Russell v. Wheeler

• Decision Date: 25 March 1968
• Docket Number: No. 22270,22270
• Citation: 165 Colo. 296,439 P.2d 43
• Parties: William C. RUSSELL, Jr. and Eldon L. Cull, Plaintiffs in Error, v. Beverly WHEELER et al., Defendants in Error.
• Court: Colorado Supreme Court

Page 43

439 P.2d 43

165 Colo. 296

William C. RUSSELL, Jr. and Eldon L. Cull, Plaintiffs in Error, v. Beverly WHEELER et al., Defendants in Error.

No. 22270.

Supreme Court of Colorado, En Banc.

March 25, 1968.

On Clarification and Denial of Rehearing April 22, 1968.

Albert B. Dawkins and Robert E. Holland, Denver, Richard D. Gilson, Golden, for plaintiffs in error.

Raymond J. Cody, Arvada, John W. Lentz, Englewood, for defendants in error.

HODGES, Justice.

In a school bond election contest action, the county court of Gilpin County entered a judgment of dismissal at the conclusion of the plaintiffs' evidence on the grounds that the plaintiffs (contestors) had failed to sustain their burden of proof by establishing a prima facie case. The contestors assigned several grounds, itemized hereinafter, upon which they claim the trial court erred in granting the defendants' (contestees) motion to dismiss the complaint. We call attention to our decision in Russell v. Wheeler, 159 Colo. 588, 413 P.2d 700 involving an original proceeding for clarification of jurisdiction, wherein we held that by statutory interpretation the Supreme Court was the proper court in which to pursue a review of a school bond election contest judgment by a county court.

This school bond election was held December 18, 1965 for the purpose of voting for or against the issuance of bonds to finance a school building in Gilpin County School District RE--1. This same election is involved in Crowe v. Wheeler, Colo., 439 P.2d 50, announced simultaneously with this opinion. In the companion case, the same plaintiffs and others had sought to enjoin this election, and in addition, requested a declaratory judgment defining who is a qualified taxpaying elector as that term is defined in 1965 Perm.Supp., C.R.S.1963, 123--11--1(4). We therein affirmed the judgment of the district court, which refused to enjoin the election and which entered a judgment of dismissal of the complaint on the grounds of mootness.

Two of the issues to be resolved herein were urged as issues in the companion case but were rejected for the reasons therein explained. These issues are:

(1) Is a purchaser of real estate under a contract of sale, who is obligated thereunder to pay the taxes, and is otherwise qualified to vote, a qualified taxpaying elector?

(2) Was the published notice of election deficient for the reason that it described the boundaries of the school bond election precincts by reference to county election precincts rather than setting forth a legal or more detailed description of the boundaries?

This action was commenced in the trial court by filing a statement of intention to contest the special school bond election, wherein 234 votes were counted in favor of issuance of bonds and 214 votes against. The contestors, as two qualified taxpaying electors, alleged that 39 persons, listed in their statement of intention, were not qualified taxpaying electors; that they voted illegally; that the votes cast by these persons were counted in sufficient numbers to change the result of the election; and that the published notice of election was deficient because it failed to properly describe the school bond election precinct boundaries. Based on these grounds, the contestors prayed that the trial court nullify the election and decree that the issuance of the school bonds was therefore not approved.

The contestees are members of the Board of Education of Gilpin County School District RE--1, the County Clerk and Recorder of Gilpin County, and the remaining named contestees were judges and clerks of the polling places. On behalf of the contestees, responsive pleadings were filed wherein it was denied generally that illegal votes were cast; and that the published notice of election was violative of any of the mandatory requirements of law. Affirmatively, the contestees alleged that 28 of the 39 alleged illegal voters were improperly challenged by one Helen K. Mueller, an alleged unqualified challenger, and therefore, these challenges and the votes related thereto, were in effect not subject to inquiry by the trial court.

Before trial, contestors filed a motion for change of judge on the grounds that the County Judge of Gilpin County was 'interested' in the school bond election and should disqualify himself in accordance with C.R.S.1963, 37--1--24. This motion was denied by the court. This refusal by the County Judge to remove himself as the trial judge is also assigned as error, and as grounds for reversal.

At the conclusion of contestors' case, the trial court granted contestees' motion to dismiss on grounds that the contestors failed to sustain their burden of proof and failed to establish a prima facie case. The trial court's findings of fact and conclusions of law, in effect, state that Mrs. Mueller, as a contract purchaser, was not an owner of property and that the taxes she paid on real property was as an agent for the record owner; that Mrs. Mueller was therefore not a qualified taxpaying elector nor a proper challenger of the 28 voters, and therefore, the 28 challenges were not valid.

In addition, upon hearing and denying the motion for new trial, the court found, on the boundaries issue, that there was no evidence to show that anyone was confused as to where to go to cast his ballot; that 'What it comes down to, a reasonable person who desires to vote can easily find out where to cast his ballot'; and that 'there was no error committed in the publication of the notice.' Additionally, at this time the trial judge stated that he noted some illegal voters but not enough in numbers 'to materially change' the results of the election.

It is our appraisal, after examination of this record, which includes the transcript of the voluminous testimony before the trial court, that this writ of error presents the following three issues of merit for our determination and the proper resolution of this controversy.

I.

Did the county judge of Gilpin County commit prejudicial error in refusing to disqualify and remove himself as the trial judge based upon the alleged facts and circumstances concerning his purported interest as shown from the record on error?

The contestors' 'Motion for Change of Judge' and the accompanying affidavits by the two contestors claim the judge is 'interested in the election contest' and 'prejudiced against the contest' because of the following reasons. He voted at the election and he publicly expressed approval of a new school building and the bonds to finance it. Additionally, the judge's wife had been an unsuccessful write-in candidate for director of District B of the Gilpin County School District RE--1 at a previous election, at which time she was favorable to the plan of building a new school and the issuance of bonds for this purpose. Also, that the judge had, in another unrelated action, made a ruling in connection with a petition for recall which ruling was in favor of Robert G. Crow, a member of the board of education and one of the contestees. This and the viewpoints of the judge's wife are without merit as grounds for his disqualification.

The contestors contend that the county judge of Gilpin County should have removed himself as the trial judge in accordance with C.R.S.1963, 37--1--24 which provides:

'When judge shall not act unless by consent.--A judge shall not act as such in any of the following cases: In an action or proceeding to which he is a party, or in which he is interested; when he is related to either party by consanguinity or affinity in the third degree; or when he has been attorney or counsel for either party in the action or proceeding, unless by consent of all parties to the action.'

R.C.P.Colo. 397 contains similar provisions pertinent to the issues presented here.

In considering the issue of the trial court's purported interest in the subject matter and outcome of this school bond election contest, it is necessary to differentiate between what may be said to be a 'private' interest and a 'public' interest in the subject matter of the controversy and the outcome of it. It is clear that any personal or private interest as is contemplated by C.R.S.1963, 37--1--24, supra, would disqualify the county judge of Gilpin County as the trial judge, and his refusal to remove himself as the trial judge would be grounds for reversal. In this same vein, it is likewise clear that any action involving a situation where the trial judge may benefit in a pecuniary way depending upon his decision, would be a prime example of a situation in which a trial judge would have no alternative other than to disqualify himself.

This 'interest' of the trial judge is in our view a public interest and is not the same character of interest which compels disqualification as would a private interest. A public interest is an interest shared by citizens generally in the affairs of local, state or national government. An interest which a judge may have as a citizen in a public question or issue is no basis per se for his removal as the trial judge in an action contesting an election determinative of the public question or issue. It is in this area of public interest that a judge upon being challenged as he was in the case at bar, may in his discretionary prerogative remove himself, but if he refuses, his decision will not be reversed unless it is shown convincingly that his interest was so intense that a probability existed that his decision would be tainted. We have minutely studied the motion for disqualification, the attached affidavits and exhibits and have concluded therefrom that they are insufficient to show that the county judge had such an interest in the bond election contest or that he was so prejudiced against the contest action that he should have as a matter of law disqualified himself. We hold, under the facts and circumstances of this case, that the matter of disqualification was within the sound discretion of the trial...