The majority holds that the trial court did not adequately provide a legal basis for disqualification *Page 688 of the district attorney's office and remands with instructions to determine whether disqualification was proper pursuant to section 20-1-107, C.R.S. (2005). As I articulated in my dissent in People v. N.R., 05SA273, I disagree with the majority's holding that a trial court may only disqualify a district attorney if one of the three circumstances in the disqualification statute exists. Because the trial court found "conflict" that would undermine the integrity of the court and the judicial process under circumstances where it was unclear whether E.L.T. would be deprived of a fair trial, I would hold that it acted within its constitutional authority when it disqualified the district attorney's office. I therefore respectfully dissent.
I agree with the majority that the trial court's original findings of conflict are ambiguous. The trial court found that the district attorney "is being sued and four other members of [his] staff are being sued personally including the supervisor of the Juvenile Department." When the district attorney argued that no suit existed at that time, the court added "there is a conflict; it doesn't require that a suit be made."
After disqualifying the district attorney's office, the trial court later explained its disqualification ruling. The court stated that it disqualified the district attorney's office based on two separate conflicts of interest. First, conflict existed because E.L.T.'s mother had filed a notice of intent to sue the district attorney and three attorneys in the office. Second, conflict existed because three attorneys in the district attorney's office had represented E.L.T.'s family in private practice and E.L.T.'s mother filed grievances with the Office of Attorney Regulation Counsel against these three attorneys:
in addition to [the notice of intent to sue], and largely the reason why I granted the motion for a special prosecutor is because of the conflict between [the defendant's mother] and [the three attorneys]. What [the defendant's mother] has just told me, which I have to accept on face value, is a grievance has been filed against those three attorneys when they were representing her in private practice. And they have now joined the district attorney's office. The district attorney has repeatedly asked for special prosecutors in situations related to their former clients. And I can't understand for the life of me why the district attorney is appealing this request . . . [The defendant's mother] has certainly made it clear in court and documents that were filed with the court that . . . clearly indicate . . . conflict between [the three attorneys] and the [defendant's family] because of the prior attorney/client relationship they had.
(Emphasis added.)
In my view, although E.L.T.'s right to a fair trial is not necessarily jeopardized, these circumstances support the trial court's decision to disqualify the district attorney's office pursuant to its constitutional authority to protect the integrity and appearance of integrity of the court and the judicial process, and therefore his order to disqualify the district attorney's office does not constitute an abuse of discretion. I would therefore affirm.
I am authorized to state that Chief Justice MULLARKEY and Justice MARTINEZ join in the dissent.