A federal judge vented his frustration on Monday at Colorado’s public defender office, repeatedly raising his voice and insisting the office violated a legal directive when it determined an indigent Larimer County couple did not qualify for appointed counsel in their pending criminal case.

U.S. Magistrate Judge Scott T. Varholak, who previously worked as a federal public defender and as a Pennsylvania state public defender, accused the Office of the Colorado State Public Defender of “screwing up” when it determined Sara and Dale Brubaker were not eligible for an appointed attorney, even though their 2020 household income amounted to only $1,400. Varholak read from the relevant court form, according to which the Brubakers qualified for public defender representation.

“I can give this to my 14-year-old and she could go through the form,” Varholak told the office’s lawyers. “This seems bigger than (the Brubakers’) case. And these two, I’m worried, are getting run over in the process. And that concerns me.”

The Brubakers’ civil lawsuit against the head of the public defender’s office, Megan Ring, as well as the leader of the Fort Collins office, Kathryn Hay, features three competing strands of caselaw woven together. First is the U.S. Supreme Court’s holding in the 1963 case of Gideon v. Wainwright that the Sixth Amendment guarantees poor defendants the right to appointed counsel in state criminal cases.

Second is the longstanding prohibition on federal courts interfering with or reviewing the decisions of state judges. Finally, a recently-issued decision from the Colorado Supreme Court affirmed that judges make the ultimate decision about whether a defendant qualifies for a court-appointed attorney.

Varholak, at the hearing on Monday, explained that his jurisdiction conceivably spans the narrow window between when the public defender’s office concluded the Brubakers were ineligible for representation and when a state judge issued an order formalizing that determination.

The couple is facing multiple charges in Larimer County, including for felony child abuse. They described themselves in their lawsuit as unemployed and elderly. The Brubakers submitted applications in April 2021 for an appointed attorney to defend them in the criminal proceedings.

According to Chief Justice Directive 04-04, a policy of the Colorado Supreme Court that governs appointments of counsel for indigent defendants, the Brubakers’ low income gave them a score of 150 points, which defined them as indigent and eligible for a public defender. There is a box for the public defender’s office to check to seek an exception to the policy, but the document clarifies that in “all cases, the court retains jurisdiction” to actually determine whether someone is indigent.

In late April 2021, the public defender’s office informed the Brubakers they did not qualify for a public defender due to their assets — mostly homes and savings valued at around $440,000. On May 3, District Court Judge Laurie K. Dean also agreed the defendants were not indigent. She acknowledged the Brubakers scored 150 points and were, by the terms of the form, eligible for a public defender. But she “construe(d)” the public defender’s office as asking for an exception to Chief Justice Directive 04-04.

“While there are some aspects of the financial situation (notably their lack of income) which give the Court pause, this is insufficient to overcome the unusually high amount of assets that the Defendants own,” Dean wrote.

Five months later, the Brubakers filed their federal lawsuit alleging violations of the Sixth Amendment’s right to counsel and asking Varholak to declare the public defender’s office acted unconstitutionally. In December, Varholak declined to grant an injunction against the office, while simultaneously voicing his belief that the public defender’s denial of representation was legally problematic.

“I do urge the state public defender to reconsider that decision, because again, I think that it was made in violation of both their own policies, and in violation of the Chief Justice Directive,” the magistrate judge said at the time.

The Colorado Attorney General’s Office — now representing their frequent opponents in the public defender’s office — asked Varholak to dismiss the lawsuit. Lawyers cited the “Rooker-Feldman doctrine” and “Younger abstention doctrine,” both named for Supreme Court cases. The doctrines preclude lower federal courts from interfering in state judicial proceedings or reviewing the decisions of state judges.

“Plaintiffs here had an opportunity to present their constitutional arguments to the state courts before turning to this Court. The fact that the state courts were not persuaded by their arguments does not equate to a denial of Plaintiffs’ constitutional protections,” wrote Senior Assistant Attorney General Andrew M Katarikawe.

In the Monday hearing on the defendants’ motion to dismiss, Varholak repeatedly clashed with the public defender’s lawyer, disputing that the lawsuit improperly inserts the federal court into the Brubakers’ state prosecution.

“I’m not questioning what the district court did. I’m questioning what your client did,” Varholak said. He read from Chief Justice Directive 04-04 and challenged Scott Schultz, of the attorney general’s office, to explain the public defender’s determination the Brubakers were not indigent, despite scoring the necessary 150 points.

“How is it that the public defender did not violate this provision when they said, ‘No, you’re not qualified’?” Varholak asked.

“The court always reviews the application,” answered Schultz, explaining that state judges are the final arbiters of indigency. Varholak reiterated that the order from Dean, the Larimer County judge, was not the issue. Instead, the problem was Chief Justice Directive 04-04 categorized the Brubakers as indigent, and the public defender’s office could have sought an exception in order to deny them appointed counsel.

“That’s not what they did. It’s just not. They violated the form,” Varholak said. “What prohibits me from saying, ‘Public defenders, stop screwing this up?'”

Further complicating matters, the Colorado Supreme Court issued a decision in January interpreting the indigency requirements of Chief Justice Directive 04-04. The court’s majority directed trial judges to look at a defendant’s “complete financial situation,” while emphasizing the decision of whether a defendant is indigent “ultimately lays at the court’s feet.”

But in that case, unlike in the Brubakers’, the public defender’s office maintained the defendant was indigent and deserved an appointed lawyer.

Varholak ultimately placed a pause on the civil case until the next court appearance on Oct. 13. The Brubakers’ attorney indicated the couple will reapply for representation with the public defender’s office based on a change in their financial circumstances. Depending on the outcome of that application, the federal case could end up being moot.

The case is Brubaker et al. v. Ring et al.