Judicial Disqualification in Colorado
In Colorado, motions for change of judge for cause in civil proceedings are governed primarily by Colorado Rule of Civil Procedure 97.1 C.R.C.P. 97 expressly allows a judge in a civil case to disqualify herself on her own motion in certain enumerated circumstances.
In criminal cases, judicial disqualification is governed jointly by Colo. Rev. Stat. §16-6-2014 and Rule of Criminal Procedure 21(b). Pursuant to C.R.S. 16 6 201(1)(d), a judge is disqualified to hear a case if he is interested or biased with respect to the case, the parties, or counsel.7 According to C.R.S. 16-6-201(3) a motion to disqualify must be verified and supported by affidavits of at least two credible persons not related to the defendant, and must state facts from which it may reasonably be inferred that the judge has a bias that will, in all probability, prevent him from dealing fairly with the defendant.
In addition to its judicial disqualification statutes and criminal court rule, Colorado has also adopted the Code of Judicial Conduct. It should be noted, however, that whereas most western jurisdictions permit parties to disqualify judges peremptorily, in Colorado a motion to disqualify must be “legally sufficient” to warrant that result.
In deciding whether a motion is legally sufficient, a Colorado court may consider only the motion and supporting affidavits, and must accept the facts contained in them as true. Unless it can be reasonably inferred from the facts alleged in the motion and affidavits that the judge has a bias that will, in all probability, prevent her from dealing fairly with a party, the judge not only may deny the motion, but has a duty to do so.
1. The Colorado Supreme Court has issued many recent decisions discussing in detail the subject of judicial disqualification. Opinions of the Colorado Supreme Court are available to the public and can be accessed through the Court’s homepage and are posted on the Colorado Bar Association homepage at www.cobar.org. See, e.g., Colorado.
2. Represented here are the opinions of the Colorado Judicial Ethics Advisory Board, many of which deal with situations involving when a judge should recuse from a case.
3. For a comprehensive overview of recusal and disqualification law in Colorado which is updated annually see Flamm, R., Judicial Disqualification: Recusal and Disqualification of Judges, § 28.7 See also People v. Flockhart, Supreme Court Case No. 10SC218, SUPREME COURT OF COLORADO, 2013 CO 42; 304 P.3d 227; 2013 Colo. LEXIS 471, at *51 (Colo. 1, 2013), citing Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 1REFERENCES 1.4, at 294-95 (2d ed. 2007).