Deteriorating relationship

Accepting her resignation, the Colorado Supreme Court publicly censured a former court of appeals judge for (1) disclosing to an intimate, non-spousal partner the vote of a court of appeals division on a case prior to the issuance of the decision and (2) using inappropriate racial epithets in communications with her intimate partner.  In the Matter of Booras (Colorado Supreme Court March 11, 2019).  In March 2018, the Court had granted the request of the Commission on Judicial Discipline to suspend the judge with pay pending the disciplinary proceedings.  The judge resigned after the Commission recommended her removal.

In 2007, the judge began a 10-year relationship with a man whom she met online (“J.S.”).  J.S. told the judge that he was divorced and living in Denver, although the judge later learned that he was married and living in California.  They did not see each other frequently, but they communicated often, and the judge described their relationship as “intimate” and believed it would lead to marriage.

By early 2017, however, “the relationship was deteriorating, and Judge Booras had good reason to distrust J.S.”

On February 21, 2017, the judge and other judges in a division of the court of appeals heard oral argument in a case about the extent to which a state commission was required to consider public health and the environment in deciding whether to grant permits for oil and gas development.

The next morning, the judge sent an e-mail to J.S. that said:

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.] will be so disappointed.

“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.”  Judge Booras wrote the dissent.

At some point in 2018, J.S.’s wife contacted the judge, and the judge told her about the affair. Shortly thereafter, J.S. provided The Denver Post, the chief judge of the Court of Appeals, the governor, the Commission on Judicial Discipline, and counsel for the plaintiffs in the case several communications from the judge.

The Court found that the judge had disclosed confidential information — the court’s vote in the case — to a third party.  The Court also found that the judge “had used an inappropriate racial epithet in communicating with J.S.,” noting that it was not the first time as she had referred to her ex-husband’s new wife, a woman of Navajo descent, as “the squaw” in an e-mail to J.S a year earlier.

The Court held that the judge’s “use of an inappropriate racial epithet directed at one of her colleagues” and her disclosure of confidential information “obviously impaired harmony and trust among her co-workers . . . .”   The Court emphasized that the judge’s “relationship with the colleague at whom her ‘little Mexican’ comment was directed” was particularly affected, noting that the other judge had been “justifiably shocked and deeply hurt by Judge Booras’s comments” and that a close working relationships with other judges is “integral to a collaborative decision-making body” like the court of appeals.  The Court also explained that “knowledge of Judge Booras’s racially inappropriate comments could understandably have caused concern among parties of diverse backgrounds, and particularly those of Latino and Native American ancestry, who inevitably would have appeared before Judge Booras were she to have returned to the court of appeals.  The judicial system cannot function properly if public confidence in a court is eroded in this way.”

The judge argued that “a judge’s communications with an intimate partner should be given First Amendment protection unless the speech ‘violates a specific narrowly-tailored rule of judicial conduct or falls within an ordinary exception to the First Amendment.’”  Rejecting that argument, the Court held that “inappropriate racial epithets and derogatory remarks are not matters of legitimate public concern warranting First Amendment protection.”  The Court also concluded that any First Amendment interests “are outweighed by the state’s countervailing interests.”

 

Marijuana and judicial ethics

According to governing.com, 31 states and D.C. have legalized marijuana to some degree, with Alaska, California, Colorado, D.C., Maine, Massachusetts, Nevada, Oregon, Vermont, and Washington having the most expansive laws for recreational use.  Although that certainly changes the criminal caseloads of judges in those states, it makes no difference in their personal conduct, as a recent judicial ethics opinion from Alaska advises.

The advisory opinion concludes that:  “As long as federal law criminalizes marijuana use, Alaska judges who choose to use marijuana violate the Alaska Code of Judicial Conduct.”  Alaska Advisory Opinion 2018-1.  The opinion relies on the provision in Canon 2A of the Alaska code that states that, “[i]n all activities, a judge shall exhibit respect for the rule of law, comply with the law, and avoid impropriety and the appearance of impropriety, and act in a manner that promotes public confidence in the integrity and impartiality of the judiciary.”  The opinion notes that the “requirement that a judge shall comply with the law includes federal law as well as state law and local laws.”

The opinion states that Alaska law on marijuana use is unique because it is based on a 1975 decision by the Alaska Supreme Court that the right to privacy in the state constitution protects the personal use of marijuana in the home.  See Ravin v. State, 537 P.2d 494 (Alaska 1975).  However, the opinion emphasizes that judges’ personal rights are limited by the code, for example, with respect to “speech, financial endeavors, and political activity to preserve their impartiality and ability to hear cases.”

Further, the opinion explains:

Marijuana use violates federal law and its use by a judge would reflect a lack of respect for the law by showing a selective attitude towards the law suggesting that some are appropriate to follow but others are not.  Public use of marijuana by a judge would further create an appearance of impropriety.

The opinion also states that judges are restricted “even in their personal use in the home” as a “reasonable and necessary” measure to preserve public confidence in the judiciary, noting that, “[o]ne never knows when an iPhone is out and ready to take a picture of a momentary indiscretion.”

Colorado is the only other state that has a judicial ethics advisory opinion on the subject, issued in 2014 in response to a judge who asked “whether a judge who engages in the personal recreational or medical use of marijuana (as opposed to commercial use) in private and in a manner compliant with the Colorado Constitution and all related state and local laws and regulations” violates the code.  Colorado Advisory Opinion 2014-1.

In Rule 1.1(B), the Colorado code states that “[c]onduct by a judge that violates a criminal law may . . . constitute a violation of the requirement that a judge must comply with the law” — “unless the violation is minor,” an exception unique to Colorado.  The advisory committee notes that the Committee to Consider Revisions to the Colorado Code of Judicial Conduct had been concerned that the requirement that a judge comply with the law was “vague and confusing” and “could subject judges to discipline for what typically are regarded as minor infractions, such as receiving a parking ticket or permitting the judge’s dog to run at large.”  Thus, the “minor” violation language was added in 2010.

However, the advisory committee stated that the exemption only applied to “violations of relatively insignificant traffic offenses and local ordinances, not state or federal drug laws.”  The committee recognized that, under federal law, simple possession of marijuana is a misdemeanor or even an infraction punishable only by a civil penalty under some circumstances.  Nevertheless, it concluded that, “while not necessarily a ‘serious’ offense, it is not a ‘minor’ offense within the meaning of Rule 1.1(B).  It is significantly more serious than the parking ticket and dog at large violation . . . .”

The committee emphasized that it is only authorized to provide an opinion on whether “intended, future conduct” complies with the code of judicial conduct, not on whether such conduct is censurable and, therefore, it was not opining on whether a judge who uses marijuana consistent with Colorado law should be disciplined.