People v. Julien

• Decision Date: 10 June 2002
• Docket Number: No. 01SC85.,01SC85.
• Citation: 47 P.3d 1194
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Dywand D. JULIEN, Respondent.
• Court: Colorado Supreme Court

47 P.3d 1194

The PEOPLE of the State of Colorado, Petitioner, v. Dywand D. JULIEN, Respondent.

No. 01SC85.

Supreme Court of Colorado, En Banc.

June 10, 2002.

As Modified on Denial of Rehearing June 24, 2002.¹

Ken Salazar, Attorney General, Roger G. Billotte, Assistant Attorney General, Denver, Colorado, Attorneys for Petitioner.

E. Ronald Beeks, Evergreen, Colorado, Attorney for Respondent.

Justice HOBBS delivered the Opinion of the Court.

This case arises out of Dywand D. Julien's conviction after a jury trial of first-degree assault and possession of a weapon by a previous offender. We granted certiorari in order to review the court of appeals' unpublished decision, People v. Julien, No. 98CA2542 (Colo.App.1998),² which held that the trial judge's previous employment by the district attorney's office created an appearance of partiality that required vacating Julien's conviction and ordering a new trial.

Julien's trial occurred five weeks after the trial judge took the bench. While he was with the district attorney's office, the judge took no part in the investigation, preparation, or presentation of Julien's case, nor did he supervise those who did, nor had he obtained personal knowledge of disputed evidentiary facts while in the employment of the district attorney's office. The sole basis for disqualification was Judge Schwartz's prior employment with that governmental office.

We conclude that no basis existed for the court of appeals' disqualification of Judge Schwartz, and we reinstate Julien's conviction.

I.

On August 2, 1995, at approximately three in the morning, Officer Ronald Sheppard stopped a car with expired license plates. Upon investigation at the scene, Officer Sheppard discovered that the driver had an outstanding warrant. Julien, a passenger in the car, exited the vehicle. Officer Sheppard ordered Julien to get back into the car, but Julien disregarded the order.

Officer Sheppard repeatedly instructed Julien to get back into the car, but Julien ignored him and began walking away. Officer Sheppard then crossed the street and placed his hands on Julien's shoulder. As Officer Sheppard forcibly walked him back to the car, Julien pulled a pistol from his waistband. Officer Sheppard grabbed his weapon from the holster and fired three shots, one of which struck Julien.

Judge Larry Schwartz received the assignment to hear Julien's case. Judge Schwartz had taken the bench five weeks before the trial began. He had previously been employed as an assistant district attorney in the El Paso County District Attorney's office, the office responsible for prosecuting Julien.

In February 1997, the jury convicted Julien of first degree assault on a peace officer and possession of a weapon by a previous offender. In July 1997, prior to sentencing, Julien, pro se, and then through his new court-appointed attorney, made a motion for substitution of judge. The two affidavits accompanying the attorney's motion recited that Judge Schwartz had been employed by the district attorney's office at the time that office filed charges against Julien; Judge Schwartz was a supervising attorney and team leader in the office; and another supervising attorney of the district attorney's office employed at the same time as Judge Schwartz had appeared before Judge Schwartz to prosecute Julian. These facts are uncontested.³

In considering Julien's motion for substitution of judge, Judge Schwartz stated that he did not work on Julien's case, had no recollection of it, and did not supervise anyone involved in the case. Having found no basis for disqualification, Judge Schwartz nevertheless suspended further proceedings and referred the matter to another judge.

Judge Martinez found that "there's been no showing that Judge Schwartz supervised [the prosecutor], that Judge Schwartz was involved in any way in the case, that Judge Schwartz investigated the case, that he was a team leader of anybody who in fact was in the case. The affidavit does not show any kind of involvement whatsoever of Judge Schwartz."

Judge Martinez determined that there was no basis for disqualification and returned the case to Judge Schwartz for sentencing. Judge Schwartz sentenced Julien to the department of corrections for a term of eighteen years. Julien appealed. The court of appeals ruled that "the information in the district attorney's office during its investigation of the offense must be imputed to the judge . . . and the former employment relationship between the trial judge and the district attorney's office created an appearance of partiality." We disagree.

II.

We determine that no basis existed for the court of appeals' disqualification of Judge Schwartz. While a member of the district attorney's office, Judge Schwartz did not participate in the investigation, preparation, or presentation of the case against Julien, nor did he have any other involvement with the case, such as being a supervising attorney of the attorneys conducting the prosecution, or gaining personal knowledge of disputed evidentiary facts of the case in his former employment. Of itself, Judge Schwartz's employment in the district attorney's office as a team leader five weeks prior to the trial of the case was not a sufficient basis for disqualification. We conclude: (1) that Canon 3 of Colorado's Code of Judicial Conduct contains a limited prior governmental association exception applicable to this case; and (2) Julien's post-conviction disqualification motion did not allege a sufficient basis for Judge Schwartz's disqualification.

A. Prior Governmental Association

The court of appeals determined that the "information in the district attorney's office during its investigation of the offense must be imputed to the judge." Based on this imputation, the court of appeals concluded that "the former employment relationship between the trial judge and the district attorney's office created an appearance of partiality." The court of appeals acknowledged that "the judge had neither participated in that investigation nor appeared as counsel for the prosecution." Yet, it determined that Judge Schwartz had a duty under Canon 3 to disqualify himself sua sponte from presiding over the case when it was assigned to him.

We examine the disqualification issue de novo. Smith v. Dist. Court, 629 P.2d 1055, 1056 (Colo.1981); People v. Dist. Court, 192 Colo. 503, 506, 560 P.2d 828, 832 (1977). We start with the precept, basic to our system of justice, that a judge must be free of all taint of bias and partiality. People v. Dist. Court, 192 Colo. at 506, 560 P.2d at 831. Section 16-6-201, Crim. P. 21(b), and Canon 3 set forth Colorado standards by which a judge determines sua sponte or in response to a motion whether to disqualify himself or herself from the case.

If a judge has a bias or prejudice that in all probability will prevent him or her from dealing fairly with a party, the judge must not preside over the case. People v. Arledge, 938 P.2d 160, 167 (Colo.1997). A judge must also consider the Code of Judicial Conduct sua sponte or in response to a disqualification motion in determining whether to serve on the case. Zoline v. Telluride Lodge Ass'n, 732 P.2d 635, 639 (Colo.1987).

Julien's challenge to Judge Schwartz's service did not turn in any way on a claim of actual bias or prejudice, or on any other basis under section 16-6-201(3), Crim. P. 21(b)(3), and Canon 3, apart from Judge Schwartz's prior association with the District Attorney's Office.

Canon 3 addresses prior professional association and has a limited exception to appearance of partiality disqualification, in regard to prior governmental association. Canon 3(C)(1) requires a judge to disqualify himself or herself, if the judge's impartiality might reasonably be questioned:

C. Disqualification

(1) A judge should disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances where:

(a) A judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(b) a judge served as a lawyer in the matter in controversy, or a lawyer with whom the judge previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it . . . .

C.J.C. 3(C)(1)(a), (b).

The language of Canon 3(C)(1)(a) & (b) and its commentary derive virtually verbatim from the American Bar Association's Model Code of Professional Responsibility and Code of Judicial Conduct. See ABA Model Code at 58-59 (as amended August 1977). On the issue of prior governmental association, the Commentary to Colorado's Canon 3(C)(1) thus reads:

A lawyer in a governmental agency does not necessarily have an association with other lawyers employed by that agency within the meaning of this subsection; a judge formerly employed by a governmental agency, however, should disqualify himself or herself in a proceeding if the judge's impartiality might reasonably be questioned because of such association.

C.J.C. 3(C)(1) cmt. (emphasis added).

This commentary is elliptical and requires explication. It appears to provide for a prior governmental-association exception to Canon 3's standard of disqualification for the appearance of partiality in some cases but not in others. Fortunately, a substantial body of parallel federal and state rules, precedent and legal commentary guides our construction of Canon 3, by illuminating the basis, extent, and limit of the prior governmental-association exception.

The majority rule is that judges are not disqualified solely on the basis that they were formerly employed by the prosecutor's office. Instead, when employed by that office, the judge to be disqualified must have performed some role in the case or have obtained actual knowledge of disputed evidentiary facts of the case:

[W]here the

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