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holding that "a judge must disqualify himself or herself sua sponte or in response to a disqualification motion, if facts exist tying the judge to personal knowledge of disputed evidentiary facts concerning the proceeding, some supervisory role over the attorneys who are prosecuting the case, or some role in the investigation and prosecution of the case during the judge's former employment" as a prosecutor
Summary of this case from Johnson v. Municipality of AnchorageOpinion
No. 01SC85.
June 10, 2002. As Modified on Denial of Rehearing June 24, 2002.
Justice MARTINEZ and Justice BENDER would grant the Petition.
Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.
E. Ronald Beeks, Evergreen, Colorado, Attorney for Respondent.
This case arises out of Dywand D. Julien's conviction after a jury trial of first-degree assault and possession of a weapon by a previous offender. We granted certiorari in order to review the court of appeals' unpublished decision, People v. Julien, No. 98CA2542 (Colo.App. 1998), which held that the trial judge's previous employment by the district attorney's office created an appearance of partiality that required vacating Julien's conviction and ordering a new trial.
We granted certiorari on two issues:
1. Whether the trial judge's previous employment with the district attorney's office constituted an appearance of impropriety mandating reversal of the defendant's judgment of conviction where the judge had no involvement in the defendant's case while employed with the district attorney.
2. Whether, assuming there was an appearance of impropriety, the trial judge's failure before trial to disclose to the defendant his previous employment with the district attorney's office and to recuse himself when a motion to recuse was filed before sentencing constituted harmless error.
Julien's trial occurred five weeks after the trial judge took the bench. While he was with the district attorney's office, the judge took no part in the investigation, preparation, or presentation of Julien's case, nor did he supervise those who did, nor had he obtained personal knowledge of disputed evidentiary facts while in the employment of the district attorney's office. The sole basis for disqualification was Judge Schwartz's prior employment with that governmental office.
We conclude that no basis existed for the court of appeals' disqualification of Judge Schwartz, and we reinstate Julien's conviction.
I.
On August 2, 1995, at approximately three in the morning, Officer Ronald Sheppard stopped a car with expired license plates. Upon investigation at the scene, Officer Sheppard discovered that the driver had an outstanding warrant. Julien, a passenger in the car, exited the vehicle. Officer Sheppard ordered Julien to get back into the car, but Julien disregarded the order.
Officer Sheppard repeatedly instructed Julien to get back into the car, but Julien ignored him and began walking away. Officer Sheppard then crossed the street and placed his hands on Julien's shoulder. As Officer Sheppard forcibly walked him back to the car, Julien pulled a pistol from his waistband. Officer Sheppard grabbed his weapon from the holster and fired three shots, one of which struck Julien.
Judge Larry Schwartz received the assignment to hear Julien's case. Judge Schwartz had taken the bench five weeks before the trial began. He had previously been employed as an assistant district attorney in the El Paso County District Attorney's office, the office responsible for prosecuting Julien.
In February 1997, the jury convicted Julien of first degree assault on a peace officer and possession of a weapon by a previous offender. In July 1997, prior to sentencing, Julien, pro se, and then through his new court-appointed attorney, made a motion for substitution of judge. The two affidavits accompanying the attorney's motion recited that Judge Schwartz had been employed by the district attorney's office at the time that office filed charges against Julien; Judge Schwartz was a supervising attorney and team leader in the office; and another supervising attorney of the district attorney's office employed at the same time as Judge Schwartz had appeared before Judge Schwartz to prosecute Julian. These facts are uncontested.
Judge Schwartz was employed by the district attorney's office from January 1990 to December 1996.
In considering Julien's motion for substitution of judge, Judge Schwartz stated that he did not work on Julien's case, had no recollection of it, and did not supervise anyone involved in the case. Having found no basis for disqualification, Judge Schwartz nevertheless suspended further proceedings and referred the matter to another judge.
Judge Martinez found that "there's been no showing that Judge Schwartz supervised [the prosecutor], that Judge Schwartz was involved in any way in the case, that Judge Schwartz investigated the case, that he was a team leader of anybody who in fact was in the case. The affidavit does not show any kind of involvement whatsoever of Judge Schwartz."
Judge Martinez determined that there was no basis for disqualification and returned the case to Judge Schwartz for sentencing. Judge Schwartz sentenced Julien to the department of corrections for a term of eighteen years. Julien appealed. The court of appeals ruled that "the information in the district attorney's office during its investigation of the offense must be imputed to the judge . . . and the former employment relationship between the trial judge and the district attorney's office created an appearance of partiality." We disagree.
II.
We determine that no basis existed for the court of appeals' disqualification of Judge Schwartz. While a member of the district attorney's office, Judge Schwartz did not participate in the investigation, preparation, or presentation of the case against Julien, nor did he have any other involvement with the case, such as being a supervising attorney of the attorneys conducting the prosecution, or gaining personal knowledge of disputed evidentiary facts of the case in his former employment. Of itself, Judge Schwartz's employment in the district attorney's office as a team leader five weeks prior to the trial of the case was not a sufficient basis for disqualification. We conclude: (1) that Canon 3 of Colorado's Code of Judicial Conduct contains a limited prior governmental association exception applicable to this case; and (2) Julien's post-conviction disqualification motion did not allege a sufficient basis for Judge Schwartz's disqualification.
A. Prior Governmental Association
The court of appeals determined that the "information in the district attorney's office during its investigation of the offense must be imputed to the judge." Based on this imputation, the court of appeals concluded that "the former employment relationship between the trial judge and the district attorney's office created an appearance of partiality." The court of appeals acknowledged that "the judge had neither participated in that investigation nor appeared as counsel for the prosecution." Yet, it determined that Judge Schwartz had a duty under Canon 3 to disqualify himself sua sponte from presiding over the case when it was assigned to him.
We examine the disqualification issue de novo. Smith v. Dist. Court, 629 P.2d 1055, 1056 (Colo. 1981); People v. Dist. Court, 192 Colo. 503, 506, 560 P.2d 828, 832 (1977). We start with the precept, basic to our system of justice, that a judge must be free of all taint of bias and partiality. People v. Dist. Court, 192 Colo. at 506, 560 P.2d at 831. Section 16-6-201, Crim. P. 21(b), and Canon 3 set forth Colorado standards by which a judge determines sua sponte or in response to a motion whether to disqualify himself or herself from the case.
If a judge has a bias or prejudice that in all probability will prevent him or her from dealing fairly with a party, the judge must not preside over the case. People v. Arledge, 938 P.2d 160, 167 (Colo. 1997). A judge must also consider the Code of Judicial Conduct sua sponte or in response to a disqualification motion in determining whether to serve on the case. Zoline v. Telluride Lodge Ass'n, 732 P.2d 635, 639 (Colo. 1987).
Julien's challenge to Judge Schwartz's service did not turn in any way on a claim of actual bias or prejudice, or on any other basis under section 16-6-201(3), Crim. P. 21(b)(3), and Canon 3, apart from Judge Schwartz's prior association with the District Attorney's Office.
Canon 3 addresses prior professional association and has a limited exception to appearance of partiality disqualification, in regard to prior governmental association. Canon 3(C)(1) requires a judge to disqualify himself or herself, if the judge's impartiality might reasonably be questioned:
C. Disqualification
(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:
(a) A judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
(b) a judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it. . . .
C.J.C. 3(C)(1)(a), (b).
The language of Canon 3(C)(1)(a) (b) and its commentary derive virtually verbatim from the American Bar Association's Model Code of Professional Responsibility and Code of Judicial Conduct. See ABA Model Code at 58-59 (as amended August 1977). On the issue of prior governmental association, the Commentary to Colorado's Canon 3(C)(1) thus reads:
A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association.
C.J.C. 3(C)(1) cmt. (emphasis added).
This commentary is elliptical and requires explication. It appears to provide for a prior governmental-association exception to Canon 3's standard of disqualification for the appearance of partiality in some cases but not in others. Fortunately, a substantial body of parallel federal and state rules, precedent and legal commentary guides our construction of Canon 3, by illuminating the basis, extent, and limit of the prior governmental-association exception.
The majority rule is that judges are not disqualified solely on the basis that they were formerly employed by the prosecutor's office. Instead, when employed by that office, the judge to be disqualified must have performed some role in the case or have obtained actual knowledge of disputed evidentiary facts of the case:
[W]here the judge did not actually participate in the investigation, preparation, or presentation of the case against the person who later appears before him as a defendant, the mere fact that he happened to be employed by the office that did prosecute the defendant has generally been held not to provide a legally sufficient ground for judicial disqualification.
Richard E. Flamm, Judicial Disqualification, Recusal and Disqualification of Judges § 11.5.2, at 328-29 (1996).
Our canons, statutes, and rules governing judicial conduct do not require disqualification of a judge if the only prior association the judge has with the defendant's case is that the judge was associated with the district attorney's office when that case was in the office. On the other hand, a judge must disqualify himself or herself sua sponte or in response to a disqualification motion, if facts exist tying the judge to personal knowledge of disputed evidentiary facts concerning the proceeding, some supervisory role over the attorneys who are prosecuting the case, or some role in the investigation and prosecution of the case during the judge's former employment. But, because of Canon 3(C)(1)'s association exception, the judge's impartiality is not subject to reasonable question if the only basis for disqualification is the trial judge's former employment with the government office.
Contrary to the court of appeals' ruling in this case, the knowledge of another attorney in the district attorney's office is not imputed to his or her colleagues. The rule is different for law firm attorneys because they individually and collectively have a financial interest in the outcome of the case. Smith v. Beckman, 683 P.2d 1214, 1216 (Colo.App. 1984) (citing SCA Serv., Inc. v. Morgan, 557 F.2d 110 (7th Cir. 1977)).
Case law in other jurisdictions supports our construction of Canon 3(C)(1). We consider federal precedent and that of states with a similar rule in construing the provisions of Colorado's rule. Air Communication Satellite Inc. v. EchoStar Corp., 38 P.3d 1246, 1251 (Colo. 2002).
Like Colorado's Canon 3, the United States Code provides that a judge shall disqualify himself or herself in any proceeding in which his or her impartiality might reasonably be questioned. 28 U.S.C. § 455(a) (2002). The U.S. Code then provides for disqualification under this rubric when a judge, during his or her government employment, has participated as counsel, adviser, or material witness concerning the proceeding, or has expressed an opinion about the merits of the case. 28 U.S.C. § 455(b)(3) (2002).
Federal courts have required recusal under § 455(b)(3) in cases that involve the judge's participation in or knowledge of the case in some way as a former governmental attorney. The Tenth Circuit's summary of the applicable federal law comports with Colorado law on this point:
In real terms, the trial judge in this case had no connection with the defendant or the substance of his prosecution prior to the filing of the instant case. In the absence of such a connection, the current version of 28 U.S.C. § 455(b)(3) does not require recusal, and the trial judge did not err by his refusal to disqualify himself under that subsection.
United States v. Gipson, 835 F.2d 1323, 1326 (10th Cir. 1988); accord Jenkins v. Bordenkircher, 611 F.2d 162, 166-67 (6th Cir. 1979); cf. United States v. Arnpriester, 37 F.3d 466 (9th Cir. 1994) (disqualifying judge who had supervisory responsibility in the United States Attorney's Office for the investigation and prosecution of the crimes at issue);
A number of federal decisions hold that former association with the prosecutor's office, absent other facts of association with the case, does not create a reasonable question as to a judge's impartiality under 28 U.S.C. § 455(a). See United States v. Ruzzano, 247 F.3d 688, 693 (7th Cir. 2001) (holding that judge was not disqualified under § 455(a) for being a former assistant United States attorney in the office handling the prosecution); United States v. Di Pasquale, 864 F.2d 271, 279 (3d Cir. 1988) (holding that impartiality of judge was not in doubt where defendant had not shown the judge's prior involvement as a prosecutor in his case); see also Laird v. Tatum, 409 U.S. 824, 830, 93 S.Ct. 7, 34 L.Ed.2d 50 (1972) (Justice Rehnquist stating that his employment at the Justice Department where the case was pending was, of itself, not grounds for discretionary disqualification).
Of itself, being an attorney in the district attorney's office during the charging and preparation of the case is not a sufficient basis for disqualification. A clear majority of states agrees. See Flamm, supra, at 328-29; see, e.g., Payne v. State, 48 Ala.App. 401, 265 So.2d 185 (1972) ("The holding of prosecutorial office as distinguished from working on a concrete piece of litigation is not alone disqualifying for one who later becomes a judge."); see generally Jay M. Zitter, Annotation, Prior Representation or Activity as Prosecuting Attorney as Disqualifying Judge from Sitting or Acting in Criminal Case, 85 A.L.R.5th 471 (2001) (discussing and collecting cases).
See, e.g., Payne v. State, 48 Ala.App. 401, 265 So.2d 185, 192 (1972); Lofton v. State, 57 Ark. App. 226, 944 S.W.2d 131, 135 (1997); People v. Burnett, 73 Ill.App.3d 750, 29 Ill.Dec. 678, 392 N.E.2d 235 (1979); People v. Delongchamps, 103 Mich.App. 151, 302 N.W.2d 626 (1981); State v. McNamara, 212 N.J.Super. 102, 514 A.2d 63 (App.Div. 1986); People v. Mitchell, 137 Misc.2d 450, 521 N.Y.S.2d 639, 640 (County Ct. 1987); Commonwealth v. Abu-Jamal, 553 Pa. 569, 720 A.2d 121 (1998); Owens v. State, 13 S.W.3d 742 (Tenn.Crim.App. 1999); Gamez v. State, 737 S.W.2d 315, 319 (Tex.Cr.App. 1987). But see State ex rel. Corbin v. Superior Court of Ariz., 155 Ariz. 560, 748 P.2d 1184, 1186 (1987) (holding that when adversarial proceedings in a criminal case are assigned to a judge who was a member of the prosecution staff at the time the prosecution commenced, the judge should take appropriate steps to have the case assigned to another judge).
Many trial and appellate judges have spent a portion of their careers working for government agencies; disqualification should be based on bias and prejudice, or the reasonable appearance of partiality, not on technical grounds having to do with prior governmental association. See Gipson, 835 F.2d at 1326.
B. Julien's Disqualification Motion
Section 16-6-201 and Crim. P. 21 address disqualification motions. If the facts of two affidavits state grounds for disqualification, the judge must disqualify himself or herself:
A motion for change of judge on any ground must be verified and supported by the affidavits of at least two credible persons not related to the defendant, stating facts showing the existence of grounds for disqualification. If the verified motion and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself. After disqualifying himself, the judge may require a full hearing upon the issues raised by the affidavits and shall request that another judge conduct the hearing. The other judge shall make findings of fact with regard thereto, and such findings shall be included as a part of the trial court record.
§ 16-6-201, 6 C.R.S. (2001).
Upon the filing of a motion under this section (b) [substitution of judges], all other proceedings in the case shall be suspended until a ruling is made thereon. If the motion and supporting affidavits state facts showing grounds for disqualification, the judge shall immediately enter an order disqualifying himself or herself. Upon disqualifying himself or herself, the judge shall notify forthwith the chief judge of the district, who shall assign another judge in the district to hear the action.
Crim. P. 21(b)(3).
In ruling on the disqualification motion, a judge must accept as true the factual statements contained in the motion and affidavits. People v. Botham, 629 P.2d 589, 595 (Colo. 1981). The judge must determine as a matter of law whether they allege legally sufficient facts for disqualification. S.S. v. Wakefield, 764 P.2d 70, 73 (Colo. 1988).
Julien did not contend that Judge Schwartz had any actual bias or prejudice against him or any disqualifying interest in the case. Instead, as conclusive evidence of an appearance of bias, Julien relied on the fact that Judge Schwartz had been employed by the district attorney's office as a team leader five weeks before his assignment to Julien's case.
Of itself, Judge Schwartz's previous employment as a member of the district attorney's office did not mandate his recusal sua sponte or in response to Julien's motion. Canon 3(C)(1) does not impute the knowledge of government attorneys to other attorneys in that office, and Colorado has no bright-line rule that imposes a waiting period before one may serve as a judge in cases involving the judge's former office. The statutes and rules contain no provision requiring a judge to disclose or disqualify himself sua sponte for an association that Canon 3(C)(1) excepts as a basis for disqualification.
The court of appeals ruled that Judge Schwartz should have disclosed sua sponte his prior association with the district attorney's office. However, because Canon 3 does not make this association of itself the basis for disqualification, we do not agree that sua sponte disclosure was necessary.
Neither Judge Schwartz nor Judge Martinez found any involvement with Julien's case in Judge Schwartz's former capacity as a prosecutor. Had Judge Schwartz personally participated in the prosecution of Julien's case in any way, including having been in a supervisory capacity over attorneys conducting the investigation or prosecution, or had the judge gained personal knowledge of disputed evidentiary facts during his former association with the district attorney's office, Canon 3(C)(1) would have disqualified him from serving as a judge in this case.
During the hearing before Judge Schwartz on his disqualification motion, Julien alleged that his name had been mentioned to Judge Schwartz in another person's case. Judge Schwartz said he had no recollection of this but that Julien could raise this and any other matter with Judge Martinez.
Julien raised no basis for disqualifying Judge Schwartz under Canon 3, Crim. P. 21(b)(3), or section 16-6-201(3), but the appearance of bias can be damaging to public confidence in the administration of the court system. Botham, 629 P.2d at 595. When Julien made his disqualification motion after his conviction and before sentencing, Judge Schwartz, after determining that no basis for disqualification existed, suspended further proceedings and sent the matter to Judge Martinez for a ruling on substitution of judge.
Taking the allegations Julien made through his affidavit as being true, Judge Martinez determined that "there's been no showing that Judge Schwartz supervised [the prosecutor], that Judge Schwartz was involved in any way in the case, that Judge Schwartz investigated the case, that he was a team leader of anybody who in fact was in the case. The affidavit does not show any kind of involvement whatsoever of Judge Schwartz." (Emphasis added.)
The record does not support any basis for Judge Schwartz's disqualification. The court of appeals erred by imputing the knowledge of other deputy district attorneys in the office to Judge Schwartz and reversing Julien's conviction, based only on the judge's prior association with that office.
The court of appeals cites People v. Macrander, 828 P.2d 234 (Colo. 1992) in support of Judge Schwartz's disqualification. We find this case inapplicable because it turned on a statutory grounds for disqualification of a juror and did not address Canon 3(C)(1)'s association exception. The challenge there was to a juror who was related to an attorney of record.
III.
Accordingly, we reverse the judgment of the court of appeals and reinstate Julien's conviction and sentence. We remand this case to the court of appeals for consideration of any issues remaining on appeal.
Justice BENDER dissents, and Justice MARTINEZ joins in the dissent.