In re Booras

          Original Proceeding in Discipline Colorado Commission on Discipline Case No. 18-36

          Attorneys for Complainant-Appellee The People of the State of Colorado: Jessica E. Yates, Regulation Counsel Gregory G. Sapakoff, Deputy Regulation Counsel Denver, Colorado

          Attorneys for Respondent-Appellant Laurie A. Booras: Recht Kornfeld, P.C. David M. Beller Richard K. Kornfeld Denver, Colorado

          ORDER RE: RECOMMENDATION OF THE COLORADO COMMISSION ON JUDICIAL DISCIPLINE AND THE IMPOSITION OF SANCTIONS

          PER CURIAM.

         ¶1 In this judicial disciplinary proceeding, we consider the exceptions of now-former Colorado Court of Appeals Judge Laurie A. Booras to the Colorado Commission on Judicial Discipline's (the "Commission's") recommendation that Judge Booras be removed from office and that she be ordered to pay the costs incurred by the Commission in this matter.

         ¶2 The Commission's recommendation was based on the factual findings and conclusions of law set forth in the December 12, 2018 Report of the Special Masters in this case. That report concluded that Judge Booras had violated Canon 1, Rule 1.2, Canon 3, Rule 3.1, and Canon 3, Rule 3.5 of the Colorado Code of Judicial Conduct by (1) disclosing confidential information belonging to the court of appeals (namely, the vote of a court of appeals division on a case prior to the issuance of the decision in that case) to an intimate, non-spousal partner and (2) using inappropriate racial epithets in communications with that intimate partner, including a racially derogatory reference to a court of appeals colleague.

         ¶3 Judge Booras timely filed exceptions to the Commission's recommendation, contending that her communications with her then-intimate partner were protected by the First Amendment and that the recommendation that she be removed from office was too severe under the circumstances of this case. In addition, by letter dated January 2, 2019, Judge Booras advised the Chief Justice that she was resigning her position as a Colorado Court of Appeals Judge, effective as of the close of business on January 31, 2019, although no party contends that Judge Booras's resignation rendered the present matter moot.

          ¶4 Having now considered the record and the briefs of the parties, we conclude that the Commission properly found that Judge Booras's communications with her then-intimate partner were not protected by the First Amendment. We further conclude that, given Judge Booras's resignation, which she tendered and which became effective after the Commission made its recommendation, we need not decide whether Judge Booras's removal from office was an appropriate sanction. Rather, we conclude that the appropriate sanction in this case is the acceptance of Judge Booras's resignation, the imposition of a public censure, and an order requiring Judge Booras to pay the Commission's costs in this matter.

         I. Facts and Procedural History

         ¶5 In 2007, Judge Booras began what would become a ten-year relationship with a man whom she met online ("J.S."). At the time the two met, J.S. represented that he was divorced and living in Denver, although Judge Booras later learned that he was actually married and living in California. Although the two did not see each other frequently, they communicated often, and Judge Booras described their relationship as an intimate one that she had believed would one day result in marriage. The evidence in the record tends to show, however, that by the time of the events at issue, the relationship was deteriorating, and Judge Booras had good reason to distrust J.S.

         ¶6 As pertinent here, on February 21, 2017, a division of the court of appeals heard oral argument in Martinez v. Colorado Oil & Gas Conservation Commission, 2017 COA 37, __P.3d__, rev'd, 2019 CO 3, 433 P.3d 22, a case principally concerning the extent to which the Colorado Oil & Gas Conservation Commission is required to consider public health and the environment in deciding whether to grant permits for oil and gas development. Judge Booras sat on that division.

         ¶7 The next morning, Judge Booras sent J.S. an email stating:

We had an oral argument yesterday re: fracking ban where there was standing room only and a hundred people in our overflow video room. The little Mexican is going to write in favor of the Plaintiffs and it looks like I am dissenting in favor of the Oil and Gas Commission. You and Sid [a colleague of J.S.'s] will be so disappointed.

         ¶8 As pertinent to the issues now before us, "The little Mexican" was a reference to one of Judge Booras's colleagues, a Latina who would ultimately write the opinion for the majority in that case (as she represented in her email to J.S., Judge Booras would later write the dissent). Moreover, in sending this email, Judge Booras disclosed to a third-party the division's vote in the Martinez case, which vote indisputably was confidential information of the Colorado Court of Appeals. And this email was not the first time that Judge Booras had used an inappropriate racial epithet in communicating with J.S. A year earlier, Judge Booras had sent an email to J.S. in which she referred to her ex-husband's new wife, a woman of Navajo descent, as "the squaw."

         ¶9 At some point in 2018, J.S.'s wife contacted Judge Booras, and Judge Booras disclosed her affair with J.S. Shortly thereafter, J.S. provided to The Denver Post, then-Chief Judge Alan Loeb of the Colorado Court of Appeals, then-Governor John Hickenlooper, and, it appears, the Commission and counsel for the plaintiffs in the Martinez case several written communications sent to him by Judge Booras during their ten-year relationship. He claimed that these communications called into question Judge Booras's qualifications to serve on the Colorado Court of Appeals, and he requested an investigation.

         ¶10 Based on the substance of the written materials that he had received, Chief Judge Loeb provided the materials to the Commission, and on March 29, 2018, the Commission filed a motion with this court, pursuant to Rule 34 of the Colorado Rules of Judicial Discipline, requesting that Judge Booras be temporarily suspended with pay pending the disposition of the judicial disciplinary proceedings that had been commenced against her. We granted the Commission's motion and subsequently appointed Chief Judge James F. Hartmann, Chief Judge Pattie P. Swift, and Justice (Ret.) Gregory J. Hobbs, Jr. to serve as special masters in this matter.

         ¶11 On August 17, 2018, the Commission filed a Notice of Formal Charges and a Statement of Charges against Judge Booras, alleging that she violated the following provisions of the Colorado Code of Judicial Conduct: (1) Canon 1, Rule 1.2 (providing that 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"); (2) Canon 3, Rule 3.1(C) (prohibiting a judge from participating in "activities that would appear to a reasonable person to undermine the judge's independence, integrity, or impartiality"); and (3) Canon 3, Rule 3.5 (providing that "[a] judge shall not intentionally disclose or use nonpublic information acquired in a judicial capacity for any purpose unrelated to the judge's judicial duties"). These charges were based on Judge Booras's use of racial epithets ("The little Mexican" and "the squaw") and on her disclosure to J.S. of the division's vote in the Martinez case one month prior to the division's issuance of its opinion in that case.

         ¶12 Judge Booras responded to the charges, admitting that she wrote and sent the emails at issue but asserting that they constituted protected speech under the First Amendment. She further contended that she had a reasonable expectation of privacy ...