from the bench is arbi-
trary and unwarranted under the circumstances and that a sanc-
tion short of removal is appropriate.
STaNDaRD OF REVIEW
[1-3] In a review of the findings and recommendations of the
Commission, this court shall review the record de novo and file
a written opinion and judgment directing action as it deems just
and proper, and may reject or modify, in whole or in part, the
recommendation of the Commission.3 Upon our independent
inquiry, we must determine whether the charges against the
respondent are supported by clear and convincing evidence and
which, if any, canons of the Code and subsections of Neb. Rev.
Stat. § 24-722 (Reissue 2008) have been violated.4 If violations
are found, we must then determine what discipline, if any, is
appropriate under the circumstances.5
aNaLySIS
C ode of JudiCiAl C onduCt provisions
[4] Section 24-722(6) provides that a judge of any court
of this state may be reprimanded, disciplined, censured, sus-
pended without pay for a definite period of time not to exceed
6 months, or removed from office for conduct prejudicial to
the administration of justice that brings the judicial office into
disrepute. Conduct that clearly violates the Code constitutes, at
a minimum, a violation of this section.6
3 In re Complaint Against White, 264 Neb. 740, 651 N.W.2d 551 (2002).
4 Id.
5 Id.
6 See In re Complaint Against Marcuzzo, 278 Neb. 331, 770 N.W.2d 591
(2009).
198 	280 NEbRaSka REpORTS

as relevant, the Code provides that “[a]n independent and
honorable judiciary is indispensable to justice in our soci-
ety. a judge should participate in establishing, maintaining,
and enforcing high standards of conduct and shall personally
observe those standards so that the integrity and independence
of the judiciary will be preserved.”7 The Code also provides
that “[a] judge shall respect and comply with the law and shall
act at all times in a manner that promotes public confidence in
the integrity and impartiality of the judiciary.”8 To that end, the
Code states:
a judge shall not allow family, social, political, or other
relationships to influence the judge’s judicial conduct or
judgment. a judge shall not lend the prestige of judicial
office to advance the private interests of the judge or oth-
ers; nor shall a judge convey or permit others to convey
the impression that they are in a special position to influ-
ence the judge. a judge shall not testify voluntarily as a
character witness.9
The judicial duties of a judge take precedence over all the
judge’s other activities.10 a judge shall hear and decide matters
assigned to the judge except those in which disqualification is
required.11 and a judge shall conduct all of the judge’s extra-
judicial activities so that they do not cast reasonable doubt
on the judge’s capacity to act impartially as a judge, demean
the judicial office, or interfere with the proper performance of
judicial duties.12
The Commission found that the respondent had violated the
foregoing provisions of the Code and § 24-722(6). The respond-
ent does not take issue with that conclusion, and on our de
novo review, we agree. We find clear and convincing evidence,
7 § 5-201.
8 § 5-202(a).
9 § 5-202(b).
10 § 5-203(a).
11 § 5-203(b)(1).
12 § 5-204(a).
IN RE COmpLaINT aGaINST FLOROm 	199
Cite as 280 Neb. 192

as summarized above, that the respondent violated Canons 1, 2,
3, and 4 of the Code and § 24-722(6).
A ppropriAte disCipline
[5] The remaining issue is the appropriate discipline to
be imposed. While the disciplinary recommendation of the
Commission is entitled to be given weight, it is incumbent upon
this court to independently fashion an appropriate penalty.13
[6-10] In a judicial discipline proceeding, we weigh the
nature of the offenses with the purpose of the sanctions and
examine the totality of the evidence to determine the proper
discipline.14 Sanctions should be imposed where necessary to
safeguard the bench from those who are unfit.15 This court
disciplines a judge not for purposes of vengeance or retribu-
tion, but to instruct the public and all judges of the importance
of the function performed by judges in a free society.16 and it
is one of the more important and difficult tasks we undertake.
The goals of disciplining a judge in response to inappropriate
conduct are to preserve the integrity of the judicial system as
a whole and to provide reassurance that judicial misconduct
will not be tolerated.17 The discipline imposed on a judge
must be designed to announce publicly this court’s recogni-
tion that there has been misconduct. and appropriate discipline
should discourage others from engaging in similar conduct in
the future.18
The respondent argues that in cases presenting comparable
circumstances, we have imposed sanctions of suspension, not
removal from office. For example, most recently, in In re
Complaint Against Marcuzzo (Marcuzzo),19 a county judge’s
nephew was charged with a misdemeanor and reached a plea
13 In re Complaint Against White, supra note 3.
14 In re Complaint Against Krepela, 262 Neb. 85, 628 N.W.2d 262 (2001).
15 Id.
16 In re Complaint Against White, supra note 3.
17 In re Complaint Against Marcuzzo, supra note 6.
18 See In re Complaint Against White, supra note 3.
19 See Marcuzzo, supra note 6.
200 	280 NEbRaSka REpORTS

agreement that would have imposed a short jail sentence. but
the judge’s nephew failed to appear in court, so an arrest war-
rant issued and the plea offer was revoked. Judge marcuzzo
asked the prosecutor to keep the plea offer open and called
his nephew’s attorney, arranging a meeting between Judge
marcuzzo, his nephew, and the attorney. Judge marcuzzo told
them that he had arranged for a different county judge—not the
judge assigned to the case originally—to accept his nephew’s
plea. That judge took the nephew’s plea and sentenced him to
probation. That incident, along with two instances of intemper-
ate behavior, resulted in a 120-day suspension.20
The respondent also relies upon In re Complaint Against
White (White),21 in which a county judge, who was angered
when one of her rulings was reversed on appeal to the district
court, tried to secure further review of the ruling. Specifically,
Judge White sought to assist the prosecutor in preparing an
appeal. and when the prosecutor decided not to appeal, Judge
White enlisted a friend on the district court bench to hear a
petition to appoint a special prosecutor to appeal instead. This
conduct resulted in a 120-day suspension.22
and in In re Complaint Against Kneifl (Kneifl),23 a district
court judge who was arrested for driving under the influence
cursed at a police officer and threatened other officers with
reprisals, saying that they “‘better never be’ in his court and
that if they ever came before him in his court, they would ‘be
sorry.’” In another incident, the judge told a county attorney’s
partner that an acquaintance of the judge had been charged
with driving under the influence and asked the partner or
county attorney to see what could be done for the acquaintance.
We imposed a 3-month suspension, along with alcohol evalua-
tion and any recommended alcohol treatment.24
20 See id.
21 See White, supra note 3.
22 See id.
23 In re Complaint Against Kneifl, 217 Neb. 472, 476, 351 N.W.2d 693, 696
(1984).
24 See id.
IN RE COmpLaINT aGaINST FLOROm 	201
Cite as 280 Neb. 192

On the other hand, in In re Complaint Against Kelly,25 a
judge was removed from office for interfering with a pend-
ing case. In that case, Judge kelly’s son was cited for a traffic
infraction. Judge kelly advised him to plead guilty and pay the
fine. The judge removed the ticket from the court file and told
his son to come back when he had the money to pay the ticket.
but the fine was not paid for over a year, until after the ticket
was found in Judge kelly’s desk drawer by another judge.
In addition, both the sentencing judge and probation officer
reported ex parte contacts with Judge kelly concerning his
son’s compliance with the terms of his probation. Ultimately,
we found that Judge kelly’s conduct warranted removal from
the bench.26
In this case, contrary to the respondent’s argument, we find
that the respondent’s conduct was more egregious than that
which resulted in suspensions in Marcuzzo, White, and Kneifl.
In Marcuzzo, the judge’s interference in his nephew’s case was
an isolated instance that took place over the course of a few
hours. In White, the judge’s conduct was more prolonged, but
was limited to a single case and lasted only a few days. and in
White, while the judge’s conduct was certainly improper, it was
motivated by professional concern over a decision the judge
believed to be incorrect—not a personal bias. by contrast, in
this case, the respondent abused his judicial position to inter-
fere in two different cases, over the course of several months,
for entirely personal reasons.
and in neither Marcuzzo nor White did a judge threaten a
member of the practicing bar with reprisal for acting against
the judge’s interests. Here, the respondent did precisely that.
Not only was it reasonable for paloucek and his partners to
believe that the respondent had threatened to use his judicial
power to disadvantage them and their clients, it was in fact the
only reasonable interpretation of the respondent’s behavior.
In Kneifl, an intoxicated judge tried to intimidate the police
officers who were arresting him. but in this case, neither
25 See In re Complaint Against Kelly, 225 Neb. 583, 407 N.W.2d 182
(1987).
26 See id.
202 	280 NEbRaSka REpORTS

alcoholism nor duress mitigates the respondent’s conduct. The
respondent not only threatened members of the bar with abuse
of judicial power, but repeated his threat, after ample time for
reflection, and after having been dissuaded from doing so by
the good advice of a fellow judge. There is no excuse for the
respondent’s conduct, and it is hard to imagine conduct that,
coming from a judge, could be more damaging to the reputa-
tion of the judiciary.
and while the respondent’s threats to paloucek are certainly
the most troubling part of this record, they are far from the
only cause for concern. The respondent repeatedly made his
personal interest in the outcome of a case known to several law-
yers, who appeared before him regularly and would have good
cause to worry about displeasing him. The respondent’s claim
that he was just “joking” is not an excuse.27 The respondent
invoked his judicial office repeatedly in serving as a character
reference for a convicted criminal, despite the clear statement
in the Code that a “judge shall not lend the prestige of judicial
office to advance the private interests of the judge or others,”28
and the even clearer comment that “judicial letterhead must not
be used for conducting a judge’s personal business.”29 although
“a judge may, based on the judge’s personal knowledge, serve
as a reference or provide a letter of recommendation,” the
respondent’s reference to his judicial experience, when viewed
in the context of other events, does not reflect the “sensitiv[ity]
to possible abuse of the prestige of office” that the Code
unequivocally requires.30
[11] It is difficult to see how suspension would serve the
interests of deterrence when the respondent was cautioned,
repeatedly, about the impropriety of his conduct. To begin with,
his conduct on several instances was unquestionably contrary
to unambiguous provisions of the Code. and he was con-
fronted, at various times, with the implications of his conduct,
27 See In re Complaint Against Jones, 255 Neb. 1, 581 N.W.2d 876 (1998).
28 § 5-202(b).
29 Comment, § 5-202(b).
30 Id.
IN RE COmpLaINT aGaINST FLOROm 	203
Cite as 280 Neb. 192

by paloucek and other attorneys, and even by a fellow judge. a
suspension may be used to impress the severity of misbehavior
upon those subject to discipline, but the primary motivation for
proper conduct by judges must always be respect for the law,
not fear of punishment. In this case, the respondent should have
known that his conduct was unethical. However, he ignored the
Code. Then he was told that his conduct was unethical, more
than once. but he ignored those warnings, and kept doing it
anyway. He demonstrated a disregard for ethical rules that a
suspension cannot overcome.
We recognize that in a judicial discipline proceeding, the
respondent’s general performance as a jurist may be a relevant
factor to consider in determining the appropriate discipline.31
The respondent has served on the bench for nearly 19 years,
and except for the conduct noted here, there is nothing in the
record to suggest that his performance has been unsatisfactory.
but the conduct evidenced here is a course of conduct, not an
isolated incident.32 and there are several lawyers in the 11th
Judicial District whose confidence in the respondent’s fair-
ness as a judge cannot, we believe, be restored. Therefore, we
conclude that removal from office is necessary to preserve the
integrity of the judicial system.
CONCLUSION
as explained above, the respondent’s course of misconduct
demonstrates a lack of regard for the Code that seriously
undermines public confidence in the judiciary. Therefore,
we conclude that removal from office is the only appropri-
ate remedy.
Judgment of removAl .
heAviCAn, C.J., not participating.
31 In re Complaint Against Krepela, supra note 14.
32 See In re Complaint Against Jones, supra note 27.
204 	280 NEbRaSka REpORTS