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I filed a Motion for the Court to Take Mandatory Judicial of Judicial Misconduct. In that motion I accused the judge of criminal misconduct and being complicit in the criminal misconduct of opposing counsel. In a one paragraph ruling, the judge denied the motion. Interesting he should deny the motion because the last two paragraphs of the motion extended mercy and forgiveness to both the judge and opposing counsel. When I realized the judge had just used his official position to benefit himself I put together a motion for substitution of judge based on breach of fiduciary duty principles. Here is some of the authority I incorporated into that motion:

AUTHORITY:

1. Samuel Rutherford, in his treatise The Law and the Prince (London: Printed for John Field, 1644[1]), while discussing government officials such as kings, shires, and commissioners states that when they abuse their power to the destruction of their subjects “it is lawful to throw a sword out of a madman’s hand,” “for all fiduciary power abused may be repealed.”

2. John Locke in his The Second Treatise on Civil Power § 149 calls legislative authority a fiduciary power.  And at § 156 of that same treatise he calls the power of assembling and dismissing the legislative, placed in the executive a fiduciary trust.[2]

3. Bouvier’s Law Dictionary 1856 Edition[3] in part defined fiduciary to be “in trust”. Art. 1 § 3, Art. 1 § 9, Art. 2 § 1 and Art. 6 § 1 of the U.S. Constitution all make reference to offices of public trust. A fiduciary duty arises among parties through a relationship of trust. MDM Group Associates, Inc. v. CX Reinsurance Company Ltd., U.K., 2007.CO.0000041<VL>¶ 53;  No. 04CA2614 (Colo.App. 2007).

4. Thomas Jefferson’s writings reflected that government officials are fiduciaries.[4]

5. Policemen violating the law are considered to be in violation of a fiduciary relationship and to have corrupted a public trust according to a deputy district attorney. Joe Sexton, Jurors Question Honesty of Police, N.Y. Times, Sept. 25, 1995, at B3 (quoting Michael F. Vecchione, Brooklyn District Attorney Charles J. Hynes’s deputy in charge of trials).[5]

6. The law of agency at its most basic level recognizes that an agent can only act subject to the consent and control of the principal to whom the agent owes a fiduciary duty. See Restatement [Second] of Agency, sec. 1. An agency is a fiduciary relation. Cole v. Jennings, 1992.CO.40162 <VL> ¶ 32; 847 P.2d 200 (Colo.App. 1992). In all dealings affecting the subject matter of an agency, the relationship imposes a duty to act with the utmost faith and loyalty in behalf of, and to act solely for, the benefit of his principal. Lestoque v. M.R. Mansfield Realty, Inc., 536 P.2d 1146 (Colo. 1975). To permit an agent to divide his loyalties and duties where the transactions are so interrelated as to become one, would unfairly allow an agent to use information that comes to him as a fiduciary to promote the other transaction solely for his own benefit. Cole v. Jennings, supra @ ¶ 34.

7. A fiduciary relationship may exist as a matter of law or may arise where one party occupies a superior position relative to another. Moses, infra at 321. However, an unequal relationship does not automatically create a fiduciary duty. Id. at 322. The superior party must assume a duty to act in the dependent party’s best interest. Id. A fiduciary relationship exists whenever one person is entrusted to act for the benefit of or in the interest of another and has the legal authority to do so. MDM Group Associates, Inc., supra @ ¶ 59. In determining the scope of a fiduciary duty, a court may consider statutes, regulations, or customs that have been adopted for the protection of beneficiaries. See Rupert v. Clayton Brokerage Co., 737 P.2d 1106 (Colo. 1987); see also United Blood Services v. Quintana, 827 P.2d 509 (Colo. 1992)(source of legal duty may be a legislative enactment). The claim for breach of fiduciary duty can involve a party who uses his superior position as a final arbiter to the detriment of a vulnerable, dependent party. Moses v. Diocese of Colorado, 1993.CO.40139 <VL>¶ 51; 863 P.2d 310 (Colo. 1993). One of the fiduciary’s duties is the duty to deal “with utmost good faith and solely for the benefit” of the dependent party. Moses, supra @ ¶ 59.

[2] Found here: http://www.constitution.org/jl/2ndtr13.htm

[3] Found here: http://www.constitution.org/bouv/bouvier_f.htm

[4] http://www.constitution.org/tj/jeff02.txt

[5] Found here: http://www.constitution.org/lrev/slobogin_testilying.htm

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