dissenting.
I.
Since his friend and former supervisor was now a member of the prosecution team, Judge Schwartz recused himself stating that he was uncomfortable continuing to sit on Schupper's case because of the level of antagonism between counsel for the defense and prosecution. At the time he recused himself, Judge Schwartz had previously denied four defense recusal motions. He finally recused himself after Schupper's conviction and sentencing on grounds not raised by Schupper. Judge Schwartz's recusal order reflects that he was "uncomfortable" because of the personal attacks directed at his friend and former supervisor, thereby raising a personal conflict which might prevent him from being fair to Schupper.
His statements reflect his subjective feelings and do not reveal a concern that neutral observers might question his ability to be fair because of his relationship with his former supervisor. In effect, Judge Schwartz was saying: I don't feel good continuing to sit on this case and therefore will step down. His statement did not indicate an appearance of bias. The effect of an appearance of bias would be to say to both parties: Even though I feel that I can be fair, others may reasonably question my impartiality and thus, I will step down.
On remand from the court of appeals, the Successor Judge found that the same cireum-stances which existed at the time Judge Schwartz recused himself-that is, the high level of animosity between the district attorneys and Schupper's counsel, and the friendship between Judge Schwartz and a member of the prosecution team-existed when Judge Schwartz was initially assigned to Schupper's case. Therefore, the Successor Judge ordered that Judge Schwartz's recusal be retroactive, and ordered a new trial for Schup-per.
In my view, this statement by the Successor Judge represents a finding of fact to which we should defer. The record supports this statement. The Successor Judge's finding that the same cireumstances existed when Judge Schwartz recused himself existed much earlier in the case, when coupled with Judge Schwartz's admission of actual bias, lead me to conclude that the Successor Judge ruled correctly that Judge Schwartz should be retroactively recused and Schup-per should have a new trial Hence, I respectfully dissent.1
IJ.
From its inception in 1996, this case involved a high degree of antagonism between the defense and the prosecution leading up to Judge Schwartz's recusal order in January 2008. A recital of a few salient facts establishes the almost unparalleled degree of contentiousness that existed between the parties.
Judge Schwartz was appointed to the bench in January 1997 after serving as a district attorney for the same office prosecuting Schupper. During part of Judge Schwartz's tenure as a deputy district attorney, one of the district attorneys on Schup-per's case was Judge Schwartz's supervisor in the economic crimes division, which consisted of only two or three attorneys, and Judge Schwartz considered him to be a personal friend.
In Schupper's motion on remand to recuse Judge Schwartz, he stated that the antago*523nism between the defense and prosecution began in 1996 when the district attorneys caused the public defenders representing Schupper to withdraw because of a conflict of interest since the district attorneys named them as witnesses against Schupper on perjury charges. A similar conflict arose in 2001 and the public defenders were again forced to withdraw. Then, in 2002, the district attorneys filed a grievance and a motion for contempt sanctions against Schupper's new court-appointed attorney.
The record contains additional instances of animosity among counsel. In November 2001, Schupper moved to appoint a special prosecutor because of the district attorneys' "vindictive mode of prosecution." In 2002, before Schupper was sentenced, the personal conflicts between counsel grew as Schupper filed a motion for a protective order and sanctions against the district attorney's office, and for a referral to the Office of Attorney Regulation. On the day Schupper was sentenced, he again moved for the appointment of a special prosecutor to investigate and to prosecute the district attorneys for the crimes of criminal impersonation and subordination of perjury, a motion which Judge Schwartz denied.
Before Judge Schwartz recused himself, his friend and former supervisor appeared in court on behalf of the People to argue a motion and filed a motion seeking contempt against Schupper's court-appointed attorney, who was also the subject of the grievance. Judge Schwartz's friend's name also appears on an emergency motion to revoke Schup-per's bond and on a response to a defense motion regarding the perjury charges against Schupper.
Recusal is required where the facts stated in the motion to recuse, taken as true, establish either a judge's actual bias or an appearance of partiality. See § 16-6-201(8), C.R.S. (2006) ("If the verified motion and supporting affidavits state facts showing grounds for disqualification, the judge must enter an order disqualifying himself."); People v. Botham, 629 P.2d 589, 595 (Colo.1981), superseded by rule on other grounds, C.R.E. 104, as recognized in People v. Garner, 806 P.2d 366 (Colo.1991).
Actual bias arises where "a judge has a bias or prejudice that in all probability will prevent him or her from dealing fairly with a party." People v. Julien, 47 P.8d 1194, 1197 (Colo.2002). This type of "bent of mind" is an inclination to favor one party over another. Botham, 629 P.2d at 595. Actual bias exists when a judge is subjectively unable to proceed impartially. Richard E. Flamm, Judicial Disqualification: Recusal and Disqualification of Judges § 3.2 (@d ed.2007) (actual bias refers to the " 'attitude' or 'state of mind' of a judge who cannot be trusted to act in a detached and impartial manner").
For the appearance of partiality based on a personal relationship with counsel, the objective test is whether a reasonable person would believe that a judge is unable to proceed impartially in a case because of that relationship. See Botham, 629 P.2d at 595 ("Even where the trial judge is convinced of his own impartiality, the integrity of the judicial system is impugned when it appears to the public that the judge is partial."); Flamm, supra, § 5.6.1 (noting that a majority of courts hold that "when a judge's impartiality might reasonably be questioned by others, it is ordinarily his duty to recuse himself without regard to his own subjective belief that he can dispense justice fairly and equitably.") (footnotes omitted).
In his recusal order, Judge Schwartz stated that the involvement of his friend and former supervisor in a small office caused him to be partial:
It appears that the personal antagonism between counsel demonstrated in the past will continue. While I would not have problems dealing with these various personal issues among other counsel, I will feel uncomfortable handling them if [my friend and former supervisor] is involved.
(emphasis added). This is an admission of subjective, actual bias, not an objective appearance of partiality. Judge Schwartz re-cused himself based on his subjective feelings of discomfort with the situation; but not because he believed the circumstances created an appearance of partiality to an objective observer.
*524The Successor Judge, like Judge Schwartz, concluded that this case created only an appearance of partiality requiring recusal. 2 The Successor Judge also made a factual finding that "the cireumstances upon which Judge Schwartz relied to disqualify himself were true from the time the case was first assigned to him" and "were true at the time the various motions to recuse were filed." In making this factual finding, the Successor Judge cited several poignant facts: that Judge Schwartz considered one of the district attorneys to be a personal friend; that he had been Judge Schwartz's supervisor during his tenure as a deputy district attorney in the economic crimes division; and that Judge Schwartz's friend and former supervisor had appeared at a motions hearing on Schupper's case on February 20, 1997.3
The legal conclusion of whether recusal was necessary is reviewed on appeal using a de novo standard of review. Julien, 47 P.3d at 1197. Factual findings of the trial court, however, are given deference. A reviewing court may not disturb the factual findings of the trial court unless they are clearly erroneous, meaning that the findings are not supported by the facts in the record. E-470 Pub. Highway Auth. v. 455 Co., 3 P.3d 18, 22 (Colo.2000); Page v. Clark, 197 Colo. 306, 592 P.2d 792, 796 (1979).
There is adequate support in the record for the Successor Judge's factual findings that (1) the animosity between the district attorneys and Schupper's attorneys was present from the outset of Schupper's case, and (2) Judge Schwartz's friend and former supervisor was involved in Schupper's case beginning in 1997. Hence, I would not disturb these findings.
Turning to the standard for retroactive recusal, disqualification should be retroactive where there is actual bias or prejudice on the part of the judge. See Flamm, supra, § 22.6; In re Armstrong, 204 B.R. 344, 360 (BAP. 10th Cir.2003) (holding that "orders entered prior to a recusal may be voided if the injured party can show that the judge should have recused herself and failed to do so"); United States v. Murphy, 768 F.2d 1518, 1541 (7th Cir.1985) (holding that "[jJludicial acts taken before the motion [to recuse] may *525not later be set aside unless the litigant shows actual impropriety or actual prejudice"). The actual bias to which Judge Schwartz admitted in his recusal order extended to the outset of Schupper's case. For this reason, I would remand this case for a new trial before a different judge.
I am authorized to state that Chief Justice MULLARKEY and Justice MARTINEZ join in this dissent.
. The majority characterizes the Successor Judge's conclusion that Judge Schwartz should have recused himself as a "per se rule" that disqualification is required because of the "mere existence of the friendship." Maj. op. at 520. I agree with the majority that such a per se rule would be inappropriate because the inquiry regarding an appearance of impropriety based on a judge's friendship with counsel should be a fact-based analysis, but disagree that the Successor Judge applied such a per se rule in making his disqualification determination.
. In footnote 5 of the majority opinion, maj. op. at 521, the majority states that the Successor Judge's "decision to compel Schupper to proceed pro se [at trial] contributed to an appearance of partiality." The Successor Judge stated that Judge Schwartz compelled Schupper to proceed pro se at trial and then upon conviction appointed counsel to represent him at sentencing. To the extent that this fact contributed to the Successor Judge's determination of bias, I agree with the majority that this was a ruling on the merits and is probably a fact irrelevant to our inquiry. However, I note that the details surrounding Schwartz's denial of counsel and subsequent reversal are not part of this appeal. On the surface, such a dramatic reversal by the trial court-first eliminating the constitutional right to counsel based on a determination that the defendant is not indigent, and then finding after conviction that the defendant is indigent and providing counsel for the purposes of sentencing-merits some form of appellate inquiry, albeit not here.
. The Successor Judge's Order Upon Remand By the Court of Appeals states, in relevant part:
In this case, [Schupper] filed motions to recuse before and after the trial of this case which were denied [] by Judge Schwartz.... On January 3, 2003, approximately 6 months later,
Judge Schwartz granted a motion to recuse finding that the level of animosity between counsel and the appearance of [Judge Schwartz's friend and former supervisor] in the case created an appearance of partiality. In his ruling the Judge noted that [this district attorney] was a personal friend and had been his supervisor during his tenure as a Deputy District Attorney assigned to the Economic Crimes Division. In fact [Judge Schwartz's friend and former supervisor] appeared at a motion hearing on one of the cases against [Schupper] on February 20, 1997. While the cases against [Schupper] were being investigated and filed Judge Schwartz was serving as a Deputy District Attorney. The parties stipulate he had no involvement with the case and no knowledge of any of the facts of the case.... In recusing himself on January 3, 2003 Judge Schwartz noted that his personal friendship and prior practice association with [this district attorney] as his supervisor in the District Attorney's Office created a circumstance where his impartiality might reasonably be questioned. Because the circumstances upon which Judge Schwart? relied to disqualify himself were true from the time the case was first assigned to him and [] were true at the time the various motions to recuse were filed, the decision to recuse should have been made before the trial and sentencing in this case.