Topeka ? A federal appeals court has refused to disqualify the judge in the retrial of two former top executives of Westar Energy Inc.

Attorneys for David Wittig and Douglas Lake had argued that U.S. District Judge Julie Robinson was biased against the defense team and should remove herself. But on Tuesday, the 10th U.S. Circuit Court of Appeals in Denver issued a ruling denying the request.

That clears the way for the retrial to begin as early as Monday.

Wittig, the former chairman and chief executive officer, and Lake, the former executive vice president, face 40 criminal counts including fraud, money laundering and circumventing internal controls. Prosecutors contend the two men tried to loot the state’s largest utility before leaving late in 2002.

Their first trial ended in a mistrial in December.

At a post-trial hearing, Robinson spent more than 45 minutes chiding the defense attorneys for what she called “childish, inappropriate, unprofessional, uncivil and even unethical behavior.”

The defense asked Robinson to step down for the retrial, then appealed after she denied that motion.

The appeals court ruled that “judicial remarks during the course of a trial that are critical or disapproving of, or even hostile to, counsel, the parties, or their cases, ordinarily do not support a bias or partiality challenge.”