Comiskey v. District Court In and For County of Pueblo, 96SA316

• Decision Date: 28 October 1996
• Docket Number: No. 96SA316,96SA316
• Citation: 926 P.2d 539
• Parties: Douglas COMISKEY, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF PUEBLO, State of Colorado; The Honorable Eugene Halaas and The Honorable Dennis Maes, two of the Judges Thereof, Respondents.
• Court: Colorado Supreme Court

Page 539

926 P.2d 539

Douglas COMISKEY, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF PUEBLO, State of Colorado; The Honorable Eugene Halaas and The Honorable Dennis Maes, two of the Judges Thereof, Respondents.

No. 96SA316.

Supreme Court of Colorado En Banc.

Oct. 28, 1996.

Rehearing Denied Nov. 18, 1996.

David F. Vela, Colorado State Public Defender, Michael J. Heher, Deputy State Public Defender, Denver, for Petitioner.

G.F. Sandstrom, District Attorney, Tenth Judicial District, G.F. Sandstrom, Jr., District Attorney, Pueblo, for Respondents.

Justice MULLARKEY delivered the Opinion of the Court.

Petitioner Douglas Comiskey (Comiskey), the defendant in this first degree murder case, initiated this original proceeding pursuant to rule 21 of the Colorado Rules of Appellate Procedure to obtain relief from an order entered by the respondent, the District Court for the Tenth Judicial District of the State of Colorado, denying Comiskey's motion to recuse the trial court judge. Having issued a rule to show cause why the relief requested should not be granted, we discharge the rule.

I

Comiskey is charged with two counts of first degree murder pursuant to section 18-3-102, 8B C.R.S. (1986 & 1996 Supp.), in a case pending in Pueblo County District Court before Judge Eugene Halaas. On August 19, 1996, Comiskey filed a motion for substitution of judges pursuant to Crim.P. 21 setting forth grounds for relief with accompanying affidavits. Specifically, the motion stated that Judge Halaas was biased because he engaged in ex parte communications with an expert witness who was acting as an agent of the state.

According to the motion, on August 9, 1996, after defense counsel had entered his appearance, Judge Halaas signed two search warrants authorizing a physical examination and x-rays of Comiskey's hands. The physical examination was to be performed by Dr. Donald Luebke. On the evening of August 9, 1996, defense counsel became aware of the search warrants and delivered a letter to the Pueblo County Jail informing Dr. Luebke that he was not to interview Comiskey or have any physical contact with him. Dr. Luebke called defense counsel and indicated that he was going to contact the district attorney and the court. Later that evening, Dr. Luebke called defense counsel at home and indicated that he had conducted the examination after talking with a deputy district attorney and the trial judge. This alleged contact with the trial judge was ex parte and not on the record. The motion for substitution argued that the ex parte communication between Judge Halaas and Dr. Luebke was grounds for recusal. ¹

After receiving the motion for substitution, Judge Halaas issued an order dated August 19, 1996, which "identified the issues presented by Defendant's Motion for Substitution," and requested a "transfer" of the matter to Chief Judge Dennis Maes for a ruling on the identified issues. On August 21, 1996, Chief Judge Maes issued an order denying the motion for substitution of judges and remanded the case back to Judge Halaas.

II

Comiskey raises two main arguments in this matter. First, Comiskey argues that the procedure employed by the trial court which transferred the disqualification motion to another judge violated the requirements of Crim.P. 21 and section 16-6-201, 8A C.R.S. (1986). Because he contends that Colorado law does not permit district court judges to divide a case, Comiskey would have us conclude that the procedure employed in this case was tantamount to a recusal by the trial court. Second, Comiskey argues that the substance of the motion to recuse and its accompanying affidavits establish facts sufficient to compel the trial court to grant the recusal motion in this case. We reject both arguments.

A

Comiskey's procedural argument concerns the requirements of section 16-6-201, 8A C.R.S. (1986), and Crim. P. 21(b) which provide the procedure for the disqualification of a judge who is "in any way interested or prejudiced with respect to the case, the parties, or counsel." § 16-6-201(1)(d), 8A C.R.S. (1986); Crim.P. 21(b)(1)(IV). ² According to section 16-6-201(3),

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.

§ 16-6-201(3), 8A C.R.S. (1986). Similarly, the Colorado Rules of Criminal Procedure state:

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 forthwith notify the chief judge of the district, who shall assign another judge in the district to hear the action.

Crim.P. 21(b)(3). According to Comiskey, the language of both Crim. P. 21(b) and section 16-6-201 requires that the ruling on the motion for substitution be made by the trial judge personally. Therefore, Comiskey argues that the procedure in this case violated rule 21(b) and section 16-6-201 and that the use of such a procedure requires that a different judge be assigned to preside over the case. We disagree.

It is clear that Judge Halaas did not follow the procedure contemplated by the statute and the rule. However, nothing in the statute and rule indicates that the procedure described is the exclusive method for deciding a recusal motion. Thus, the question before us is whether Judge Halaas committed reversible error when he referred the motion to the chief judge for decision.

This is a matter of first impression for this court and Comiskey argues that we should follow Beckord v. District Court of Larimer County, 698 P.2d 1323 (Colo.1985), and hold that Judge Halaas effectively disqualified himself when he referred the recusal motion to the chief judge for determination. The situation here, however, is far different from Beckord.

Beckord concerned a judge who was presiding over multidistrict litigation involving several consolidated cases. Id. at 1325. Concluding that it would be improper for him to hear issues in which the State of Colorado was involved, the judge in Beckord reassigned those issues to another judge. ³ Id. at 1329. We held in Beckord that the trial judge had no authority to reassign any part of a consolidated multi-district litigation. Id. at 1328. We also held that by finding himself to be disqualified from some of the issues in the case, the trial judge necessarily disqualified himself from hearing any part of the consolidated case. Id. at 1329.

There are several important differences between Beckord and this case. First, the Beckord ruling prohibiting the referral of certain issues was based on the rule governing multi-district litigation. See C.R.C.P. 42.1. Under that rule, assignments are made by the Chief Justice, and the assigned trial judge cannot make a reassignment of all or part of the case. Beckord, 698 P.2d at 1328. Second, the Beckord trial judge found that he was disqualified from deciding issues involving the state because of prior contacts he had had with the state's trial counsel. Id. at 1329. Therefore, Beckord stands for the proposition that a judge who is disqualified from part of a consolidated case is disqualified from the entire case. In Comiskey's case, there is no basis to impute disqualification from the fact that Judge Halaas referred the recusal motion to Chief Judge Maes.

The Colorado Court of Appeals recently dealt with the issue now before us in People v. Lanari, 926 P.2d 116 (Colo.App.1996). After his convictions were reversed and the case was remanded, the defendant in Lanari moved to recuse the trial judge, arguing that the judge was biased because he had issued rulings that were ultimately reversed by the supreme court. See Lanari v. People, 827 P.2d 495 (Colo.1992). Like the present case, the trial judge referred the motion for recusal to the chief judge who denied it.

On appeal, Lanari argued that the procedure employed by the trial court in denying the motion for substitution was erroneous and required the judge's automatic recusal. Lanari relied on Crim. P. 21(b) and section 16-6-201, as well as the holding in Beckord. The court of appeals disagreed and reasoned that, unlike Beckord, the trial judge in Lanari's case "made no conclusions that it would be improper for him to consider the issue on remand." Lanari, at 120. The court of appeals therefore affirmed the procedure employed by the trial court and held that the actions of the trial court were not error, did not prejudice the defendant and did not undermine the fairness of the trial. Id.

In determining whether a motion for substitution of a judge is legally sufficient, a trial court may consider only the motion and affidavits and must accept the facts contained in those documents as true. People v. Botham, 629 P.2d 589, 595 (Colo.1981). The motion and affidavits are legally sufficient if they " 'state facts from which it may reasonably be inferred that the respondent judge has a bias or prejudice that will in all probability prevent him or her from dealing fairly with a party.' " People v. District Court, 898 P.2d 1058, 1061 (Colo.1995) (quoting People v. Hrapski, 718 P.2d 1050, 1054 (Colo.1986)); see also Smith v. District Court, 629 P.2d 1055, 1056 (Colo.1981).

While we agree that section 16-6-201 and Crim. P. 21(b) contemplate that the assigned trial judge initially rule on the motion for recusal, in this case there is no evidence that the procedure employed was unfair to Comiskey. On the contrary, because the ruling on the motion is limited solely to the reasonable inferences which can be drawn from the facts alleged in the motion and the supporting affidavits, it makes no difference whether the sufficiency of the motion is evaluated by the trial judge or another judge. In...