- Associated Press - Friday, May 1, 2015

OMAHA, Neb. (AP) - A Nebraska farmer who dug around for information on the landowning business of the judge hearing his lawsuit had no right to then expect the judge to excuse himself from the case, the Nebraska Supreme Court said Friday.

The decision came in the case of Thomas Kalkowski, who sued the Nebraska National Trails Museum Foundation over an irrigation issue.

Kalkowski donated nearly 160 acres of land to the foundation in 2003, agreeing to pay the annual taxes on the property and $500 per year in exchange for the right to farm the land.

Shortly after donating the land and entering into the lease agreement, Kalkowski made upgrades to the land that nearly doubled the number of acres that could be irrigated under local natural resource district rules.

Kalkowski hoped to transfer those allowable irrigation acres to other nearby land he owned, and the foundation initially agreed to allow him to do so. But when the foundation’s board balked, Kalkowski sued, claiming he was entitled to the irrigation rights because he had performed all the work for them. Allowing the foundation to keep the irrigation rights unjustly enriched the organization, his lawsuit said.

While the lawsuit was pending before Keith County District Judge Donald Rowlands, Kalkowski contacted the general manager of a nearby natural resources district and asked about the water rights on property owned by the judge. The manager, believing Kalkowski wanted to buy the property, contacted the judge, who indicated he did not want to sell.

Kalkowski then sought to have the judge removed from the case, saying Rowlands should not have talked to the official, and that the judge’s leasing of land to a farmer was similar enough to Kalkowski’s situation as to create a conflict of interest.

The judge denied Kalkowski’s request, and Kalkowski appealed. On Friday, the Nebraska Supreme Court upheld the judge’s decision, saying that the fact that judge owns and leases irrigated farmland in another natural resources district would not lead a reasonable person to question his impartiality.

“In this case, the only reason the judge had any contact with the general manager of the natural resources district was due to Kalkowski’s own actions,” Chief Justice Michael Heavican wrote. “Kalkowski could have avoided the entire situation by simply refraining from contacting the other natural resources district concerning the judge’s property.”

The high court also rejected Kalkowski’s argument that he was entitled to the irrigation rights, saying Kalkowski’s sole reason in making the improvements was to benefit his farming operation and that, while the foundation benefited from the improvements, it did nothing to encourage Kalkowski to make them.

Neither Kalkowski’s attorney, Randy Fair, nor Judge Rowlands immediately returned messages left Friday seeking comment.

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