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TCL > October 2009 Issue > Court Business

October 2009       Vol. 38, No. 10       Page  127
From the Courts

Court Business

Visit the related court’s website for complete text of rule changes or proposed rule changes issued by the court. Each court’s website includes corresponding forms, which are not printed in Court Business, and versions with highlights of revisions (deletions and additions). Material printed in Court Business appears as submitted by the court and has not been edited by the staff of The Colorado Lawyer.


Colorado Judicial Department
Colorado Supreme Court"
Judicial Ethics Advisory Board Opinions

Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2009-02
(Finalized and Effective August 14, 2009)

ISSUE PRESENTED

The requesting judge received a death threat from a man over whose dissolution of marriage proceeding she presided. He has been charged with Retaliation Against a Judge, pursuant to section 18-8-615, C.R.S. (2008), and the case is being prosecuted by the local District Attorney’s office, which is not seeking the appointment of a special prosecutor. The case has been assigned to one of the judge’s colleagues on the bench, but that judge has already recused and asked for a Senior Judge to handle the matter. The defendant is in custody and qualifies for court-appointed counsel. The local Public Defender’s office did not wish to handle the case and is arranging for an Alternate Defense Counsel from another jurisdiction to represent the defendant. The judge presides over criminal as well as domestic matters. The judge states that she has no doubt that she can be fair and impartial on the criminal matters before her, but is concerned that either the local Public Defender’s office or private defense counsel may ask her to recuse on her criminal cases due to either an alleged conflict or an appearance of impropriety since the judge is a victim in a separate criminal matter being prosecuted by the District Attorney’s Office. The individual DA handling the case is not assigned to the judge’s division and does not appear before her, but she expresses concern that defense counsel might nevertheless argue that her impartiality might reasonably be questioned pursuant to Canons 2 and 3 by virtue of the fact that she is the victim of a crime being prosecuted by the DA. May the judge continue to handle her criminal docket?

CONCLUSION

The judge is not required to disqualify herself sua sponte under Canons 2 or 3. She should, however, examine her own conscience and emotions for bias that might make sua sponte recusal otherwise appropriate.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 2 instructs that a judge should avoid impropriety and the appearance of impropriety, and should conduct himself or herself in a manner that promotes confidence in the integrity and impartiality of the judiciary.

Canon 3 provides that a judge should perform judicial duties impartially and diligently. Subsection C pertains to disqualification and states that a judge should disqualify himself or herself from a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances where a judge has a personal bias or prejudice concerning a party.

DISCUSSION

As the Board previously has noted, the question of disqualification generally is left to a judge’s sound discretion. See C.J.E.A.B. Op. 2006-05 (citing Zoline v. Telluride Lodge Ass’n, 732 P.2d 635 (Colo. 1987)). Judges with whom a motion to disqualify has been filed should decide the legal question under C.R.C.P. 97 or Crim. P. 21 and the decisions interpreting those rules. In this opinion the Board speaks only to whether the judge should disqualify herself sua sponte under the Canons.

Under Canon 3 of the Judicial Code of Conduct, a judge is required to disqualify herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including in instances where a judge has a personal bias or prejudice concerning a party. The question here thus becomes whether the judge’s impartiality might reasonably be questioned if she were to continue to preside over cases prosecuted by the DA’s office when that office, although through a different attorney, is also prosecuting the defendant who threatened the judge. We conclude that based on the facts presented, there is no reasonable basis to question the judge’s impartiality if she continues to preside over criminal matters, and thus no required disqualification under Canon 3. Important to this determination is the fact that the judge is not directly represented by the DA. Rather, the DA represents all of the people of the state of Colorado, who are presumed wronged as a collective when a criminal act is committed against one of its members.

The indirect nature of the DA’s representation of the judge distinguishes this scenario from the one in 2006-05, where the judge had been represented in his divorce by an attorney who later appeared before him. See C.J.E.A.B. 2006-05 at 1. There, we concluded that when the representation is ongoing, the judge must disqualify himself or herself because the judge’s impartiality might reasonably be questioned. See id. at 2. The nature of the attorney-client relationship, we explained, is founded upon trust and confidentiality, and the intimacy of that relationship reasonably could raise a question regarding the judge’s impartiality if the same attorney representing the judge appeared before the judge in another matter. See id. Here, there is no attorney-client relationship between the judge and the DA, and the particular attorney handling the matter in which the judge is a victim will not appear before her, obviating the concerns animating our discussion in 2006-05.

We also conclude that the judge’s decision to continue presiding over criminal matters would not create an appearance of impropriety within the meaning of Canon 2. This conclusion is consistent with the decisions of a number of state and federal courts that have also held that threats to a judge alone do not create an appearance of impropriety requiring the judge’s disqualification. See New Mexico v. J. Tyrone Riordan, 209 P.3d 773 (N.M. May 21, 2009) (holding disqualification not required for judge presiding over three other pending cases involving same defendant who threatened judge in fourth, separate matter); In re Basciano, 542 F.3d 950 (2nd Cir. 2008) (collecting cases). As the Tenth Circuit has pointed out, "if a death threat is communicated directly to the judge by a defendant, it may normally be presumed that one of the defendant’s motivations is to obtain a recusal." United States v. Greenspan, 26 F.3d 1001, 1006 (10th Cir. 1994). Although the facts here do not suggest that the defendant issued the threat in order to manipulate the system and "shop" for a more favorable judge, a defendant "cannot drive a state trial judge off the bench in a case by threatening him or her," and we thus advise that recusal should not automatically be required when a judge is threatened. See id. (quoting Resnover v. Pearson, 754 F. Supp. 1374, 1388-89 (N.D. Ind. 1991)).

Rather, we endorse the requirement in Riordan and Basciano that "the circumstances of the case must demonstrate that the defendant’s behavior has resulted in actions by the judge which might be viewed by an objective, disinterested observer as evidencing bias." See Riordan 209 P.3d at 777 (internal quotations omitted)(citing Basciano, 542 F.3d at 957). Thus, we conclude that absent some showing of bias, threats alone do not require recusal. See Riordan, 209 P.3d at 776-77; Basciano, 542 F.3d at 956. Here, although the judge has been threatened, the facts presented do not suggest that the judge has taken any actions that might evidence bias to an objective observer, and thus do not raise an appearance of impropriety.

Although we conclude that neither Canon 2 nor Canon 3 requires the judge to disqualify herself sua sponte, we advise the requesting judge to consult her own conscience and emotions to determine whether she harbors any bias or prejudice toward the DA’s office or against defense counsel as a result of the matter in which she was threatened. See C.J.E.A.B. 2006-05 at 4. Only the judge knows if her own subjective feelings amount to disqualifying bias or prejudice.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 14th day of August, 2009. The Hon. Dennis Graham (judge member)

The Hon. Christina Habas (judge member)
Prof. Melissa Hart (law professor member)
Daniel S. Hoffman, Esq. (attorney member)
Peggy Kerns (citizen member)
The Hon. Morris W. Sandstead, Jr. (judge member)
The Hon. Pattie P. Swift (judge member/board chair)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)


Colorado Supreme Court
Judicial Ethics Advisory Board (C.J.E.A.B.)
C.J.E.A.B. Advisory Opinion 2009-03
(Finalized and Effective August 26, 2009)

ISSUE PRESENTED

The requesting judge would like to participate on a city bicycle advisory committee. The committee will make recommendations to the city staff and council about bicycle routes, commuting, and other issues related to cycling. It will also keep the city informed of anticipated future cycling issues. The position is a volunteer one, but requires appointment by city staff. May the judge serve on the committee?

CONCLUSION

Absent a change to the Canons, the judge may not serve on the committee.

APPLICABLE CANONS OF THE COLORADO CODE OF JUDICIAL CONDUCT

Canon 5G states that a judge should not accept appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, legal system, or administration of justice.

DISCUSSION

On several occasions, the Board has been asked to determine whether a judge’s potential service on a governmental committee is consistent with the Code of Judicial Conduct. See C.J.E.A.B. Ad. Ops. 2005-05, 2006-08, 2007-03, 2007-07, 2007-08, 2007-10, and 2007-11. Beginning with our opinion in 2005-04, we struggled to reconcile Canon 5G’s broad proscription against service on any commission not concerned with the law, legal system, or administration of justice, on the one hand, with the Canons’ encouragement of judges to actively participate in their communities, on the other. In that opinion we adopted the "direct nexus test," concluding that for service on a governmental commission to be consistent with Canon 5G, there must be a close nexus between the work of the commission and the law, legal system, or administration of justice. Concluding that such a nexus did not exist for the commission in question there, we advised the requesting judge not to serve on it. We went on to apply the direct nexus standard to a host of other scenarios in which judges asked if service on particular commissions was permissible.

Unlike the situations we addressed in those earlier opinions, the current request does not implicate the direct nexus standard because the bicycle advisory committee’s work simply bears no connection to the law, legal system, or administration of justice. Although the rationale behind the Canon’s blanket exclusion of commission service outside issues related to the law is not apparent from the face of the Code,1 the Board feels compelled to apply the clear language of the Canon. Thus, the Board reluctantly concludes that the language of Canon 5G does not permit the judge to serve on the city bicycle committee.

The Board reaches this result reluctantly because service on the bicycle committee would not seem to call into question the judge’s impartiality, effectiveness, and independence, which concerned us in some of our previous opinions. Indeed, the very fact that the bicycle committee has no connection to the law, legal system, or administration of justice in and of itself seems to stand as a persuasive reason to allow the judge to serve on the committee—there seems to be little risk that service here would interfere with the judge’s judicial duties or independence, assuming that the judge volunteered on his own time and not during business hours.

We note that the result would be the same under the proposed Code of Judicial Conduct that our supreme court is currently considering adopting. There, Rule 3.4 provides the same prohibition against serving on a governmental committee "unless it is one that concerns the law, legal system, or administration of justice." Although the language in proposed comment 3 attempts to soften the blanket prohibition somewhat, it still allows judges to serve only on committees having some relation to legal and judicial issues.2 Thus, the requesting judge would not be allowed to serve on the committee even if the proposed Code is adopted in its current form.

Although the Board concludes that the result here is dictated by the language of the Code, it candidly expresses its concerns with that result. In the Board’s view, it is unfortunate that the Code does not allow a judge to devote his or her personal, off-the-bench time to volunteering on governmental committees that do not threaten the judge’s impartiality or effectiveness. The Board respectfully suggests that since the Supreme Court is currently considering revisions to the Colorado Code this might be an opportune moment to amend the language of the proposed Code to allow judges to serve on governmental committees and commissions that are similar to the one at issue in this request.

FINALIZED AND EFFECTIVE by the Colorado Judicial Ethics Advisory Board this 26th day of August, 2009.

__________

1. The only explanation the Board has found of the rationale behind the Canon’s prohibition of governmental commission work for judges is contained in the Reporter’s Notes to the 1972 ABA Model Code in which the reporter states that the drafting committee "adopted the view that the time and prestige of the judicial office should not be expended on the resolution of non-judicial issues." See ABA Annotated Code of Judicial Conduct 273 (2004)(citing E. Wayne Thode, Reporter’s Notes to the Code of Judicial Conduct 91 (1973).

2. The full text of proposed Rule 3.4 and the accompanying comments is included in an appendix to this opinion.

The Hon. Christina Habas (judge member)
Prof. Melissa Hart (law professor member)
Daniel S. Hoffman, Esq. (attorney member)
Peggy Kerns (citizen member)
The Hon. Morris W. Sandstead, Jr. (judge member)
The Hon. Pattie P. Swift (judge member/board chair)
Eileen M. Kiernan-Johnson, Esq. (staff to the board)

 

Appendix
[Proposed] Rule 3.4: Appointments to Governmental Positions

A judge shall not accept appointment to a governmental committee, board, commission, or other governmental position, unless it is one that concerns the law, the legal system, or the administration of justice.

Comment

[1] Rule 3.4 implicitly acknowledges the value of judges accepting appointments to entities that concern the law, the legal system, or the administration of justice. Even in such instances, however, a judge should assess the appropriateness of accepting an appointment, paying particular attention to the subject matter of the appointment and the availability and allocation of judicial resources, including the judge’s time commitments, and giving due regard to the requirements of the independence and impartiality of the judiciary.

[2] A judge may represent his or her country, state, or locality on ceremonial occasions or in connection with historical, educational, or cultural activities. Such representation does not constitute acceptance of a government position.

[3] Complete separation of a judge from extrajudicial activities is neither possible nor wise; a judge should not become isolated from the community in which the judge lives. Every governmental board, committee and commission is different and must be evaluated independently to determine whether judicial participation is appropriate. In considering the appropriateness of accepting extrajudicial assignments, a judge should ensure that the mission and work of the board or commission relates to the law, the legal system, or the administration of justice. To effectuate the Code’s goal of encouraging judges to participate in their communities, the relationship between the board’s mission and the law, legal system, or the administration of justice should be construed broadly. Any judicial ethics advisory opinions issued before adoption of this Code requiring a narrow link or stringent nexus are no longer valid. A judge should avoid participating in governmental boards or commissions that might lead to the judge’s frequent disqualification or that might call into question the judge’s impartiality. The changing nature of some organizations and of their relationship to the law makes it necessary for a judge to regularly reexamine the activities of each organization with which the judge is affiliated to determine if it is proper to continue the affiliation.

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