Motion to disqualify a judge

[michaelts]

What is the name of your state (only U.S. law)? Colorado

Here is my situation. I had a trial at a County Court, and I believe a trial judge abused his discretion. I filed an appeal. Because this is Colorado, the appeal was reviewed by a single judge at the District Court, and I believe this appellate judge covered up mistakes of the trail judge to the extent that he also abused his discretion, too. Specifically, the appellate judge made rulings that were not based on any authority or any law, and completely ignored the case laws I cited in the brief.

So I believe I have only two choices: appeal to the Supreme Court, or file a motion to recuse.

Because this is Colorado, I have a right for only one appeal (reviewed by a single judge). Further appeal is only by writ of certiorari to the Supreme Court, so it would be reviewed only if it is a special case, and in the interest of public. I don't believe an abuse of discretion of my particular case has any importance for the people of Colorado, and there is nothing special in it. Just a simple and, I am sure, a common one-judge-protects-another situation. So I believe chances for the petition to be granted are almost zero.

So it seems I should try to disqualify the judge first. My question is: can a judge be disqualified because he makes ruling that are not based on any law or authority while at the same time being aware of the case laws that should have been applied?

Obviously, when a judge makes such a ruling this situation is resolved in a next appeal. But I cannot appeal (in a sense of having a right to appeal), my appeal options are exhausted. What are your opinions? Is motion for disqualification the only choice left?

 

[cbg]

Since this is at least the third forum you've posted this question on, is it safe to assume that you're going to keep asking the question until someone gives you the answer you want to hear?

 

[justalayman]

The judge has already ruled on your case. There is nothing to disqualify him from at this point. If you believe you have a valid basis for an appeal, then file for one. I believe it would be in the best interest to review the ruling of a judge if his decisions are not within what the law directs.

 

[tranquility]

The place to challenge a judge who did not follow the law is in appeals.

 

[michaelts]

The place to challenge a judge who did not follow the law is in appeals.

You are absolutely correct. However, the appeal option has been exhausted. Under Colorado law I have no right for another appeal.

The main reason why appeals are reviewed by three judges is because it would be extremely unlikely for all three of them abuse the discretion and not follow the law. They might misunderstand something, but they would never bluntly ignore the precedents they were provided with in a brief.

In Colorado, an appeal from a county court is decided by a single judge at a district courts and in over 90% cases this would be the last resort.

Now, when a court misapplies the law it abuses its discretion. However, I can't find a connection to bias or prejudice as a legal precedent. Without this connection I cannot file the motion to disqualify a judge. What are your opinions? Isn't it obvious when a judge abuses its discretion knowingly ignoring the laws he is already biased?

 

[Doreen]

Your ONLY legal recourse is to appeal to the state Supreme Court. If they decline to hear it, as they most surely will, your case is dead in the water and OVER.

If you believe that a three justice panel will not rubber stamp a lower court ruling (especially in a pro se appeal) just as easily as your judge did, you are naively ignorant of some unpleasant realities of the appeals process.

You are grasping at straws with notions of recusal. That is simply not an option. Where do you believe you can file your motion to recuse?

 

[michaelts]

Your ONLY legal recourse is to appeal to the state Supreme Court. If they decline to hear it, as they most surely will, your case is dead in the water and OVER.

If you believe that a three justice panel will not rubber stamp a lower court ruling (especially in a pro se appeal) just as easily as your judge did, you are naively ignorant of some unpleasant realities of the appeals process.

You are grasping at straws with notions of recusal. That is simply not an option. Where do you believe you can file your motion to recuse?

Thank you for your reply.

When three judges do not follow the law and instead act on their own discretion - this act by itself becomes a new law. Court of Appeals is allowed to set precedents that are binding for lower courts. However, when a single judge does not follow the law, and acts on his own discretion - this is a plain abuse of discretion. A single judge is never allowed to set precedents. I am not aware of a single state other than Colorado where there is no right for a three-judge appeal.

Now turning back to the original topic, I do understand your opinion that notions of recusal are not an option. I just want to be clear why, i.e. in legal terms. Recusal requires showing of facts of bias or prejudice. I am not clear why the fact of abuse of discretion (specifically, refusal to apply the law) is insufficient to establish bias or prejudice.

Again, I do appreciate your reply very much.

 

[Sloop John D]

Are you sure that it's even possible to disqualify a judge at this point?

 

[justalayman]

Are you sure that it's even possible to disqualify a judge at this point?

Op apparently believes it is and while the judge is not immune from disqualification in future trials, the fact remains op's case is completed at the appellate level and as such op cannot retroactively disqualify the judge from his case. His options are to move forward through the appeals process if he has a valid legal point the must be addressed.

Along with that, op must realize that if there is no basis to appeal his case higher, there would also be no basis to seek the disqualification of the judge he is speaking of. You do not get to disqualify a judge simply because you are not satisfied with their decisions. The op keeps speaking of legal error and if that is the case, his decision would be ripe for appeal to a higher court, if the error was the cause for an improper decision.

What it appears to be is a case where the op believed his case law support meant something that the judge apparently did not agree with. That is not uncommon.

 

[tranquility]

Time to move on. Your theory of bias is wrong.

 

[Doreen]

...When three judges do not follow the law and instead act on their own discretion - this act by itself becomes a new law. Court of Appeals is allowed to set precedents that are binding for lower courts....

You are wrong. Appeals courts DO NOT make law, which is a legislative function. Appeals courts render OPINIONS on their interpretation of the law as it applies to the case at hand, and opinions often differ between appeals courts, and are not necessarily binding.

State Supreme Court's often resolve conflicting opinions and their Opinions are more binding, though far from an absolute, given the facts in all cases are not the same. The legislature also resolves conflicts by revising the law and closing loopholes.

 

[michaelts]

You are wrong. Appeals courts DO NOT make law, which is a legislative function. Appeals courts render OPINIONS on their interpretation of the law as it applies to the case at hand, and opinions often differ between appeals courts, and are not necessarily binding.

State Supreme Court's often resolve conflicting opinions and their Opinions are more binding, though far from an absolute, given the facts in all cases are not the same. The legislature also resolves conflicts by revising the law and closing loopholes.

I agree. However, you are talking about the concept of law, and I was talking about the concept of case law.

Here is the process as I see it:

1) Trial court: "Oranges are blue"
2) Motion for reconsideration: "The Supreme Court ruled oranges are orange. Please reconsider."
3) Trial court: "The motion is denied without explanation"
4) Brief: "The Supreme Court ruled oranges are orange. The trial court erred and abused its discretion by not following the law"
5) Appellate court: "Oranges are blue. The decision of the trial court is affirmed."
6) Petition for rehearing: "The Supreme Court ruled oranges are orange. Please reconsider."
7) Appellate court: "Petition is granted. Oranges are blue. The decision of the trial court is affirmed."
8) Motion for disqualification.

 

[Doreen]

Again... Just where do you propose filing your motion for disqualification, and who are you expecting will hear and rule on it ??

 

[justalayman]

1) Trial court: "Oranges are blue"
2) Motion for reconsideration: "The Supreme Court ruled oranges are orange. Please reconsider."
3) Trial court: "The motion is denied without explanation"
4) Brief: "The Supreme Court ruled oranges are orange. The trial court erred and abused its discretion by not following the law"
5) Appellate court: "Oranges are blue. The decision of the trial court is affirmed."
6) Petition for rehearing: "The Supreme Court ruled oranges are orange. Please reconsider."
7) Appellate court: "Petition is granted. Oranges are blue. The decision of the trial court is affirmed."
8) Motion for disqualification.

You forgot step 9



9. denial due to no standing to file motion to disqualify

 

[Ohiogal]

OP, you have no clue about the whole "discretion" idea. Nor do I think you understand appeals.