A prominent attorney donated more than $200,000 against an Adams County judge's retention election. But that did not mean the judge should have recused himself from a case involving the firm's lawyers, the Colorado Court of Appeals ruled on Thursday.
“[W]e conclude that the motion to disqualify did not, as a matter of law, allege sufficient facts supporting a reasonable inference of actual or apparent bias or prejudice to require disqualification,” wrote former Justice Alex J. Martinez, who sat on the appeals panel at the chief justice’s direction.
Another driver caused a car accident that injured Lyubov Bocian in September 2016. After settling with the driver’s insurance company, Bocian sought to recover lost wages from her insurer due to her inability to return to work for six months. An economist estimated for her that the income forgone was $63,600 due to her injuries.
Bocian’s insurance offered her $15,000, and she in turn sued for breach of contract.
At trial, Bocian attempted to disqualify Adams County District Judge Edward C. Moss from her case, alleging that he was biased against her attorneys at Franklin D. Azar and Associates. The Colorado Rules of Civil Procedure require a judicial substitution if there is a reasonable inference of a judge’s partiality toward either of the litigants or opposing counsel.
Bocian alleged that in two prior cases involving Azar’s lawyers, Moss denied motions that would have advantaged the firm’s clients. In a third case, Moss supposedly made comments that accused an Azar lawyer of malpractice. Martinez wrote that Bocian did not produce further documentation of the malpractice comment, but “accepting these allegations as true, we find them insufficient as a matter of law to allow us to reasonably infer the judge’s actual or apparent prejudice or bias against Bocian’s counsel.”
The appellate court did not find Moss exhibited any hostility or prejudice toward the Azar firm based on his actions, nor did the panel determine that Moss harbored ill will because Azar himself made a $224,000 campaign contribution against Moss’s retention election in 2018. The Colorado Sun reported at the time that the contribution stemmed from Azar’s resentment over how Moss handled the cases that Bocian cited.
The Great Judges for a Great Colorado campaign ran advertisements saying that Moss had “consistently taken the side of big shots, like the big insurance companies, over people like you.”
During the retention election, the 17th Judicial District Commission on Judicial Performance unanimously determined Moss met performance standards, noting that he was “a well-respected leader in the Colorado court system when it comes to judicial ethics and ethics education.” Moss, the former mayor of Westminster, is a member of the Colorado Bar Association Ethics Committee and became a judge in 2004. The judge prevailed in his election with just under two-thirds support from voters.
The appellate court found there was no overt evidence that Moss knew about the campaign contributions or referenced them in Bocian’s case.
“Whether Azar’s contribution put the judge in a position creating an appearance of bias or prejudice is a closer question,” Martinez wrote. In the 2009 case of Caperton v. A. T. Massey Coal Co., the U.S. Supreme Court decided by a 5-4 vote that a West Virginia supreme court justice should have recused himself from a case in which the CEO of one of the litigants contributed $3 million to his election. The court said that the appearance of bias, rather than proven bias, was reason enough to recuse.
However, in a 1981 case before the Colorado Supreme Court, the court ruled that the defendant’s death threats against a judge were not enough to force disqualification. To substitute the judge “would enable a defendant to use vulgarity and threats to disqualify every judge that did not measure up to his own particular specifications or requirements,” wrote Justice William H. Erickson in a concurring opinion.
The appellate court similarly determined that a law firm should not be able to make strategic campaign contributions to “shop” for judges, and that there was insufficient “context to consider the relative size and effect of the contribution” on Moss’s handling of the case.
The panel also dismissed Bocian’s claim that Moss acted derisively toward the economist who estimated her damages, finding that the judge was merely determining whether the “methodology was reasonably reliable.” Although Bocian quoted Moss as using the words “quackery” or “bologna,” the appellate panel pointed out that Moss employed such language for a hypothetical example. The court deemed Moss to have committed no error by excluding the economist’s expert testimony from the trial because of questionable methodology.
In the absence of the economist’s $63,600 estimate of Bocian’s lost wages, Bocian herself calculated for the trial that she was owed $19,200. A jury ultimately awarded her $90,000.
Emails sent to the Azar firm and the 17th Judicial District seeking comment were not immediately returned.
The case is Bocian v. Owners Ins. Co.