Colo. Code. Jud. Cond. 2.11
Colo. Code. Jud. Cond. 2.11
COMMENT
[1] Under this Rule, a judge is disqualified whenever the judge's impartiality might reasonably be questioned, regardless of whether any of the specific provisions of paragraphs (A)(1) through (5) apply. The term "recusal" is sometimes used interchangeably with the term "disqualification."
[2] A judge's obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.
[3] The rule of necessity may override the rule of disqualification. The rule of necessity is an exception to the principle that every litigant is entitled to be heard by a judge who is not subject to disqualifications which might reasonably cause the judge's impartiality to be questioned. The rule of necessity has been invoked for trial court and court of appeals judges where disqualifications exist as to all members of the court and there is no other judge available. It has been invoked as to the supreme court when all or a majority of its members have a conflict of interest; the importance of having the court render a decision overrides the existence of the conflict, which might otherwise leave litigating parties in limbo. Under the rule of necessity, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable. Rather than deny a party access to court, judicial disqualification yields to the demands of necessity.
[4] The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge's impartiality might reasonably be questioned under paragraph (A), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under paragraph (A)(2)(c), the judge's disqualification is required.
[5] A judge should disclose on the record information that the judge believes the parties or their lawyers might reasonably consider relevant to a possible motion for disqualification, even if the judge believes there is no basis for disqualification.
[6] "Economic interest," as set forth in the Terminology section, means ownership of more than a one percent legal or equitable interest in a party, or a legal or equitable interest in a party of a fair market value exceeding $5,000, or a relationship as a director, advisor, or other active participant in the affairs of a party, except that:
(1) Ownership in a mutual or common investment fund that holds securities, or of securities held in a managed fund, is not an "economic interest" in such securities unless the judge participates in the management of the fund;
(2) securities held by an educational, religious, charitable, fraternal, or civic organization in which the judge or the judge's spouse, domestic partner, parent, or child serves as a director, officer, advisor, or other participant is not an "economic interest" in securities held by the organization;
(3) the proprietary interest of a policy holder in a mutual insurance company, of a depositer in a financial institution or deposits or proprietary interests the judge may maintain as a member of a mutual savings association or credit union, or a similar proprietary interest is an "economic interest" in the organization only if the outcome of the proceeding could substantially affect the value of the interest; and
(4) ownership of government securities is an "economic interest" in the issuer only if the outcome of the proceeding could substantially affect the value of the securities.
ANNOTATION Law reviews. For article, "Disqualification of Judges", see 13 Colo. Law. 54 (1984). Courts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved, but to retain public respect and secure willing and ready obedience to their judgments. Wood Bros. Homes v. City of Fort Collins, 670 P.2d 9 (Colo. App. 1983). 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). At least an appearance of bias or prejudice existed due to a professional relationship between the trial judge and an expert witness for defendants and the trial court erred in denying a motion for recusal. Hammons v. Birket, 759 P.2d 783 (Colo. App. 1988). Not all ex parte communications are per se grounds for disqualification under C.R.C.P. 97. The critical test is whether the affidavits in support of the motion to disqualify, along with any other matters of record, establish facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be prejudiced or biased, in favor of or against a party to the litigation. Goebel v. Benton, 830 P.2d 995 (Colo. 1992). Not every connection between a judge and a participant in a case will require the judge to disqualify himself or herself. It is a judge's duty to sit on a case unless a reasonable person could infer that a judge would be prejudiced against a defendant. People v. Crumb, 203 P.3d 587 (Colo. App., Sept. 18, 2008). Although judges hearing appeal from trial court's dismissal of antitrust action brought against software manufacturer used the operating system at issue in the lawsuit, raising the potential for a conflict of interest, the rule of necessity required those judges to proceed with the case. Pomerantz v. Microsoft Corp., 50 P.3d 929 (Colo. App. 2002). Successor judge erred in determining that the same circumstances that led the trial judge to recuse himself or herself from defendant's other cases also existed before the commencement of trial in this case. People v. Schupper, 124 P.3d 856 (Colo. App. 2005), aff'd, 157 P.3d 516 (Colo. 2007). Appearance of impropriety, not actual prejudice, is sufficient to warrant recusal. Where recusal is sought based upon the relationship of the judge to another person, it is the closeness of the relationship and its bearing on the underlying case that determines whether disqualification is necessary. People ex rel. A.G., 264 P.3d 615 (Colo. App. 2010) (decided under former canon 3(C)), rev'd on other grounds, 262 P.3d 646 (Colo. 2011). Trial court judge erred by determining the relationship between his court clerk and the witness did not warrant judge's recusal. Where court clerk's daughter, as caseworker, was material witness in the case, absent waiver, judge abused his discretion by not recusing from the case. People ex rel. A.G., 264 P.3d 615 (Colo. App. 2010) (decided under former canon 3(C)), rev'd on other grounds, 262 P.3d 646 (Colo. 2011). Applied in People v. Mills, 163 P.3d 1129 (Colo. 2007); Spring Creek Ranchers Ass'n, Inc. v. McNichols, 165 P.2d 244 (Colo. 2007); Schupper v. People, 157 P.3d 516 (Colo. 2007); People v. Julien, 47 P.3d 1194 (Colo. 2002); People v. Harlan, 8 P.3d 448 (Colo. 2000); In re Estate of Elliott, 993 P.2d 474 (Colo. 2000); Office of State Court Adm'r v. Background Info. Services, Inc., 994 P.2d 420 (Colo. 1999); Comiskey v. District Court In and For County of Pueblo, 926 P.2d 539 (Colo. 1996); Wilkerson v. District Court In and For County of El Paso, 925 P.2d 1373 (Colo. 1996); People v. District Court, In and For Eagle County, State of Colo., 898 P.2d 1058 (Colo. 1995); Klinck v. District Court of Eighteenth Judicial District, 876 P.2d 1270 (Colo. 1994); Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993); Goebel v. Benton, 830 P.2d 995 (Colo. 1992); Brewster v. District Court of the Seventh Judicial Dist., 811 P.2d 812 (Colo. 1991); Zoline v. Telluride Lodge Ass'n, 732 P.2d 635 (Colo. 1987); People ex rel. A.E.L., 181 P.3d 186 (Colo. App. 2008); Kane v. County Court Jefferson County, 192 P.3d 443 (Colo. App. 2008); Parsons ex rel. Parsons v. Allstate Ins. Co., 165 P.3d 809 (Colo. App. 2006); In re McSoud, 131 P.3d 685 (Colo. App. 2006); Keith v. Kinney, 140 P.3d 141 (Colo. App. 2005); People v. Cambell, 94 P.3d 1186 (Colo. App. 2004); People ex rel S.G., 91 P.3d 443 (Colo. App. 2004); Tripp v. Borchard, 29 P.3d 345 (Colo. App. 2001); Prefer v. PharmNetRx, LLC, 18 P.3d 844 (Colo. App. 2000); People v. Anderson,991 P.2d 319 (Colo. App. 1999); People v. Lanari, 926 P.2d 116 (Colo. App. 1996); People v. Bowring, 902 P.2d (Colo. App. 1995); People v. McCarty, 851 P.2d 181 (Colo. App. 1992); Giralt v. Vail Vill. Inn Assocs., 759 P.2d 801 (Colo. App. 1988). ETHICS OPINIONS A judge who sits on the county bench in a small, rural district and whose spouse wishes to run for election to the city council, which oversees the chief of police, is not required to disqualify himself in cases charged by the police department. He should, however, consider whether the facts and circumstances make disqualification appropriate in a particular case, and, if his spouse is elected, he should disclose her role on the city council in cases charged by the police department. Colo. J.E.A.B. Op. 07-09. A judge is not required to disqualify himself when the judge's estranged godchild's father appears before him, solely because of that relationship, but disqualification may nevertheless be appropriate depending on the judge's subjective and objective analysis of the circumstances. The judge should, however, disclose the godparent relationship to each party when his godchild's father appears in his court. Colo. J.E.A.B. Op. 07-04. A judge need not disqualify herself sua sponte when the attorney who represented the judge's adult daughter appears before the judge. The judge should consult her own conscience to determine whether disqualification is warranted if the judge maintains a disabling prejudice for or against the attorney. If the judge concludes that disqualification is unnecessary, disclosure of the daughter's representation may still be appropriate until the passage of time, the limited consequences of the prior matter and the nature of the judge's relationship with the attorney have made the prior representation irrelevant. Colo. J.E.A.B. Op. 07-01. A judge should disqualify himself or herself sua sponte if an attorney or firm currently representing the judge, or representing the judge's adversary in a current matter, appears before the judge. A judge should also continue to disqualify himself or herself sua sponte for a reasonable period of time after the representation has ended, typically one year, when the judge's attorney, other members of that firm, the judge's adversary's attorneys, or members of that attorney's firm appear before the judge. After the expiration of a reasonable period of time, continued disqualification is not required, but may be appropriate under the facts and circumstances of the case in which the judge was represented. Colo. J.E.A.B. Op. 06-05. A judge who presides over a county court in a small rural jurisdiction should disqualify himself when any member of his brother-in-law's firm appears in the court on which he serves. Colo. J.E.A.B. Op. 05-02. A judge must disqualify in any case in which the judge's spouse, who is an officer employed by a fire protection district which assists the sheriff's department with arson investigations, or those he or she supervises, participated in the investigation of the case. The judge is not, however, required to disqualify from all cases involving a law enforcement agency for which the judge's spouse occasionally performs arson investigations. Colo. J.E.A.B. Op. 05-01. A judge's report of an attorney's misconduct in a case pending before the judge requires the judge to disqualify himself or herself. Colo. J.E.A.B. Op. 04-01.