By Karen Savage
UPDATE, Jan. 29: The Colorado Supreme Court said on Monday it would not vacate its decision in a youth-led case against the Colorado Oil and Gas Conservation Commission. It did not offer an explanation for the decision.
Jan. 25: Racist comments by a Colorado Court of Appeals judge have prompted seven young plaintiffs to ask the state to vacate several judicial decisions. Those decisions led to a recent Colorado Supreme Court ruling against them in their lawsuit to force the state to consider the impacts on public health and the climate when allowing oil and gas development.
That ruling, allowing the Colorado Oil and Gas Conservation Commission to ignore public health, safety, and welfare concerns in permitting fossil fuel development, relied in part on a dissenting opinion by Court of Appeals Judge Laurie Booras.
Booras was suspended last March pending an investigation of allegations that she called a fellow appeals court judge a “little Mexican,” and a judicial review panel recently substantiated the allegations, specifically mentioning her racist comments were particularly inappropriate because the lead plaintiff in the oil and gas case, Martinez v COGCC, Xiuhtezcatl Martinez, is Native American and Latino.
The plaintiffs’ attorneys contend that the Supreme Court should not have cited Booras’ dissent in its opinion, which overturned a Court of Appeals ruling in their favor and which was issued nearly a month after the discipline panel’s report.
The panel found Booras breached her duty by telling a third party about a confidential discussion the panel of judges had regarding the case.
“This breach of trust is fatal to an ongoing collegial relationship among the judges of the Court of Appeals, should Judge Booras remain on the court. Such a breach of trust is highly concerning on its own. But the fact that Judge Booras also included a racial epithet to refer to her Latina colleague, Judge Fox, about the Martinez case, which involved the lead plaintiff, Xiuhtezcatl Martinez, who is of Native American and Latino lineage, creates a double-barreled appearance of impropriety undermining the public’s trust that she acted without racial bias when dissenting in the case. This appearance of bias is accentuated when considering her prior reference to a Native American woman as ‘the squaw,’” the panel said in its report.
Julia Olson, co-counsel for youth plaintiffs, said the proceedings have been tarnished by Booras’ misconduct and bias.
“The Oil and Gas Conservation Commission and the oil and gas industry relied heavily on Booras’ dissenting opinion in their arguments to the Supreme Court and ultimately, the Supreme Court also cited her dissent and used it to find ambiguity in the law they were interpreting. Her dissent must be stricken,” said Olson. “The subsequent briefing, argument, and the Supreme Court’s decisions that were influenced by or relied on that dissent should also be vacated.”
The case began in 2013, when the group of young plaintiffs petitioned the COGCC to consider the health and climate impacts of oil and gas development. The commission rejected the petition and the suit was filed in 2014.
The young plaintiffs lost in district court, but the Colorado Court of Appeals reversed that decision, finding that it was within the commission’s authority to condition drilling permits on health and environmental impacts. Backed by industry groups such as the American Petroleum Institute, the National Association of Manufacturers and the U.S. Chamber of Commerce, the COGCC appealed and the Supreme Court heard oral arguments in October.
In a declaration submitted to the court, Martinez, 18, said he feels robbed by the justice system.
“To put this much time, energy and hope into this five-year legal battle only to find out the unanimous decision from my seven Supreme Court Justices to overturn the Court of Appeals decision in our case was based at least partly on a preconceived, unjust dissenting ruling influenced by racial bias is crushing,” said Martinez, adding that he wonders how far Booras’ prejudice towards Judge Fox extends to himself, his younger brother and the Latino communities disproportionately affected by oil and gas development.
“The fact that seven Supreme Court justices would continue business as usual even in the light of this alarming misconduct and recommendations for removal of Judge Booras is appalling,” said Martinez.
“Ignoring blatant racism and fairness that violates protocol and poses a threat to the integrity of a case this important is an act of racism in itself.”
Martinez is also a plaintiff in the landmark federal climate case, Juliana v. United States, currently under an appeal process in the Ninth Circuit Court of Appeals.