2019 CO 16
Colo.2019Background
- Laurie A. Booras, a Colorado Court of Appeals judge, sent private emails to an intimate non‑spousal partner (J.S.) that disclosed a division vote in Martinez v. Colo. Oil & Gas Conservation Comm’n before issuance of the opinion and used racial epithets referring to a colleague and others.
- J.S. later provided these communications to third parties, prompting an investigation and formal charges by the Colorado Commission on Judicial Discipline alleging violations of Canon 1, Rule 1.2; Canon 3, Rule 3.1(C); and Canon 3, Rule 3.5 (improper disclosure and use of nonpublic information and conduct undermining public confidence).
- Special masters held a hearing, found the charges proven, rejected Booras’s First Amendment and privacy defenses, and recommended removal from office and assessment of costs.
- The Commission adopted the recommendation and asked the Colorado Supreme Court to suspend/remove; Booras timely filed exceptions and then tendered her resignation effective January 31, 2019.
- The Colorado Supreme Court upheld the special masters’ legal conclusions (applying Pickering framework), concluded Booras’s speech was not protected, and—given her resignation—imposed sanctions of accepted resignation, public censure, and payment of Commission costs.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Booras’s private emails to an intimate partner are protected by the First Amendment | Commission: Judge’s speech is not protected when it uses racial epithets and discloses confidential judicial deliberations; Pickering balancing applies | Booras: Speech between intimate partners should receive First Amendment protection except when it violates a narrowly tailored judicial-conduct rule or ordinary First Amendment exception; also claimed privacy expectation | Court: Applied Pickering/Connick framework; found epithets not matters of public concern and balance favors state interests; no First Amendment protection |
| Whether disclosure of a division’s vote before opinion issuance violated judicial conduct rules | Commission: Disclosure of confidential judicial information breaches Canon 3, Rule 3.5 and undermines public confidence | Booras: Characterized communications as private and thus immune from discipline | Court: Agreed disclosure violated judicial conduct rules and was not protected speech |
| Whether racial epithets in private emails constitute misconduct warranting discipline | Commission: Derogatory racial references toward a colleague undermine public confidence and workplace harmony | Booras: Framed statements as private, arguing context and intimacy limit discipline | Court: Held epithets are not matters of public concern and harmed coworker trust and court functioning; constitute misconduct |
| Appropriate sanction given findings | Commission: Removal from office and costs (at time of recommendation Booras had not resigned) | Booras: Removal is excessive; acceptance of resignation and costs or at most public censure is sufficient | Court: Declined to decide removal on merits due to Booras’s resignation; accepted resignation, imposed public censure, and ordered payment of Commission costs |
Key Cases Cited
- Pickering v. Bd. of Ed., 391 U.S. 563 (1968) (establishes two‑step balancing test for public employee speech: public concern and Pickering balance)
- Connick v. Myers, 461 U.S. 138 (1983) (clarifies "public concern" inquiry: content, form, context; if not public concern, no First Amendment protection)
- Rankin v. McPherson, 483 U.S. 378 (1987) (applies Pickering factors assessing disruption, coworker harmony, and efficiency)
- Scott v. Flowers, 910 F.2d 201 (5th Cir. 1990) (applies Pickering in judicial discipline context)
- Miss. Comm’n on Judicial Performance v. Boland, 975 So.2d 882 (Miss. 2008) (judicial disciplinary case rejecting First Amendment protection for racist/derogatory judicial statements)
- In re Lowery, 999 S.W.2d 639 (Tex. Rev. Trib. 1998) (judicial discipline applying Pickering to abusive language and racial slurs)