https://www.scribd.

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

March 20, 2017

Mr. Peter Coulter

151 Summer Street, #654
Morrison, Colorado 80465

Re: Investigation of Judge Robert Spencer:

Dear Mr. Coulter:

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:

l) Judge Robert Spencer recuse himself from the case;

2) DPA begin investigative proceedings against Judge Spencer, the attorney for
Respondents, as well as the Respondents themselves;
3) The Colorado Supreme Court Office of Attorney Regulation investigate all attorneys and
judges; and
4) The U.S. Justice Department and FBI investigate the actions of the Executive and
Judicial branches of the Colorado government.
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1525 Sherman St., Denver, CO 80203 P 303.866.2000 www.cotorado.gov/oac

John W. Hickenlooper, Govemor June Taylor, Executive Director
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As relayed and clarified to you during the face-to-face meeting on January 24, 2017 with
Judge Azer, DPA is authorized by statute only to review the recusal of Judge Spencer and
investigate whether Judge Spencer violated the Code of Judicial Conduct (the "Code").
Consequently, this report investigates only those two issues.

For this investigation, the following were reviewed:

The case file of OS 2016-0024 in its entirety;

The audio file of the hearing held on November 4, 2016;
Request for Recusal and Investigation of January 9, 2017;
Notice of Request for Investigation of Judge Robert Spencer by the DPA/June Taylor,
Director ("Second Request for Recusal & Investigation") on January 24, 2017;
Your Notice of Request for Further Investigation filed January 31, 2017; and
Your Formal Supplemental Request for Investigation of Judge Spencer filed on February
1 1, 2017.

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;

1525 Sherman St., Denver, CO 80203 P 303.866.2000 www.colorado.gov/oac

John W. Hickenloooerr Governor I June Tavlor. Executive Director

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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.

1. VIOLATIONS OF THE CODE OF JUDICAL CONDUCT

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.

Rule 1.1: Compliance with the Law

(A) A judge shall comply with the law,* including the Code of Judicial
Conduct.

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John W. Hickenloooerr Governor I June Tavlor. Executive Director

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As was discussed on January 24, 2017, while the Order Denying Motion for Reconsideration was signed on
December 23, 2016, it could not be determined that a copy was e-mailed to you. Consequently, the Order was
reserved with the January 24, 2017 date so as to preserve your appeal rights.

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(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.

Rule 1.2: Promoting Confidence in the Judiciary

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:

The test for appearance of impropriety is whether the conduct would

create in reasonable nzinds a perception that the judge violated this Code or
engage in other conduct that reflects adversely on the judge 's honesty,
impartiality, temperament, orfitness to serve as a judge.

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1525 Sherman St., Denver, CO 80203 P 303.866.2000 www.colorado.gov/oac

John W. Hickenloooer. Govemor I June Tavlor. Executive Director

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In your Request for Recusal & Investigation and Second Request for Recusal &
Investigation, one of the main points of contention is that "Judge Spencer's order is written for
the first Original Complaint and biasedly[sic] written before the November 4th Motions hearing
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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:

l) Immediate registration of the political candidates and political candidate committees

with the Colorado Secretary of State;

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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2) Fines in an amount of $50 per day per occurrence per Respondent to be determined at
trial;
3) Costs and Attorney's Fees in bringing this Complaint; and
4) Granting such further Relief as the court deems just and proper.
Given the nearly identical filings, Judge Spencer's six page Order granting Motion to
Dismiss dismissing the case does not explicitly state to which Complaint or Amended
Complaint, he is referring. What is clear in the order is that he applied the law to the facts
presented to him and rendered a decision. The Order Granting Motions to Dismiss was issued on
November 28, 2016, 24 days after the receipt of your Complainant's Memorandum in
Opposition to Judiciary's, Denver Judges, CBA's and 104.3 FM Motions to Dismiss dated
November 17, 2016. There is absolutely no evidence that Judge Spencer was predisposed to rule
for one side or that he drafted the order prior to November 4, 2016 hearing. In fact, the evidence
proves that he did not issue the order prior to receiving all arguments in the case.

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.

Rule 1.3: Avoiding Abuse of the Prestige of Judicial Office

1525 Sherman St., Denver, CO 80203 P 303.866.2000 www.colorado.gov/oac

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A judge shall not abuse the prestige of judicial office to advance the personal or
economic interests* of the judge or others, or allow others to do so.

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John W. Hickenloooer. Govemor I June Tavlor. Executive Director

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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.

Rule 2.2: Impartiality and Fairness

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.

Rule 2.3 Bias, Prejudice, and Harassment

(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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sexual orientation, marital status, socioeconomic status, or political affiliation, against

parties, witnesses, lawyers, or others.

The comments to this rule cite examples of manifestations of bias or prejudice:

epithets; slurs; denzeaning nicknames; negative stereotyping;

attenpted hunzor based upon stereotypes; threatening intbnidating, or
hostile acts; suggestions of connections between race, ethnicity, or
nationality and crbne; and irrelevant references to personal
characteristics.

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.

Rule 2.4: External Influences on Judicial Conduct

(A) A judge shall not be swayed by public clamor or fear of criticism.

(B) A judge shall not permit family, social, political, financial, or other interests
or relationships to influence the judge's judicial conduct or judgment.
(C) A judge shall not convey or permit others to convey the impression that any
person or organization is in a position to influence the judge.
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John W. Hickenloooer. Governor I June Executive Director

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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.

Rule 2.6: Ensuring the Right to Be Heard

(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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1525 Sherman St., Denver, CO 80203 P 303.866.2000 www.cotorado.gov/oac

John W. Hickenloooer. Governor June Tavlor. Executive Director
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 Investigation ofJudge Spencer
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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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John W. Hickenloooer. Governor I June Executive Director

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He explained that there are political committees and candidate committees. Consequently, the
allegation that Judge Spencer violated this rule is not based in fact.

Rule 2.9: Ex Parte Communications

(A) A judge shall not initiate, permit, or consider ex parte communications, or

consider other communications made to the judge outside the presence of the parties or
their lawyers, concerning a pending* or impending matter,* except as follows:

(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.

Rule 2.15: Responding to Judicial and Lawyer Misconduct

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(A) A judge having knowledge* that another judge has committed a violation
of this Code that raises a substantial question regarding the judge's honesty,
trustworthiness, or fitness as a judge in other respects shall inform the appropriate
authority.*
(B) A judge having knowledge that a lawyer has committed a violation of the
Rules of Professional Conduct that raises a substantial question regarding the lawyer's
honesty, trustworthiness, or fitness as a lawyer in other respects shall inform the
appropriate authority.
(C) A judge who receives information indicating a substantial likelihood that
another judge has committed a violation of this Code shall take appropriate action.
(D) A judge who receives information indicating a substantial likelihood that a
lawyer has committed a violation of the Rules of Professional Conduct shall take
appropriate action.

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

Rule 2.11: Disqualification

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John W. Hickenloooer. Govemor I June Executive Director

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(A) A judge shall disqualify himself or herself in any proceeding in which the
judge's impartiality* might reasonably be questioned. including but not limited to the
following circumstances:

(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.

(b) served in governmental employment, and in such capacity participated

personally and substantially as a lawyer or public official concerning the proceeding, or
has publicly expressed in such capacity an opinion concerning the merits of the particular
matter in controversy;

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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There is no evidence that Judge Spencer violated any of the rules contained in the Code
of Judicial Conduct. In fact, the evidence suggests that Judge Spencer conducted himself
professional and adhered to the Code.

This concludes DPA's investigation in this matter.

Sincerely,

June Taylor
Executive Director
Department of Personnel & Administration

1525 Sherman St., Denver, CO 80203 P 303.866.2000

John W. Hickenloooer. Govemor I June Executive Director