People v. District Court In and For Second Judicial Dist., 26864

• Decision Date: 21 July 1975
• Docket Number: No. 26864,26864
• Citation: 189 Colo. 159,538 P.2d 887
• Parties: The PEOPLE of the State of Colorado and Dale Tooley, District Attorney in and for the Second Judicial District, State of Colorado, Petitioners, v. The DISTRICT COURT, IN AND FOR the SECOND JUDICIAL DISTRICT, State of Colorado, the Honorable Robert E. McLean, District Judge thereof, Respondents.
• Court: Colorado Supreme Court

Page 887

538 P.2d 887

189 Colo. 159

The PEOPLE of the State of Colorado and Dale Tooley,

District Attorney in and for the Second Judicial

District, State of Colorado, Petitioners, v. The DISTRICT COURT, IN AND FOR the SECOND JUDICIAL DISTRICT,

State of Colorado, the Honorable Robert E. McLean,

District Judge thereof, Respondents.

No. 26864.

Supreme Court of Colorado, En Banc.

July 21, 1975.

Dale Tooley, Dist. Atty., O. Otto Moore, Asst. Dist. Atty., Brooke Wunnicke, Chief Appellate Deputy Dist. Atty., Denver, for petitioners.

Holm, Willis & Dill, P.C., Jon L. Holm, Denver, for respondents.

HODGES, Justice.

This is an original proceeding. The district attorney petitioned for a writ in the nature of mandamus and prohibition. It was therein urged that an order by the respondent district court disqualifying the district attorney and his staff from further participating as prosecutor in a pending criminal action be invalidated by this court. We issued a rule on the respondent district court to show cause why the relief requested should not be granted. A response and briefs by the parties have now been filed. Our review reveals that the order disqualifying the district attorney and his staff is clearly improper, and we therefore make the rule absolute by granting the relief sought.

Charles E. Blair is charged by a grand jury indictment with twenty counts of fraudulent sale of securities, and a single count of conspiracy. District attorney, Dale Tooley, was a candidate for mayor of Denver at the time of the respondent district court's ruling.

On May 11, 1975, the Rocky Mountain News, published an editorial endorsing the district attorney's candidacy for mayor. The only reference to the defendant Blair was contained in the following paragraph:

'More importantly, he showed a willingness bordering on zeal to seek out controversial issues and do what he could to bring about their resolution. In most cases he was successful. Gun control, the role of Big Oil in creating the energy crisis, methadone treatment abuses, Pastor Charles E. Blair's shaky financial deals and the use of civil consent decrees and criminal prosecution to end usurious interest charges and sleazy sales and repair practices are but a few of the problems Tooley addressed. All are people oriented.'

On May 19, 1975, the Committee to Elect Dale Tooley mayor of Denver caused an exact copy of the Rocky Mountain News editorial to be published in the Denver Post as a paid political advertisement.

On May 22, 1975, counsel for defendant Blair presented to a deputy district attorney a motion to disqualify the district attorney from further '. . . prosecutorial contact with the defendant Charles E. Blair.' No prior or other notice of the motion was given to the district attorney. The trial judge, before whom certain other motions in this case were pending and scheduled for hearing on that day, was otherwise occupied. He directed the parties to the clerk of the chief judge for reassignment to another division of the district court.

At 11:35 a.m., the pending motions were placed with the respondent district judge for hearing and disposition. However, rather than conducting a hearing on the previously filed motions, the respondent district judge chose to consider only the just filed motion to disqualify the district attorney. The objection of the deputy district attorney as shown from the transcript of the hearing clearly pointed out the real difficulty and impropriety in the respondent district court's precipitous consideration of this motion.

'We would object on the basis that the rules call for a certain period of time for filing motions, notice to the opposing party, so that we would have an opportunity to find out factual matters, present witnesses; possibly in this particular regard as to who ran the ad and who was behind it; number two, what law would be applicable to the subject. We have not had an opportunity this morning to do research.'

The respondent district judge overruled this objection, heard arguments, and then granted the defendant's motion to disqualify the district attorney. The ruling was entered just two hours after the deputy district attorney first received the motion.

The defendant's motion was apparently motivated by the district attorney's personal participation before the grand jury which indicted Blair, the publicity generated by the return of the indictment, the citation of the Blair case in the editorial, and the use of this editorial in a political advertisement.

I.

The parties have thoroughly briefed the...