State v. Van Huizen

2017 UT App 30

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
COOPER JOHN ANTHONY VAN HUIZEN,
Appellant.

Opinion
No. 20140602-CA
Filed February 16, 2017

Second District Court, Ogden Department
The Honorable Ernest W. Jones
No. 131902542

Elizabeth Hunt, Attorney for Appellant
Sean D. Reyes and Christopher D. Ballard, Attorneys
for Appellee
Monica Maio, Attorney for Amicus Curiae Utah
Juvenile Defender Attorneys

JUDGE STEPHEN L. ROTH authored this Opinion, in which JUDGE J.
FREDERIC VOROS JR. and SENIOR JUDGE RUSSELL W. BENCH
concurred. 1

ROTH, Judge:

¶1 Cooper John Anthony Van Huizen was involved in an
aggravated robbery when he was sixteen years old. The State
charged him in juvenile court under the Serious Youth Offender
Act. After a hearing, the juvenile court bound Van Huizen over
to stand trial as an adult in district court as provided by the Act,
and he appeals. We vacate and remand for further proceedings.

1. Senior Judge Russell W. Bench sat by special assignment as
authorized by law. See generally Utah R. Jud. Admin. 11-201(6).
 State v. Van Huizen

BACKGROUND 2

¶2 In late 2013, Van Huizen committed a robbery with a
friend and some acquaintances. At sixteen, Van Huizen was the
youngest of the group; his friend was also a juvenile and their
three acquaintances were adults. Although Van Huizen did not
orchestrate the robbery, he agreed to it and facilitated the plan
by providing guns from his family home.

¶3 In search of drugs, the group drove to the house of
someone they knew would possess marijuana. They knocked on
the back door, gained entry to the house and, brandishing the
guns taken from Van Huizen’s home, proceeded to rob the
occupant of a cell phone, some cash, and a “little bit of weed.”
Though Van Huizen did not carry a firearm or other weapon, he
was part of the group that entered the home and committed the
robbery.

¶4 The State charged Van Huizen under the then-current
Serious Youth Offender Act (the Act). See generally Utah Code
Ann. § 78A-6-702 (LexisNexis Supp. 2013) (outlining the process
by which a juvenile could be “bound over and held to answer in
the district court in the same manner as an adult”). 3 The Act
required that the State charge any minor accused of certain
serious felony offenses by filing a criminal information in

2. Van Huizen has already been convicted as an adult in district
court. After his conviction, he successfully moved to reinstate
the time to appeal the juvenile court’s bindover order. Thus, this
appeal concerns juvenile court proceedings and, on appeal, we
recite the facts in the light most favorable to the juvenile court’s
decision. See In re J.C., 2016 UT App 10, n.3, 366 P.3d 867.

3. The Utah Legislature amended the Act after the State brought
these charges. We address the Act as it existed at the time of Van
Huizen’s juvenile court proceedings in 2013.

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 State v. Van Huizen

juvenile court. Id. § 78A-6-702(1). Once filed, the Act directed the
court to undertake a two-pronged analysis. First, the State had
“to establish probable cause” that the defendant committed the
crime. Id. § 78A-6-702(3)(a). If the State proved probable cause,
the burden shifted to the defendant to establish by clear and
convincing evidence that “it would be contrary to the best
interest of the minor and the best interests of the public to bind
the defendant over.” Id. § 78A-6-702(3)(d), (e).

¶5 In making the ultimate determination on whether to bind
the juvenile over to district court, the Act directed that “the
judge shall consider only” five factors:

(i) whether the minor has been previously
adjudicated delinquent for an offense involving the
use of a dangerous weapon which would be a
felony if committed by an adult;
(ii) if the offense was committed with one or more
other persons, whether the minor appears to have a
greater or lesser degree of culpability than the
codefendants;
(iii) the extent to which the minor’s role in the
offense was committed in a violent, aggressive, or
premeditated manner;
(iv) the number and nature of the minor’s prior
adjudications in the juvenile court; and
(v) whether public safety is better served by
adjudicating the minor in the juvenile court or in
the district court.

Id. § 78A-6-702(3)(c).

¶6 Under that framework, the Weber County Attorney’s
Office, acting on behalf of the State, charged Van Huizen in
juvenile court with two counts of aggravated robbery and one
count of aggravated burglary, all first degree felonies.
Unbeknown to Van Huizen and his parents, the juvenile court

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 State v. Van Huizen

judge assigned to his case was married to the then-Chief
Criminal Deputy in the Weber County Attorney’s Office.

¶7 The juvenile court determined that the State had met its
initial burden of proof and that there was probable cause to bind
Van Huizen over to the district court as an adult. In response,
Van Huizen put on evidence that both his and the public’s
interests were both best served by remaining in the juvenile
system. Van Huizen and the State stipulated to factors one and
four, namely that he had no prior offenses and therefore no
offenses involving a dangerous weapon. On the other factors,
Van Huizen adduced testimony from his mother and father
relating to the stability of his home life, his generally good
nature, and his bright future.

¶8 The juvenile court considered the evidence and
determined that Van Huizen had only carried half of his burden.
While Van Huizen had shown that his best interest was served
by remaining in juvenile court, he had not shown by clear and
convincing evidence that the public interests also favored
retention. The court bound Van Huizen over to district court.
Van Huizen did not timely appeal the bindover decision.

¶9 In district court, the same deputy county attorney that
had handled the juvenile proceedings continued to prosecute
Van Huizen, and the attorney received at least some assistance
from the juvenile judge’s husband, the Chief Criminal Deputy in
the prosecutor’s office. Van Huizen eventually pleaded guilty to
two reduced counts of robbery, both second degree felonies. The
district court sentenced him to concurrent prison terms of one to
fifteen years. He was paroled in November 2014.

¶10 While he was serving his prison sentence, Van Huizen
retained new counsel and moved in district court to reinstate his
time to appeal the juvenile court’s bindover order under
Manning v. State, 2005 UT 61, 122 P.3d 628. He supported the
motion by alleging that he had been denied his right to appeal
the bindover order through ineffective assistance of counsel,

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 State v. Van Huizen

asserting that trial counsel had “misinformed [him] that the time
for appeal had run” when it in fact had not. The State stipulated
to Van Huizen’s motion, and the district court reinstated his time
to file an appeal. On that basis, Van Huizen now appeals the
juvenile court’s bindover order that initially transferred him into
district court. 4

ISSUES AND STANDARD OF REVIEW

¶11 Van Huizen argues that the juvenile judge who bound
him over was required to recuse herself under the Code of
Judicial Conduct. “Determining whether a trial judge committed
error by failing to recuse himself or herself under the Utah Code
of Judicial Conduct . . . is a question of law, and we review such
questions for correctness.” State v. Alonzo, 973 P.2d 975, 979
(Utah 1998). Van Huizen also argues that the judge’s “risk of
bias” in his case was so strong that it “violated due process”
under the United States Constitution. “Constitutional issues,
including questions regarding due process, are questions of law
that we review for correctness.” In re E.K.S., 2016 UT 56, ¶ 5
(citation and internal quotation marks omitted).

4. We note that, because Van Huizen’s time to appeal the
juvenile court’s bindover decision was reinstated after it lapsed,
he is taking this appeal on a more developed record than would
normally be available. Specifically, we have before us a district
court record that contains briefing, declarations, and other
materials that were not part of the juvenile court proceedings
and therefore would not have been available had this appeal
been taken immediately following the bindover decision. This
point is particularly salient as it applies to our resolution of this
case, which turns on record information that—because of its
introduction in district court after the bindover hearing—would
have been unavailable to us had Van Huizen’s appeal arrived in
this court under the usual timeline.

20140602-CA 5 2017 UT App 30
 State v. Van Huizen

¶12 Additionally, Van Huizen asserts that ineffective
assistance of counsel and the doctrine of plain error require that
we reverse the bindover order. Because we resolve this case on
the disqualification issue, we do not address Van Huizen’s other
arguments.

ANALYSIS

¶13 Van Huizen argues that the juvenile court judge (the
Juvenile Judge) who bound him over into adult court should
have disqualified herself from his case because she was married
to the Chief Criminal Deputy in charge of the criminal division
in the Weber County Attorney’s Office, the office that prosecuted
him. He argues first that the Code of Judicial Conduct required
the Juvenile Judge to recuse herself. Second, Van Huizen argues
that he was denied constitutional due process due to the acute
“risk of bias” inherent in the Juvenile Judge’s relationship with
the prosecuting office. The “general rule [is] that courts should
avoid reaching constitutional issues if the case can be decided on
other grounds.” West v. Thomson Newspapers, 872 P.2d 999, 1004
(Utah 1994). We therefore address the Code of Judicial Conduct
first, and because we resolve the appeal on that ground, we do
not reach the constitutional question.

I. The Utah Code of Judicial Conduct

¶14 The Code of Judicial Conduct states that “[a]n
independent, fair and impartial judiciary is indispensable to our
system of justice.” Utah Code Jud. Conduct, Preamble. As Justice
Felix Frankfurter observed, courts possess “neither the purse nor
the sword,” so their authority “ultimately rests on sustained
public confidence in [their] moral sanction.” Baker v. Carr, 369
U.S. 186, 267 (1962) (Frankfurter, J., dissenting). That core
principle is enshrined in our caselaw: “The purity and integrity
of the judicial process ought to be protected against any taint of
suspicion to the end that the public and litigants may have the

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 State v. Van Huizen

highest confidence in the integrity and fairness of the courts.”
Haslam v. Morrison, 190 P.2d 520, 523 (Utah 1948).

¶15 The Code lists the conditions under which a judge must
recuse or disqualify himself or herself. 5 Generally, “[a] judge
should act at all times in a manner that promotes—and shall not
undermine—public confidence in the independence, integrity,
and impartiality of the judiciary and shall avoid impropriety and
the appearance of impropriety.” Utah Code Jud. Conduct R. 1.2.
Specifically, “[a] judge shall disqualify himself or herself in any
proceeding in which the judge’s impartiality might reasonably
be questioned.” 6 Id. R. 2.11(A); accord Dahl v. Dahl, 2015 UT 79,
¶ 49 (“A judge should be disqualified when circumstances arise
in which the judge’s ‘impartiality might reasonably be
questioned.’” (quoting State v. Gardner, 789 P.2d 273, 278 (Utah
1989))).

¶16 Rule 2.11(A) contains an illustrative, but not exhaustive,
list of disqualifying circumstances. In some circumstances, the
judge’s duty to recuse is absolute. For instance, if “[t]he judge
has a personal bias or prejudice concerning a party or a party’s
lawyer,” he or she must disqualify. Utah Code Jud. Conduct R.
2.11(A)(1); see also id. R. 2.11(C) (establishing that the presence of
actual bias or prejudice cannot be waived). In other

5. The terms “recuse” and “disqualify” are generally
synonymous. See In re School Asbestos Litigation, 977 F.2d 764, 769
n.1 (3d Cir. 1992) (“Whether or not there was ever a distinction
between disqualification and recusal, the courts now commonly
use the two terms interchangeably.”).

6. The Code of Judicial Conduct defines “impartial” to mean the
“absence of bias or prejudice in favor of, or against, particular
parties or classes of parties, as well as presence of an objective
and open mind in considering matters that come before a judge.”
Utah Code Jud. Conduct, Terminology.

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 State v. Van Huizen

circumstances, the judge must recuse unless he or she “disclose[s]
on the record the basis of the judge’s disqualification” and “the
parties and lawyers agree . . . that the judge should not be
disqualified.” Id. R. 2.11(C). If the parties agree to such a waiver,
it “shall be incorporated into the record of the proceeding.” Id.

¶17 Circumstances requiring disqualification absent waiver
include:

The judge knows that the judge, the judge’s spouse
or domestic partner, or a person within the third
degree of relationship to either of them, or the
spouse or domestic partner of such a person is:
(a) a party to the proceeding, or an officer,
director, general partner, managing member, or
trustee of a party;
(b) acting as a lawyer in the proceeding;
(c) a person who has more than a de minimis
interest that could be substantially affected by
the proceeding . . . .

Id. R. 2.11(A)(2). Further, a judge “is disqualified whenever the
judge’s impartiality might reasonably be questioned, regardless
of whether any of the specific [listed disqualifying circumstances]
apply.” Id. R. 2.11 cmt. 1. And the judge bears ultimate
responsibility for ensuring that the integrity of the process is
protected: “A judge’s obligation not to hear or decide matters in
which disqualification is required applies regardless of whether
a motion to disqualify is filed.” Id. R. 2.11 cmt 2; accord Regional
Sales Agency, Inc. v. Reichert, 830 P.2d 252, 257 n.7 (Utah 1992)
(holding that it “was [the judge’s] responsibility to identify her
relationship . . . and take appropriate measures to recuse herself,”
not the responsibility of counsel).

¶18 Thus, when a judge knows of circumstances that give rise
to the reasonable appearance of bias, the judge is under an
affirmative duty either to recuse or to disclose the facts that
contribute to an appearance of partiality and allow the parties to

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decide whether to waive disqualification. Indeed, “[a] judge
should disclose on the record information that the judge believes
the parties or their lawyers might reasonably consider relevant
to a possible motion for disqualification, even if the judge
believes there is no basis for disqualification.” Utah Code Jud.
Conduct R. 2.11 cmt. 5. Hence, even if the judge believes that
recusal is not warranted under a given set of circumstances, it is
better to disclose facts that might reasonably raise a question
about impartiality and allow the parties to either waive the issue
or file a motion for disqualification that will then be resolved by
an independent judicial officer. See Utah R. Crim. P. 29(c)(2)
(explaining that a motion to disqualify must either be granted or
referred to a different judicial officer for disposition).

¶19 “The Utah Supreme Court has found the provisions of the
Code of Judicial Conduct to have legal force.” American Rural
Cellular, Inc. v. Systems Commc’n Corp., 939 P.2d 185, 195 n.12
(Utah Ct. App. 1997); see also Cheek v. Clay Bulloch Constr. Inc.,
2016 UT App 227, ¶ 19, 387 P.3d 611 (collecting cases). For
instance, in Regional Sales Agency, Inc. v. Reichert, the supreme
court held that an appearance of impropriety under the Judicial
Code of Conduct “[was] sufficient to dispose of the case.” 830
P.2d at 257–58.

¶20 In Utah law, as under federal law, the question of a
judge’s impartiality is determined from the viewpoint of “‘a
reasonable person, knowing all the circumstances.’” West Jordan
City v. Goodman, 2006 UT 27, ¶ 22, 135 P.3d 874 (quoting 13A
Charles Alan Wright, Arthur R. Miller & Edward H. Cooper,
Federal Practice and Procedure § 3549 (2d ed. 1984 & supp. 2005)). 7

7. The federal analogue to the Code of Judicial Conduct is
codified at 28 U.S.C. § 455 (2012). Although the Utah rules and
the federal statute do not use identical language, “[s]ection
455(a),” like the Utah code, “is based upon the [ABA Model]
Code of Judicial Conduct, which clearly imposes a ‘reasonable
(continued…)

20140602-CA 9 2017 UT App 30
 State v. Van Huizen

As the United States Court of Appeals for the Tenth Circuit
explained, “The reasonable observer is not the judge or even
someone familiar with the judicial system, but rather an average
member of the public.” Mathis v. Huff & Puff Trucking, Inc., 787
F.3d 1297, 1310 (10th Cir. 2015). “In conducting this [reasonable
person] review, we must ask how these facts would appear to a
well-informed, thoughtful and objective observer, rather than [a]
hypersensitive, cynical, and suspicious person.” Id. (citation and
internal quotation marks omitted).

¶21 We now turn to the question in this case—whether there
was a reasonable question as to the impartiality of the Juvenile
Judge under the circumstances. If so, we must then determine
whether the appearance of partiality requires vacatur of the
bindover order and reconsideration by another judge.

A. Appearance of Partiality

¶22 We note at the outset that our thorough review of the
record gives us no reason to think the Juvenile Judge was
actually biased against Van Huizen. However, as we discussed
above, the Code of Judicial Conduct requires a judge’s
disqualification under many circumstances that fall short of
actual bias, such as situations where a reasonable person would
question the judge’s impartiality. In this case, it is uncontested
that the Juvenile Judge that bound Van Huizen over for
prosecution in district court was married to the Chief Criminal
Deputy in the Weber County Attorney’s Office. It is also
uncontested that the Juvenile Judge did not disclose that
information to the parties on the record.

(…continued)
person’ test for recusal.” 13D Charles Alan Wright, Arthur R.
Miller & Edward H. Cooper, Federal Practice and Procedure § 3549
(3d ed. supp. 2016). Thus, we consider federal cases addressing
the “reasonable person” standard helpful to our analysis.

20140602-CA 10 2017 UT App 30
 State v. Van Huizen

¶23 Van Huizen argues that the spousal relationship required
the Juvenile Judge to disqualify herself under rule 2.11. The rule
requires recusal where, among other things, the judge’s spouse
is “a party to the proceeding, or an officer, director, general
partner, managing member, or trustee of a party.” Utah Code
Jud. Conduct R. 2.11(A)(2)(a). Van Huizen asserts that the Chief
Criminal Deputy was “properly considered an officer, director
or managing member of a party”—in this case, the State. Van
Huizen does not, however, explain that argument in detail. He
apparently relies instead on the plain language, arguing that the
Chief Criminal Deputy obviously was among the class of people
denoted in rule 2.11 for which a spousal relationship with the
judge created the appearance of partiality.

¶24 The State argues in response that the Chief Criminal
Deputy was not covered under the plain language of the rule
because he was not “an ‘officer, director, general partner,
managing member, or trustee’ of the State of Utah in the sense
that those terms are used in rule 2.11.” The State does not
explain precisely in what sense the rule uses those terms, but the
point seems to be based on the distinction between government
entities and corporate entities. That is, terms such as “general
partner,” “managing member,” and “trustee” suggest positions
within a private entity or corporate structure, not within a
government body. Accordingly, the State’s position appears to
be the inverse of Van Huizen’s—that the Chief Criminal
Deputy’s position is categorically outside the scope of rule
2.11(A)(2)(a).

¶25 We are not persuaded that the plain language of rule
2.11(A)(2)(a) answers the question presented. Taking just one
term as an example, “officer” applies to both governments and
private entities. For instance, “officer” is defined broadly as
“anyone elected or appointed to an office or position of authority
in a government, business, institution, society, etc.” Officer,
Webster’s New World College Dictionary 1015 (5th ed. 2016).
Similarly, Black’s defines “officer” as “[s]omeone who holds an

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office of trust, authority, or command.” Officer, Black’s Law
Dictionary 1257 (10th ed. 2014) (explaining that, in public affairs,
an officer is someone who holds a public government office and
is “authorized by that government to exercise some specific
function”). These definitions make clear the concept of an
“officer” is broader than the State acknowledges and could
apply to a position like the Chief Criminal Deputy’s.

¶26 But on the other hand, the plain language of rule
2.11(A)(2)(a) does not clearly apply to the Chief Criminal Deputy
either. While the Chief Criminal Deputy is undoubtedly
authorized by the government to “exercise a specific function,” it
is unclear whether he was “elected or appointed” to his position
of authority as understood by the term’s definition. For instance,
it is likely that the Weber County Attorney—the Chief Criminal
Deputy’s boss—would be properly considered an officer under
the plain meaning of the term. Utah Code Ann. § 17-53-101(1)
(LexisNexis 2013) (enumerating the county attorney as one of the
“elected officers of a county”). However, it does not
automatically follow that the Weber County Attorney’s Chief
Criminal Deputy is likewise an officer of the State for purposes
of the rule.

¶27 We are not persuaded that rule 2.11(A)(2)(a)’s language
either plainly applies or plainly does not apply to the Chief
Criminal Deputy. Rather, rules 2.11(A)(2)(b) and (c), which
trigger recusal when a judge’s spouse is “acting as a lawyer in
the proceeding” or “has more than a de minimis interest that
could be substantially affected by the proceeding,” seem more
applicable. Relevant cases have often employed these concepts
in addressing similar conditions, and we accordingly now
consider how disqualification rules have been addressed in like
circumstances. In doing so, we keep in mind a consideration we
discussed earlier—that the disqualification rule is meant to be
applied broadly “whenever the judge’s impartiality might
reasonably be questioned, regardless of whether any of the

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specific [listed disqualifying circumstances] apply.” Utah Code
Jud. Conduct R. 2.11 cmt. 1.

1. Applicable Caselaw

¶28 We are aware of no published Utah decisions that analyze
a relationship like the one at issue here, where the judge is
closely related to an attorney who is not directly involved in the
proceedings before the judge, but is nonetheless a supervisor in
the public law office of the attorney handling the case in court. In
the absence of Utah precedent, Van Huizen directs our attention
to a Colorado case, Smith v. Beckman, 683 P.2d 1214 (Colo. App.
1984). In Beckman, a county court judge was married to a deputy
district attorney who “handle[d] matters exclusively in the
district court,” a separate court from the judge’s own. Id. at 1215.
The criminal defendant in Beckman, originally scheduled for trial
in county court before the county judge, requested a writ from
the district court to prevent the county judge from presiding
over his trial. He argued that the judge’s spousal relationship to
a prosecutor justified disqualification. Id. Even though the
attorney spouse was not an active lawyer on the case, the district
court found that “the powers of a deputy district attorney are
akin to that of a partner in a private law firm,” and thus the
judge’s recusal was necessary. Id.

¶29 On appeal, the Colorado Court of Appeals rejected that
analysis and held that a deputy district attorney is not like a
partner at a law firm “because his compensation and clientele
are set, and the prestige of the office as a whole is not greatly
affected by the outcome of a particular case.” Id. at 1216.
However, the court nevertheless held “that the husband-wife
relationship” required recusal. Id. at 1215. The court reasoned
that,

Generally, the public views married people as “a
couple,” as “a partnership,” and as participants in
a relationship more intimate than any other kind of
relationship between individuals. In our view the

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existence of a marriage relationship between a
judge and a deputy district attorney in the same
county is sufficient to establish grounds for
disqualification, even though no other facts call
into question the judge’s impartiality.

Id. at 1216. The appellate court reached that conclusion even
though the county judge and the district attorney “[had] drafted
guidelines designed to further insulate [the attorney spouse]
from all contact with any county court cases.” Id. at 1215. Thus,
the Beckman court determined that the spousal relationship is so
close in nature that it outweighs other factors, including the
screening procedure implemented by the county attorney’s
office and the manifest distinctions between private and public
law firms.

¶30 The State counters with a more recent Minnesota Court of
Appeals case, In re Jacobs, 791 N.W.2d 300 (Minn. Ct. App. 2010).
In Jacobs, as in Beckman, Jacobs argued that “the assigned judge’s
impartiality can reasonably be questioned based on his spouse’s
employment with the [prosecuting] County Attorney’s Office.”
Id. at 301. And like Van Huizen in this case, Jacobs based his
claim on rule 2.11 of the Minnesota Code of Judicial Conduct,
which is functionally identical to our own rule 2.11. Compare
Utah Code of Jud. Conduct R. 2.11(A)(2), with Minnesota Code of
Jud. Conduct R. 2.11(A)(2).

¶31 The appellate court rejected Jacobs’ argument, concluding
that “Jacobs has not shown that the judge’s impartiality can
reasonably be questioned.” Id. at 302. “Assuming that a judge’s
spouse is not personally involved in a case, the personal interest,
if any, of the judge’s spouse in the prosecution of that case to
conviction would be de minimis” and would not call for
disqualification. Id. at 302. That reasoning was based, in part, on
the fact that the “[Hennepin] County Attorney’s Office is a large

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office that prosecutes a large volume of cases.” 8 Id. The court also
noted “that prosecutors are not merely advocates but also
‘ministers of justice’ charged with protecting the rights of the
accused as well as the rights of the public.” Id. (citation omitted).
Finally, as the State notes, the Jacobs court specifically analyzed
Beckman and determined that the “trend of the case law has been
against the holding in Beckman.” Id. Specifically, the court’s
analysis of other holdings led it to conclude the “closeness of the
marital relationship, relied on in Beckman, is counter-balanced by
the institutional aspects of employment in a public law firm such
as a county attorney’s office.” Id.

¶32 We agree with the Minnesota Court of Appeals that
Beckman is a relative outlier in the caselaw governing when a
judge must disqualify based on a spousal relationship with an
attorney in the relevant prosecuting office. For example, in State
v. Harrell the Wisconsin Supreme Court held that a judge’s
recusal from a case was not required simply because his wife
was an assistant district attorney in same county. 546 N.W.2d
115, 118 (Wis. 1996). Likewise, in Sensley v. Albritton the United
States Court of Appeals for the Fifth Circuit rejected an
argument that a judge should have recused himself because his
“spouse was an Assistant District Attorney in the office of [the]
District Attorney . . . , whose office also represented the
Defendants” in the case. 385 F.3d 591, 598 (5th Cir. 2004).

¶33 Although we agree that Beckman sets a relatively strict
standard for disqualification compared to other cases dealing
with similar facts, we note that none of the cases taking a more
lenient approach, nor Beckman itself, involved an attorney spouse
with supervisory authority within the government office in
question. Indeed, the arguments for disqualification rejected by
appellate courts have generally been based on the assertion that

8. Hennepin County includes within its boundaries the city of
Minneapolis.

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 State v. Van Huizen

government agencies are akin to private firms for purposes of
judicial disqualification; the arguments have not focused on the
particular responsibilities of the spouse—such as a managerial
role—that raise more specific concerns. 9 For these reasons, we
find the approach taken in Beckman to be of limited use in our
resolution of this case.

¶34 However, the State’s reliance on the facts and reasoning
of In re Jacobs is likewise misplaced because the prosecutor
spouse in Jacobs was not a supervisor within the county
prosecutor’s office like the Chief Criminal Deputy was in this
case. In addition, the Jacobs court relied on the size of the district
attorney’s office as an insulating factor that diminishes a judge
spouse’s appearance of partiality, a factor that holds far less
sway here. In Jacobs, the court noted that the Hennepin County
Attorney’s Office was “a large office that prosecutes a large
volume of cases,” 791 N.W.2d at 302, whereas here we are

9. We find no reason to disagree with the majority of decisions
that have determined that, due to the differences in both
institutional and economic incentives, a group of government
attorneys is not necessarily similar to a group of private
attorneys for the purposes of the judicial disqualification of a
spouse. See Smith v. Beckman, 683 P.2d 1214, 1216 (Colo. App.
1984) (holding that, unlike a public attorney, “[a] partner in a
law firm is said to be ‘engaged’ in every case in which a member
of his firm represents a party, primarily because he has a
financial interest in the outcome of the case”); In re Jacobs, 791
N.W.2d 300, 302 (Minn. Ct. App. 2010) (noting the institutional
difference between prosecutorial offices and private firms);
accord Regional Sales Agency, Inc. v. Reichert, 830 P.2d 252, 258 n.8
(Utah 1992) (citing favorably Beckman, 683 P.2d at 1216, for the
proposition that public attorneys typically do not benefit from a
judge’s decision in the way that some private attorneys do).

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 State v. Van Huizen

addressing the substantially smaller Weber County Attorney’s
Office. 10

¶35 Thus, while we are not inclined to follow the Colorado
decision in Smith v. Beckman, as Van Huizen urges, we are not
persuaded by the State that the Minnesota Court of Appeals
approach from In re Jacobs is fully applicable here, either.

2. The Pertinent Facts

¶36 Having discovered no precedent to guide our resolution
of these particular circumstances—where a judge is married to
an attorney with a supervisory role within the office prosecuting
the case—we consider the specific circumstances at issue here.

¶37 It is uncontested that the Juvenile Judge did not disclose
her relationship to the Chief Criminal Deputy in the Weber
County Attorney’s Office during the juvenile phase of the case
and Van Huizen learned of the relationship only after he was
bound over as an adult. 11 As a consequence, no knowing and

10. “As the largest public law office in Minnesota, with more
than 400 employees, [the Hennepin County Attorney’s Office]
handle[s] tens of thousands of adult felony, juvenile and civil
cases each year.” 2015 Highlights, Hennepin County Attorney,
http://www.hennepinattorney.org/highlights2015 [https://perma.
cc/NV6H-6EEE]. See also QuickFacts, Hennepin County,
Minnesota, United States Census Bureau, http://www.census.
gov/quickfacts/table/PST045215/27053,49057 [https://perma.cc/
8VVM-E3CK] (comparing the July 1, 2015 populations of
Hennepin County (1,223,149) and Weber County (243,645)).

11. We acknowledge that the Juvenile Judge may have assumed
that the litigants, or more probably their lawyers, were generally
aware that her husband was the Chief Criminal Deputy and that
the lawyers would raise a concern if one were warranted. We
(continued…)

20140602-CA 17 2017 UT App 30
 State v. Van Huizen

voluntary waiver of any perceived partiality could have
occurred here, nor did Van Huizen have the facts necessary to
move to disqualify the Juvenile Judge. 12 Further, the record
shows that the Chief Criminal Deputy had at least some
involvement in Van Huizen’s case once he was bound over to
the district court. For instance, the Chief Criminal Deputy
himself responded on behalf of the Weber County Attorney to
communications from Van Huizen’s current counsel when
counsel substituted into the case. In addition, the district court’s
docket shows that the Chief Criminal Deputy requested digital
copies of several proceedings, on behalf of either himself or a
colleague, on the same day that his spouse signed the bindover
order.

¶38 The record does not reveal the specific nature of the
relationship between the Chief Criminal Deputy and the deputy
county attorney who actually handled Van Huizen’s case. The
only information contained in the record on that point comes

(…continued)
agree with the Vermont Supreme Court, however, that “[i]t is
not appropriate to make such an assumption.” Velardo v. Ovitt,
2007 VT 69, ¶ 29 n.3, 933 A.2d 227 (addressing a situation where
“the assistant judge [may have] thought that the litigants or their
lawyers were generally aware of the sibling relationship”
between the judge and a guardian ad litem). This is particularly
the case given that it is the party’s decision, in consultation with
counsel, whether to waive a potential conflict, not the attorney’s.
See Utah Code Jud. Conduct R. 2.11(C) (allowing waiver only if
the “parties and lawyers agree” to waive, and incorporate the
agreement into the record).

12. In a sworn declaration, Van Huizen stated that, “If I had
known” that the Juvenile Judge “[was] married to the Chief
Deputy of the Criminal Division,” “I would have requested a
different judge who had no ties to the office prosecuting me.”

20140602-CA 18 2017 UT App 30
 State v. Van Huizen

from a brief filed in district court after the bindover in question.
In that filing, the State represented that the Chief Criminal
Deputy “does not supervise the attorneys in juvenile court; he
does not screen cases in juvenile court and is not involved in
juvenile court matters, those responsibilities are under the
purview of other attorneys.”

¶39 We accept that characterization of the Chief Criminal
Deputy’s role in the juvenile court proceeding. And while we
accept the State’s general characterization of the workflow in the
Weber County Attorney’s Office, we also note that on appeal the
State does not contest Van Huizen’s basic premise, namely that
his juvenile bindover hearing was criminal in nature. See Utah
Code Ann. § 78A-6-702(1) (providing that actions against minors
accused of crimes like the one at issue here “shall be [filed] by
criminal information”). That premise suggests that the attorney
handling the matter in juvenile court interacted with the Chief
Criminal Deputy’s at some level, even if the chain of command
had an additional supervisory layer while the case was in
juvenile court.

¶40 The record before us seems to confirm that inference. For
example, a single county prosecutor represented the State
throughout this case, first in the juvenile court and then in the
district court after bindover. Particularly given that the Chief
Criminal Deputy had at least some involvement with the case
once it reached district court and there is no evidence in the
record of a screening procedure, it seems unlikely that the Chief
Criminal Deputy was completely walled off from the juvenile
court proceedings in Van Huizen’s case. Similarly, we cannot
conclude that there was a separation of any substance between
the juvenile and the adult proceedings—Van Huizen’s entire
case appears to have occurred within the same organizational
line at the county attorney’s office. Indeed, the case attorney and
the Chief Criminal Deputy apparently worked together on the
case once it arrived in district court. Therefore, because he was
head of the criminal division of the Weber County Attorney’s

20140602-CA 19 2017 UT App 30
 State v. Van Huizen

Office and the same attorney represented the State throughout
Van Huizen’s prosecution in juvenile and district court, it is
reasonable to conclude that the Chief Criminal Deputy was in
the chain of command over the attorney handling the juvenile
side of the case, even if he did not supervise the juvenile portion
directly.

¶41 In any event, the overall goal of the county attorney’s
office was to move Van Huizen from juvenile court to district
court by means of the bindover proceeding—from a forum
where the Chief Criminal Deputy may have had some
attenuated role to one where it is clear the Chief Criminal
Deputy exercised supervisory authority. With this backdrop in
mind, we now consider the nature of various positions within
the county attorney command hierarchy as they relate to the
question before us.

3. Implications of the County Attorney’s Chain of Command

¶42 We begin our analysis at one end of the chain of
command, with the proposition that the Juvenile Judge would
have been obligated to recuse had the Chief Criminal Deputy
actually appeared in or worked on Van Huizen’s juvenile case
directly—that is, if he had been a counsel of record. Under rule
2.11(A)(2)(b), disqualification is required in any situation where
the judge’s spouse is “acting as a lawyer in the proceeding.”

¶43 Similarly, at the other end of the chain of command, there
is little question that the Juvenile Judge would have been
obligated to recuse if her spouse was the Weber County
Attorney himself—the Chief Criminal Deputy’s boss—for at
least three reasons. First, a county attorney appears to be within
the class of officers of a party explicitly covered by the Code of
Judicial Conduct. Compare Utah Code Ann. § 17-18a-301(1)
(LexisNexis 2013) (stating that “[t]he county attorney is an
elected officer”), with Utah Code Jud. Conduct R. 2.11(A)(2)(a)
(requiring a judge to recuse when her spouse is “an officer . . . of
a party”).

20140602-CA 20 2017 UT App 30
 State v. Van Huizen

¶44 Second, a county attorney seems to be among the class of
persons who have “more than a de minimis interest that could
be substantially affected by the proceeding.” Utah Code Jud.
Conduct R. 2.11(A)(2)(c). 13 This is because, as the elected official
in charge of prosecutions for the county, the county attorney is
ultimately responsible for individual case outcomes. See Utah
Code Ann. § 17-53-106(1)(b) (LexisNexis 2013) (making “the
management of deputies and other employees” one of the
professional duties of a county attorney). Further, we note that a
county attorney’s office is tied directly to the ballot box, and
although individual votes may be subject to a wide variety of
influences, a candidate’s perceived performance in office is
certainly among the factors that are likely to inform electoral
choice. And while we recognize that voters do not often choose
to either support or disavow a given candidate based on the
outcome of individual cases such as this, case outcomes as a
whole certainly can affect voter choice. Thus, although not at the
same level as a member of a private law firm with a direct
economic interest in case outcomes, the county attorney’s interest
in the results of his staff’s work is not simply de minimis.

¶45 Third, the county attorney typically makes an appearance
in every case brought by his or her office. Compare Utah Code
Ann. § 17-18a-202(1)(a) (LexisNexis 2013) (making the county
attorney a “public prosecutor for the county”), with id. § 17-18a-
401(1) (mandating that a public prosecutor “shall . . . conduct, on
behalf of the state, all prosecutions for a public offense
committed within a county”). The county attorney is therefore
typically counsel of record in every criminal case because it is on
his behalf that his attorney-staff charges defendants and
prosecutes cases. See New York Adv. Comm. on Jud. Ethics Op.

13. “‘De minimis,’ in the context of interests pertaining to
disqualification of a judge, means an insignificant interest that
could not raise a reasonable question regarding the judge’s
impartiality.” Utah Code Jud. Conduct, Terminology.

20140602-CA 21 2017 UT App 30
 State v. Van Huizen

07-216 (Dec. 4, 2008), http://www.nycourts.gov/ip/judicialethics/
opinions/07-216.htm [http://perma.cc/WFS5-GSFM] (determining
that a judge whose sibling was the district attorney “must
disqualify him/herself” because “the District Attorney . . . is
involved either directly or indirectly in all criminal cases
prosecuted in the county where the judge presides”). As a
consequence, the Juvenile Judge would have been obligated to
recuse had she been married to the county attorney for the same
reason that she would have been required to recuse if she were
married to the case attorney—they are both “acting as a lawyer
in the proceeding.” Utah Code Jud. Conduct R. 2.11(A)(2)(b).

¶46 Thus, the Juvenile Judge would have been obligated to
recuse herself if her husband had been on either end of the chain
of command—trial counsel or county attorney. But in this case,
the Chief Criminal Deputy was somewhere in the space
between, where the determination is less clear. Here, we turn
again to the basic purpose of the Code of Judicial Conduct,
which is meant to be read broadly to protect “[t]he purity and
integrity of the judicial process . . . against any taint of suspicion
to the end that the public and litigants may have the highest
confidence in the integrity and fairness of the courts.” Haslam v.
Morrison, 190 P.2d 520, 523 (Utah 1948). The Chief Criminal
Deputy, by the nature of his position, is responsible to the
County Attorney for the performance of the attorneys below him
in the supervisory line. And given that the Juvenile Judge would
have been required to recuse if she had been married to either
the Chief Criminal Deputy’s subordinate or the Chief Criminal
Deputy’s superior, we believe that, in a public law office, the
command hierarchy itself is material to the appearance of
partiality. Thus, because we have determined that the Chief
Criminal Deputy was within the chain of command for this case,
we conclude that his marriage to the Juvenile Judge created an
appearance of partiality.

20140602-CA 22 2017 UT App 30
 State v. Van Huizen

¶47 While we are aware of no reported cases that are directly
on point, several state ethics opinions have relied on a similar
analysis.

There can be no debate over the inappropriateness
of a judge hearing cases involving the office of a
District Attorney when the elected District Attorney
is a close relative of the judge . . . . Likewise, a
disinterested person would reasonably conclude
that the professional relationship between a District
Attorney and his or her Chief Assistant is such that
the same standard applies when the judge is a close
relative of the District Attorney’s Chief Assistant or
another District Attorney with a supervisory role.

Georgia Jud. Ethics Op. No. 238, 2013 WL 9638986, at *3 (May 1,
2013); see also, e.g., New York Jud. Adv. Op. 10-05, 2010 WL
8149118, at *1 (Mar. 2, 2010) (explaining that “the Committee
previously has advised that a judge must disqualify him/herself
when the judge’s spouse holds a supervisory position in a public
law office”). Indeed, there is support for the proposition that a
chief criminal deputy may present a greater concern than the
county attorney himself, because the chief criminal deputy is
more directly responsible for prosecutorial functions. The New
York Advisory Committee on Judicial Ethics explained that,

in this instance, the [judge’s] spouse is in a position
just below the attorney‐in‐chief, to whom he/she
reports, and it is the spouse who bears the
responsibility of overseeing all criminal practice
operations including the very operations involved
herein: State criminal trial proceedings. Thus the
judge’s spouse is more closely connected to the
matters before the judge than the attorney‐in‐chief.

New York Adv. Comm. on Jud. Ethics Op. 05-87 (Dec. 8, 2005),
http://www.nycourts.gov/ip/judicialethics/opinions/05-87.htm
[http://perma.cc/PL27-TSZ2].

20140602-CA 23 2017 UT App 30
 State v. Van Huizen

¶48 For these reasons, we conclude that, because he was in the
direct chain of command between County Attorney and the
attorney prosecuting this case, the Chief Criminal Deputy falls
within the class of persons who can create an appearance of
partiality that requires a judge spouse to, at a minimum, obtain
informed consent from the parties to preside as provided by rule
2.11(C). In keeping with the majority of jurisdictions, our
holding does not extend to a judge’s relationship with attorneys
who merely work in the same public office as the attorney
appearing before the judge. 14 Likewise, our holding does not
exclude the possibility that thoughtful screening procedures in a
public office could sufficiently protect a judge married to a

14. Our conclusion that there was an appearance of partiality
here might be different if, for instance, the Juvenile Judge’s
spouse was the supervisor of the civil division of the Weber
County Attorney’s Office rather than the criminal division. In
that situation, where the prosecuting attorney was part of a
different command hierarchy than the attorney spouse, the
separation between the divisions would likely be a significant
distinction from the circumstances here with regard to questions
concerning a judge’s disqualification. Cf. Utah Jud. Ethics
Informal Op. No. 94-6, 1995 WL 17935846, at *2 (advising that a
judge’s marriage to an assistant attorney general did not
automatically require recusal from cases involving a different
assistant attorney general “due to the . . . the divisional
organization” of the office, among other reasons like the office’s
size and geographic dispersion). But see Utah Jud. Ethics
Informal Op. No. 88-3, 1988 WL 1582480, at *3 (advising that a
judge’s marriage to a public defender working at the Legal
Defender Association required recusal “in all cases where LDA
is the attorney of record,” regardless of whether the judge’s
spouse worked on the individual case, in part because of the
relatively small size of the office which “functions like a private
law office in that case information and strategies are shared
among attorneys”).

20140602-CA 24 2017 UT App 30
 State v. Van Huizen

prosecutor from the appearance of partiality, but there is no
indication that any were in place here. In any event, as we have
discussed, it is important to err on the side of disclosure when
considering relationships that could give rise to the reasonable
appearance of partiality, and no such disclosure occurred on the
record in this case.

B. Prejudice Requirement

¶49 We have concluded that the Juvenile Judge’s marriage to
the Chief Criminal Deputy created an appearance of partiality.
But under the unusual circumstances of this case, which reaches
us late in the proceedings after a successful Manning motion,
Van Huizen has already been bound over for trial in the district
court by the Juvenile Judge and convicted as an adult. We
therefore must determine if any remedy is available to Van
Huizen based on the Juvenile Judge’s appearance of partiality.

¶50 Van Huizen argues that “the appearance of impropriety”
in his case “requires reversal of the bindover order.” The State
counters that, even if the Juvenile Judge should have recused
based on her marital relationship with the prosecutor’s office,
Van Huizen “has not shown prejudice, as he must.” 15 The key

15. The State asserts that we must conduct a plain error review
on this issue. However, plain error is an exception to the
preservation rule, which generally requires that claims be raised
in the lower court before being raised on appeal. See State v.
Holgate, 2000 UT 74, ¶ 11, 10 P.3d 346 (recognizing “plain error”
as an exception to the preservation rule). It is true that the
Juvenile Judge’s appearance of partiality was not raised in the
juvenile court. However, it is also true that the preservation rule
assumes that the appealing party had the opportunity to object
in the first instance. Here, the record indicates that Van Huizen
did not have such an opportunity because he did not have
knowledge of the relevant facts at the time of the bindover
(continued…)

20140602-CA 25 2017 UT App 30
 State v. Van Huizen

difference between the two positions—and thus the key to
whether Van Huizen is entitled to relief—turns on the question
of whether a showing of prejudice is necessary for the remedy
sought in this case.

¶51 Utah law is unsettled on the question of whether an
appellant must show prejudice when a judge’s relationship
constituted an appearance of partiality, with two apparently
diverging approaches. One line of cases imposes a prejudice
requirement on appeal. For instance, our supreme court has held
that “[f]ailure to observe [the recusal standard in the Code of
Judicial Conduct] may subject the judge to disciplinary
measures. However, that does not necessarily mean that the
defendant is entitled to a new trial.” State v. Neeley, 748 P.2d
1091, 1094 (Utah 1988). Building on that decision, the court
concluded in State v. Gardner that a judge’s failure to recuse, even

(…continued)
decision. Thus, we conclude that plain error is not the proper
framework for our review. See In re D.B., 2012 UT 65, ¶ 34, 289
P.3d 459 (noting parenthetically that the preservation rule “does
not apply where the question did not exist or could not be raised
below” (citation and internal quotation marks omitted)).
Furthermore, the State’s argument implies that a defendant has a
duty to investigate and preserve appearance of partiality issues
in the first instance. Certainly, a defendant must timely raise any
questions of this sort that he is aware of from whatever source.
See Utah R. Crim. P. 29(c)(1)(B)(iii) (requiring a disqualification
motion to be filed not later than twenty-one days after “the date
on which the moving party learns or with the exercise of
reasonable diligence should have learned of the grounds upon
which the motion is based”). But, as we have discussed, it is the
judge’s duty to disclose facts relevant to disqualification in the
first instance. In any event, the State’s larger point—that some
Utah law supports the proposition that Van Huizen must show
prejudice—is nonetheless accurate, and we address that below.

20140602-CA 26 2017 UT App 30
 State v. Van Huizen

in circumstances where he should have done so, was subject to
harmless error analysis. 789 P.2d 273, 278 (Utah 1989). Later, in
State v. Alonzo, the supreme court reiterated that a judge’s
“failure to recuse himself or herself does not automatically
entitle a defendant to a new trial.” 973 P.2d 975, 979 (Utah 1998).
Relying on Gardner for the proposition that “the appearance of
bias may be grounds for reversal if actual prejudice is shown,”
the Alonzo court concluded that “[a]ctual prejudice can be shown
when there exists a reasonable likelihood that the result would
have been more favorable for the defendants absent the trial
judge’s appearance of bias.” Id. (citing Gardner, 789 P.2d at 278).

¶52 Another case, however, indicates that a prejudice showing
is not always required. In Regional Sales Agency, Inc. v. Reichert,
the supreme court addressed an appearance of impropriety
involving a member of this court. 830 P.2d 252 (Utah 1992). On
certiorari, the Reichert court addressed a situation where one of
the judges on a panel deciding the case was related through
marriage to two partners at the firm that argued it. Id. at 254. As
with the proceedings at the juvenile level in this case, the Reichert
record contained no suggestion that the related attorneys
“participated in [the] case at any time.” Id. at 255. Also like this
case, the petitioner did not “contend[] that [the judge’s] failure to
disqualify herself was intentional or malicious.” Id. at 255.
Instead, the petitioner simply argued that the “[judge’s]
participation create[d] an appearance of impropriety.” Id. The
supreme court agreed and, without conducting a prejudice
analysis, “vacate[d] the court of appeals’ decision and
remand[ed] to the court of appeals for rehearing of the
substantive issues.” Id.

¶53 We believe that the apparent conflict between these
precedents can be reconciled because there are several obvious
differences between this case and the cases that required a
showing of prejudice. First, the procedural posture is different.
Unlike this case, the cases that required showing prejudice
involved situations where the facts constituting the judge’s

20140602-CA 27 2017 UT App 30
 State v. Van Huizen

alleged appearance of bias where known and brought to the
lower court’s attention. E.g., Gardner, 789 P.2d at 278
(“Defendant filed an affidavit of bias and prejudice against the
trial judge because he worked in the [court building where the
crime took place].”); Neeley, 748 P.2d at 1093 (“Defendants filed a
pretrial motion to disqualify [the judge] from presiding at their
trial.”); State v. Alonzo, 932 P.2d 606, 610 (Utah Ct. App. 1997)
(“After these alleged comments were made, defense counsel
filed a motion for the trial judge to recuse himself and submitted
affidavits detailing their versions of the trial judge’s
comments.”), aff’d, 973 P.2d 975 (Utah 1998). Thus, in instances
where the supreme court has required a showing of prejudice to
grant a new trial, the complaining party had already tried—but
failed—to disqualify the trial judge using appropriate
procedural mechanisms, such as Utah Rule of Criminal
Procedure 29. 16

¶54 The supreme court acknowledged the importance of that
point in Neeley when it stated, “absent a showing of actual bias
or an abuse of discretion, failure to [disqualify] does not
constitute reversible error as long as the requirements of [rule

16. Utah Rule of Criminal Procedure 29(c) outlines the process
by which a party may move to disqualify a judge based on “bias
or prejudice, or conflict of interest.” The judge against whom the
motion is directed must either grant the motion or certify it to a
reviewing judge for decision. Utah R. Crim. P. 29(c)(2). “If the
reviewing judge finds that the motion and affidavit are timely
filed, filed in good faith and legally sufficient, the reviewing
judge shall assign another judge to the action . . . .” Id.
R. 29(c)(3)(A). Rule 29 applies in juvenile court. Utah R. Juv. P.
57(e) (incorporating a party’s rights under rule 29 of the Rules of
Criminal Procedure into the rules of juvenile procedure).

20140602-CA 28 2017 UT App 30
 State v. Van Huizen

29] are met.” 748 P.2d at 1094–95. 17 See also State v. Ontiveros, 835
P.2d 201, 204 (Utah Ct. App. 1992) (“Because the trial judge
precisely followed the provisions of Rule 29, [the appellant]
must show actual bias or an abuse of discretion in order to
prevail on this point.”). And in Alonzo, the supreme court
explained that point further. “The trial judge in this case
complied exactly with rule 29. After he had been approved to
continue [with the case], the burden shifted to the petitioners to
show actual bias or abuse of discretion.” Alonzo, 973 P.2d at 979
(citing Neeley, 748 P.2d at 1094–95, and affirming this court’s
decision on that point).

¶55 Based on Alonzo and Neeley, it appears that a failed
attempt to disqualify a trial judge may be a prerequisite to
requiring a showing of prejudice on appeal. As we understand
it, this burden shifting rationale makes sense. In the first
instance, it is the judge’s duty to either recuse sua sponte or
disclose the facts that might give rise to an appearance of
partiality. Once the facts have been disclosed, the defendant may
either waive the appearance of partiality or move to disqualify
the judge under Utah Rule of Criminal Procedure 29, which
imposes a timeliness requirement on the movant. 18 Assuming

17. In Neeley, the procedural mechanism in play was codified at
Utah Code section 77-35-29. However, as this court noted in State
v. Ontiveros, 835 P.2d 201, 204 (Utah Ct. App. 1992), rule 29 of the
Utah Rules of Criminal Procedure is section 77-35-29’s current
analogue.

18. The rule requires the movant to file not later than twenty-one
days after “the date on which the moving party learns or with
the exercise of reasonable diligence should have learned of the
grounds upon which the motion is based.” Utah R. Crim. P.
29(c)(1)(B)(iii); see also Utah R. Civ. P. 63(b)(2) (imposing the
same timeliness requirement in civil actions). Optimally, the
(continued…)

20140602-CA 29 2017 UT App 30
 State v. Van Huizen

the defendant timely moves to disqualify the judge, the motion
is either granted or referred to a neutral judge to decide the
issue. See supra ¶ 53 note 16. Thus, rule 29 is the mechanism by
which defendants may invoke the relevant requirements of the
Code of Judicial Conduct. And hence, when reviewing a case in
which the defendant moved to disqualify the judge, appellate
courts assume that the issue was resolved properly through the
rule 29 process in the first instance. The defendant therefore
bears the extra burden on appeal of showing not just an
appearance of bias, but actual bias.

¶56 However, that process presumes that the judge disclosed
the facts necessary to support the rule 29 motion in the first place
or that the party learned those facts through some other means.
The case at bar, though, involves an appearance of partiality that
was raised for the first time on appeal because the judge did not
disclose the facts giving rise to the challenge. Van Huizen
therefore had no basis to invoke rule 29, 19 and the reasoning
underlying the imposition of a burden of prejudice on appeal
does not apply here.

¶57 The second difference between this case and those
requiring a showing of prejudice is found in the judge’s degree
of involvement in the ultimate disposition of the case. In State v.
Alonzo, the supreme court affirmed this court’s reasoning that a
judge’s appearance of partiality was more likely to be harmless

(…continued)
time would begin at the point of the judge’s disclosure to the
parties of any relevant relationship.

19. Van Huizen’s averment that he was not aware of the
relationship until well after the bindover is uncontradicted in the
record before us, and no one has suggested that his lack of
knowledge was the result of any failure to “exercise . . .
reasonable diligence.” See Utah R. Crim. P. 29(c)(1)(B)(iii).

20140602-CA 30 2017 UT App 30
 State v. Van Huizen

because the “[d]efendants’ guilt was determined by a jury and
the judge’s [biased] statements were . . . not made in the jury’s
presence.” 973 P.2d 975, 979–80 (Utah 1998) (original ellipses,
citation, and internal quotation marks omitted). Thus, both this
court and the supreme court seemed to consider the jury to be an
important intermediary in the decision making process which
shields a criminal defendant from the possible effects of a
judge’s partiality. Utah is not alone in taking that position. E.g.,
Commonwealth v. Mercado, 649 A.2d 946, 960 (Pa. Super. Ct. 1994)
(“Moreover, when a defendant is tried by a jury, which exercised
sole responsibility for evaluating the testimony and arriving at a
verdict, the integrity of the fact-finding process is insulated from
any predispositions held by the trial judge.”). But see Parenteau v.
Jacobson, 586 N.E.2d 15, 19 (Mass. App. Ct. 1992) (holding that “a
courtroom has no place for a judge whose impartiality in a
matter may be reasonably questioned, even if he is not the fact-
finder”).

¶58 In this case, Van Huizen never had the opportunity to
invoke the procedural mechanism that the Alonzo court
determined shifts the burden and requires the appellant “to
show actual bias or abuse of discretion” to prevail on appeal.
Alonzo, 973 P.2d at 979. Additionally, the Juvenile Judge acted
alone in Van Huizen’s bindover hearing, making both factual
and legal determinations in arriving at a decision that is both fact
sensitive and highly discretionary; there was no jury to insulate
the bindover decision from the appearance of partiality. See id. at
979–80.

¶59 For these reasons, we conclude that this case is dissimilar
to the Alonzo line of cases that require a prejudice showing. This
case is similar, however, to Regional Sales Agency, Inc. v. Reichert,
which did not impose a prejudice requirement. In this case, as in
Reichert, the facts constituting the appearance of partiality were
not disclosed by the judge below and there was no jury to
insulate the process from the potential effects emanating from
the appearance of partiality. 830 P.2d 252, 257–58 (Utah 1992).

20140602-CA 31 2017 UT App 30
 State v. Van Huizen

Thus, we conclude that Van Huizen is entitled to relief without
showing prejudice on the basis that the Juvenile Judge’s
marriage to the Chief Criminal Deputy created an appearance of
partiality that went undisclosed and thus unaddressed below.

¶60 Other courts have reached a similar conclusion. For
example, the New Hampshire Supreme Court “decline[d] to
implement a harmless error test when evaluating violations of
the code [of judicial ethics] by the members of the New
Hampshire bench” because “it would be inconsistent with the
goals of our code to require certain standards of behavior from
the judiciary in the interest of avoiding the appearance of
partiality, but then to allow a judge’s ruling to stand when those
standards have been violated.” Blaisdell v. City of Rochester, 609
A.2d 388, 391 (N.H. 1992); see also Scott v. United States, 559 A.2d
745, 751 (D.C. 1989) (en banc) (“Furthermore, a defendant is not
required to show prejudice from a violation of the standard set
by [the code of conduct] as would affect the outcome of the trial
in order to be entitled to the extraordinary writ of mandamus.”);
State v. Smith, 635 So. 2d 512, 514 (La. Ct. App. 1994) (“Although
in the instant case there was no motion to recuse [the judge], we
believe that the interests of justice and the avoidance of
impropriety require a reversal of sentence and a remand for
resentencing.”).

¶61 And in Velardo v. Ovitt, the Vermont Supreme Court
addressed circumstances similar to those here. 2007 VT 69, 933
A.2d 227. In Velardo, a party claimed that the trial judge should
have recused due to an appearance of partiality that was not
identified until after trial in a child custody dispute. Id. ¶ 1. After
determining that the complicated circumstances created the
appearance of partiality, the court turned to the question of
remedy and determined that a split of authority exists on
whether vacatur is warranted absent a showing of prejudice. Id.
¶¶ 12, 23–28. The court stated:

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We reject the North Dakota Supreme Court’s
holding that orders of a judge who creates an
appearance of impropriety cannot be set aside
unless there is a showing of actual bias or
prejudice. On this point, we agree with the New
Hampshire Supreme Court that such a rule would
be inconsistent with the goals of our code to
require certain standards of behavior from the
judiciary in the interest of avoiding the appearance
of partiality, but then to allow a judge’s ruling to
stand when those standards have been violated.
On the other hand, we believe that [the New
Hampshire Supreme Court’s] holding that a
judge’s failure to disqualify can never be harmless
goes too far.

Id. ¶ 28 (citations and internal quotation marks omitted). The
Velardo court therefore took a middle ground and imported a
federal balancing test to determine on a case by case basis
whether vacatur is a proper remedy. While we do not adopt the
Vermont balancing test, that approach confirms and reinforces
the analytical approach that we have identified in our own
precedent.

¶62 For instance, as in our case, the Velardo court noted that
the judge “had actual knowledge of the source of the conflict”
and “an independent duty to disclose the relationship that
created the conflict.” Id. ¶ 29. The court also noted that the
decision below was a “very difficult . . . case,” id. ¶ 31 (internal
quotation marks omitted), a factor similar to the situation here,
where the Juvenile Judge’s decision was apparently a close call—
she found by the high standard of clear and convincing evidence
that one of the two statutory factors favored Van Huizen’s
retention in juvenile court. Thus, we agree with the Velardo court
that, because “the result was not easily reached,” “[t]he
appearance of influence, therefore, [was] significant.” See id.
Finally, the court pointed out that, “because we afford such wide

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 State v. Van Huizen

discretion to the family court, we cannot determine with any
precision the influence of partiality, if any.” Id. Without
question, juvenile courts in Utah are similarly afforded “broad
discretion regarding judgments, based on the juvenile court’s
specialized experience and training,” In re J.R., 2011 UT App 180,
¶ 2, 257 P.3d 1043 (per curiam), which serves to both obscure the
effects of partiality and potentially amplify the consequences.
For these reasons, the Vermont Supreme Court’s analysis
supports our own conclusion that a showing of prejudice or
actual bias on appeal is not required in this case.

C. Remedy

¶63 We conclude that Van Huizen is entitled to a new
bindover hearing because the Juvenile Judge’s spousal
relationship with the Chief Criminal Deputy created an
appearance of partiality in the original bindover proceeding.
Because the Juvenile Judge did not disclose her relationship, Van
Huizen did not have the opportunity to move for
disqualification under Rule of Criminal Procedure 29, which
allows a party to challenge the impartiality of a judge in a
juvenile case. See supra ¶ 53 note 16. Thus, Van Huizen never
invoked the procedural mechanism that in other cases has been a
factor in requiring a showing of prejudice to succeed on a claim
of appearance of judicial partiality on appeal. See State v. Alonzo,
973 P.2d 975, 979 (Utah 1998) (indicating that a failed attempt to
disqualify a judge is a prerequisite for requiring a party “to show
actual bias or abuse of discretion” on appeal). Further, the
bindover decision here was solely within the realm of the
Juvenile Judge’s discretion, with no independent decision maker
such as a jury to attenuate the potential effects of any partiality.
See id. at 979–80 (indicating that a jury helps insulate a judge
from the effects of an appearance of partiality).

¶64 We therefore conclude that Van Huizen is not required to
show prejudice to prevail on appeal under these circumstances.
In a situation like this, where the relevant information was

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 State v. Van Huizen

neither disclosed by the judge nor known to Van Huizen at the
time of his bindover hearing, the appearance of partiality is
enough to require a new hearing. See Regional Sales Agency, Inc. v.
Reichert, 830 P.2d 252, 254, 257–58 (Utah 1992) (remanding for
new proceedings without conducting a prejudice analysis in
circumstances where the facts giving rise to an appearance of
partiality were not previously known).

CONCLUSION

¶65 Based on the analysis set forth above, we vacate the
juvenile court’s bindover order and remand the issue for a new
hearing before a different judge. If Van Huizen is bound over to
district court, the results of his district court proceeding will
remain undisturbed. If Van Huizen is not bound over, his
convictions in the district court shall be vacated.

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