People ex rel. N.R.

• Citation: 139 P.3d 671
• Decision Date: 26 June 2006
• Docket Number: No. 05SA273.,No. 05SA294.,05SA273.,05SA294.
• Parties: The PEOPLE of the State of Colorado, Appellant. In the Interest of N.R., a juvenile, now emancipated, Appellee. The People of the State of Colorado, In the Interest of N.R., a juvenile, now emancipated.
• Court: Colorado Supreme Court

139 P.3d 671

The PEOPLE of the State of Colorado, Appellant In the Interest of N.R., a juvenile, now emancipated, Appellee The People of the State of Colorado In the Interest of N.R., a juvenile, now emancipated.

No. 05SA273.

No. 05SA294.

Supreme Court of Colorado, En Banc.

June 26, 2006.

As Modified on Denial of Rehearing July 31, 2006.

Robert E. Watson, District Attorney, Thirteenth Judicial District, Robert C. James, Deputy District Attorney, Burlington, Colorado, Attorneys for Appellant.

Haddon, Morgan, Mueller, Jordan, Mackey & Foreman, P.C., Saskia A. Jordan, Gail K Johnson, Denver, Colorado, Attorneys for Appellee.

Justice RICE delivered the Opinion of the Court.

I. Facts and Procedural History

This case arises from a one-vehicle accident that occurred in Yuma County on or about February 18, 2002. Mallory Funaro, who was fifteen years old at the time of the accident, was driving a truck in which sixteen-year-old N.R. was a passenger. The truck rolled over; Funaro was ejected from the truck and ended up pinned underneath it. She was alive, but seriously injured. N.R. was aware that Funaro was alive and pinned under the truck, but he left the accident scene and did not inform anyone of Funaro's predicament.

Law enforcement discovered the accident and Funaro at approximately 3:00 a.m., some two hours after the accident. Funaro was still alive and pinned under the truck, wearing jeans and a sports bra with no jacket. The temperature was below freezing in the two hours Funaro spent pinned under the truck. Funaro was transported to Yuma Hospital, where she died after seventeen days of unsuccessful medical care.

At the time of the accident, the District Attorney for the Thirteenth Judicial District, which encompasses Yuma County, was Mark T. Adams. District Attorney Adams investigated the case and determined that there was not sufficient evidence to convict N.R. of any crime in connection with the accident. He therefore declined to press charges against N.R. On September 29, 2004, Brian and Beverly Funaro filed a Petition for Order Requiring District Attorney to Explain Refusal to Prosecute under section 16-5-209, C.R.S. (2005).

In the November 2004 general election, Robert Watson replaced Adams as the District Attorney for the Thirteenth Judicial District. On February 17, 2005, District Attorney Watson brought a juvenile-delinquency petition charging N.R. with committing acts in connection with Funaro's death that if committed by an adult, would constitute the offenses of attempted second-degree murder, section 18-3-103(1), 18-2-101 C.R.S. (2005), manslaughter, id. section 18-3-104(1)(a), three counts of attempt to influence a public servant, id. section 18-8-306, two counts of contributing to the delinquency of a minor, id. section 18-6-701, criminally negligent homicide, id. section 18-3-105, and conspiracy to commit attempt to influence a public servant, id. sections 18-8-306, 18-2-201.¹

On June 2, 2005, N.R. filed a Motion to Dismiss or, in the Alternative, to Disqualify District Attorney Robert Watson and Appoint a Special Prosecutor. This motion argued, among other things, that there was no probable cause to support the attempted second-degree murder charge. In an order dated July 20th, 2005, Yuma County District Judge Steven E. Shinn, viewing the facts in the light most favorable to the prosecution, determined that probable cause existed to support the charges against N.R., including the attempted second-degree murder charge, and bound the case over for trial.

On September 12, 2005, Yuma County District Judge Michael Singer issued an order on N.R.'s Motion to Dismiss or, in the Alternative, to Appoint a Special Prosecutor. Judge Singer denied N.R.'s motion to dismiss primarily because of Judge Shinn's previous determination that probable cause supported the allegations against N.R.

With respect to N.R.'s request for disqualification, Judge Singer first considered section 20-1-107(2) of the Colorado Code, which authorizes disqualification of a district attorney when "the court finds that the district attorney has a personal or financial interest or special circumstances exist that would render it unlikely that the defendant would receive a fair trial." Noting that the legislature amended section 20-1-107 in 2002, Judge Singer concluded that the amended version of the statute should apply because District Attorney Watson filed the juvenile-delinquency petition in 2005. Applying this section to the instant case, Judge Singer ruled that the district attorney's office did not have an interest in the case that required its disqualification.

However, Judge Singer ruled that disqualification was necessary because of an "appearance of impropriety." Judge Singer concluded that continued prosecution of N.R. by District Attorney Watson would create an appearance of impropriety because Watson had "enjoyed substantial political support from the mother of the victim" in his campaign for district attorney and because Watson's decision to prosecute N.R. reversed the "rather strongly held position" of former District Attorney Adams that prosecution of N.R. was inappropriate. Judge Singer further concluded that an appearance of impropriety required the disqualification of Assistant District Attorney Steve Jones, who had "had a significant amount of involvement with the case during Mr. Adams' tenure."

To remedy the appearance of impropriety, Judge Singer ordered District Attorney Watson to choose another deputy district attorney from the Thirteenth District to prosecute the case. He further ordered Watson to erect an "ethical wall" to prevent Watson and Jones from having any further involvement in the case.

On September 19, 2005, the People filed a notice of interlocutory appeal of the court's order disqualifying Watson and Jones. On October 11, 2005, N.R. filed a combined Petition for a Rule to Show Cause Pursuant to C.A.R. 21 and Motion to Consolidate Original Proceeding with Pending Interlocutory Appeal. The Petition to Show Cause requested this court "to issue a rule to show cause why the District Attorney and his office do not have a conflict of interest in prosecuting this case and why a special prosecutor from outside the Thirteenth Judicial District should not be appointed." On October 20, 2005, this court granted N.R.'s motion to consolidate his petition with the People's interlocutory appeal and issued the requested rule to show cause.

II. Analysis

We are faced, on the one hand, with the People's appeal of the trial court's decision to disqualify Watson and Jones because of an appearance of impropriety, and on the other hand, with N.R.'s argument that the district court should have found a conflict of interest and disqualified the entire Thirteenth Judicial District Attorney's Office (hereinafter District Attorney's Office). We reject N.R.'s argument that there is a conflict of interest in this case, and we agree with the People that the trial court erred in disqualifying Watson and Jones. We therefore discharge the rule and reverse the trial court's disqualification order.

This opinion proceeds as follows. First, we conclude that the 2002 amendment to section 20-1-107 eliminated "appearance of impropriety" as a basis for disqualification of district attorneys. Next, we apply section 20-1-107 to the instant case and conclude that it does not authorize disqualification.

A. The Trial Court Erred in Basing Disqualification on an Appearance of Impropriety

Prior to its amendment in 2002, section 20-1-107 provided for disqualification "[i]f the district attorney is interested or has been employed as counsel in any case which it is his duty to prosecute or defend." § 20-1-107, C.R.S. (2001) (amended 2002). The amended version of section 20-1-107 specifies that "[a] district attorney may only be disqualified in a particular case at the request of the district attorney or upon a showing that the district attorney has a personal or financial interest or finds special circumstances that would render it unlikely that the defendant would receive a fair trial." § 20-1-107(2), C.R.S. (2005).² See An Act Concerning Procedural Changes for the Strengthening of Criminal Laws, ch. 210, sec. 4, § 20-1-107(2), 2002 Colo. Sess. Laws 758-59 (making this amendment).

We conclude that, in using the word "only" and defining with specificity the circumstances under which disqualification is proper, the amended version of section 20-1-107 eliminates "appearance of impropriety" as a basis for disqualification.³ Therefore, the trial court did not have the authority to disqualify Watson and Jones on this basis. See DeLong v. Trujillo, 25 P.3d 1194, 1197 (Colo. 2001) (concluding that an error of law constitutes an abuse of discretion). Below we consider whether disqualification was appropriate under section 20-1-107.

B. Section 20-1-107 Does Not Authorize Disqualification in This Case

1. The Amended Version of Section 20-1-107 Controls This Appeal

Before applying the statute to the trial court's disqualification order, we must answer the preliminary question of whether the amended version of the statute controls the case. The accident that gave rise to this prosecution occurred in February 2002, some five months before July 2002, the date on which the amended version of section 20-1-107 became effective. However, the conduct governed by section 20-1-107 is not N.R.'s behavior on the night of the accident, but District Attorney Watson's decision to file charges against N.R. Because Watson made this decision after July 2002, the amended version of section 20-1-107 controls the instant appeal.

There is a presumption in Colorado law that legislation is to be applied prospectively. § 2-4-202, C.R.S. (2005); Ficarra v. Dep't of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 13 (Colo.1993). We have held that "[l]egislation is applied prospectively when it operates on transactions that occur after its effective date." Fic...