442 P.3d 1243
Utah Ct. App.2019Background
- Kevin Gavette was charged with filing a false insurance claim; at a preliminary hearing the trial judge told Gavette (observing him shake his head) that it made the judge think he was lying.
- About eight months later Gavette filed a motion to disqualify the judge under Utah R. Crim. P. 29, arguing the judge’s preliminary-hearing comment showed bias.
- The judge neither granted the motion nor certified it to a reviewing judge as Rule 29(b)(2)(A) requires; instead the judge proceeded with a hearing on a motion to continue and later presided over trial, sentencing, and entered judgment.
- Gavette was convicted by a jury; after sentencing he moved to set aside the judgment as void under Utah R. Civ. P. 60(b)(4) based on the trial judge’s failure to follow Rule 29 procedures.
- A successor judge denied the motion, concluding Rule 29 did not strip the original judge of jurisdiction; Gavette appealed.
Issues
| Issue | Gavette's Argument | State's Argument | Held |
|---|---|---|---|
| Whether a trial judge may proceed after a Rule 29(b) disqualification motion is filed | The judge lacked authority to act after the motion was filed; any subsequent proceedings are void | The motion was abandoned/invited by defense conduct or not preserved; thus no reversible error | The judge erred: Rule 29(b) requires the judge to grant or certify the motion and to take no further action until decided; subsequent proceedings are void |
Key Cases Cited
- Pugh v. Dozzo-Hughes, 112 P.3d 1247 (Utah Ct. App. 2005) (questions of a trial judge’s authority are reviewed for correctness; actions taken while disqualification motion pending are void)
- Anderson v. Anderson, 368 P.2d 264 (Utah 1962) (trial judge cannot proceed after affidavit of bias; later proceedings are ineffective)
- Pons v. Faux, 396 P.2d 407 (Utah 1964) (rule requiring recusal applies equally in criminal cases)
- Barnard v. Murphy, 852 P.2d 1023 (Utah Ct. App. 1993) (trial judge must either recuse or certify the affidavit to a named judge)
- Young v. Patterson, 922 P.2d 1280 (Utah 1996) (policy behind recusal rules is preserving both appearance and reality of judicial impartiality)