C.r.c.p. 97
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
Annotation 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 v. Langhart, 147 Colo. 339, 363 P.2d 702 (1961). Supporting affidavits insufficient to warrant recusal where the allegations, even if accepted as true, did not state actual facts and statements evidencing impartiality or bias. In re Goellner, 770 P.2d 1387 (Colo. App. 1989). Motion and supporting affidavits are insufficient to require disqualification if only allege opinions or conclusions and are unsubstantiated by facts supporting reasonable inference of actual or apparent bias or prejudice. Goebel v. Benton, 830 P.2d 995 (Colo. 1992); In re Elmer, 936 P.2d 617 (Colo. App. 1997). Reasonable question as to impartiality requires disqualification. Where one might reasonably question the trial judge's impartiality, it is improper for him to preside over the trial. Wood Bros. Homes v. City of Fort Collins, 670 P.2d 9 (Colo. App. 1983). Trial judge must accept affidavits filed with motion to disqualify as true, even though judge believes that the statements contained in the affidavits are false or the meaning attributed to them by the party seeking recusal is erroneous. Wright v. District Court, 731 P.2d 661 (Colo. 1987). Disqualification is within trial court's discretion. Whether to disqualify in a civil case is a matter within the discretion of the trial court, and its ruling will not be disturbed on appeal except for an abuse of discretion. In re Mann, 655 P.2d 814 (Colo. 1982); Hollemon v. Murray, 666 P.2d 1107 (Colo. App. 1982); Goebel v. Benton, 830 P.2d 995 (Colo. 1992). Whether to disqualify himself in a civil case is a question within the discretion of the trial judge, and the judge's ruling on that issue will not be disturbed on appeal absent a showing of an abuse of that discretion. Colo. State Bd. of Agric. v. First Nat'l Bank, 671 P.2d 1331 (Colo. App. 1983). Trial court's denial of motion for recusal constitutes an abuse of discretion and is reversible error when there was, at least, an appearance of bias or prejudice due to the existence of a professional relationship between the trial judge and an expert witness for defendants. Hammons v. Birket, 759 P.2d 783 (Colo. App. 1988). It is judge's duty to pass only upon legal sufficiency of facts alleged in affidavit and when motion and supporting affidavits allege facts which demonstrate that judge had a "bent of mind", refusal of judge to disqualify himself constitutes abuse of discretion. Goebel v. Benton, 830 P.2d 995 (Colo. 1992). 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), rev'd on other grounds, 262 P.3d 646 (Colo. 2011). This rule does not require a hearing on a motion for change of judge on the grounds of prejudice. Brouwer v. District Court, 169 Colo. 303, 455 P.2d 207 (1969). The parties do not require an opportunity to introduce evidence in support of a motion to have the trial judge disqualified. Kovacheff v. Langhart, 147 Colo. 339, 363 P.2d 702 (1961). Nor does it require notice. There is no abuse of discretion in calling the motion to disqualify the trial judge up for hearing without notice where the parties to the action, and their attorneys, were present in response to the trial setting, and trial could not proceed until the motion was disposed of. The motion was directed against the judge, was self-explanatory, and notice to the parties could not have afforded the court any better opportunity to rule upon it. Brackett v. Cleveland, 147 Colo. 328, 363 P.2d 1050 (1961). This rule does not fix the time when a motion should be filed. Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957). A motion to disqualify a trial judge should be filed promptly when grounds therefor are known and prior to taking any other steps in the case. Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957); Dominic Leone Constr. Co. v. District Court, 150 Colo. 47, 370 P.2d 759 (1962). Where defendant waited two years before filing a motion for recusal based on the judge's comments, motion was untimely. Estate of Binford v. Gibson, 839 P.2d 508 (Colo. App. 1992). Where plaintiff waited until one year of legal proceedings had occurred before seeking recusal on grounds of comments made in an earlier case, motion was untimely. Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo. App. 1994). Petitioner did not waive right to file a motion to disqualify judge when petitioner waited two months after the grounds for disqualification were known to file his motion. Johnson v. District Court, 574 P.2d 952 (Colo. 1984). Court may deny motion to recuse if it is untimely. People ex rel. A.G., 264 P.3d 615 (Colo. App. 2010), rev'd on other grounds, 262 P.3d 646 (Colo. 2011). Without an assertion of actual prejudice, counsel's failure to timely move for disqualification cannot be the basis of a valid claim for ineffective assistance of counsel. A party must show actual prejudice on the part of the judge, in that the result of the proceeding would have been different. People ex rel. A.G., 262 P.3d 646 (Colo. 2011). Mother's allegation of prejudice was based upon the appearance of impropriety created by the judge's clerk's relationship to a material witness for the government. The mere allegation of prejudice is insufficient to satisfy the element of prejudice necessary to show that counsel's errors deprived the party of a fair trial. People ex rel. A.G., 262 P.3d 646 (Colo. 2011). Appearance for purpose other than to question authority waives objection. Where a party seeks to disqualify a judge for bias and prejudice, and at the same time asks for affirmative relief by motion for a change of venue, appearance before such judge for any other purpose than to question his authority to act, waives the right to object to his authority. Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957). Failure to comply with rule bars objections to judge on review. Where a party has failed to comply with this rule, the reviewing court will not entertain objections to a trial judge sitting in judgment of the acts of its own public administrator, which are not properly preserved in the proceeding below. Jones v. Estate of Lambourn, 159 Colo. 246, 411 P.2d 11 (1966). Filing of motion to disqualify a trial judge suspends all other proceedings in the case until ruling is made thereon. Dominic Leone Constr. Co. v. District Court, 150 Colo. 47, 370 P.2d 759 (1962); Brouwer v. District Court, 169 Colo. 303, 455 P.2d 207 (1969). A motion to disqualify the judge has the effect, as a matter of law, of suspending any further proceedings until the judge rules on the motion to disqualify. City of Trinidad v. District Court, 196 Colo. 106, 581 P.2d 304 (1978). Judge is obligated to review motion. Because a motion to disqualify a judge has been made, judge is obligated to review the motion and decide its sufficiency, and judge does not have the authority to determine any other substantive matter pending before the court, including a motion for change of venue. Johnson v. District Court, 674 P.2d 952 (Colo. 1984). Writ of mandamus proper for failure to rule on disqualification motion. The trial judge must initially rule on the disqualification motion, and if he fails to rule, a writ in the nature of mandamus is a proper remedy. City of Trinidad v. District Court, 196 Colo. 106, 581 P.2d 304 (1978). Motion does not deprive court of jurisdiction. Where the trial court ruled upon a motion for change of judge, it did not lose jurisdiction to proceed. Brouwer v. District Court, 169 Colo. 303, 455 P.2d 207 (1969). Procedural requirements for judge to disqualify himself. The power of a judge to disqualify himself may be exercised even though the proper procedural steps leading to disqualification have not been pursued by any party to the litigation. Beckord v. District Court, 698 P.2d 1323 (Colo. 1985). Where the plaintiff failed to object to the appointment of a judge within the appropriate time period, the objection will be deemed waived and the plaintiff will be estopped to object. In re Fifield, 776 P.2d 1167 (Colo. App. 1989). Adjudicating board abused its discretion by concluding that complainant waived his right to raise the issue of disqualification on the basis of implied waiver by conduct when unequivocal evidence of the intent to waive his right was absent. Venard v. Dept. of Corr., 72 P.3d 446 (Colo. App. 2003). Mere friendship of a judge with an officer of a corporate party does not warrant disqualification unless the nature of the friendship creates an appearance of impropriety. Pierce v. United Bank of Denver, 780 P.2d 6 (Colo. App. 1989). Once judge disqualifies himself from a case, he is without jurisdiction to rule on motions filed by the parties which involve an exercise of judicial discretion. Beckord v. District Court, 698 P.2d 1323 (Colo. 1985). Judge should not appoint his own successor. When a judge is charged with bias and prejudice and sustains a motion so charging, or steps aside without ruling on the motion, proper procedure requires that he not select his successor or assign the case to another judge, but that he proceed in accordance with this rule. Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957). Proceeding with hearing without objection waives objection. Proceeding with a preliminary injunction hearing without objection, after being informed by the court that defense counsel had been appointed to a district commission for the evaluation of the performance of judges pursuant to § 13-5.5-104 , is a waiver of the right to object. Bishop & Co. v. Cuomo, 799 P.2d 444 (Colo. App. 1990). Purpose of disqualification requirement is to prevent a party from being forced to litigate a matter before a judge with a "bent of mind." Goebel v. Benton, 830 P.2d 995 (Colo. 1992). Applied in In re Johnson, 40 Colo. App. 250, 576 P.2d 188 (1977); Marks v. District Court, 643 P.2d 741 (Colo. 1982). II. Illustrative Cases. Filing of complaint with qualifications commission insufficient. To allow a litigant to file a letter critical of a trial judge or to inform the judge of the filing of a complaint with the judicial qualifications commission and later assert the judge's knowledge of the complaint as a basis for disqualification would encourage impermissible judge-shopping. In re Mann, 655 P.2d 814 (Colo. 1982). Assistance of judge in preparation of arbitrator's findings not prejudicial. The participation of the trial judge in the preparation of the arbitrator's findings after reference of case did not disqualify him from rendering judgment, where it did not appear that such participation had been to the extent of creating prejudice in examining and determining issues of law which might be involved. Zelinger v. Mellwin Constr. Co., 123 Colo. 149, 225 P.2d 844 (1950). Continuing jurisdiction over attack of decree is not sufficient ground. In a proceeding to attack an adoption decree before the same judge who granted the decree, the suggestion in a motion to disqualify the judge that he will undoubtedly be called as a witness is not ground for disqualification, since, in a matter of adoption proceedings, the judge who entered the adoption decree had a continuing jurisdiction and was the proper one to review or consider that judgment or decree when it was attacked. Kubat v. Kubat, 124 Colo. 491, 238 P.2d 897 (1951). The initiation of an ex parte communication by a judge with a party in a dependency hearing regarding the adequacy of her attorney's representation was improper, but judge would not be disqualified where disqualification motion and affidavits failed to allege facts from which it might be inferred that the ex parte communication demonstrated a bias against the party or her attorney. S.S. v. Wakefield, 764 P.2d 70 (Colo. 1988). Where the trial judge owned controlling shares of stock in a bank in which the plaintiff maintained substantial deposits, his pecuniary interest in the outcome of the litigation was such that he should have disqualified himself. Zoline v. Telluride Lodge Ass'n., 732 P.2d 635 (Colo. 1987). Purchase of water from corporate defendant is not disqualifying interest. A motion to disqualify a trial judge on the ground of prejudice because the defendants in the case are socially and politically influential and because the judge is a water user of the corporate defendant, presents no sound basis for disqualification, where the company is a mutual nonprofit corporation and where no pecuniary advantage could possibly accrue to the trial court by his action. Fehr v. Hadden, 134 Colo. 102, 300 P.2d 533 (1956). Previous service of judge as county attorney unrelated to action. No showing has been made that in his duty as county attorney 17 years prior to the institution of this action, the trial judge was in any manner concerned with the question of title to this property, or that the defendant's right to a fair and impartial hearing was in any manner affected by the refusal of the trial judge to disqualify himself. The trial judge was correct in refusing to disqualify himself. Bd. of County Comm'rs v. Blanning, 29 Colo. App. 61, 479 P.2d 404 (1970). Similarly, where judge appointed as attorney to represent inductees in quiet title action. In the absence of more positive representation than is usually performed by an attorney appointed to represent persons in or about to be inducted into military service in a quiet title action, it is questionable whether the mere appointment of an attorney and his subsequent approval of a quiet title decree disqualifies him later as judge to determine whether the decree is "res judicata" in another proceeding in which some of the parties are the same. Martinez v. Casey, 178 Colo. 62, 495 P.2d 216 (1972). Partiality or appearance of bias or prejudice. Judge should have disqualified himself when affidavits filed reported actual events and statements which, if true, evidence partiality or the appearance of bias or prejudice against the petitioner on the part of the judge. Johnson v. District Court, 674 P.2d 952 (Colo. 1984). Judge should have disqualified herself when she allowed marked personal feelings toward the contempt defendant to affect her judgment in the proceedings and after she referred the case to the district attorney for potential criminal prosecution. In re Estate of Elliott, 993 P.2d 474 (Colo. 2000). Judge's Catholic faith insufficient to support a reasonable inference that he was biased and should recuse himself from case under this rule. A judge's particular religious affiliation, even though the same as that of the father in dissolution of marriage case and of the special advocate, did not create sufficient appearance of bias or bent of mind to require recusal. In re McSoud, 131 P.3d 1208 (Colo. App. 2006). Appearance of impropriety was created by administrative adjudicator's position as a direct adversary of complainant's counsel in a similar, previous personnel matter. Thus, it was an abuse of discretion for board to allow administrative adjudicator to sit in on case. Venard v. Dept. of Corr., 72 P.3d 446 (Colo. App. 2003). No appearance of impropriety was found and trial court's decision not to grant relief from summary judgment was proper. Giralt v. Vail Village Inn Assocs., 759 P.2d 801 (Colo. App. 1988), cert. denied, 488 U.S. 1042, 109 S. Ct. 868, 102 L. Ed. 2d 991 (1989). Affidavit insufficient. Litinsky v. Querard, 683 P.2d 816 (Colo. App. 1984). Refusal of judge to disqualify himself was error. Geer v. Hall, 138 Colo. 384, 333 P.2d 1040 (1959). For actions of judge effectively disqualifying himself from case, see Beckord v. District Court, 698 P.2d 1323 (Colo. 1985). Refusal of judge to disqualify himself was error where judge's ex parte communication with party significantly involved in provision of health care services to mentally ill, an issue of critical significance to judge's ultimate ruling on adequacy of state's remedial plan. Goebel v. Benton, 830 P.2d 995 (Colo. 1992). The fact that the defendant had brought a civil action against the judge complaining of judicial conduct and defendant's conclusory statements that the judge was biased were insufficient to show that recusal was required. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993). Legal rulings against a party on issues appropriately before the judge are not grounds for recusal, nor does the judge's direction to the clerk not to accept fax filings from the party support a reasonable inference of bias. Holland v. Bd. of County Comm'rs, 883 P.2d 500 (Colo. App. 1994). Imposition of discovery sanctions did not indicate bias where issues were appropriately before the judge and findings were based on the motions filed and the arguments of counsel. M Life Ins. Co. v. Sapers & Wallack Ins. Agency, Inc., 40 P.3d 3 (Colo. App. 2001). 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. Judge's relationship with clerk and her relationship to witness created the appearance of impropriety. People ex rel. A.G., 264 P.3d 615 (Colo. App. 2010), rev'd on other grounds, 262 P.3d 646 (Colo. 2011).
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.