Colorado § 13-1-122 - When judge shall not act unless by consent.

§ 13-1-122. When judge shall not act unless by consent.

A judge shall not act as such in any of the following cases: In an action or proceeding to which he is a party, or in which he is interested; when he is related to either party by consanguinity or affinity in the third degree; or when he has been attorney or counsel for either party in the action or proceeding, unless by consent of all parties to the action.

Source: L. 1887: p. 216, § 429. Code 08: § 464. Code 21: § 465. Code 35: § 465. CRS 53: § 37-1-24. C.R.S. 1963: § 37-1-24.

ANNOTATION

Annotator's note. Since § 13-1-122 is similar to repealed provisions antecedent to § 28 of appendix B, R.C.P. Colo., CSA, 1935, relevant cases construing those provisions have been included in the annotations to this section.

A judge must disqualify himself if he has a private interest. Any personal or private interest within this statute or rule would disqualify the county judge as the trial judge, and his refusal to remove himself as the trial judge would be grounds for reversal. Any action involving a situation where the trial judge may benefit in a pecuniary way depending upon his decision would be a prime example of a situation in which a trial judge would have no alternative other than to disqualify himself. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

Generally, a judge has a discretionary prerogative in the area of public interest. In the area of public interest, a judge upon being challenged, may in his discretionary prerogative remove himself, but if he refuses, his decision will not be reversed unless it is shown convincingly that his interest was so intense that a probability existed that his decision would be tainted. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

A differentiation must be made between a judge's private and public interest. In considering the trial court's purported interest in the subject and outcome of the school bond election contest, it is necessary to differentiate between a "private" interest and a "public" interest in the controversy and the outcome. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

Public interest as a citizen is not grounds for disqualification. An interest which a judge may have as a citizen in a public question or issue is no basis per se for his removal as the trial judge in an action contesting an election determinative of the public question or issue. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

A public interest is an interest shared by citizens generally in the affairs of local, state, or national government, and is not the same character of interest which compels disqualification as would a private interest. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

Interest in bond election may be so great so as to make it private interest. The attached affidavits and exhibits are insufficient to show that the county judge who was a qualified taxpaying elector, and who voted for and publicly approved the new school and bond issue, had such an interest in the bond election contest, or that he was so prejudiced against the contest action that he should have as a matter of law disqualified himself. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

Generally, obligations as taxpayer are not grounds for disqualification. The personal effect upon the trial judge, who as the owner of property would be charged with the obligation of the school bonds, is a pecuniary advantage or disadvantage so contingent, speculative, and remote as to be of no consequence. Public improvements, like new school buildings, may have the effect of increasing the tax obligation on real property but they also result in increasing the value of the property so that it is therefore next to impossible to state as a matter of certainty that a public improvement will be a disadvantage or advantage to any given piece of property. Russell v. Wheeler, 165 Colo. 296, 439 P.2d 43 (1968).

Whether to disqualify himself in a civil case is a question within the discretion of the trial judge, and the judge's ruling on that issue will not be disturbed on appeal absent a showing of an abuse of that discretion. Colo. State Bd. of Agric. v. First Nat'l Bank, 671 P.2d 1331 (Colo. App. 1983).

A judge, having been of counsel for either party in the previous trial of the action, is under this section clearly disqualified from acting as judge in the trial of the case, and, where the disqualification is not waived by consent of the party he represented as counsel, has no authority to act judicially therein. O'Connell v. Gavett, 7 Colo. 40, 1 P. 902 (1883).

The fact that the presiding trial judge was statutorily disqualified from presiding because of her prior involvement in the case as counsel for defendant, even though the judge's representation was minimal, amounts to structural error requiring reversal. People v. Garcia, 2022 COA 83, 519 P.3d 1064, rev'd on other grounds, 2024 CO 41M, 550 P.3d 637.

Judge must by his own motion certify this to the district court. Under this section, a county judge who has acted as counsel in behalf of either litigant is not only disqualified from hearing motions to set aside judgments, but it is his duty on his own motion to certify the matters to the district court. People ex rel. Brown v. District Court, 26 Colo. 226, 56 P. 1115 (1899).

Even where a judge previously represented one of the parties in the proceeding, this section explicitly permits the parties to consent to the judge presiding over the case. People v. Garcia, 2024 COA 91, 559 P.3d 255.

Applied in Zoline v. Telluride Lodge Ass'n, 732 P.2d 635 (Colo. 1987).