Chapter 10 - § 10.16 • LEGAL AND ETHICAL ISSUES FOR JUDICIAL OFFICERS
| Jurisdiction | Colorado |
§ 10.16.1—Ex Parte Communications
When serving on therapeutic or problem-solving courts such as DUI courts, judges may assume a more interactive role with the parties, treatment providers, probation officers, law enforcement officers, and others. Rule 2.9 of the Colorado Code of Judicial Conduct (Code) requires that a judge not initiate, permit, or consider ex parte communications. However, a judge may initiate, permit, or consider any ex parte communication when expressly authorized by law or by consent of the parties to do so. Rule 2.9(A)(5). This exception applies to problem-solving courts. Rule 2.9, cmt. [4]. A judicial officer presiding over a DUI court is unlikely to run into problems with this ethical requirement so long as the program is voluntary and the participant is fully informed prior to entry into a program that conversations will be had and decisions may be made outside the presence of the participant that directly affect the participant's short-term and long-term program obligations.
§ 10.16.2—Sanctions and Due Process
The processes in a problem-solving court relax rules that would otherwise guarantee a participant's due process rights under the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution for other court processes. For example, notice and a hearing is typically required to sanction noncompliance in a regular probation setting, with a full panoply of associated rights such as the right to counsel and the right to require that the prosecution meet an evidentiary burden of proof. In a problem-solving court setting, the participant may be sanctioned quickly, without the court first observing all of the rights associated with a termination hearing beyond providing the participant an opportunity to speak to the court before the imposition of the sanction.
Appellate decisions have confirmed that the problem-solving court process, including the imposition of immediate sanctions, does not violate a participant's due process rights, so long as the participant was fully informed prior to entry about the process, including the suspension of those rights for sanction purposes, and so long as the participant's continued involvement with the program is voluntary. See, e.g., State v. Rogers, 170 P.3d 881 (Id. 2007) (intermediate sanctions imposed in diversionary programs do not implicate the same due process concerns as termination proceedings, and continued use of informal hearings and sanctions need not meet the procedural requirements for termination proceedings). Even jail has been found to be available as an intermediate sanction in a voluntary program for a participant without the full provision of due process protections. See, e.g., Commonwealth v. Nicely, 326 S.W.3d 441, 449 (Ky. 2010) ("Because drug court is a treatment program, monitored and enforced by the court . . . the trial court has the authority to modify a defendant's probation rather than revoking him for program violations. This modification may include requiring the defendant to serve days in jail."); Mullin v. Jenne, 890 So.2d 543 (Fla. App. 2005) (a court is not prohibited from using incarceration as a sanction for participants who choose to remain in a voluntary program, but a defendant may opt out of the program when in violation of program rules).
However, other appellate decisions have found that the provision of due process is required when jail will be the likely sanction. For some courts, the severity of the sanction may impact whether the participant is entitled to restoration of due process rights. The length of jail time, or the extent to which a court has attempted less onerous interventions before resorting to jail, can influence an appellate court's perception as to whether a jail sanction is available without first granting the participant full due process protections. Compare Taylor v. State, CR-15-0354 (Ala. Crim. App. Sept. 9, 2016) (a hearing held prior to the imposition of 21-day jail sanction, at which the trial court received testimony regarding substance testing procedures and at which the defendant was represented by counsel, did not violate the defendant's due process rights), with Tennessee v. Stewart (Tenn. App. Aug. 18, 2010) (not selected for official publication) (leaving aside the due process concerns attendant to any additional deprivation of the defendant's liberty imposed through a collaborative, non-adversarial, and at times ex parte process, there is considerable tension between the general guidelines under which a drug court should operate and the five or six lengthy jail sanctions in the instant case totaling approximately six months). But see State v. Brookman, 190 A.3d 282, 299 (Md. 2018) (even a sanction involving one overnight in jail required the provision of due process rights prior to imposition).
The due process extended must, at minimum, allow a participant to respond to the report of an infraction before a sanction is imposed for the infraction. Best Practice Standards at 30. The provision of a more expansive hearing before the imposition of jail as a sanction for a challenged violation, even if truncated and accommodated on the same day as the court's announcement of the possible use of jail as a sanction, is considered a best practice by the standards put forward by the National Association of Drug Court Professionals. Id. at 33.
However, for a participant who denies committing the infraction being sanctioned, at least one prominent problem-solving court jurist advocates for providing a hearing with additional due process rights akin to those granted for a termination hearing when the sanction under consideration is jail. Drug Court Judicial Benchbook at 172. And, at least one court has found that, pursuant to state rule and due process, extended rights apply before a jail sanction can be imposed when the infraction is contested. "An opportunity to be heard is meaningless if the result...
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