There are no ethical concerns from a judge continuing to participate in a specialty veterans treatment court if the district attorney’s office has withdrawn from the program, the Colorado Supreme Court’s ethics committee advised on Wednesday.

Colorado law permits chief judges of judicial districts to establish an “appropriate program for the treatment of veterans and members of the military.” The probation, district attorney and public defender offices are involved in developing the guidelines for the program.

An unidentified judge wrote to the Colorado Judicial Ethics Advisory Board to say that his DA’s office announced it would no longer participate in the veterans treatment court, effective Feb. 5. The judge sought guidance on whether he could continue to attend meetings of the specialty court. He was concerned about running afoul of the general prohibition on “ex parte” communications, which means communications that take place without notice to all interested parties.

The advisory board concluded the judge was within his rights to continue participating in the veterans treatment court, as the meetings are not ex parte. Rather, the DA’s office is aware of the meetings and is choosing not to participate.

“Even if those meetings were to be considered ex parte, the Code (of Judicial Conduct) provides that a judge is permitted to engage in ex parte communications as authorized by law or by consent of the parties. In this case, the VTC was authorized by statute and established pursuant to the requirements thereof, including through the participation of the District
Attorney’s Office,” wrote the board in a Feb. 4 advisory opinion.

A spokesperson for the judicial branch told Colorado Politics that District Attorney George Brauchler, who represents Douglas, Elbert and Lincoln counties, was the one who withdrew from his veterans treatment court. Brauchler, who served in the Army, wrote in a Jan. 6 letter that he is concerned the program encompasses too many people by not requiring a connection between a veteran’s service and their diagnosis, and by including those with dishonorable discharges.

“My decision to withdraw should not be interpreted as a rejection of treatment courts as a whole, nor as a departure from our strong commitment to supporting Veterans,” he wrote. “Rather, it merely reflects our disagreement with the current eligibility standards.”

The judge who requested the advisory opinion told the board that a steering committee set up his jurisdiction’s veterans treatment court. The participants included the court, probation officials, the prosecutor’s office, the public defender and the sheriffs’ offices. The specialty court is aimed at criminal defendants who are veterans with a behavioral health disorder. The goal is to help the defendants achieve sobriety and engage in treatment post-conviction, while they serve a probationary sentence.

Before the docket for the veterans treatment court is heard in an open courtroom, the various participants meet privately to discuss each veteran’s compliance with the terms of their probation.

“The attendees may also discuss whether the probation officer intends to file a complaint to revoke probation for noncompliance. Overall, the meeting attendees discuss how to help the VTC Participants succeed and comply with the terms and conditions of VTC probation,” the ethics panel described.

Attendance at the closed-door meetings is limited to entities that signed the memorandum of understanding establishing the program. But non-signatories may be present if they sign a confidentiality agreement. Any motions to terminate a defendant’s probation occur in open court.

When Brauchler’s office withdrew from the memorandum and stopped participating as of Feb. 5, the judge was concerned about continuing to participate in the closed-door meetings with everyone but the prosecution present.

The ethics board, consisting of judges, attorneys and a non-lawyer, concluded it was not problematic for the judge to continue his attendance.

“The judge’s role is more interactive and designed to be part of the team helping Participants to recover, achieve stability, and manage their recovery,” the board wrote. “As explained by the requesting judge, the information discussed in staffing meetings is the same information later discussed in open court on the docket — the meetings simply allow the entire team to work together to support Participants’ compliance.”