concurring.
Although I agree with the judgment reached by the majority, I write separately because experience has taught that the use of soft and ambiguous language more often than not leads to confusion and the need to answer even more difficult questions later on.
The practice of a judge suggesting to one party that a particular pleading will be entertained favorably must not only “be discouraged,” it is to be condemned and prohibited. As the majority opinion itself acknowledges, a judge must not only be impartial but must appear to be so. Pitt v. Checker Cab Co., 217 Neb. 600, 350 N.W.2d 507 (1984) (actions of trial judge should never be such as to warrant any assertion that judge assisted party).
It is worth remembering that Canon 2 of the Nebraska Code of Judicial Conduct requires that a judge avoid impropriety and the appearance of impropriety in all activities and that Canon 3 thereof requires that a judge perform judicial duties impartially. How either the reality or the appearance of impartiality can be achieved when a judge joins forces with a party by telling it how to try the case so as to achieve a favorable ruling completely escapes me.
As observed in Franks v. Franks, 181 Neb. 710, 715-16, 150 N.W.2d 252, 256 (1967):
“A proper administration of the law demands not only that judges refrain from actual bias but also that they avoid all appearance of unfairness. All doubt or suspicion of bias should be jealously guarded against and, if possible, . completely eliminated; and, when the circumstances and conditions surrounding a litigation are of such nature that they might cast doubt on the impartiality of any judgment the judge may pronounce, the judge should certify his disqualification. Thus disqualification of a particular judge for bias or prejudice, although not technically required by the circumstances, is sometimes proper in order to dispel any thought or suspicion that the litigánts may not be receiving impartial justice . . . . ”
*436“[T]he right to a fair trial is the ‘foundation stone upon which our present judicial system rests,’ and . . . there is an indispensable right to trial presided over by a judge who is ‘impartial and free of bias or prejudice.’ ” State v. Brown, 124 Ariz. 97, 99, 602 P.2d 478, 480 (1979). Accordingly, a “judge must be careful never to act in the dual capacity of judge and advocate.” Id. at 100, 602 P.2d at 481.
Once facts have been set forth that create a reasonable inference that a judge has a particular bent of mind which will prevent the judge from dealing fairly with the party seeking recusal, it is incumbent upon the trial judge to recuse himself or herself. Wright v. District Court, 731 P.2d 661 (Colo. 1987).