S.S. v. Wakefield

• Decision Date: 14 November 1988
• Docket Number: No. 88SA232,88SA232
• Parties: S.S., Petitioner, v. The Honorable Dana WAKEFIELD, Judge of the Juvenile Court, In and For the City and County of Denver, State of Colorado, Respondent.
• Court: Colorado Supreme Court

Page 70

764 P.2d 70

S.S., Petitioner, v. The Honorable Dana WAKEFIELD, Judge of the Juvenile Court In and For the City and County of Denver, State of Colorado, Respondent.

No. 88SA232.

Supreme Court of Colorado En Banc.

Nov. 14, 1988.

John E. Fitzgibbons, Denver, for petitioner.

Stephen H. Kaplan, City Atty., Claire A. Fish, Asst. City Atty., Denver, for respondent.

Allen B. Alderman, Denver, guardian ad litem.

QUINN, Chief Justice.

In this original proceeding we are asked to determine whether a judge of the Denver Juvenile Court should be disqualified from presiding over a dependency and neglect proceeding on the basis of bias or prejudice after initiating an ex parte communication with the respondent mother, S.S., for the purpose of informing her that her court-appointed attorney might not be providing her with effective representation. We issued a rule to show cause and now discharge the rule.

I.

S.S. was named as a respondent in a dependency proceeding filed after her child allegedly suffered a subdural hematoma. Because S.S. was financially unable to retain counsel, the court, pursuant to section 19-3-202, 8B C.R.S. (1988 Supp.), ¹ appointed an attorney to represent her and set a trial date of June 20, 1988, for the adjudicatory phase of the case. ²

On June 20, after all the interested parties announced their readiness for trial, S.S.'s attorney raised a pretrial matter with respect to his inability to obtain discovery of medical reports concerning the child. After some discussion the judge called the attorneys into chambers. The judge then expressed dissatisfaction over the fact that S.S.'s attorney had announced his readiness for trial but yet had complained about his inability to secure important medical reports concerning the child. The judge questioned whether S.S. was receiving adequate legal representation. The case was then continued for trial on the following day.

On the following day the People moved for a continuance of the trial due to the illness of the attorney primarily responsible for the case. The judge granted the motion and set the trial for July 13, 1988. S.S.'s attorney then moved to dismiss the case on the basis that the court had failed to conduct a trial on the dependency petition within six months, citing section 19-3-505(5)(b), 8B C.R.S. (1988 Supp.), ³ in support of the motion. The judge denied the motion to dismiss, stating that section 19-3-505(5)(b) did not apply to the setting of a case for trial, as urged by S.S.'s attorney, but rather to postponement of the entry of an adjudicatory decree in cases where the court has made a finding at an adjudicatory hearing that the allegations of the petition have been established by a preponderance of the evidence.

The judge continued to have concerns about the adequacy of representation being provided by S.S.'s attorney and on June 29, 1988, decided to act on his concerns. It is the sequence of events of June 29 that formed the basis for S.S.'s motion for disqualification. We summarize those events from the affidavits of S.S., S.S.'s attorney, and the attorney's secretary, filed in support of the motion for disqualification.

On June 29, 1988, the judge's clerk, acting at the direction of the judge, telephoned S.S. and asked her to meet with the judge on the next day without her attorney. S.S. called her attorney and told him of the clerk's message. The attorney told S.S. to cancel the meeting, which she did. The judge's clerk then called S.S. back to inform her that the judge said S.S.'s attorney could come to the meeting, whereupon S.S. agreed to attend the meeting.

Those present at the June 30 meeting were S.S., her attorney, a court reporter, and the judge. The judge stated that his reason for contacting S.S. was to express his concerns about the representation she was receiving and then explained:

My plan was to talk to her alone so she'd feel free to be open with the Court about the selection of lawyers and then to contact you [the attorney] and let you know what the nature of the conversations was and give you an opportunity to respond. If you and she both prefer to be both present in the room, that's equally as agreeable with the Court.

After telling S.S. that important parental rights were at stake and that the court had a greater responsibility to her since her attorney had been court-appointed, the judge asked S.S. whether she wanted her attorney to continue to represent her or would like the court to appoint another attorney. The judge told S.S. that he had spoken to another attorney who could enter the case on short notice if S.S. so desired. S.S. declined the appointment of new counsel and stated that she wanted her present attorney to remain on the case.

On July 8, 1988, S.S. filed a motion for disqualification of the judge, supported by affidavits of herself, her attorney, and the attorney's secretary. The basis of the motion was that the judge's initiation of an ex parte communication was in violation of Canon 3 of the Colorado Code of Judicial Conduct, 7A C.R.S. (1973), and manifested bias or prejudice on the part of the judge. ⁴ A hearing on the motion was set for July 12, 1988. On July 11, however, S.S. filed an original proceeding in this court in which she requested that the judge be required to show cause why he should not disqualify himself. We did not take immediate action on S.S.'s petition, and on the morning of July 12 the judge denied S.S.'s motion to disqualify. We thereafter acted on S.S.'s petition and issued a rule requiring the judge to show cause why he should not be disqualified from further proceedings in this case.

We now conclude that, although the judge's method of communicating to S.S. his concern about her attorney's representation was improper, the judge did not err in refusing to disqualify himself, because neither the motion to disqualify nor the supporting affidavits alleged sufficient facts from which it could reasonably be inferred that the judge had a personal bias or prejudice against S.S. or her court-appointed attorney.

II.

A dependency proceeding is civil in nature, C.R.J.P. 1, and because there is no provision in the Colorado Children's Code or the Colorado Rules of Juvenile Procedure for disqualification of a judge, we may properly look to the Colorado Rules of Civil Procedure for the standards applicable to a motion for disqualification. See, e.g., People in the Interest of M.M., 726 P.2d 1108, 1119 (Colo.1986). C.R.C.P. 97 states, in pertinent part, as follows:

A judge shall be disqualified in an action in which he is interested or prejudiced ... or is so related or connected with any party or his attorney as to render it improper for him to sit on the trial, appeal, or other proceeding therein. A judge may disqualify himself on his own motion for any of said reasons, or any party may move for such disqualification and a motion by a party for disqualification shall be supported by affidavit.

C.R.C.P. 97 in this respect echoes Canon 3 C(1)(a) of the Colorado Code of Judicial Conduct, which states that a judge should disqualify himself in any proceeding in which his impartiality may reasonably be questioned, including instances where "he has a personal bias or prejudice concerning a party."

The purpose of the disqualification requirement is to prevent a party from being forced to litigate before a judge with a "bent of mind." Johnson v. District Court, 674 P.2d 952, 956 (Colo.1984). While a judge may be convinced of his own impartiality, he nonetheless may so act as to lead a party to reasonably conclude that he is biased or prejudiced in the pending litigation. It is this appearance of bias or prejudice which undermines not only a litigant's confidence in the fairness of the proceeding but also public confidence in the integrity and impartiality of the judicial system. Id. The test for disqualification, therefore, is whether the motion and supporting affidavits allege sufficient facts from which it may reasonably be inferred that the judge is prejudiced or biased, or appears to be prejudiced or biased, against a party to the litigation. Johnson, 674 P.2d at 955-56; see also Carr v. Barnes, 196 Colo. 70, 72, 580 P.2d 803, 804 (1978); People v. District Court, 192 Colo. 503, 508-09, 560 P.2d 828, 832-33 (1977). Because a judge's bias or prejudice against an attorney can adversely affect the party represented by the attorney, disqualification should also be required when a judge so manifests an attitude of hostility or ill will toward an attorney that the judge's impartiality in the case can reasonably be questioned. E.g., Hayslip v. Douglas, 400 So.2d 553 (Fla.Dist.Ct.App.1981); Payne v. Lee, 222 Minn. 269, 24 N.W.2d 259 (1946); State ex rel. Oliver v. Crookham, 302 Or. 533, 731 P.2d 1018 (1987); State ex rel. Piper & Wedge v. Crookham, 302 Or. 549, 731 P.2d 1027 (1987); see Rodriguez v. District Court, 719 P.2d 699, 703 (Colo.1986) ("motion and accompanying affidavits requesting disqualification ... must state facts from which it may be reasonably inferred that the judge has a bias or prejudice with respect to the case, a party or counsel ") (emphasis added).

In passing on the sufficiency of a motion for disqualification, the judge must accept the factual statements in the motion and affidavits as true, even if he believes them to be false or erroneous. Wright v. District Court, 731 P.2d 661, 664 (Colo.1987). The judge, in other words, must confine his analysis to the four corners of the motion and supporting affidavits, and then determine as a matter of law whether they allege legally sufficient facts for disqualification. A motion and supporting affidavits which merely allege opinions or conclusions, unsubstantiated by facts supporting a reasonable inference of actual or apparent bias or prejudice, are not legally sufficient to require disqualification. Carr, 196 Colo. at 72, 580 P.2d at 804.

III.

A.

S.S. argues that disqualification was required in...