People v. District Court In and For Third Judicial Dist.

• Decision Date: 28 February 1977
• Docket Number: No. 27472,27472
• Citation: 560 P.2d 828
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the THIRD JUDICIAL DISTRICT, State of Colorado, and the Honorable Dean C. Mabry, District Judge thereof, Respondents.
• Court: Colorado Supreme Court

Page 828

560 P.2d 828

192 Colo. 503

The PEOPLE of the State of Colorado, Petitioner, v. The DISTRICT COURT IN AND FOR the THIRD JUDICIAL DISTRICT,

State of Colorado, and the Honorable Dean C.

Mabry, District Judge thereof, Respondents.

No. 27472.

Supreme Court of Colorado, En Banc.

Feb. 28, 1977.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Denver, Edward G. Donovan, Sol. Gen., Patricia W. Robb, Asst. Atty. Gen., Harold A. Haddon, Special Asst. Atty. Gen., Pueblo, for petitioner.

Bruce D. Pringle, Clark, Martin & Pringle, Denver, for respondents.

CARRIGAN, Justice.

This is an original proceeding in which the People seek to disqualify the respondent judge in two companion criminal cases pending in the district court of Las Animas County. We issued a rule to show cause, and having concluded that the respondent judge should be disqualified, we now make that rule absolute.

Following a series of newspaper articles in the nature of an 'expose,' a special state grand jury was convened to investigate alleged governmental corruption in Las Animas County and the City of Trinidad. The special assistant attorney general handling this case was and is the special prosecutor assigned to that grand jury. In an indictment returned September 10, 1976, the special grand jury charged that the defendants Montera and DeBono had destroyed certain docket books of the police court in Trinidad. A second indictment, returned September 17, 1976, charged that Montera had used his office as Chief of Police to purchase and resell firearms unlawfully.

Both cases immediately were assigned to the respondent judge. On December 3, 1976, before any court appearances in either case, the People filed in each case a motion to disqualify the respondent judge, with accompanying affidavits asserting that he was prejudiced and setting out alleged facts to support that assertion. He denied the motions on the ground that they were not filed within ten days after the cases were assigned to him, as required by Crim.P. 21(b)(1).

The People claim here, as in the trial court, that good cause for the late filing was shown in that the motions were filed immediately upon discovery of the facts primarily relied upon to show prejudice. Moreover, the People contend that the disqualification motion was filed under section 16--6--201, C.R.S.1973, which is nearly identical to Crim.P. 21(b)(1) but does not contain the ten-day filing limitation.

Having denied the disqualification motion as untimely, the respondent judge proceeded to 'further find even assuming the fact that they were timely filed that the same do not contain sufficient facts to disqualify and contain only suppositions and conclusions which are not adequate.' Overruling the People's request to delay further action in the case until a petition for prohibition could be presented to this court, the respondent judge then proceeded to hear and grant a motion to dismiss one of the two cases on the ground that it was barred by the statute of limitations.

I. TIMELINESS.

The applicable portion of Crim.P. 21(b) provides:

'(1) Within ten days after a case has been assigned to a court, a motion, verified and supported by affidavits of at least two credible persons not related to the defendant, may be filed with the court and served on the opposing party to have a substitution of the judge. Said motion may be filed after the ten-day period only if good cause is shown to the court why it was not filed within the original ten-day period. The motion shall be based on the following grounds:

(IV) The judge is in any way interested or prejudiced with respect to the case, the parties, or counsel.

(3) If the motion and supporting affidavits state facts showing grounds for disqualification, the judge must immediately enter an order disqualifying himself. At this time, the judge may certify the need for a judge to the Chief Justice of the Colorado Supreme Court, who shall assign a judge to the case.' Crim.P. 21(b). (Emphasis added.)

The People assert that their motion was filed, not under Rule 21(b), but under section 16--6--201, C.R.S. 1973. They argue that the ten-day limitation does not apply to motions for disqualification filed pursuant to the statute. The grounds for disqualification set out in the statute, however, are identical to those set out in the rule. Moreover, Crim.P. 21(b) has uniformly been applied in disqualification cases. See, e.g., Golden v. District Court, 186 Colo. 300, 527 P.2d 60 (1974); Austin v. Denver, 170 Colo. 448, 462 P.2d 600 (1970). One apparent purpose of Crim.P. 21(b) was to provide a standard by which to measure timeliness of a motion for disqualification whether filed pursuant to the statute or to that rule. See Del Castillo v. Wells, 22 Ariz.App. 41, 523 P.2d 92 (1974) (court modified change of judge statute by rule providing time limitation on filing). We hold that the requirements of Crim.P. 21(b) with respect to timely filing apply whether the movant expressly invokes that rule or purports to proceed only under section 16--6--201.

The People by affidavit set forth the following allegations in support of their claim that the respondent judge is prejudiced:

(1) Some of the allegations in the articles which led to the grand jury were directed toward him;

(2) he publicly criticized and characterized as 'muckraking' the news articles which led to convening the special state grand jury;

(3) he opposed empaneling the special state grand jury;

(4) he has stated that he purchased unspecified items from Montera and that all the allegations against Montera are 'muckraking'; and

(5) he is currently being investigated by the same special prosecutor and state grand jury which indicted the defendants, and thus he and the special prosecutor in the Montera and DeBono cases are adversaries.

From the record it is obvious that, for a substantial time before filing their disqualification motion, the People were aware of the facts underlying all their allegations except those set out in paragraph (5) above. The People have repeatedly asserted, however, that they moved to disqualify the respondent judge immediately upon learning the latter facts, I.e., that the judge was to be investigated by the grand jury. This did not occur until long after expiration of the ten-day period following assignment of the case, as provided in Rule 21(b)(1) for filing disqualification motions. The rule allows filing such a motion after the ten-day period upon a showing of 'good cause' for the delay. Here the issue is whether the nonoccurrence of the facts relied on as showing prejudice until after expiration of the ten-day period constitutes good cause.

When disqualifying facts do not occur or are not discovered by the moving party until after expiration of the time within which the motion and affidavits normally must be presented, application for a change of judge is timely if made as soon as possible after occurrence or discovery of those facts. Hendrickson v. Superior Court, 85 Ariz. 10, 330 P.2d 507 (1958); See, Dominic Leone Const. Co. v. District Court, 150 Colo. 47, 370 P.2d 759 (1962). We hold that, insofar as the motion to disqualify the respondent judge relies on allegations arising from his being investigated by the grand jury, good cause has been shown, and the motion was timely filed.

II. SUFFICIENCY OF ALLEGATIONS TO DISQUALIFY.

Basic to our system of justice is the precept that a judge must be free of all taint of bias and partiality.

'The principle of impartiality, disinterestedness, and fairness on the part of the judge is as old as the history of courts; in fact the administration of justice through the mediation of courts is based upon this principle. It is a fundamental idea, running through and pervading the whole system of judicature, and it is the popular acknowledgment of the inviolability of this principle which gives credit, or even toleration, to decrees of judicial tribunals.' State ex rel. Barnard v. Board of Education, 19 Wash. 8, 52 P. 317, 320--21 (1898).

Moreover, not only the actuality of fairness must concern us, but the appearance of fairness as well. Berger v. United States, 255 U.S. 22, 41 S.Ct. 230, 65 L.Ed. 481 (1921); Colorado Code of Judicial Conduct, Canon 3.C(1). A trial judge must 'conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.' A.B.A. Standards, The Function of the Trial Judge 1.5. Courts must meticulously avoid any appearance of partiality, not merely to secure the confidence of the litigants immediately involved but 'to retain public respect and secure willing and ready obedience to their judgments.' Nordloh v. Packard, 45 Colo. 515, 521, 101 P. 787, 790 (1909). ¹

These considerations are particularly pertinent where a criminal case arises out of accusations of public corruption. The public policy rationale was well stated in People ex rel. Burke v. District Court, 60 Colo. 1, 3--4, 152 P. 149, 150--51 (1915):

'We have no doubt that matters involved in the criminal case in which the change of the judge is sought are Publici juris. In fact, the entire people of the state in their sovereign capacity are the plaintiffs therein, and the right of society to have its laws, in relation to certain crimes, observed and enforced is involved. . . . Nor can we conceive of anything of graver public concern than whether or not those charged with the commission of crime shall be tried before impartial tribunals free from prejudice and bias. The first ideal in the administration of justice is that the judge must be free from bias and partiality. Men are so agreed on this principle that any departure therefrom shocks their sense of justice. A party may be interested only that his particular case should be justly determined, but the state is concerned not only for that, but also that the judiciary...