Judge's demeaning email epithets weren't protected by First Amendment, says top state court

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A former Colorado appeals court judge wasn’t protected by the First Amendment when she used inappropriate racial epithets and revealed case information in emails to her former lover, the Colorado Supreme Court has ruled.

In a March 11 decision, the court said the appropriate sanction for Judge Laurie Booras was acceptance of her resignation, a public censure, and an order requiring her to pay the costs of her ethics case. The Denver Post has coverage.

One of the emails Booras wrote read: “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 will be so disappointed.”

“The little Mexican” was a reference to fellow appeals judge Terry Fox, a Latina. In another email, Booras referred to her ex-husband’s new wife, who is Native American, as “the squaw.”

The emails were revealed by the lover after his wife contacted Booras, and Booras disclosed the affair. The man, identified in the opinion as “J.S.,” sent emails to the Denver Post, Colorado’s then-governor, the chief judge of the Colorado Court of Appeals, and lawyers in the fracking case.

The Colorado Commission on Judicial Discipline had recommended that Booras be removed from office for the emails. The Colorado Supreme Court said there is no need to decide whether removal was the appropriate sanction because of Booras’ resignation.

The Colorado Supreme Court evaluated Booras’ First Amendment claim using a standard set out in the 1968 Supreme Court case Pickering v. Board of Education. In Pickering, the high court had ruled for a teacher who wrote a letter to a local newspaper criticizing the school board and superintendent for their handling of revenue-raising proposals.

The Pickering test for First Amendment protection of public employees considered two factors. The first was whether the speech at issue addresses “a matter of legitimate public concern.” The second was whether the employee’s interest outweighs the state’s interest in employee harmony and performance of duties.

Booras loses under that test, the Colorado Supreme Court said.

Judge_Laurie_A__Booras Laurie Booras. Photo from the Colorado Court of Appeals.

“Inappropriate racial epithets and derogatory remarks are not matters of legitimate public concern warranting First Amendment protection,” the court said.

In addition, any First Amendment interests that Booras might have had were outweighed by the state’s countervailing interests, the court said.

Booras’ comments about her colleague and the revelation of case information “obviously impaired harmony and trust among her co-workers,” the court said. The court pointed to the reaction of Fox, who was “justifiably shocked and deeply hurt by Judge Booras’ comments.”

The court also said Booras’ racially inappropriate comments could have affected her ability to hear cases of diverse backgrounds. “The judicial system cannot function properly if public confidence in a court is eroded in this way,” the court said.

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