Chapter 6 - § 6.6 • JUDGE DISQUALIFICATION

• Jurisdiction: Colorado

§ 6.6 • JUDGE DISQUALIFICATION

Colorado

➢ General. "A judge shall be disqualified in an action in which he is interested or prejudiced, or has been of counsel for any party, or is or has been a material witness, or is so related or connected with any party or his attorney as to render it improper for him to sit on the trial, appeal, or other proceeding therein. A judge may disqualify himself on his own motion for any of said reasons, or any party may move for such disqualification and a motion by a party for disqualification shall be supported by affidavit. Upon the filing by a party of such a motion all other proceedings in the case shall be suspended until a ruling is made thereon. Upon disqualifying himself, a judge shall notify forthwith the chief judge of the district who shall assign another judge in the district to hear the action. If no other judge in the district is available or qualified, the chief judge shall notify forthwith the court administrator who shall obtain from the Chief Justice the assignment of a replacement judge." C.R.C.P. 97.
➢ Duty of Court. "[A] judge should disqualify himself or herself whenever the judge's impartiality might reasonably be questioned." Schupper v. People, 157 P.3d 516, 519 (Colo. 2007) (quoting Colorado Code of Judicial Conduct, Canon 3, § C(1) (now C.J.C. 2.11)); Watson v. Cal-Three, LLC, 254 P.3d 1189, 1192 (Colo. App. 2011) (same); Tripp v. Borchard, 29 P.3d 345, 347 (Colo. App. 2001). Even if a judge is confident that he or she is impartial, the judge must "eliminate every semblance of reasonable doubt or suspicion that a trial by a fair and impartial tribunal may be denied." Johnson v. District Court, 674 P.2d 952, 956 (Colo. 1984); Parsons ex rel. Parsons v. Allstate Ins. Co., 165 P.3d 809, 819 (Colo. App. 2006). However, "impartiality is not gullibility. Disinterestedness does not mean childlike innocence. If the judge did not form judgments of the actors in those court-house dramas called trials, he [or she] could never render decisions." Watson, 254 P.3d at 1192 (quoting In re J.P. Linahan, Inc., 138 F.2d 650, 654 (2d Cir. 1943)). What a judge may learn in his or her capacity as a judge is a proper basis for judicial observation, and the court's use of that information does not require recusal. Id. Neither Rule 97 nor the Canon requires any formal order from a judge recusing himself, nor is it reversible error for a judge to choose that course and not to make specific findings on the record justifying his or her recusal. Beckord v. District Court, 698 P.2d 1323, 1328 (Colo. 1985); Aaberg v. District Court, 319 P.2d 491 (Colo. 1957).

➢ Timing of Motion. Motion should be filed promptly after grounds for recusal are known and, depending upon circumstances, motion is waived if it is not timely filed. Johnson, 674 P.2d at 957; Estate of Binford v. Gibson, 839 P.2d 508, 511 (Colo. App. 1992), abrogated on other grounds by Scott v. Scott, 136 P.3d 892, 895-96 (Colo. 2006); see C.R.C.P. 98(k) ("A party does not waive his right to change of judge or place of trial if his objection thereto is made in apt time."). Once a motion for disqualification has been filed, the trial judge is obligated to review that motion and decide whether it is sufficient to require his or her recusal and to suspend other proceedings until a ruling is made. C.R.C.P. 97; Johnson, 674 P.2d at 956.
➢ On Motion of Party. A judge must recuse himself or herself where a motion to disqualify, together with any supporting affidavit, shows that the judge has an actual or apparent bias or prejudice. Goebel v. Benton, 830 P.2d 995, 998 (Colo. 1992) (purpose of disqualification is to prevent party from being forced to litigate matter before judge with a "bent of mind"); In re Marriage of McSoud, 131 P.3d 1208 (Colo. App. 2006); see Jones v. Estate of Lambourn, 411 P.2d 11, 14 (Colo. 1966) (objection that the trial judge did not remove himself from case was not properly preserved where the claimant failed to make motion, supported by affidavit, to disqualify the judge). When presented with a motion for disqualification, the court must accept as true any fact stated in the motion and any accompanying affidavits, and the court's role is only to determine their legal sufficiency. Parsons, 165 P.3d at 819; Prefer v. PharmNetRx, LLC, 18 P.3d 844, 850 (Colo. App. 2000). A motion that alleges only opinions or conclusions that are unsubstantiated by any facts that support a reasonable inference of either actual or apparent bias or prejudice is not legally sufficient to justify disqualification. S.S. v. Wakefield, 764 P.2d 70, 73 (Colo. 1988); Prefer, 18 P.3d at 850. To be properly supported, a motion must allege facts that create a reasonable inference that the judge may be biased or prejudiced, and allegations — even in affidavits — may not be based on simple suspicion, speculation, or innuendo, nor may they be conclusory statements by the moving party. Johnson, 674 P.2d at 956; Freedman v. Kaiser Found. Health Plan, 849 P.2d 811, 813-14 (Colo. App. 1992). However, if a party files a motion to disqualify a judge and signs an affidavit alleging conduct on the part of the tribunal that, if true, evidences bias, prejudice, or the appearance of either, it is an abuse of discretion for the judge to refuse to withdraw from the case. Venard v. Dep't of Corrections, 72 P.3d 446, 449 (Colo. App. 2003).

➢ Sua Sponte. A judge may also recuse himself or herself sua sponte, without written explanation or any specific findings. Spring Creek Ranchers Ass'n v. McNichols, 165 P.3d 244, 245 (Colo. 2007); Beckord v. District Court, 698 P.2d 1323, 1328 (Colo. 1985). Although the Colorado Code of Judicial Conduct states that a judge may disclose on the record the basis for his or her disqualification instead of withdrawing, there is no requirement that a court make such a disclosure or seek to remit

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