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3-29-2017 Request For Investigation of OS 2016-0024
3-29-2017 Request For Investigation of OS 2016-0024
3-29-2017 Request For Investigation of OS 2016-0024
com/document/342530501/3-29-2017-Request-for-Investigation-of-OS-2016-0024
COLORADO
Office of Administrative Courts
Department of Personnel
b Administration
Denver Office
1525 Sherman St.
Denver, CO 80203
On January 9, 2017, you filed a "Complainant's Motion for Recusal of Judge Robert
Spencer Supported by Affidavit; Request for Investigation by Supreme Court Office of Attorney
Regulation; also, Investigation by Executive Branch Personel [sic] and Administrative Division;
also, Colorado Independent Ethics Board; also, United States Justice Department" ("Request for
Recusal and Investigation") in Case No. OS 2016-0024. Pursuant to of the
Colorado Revised Statutes, you referred your complaint to June Taylor, the Executive Director
of the Department of Personnel & Administration ("DPA"). Ms. Taylor assigned the
investigation to Matthew Azer as the Director and Chief Judge of the Office of Administrative
Courts.
In your motion, you request the following:
BACKGROUND
This case involves your allegations that the activities of the State Commission on
Judicial Performance, certain members and employees of the Colorado judicial branch, and
certain groups and individuals in the media violated Colorado's Fair Campaign Practice Act. A
brief history of the actions in this case is pertinent to the discussions contained in this report:
Complaint filed alleging violation of Fair Campaign Practice Act dated October 19,
2016;
Motion to Dismiss filed by the Office of the Attorney General dated October 28, 2016;
Motion to Dismiss filed by Denver County Judges dated October 31, 2016;
Motion to Dismiss filed by J. Sasso dated November l, 2016;
First Amended Complaint Pursuant to Colorado Constitution Amendment XXVIII &
The
Fair Campaign Practices Act ("Amended Complaint") filed November 3, 2016;
Hearing held on Motions November 4, 2016;
Renewed Motion to Dismiss filed by all Parties dated November 10, 2016;
Complainant's Memorandum in Opposition to Judiciary's, Denver Judges, CBA's and
104.3 FM Motions to Dismiss dated November 17, 2016;
Order Granting Motions to Dismiss dated November 28, 2016;
Motion to Reconsider Order of Dismissal dated December 13, 2016; and Order
Denying Motion for Reconsideration i dated January 24, 2017.
ALLEGATIONS
You have two requests in your complaint against Judge Spencer. One, that he recuse
himself from the case, and two, for an investigation into violations of the Code of Judicial
Conduct. Outlined below are the results of the investigation.
You made several serious allegations concerning violations of the Code of Judicial
conduct by Judge Spencer. In fact, your complaint cited the entire Code. You did, however,
highlight certain portions of the Code. An exhaustive review of the materials cited above
indicates that Judge Spencer did not violate the Code of Judicial Conduct. In order to address
your specific allegations, each of the pertinent parts of the Code and your allegations are
addressed separately below.
(A) A judge shall comply with the law,* including the Code of Judicial
Conduct.
(B) Conduct by a judge that violates a criminal law may, unless the
violation is minor, constitute a violation of the requirement that a judge must comply
with the law.
You provided no evidence that Judge Spencer failed to comply with the law. Moreover,
Judge Spencer has not been convicted of any crime. You assert that the basis for this allegation
is that Judge Spencer violated the Code of Judicial Conduct. Yet you provide no evidence to
suggest that this occurred. Consequently, this allegation that Judge Spencer violated this rule is
not based in fact.
A judge shall act at all times in a manner that promotes public confidence in the
independence, integrity, and impartiality of the judiciary and shall avoid impropriety and
the appearance of impropriety.
The comments to this rule address both integrity and impropriety. Impropriety occurs
when the conduct compromises the ability of the judge to carry out judicial responsibilities with
integrity, impartiality and competence. Actual improprieties include violations of law, court
rules, or provisions of the Code of Judicial Conduct. As stated above, there is no evidence that
Judge Spencer violated any laws, rules or the Code. This rule also addresses the appearance of
impropriety. As noted in the comments:
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on this matter." Additionally, you allege that Judge Spencer did not know about your Amended
Complaint at the beginning of the November 4, 2017 hearing. You also allege that
resubmissions of the Motion to Reconsider Order of Dismissal dated December 13, 2016, filed
by Respondents' counsel and the Order Denying Motion for Reconsideration dated January 24,
2017, filed by Judge Spencer only address the original complaint.
As part of this review, a side-by-side comparison of your original Complaint and your
Amended Complaint was made. The first 48 paragraphs are identical in both documents. The
first claim for relief is identical in both documents. The second, third and fourth claims for
relief, while somewhat different, contain the same substantial allegations: namely, that the
Respondents failed to register and report as required by the Fair Campaign Finance Act. 1
Moreover, the request for relief in both complaints is identical:
1
The amended complaint contains two "Third Claim for Relief". A review of the two complaints shows that the same
paragraphs were moved to different claims: original 1155 is amended 8159; original 8156 is amended ffO, original (1158
is amended ff7; original 8159 is amended F7; original q62 is amended 1164; original 8163 is amendedf 65. This list
is not exhaustive, but illustrative.
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Moreover, you expressed concern that discovery was suspended while the Motion to
Dismiss process occurred. Such a stay in discovery makes sense and is consistent with judicial
economy given the posture of the case at the time. As Judge Spencer indicated at the November
4, 2016 hearing, if the Motion to Dismiss was denied, discovery would have commenced
without detriment to any party. It is within the sound reasoning of judicial economy to stay
discovery while a motion to dismiss is entertained; the parties are better spent arguing the merits
of the motion to dismiss as opposed to also trying to craft interrogatories and schedule
depositions.
Based upon the above, there is no appearance of impropriety. The Complaint and
Amended Complaint have non-substantive differences, but argued the same issues.
Consequently, the allegation that Judge Spencer violated this rule is not based in fact.
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There is no evidence that Judge Spencer allowed the personal or economic interests of
others advanced in this case. You did not offer any evidence in support of this allegation.
Consequently, the allegation that Judge Spencer violated this rule is not based in fact.
A judge should uphold and apply the law, and shall perform all duties of judicial
office fairly and impartially.
As previously stated, there is no evidence that Judge Spencer was not fair and impartial.
Judge Spencer simply took the facts presented to him, applied the applicable law, and rendered a
decision. The fact that a judge does not agree with a particular argument does not mean that he is
unfair. If litigants believe that the judge made a mistake, they should appeal the decision to an
appellate court. Consequently, the allegation that Judge Spencer violated this rule is not based in
fact.
(A) A judge shall perform the duties of judicial office, including administrative
duties, without bias or prejudice.
(B) A judge shall not, in the performance of judicial duties, by words or conduct
manifest bias or prejudice, or engage in harassment, including but not limited to bias,
prejudice, or harassment based upon race, sex, gender, religion, national origin, ethnicity,
disability, age, sexual orientation, marital status, socioeconomic status, or political
affiliation, and shall not permit court staff, court officials, or others subject to the judge's
direction and control to do so.
(C) A judge shall require lawyers in proceedings before the court to refrain from
manifesting bias or prejudice, or engaging in harassment, based upon attributes including
but not limited to race, sex, gender, religion, national origin, ethnicity, disability, age,
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A review of the audio recording of the November 4, 2017 hearing and case file suggests
that no incidents of bias, prejudice or harassment occurred. In addition, there are no incidents of
such bias, prejudice or harassment contained in any of the orders issued by Judge Spencer. In
fact, Judge Spencer was cordial, calm, and helpful to you during the hearing. In addition, Judge
Spencer controlled the courtroom and there were no incidents of any of the attorneys or parties
engaging in bias, prejudice or harassment towards you. Consequently, the allegation that Judge
Spencer violated this rule is not supported by the evidence that you presented or by the review
of the record* The allegation is not based in fact.
There is no evidence that Judge Spencer had any external influences that swayed his
opinion. There is no evidence that Judge Spencer has any family, social, political or financial
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relationships with any of the attorneys or the litigants involved in the case. Moreover, during the
hearing and in his orders, Judge Spencer did not remotely indicate any such relationship.
Consequently, the allegation that Judge Spencer violated this rule is not supported by the
evidence that you presented or by the review of the record. The allegation is not based in fact.
(A) A judge shall accord to every person who has a legal interest in a proceeding,
or that person's lawyer, the right to be heard according to law.*
(B) A judge may encourage parties to a proceeding and their lawyers to settle
matters in dispute but shall not act in a manner that coerces any party into settlement.
The comments to this rule discuss permissible steps to ensure that self-represented litigants,
such as you, have the right to be heard according to law. These include such methods as:
liberally construing pleadings; providing brief information about the proceeding and
evidentiary and foundational requirements; modifying the traditional order of taking
evidence; attempting to make legal concepts understandable; explaining the basis for a ruling;
and making referrals to any resources available to assist the litigant in preparation of the
case.
As stated previously, Judge Spencer was calm and cordial to you during the hearing. He
allowed you to file your Amended Complaint, even though it was filed after the motions to
dismiss and the night prior to the hearing. At the hearing, Judge Spencer also inquired as to
whether you would like additional time to respond to the motions to dismiss and granted you
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additional time. While Judge Spencer did deny your request to live stream the hearing, he
indicated that you could obtain an audio CD of the hearing immediately after the hearing. Most
importantly, he explained to you that "political candidate committees" do not exist in the law.
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(C) A judge shall not investigate facts in a matter independently, and shall
consider only the evidence presented and any facts that may properly be judicially noticed.
(D) A judge shall make reasonable efforts, including providing appropriate
supervision, to ensure that this Rule is not violated by court staff, court officials, and
others subject to the judge's direction and control.
There is no evidence that Judge Spencer had any ex parte communication with you, any
of the Respondents, or any of the attorneys in this case. You allege that the only way that Judge
Spencer could have issued his Decision Granting Motion to Dismiss in your case was through ex
parte communications with the Respondents' counsel. There are no facts that substantiate this
allegation. The record is clear that all communications between Judge Spencer and the parties
either occurred through pleadings, in which all parties were copied, or at hearing. In fact, the
record indicates, as referenced in the analysis contained previously, that Judge Spencer did not
issue his ruling until I I days after he had received your Complainant's Memorandum in
Opposition to Judiciary's, Denver Judges, CBA's and 104.3 FM Motions to Dismiss dated
November 17, 2016. Consequently, the allegation that Judge Spencer violated this rule is not
based in fact.
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There is no evidence that any of the attorneys involved in the case committed
misconduct, Consequently, the allegation that Judge Spencer violated this rule is not supported
by the evidence that you presented or by the review of the record. The allegation is not based in
fact.
Rule 4.1: Political and Campaign Activities of Judges and Judicial Candidates in General
Rule 4.2: Political and Campaign Activities of a Judge Who is a Candidate for Retention
Rule 4.3: Retention Campaign Committees
These rules apply to judges who are involved in political activities or in retention
elections. There is no evidence that these apply to Judge Spencer. Consequently, the allegation
that Judge Spencer violated this rule is not based in fact.
11. RECUSAL
of
1525 Sherman St., Denver, CO 80203 P 303.866.2000
(1) The judge has a personal bias or prejudice concerning a party or a party's
lawyer, or personal knowledge* of facts that are in dispute in the proceeding.
At the time for your request of recusal of Judge Spencer, the case pending before the
Office of Administrative Courts had already closed. Consequently, a recusal is a moot point; there
was no case for Judge Spencer to disqualify from at that point. However, in order to insure a clear
record, Judge Azer delivered the motion to Judge Spencer, who denied the Request for Recusal &
Investigation motion to recuse on January 31, 2017. It is up to the judge to determine if a
disqualification should occur. "In general, in determining whether disqualification is warranted,
the critical question is whether the litigation can be conducted in fairness to all parties.
Disqualification should not be imposed unless the claimed misconduct in some way taints the trial
or legal system." See Fed. Deposit Ins. Co. v. Ishani, 782 F.Supp. 524, 528 (D.C010. 1992).
Because the timing of the motion to recuse occurred after the case was closed, and because
of the above investigation into the violations of the Code of Judicial Conduct, the denial of the
disqualification is appropriate.
CONCLUSION
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of
Sincerely,
June Taylor
Executive Director
Department of Personnel & Administration