Johnson v. District Court In and For Jefferson County

• Decision Date: 09 January 1984
• Docket Number: No. 83SA368,83SA368
• Citation: 674 P.2d 952
• Parties: Carl JOHNSON, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF JEFFERSON, State of Colorado, and the Honorable Judge Gaspar Perricone, one of the judges thereof, Respondents.
• Court: Colorado Supreme Court

Page 952

674 P.2d 952

Carl JOHNSON, Petitioner, v. The DISTRICT COURT In and For the COUNTY OF JEFFERSON, State of Colorado, and the Honorable Judge Gaspar Perricone, one of the judges thereof, Respondents.

No. 83SA368.

Supreme Court of Colorado En Banc.

Jan. 9, 1984.

John R. Holland, Denver, for petitioner.

Stephen W. Miller, Golden, Victor F. Boog, Bradley, Campbell & Carney, P.C., Golden, for respondents.

NEIGHBORS, Justice.

This is an original proceeding filed pursuant to C.A.R. 21 by the petitioner, Carl Johnson. We issued a rule to show cause why the respondent judge should not disqualify himself and why he should not grant a change of venue. We now make the rule absolute, in part, and discharge it, in part.

I.

In April 1983, we vacated the district court's judgment denying the petitioner's request for a preliminary injunction and remanded the case to the trial court for further proceedings to determine whether the Jefferson County Board of Health's (Board) threats to discharge him, which precipitated his resignation as the Jefferson County Public Health Officer, violated constitutional standards designed to protect free speech. Johnson v. Jefferson County Board of Health, 662 P.2d 463 (Colo.1983).

On July 29, 1983, the petitioner filed a motion for a change of judge and a change of venue in the respondent court. As grounds for the disqualification motion, the petitioner alleged that the respondent judge is prejudiced against him. The petitioner based his motion for a change of venue upon his contention that the prior proceedings in the case and widely-publicized allegations made by the Board had so prejudiced Jefferson County inhabitants against him that he could not receive a fair trial on his damage claims.

All of the incidents which gave rise to the disqualification motion consist of ex parte communications between counsel and the respondent judge, conversations between attorneys, and informal conferences between the judge and the lawyers which were not recorded by a court reporter. Understandably, numerous factual disputes now exist over the contents of the statements attributed to the respondent judge and the respective attorneys. In order to place this controversy in focus, we will summarize the allegations made in the affidavits of the petitioner's attorney, the judge's response which is contained in his order denying the petitioner's motion, and the affidavits of the attorneys who represent the Board and the individual Board members.

The petitioner's attorney, John Holland (Holland), submitted two affidavits in support of the motion for a change of judge. In his affidavits, Holland states that on May 20, 1983, the respondent judge summoned counsel for all parties to a status conference to determine the course of further proceedings in light of the remand from this court. Holland alleges that the respondent judge made the following statements to him before opposing counsel arrived: (1) The judge stated that he had talked with the Board's attorney about settlement. Holland said both he and his client were not opposed to a settlement, but the Board would not seriously consider it. The judge then replied that he could "make a settlement happen." (2) He further said, "[s]peaking as a private citizen of Jefferson County," in his opinion, "it would not be good for Carl Johnson to get his job back. In fact it would be a disaster."

Holland claims in his affidavit that the judge made the following comments after the status conference began: (1) The respondent judge wanted all parties to submit proposed findings of fact and conclusions of law because "I don't have the time to review this whole record with my case load." ¹ (2) The judge expressed anger at the ruling of this court, saying that it was "gutless" not to direct him to do "what they wanted," and that it was apparent to him that "Joe Quinn [Justice Joseph R. Quinn, the author of the court's opinion] wants Johnson to get his job back," and that if "I [respondent judge] don't give it to him, he will." (3) The judge said that Holland should have brought suit in the federal court where they understand these kinds of cases.

Holland further alleges that approximately two weeks later he spoke with the Board's attorney, Stephen Miller (Miller), who told him that the respondent judge had attempted to arrange a settlement conference for all parties with Judge Anthony Vollack. Holland also claims that Miller told him that both he and his father had worked in Judge Vollack's law firm and that Judge Vollack had previously represented the Board. Holland states that he then called the respondent judge, who told him that he had asked Judge Vollack to speak directly to the Board members about settling the case.

The respondent judge, in his order denying the petitioner's motion, states that he "feels compelled to comment on some of the allegations contained in Mr. Holland's affidavits only because of inferences therein that this Court was disrespectful to the Supreme Court and one of its justices." The judge denies making the statement regarding his ability to make a settlement happen. The judge claims that the statements about the petitioner getting his job back were taken out of context. He alleges that he only meant that since the Board did not want petitioner reinstated, "it would be better for [petitioner] to accept a monetary settlement because it would not be good for him [petitioner] to have his job back." (Emphasis in original.) The respondent judge admits requesting that the parties' proposed findings of fact be referenced to folio numbers in the transcript because he did not have time to review the entire record, but again claims that this statement was taken out of context. The judge admits agreeing with Holland that "the federal court has more experience in dealing with First Amendment issues," and that he was disappointed "that this matter could not be disposed of quickly as a result of the remand." The judge "denies any reference in a derogatory sense toward Justice Quinn or the Supreme Court." Finally, the judge states that he does not recall telling petitioner's attorney that he asked Judge Vollack to speak to the Board members. He also states that he spoke with Judge Vollack who also has no recollection of the conversation. The order issued by the respondent judge concludes: "[B]ecause none of the statements purported to be made display any prejudice or predispositional thought by the Court, the Court denies the motion for change of judge." The motion for a change of venue was denied without explanation.

The attorneys representing the Board and its individual members submitted affidavits opposing the petitioner's motion and have represented the respondent judge in this original proceeding. We note that C.R.C.P. 97, which governs disqualification, does not authorize the filing of counter-affidavits. See People ex rel. Burke v. District Court, 60 Colo. 1, 152 P. 149 (1915). However, the facts alleged in these affidavits are useful in placing this controversy in perspective. Miller agrees that respondent judge made the statement that he did not have the time to review the whole record. Miller does not recall hearing the judge make any of the statements regarding this court, and states that the judge's demeanor could not be described as angry. Miller agrees he advised Holland that respondent judge had told him about contacting Judge Vollack regarding a settlement conference. Miller also advised Holland of his and his father's "association with Judge Vollack in the private practice of law." However, Miller denies telling Holland that he or his father were ever in Judge Vollack's law firm, or that Judge Vollack represented the Board.

Victor Boog, the attorney who represents the Board members individually, states that respondent judge suggested submission of proposed findings of fact, and that "[e]ach of the attorneys present concluded that such a procedure would be appropriate and would eliminate any need to review the whole record since counsel could direct the Judge to those portions of the record which they deemed relevant." He denies that the judge made any statement at the status conference regarding this court or Justice Quinn. Boog then enumerates actions taken by the respondent judge during earlier proceedings in the case which he views as exhibiting "the highest standards of judicial integrity and fair play" on the part of the judge.

II.

C.R.C.P. 97 provides:

"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."

Ordinarily, the question of whether a judge should be disqualified in a civil case is a matter within the discretion of the trial court. In re Marriage of Mann, 655 P.2d 814 (Colo.1982). However, where an attorney for one of the litigants signs a verified affidavit alleging conduct and statements on the part of a trial judge which, if true, show bias or prejudice or the appearance of bias or prejudice on the part of the trial judge, it is an abuse of discretion if that judge...