In re Complaint Against Marcuzzo

conflicts in evidence, pass on credibility of witnesses, evaluate
explanations, or reweigh evidence presented, which are within
a fact finder’s province for disposition. Id. When reviewing a
criminal conviction for sufficiency of the evidence to sustain
the conviction, the relevant question for an appellate court is
whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt.
Id. Applying these standards to the case at bar, we find no error
on the part of the county court or the district court.
CONCLUSION
The judgment of the district court, which affirmed the con-
viction and sentence of the county court, is affirmed.
A ffirmed.
IN re COmpLAINT AgAINST mArCUzzO 	331
Cite as 278 Neb. 331
in re C omplAint AgAinst Jeffrey l. mArCuzzo,
C ounty C ourt Judge of the fourth JudiCiAl
distriCt of the stAte of nebrAskA.
stAte of nebrAskA ex rel . C ommission on JudiCiAl
Q uAlifiCAtions , relAtor , v. Jeffrey l.
mArCuzzo, respondent.
770 N.W.2d 591
Filed August 7, 2009. 	No. S-35-080001.
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. Judges: Disciplinary Proceedings. Upon consent of the respondent in a judicial
discipline proceeding, an order of reprimand, discipline, suspension, retirement,
or removal may be entered by the Nebraska Supreme Court at any stage of
the proceedings.
3. ____: ____. pursuant to Neb. rev. Stat. § 24-722(6) (reissue 2008), a judge of
any court of this state may be reprimanded, disciplined, censured, suspended
without pay for a definite period not to exceed 6 months, or removed from office
for conduct prejudicial to the administration of justice that brings the judicial
office into disrepute.
Nebraska Supreme Court Online Library
www.nebraska.gov/apps-courts-epub/
11/01/2026 04:50 AM CST

4. ____: ____. A clear violation of the Code of Judicial Conduct constitutes, at a
minimum, a violation of Neb. rev. Stat. § 24-722(6) (reissue 2008).
5. ____: ____. 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.
6. ____: ____. The Nebraska Supreme Court is charged with the responsibility to
dispense judicial discipline in a manner that preserves the integrity and indepen-
dence of the judiciary and restores and reaffirms public confidence in the adminis-
tration of justice.
Original action. Judgment of suspension without pay.
Anne e. Winner, of Keating, O’gara, Nedved & peter, p.C.,
L.L.O., for relator.
Clarence e. mock, of Johnson & mock, for respondent.
Wright, C onnolly, gerrArd, stephAn, mCC ormACk, and
miller-lermAn, JJ.
per C uriAm.
BACKgrOUND
This is an original action before the court following a com-
plaint filed on August 1, 2008, by the Commission on Judicial
Qualifications 	(Commission). 	The 	complaint 	charged 	the
respondent, Jeffrey L. marcuzzo, a county judge of the Fourth
Judicial District of Nebraska, with misconduct, in violation of
the Nebraska Code of Judicial Conduct1 (Code); Neb. Const.
art. V, § 30; and Neb. rev. Stat. § 24-722 (reissue 2008).
A hearing on the complaint was held on October 23, 2008,
before Judge James D. Livingston, a district court judge who
was appointed to serve as special master. The special master
concluded that marcuzzo violated provisions of the Code and
that the conduct was prejudicial to the administration of justice
and brought the judicial office into disrepute, as prohibited
by § 24-722(6).
The Commission adopted the findings of the special master
and found by clear and convincing evidence that marcuzzo vio-
lated certain provisions of the Code. The Commission recom-
mended that marcuzzo be suspended from office, without
1 Neb. Code of Judicial Conduct §§ 5-201 to 5-205.
332 	278 NeBrASKA repOrTS

salary, for a period of 3 months. marcuzzo entered a “Consent
to reprimand.” The matter has been submitted to the court
without oral argument. pursuant to Neb. Ct. r. § 5-118, we
have reviewed the record and now file this written opinion and
judgment adopting the recommendation of the Commission.
FACTS
The complaint filed by the Commission alleged that marcuzzo
violated the following canons of the Code:
§ 5-201. Canon 1. A judge shall uphold the integrity
and independence of the judiciary.
(A) An independent and honorable judiciary is indis-
pensable to justice in our society. A judge should par-
ticipate 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. The provisions of this Code
shall be construed and applied to further that objective.
. . . .
§ 5-202. Canon 2. A judge shall avoid impropriety
and the appearance of impropriety in all of the judge’s
activities.
(A) 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.
. . . .
(B) A judge shall not allow family, social, political, or
other relationships to influence the judge’s judicial con-
duct or judgment. A judge shall not lend the prestige of
judicial office to advance the private interests of the judge
or others; nor shall a judge convey or permit others to
convey the impression that they are in a special position
to influence the judge. . . .
. . . .
§ 5-203. Canon 3. A judge shall perform the duties
of judicial office impartially and diligently.
. . . .
(B) Adjudicative responsibilities.
IN re COmpLAINT AgAINST mArCUzzO 	333
Cite as 278 Neb. 331

. . . .
(2) A judge shall be faithful to the law and main-
tain professional competence in it. A judge shall not
be swayed by partisan interests, public clamor, or fear
of criticism.
. . . .
(4) A judge shall be patient, dignified, and courteous
to litigants, jurors, witnesses, lawyers, and others with
whom the judge deals in an official capacity . . . .
. . . .
(7) A judge shall accord to every person who has a
legal interest in a proceeding, or that person’s lawyer,
the right to be heard according to law. A judge shall not
initiate, permit, or consider ex parte communications or
consider other communications made to the judge out-
side the presence of the parties concerning a pending or
impending proceeding . . . .
Three incidents were alleged in the complaint. The special
master made findings of fact for each allegation and found that
the facts were proved by clear and convincing evidence.
The first incident related to charges that marcuzzo improp-
erly involved himself in a criminal case against his nephew.
In July 2006, marcuzzo’s nephew was charged with a mis-
demeanor violation in the Douglas County Court. The matter
was scheduled for trial on July 12 before Judge Lyn White.
prior to that date, the parties had entered into a plea agreement
which would have allowed marcuzzo’s nephew to plead guilty
and serve a short jail sentence.
marcuzzo’s nephew failed to appear in Judge White’s court
on the date scheduled. A warrant was issued for his arrest,
and the plea offer was revoked. The special master found that
later that day, marcuzzo inserted himself into his nephew’s
case by requesting that the prosecutor keep open or reinstate
the plea agreement. That evening, marcuzzo continued his
involvement in the case by telephoning the nephew’s attor-
ney at her home and leaving a message arranging a meeting
the next morning between marcuzzo, his nephew, and his
nephew’s attorney.
334 	278 NeBrASKA repOrTS

The 	special 	master 	found 	that 	the 	attorney 	followed
marcuzzo’s instructions and met with him and the nephew
privately, at which time, marcuzzo notified the nephew and his
attorney that the nephew would be pleading guilty and the case
would be taken care of at 9 a.m. marcuzzo told the nephew and
his attorney that marcuzzo had arranged for Judge Lawrence
Barrett to handle the plea. prior to the nephew’s appearance
before Judge Barrett, marcuzzo was seen having a discussion
with Judge Barrett in a bailiff’s office. Judge Barrett heard the
case, and the nephew pled guilty to the misdemeanor charge.
He was sentenced to probation.
The special master concluded that marcuzzo was in viola-
tion of § 5-201 of the Code in that he willfully disregarded his
duties as a judge by inserting himself into the criminal case
involving his nephew. marcuzzo had ex parte communications
(1) with the prosecutor, in which marcuzzo made a personal
request to keep open the plea agreement; (2) with the nephew’s
attorney, both by telephone after hours and by meeting in per-
son; and (3) with Judge Barrett concerning the handling of the
case. The special master found that marcuzzo’s efforts had a
bearing on the case as far as keeping open the plea agreement,
scheduling the date and time for the case, and arranging which
judge would hear the case.
In addition, the special master found that marcuzzo violated
§ 5-202(A) and (B) by inserting himself into his nephew’s case,
which lent the prestige of his judicial office to advance the
private interest of the nephew and gave others the impression
that special treatment was being given to the nephew due to
marcuzzo’s position as a judge. The special master found that
was a direct affront to public confidence in the integrity and
impartiality of the judiciary.
The special master noted that marcuzzo’s nephew’s case was
originally scheduled to be presented to a judge who had a repu-
tation for stern handling of similar cases, with a plea agree-
ment in which the parties agreed to recommend and accept 10
days in jail. The nephew violated his bail by failing to appear.
marcuzzo’s insertion of himself into the criminal proceeding
resulted in the case’s being scheduled for a new date and time
IN re COmpLAINT AgAINST mArCUzzO 	335
Cite as 278 Neb. 331

with a different judge hearing the case and with marcuzzo’s
nephew receiving a sentence of probation.
According to the special master, the evidence was uncon-
tradicted that the change in the case was directly related to
marcuzzo’s insertion of himself into the case and his conduct-
ing ex parte communications with the prosecutor, defense
counsel, and Judge Barrett, who heard the case. Although there
was no evidence that marcuzzo conferred with Judge Barrett
as to the outcome, it was uncontradicted that marcuzzo spoke
with Judge Barrett to arrange for him to hear the case.
The special master also determined that the ongoing involve-
ment of marcuzzo in his nephew’s case was a violation of
§ 24-722(1) and (6). marcuzzo’s misconduct was willful and
in bad faith, and it rose above a mere error in judgment. The
special master found that marcuzzo wrongfully used the power
of his office intentionally or with gross unconcern for his
conduct and that the actions were solely for the purpose of
giving an advantage to the private interests of another in dero-
gation of the faithful discharge of judicial duties. marcuzzo’s
conduct was prejudicial to the administration of justice and
brought the office of marcuzzo, as a member of the judiciary,
into disrepute.
The second incident involved a preliminary hearing con-
ducted by marcuzzo on October 29, 2007, at which marcuzzo
expressed displeasure concerning how the hearing was sched-
uled. At the end of the hearing, marcuzzo raised the defendant’s
bond from $750,000 to $2.5 million. marcuzzo also had an ex
parte communication with the prosecutor in which marcuzzo
criticized the filing of the charges as being undercharged and
in which marcuzzo used profane terms.
The special master could not find that the bond increase was
in violation of the Code or § 24-722 based on the evidence
presented. He concluded he did not have sufficient background
on the case and the parties involved to determine that the bond
increase was other than a matter of judicial discretion based
on the court’s seeing and hearing the evidence presented.
However, the special master determined that marcuzzo violated
§§ 5-201, 5-202(A), and 5-203(B)(4) and (7) of the Code by
communicating ex parte with the prosecutor.
336 	278 NeBrASKA repOrTS

As to § 5-201 of the Code, the special master found that
marcuzzo compromised the integrity and independence of the
judiciary by holding an ex parte communication with counsel
for one of the parties and expressing his displeasure and opin-
ion as to the charges filed. marcuzzo advocated a position in an
ongoing case in which he knew, or should have known, that the
outcome could be affected by the ex parte communication.
marcuzzo violated § 5-202(A) of the Code by inserting
himself into a case which was still on file with a possibility
of criminal charges being amended. The special master found
that marcuzzo’s ex parte actions compromised the integrity and
impartiality of the judiciary.
The 	special 	master 	found 	that 	marcuzzo 	violated
§ 5-203(B)(4) of the Code by berating a colleague of the
prosecutor with whom he had had an ex parte conversation.
The profane manner in which the conversation was conducted
was a violation of the patience, dignity, and courteousness of
the official office. marcuzzo violated § 5-203(B)(7) of the
Code because his ex parte communication could have affected
the legal proceedings, and marcuzzo knew or should have
known of that possible effect. In addition, the actions violated
§ 24-722(6).
The third incident involved marcuzzo’s leaving a profane
and threatening message on an attorney’s telephone when
marcuzzo believed a case had been improperly scheduled in
his court. The special master found that these actions violated
§§ 5-201 and 5-203(B)(4) of the Code. marcuzzo violated the
standards of conduct necessary to preserve the integrity and
independence of the judiciary and did not act in a patient,
dignified, and courteous manner with the attorney. The actions
also violated § 24-722(6).
The Commission reviewed the entire record before the spe-
cial master. As to the first matter, involvement in marcuzzo’s
nephew’s case, the Commission agreed with the special master
that due to marcuzzo’s involvement, the case was presented to
a different judge at a different time and place than originally
scheduled and that the evidence was uncontradicted that the
change was directly related to marcuzzo’s insertion of himself
into the case and his ex parte communications.
IN re COmpLAINT AgAINST mArCUzzO 	337
Cite as 278 Neb. 331

Concerning the second incident, the preliminary hearing,
the Commission noted that all attorneys involved in the case
believed that the prosecutor followed the correct procedure to
change the date of the hearing. At the beginning of the hear-
ing, marcuzzo expressed displeasure that he was not consulted
before the hearing was rescheduled, and he indicated that
he wanted to speak with the prosecutor. marcuzzo appeared
annoyed throughout the hearing, and at the close of the hear-
ing, he found probable cause to bind the defendant to district
court and raised the defendant’s bond.
Immediately following the hearing, marcuzzo had a private
conversation with the prosecutor in an adjoining room concern-
ing the scheduling of the case and the way the charges were
brought. marcuzzo used expletives several times during the
conversation and explained that the defendant should have been
“‘hammered’” with other felony charges.
Concerning the third incident, the Commission noted that
marcuzzo called the prosecutor with respect to the above-
described events and left a message on the prosecutor’s voice
mail. The message was threatening in tone, and marcuzzo used
profane language. A transcript of the voice mail message was
included in the record. The prosecutor brought the message to
the attention of his supervisors, who directed him to have no
contact with marcuzzo.
The next day, marcuzzo attempted to speak with the pros-
ecutor at the courthouse. When the prosecutor would not speak
with marcuzzo, he ordered the prosecutor to “‘get over here.’”
The prosecutor declined to speak with marcuzzo. Six days
later, marcuzzo apologized to the prosecutor and his supervi-
sors for leaving the message.
The Commission found that in his answer, marcuzzo gener-
ally admitted the allegations in the complaint and offered addi-
tional facts and explanations for his conduct. He acknowledged
that his conduct may have violated the Code. After the special
master filed his report, marcuzzo filed objections to the report,
arguing that his conduct in the matter involving his nephew’s
criminal case was not done willfully or in bad faith. He other-
wise acknowledged that his actions violated the Code and that
disciplinary action was appropriate.
338 	278 NeBrASKA repOrTS

The Commission concurred with and adopted the findings
of the special master with respect to the allegations regard-
ing ex parte contact with a prosecutor and with respect to the
threatening and profane voice mail message. The Commission
also concurred with and adopted the findings with respect to
the allegation that marcuzzo involved himself in his nephew’s
criminal case, but the Commission found that marcuzzo’s
conduct was willful and deliberate, but not necessarily done in
bad faith.
The Commission concluded that there is clear and con-
vincing evidence that marcuzzo’s conduct violated §§ 5-201,
5-202(A), and 5-203(B)(4) and (7) of the Code, as well as
§ 24-722(6). It recommended that marcuzzo be suspended from
office, without salary, for a period of 3 months. On February
17, 2009, marcuzzo agreed to accept the recommendation of
the Commission.
STANDArD OF reVIeW
[1] 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.2
ANALYSIS
[2] Upon consent of the respondent, an order of reprimand,
discipline, suspension, retirement, or removal may be entered
by this court at any stage of the proceedings.3 marcuzzo filed
such a consent and did not file a petition to modify or reject the
recommendation of the Commission.
The factual findings of the Commission have not been chal-
lenged before this court. We have reviewed the record de novo,
and we conclude that the factual determinations set forth in the
2 In re Complaint Against Lindner, 271 Neb. 323, 710 N.W.2d 866 (2006).
See, also, Neb. Const. art. V, § 30(2); Neb. rev. Stat. § 24-723 (reissue
2008); Neb. Ct. r. § 5-118.
3 See Neb. Ct. r. § 5-115(C).
IN re COmpLAINT AgAINST mArCUzzO 	339
Cite as 278 Neb. 331

Commission’s findings and recommendation are well supported
by the record and have been proved by clear and convinc-
ing evidence.
The facts surrounding marcuzzo’s involvement in his neph-
ew’s criminal case show that marcuzzo asked the prosecutor
to leave the plea agreement open until his nephew appeared
in court. marcuzzo left a message on the voice mail of the
nephew’s attorney asking for a meeting with the attorney and
the nephew the next morning. marcuzzo was observed meeting
with the judge who eventually handled the matter. The judge
sentenced the nephew to probation, even though the earlier
plea agreement would have resulted in the nephew’s serving
10 days in jail. The record supports the Commission’s finding
that marcuzzo’s involvement altered the circumstances and
outcome of the case.
The record also supports the Commission’s finding that
marcuzzo had ex parte contact with a prosecutor after a pre-
liminary hearing was rescheduled. marcuzzo had a private
conversation with the prosecutor, during which marcuzzo used
expletives and criticized the prosecutor for not filing additional
charges. marcuzzo later called the prosecutor and left a threat-
ening, profane voice mail. marcuzzo sternly ordered the pros-
ecutor to come talk to marcuzzo. marcuzzo later sent a letter
of apology to the prosecutor.
The Commission concluded that there was clear and con-
vincing evidence that marcuzzo’s conducted violated the Code.
We agree. His actions in all three instances demonstrated a lack
of regard for the integrity and independence of the judiciary.
marcuzzo’s actions were improper. His behavior did not pro-
mote public confidence in the integrity and impartiality of the
judiciary. He allowed family relationships to influence his con-
duct and used the prestige of his judicial office to advance the
private interests of a member of his family. His actions brought
the judicial office into disrepute.
[3,4] We next determine the appropriate sanction. pursuant
to § 24-722(6), a judge of any court of this state may be
reprimanded, disciplined, censured, suspended without pay
for a definite period not to exceed 6 months, or removed
from office for conduct prejudicial to the administration of
340 	278 NeBrASKA repOrTS

justice that brings the judicial office into disrepute.4 A clear
violation of the Code constitutes, at a minimum, a violation
of § 24-722(6).5
[5] This is the first disciplinary action taken against marcuzzo.
However, the matter includes three instances of conduct that
violated the Code. This court has stated:
The goals of disciplining a judge in response to inap-
propriate conduct are to preserve the integrity of the
judicial system as a whole and to provide reassurance
that judicial misconduct will not be tolerated. . . . We
discipline a judge not for purposes of vengeance or retri-
bution, but to instruct the public and all judges, ourselves
included, of the importance of the function performed by
judges in a free society. . . .
The discipline imposed must be designed to announce
publicly our recognition that there has been miscon-
duct. . . . It must be sufficient to deter the respondent
from engaging in such conduct again, and it must dis-
courage others from engaging in similar conduct in the
future. . . . 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.6
[6] By imposing discipline, this court assures the public that
we will neither permit nor condone judicial misconduct. This
court is charged with the “responsibility to dispense judicial
discipline in a manner that preserves the integrity and inde-
pendence of the judiciary and restores and reaffirms public
confidence in the administration of justice.”7 In this case, the
Commission has recommended a suspension without pay for
3 months. We conclude that a 120-day suspension without pay
should be imposed as discipline for this judicial misconduct.
4 In re Complaint Against Lindner, supra note 2. See, also, Neb. Const.
art. V, § 30(1).
5 In re Complaint Against Lindner, supra note 2.
6 In re Complaint Against White, 264 Neb. 740, 757, 651 N.W.2d 551, 566
(2002) (citations omitted).
7 In re Complaint Against Lindner, supra note 2, 271 Neb. at 331, 710
N.W.2d at 872.
IN re COmpLAINT AgAINST mArCUzzO 	341
Cite as 278 Neb. 331

We therefore modify the recommendation of the Commission
accordingly.
CONCLUSION
Judge marcuzzo’s conduct was in violation of the Code. As
discipline, we impose a 120-day suspension from office with-
out pay, effective on the issuance of the mandate in this case.
Judgment of suspension Without pAy.
heAviCAn, C.J., not participating.
342 	278 NeBrASKA repOrTS