ISSUES PRESENTED:

Was Judge DS in contempt of this Court when he refused to follow C.R.C.P. 97; a rule issuing from this Court pursuant to Its’ rule making power set forth in Article VI Section 21 of the Colorado Constitution; prior to dismissing my mandamus action and my appeal?

Was Judge DS in contempt of this Court when he refused to follow case law issuing from this Court respecting his duty to rule on a motion for change of judge prior to taking any other action on the case.

Have I done anything that would give Judge DS a reasonable excuse for failing to follow C.R.C.P. 97 and case law issuing from this Court?

FACTS:

The facts of this case are set forth in the Solemn Declaration of Barry Smith, made pursuant to 24-12-102 C.R.S., before a duly authorized notary and is attached.  That solemn declaration is incorporated herein as though set forth fully.

ARGUMENT AND POINTS OF AUTHORITY:

In Zoline v. Telluride Lodge Association, 732 P.2d 635 (Colo. 1987) the Court held:

* * * our cases have held that “good faith and orderly process dictate that if grounds for disqualification are known at the time the suit is filed and a party desires to proceed thereon, a motion to disqualify should be filed prior to taking any other steps in the case.” Aaberg v. District Court, 136 Colo. 525, 529, 319 P.2d 491, 494 (1957).  Id. @ ¶ 18.

This Court in Johnson v. District Court, 674 P.2d 952 (Colo.1984) gave this Court the following directions:

While we have recognized that when the grounds for disqualification are known, a motion to disqualify should be filed prior to taking any other steps in the case, Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957), * * *  Moreover, a request for the disqualification of a trial judge is a most serious undertaking which should not be pursued absent thorough factual investigation and legal research. Id. @ ¶ 32. Finally, petitioner claims that the respondent judge abused his discretion by refusing to grant a change of venue. We do not reach this issue.  C.R.C.P. 97 provides in pertinent part: “Upon the filing by a party of such a motion all other proceedings in the case shall be suspended until a  ruling is made thereon.” Once the motion for disqualification was made, the respondent judge was obligated to review the motion and decide  whether it was sufficient to require his recusal. See City of Trinidad v. District Court, 196 Colo. 106, 581 P.2d 304 (1978); Brouwer v. District Court, 169 Colo. 303, 455 P.2d 207 (1969). Since we have held that it was, the respondent judge did not have the authority to determine any other substantive matter that was pending before the court. See State ex rel. Cobb v. Bailey, 349 So.2d 849 (Fla. App. 1977); Creel v. Shadley, 266 Ore. 494, 513 P.2d 755 (Or. 1973). It would be incongruous to permit a disqualified judge to rule on a discretionary motion, such as a request for a change of venue, which affects the substantial rights of the parties. Accordingly, the motion for a change of venue must be decided by the judge to whom this case is assigned as required by C.R.C.P. 97. We hold that the respondent judge abused his discretion by refusing to disqualify himself. The order denying the motion for a change of venue is vacated because the respondent judge had no authority to rule on the matter. We therefore make the rule absolute, in part, and discharge it, in part. A new trial judge should be chosen in accordance with the provisions of C.R.C.P. 97. The judge to whom this case is assigned should  promptly rule on all pending motions and thereafter comply with the remand contained in our earlier decision in Johnson v. Jefferson County Board of Health, 662 P.2d 463 (Colo. 1983).  Id. @  ¶¶ 34-36.

In City of Trinidad v. District Court,  581 P.2d 304 (Colo. 1978):

Joseph Montera and Nick DeBono filed suit against petitioner, the City of Trinidad, seeking, inter alia, compensatory and punitive damages.  The City was served with a summons and complaint on March 31, 1978. On April 24, 1978, without filing an answer, the City filed a motion to disqualify the judge, the Honorable Dean C. Mabry, one of the respondents herein. This had the effect, as a matter of law, of suspending any further proceedings until the judge ruled on the motion to disqualify. C.R.C.P. 97; see Brouwer v. District Court, 169 Colo. 303, 455 P.2d 207 (1969).

On April 25, 1978, counsel for Montera and DeBono requested Frank Zehna, Clerk of the District Court of Las Animas County and respondent herein, to enter a default against the City, pursuant to C.R.C.P. 55(a), because of the City’s failure to file any answer or  responsive pleading. The Clerk entered a default on April 28, 1978.

Counsel for the City became aware of the default on May 3, 1978, and realized he was on the horns of a dilemma. Counsel could not file a motion to vacate the default, until the trial judge ruled on the motion to disqualify, for fear of waiving the City’s right to pursue the disqualification of the judge. Dominic Leone Construction Co. v. District Court, 150 Colo. 47, 370 P.2d 759 (1962); Aaberg v. District Court, 136 Colo. 525, 319 P.2d 491 (1957). A delay in filing a motion to vacate, however, is a ground for a refusal to set aside the default.  See Ehrlinger v. Parker, 137 Colo. 514, 327 P.2d 267 (1958). Counsel for the City then filed its petition for a writ in the nature of mandamus in this court, (1) seeking an order directing the trial court to rule on the motion for disqualification and (2) seeking an order directing the Clerk of the District Court of Las Animas County to vacate the entry of default. We issued a rule to show cause why the relief sought should not be granted. We now make the rule absolute as to part (1) of the relief sought by the City against the respondent judge and discharge the rule as to the respondent clerk, part (2).

The respondent judge must initially rule on the disqualification motion. If he fails to rule, a writ in the nature of mandamus is a proper remedy.  Potter v. Anderson, 155 Colo. 25, 392 P.2d 650 (1964).

A rule in the nature of mandamus ordering the vacation of the default is not properly postured for disposition at this time. Such a motion is addressed to the sound discretion of the trial judge, Ehrlinger v. Parker, supra. It should be considered by the judge who will try the case, if it is to be tried, whether it is the respondent or another judge who may or may not replace him. It is not a ministerial function, and therefore, mandamus will not lie. Ahern v. Baker, 148 Colo. 408, 366 P.2d 366 (1961); Brown v. Barnes, 28 Colo. App. 593, 476 P.2d 295 (1970).  If the City files a motion pursuant to C.R.C.P. 55(c) and is dissatisfied with the trial court’s ruling, it may appeal. Stiger v. District Court, 188 Colo. 407, 535 P.2d 508 (1975).  Id. @ ¶¶ 12-16. (Emphasis added)

Four things must be shown to prove punitive contempt: “(1) the existence of a lawful order of the court; (2) contemnor’s knowledge of the order; (3) contemnor’s ability to comply with the order; and (4) contemnor’s willful refusal to comply with the order.”  In re Boyer, 1999.CO.0042350 < ¶ 23; 988 P.2d 625 (Colo. 1999).                                                                             

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