Geer v. Stathopulos

Mr. Justice Hall

dissenting:

I dissent. Plaintiff in error, herein referred to as Geer or Manager, by writ of error seeks to have reviewed and reversed a purported judgment of the trial court, which judgment directed Geer:

“* * * forthwith to issue to petitioner the license applied for.”

Rule 97 of the Rules of Civil Procedure for Courts of Record in Colorado, adopted by this court effective now and since April 6,1941, provides:

“Upon motion a judge shall he disqualified in an action, if he is interested or prejudiced or is related * * * such motion shall be supported by affidavit.” (Emphasis supplied.)

Promptly after the case was assigned to the trial judge for determination, counsel for Geer, in conformity with *162 said Rule 97, filed his motion to disqualify the trial judge for the alleged reason that he was prejudiced in favor of petitioner and against Geer in this and all similar cases. This motion was supported by affidavit made by one of the attorneys for Geer and contains the following:

“That in connection with said hearings, the said Honorable Judge Keating has expressed personal opinions, both in chambers and in open Court, to the effect that the handling and administration of liquor licenses in and for the City and County of Denver has been, and is a rotten, stinking mess and that in his opinion, the entire matter should be investigated by a grand jury.

“That said Judge has also stated in open Court to this Affiant as counsel for the respondent herein that he, said Judge, intends to reverse the decisions of the Manager (Geer) in every case where he has the opportunity, and that he will keep this counsel busy appealing his decisions to the Supreme Court until a grand jury or someone else does something to straighten this matter out.”

The trial Judge on August 7, 1956, denied this motion and in so doing stated:

“For the purposes of the record this. Court wishes to let it be known that those portions of the affidavit as submitted by able counsel for the City Attorneys Office as to statements made by this Court, were made upon evidence submitted in cases heretofore tried by this Court. This Court does not feel that he is prejudiced in this matter in any way, manner, shape or form; that he knows none of the parties involved herein, and that this motion is denied. Gentlemen, kindly proceed.”

Thereupon, and on the same day, August 7, 1956, the parties presented the matter to the Court for determination. On August 8, 1956, the trial judge entered his findings and the purported judgment set forth above.

The trial judge erroneously denied the motion to disqualify. By his threat as set forth in the affidavit, and *163 which the trial judge admits making, it is manifest that he had effectively divested himself of the essential judicial qualifications and attributes necessary and requisite to the entry by him of any judgment in any case involving “decisions of the manager.”

A decision or judgment of a court presupposes the giving of honest and unbiased thought and consideration to matters presented in an orderly manner, at a trial or hearing where the contentions of the parties are presented and following which their rights and duties are fairly adjudicated. The trial judge herein having decided all cases of the Manager prior to filing or presentation thereof has rendered himself judicially impotent in such cases. His post-hearing pronouncement after trial of this case, viewed in the light of his pre-hearing prediction, falls far short of the stature and dignity of a judgment, and being devoid of the essential ingredients of unprejudiced thought, consideration and reasoning is unworthy of review.

The so-called trial herein was nothing short of a mockery. The parties have never had their day in court, the rights of these litigants having been determined prior to their appearance. Due process has been cast aside to make room for bias and prejudice. The end result of these proceedings, being but a malignant travesty on the administration of justice, has none of the essential elements of a judgment as contemplated'by the constitutions and laws of the state of Colorado and the United States of America.

The question as to whether Geer must or should issue a liquor license to Stathopulos is of small moment. A more important question is the integrity of our judicial processes and sustaining public confidence therein.

It has been well said:

“It is important, not only that this case be tried by a fair and impartial judge, but also that this Court shall see. to it that no suspicion attach to the course of judicial proceeding; in order that it may be made apparent, *164 in so far as possible, to the community that the judicial proceedings are impartial and beyond reproach; this to the end that the confidence in our judicial system may be sustained.” State v. Freeman (Okla.) 229 Pac. 296 .

The action of the trial court herein has aroused my suspicion and shaken my confidence, and as a consequence thereof I have examined the records of this court and find, and take judicial notice of the fact, that since the trial Judge unburdened himself as disclosed by the affidavit set forth above, he has decided four other cases involving the issuance of liquor licenses by the manager, and which are presently pending before this court on error. In each of these cases, true to his promise, he “reversed the decisions of Geer.” Hence it would appear that most, if not all, of Geer’s liquor license decisions have come before this trial judge for preview and review and the outcome in each is not incompatible with his pre-trial promises and predictions. These additional facts do not serve to allay my suspicions or dispel my lack of confidence. I do not join in the affirmance of the alleged judgment. I disavow it.

In the interests of justice and in the exercise of the supervisory powers of this court, the purported judgment should be set aside and the cause remanded for judicial treatment before a different judge.