Chapter 1 - § 1.6 • DISQUALIFICATION AND REPLACEMENT OF JUDGE

• Jurisdiction: Colorado

§ 1.6 • DISQUALIFICATION AND REPLACEMENT OF JUDGE

§ 1.6.1—Summary

While a trial judge has a duty to sit on a case unless he or she is prejudiced, the judge has an equally important duty to recuse himself or herself if prejudice exists. Smith v. District Court, 629 P.2d 1055 (Colo. 1981). A party may seek to replace a judge by filing a motion for substitution of judge. A judge who knows of circumstances that disqualify the judge from a case should disqualify himself or herself on his or her own motion. Crim. P. 21(b)(2); C.R.S. § 16-6-201(2).

The general rule is that a judge is disqualified if the judge is in any way interested, is in any way prejudiced, or has been counsel in the case. People ex rel. Burke v. District Court, 152 P. 149 (Colo. 1915). Even if the judge is convinced that he or she is impartial in the pending matter, the appearance of bias or prejudice can so undermine a litigant's confidence in the proceeding or the public's confidence in the system as to require a judge's disqualification. Comiskey v. District Court, 926 P.2d 539 (Colo. 1996); Colorado Code of Judicial Conduct, Preamble, Canon 1, R. 1.2.

The objects of the statute and the rule are to secure for the parties a fair and impartial trial by a judge uninfluenced by bias or prejudice against the party, People ex rel. Burke, 152 P. 149, and to guarantee that no person is forced to stand trial before a judge with a "bent of mind." People v. Botham, 629 P.2d 589 (Colo. 1981). Although both the statute and the rule use the word "defendant," and the case law addresses only requests by defendants, it would seem that the prosecution should enjoy a similar right.

§ 1.6.2—Motions to Recuse

Pursuant to Crim. P. 22, a motion to recuse the trial judge must be made at or before arraignment, absent good cause. Pursuant to Crim. P. 21(b)(1), the motion should be made, absent good cause shown, within 14 days of the assignment of the case to that particular judge. The possible conflict between the two rules, as far as the time limits for filing, has not been addressed. The statute governing the disqualification of a judge, C.R.S. § 16-6-201, does not set forth any time limits on the filing of the motion. Generally, the time limits in Crim. P. 21(b) must be strictly complied with. People in the Interest of A.L.C., 660 P.2d 917 (Colo. App. 1982).

A motion may be filed after the expiration of the deadline if good cause is shown. People v. Arledge, 938 P.2d 160, 166 (Colo. 1997); People v. Botham, 629 P.2d 589 (Colo. 1981); People v. District Court, 560 P.2d 828 (Colo. 1977); People v. Dobler, 2015 COA 25. Good cause may be established by proof that the basis of the motion did not become known until after the deadline passed. However, good faith and orderly process dictate that if grounds for disqualification are known at the time the suit is filed and a party desires to proceed, a motion to disqualify should be filed prior to taking any other action in the case. Otherwise, the motion to recuse can be viewed as a challenge to the judgment, especially if the judgment is adverse to the moving party. People v. Flockhart, 304 P.3d 227, 237-39 (Colo. 2013); People ex rel. A.G., 262 P.3d 646 (Colo. 2011); Dobler, 2015 COA 25; People v. Barton, 121 P.3d 224 (Colo. App. 2004) (defendant not aware of basis for recusal motion until judge made comments at sentencing); People v. Arledge, 938 P.2d 160, 166 (Colo. 1997) (a recusal motion must be brought as soon as the defendant becomes aware of a basis for making the motion); Botham, 629 P.2d 589; People v. District Court, 560 P.2d 828. In Flockhart, the Colorado Supreme Court clarified its ruling in People ex rel. A.G. by writing: "A.G. does...