What happens when you challenge judicial recusal without following proper procedures? Cheek v. Clay Bulloch Construction Explained

The Utah Court of Appeals recently addressed the consequences of failing to follow proper procedures when challenging judicial recusal in Cheek v. Clay Bulloch Construction. This case provides important guidance for practitioners on the requirements for raising recusal issues and the risks of inadequate appellate briefing.

Background and Facts

Dennis Cheek hired Clay Bulloch to construct buildings in Cedar City, Utah. After construction disputes arose, Cheek sued for breach of contract and other claims. The case was initially assigned to Judge Eves, who voluntarily recused himself, stating the case would be referred to a judge outside the Fifth District. The case was then assigned to Judge Lyman of the Sixth District. However, Cheek later discovered that Judge Lyman had been assigned to handle cases in the Fifth District, where defendant’s wife worked as clerk of court. Cheek filed a motion asking whether the existing recusal order required reassignment, citing an informal ethics opinion about disqualification involving judicial employees’ relatives.

Key Legal Issues

The appeal raised two main issues: (1) whether Judge Lyman erred by not voluntarily recusing himself and not following Rule 63 procedures, and (2) whether the trial court erred in dismissing the breach of contract claims. Critically, Cheek never filed a formal Rule 63 motion for disqualification with the required supporting affidavit and certificate of good faith.

Court’s Analysis and Holding

The Court of Appeals affirmed, applying the correctness standard to the recusal question. The court emphasized that Rule 63 provides the exclusive mechanism for challenging judicial disqualification, requiring a motion accompanied by a certificate of good faith and supporting affidavit. The court noted that failure to comply with Rule 63’s requirements typically waives the issue, preventing tactical delays where parties wait for unfavorable outcomes before raising recusal concerns. Regarding Cheek’s substantive claims, the court found them inadequately briefed under Rule 24 requirements, lacking specific challenges to findings of fact, supporting legal authority, and reasoned analysis.

Practice Implications

This decision reinforces several critical practice points. First, practitioners must strictly comply with Rule 63’s procedural requirements when raising recusal issues—informal requests for voluntary recusal are insufficient to preserve the issue for appeal. Second, the court will not allow parties to bypass Rule 63’s requirements by filing motions under different names or relying solely on voluntary recusal requests. Third, appellate briefs must meet Rule 24’s requirements with specific legal arguments, supporting authority, and clear statements of relief sought. The case also highlights that waiver can occur through both procedural failures and affirmative representations that Rule 63 is not being invoked.