Court Business
| Publication year | 2009 |
| Pages | 127 |
2009, October, Pg. 127. Court Business
October 2009
Vol. 38, No. 10 [Page 127]
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Colorado Judicial Department
Colorado Supreme Court"
Judicial Ethics Advisory Board Opinions
Colorado Supreme Court
Judicial Ethics Advisory Board
(C.J.E.A.B.) C.J.E.A.B. Advisory Opinion 2009-02
(Finalized and Effective August 14, 2009)
ISSUE PRESENTED
The requesting judge received a death threat from a man over whose dissolution of marriage proceeding she presided. He has been charged with Retaliation Against a Judge, pursuant to section 18-8-615, C.R.S. (2008), and the case is being prosecuted by the local District Attorney's office, which is not seeking the appointment of a special prosecutor. The case has been assigned to one of the judge's colleagues on the bench, but that judge has already recused and asked for a Senior Judge to handle the matter. The defendant is in custody and qualifies for court-appointed counsel. The local Public Defender's office did not wish to handle the case and is arranging for an Alternate Defense Counsel from another jurisdiction to represent the defendant. The judge presides over criminal as well as domestic matters. The judge states that she has no doubt that she can be fair and impartial on the criminal matters before her, but is concerned that either the local Public Defender's office or private defense counsel may ask her to recuse on her criminal cases due to either an alleged conflict or an appearance of impropriety since the judge is a victim in a separate criminal matter being prosecuted by the District Attorney's Office. The individual DA handling the case is not assigned to the judge's division and does not appear before her, but she expresses concern that defense counsel might nevertheless argue that her impartiality might reasonably be questioned pursuant to Canons 2 and 3 by virtue of the fact that she is the victim of a crime being prosecuted by the DA. May the judge continue to handle her criminal docket?
CONCLUSION
The judge is not required to disqualify herself sua sponte under Canons 2 or 3. She should, however, examine her own conscience and emotions for bias that might make sua sponte recusal otherwise appropriate.
APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT
Canon 2 instructs that a judge should avoid impropriety and the appearance of impropriety, and should conduct himself or herself in a manner that promotes confidence in the integrity and impartiality of the judiciary.
Canon 3 provides that a judge should perform judicial duties impartially and diligently. Subsection C pertains to disqualification and states that a judge should disqualify himself or herself from a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where a judge has a personal bias or prejudice concerning a party.
DISCUSSION
As the Board previously has noted, the question of disqualification generally is left to a judge's sound discretion. See C.J.E.A.B. Op. 2006-05 (citing Zoline v. Telluride LodgeAss'n, 732 P.2d 635 (Colo. 1987)). Judges with whom a motion to disqualify has been filed should decide the legal question under C.R.C.P. 97 or Crim. P. 21 and...
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