I'm looking for a case wherein a judge is permitted to sit in judgment of a case in which he is a defendant in tort, other judges are authorized by statute and available to hear the case in his/her stead, and the statutory law of that jurisdiction commands recusal. (Since you have binding precedent in both jurisdictions holding that a judge cannot do this, you would also have to explain why SCOTUS and their Colorado counterparts are wrong to prevail.)bmielke wrote:Your wording confuses me, please explain what you are looking for and I will take up the challenge.KSmith wrote: Tell you what: If you yo-yos can find even a single court anywhere in the civilised[sic] world outside of Colorado where a judge is allowed to sit in judgment of his own case, cf., Tumey v. Ohio, 273 U.S. 510, 523 (1927) (violates 14Am), when other judges could hear it, get back to me.
It has been black-letter law since the first settlers arrived in Jamestown that no man can sit in judgment of his own cause. Dr. Bonham's Case [1610] 8 Co. Rep. 114 (Ct. Common Pl.). It “certainly violates the Fourteenth Amendment … to subject [a man’s] liberty or property to the judgment of a court the judge of which has a direct, personal, substantial, pecuniary interest in reaching a conclusion against him in his case.” Tumey v. Ohio, 273 U.S. at 523. The test this Court has consistently used in determining whether a judge has an interest in a case sufficient to disqualify him from consideration of an appeal is “whether the ‘situation is one ‘which would offer a possible temptation to the average judge to lead him not to hold the balance nice, clear, and true.’’” Aetna Life Ins. Co. v. Lavoie, 475 U.S. 813, 822 (1986) (citations omitted). Recently, SCOTUS affirmed this understanding. declaring that
Caperton v. A. T. Massey Coal Co., No. 08-22 (U.S. Jun. 9, 2009) (slip op. at 6) (quoting Tumey, supra).the Due Process Clause incorporated the common-law rule that a judge must recuse himself when he has "a direct, personal, substantial, pecuniary interest" in a case. This rule reflects the maxim that "[n]o man is allowed to be a judge in his own cause; because his interest would certainly bias his judgment, and, not improbably, corrupt his integrity."
The only exception to the iron-clad rule that a judge may not hear a case in which he has a direct personal financial interest is the “Rule of Necessity,” empowering a judge to hear a case when the “‘failure to do so would result in a denial of a litigant's constitutional right to have a question, properly presented to such court, adjudicated.’" United States v. Will, 449 U.S. 200, 214 (1980) (internal quotation omitted). While not explicitly addressing application of the Rule, the Will Court outlined its well-known contours:
Will, 449 U.S. at 214 (quotation omitted).The true rule unquestionably is that wherever it becomes necessary for a judge to sit even where he has an interest -- where no provision is made for calling another in, or where no one else can take his place -- it is his duty to hear and decide, however disagreeable it may be.
Here's where your problem lies. Judges of the Colorado Court of Appeals may "serve in any state court with full authority as provided by law, when called upon to do so by the chief justice of the supreme court." Colo. Rev. Stat. § 13-4-101. In every jurisdiction with a similar statutory provision, conflicted supreme court justices are required to recuse. E.g., Mosk v. Superior Court of Los Angeles, 601 P.2d 1030 (Calif. 1979) (collecting cases); Sullivan v. McDonald, 913 A.2d 403 (Conn. 2007). As the “Rule of Necessity” only applies in cases of bona fide necessity, see United States v. Will, 449 U.S. 200, 214 (1980), and sixteen non-conflicted judges were available and authorized by statute to hear my claim, it cannot trump my right to have my grievances decided by a fair and independent tribunal. The Colorado Supreme Court explains why:
People ex rel. Burke v. District Court, 60 Colo. 1, 4, 152 P. 149 (1915) (internal citation omitted).The first ideal in the administration of justice is that the judge must be free from bias and partiality. Men are so agreed on this principle that any departure therefrom shocks their sense of justice. … We are equally certain that when … a judge is prejudiced or otherwise incompetent to hear or try a cause, but nevertheless, proceeds in that regard, the issues are not likely to be determined and the rights of the parties properly protected and enforced in a court over which he presides.
Colorado law goes even further, imposing an affirmative obligation upon judges to recuse: "Any judge who knows of circumstances which shall disqualify him in a case shall, on his own motion, disqualify himself." Colo. Rev. Stat. § 16-6-201(2). Once that a judge is obligated to recuse himself, he immediately loses all jurisdiction in the matter except to transfer the case. Erbaugh v. People, 140 P. 188, 190 (Colo. 1914)). Further, a judgment rendered in the face of a jurisdictional defect is void. Davidson Chevrolet v. City and County of Denver, 330 P.2d 1116 (Colo. 1958).
To make matters worse, one of the defendants made this remarkable confession:
People v. Julien, 47 P.3d 1194,1201-02 (Colo. 2002) (Bender, J., dissenting) (internal citations omitted).A judge who is free of bias is a necessary prerequisite to maintaining public confidence in the judicial system because "[j]udicial decisions rendered under circumstances suggesting bias or favoritism tend to breed skepticism, undermine the integrity of the courts, and generally thwart the principles upon which our jurisprudential system is based.” ….
Judicial impartiality is so important to our system of justice that we become concerned if there is even an appearance of partiality.…
The primary rationale for requiring disqualification on the basis of appearances "stems from the recognized need for an unimpeachable judicial system in which the public has unwavering confidence. Allegations of judicial bias may serve to erode this public confidence." …
"It is fundamental to the vitality of our judicial system that litigants believe in the fairness of the process. An unfavorable decision perceived to be the result of an impartial consideration may be bearable, but an unfavorable decision tainted by even the appearance of partiality cannot be condoned." …
I do not stand alone in my belief. The Due Process Clause of the Constitution safeguards the right to impartial judges and requires recusal of judges who are or who appear to be biased. Consistent with this principle, a Colorado statute, procedural rules, and the Code of Judicial Conduct all provide guidelines to ensure that due process requirements are satisfied and that parties to civil and criminal cases are the beneficiaries of unassailably fair and impartial judges.
