Rule 97 CHANGE OF JUDGE.

• Jurisdiction: Colorado

Rule 97. Change of Judge.

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.

Cross references: For disqualification of a judge, see Canon 2, rule 2:11, of the Code of Judicial Conduct (Appendix to Chapter 24); for change of judge in criminal cases, see Crim. P. 21.

ANNOTATION

I. General Consideration.

II. Illustrative Cases.

I. GENERAL CONSIDERATION.

Law reviews. For article, "One Year Review of Civil Procedure and Appeals", see 37 Dicta 21 (1960). For article, "One Year Review of Civil Procedure and Appeals", see 39 Dicta 133 (1962). For article, "Disqualification of Judges", see 13 Colo. Law. 54 (1984). For article, "Appointed Judges Under New C.R.C.P. 122: A Significant Opportunity for Litigants", see 34 Colo. Law. 37 (September 2005).

Annotator's note. Since this rule is similar to § 32 of the former Code of Civil Procedure, which was supplanted by the Rules of Civil Procedure in 1941, relevant cases construing that section have been included in the annotations to this rule.

Purpose of rule. The intent of the rule under which a judge should disqualify himself from a case if he has served as counsel for either of the parties is to insure a fair and impartial hearing of the issue involved. Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970).

Purpose of disqualification rule is to prevent judge with a "bent of mind" from presiding over action. Goebel v. Benton, 830 P.2d 995 (Colo. 1992).

Trial judge's duty to preside. In the absence of a valid reason for disqualification relating to the subject matter of the litigation, the trial judge has the duty of presiding over the case. Blades v. DaFoe, 666 P.2d 1126 (Colo. App. 1983), rev'd on other grounds, 704 P.2d 317 (Colo. 1985).

Upon reasonable inference of a "bent of mind" that will prevent judge from dealing fairly with party seeking recusal, it is incumbent on trial judge to recuse himself. Wright v. District Court, 731 P.2d 661 (Colo. 1987).

The requirements for disqualification of a judge are that he be interested or prejudiced, or related to counsel for any party, or has been counsel for or related to any party, as required by this rule. Fehr v. Hadden, 134 Colo. 102, 300 P.2d 533 (1956).

Generally, a judge's ruling on a legal issue cannot form the basis for recusal. Brewster v. Dist. Court, 811 P.2d 812 (Colo. 1991); People ex rel. S.G., 91 P.3d 443 (Colo. App. 2004).

Also, a judge's opinion formed against a party from evidence before the court in a judicial proceeding, even as to the guilt or innocence of a defendant, is generally not a basis for disqualification. People ex rel. S.G., 91 P.3d 443 (Colo. App. 2004).

What a judge learns in his or her judicial capacity usually cannot form the basis for disqualification. People ex rel. S.G., 91 P.3d 443 (Colo. App. 2004).

Disqualifying interest must relate to subject matter of suit. The interest of a judge upon which he may disqualify himself must necessarily relate to the subject matter of the litigation, or be of a pecuniary interest in the outcome of the litigation, and not as it might relate to a determination of the facts and legal questions presented. Primarily, it is the duty of a judge to sit in a case in the absence of a showing that he is disqualified. Kubat v. Kubat, 124 Colo. 491, 238 P.2d 897 (1951); Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970).

Rule does not apply to ordinary transfer for convenience. This rule, providing for designation by the chief justice of a justice to try a cause wherein the trial judge is disqualified, has no application to the ordinary transfer of causes for convenience from one division to another in a district court having more than one judge. Smaldone v. People, 102 Colo. 500, 81 P.2d 385 (1938) (decided under former Supreme Court Rule 14C).

There should be a supporting affidavit to the motion to disqualify, in compliance with the rules. Kubat v. Kubat, 124 Colo. 491, 238 P.2d 897 (1951).

In all cases necessary material or pertinent facts should be set out. In case of the prejudice of the judge, his attention would be called to some forgotten or unknown circumstance. Justice requires that the judge should not be charged with prejudice while left in surprise at a cause he may not imagine, or may believe exists only in the imagination of the applicant, and without the necessary knowledge upon which to act in the exercise of that discretion to allow or deny the charge. Hughes v. People, 5 Colo. 436 (1880).

The law contemplates that, upon application for change of venue, facts shall be stated sufficient to inform the judge of the nature of the causes for the change, and their alleged foundation. Hughes v. People, 5 Colo. 436 (1880).

The facts are not to be set out beyond what is necessary where they involve the judicial acts or character of the judge. Hughes v. People, 5 Colo. 436 (1880).

Only question on motion is sufficiency of facts alleged. The motion and supporting affidavit speak for themselves and the only question involved is whether the facts alleged are sufficient to compel the judge to disqualify himself. Kovacheff...