This is some authority I compiled for one of my cases on whether a judge must recuse himself (disqualify himself from hearing a case) as soon as he learns he has an interest in the case even though no motion asking him to recuse himself has been filed. What I learned is, the answer is “yes” he should; and here are the cases and rules in support of my conclusion:

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; also Estep v. Hardeman, 1985.CO.40224 <http://www.versuslaw.com>¶ 22;  705 P.2d 523 (Colo. 1985). It is incumbent upon the courts to “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.’” In re Estate of Elliott, 2000.CO.0042054 <http://www.versuslaw.com>¶ 73;  993 P.2d 474 (Colo. 2000). If an appearance of partiality exists, it is incumbent upon a judge to disqualify himself from the proceedings. Estate of Elliott, supra. Also see generally C.R.C.P. 97; C.J.C. Canon 3(C)(1)(“[A] judge should disqualify himself in a proceeding in which his impartiality might reasonably be questioned….”). When a judge becomes embroiled in a controversy with an individual it becomes necessary for that judge to recuse. Id. A judge may not allow marked personal feelings toward a party to affect its judgment in the proceedings. Estate of Elliott, supra @ ¶ 74. The substitution of a judge is proper when a judge refers the case to the district attorney for potential criminal prosecution. Estate of Elliott, supra @ ¶ 78. As a result of this action, the judge may become a witness in any criminal prosecution undertaken by the district attorney, raising concerns over a potential conflict of interest. Id.

According to C.R.C.P. 97 a judge shall disqualify himself on his own motion in any action in which he is interested. The power of a judge to disqualify himself may be exercised even though the proper procedural steps leading to disqualification have not been pursued by any party to the litigation. Beckord v. District Court of County of Larimer, 1985.CO.40484 <http://www.versuslaw.com>¶ 46; 698 P.2d 1323 (Colo. 1985). In Beckford the judge effectively disqualified himself by communicating his concerns over a potential appearance of impropriety to the lead attorneys and thereafter transferring the State’s motions to another judge. Id. @ ¶ 47. After a judge disqualifies himself he is without jurisdiction to rule on the motions filed by the defendants because these matters involve an exercise of judicial discretion. Beckford supra, @ ¶ 51. Any discretionary rulings made after a judge should have disqualified himself from hearing a case are void. Beckford, supra @ ¶ 52. Also see Johnson v. District Court, 1984.CO.40685 <http://www.versuslaw.com>¶ 34;  674 P.2d 952 (Colo. 1984)(Once it is established a trial judge should have recused himself, he does not have the authority to determine any other substantive matter that is pending before the court.). In People v. Hrapski, .CO.40368 <http://www.versuslaw.com>; 718 P.2d 1050 (Colo. 1986) the Court disapproved of a trial court taking a role which gave the impression of partiality towards one of the parties. Id. @ ¶ 21. The Court saying in that case, “The role of the judiciary, if its integrity is to be maintained, is one of impartiality.” Id. @ ¶ 22. The Court further pointed out that a trial judge should never take a role which places his impartiality in question. Id.

A trial court must follow procedures established by statute and rule. Estate of Elliott, supra @ ¶ 81. The failure a trial court to follow procedures established by statutes and rules is an abuse of discretion. Id. The purpose of statutes and court rules which provide for the disqualification of a trial judge is to guarantee that no person is forced to litigate before a judge with a “bent of mind.” Johnson v. District Court, 1984.CO.40685 <http://www.versuslaw.com>¶ 28;  674 P.2d 952 (Colo. 1984). Although the trial judge is convinced of his or her own impartiality, if it nonetheless appears to the parties or to the public that the judge may be biased or prejudiced, the same harm to public confidence in the administration of justice occurs. Id. Although the trial judge believes in his own impartiality, it is the court’s duty to “eliminate every semblance of reasonable doubt or suspicion that a trial by a fair and impartial tribunal may be denied.” Zoline v. Telluride Lodge Ass’n 732 P.2d 635 (Colo. 1987). In determining whether or not a trial judge must disqualify himself he/she must accept the factual statements in the motion and affidavits as true, even if he believes them to be false or erroneous. Pierce v. United Bank of Denver, N.A., 1989.CO.40586 <http://www.versuslaw.com>¶ 21; 780 P.2d 6 (Colo.App. 1989).

In Smith v. Beckman, 1984.CO.40476 <http://www.versuslaw.com>; 683 P.2d 1214 (Colo.App. 1984) there was no evidence before the court indicating that Judge Beckman had an opportunity to discuss a criminal case before his court with his wife who worked in the District Attorney’s Office. In fact, the record of the case recounts that the District Attorney had “drafted guidelines designed to further insulate Ms. Beckman from all contact with any county court cases.” Id. @ ¶ 13. While deciding that Judge Beckman must recuse himself from hearing the case at issue, the Court said:

“In determining whether the motion raises grounds for disqualification, a judge must consider not only the specific provisions of the statutes and rules of procedure cited, but also the Code of Judicial Conduct. [Cite omitted] The code is designed to assure not only that judges perform their duties in a manner that is, in fact, above reproach, but also they must conduct the affairs before their court in such a way as to enhance the respect of the judiciary in the eyes of the public. Therefore, the possibility that the facts alleged may give rise to the appearance of impropriety must always receive the highest consideration in ruling on a motion for disqualification. [Cite omitted] It is of paramount importance that our judges meticulously avoid any appearance of partiality…” Smith v. Beckman, 1984.CO.40476 <http://www.versuslaw.com>¶ 22; 683 P.2d 1214 (Colo.App. 1984).

In Wood Bros. Homes Inc. v. City of Fort Collins, 1983.CO.40453 <http://www.versuslaw.com>; 670 P.2d 9 (Colo.App. 1983) a situation similar to Smith v. Beckman arose in which the Court held, “While we find no evidence of partiality, we conclude that because of the trial judge’s prior association with the Commission, one might reasonably question his impartiality so as to render it improper for him to have presided over the trial in this case. [Citation omitted] Even if the judge’s impartiality could not be reasonably questioned, we still have a situation which creates the appearance of impropriety, which precludes the judge from sitting on this case. See Code of Judicial Responsibility, Canon 2.” Id. @ ¶¶ 21-22.

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