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TCL > August 2013 Issue > Court Business

The Colorado Lawyer
August 2013
Vol. 42, No. 8 [Page  141]

© 2013 The Colorado Lawyer and Colorado Bar Association. All Rights Reserved.

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From the Courts

Court Business

Colorado Supreme Court Rules Committee

Rule Change 2013(07)
Colorado Rules of Civil Procedure
Chapter 13, Seizure of Person or Property
Rule 103. Garnishment
Chapter 17A, Rule 121. Local Rules
Section 1-15, Determination of Motions

Colorado Rules of County Court Civil Procedure
Chapter 25, Rule 403. Garnishment
Rule 411. Appeals

Amended and Adopted

Rule 103. Garnishment

Section 1 [No change]

Section 2

(a) through (f) [No change]

(g) Court Order on Garnishment Answer.

(1) If an answer to a writ with notice shows the garnishee is indebted to the judgment debtor, the clerk shall enter judgment in favor of the judgment debtor and against the garnishee for the use of the judgment creditor in an amount not to exceed the total amount due and owing on the judgment and if the judgment creditor is pro se, request such indebtedness paid into the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to 12-14-101, et seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency.

(2) through (4) [No change]

Sections 3 through 12 [No change]

Section 1-15, Determination of Motions

1. through 9. [No change]

10. Proposed Order. Except for orders containing signatures of the parties or attorneys as required by statute or rule, each motion shall be accompanied by a proposed order submitted in editable format. The proposed order complies with this provision if it states that the requested relief be granted or denied.

Rule 403. Garnishment

Section 1 [No change]

Section 2, Writ of Garnishment (On Personal Property Other Than Earnings of Natural Person) With Notice of Exemption and Pending Levy

(a) through (f) [No change]

(g) Court Order on Garnishment Answer.

(1) If an answer to a writ with notice shows the garnishee is indebted to the judgment debtor, the clerk shall enter judgment in favor of the judgment debtor and against the garnishee for the use of the judgment creditor in an amount not to exceed the total amount due and owing on the judgment and if the judgment creditor is pro se, request such indebtedness be paid to the registry of the court. However, if the judgment creditor is represented by an attorney or is a collection agency licensed pursuant to 12-14-101, et seq., C.R.S., the garnishee shall pay the funds directly to the attorney or licensed collection agency.

(2) through (4) [No change]

(h) and (i) [No change]

Sections 3 through 12 [No change]

Rule 411. Appeals

(a) [No change]

(b) Preparation of Record on Appeal. Upon the deposit of the estimated record fee, the clerk of the court shall prepare and issue as soon as may be possible a record of the proceedings in the county court, including the summons, the complaint, proof of service, and the judgment. The record shall also include a transcription of such part of the actual evidence and other proceedings as the parties may designate or, in lieu of transcription, to which they may stipulate. If a stenographic record has been maintained or the parties agree to stipulate, the party appealing shall lodge with the clerk of the court the reporter’s transcript of the designated evidence or proceedings, or a stipulation covering such items within 42 days after the filing of the notice of appeal. If the proceedings have been electronically recorded, the transcription of designated evidence and proceedings shall be prepared in the office of the clerk of the county court or under the supervision of the clerk, within 42 days after the filing of the notice of appeal. The clerk shall notify, in writing, the opposing parties of the completion of the record, and such parties shall have 21 days within which to file objections. If none is received, the record shall be certified forthwith by the judge. If objections are made, the parties shall be called for hearing and the objections settled by the county judge as soon as possible, and the record then certified.

(c) through (e) [No change]

Amended and Adopted by the Court, en banc, June 7, 2013, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court

_____________________________________

Rule Change 2013(08)
Appendix A to Chapter 27—Colorado Probate Code Forms
Amended, New and Repealed Forms
Amended and Adopted

Amended Forms

JDF 827—Order Appointing Guardian for Minor

JDF 828—Order Appointing Temporary Guardian for Minor

JDF 829—Order Appointing Emergency Guardian for Minor

JDF 830—Letters of Guardianship—Minor

JDF 843—Order Appointing Emergency Guardian for Adult

JDF 846—Order Appointing Temporary Substitute Guardian for Adult

JDF 848—Order Appointing Guardian for Adult

JDF 998—Instructions for Completing Affidavit for the Collection of Personal Property

JDF 999—Collection of Personal Property by Affidavit Pursuant to § 15-12-1201, C.R.S.

New Form

JDF 885—Conservator’s Report

Repealed Forms

JDF 733 and 734—Motion and Order to Move Trust Registration

Amended and Adopted by the Court, en banc, June 19, 2013, effective immediately.

By the Court:

Nancy E. Rice
Justice, Colorado Supreme Court


Colorado Judicial Department
Chief Justice of the Supreme Court Directives

Notice of Availability

Chief Justice Directives (CJDs) are available online at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm. The website lists CJDs by date and allows users to search by topic. Hard copies of the CJDs are available for $.25 per page (approximately $125 for a full set) and may be obtained through the Colorado Office of the State Court Administrator, www.courts.state.co.us/Administration/Index.cfm.

Publication in The Colorado Lawyer

CJDs will be published on a space-available basis in this "Court Business" section of The Colorado Lawyer. Attachments may be omitted for space reasons. To obtain a copy of attachments, contact: Court Services Division, Colorado Office of the State Court Administrator, visit www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

______________________________________

CJD 05-01
Access to Court Records
Amended and Superseding CJD 98-05

The purpose of this directive is to provide reasonable access to court records while simultaneously ensuring confidentiality in accordance within existing laws, policies and procedures. In addition, this directive is intended to: provide direction to Judicial Branch personnel, promote the accuracy and validity of the information in court records that is released to the public, and provide guidance regarding the content of the Judicial Branch web sites.

A public access committee has been created to recommend policies and procedures as necessary to facilitate the release of and provide for the accuracy of court records while protecting the privacy interests of persons about whom information exists. The committee also recommends policies and procedures for the cost recovery of making court records available to the public and standards for Judicial Branch web sites. Requests to inspect or obtain copies of court records of the Judicial Branch shall be made pursuant to the procedures identified in the policy. The policy procedures shall govern the completion of court record requests.

The policy and procedures recommended by the committee may be adopted as an order of the Colorado Supreme Court by the Justice appointed by the Chief Justice as chair of that committee. This policy shall be entitled "Public Access to Court Records," and shall be available to Judicial Branch personnel and to the public. The policy may be amended in the same manner as provided for its adoption.

This directive supersedes Chief Justice Directive 98-05, one at Denver, Colorado April 27, 2005, Mary J. Mullarkey, Chief Justice. This policy, amended by the Public Access Committee on August 16, 2012, October 24, 2012, and February 8, 2013, is an order of the Colorado Supreme Court on May 20, 2013.

The attachment to CJD 05-01 is available at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm (enter 05-01 in the search box). Comments regarding this policy can be submitted in writing to the Public Access Committee, State Court Administrator’s Office, 1300 Broadway, #1100, Denver, CO 80203 or by e-mail to public.access@judicial.state.co.us. Questions about this directive may be directed to Linda Bowers, Court Services Manager, at (720) 625-5506 or linda.bowers@judicial.state.co.us.

By the Court:

Monica M. Márquez
Justice, Colorado Supreme Court
Chair, Public Access Committee

______________________________________

(New) CJD 13-01
Colorado Courts’ Self-Represented Litigant Assistance
Approved

This directive concerns assistance provided by Clerks, Family Court Facilitators, Self-Represented Litigant Coordinators, and others to litigants or potential litigants in non-criminal matters.

Authority for Self-Represented Litigant Assistance

The Colorado Courts provide self-help assistance to Self-Represented Litigants to facilitate access to the courts. The goal is to provide, within the bounds of this directive, assistance to achieve fair and efficient resolution of cases, and to minimize the delays and inefficient use of court resources that may result from use of the court system by litigants who are not represented by lawyers. There is a compelling state interest in resolving cases efficiently and fairly, regardless of the financial resources of the parties.

Definitions

(a) "Self-Represented Litigant" means any individual who seeks information to file, pursue, or respond to a case without the assistance of a lawyer authorized to practice before the court.

(b) "Self-Help Personnel" means court employees and court volunteers who are performing services as part of the Colorado Courts’ Self-Represented Assistance. Self-Help Personnel include court clerks, family court facilitators, self-represented litigant coordinators, law librarians, and others who work to provide Self-Represented Assistance. Those court employees and court volunteers who are licensed lawyers are governed by this CJD in the same way that court employees and court volunteers who are not lawyers are governed. The State Court Administrator’s Office and local districts will provide appropriate training to Self-Help Personnel.

(c) "Court Volunteers" are volunteers who volunteer for the court in helping to provide information to self-represented litigants. Court volunteers are not volunteering as or on behalf of a lawyer, law firm or law practice and as such, consistent with this CJD, do not provide legal advice.

(d) "Self-Represented Assistance" means support and guidance provided by Self-Help Personnel within the scope and limitations of this Chief Justice Directive, including collaboration and coordination with legal and community resources.

(e) "Approved forms" means the standardized forms and detailed instructions that have been approved by the State Court Administrator’s Office and appear on the state judicial website, forms printed in the Colorado Supreme Court Rules, and local forms to facilitate following local case-processing procedures.

Role of Self-Help Personnel

(a) Basic Services. Self-Help Personnel may provide the following services:

(1) Provide general information about court procedures and logistics, including requirements for service, filing, scheduling hearings and compliance with local procedure;

(2) Provide, either orally or in writing, information about court rules, terminology, procedures, and practices;

(3) Inform Self-Represented Litigants of available pro bono legal services, low cost legal services, unbundled legal services, legal aid programs, alternative dispute resolution services including mediation and services offered by the Office of Dispute Resolution, lawyer referral services, and legal resources provided by state and local libraries;

(4) Encourage Self-Represented Litigants to obtain legal advice without recommending a specific lawyer or law firm;

(5) Explain options within and outside the court system, including providing information about community resources and services;

(6) Provide information about domestic violence resources;

(7) Offer educational sessions and materials, as available, and provide information about classes, such as parenting education classes;

(8) Assist Self-Represented Litigants in selecting the correct forms, and instructions on how to complete forms, based on the Self-Represented Litigant’s description of what he or she wants to pursue or request from the court, including, but not limited to, providing forms for the waiver of filing fees. Where no form exists to accomplish the Self-Represented Litigant’s request, Self-Help Personnel should inform the litigant of that fact;

(9) Record information provided by the Self-Represented Litigant on approved forms if that person cannot complete the forms due to disability, language, or literacy barriers;

(10) Assist Self-Represented Litigants to understand what information is needed to complete filling in the blanks on approved forms;

(11) Review finished forms to determine whether forms are complete, including checking for signatures, notarization, correct county name, and case number;

(12) Assist in calculating child support using the standardized computer-based program, based on financial information provided by the Self-Represented Litigant;

(13) Answer general questions about how the court process works;

(14) Answer questions about court timelines;

(15) Provide docket information;

(16) Provide information concerning how to get a hearing scheduled;

(17) Inform Self-Represented Litigants of the availability of interpreter and sign language assistance and process requests for such services;

(18) At the direction of the court, review Self-Represented Litigants’ documents prior to hearings to determine whether procedural requirements have been met;

(19) Assist Self-Represented Litigants with preparation of proposed court orders based upon the parties’ agreement or stipulation for signature of judge or magistrate;

(20) Answer questions about whether an order has been issued, where to get a copy if one was not provided, and read the order to the individual if requested;

(21) Provide a Self-Represented Litigant with access to information from a case file that has not been restricted by statute, rule or directive, including CJD 05-01;

(22) Provide assistance based on the assumption that the information provided by the Self-Represented Litigant is accurate and complete;

(23) Provide the same services and information to all parties to an action, as requested;

(24) Provide language and/or citations of statutes and rules, without advising whether or not a particular statute or rule is applicable to the situation;

(25) Provide other services consistent with the intent of this Chief Justice Directive and the direction of the court, including programs in partnership with other agencies and organizations.

(b) Prohibited Services. Self-Help Personnel shall not:

(1) Recommend whether a case should be brought to court;

(2) Give an opinion about what will happen if a case is brought to court;

(3) Represent litigants in court;

(4) Tell a Self-Represented Litigant that Self-Help Personnel may provide legal advice;

(5) Provide legal analysis, strategy, or advice;

(6) Disclose information in violation of a court order, statute, rule, chief justice directive, or case law;

(7) Deny a Self-Represented Litigant access to the court;

(8) Tell the Self-Represented Litigant anything Self-Help Personnel would not repeat in the presence of the opposing party, or any other party to the case;

(9) Refer the Self-Represented Litigant to a specific lawyer or law firm for fee-based representation.

Assistance by Self-Help Personnel is not the Practice of Law

The performance of services by Self-Help Personnel in accordance with this directive is not the practice of law, as Self-Help Personnel are to provide neutral information and are not to give legal advice. Information provided by a Self-Represented Litigant to Self-Help Personnel is neither confidential nor privileged. No attorney–client relationship exists between Self-Help Personnel and a Self-Represented Litigant.

Assistance by Lawyers and Nonlawyer Assistants who are not Self-Help Personnel

When Self-Help Personnel refer Self-Represented Litigants to community resources and services, this may include referrals to lawyers and law firms who can provide short-term limited legal services. Lawyers, and their nonlawyer assistants, as that term is used in the Colorado Rules of Professional Conduct 5.3, are guided by the Colorado Rules of Professional Conduct, including, but not limited to Rule 6.5 which addresses court-annexed limited legal services programs.

Availability of Services

Subject to available resources, assistance is available to all Self-Represented Litigants. Self-Help Personnel may direct Self-Represented Litigants to other appropriate services where the inquiry is better addressed. Some limited examples are: the Office of the District Attorney for questions about victims’ services; the Americans with Disabilities Act coordinator in the location, for information about accommodations necessary to the Self-Represented Litigant; the collections investigator for information about payment of court costs; the clerk and recorder, for information about property records; and the Division of Revenue, Motor Vehicle Division, for information about drivers’ licenses or state identification.

Copy Costs

Courts may require Self-Represented Litigants to pay the reasonable copying costs of providing forms and instructions to Self-Represented Litigants, provided that the charge for persons who are indigent may be reduced or waived, as required by statute, rule or directive, including CJD 06-01.

Notice to Self-Represented Litigant

Self-Help Personnel shall provide and, if necessary, review with the Self-Represented Litigant, the "Notice to Self-Represented Litigant," below. Such notice shall also be available through conspicuous posting and be made available in other languages, as needed.

Notice to Self-Represented Litigant

Self-help services are available to all persons who seek information to file, pursue, or respond to a case without the assistance of a lawyer authorized to practice before the court, within the resources available to Self-Help Personnel.

Self-Help Personnel are neutral information providers and will provide the same services and information to all parties in a case, if requested.

Self-Help Personnel are employees of the court or volunteers for the court and are available to provide information about court procedures, practices, rules, terminology, and forms, as well as community resources and services. They will assist you by providing information in a neutral way, but cannot act as your lawyer or provide legal advice.

Self-Help Personnel will explain the court process, will help you to understand what information is needed to fill in the blanks on a form, and will review your forms for completeness, but cannot tell you what your legal rights or remedies are, represent you in court, or tell you how to testify in court.

Self-Help Personnel will listen to you to help you locate forms and understand the information you need for your case, but because the Self-Help Personnel are court employees or court volunteers, any information you share with them is not confidential or privileged.

No attorney-client relationship exists between Self-Help Personnel and you as a Self-Represented Litigant. If you need a lawyer or legal advice, Self-Help Personnel will help you find community resources and services without recommending a specific lawyer or law firm.

Self-Help Personnel are not responsible for the outcome of your case.

Self-Help Personnel are not investigators and cannot provide investigative services.

Self-Help Personnel are court employees or court volunteers not acting on behalf of any particular judge. The presiding judge in your case may require that you change a form or use a different form. The judge is not required to grant the relief you request in a form.

In all cases, it is best to obtain the assistance of your own lawyer, especially if your case presents significant or complicated issues. If requested, Self-Help Personnel will help you find community resources and services without recommending a specific lawyer or law firm. For more information about the court’s self-help assistance, see Chief Justice Directive 13-01, which is available at www.courts.state.co.us/Courts/Supreme_Court/Directives/Index.cfm.

Done at Denver this June 12, 2013.

Michael L. Bender
Chief Justice, Colorado Supreme Court


Colorado Supreme Court
Colorado Judicial Department
Judicial Ethics Advisory Board Opinion

Colorado Judicial Ethics Advisory Board (CJEAB)
Advisory Opinion 2013-03
Finalized and Effective July 9, 2013

Issue Presented

The requesting judge is a District Court Judge to whom two related pending cases have been assigned. One case is a C.R.C.P. 120 residential foreclosure proceeding, and the second is a civil action brought by the respondent-debtors in the foreclosure proceeding against the foreclosing bank, seeking a declaratory judgment as to the rights of the parties in the subject property.

The Rule 120 proceeding was originally assigned to a different judge, but was reassigned to the requesting judge after the first judge granted the respondent-debtors’ C.R.C.P. 97 motion requesting that he disqualify himself based on an alleged interest in the foreclosing bank. More specifically, the motion alleged that the judge’s interest in the Public Employee Retirement Association (PERA) required his disqualification because PERA holds investments in the foreclosing bank and other financial institutions involved in the residential mortgage-backed securities market, and is either directly engaged in or has an economic interest in litigation regarding mortgage-backed securities. The respondent-debtors alleged that, by virtue of his interest in PERA, the judge had a "direct conflict of interest" in the Rule 120 proceeding, was "biased and prejudiced against" them, and that his participation would give rise to an appearance of impropriety or impartiality. The judge indicated that he "disputes the allegations that I am biased or prejudicial," but "nonetheless recuse[d] himself" and referred the case to the Chief Judge of that district for reassignment.

The Chief Judge reassigned the matter to the requesting judge, who is now presiding over both the Rule 120 proceeding and the declaratory judgment action. The respondent-debtors filed C.R.C.P. 97 motions requesting that he recuse himself from both cases on the same grounds alleged in the motion seeking the first judge’s disqualification. The judge indicated that he has "neither an actual bias nor actual prejudice in presiding over the cases," but asked whether he is nevertheless disqualified based on his interest in PERA. Specifically, he asked the following three questions:

  1. Am I ethically required to recuse myself from one or both or neither of the pending cases?
  2. Does the prior recusal of a similarly situated judge make it necessary for me to recuse myself due to an appearance of impropriety?
  3. Given that all district court judges in the State of Colorado are similarly situated with regard to [PERA] and its investments, is this a limited circumstance to which the rule of necessity applies?

Conclusion

The judge is not disqualified from either the Rule 120 proceeding or the declaratory judgment action because he does not have an actual bias or prejudice regarding the parties, has at most a de minimis interest in the outcome of the proceedings through PERA, and does not have a disqualifying economic interest in the foreclosing bank or in the outcome of the litigation. Moreover, to the extent his interest in PERA could give rise to an appearance of impropriety or impartiality, the rule of necessity would override any potential conflict and preclude his disqualification from either case.

Applicable Provisions of the Colorado Code of Judicial Conduct

Canon 1 of the Code of Judicial Conduct provides that "A judge shall uphold and promote the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety."

Rule 1.2 requires judges to "act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary," and to "avoid impropriety and the appearance of impropriety."

Rule 1.3 provides that a judge "shall not abuse the prestige of judicial office to advance the personal or economic interests of the judge or others, or allow others to do so."

Rule 2.7 requires a judge to "hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law."

Canon 2 requires judges to "perform the duties of judicial office impartially, competently, and diligently."

Rule 2.2 provides that a judge "shall perform all duties of judicial office fairly and impartially."

Rule 2.4(B) provides that "A judge shall not permit . . . financial[] or other interests . . . to influence the judge’s judicial conduct or judgment."

Rule 2.4(C) provides that "A judge shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge."

Rule 2.11(A) requires disqualification of a judge "in any proceeding in which the judge’s impartiality might reasonably be questioned."

Rule 2.11(A)(1) requires disqualification when a judge "has a personal bias or prejudice concerning a party or a party’s lawyer. . . ." See also C.R.C.P. 97 (disqualification required when the judge is "interested or prejudiced" in an action).

Rule 2.11(A)(2)(c) requires disqualification when the judge has "more than a de minimis interest that could be substantially affected by the proceeding." See also § 13-1-122, C.R.S. 2012 ("A judge shall not act as such in . . . an action or proceeding . . . in which he is interested . . . ."). The Terminology section of the Code defines "de minimis" as "an insignificant interest that could not raise a reasonable question regarding the judge’s impartiality."

Rule 2.11(A)(3) requires disqualification when the judge has "an economic interest in the subject matter in controversy or in a party to the proceeding." The Terminology section provides that "[o]wnership in a mutual or common investment fund that holds securities, or of securities held in a managed fund is not an ‘economic interest’ in such securities unless the judge participates in the management of the fund." See also C.J.C. Rule 2.11 cmt. [6]; § 13-1-122.

Rule 2.11(D) provides that "[i]n limited circumstances, the rule of necessity applies and allows judges to hear a case in which all other judges also would have a disqualifying interest or the case could not otherwise be heard."

Discussion

Rule 2.11 provides that judges are disqualified from "any proceeding in which the judge’s impartiality might reasonably be questioned." Of the specific situations enumerated in the rule requiring a judge’s disqualification, three are relevant here: a personal bias or prejudice (Rule 2.11(A)(1)), more than a de minimis interest that could be affected by the proceeding (Rule 2.11(A)(2)(c)), and an economic interest in the subject matter in controversy or a party to the proceeding (Rule 2.11(A)(3)). But none of these enumerated bases for disqualification requires the judge to recuse himself:

  • PERA’s investments in the foreclosing bank and its interests in residential mortgage-backed securities litigation represent a very small percentage of its overall holdings, and the foreclosing bank’s interest in the subject property is an insignificant portion of its assets. Thus, the judge’s interest in PERA will not be affected by the outcome of the Rule 120 and declaratory judgment proceedings and is therefore an "insignificant interest that could not raise a reasonable question regarding the judge’s impartiality." See C.J.C. Terminology (definition of "de minimis"). Accordingly, he is not disqualified under Rule 2.11(A)(2)(c). Cf. Zoline v. Telluride Lodge Ass’n, 732 P.2d 635, 640 (Colo. 1987) (judge was required to recuse himself where, among other disqualifying factors, he owned a controlling interest in a bank in which a party to the lawsuit was a substantial depositor).
  • The Code expressly provides that "[o]wnership in a mutual or common investment fund that holds securities, or of securities held in a managed fund is not an ‘economic interest’ in such securities unless the judge participates in the management of the fund." C.J.C. Rule 2.11 cmt. [6]; C.J.C. Terminology. The requesting judge is not on PERA’s investment management staff and is not a member of its Board of Trustees, which determines the strategic asset allocation policy for the fund. Accordingly, he is not disqualified under Rule 2.11(A)(3).
  • The judge indicated in his request that he has no "actual bias or prejudice" in favor of the foreclosing bank or against the respondent-debtors, and, other than their concerns about the judge’s interest in PERA, nothing in their C.R.C.P. 97 motion suggests that he has a personal bias or prejudice against them. Accordingly, he is not disqualified under Rule 2.11(A)(1) based on "a personal bias or prejudice concerning a party." See People in Interest of A.G., 262 P.3d 646, 650 (Colo. 2011) ("actual bias focuses on the subjective motivations of the judge" and is a bias "that in all probability will prevent [a judge] from dealing fairly with a party"); People v. Julien, 47 P.3d 1194, 1197 (Colo. 2002) (same).

The specific reasons for disqualification enumerated in Rule 2.11 are not the only circumstances in which a judge may be disqualified, however, because the Rule requires a judge to "disqualify himself or herself in any proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to" the enumerated circumstances. In our view, a reasonable observer would not question the judge’s impartiality based on his interest in PERA. See C.J.C. Rule 1.2, cmt. 5 ("The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this Code or engaged in other conduct that reflects adversely on the judge’s honesty, impartiality, temperament, or fitness to serve as a judge."); see also A.G., 262 P.3d at 650 ("A judge who is disqualified based on an appearance of impropriety may be able to act impartially, but the judge is disqualified nonetheless because a reasonable observer might have doubts about the judge’s impartiality."). But even if the judge’s interest in PERA might give rise to questions about his impartiality or otherwise implicate Rule 1.2 (requiring judges to "act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary," and "avoid impropriety and the appearance of impropriety."), Rule 1.3 (requiring judges to avoid abuse of the prestige of judicial office to advance their economic interests), or Rule 2.4 (prohibiting external influences, including personal financial interests, on judicial conduct or judgment), the same concern would arise with respect to every state district court judge, because PERA is a pension fund of which all Colorado judges are members.

As the comments to Rule 2.11 make clear, under the rule of necessity, a judge’s responsibility to decide pursuant to Rule 2.7 overrides an otherwise disqualifying conflict when all other judges have the same disqualifying interest or the case could not otherwise be heard:

The rule of necessity may override the rule of disqualification. The rule of necessity is an exception to the principle that every litigant is entitled to be heard by a judge who is not subject to disqualifications which might reasonably cause the judge’s impartiality to be questioned. The rule of necessity has been invoked for trial court and court of appeals judges where disqualifications exist as to all members of the court and there is no other judge available. . . . [T]he importance of having the court render a decision overrides the existence of the conflict, which might otherwise leave litigating parties in limbo. Under the rule of necessity, [] a judge might be required to participate in judicial review of a judicial salary statute. . . . Rather than deny a party access to court, judicial disqualification yields to the demands of necessity.

C.J.C. Rule 2.11 cmt. [6]; see also C.J.C. Rule 2.7 ("A judge shall hear and decide matters assigned to the judge, except when disqualification is required by Rule 2.11 or other law.") and cmt. [1] ("Judges must be available to decide the matters that come before the courts. Although there are times when disqualification is necessary to protect the rights of litigants and preserve public confidence in the independence, integrity, and impartiality of the judiciary, judges must be available to decide matters that come before the courts.").

Thus, the answer to the judge’s first question—whether he is disqualified from either case based on his interest in PERA—is no. He has no actual personal bias against respondent-debtors or in favor of the foreclosing bank, and any interest he might have in the outcome of the proceedings based on PERA’s holdings is at most de minimis and is not a disqualifying economic interest. The answer to his second question is also no: the prior recusal of a similarly situated judge does not require the requesting judge’s disqualification to avoid the appearance of impropriety. Each judge must consult his or her own conscience to answer the subjective question of whether the judge is biased or prejudiced for or against a party, and the fact that one judge recused himself does not require another judge to make the same decision under similar circumstances when, as here, the relevant provisions of the Code do not require disqualification. Indeed, to the extent the first judge’s decision to recuse himself from the Rule 120 proceeding was based on a concern that his interest in PERA gave rise to the appearance of impropriety or impartiality, his decision illustrates why the rule of necessity applies, because the same concern would arise with respect to every state district court judge. Thus, the answer to the judge’s third question is yes: the rule of necessity, which derives from a judge’s duty to sit, overrides the rule of disqualification based on the appearance of impropriety and requires the judge to hear both cases. See C.J.C. Rule 2.7; C.J.C. Rule 2.11(D) and cmt. [3]; Pomerantz v. Microsoft Corp., 50 P.3d 929, 931 (Colo.App. 2002) (rule of necessity required judges to sit on panel hearing appeal from trial court’s dismissal of class action antitrust suit brought against software manufacturer on behalf of users of its operating system where "each judge on this court uses" the same or a more current version of the operating system); see also United States v. Will, 449 U.S. 200, 213 (1980) (relying on rule of necessity to conclude that judges are not automatically disqualified from cases challenging changes to laws regarding judicial compensation); In re Wireless Tel. Radio Frequency Emissions Products Liab. Litig., 170 F.Supp.2d 1356, 1357 (J.P.M.L. 2001) (rule of necessity required participation by all members of a seven-member judicial panel on multidistrict litigation where four members held stock interests that would normally disqualify them from participating regardless of the insignificance of the financial impact any determination would likely have upon those interests).

* Hon. Charles Greenacre did not participate in this opinion.

Finalized and effective July 9, 2013.

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