HomeMy WebLinkAbout2018CV149 - SUTHERLAND V. CITY OF FORT COLLINS, STEVE MILLER & IRENE JOSEY - 160 - ORDER DENYING PLAINTIFF'S MOTION FOR DISQUALIFICATION1
District Court, Larimer County, State of Colorado
201 LaPorte Avenue, Suite 100
Fort Collins, CO 80521-2761
(970) 494-3500
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Plaintiff: Eric Sutherland
v.
Defendants: The City of Fort Collins, et al.
Case Number: 2018CV149
Courtroom: 5B
ORDER DENYING PLAINTIFF’S MOTION FOR DISQUALIFICATION
The Plaintiff filed his Motion for Disqualification Under Rule 97 on October 1,
2019. The Defendants have not responded. Having considered the Motion and
applicable law, the Court finds and orders as follows:
The Plaintiff asserts that the undersigned should be disqualified from this case.
“When assessing the grounds for disqualification raised in a motion, the judge must
consider the Code of Judicial Conduct as well as the statutes and procedural rules.”
Zolline v. Telluride Lodge Ass’n, 732 P.2d 635, 639 (Colo. 1987). There are three such
sources of authority under Colorado law: C.R.C.P. 97, C.R.S. § 13-1-122, and Rule 2.11 of
the Colorado Code of Judicial Conduct.
The situations described in C.R.S. § 13-1-122 are not relevant to the instant
motion, but the rules of civil procedure and judicial conduct are. C.R.C.P. 97 says “[a]
judge shall be disqualified in an action in which he is interested or prejudiced[.]”
Further, C.J.C. 2.11(A)(1) provides that “[a] judge shall disqualify himself or herself in
any proceeding in which the judge’s impartiality might reasonably be questioned,
including … [t]he judge has a personal bias or prejudice concerning a party or a party’s
lawyer[.]”
The Plaintiff alleges that the undersigned must recuse himself for three reasons:
(1) he is prejudiced as evidenced by his systematic disregard for the Plaintiff’s argument
and authorities, (2) he is prejudiced as evidenced by factual conclusions demonstrating
DATE FILED: October 30, 2019
CASE NUMBER: 2018CV149
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“bent of mind,” and (3) he is interested in the outcome of a related coram non judice
issue.
As for the first reason, the Plaintiff claims the undersigned “has systematically
disregarded” his novel theory of standing and that this disregard “is evidence of
unacceptable bias and prejudice sufficient to require disqualification.” That the
undersigned has consistently found the Plaintiff’s novel theory of standing to be
unsupported by law is neither evidence of bias nor evidence of prejudice.
As for the second reason, the Plaintiff claims that, when in the Court’s September
5, 2018 Order the undersigned wrote “The Court finds that Plaintiff’s suit against Fort
Collins was brought for the purpose of delaying and/or harassing the City in its
attempt to construct the voter-approved broadband network[,]” this statement
“evidences a ‘bent of mind’ that can clearly be seen to clear the bar necessary for
disqualification.” A review of the record, however, reveals that this statement was not
made in the September 5, 2018 Order but was instead made in the April 2, 2019 Order
Granting Fort Collins’s Motion for Attorneys’ Fees and Bill of Costs. Rather than
demonstrating prejudice, the undersigned’s statement was a finding necessary to the
resolution of the City’s request for attorneys’ fees under C.R.S. § 13-17-103 and was
made after a hearing during which the Plaintiff testified.
As for the final reason, the Plaintiff claims the undersigned should be
disqualified because “[t]here can be no question that Judge Lammons is interested in
the outcome” of issues the Plaintiff raised in his May 2, 2019 Motion to Deem this
Proceeding coram non judice Since June 23, 2018 Pursuant to Rule 60(b)(5). As the
undersigned described in the May 29, 2019 Status Order Regarding Notice of Appeal,
the Court lacks jurisdiction to consider the Plaintiff’s coram non judice motion and will
not consider it unless directed to do so by the Colorado Court of Appeals. As the
Colorado Supreme Court has long held, “[t]he interest of a judge upon which he may
disqualify himself must necessarily relate to the subject matter of the litigation, or be of
a pecuniary interest in the outcome of the litigation, and not as it might relate to a
determination of the facts and legal questions presented.” Kubat v. Kubat, 238 P.2d 897,
899 (Colo. 1951). The undersigned is not “interested” in the coram non judice issue as
that term is used in C.R.C.P. 97.
Taking the factual allegations advanced by the Plaintiff as true, the undersigned
concludes that would be inappropriate to recuse. The undersigned is neither interested
nor prejudiced in this action. Further, the undersigned does not possess a personal bias
or prejudice regarding any of the parties or any of the attorneys in this case. “[A]bsent a
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proper reason for recusal, a judge has an obligation to serve on a case assigned to him.”
People v. Brewster, 240 P.3d 291, 301 (Colo. App. 2009). See also C.J.C. 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.”).
The Plaintiff’s Motion is denied.
Dated: October 30, 2019. BY THE COURT:
__________________________
Gregory M. Lammons
District Court Judge