Drug Court Steering Committee Minutes for May 24, 2007

Drug Court Steering Committee Meeting Information

May 24, 2007

U.W. Outreach Center

Casper, Wyoming

Committee Members Present

Representative Keith Gingery, Co-Chairman

Senator Michael Von Flatern, Co-Chairman

Senator Kathryn Sessions

Representative Liz Gentile

Nicky Anderson

Sue Chatfield

Steve Lindly

Rodger McDaniel

Hon. Michael Huber

Richard Bohling

Ross McKelvey

Dr. Cary Heck

Hon. Keith Kautz

Diane Lozano

Chief Justice Barton Voigt

Committee Members Absent

Bob Lampert

Hon. Richard Lavery

WDH-Mental Health & Substance Abuse Services Division Staff

Korin Schmidt, Administrator for Policy & Planning

Others Present at Meeting

Susan Cahill

Brian Christensen

Lora Davidson

Holly Hansen

Lee Kempler

Clara Orr

Dan Wilde

Kurt Zunker

Call to Order

Chairman Von Flatern called the meeting to order at 8:15. The following sections summarize the Committee proceedings by agenda item. Please refer to agenda from May 24, 2007 meeting.

Approval of Minutes

Rodger McDaniel moved to approve the minutes from the April 18, 2007 meeting. Sen. Sessions seconded the movement. The motion passed.

State Funding Model

Dr. Cary Heck gave a PowerPoint presentation on a proposed funding model. (See handout.)

Mr. Steve Lindly commented that the Drug Court Panel has traditionally struggled with funding. This year it recommended a straight across the board cut. There has been traditionally a lack of guidance or structure in how to make those decisions.

Rep. Gingery asked what the Committee should do with the principals proposed by Dr. Heck (see handout) and if they belong in statute or rule. Mr. McDaniel responded that Wyoming Department of Health (WDH) could implement the principals as rules but would like input from the Steering Committee. Sen. Von Flatern stated it could be advantageous to include legislation requiring the establishment of a funding formula. He also pointed out that the formula will need to take the match requirement into account.

Recommendation

It was moved and seconded that the Steering Committee recommend an amendment to current statute requiring that WDH shall establish by rule and regulation a funding formula based on an amount per client. The motion passed.

Legal entity structuring

Senator Von Flatern referenced points made in an email from Rep. Gingery to the Committee, specifically mentioning two issues. The first refers to Rep. Gingery’s proposal that the Board of County Commissioners should control all funds, be the contracting body for all contracts, and the Drug Court Coordinators and other staff be employees of the county. The second issue is a proposal that WDH would issue funds appropriated from the Legislature to each county based on the estimated number of clients. WDH would also be the contracting agent for all treatment contracts.

Rep. Gingery asked under what legal authority do courts act to sign contracts and write checks. The committee discussed and considered various models of how drug courts should be legally structured including:

Funding should go the County Commissioners and drug court staff become county employees;
WDH issue funding to counties for drug court expenses and let WDH write contracts with the treatment providers;
Make the drug courts a permanent part of a state agency or judicial branch

Committee members expressed concern with requiring funding to go to county commissioners because the program could be susceptible to one county commissioner who chooses to not allow a court to start or to no longer apply for funding for an existing courts.

Chief Justice Voigt stated that drug courts are court based drug treatment programs and should not be considered a court. The judge’s role is to put people in the system which offers those types of programs. Therefore, the program belongs in the executive branch, not in the judicial branch. The money should flow through WDH to the counties which will prevent mixing the two branches. The counties could create a body that runs the program at the county level. WDH should develop standards and rules for the program.

Judge Keith Kautz agreed with the Chief Justice. He also expressed concern with running the program solely at the state level. The advantage is that the local program avoids instability because of county commissioners. The disadvantage is that if the local program is run by a state agency it may be less sensitive to local needs and the program needs county ownership. He suggests defining a management committee that manages the funds in statute which should not include the judge to eliminate the separation of powers argument. [Point of clarification on management team versus treatment team. Judge Kautz believes the judge should not be a member of management team but could be a member of the treatment team.] Rodger McDaniel also expressed concern about running local programs from the state office.

Judge Michael Huber suggested that the Committee look to the national drug court standards for structure. He expressed concern with taking the judge out of the loop, even in management decisions. He also thinks funding needs to come from a permanent source and move away from a grant scheme for on-going courts.

Committee members discussed that the applying entity should be a governmental entity such as a county or municipality and allow communities to decide. Senator Sessions suggested that the Committee poll the county commissioners or municipalities to determine if this is an acceptable option to them.

Senator Von Flatern asked about the possibility of a state agency directly overseeing local programs. Mr. McDaniel responded that he would be uncomfortable with that model as successful drug courts are very much community programs and putting it in Cheyenne would take away flexibility. He suggested that the contracting agency be a local government entity. Rep. Gingery voiced concern about the treatment contracts the courts have with local providers. He asked that since WDH regularly works with the providers and has a better sense of what is feasible and plausible for treatment needs, could WDH act as the contracting agent for local drug court treatment? Mr. McDaniel replied that it may make some sense in the Department’s effort to drive performance measures in our contracts and provide more uniform treatment. WDH could determine if the provider met the standards, set the rates and sign the contract. He stated that WDH would want to work with the local drug court in a competitive bid process and help the local drug court choose the provider. Judge Huber suggested that the ultimate goal for the courts is to hire their own therapists.

Committee members discussed the option requiring that only local government entities (county or municipal) apply for state drug court funding and that drug court staff would be employees of that entity. Some committee members stated that it was important to provide the communities with a choice on which legal entity in case one entity did not want to support the drug court. Ms. Diane Lozano asked what would happen if a no local entity wants to do it and there exists already a drug court? Dr. Heck asked about the courts that cover more than one county. Chief Justice Voigt stated that the Committee was arguing one step down the road. He stated that that the money could go to the local entity that contracts with the state. From there it could go to numerous courts within the county. He suggested not creating a court in each county but a program that is available to all judges within that county. Judge Kautz stated that the goal is to try to think about the right way to do this jurisdictionally and not come up with “stew” that incorporates everything that exists now. Mr. McDaniel discouraged the Committee from developing a “one size fits all” model and not allowing communities to make these choices.

Rep. Gingery suggested that this Committee recommend that only the county be allowed to be the contract agency for drug courts and all employees become county employees. He also recommended all drug courts should be moved to the circuit court level because municipal courts end up carrying the load for when circuit court fails. He also cited the Evanston Juvenile Drug Court’s use of Department of Family Services probation officers. Ms. Nicky Anderson clarified that DFS probation officers act as a resource to the court but do not provide supervision. He also stated that courts could refer cases to the circuit level drug court.

Rep. Gentile stated that she would like more information on what’s going on in the state including how each court is administered and operated. She feels like there isn’t a way to make an informed decision based on what has been presented.

Mr. Lindly cautioned the Committee to consider how the recommendations for circuit and municipal courts impact the role of the juvenile justice. Sen. Session noted that its important to work with all three courts (municipal, circuit and juvenile) and not to ignore municipal court because the majority of juvenile delinquent cases starts in municipal court. Rep. Gingery acknowledged that there’s a strong push to put juveniles in circuit court.

Chief Justice Voigt asked if the counties would be limited to one court. Sen. Von Flatern responded that that determination could be made by rule or the Drug Court Panel.

Recommendation

It was moved and seconded that the Steering Committee recommend that only local government entities such as a municipality or county can apply for state drug court funding and that drug court staff would be employees of that entity. The motion passed.

General Discussion

Rep. Gingery wanted to relay some of the information he gathered since the last meeting including opposition to drug courts by some legislators, that National Transportation Safety Board (NTSB) lists DUI courts last on their list to make road safer from drunk drivers, and that drug courts lack support in President Bush’s administration. He considered why the Teton Co. Adult Drug Court is effective. One common thought among team members is that the probation officer meets with the client more often which begs the question is the money better spent on the Intensive Supervision Probation (ISP) program? He suggested changing the Addicted Offender Accountability Act to include drug court programming if it’s the probation aspect that’s effective. He expressed concern that it seems to becoming an entitlement program with no accountability and the courts want no oversight. He stated he is real close to saying no to drug courts.

Judge Huber responded that he is not surprised that the NTSB came up with their finding. He commented that DUI courts are not the direct focus of that group.

Mr. Richard Bohling asked that if it’s an executive branch program and only using the judicial branch, do the programs need the judges. There are principals that have come out of drug courts that may not include the judge so is there a way we can do this in the executive branch and not abandon the principals?

Mr. McDaniel stated that that in order to do a service to the Legislature that this Committee needs to resolve the issues raised in Rep. Gingery’s email beginning with his questions on the data and research. Rep. Gingery hears from others the assertion that drug courts don’t work but Mr. McDaniel cited two Wyoming specific reports that indicate their effectiveness. He also stated that federal budget cuts do not suggest there is no support for the program and cited a report indicating the Bush administration’s support for drug courts. He stressed the need for the Committee to detail what data there is, what it shows, and where it’s short. He stated it would be helpful is to have comparative data to other sentencing alternatives and suggests that the Steering Committee recommend that the state study the efficacy of the other sentencing options.

Rep. Gentile asked if drug courts should be called Court Sanctioned Treatment (CST) and stated that she believes they work but wondered if they are a waste of time or money.

Dr. Heck replied that treatment works but only if a client goes to treatment. Attrition rate for treatment is 90% in the first 90 days, even when court ordered. Drug courts ensure treatment attendance. He also stated that empirical data shows that the judge is key in the success of clients with prior treatment failures and co-occurring disorders. There is a lot of data that suggest drug court work, but the question is which aspects make it work.

Sen. Sessions stated that the judge is key in the programs.

Judge Kautz expressed skepticism about the statistics including who is allowed to participate and if courts “cherry pick” clients to improve the data. He also wondered if it is more cost effective than other kinds of interventions. He stated it is hard to get fair analysis determining if drug courts are the best way and if there a place for them. Ms. Lozano reported that after 13 years of watching increased meth use, she believes the best chance to help the system is drug courts. She also stated that having the judge involved ensures due process. Dr. Heck stated that research indicates that drug courts are most effective with high risk clients. He also suggested that one of the findings of this Committee might be that we commission research to determine if the judge is the reason why the court is effective and for whom is the judge effective. Judge Huber commented that their screening process picks the worse and rejects cases that don’t fit the guidelines.

Review of Drug Court Standards

Dr. Heck stated that these standards are very specific to drug court process (see handout). They are not meant to be broadly defined mission statements or program goals. For accountability the state needs to look for things that are measurable. The Committee discussed the various referral methods used by Drug Courts and other operational issues such as the informed consent waiver to participate, confidentiality issues and when client information gained in the drug court could be used outside of drug court. Judge Kautz asked about the legal status of the client during this process. Rep. Gingery noted that judicial rule is essential to address how the courts operate. Judge Huber noted that when important issues come up, his program refers to the 10 Key Components. He stated that if a drug court is functioning under the correct definitions and guidelines, questions on confidentiality, informed consent, etc. will be answered.

Sen. Von Flatern asked what the Committee was expected to do with the standards. Mr. McDaniel responded that the Department would like their input. Dr. Heck suggested that perhaps judicial rule be promulgated prior to the approval of the standards

Judge Kautz expressed concern about the legal status of drug court clients and the courts authority in regard to that status. He suggested that the statute be changed to state to define at what point in the legal process can clients participate in the drug court.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that would require all client participation in drug court to be post-adjudication, 301 referral or by consent decree. The motion passed.

Judicial Rules

Rep. Gingery was thinking about the role of the judge and other officers of the court and suggests that this committee make the recommendation that the Supreme Court promulgate rules to address issues such as when or if the public defender can recommend sanctions or when the prosecutor does or does not have to act on revealed information.

Chief Justice Voigt cautioned the Committee to remember that these are not courts so they would be asking the Supreme Court to write rules on something that’s not a court, and that the rules for attorneys are found in statute. He stated that the Supreme Court can promulgate rules on procedure and there may be some procedural areas that could be covered such as ethics, judicial immunity, separation of powers and due process. He encouraged the Committee to put the system and structure in place and then ask the Court for rules where appropriate or perhaps a better fit would be within WDH rules.

Judge Kautz expressed the need for some definition in statute and to consider the following which could then indicate how drug courts work and where the authority is:

Allowing the Court to require the defendant to complete the program as a condition of probation. If this were to become law, the role of municipal court judge would need to be considered.
Once a judge participates in the treatment part of the process, the judge can’t participate in any part of the judicial process in the underlying case.
General statement of the ability of the drug court program team to impose sanctions.
Do any sanctions result in a right to hearing?

The ethical rules he stated need to be addressed are:

Client confidentiality
Modification of the Ex parte rule

The Committee put forth the following recommendations in response to Judge Kautz’ request for definition in statute.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that would allow the court to require completion of [drug court] as a term of probation. The motion passed.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that allows the judge to impose sanctions in a [drug court] for violations of the conditions of that [drug court]. The motion passed.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that that provides for a hearing prior to termination of [drug court]. The motion passed.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that that lists the sanctions available to a [drug court]. Motion carried

Chief Justice Voigt asked if the Committee is going to recognize that as a drug treatment program, should this be in Title 9 instead of Title 5?

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that removes the drug court statutes from Title 5 and places them in Title 7 & 14. A division was called. Nine (9) voted in favor of the motion, four (4) opposed. The motion passed.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that prohibit a judge from participating in any further adjudication proceeding in the underlying case if that judge participated in the treatment [team] portion of the [drug court] program. A division was called. Nine (9) voted in favor of the motion, four (4) opposed. The motion passed.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that would prohibit [drug courts] at the municipal court level. The motion failed.

Recommendation

It was moved and seconded that the Steering Committee recommends a statute change that allows for an extension of probation for up to three years for participants in a [drug court] with parallel language added to the statutes on consent decrees. The motion passed.

Mr. McDaniel asked if the plan of the committee to put together a list of recommendations without review by the public? He cautioned that the Committee may be moving too fast and coming up with ideas that may not have the support of the Joint Judiciary Committee. He suggested that the Committee draft a preliminary report, distribute it and hold a public hearing and then make final recommendations in a report. He pointed out that these are huge changes to programs that have been around for some time and the Committee is making recommendations that have sweeping impact.

Sen. Sessions also stated that the changes need to go before the public for input and comment.

Further Discussion on the Collaborative model

There was general discussion on the three state level drug court models (see minutes from April 18 meeting). Judge Kautz stated that this issue is black and white in that this is anexecutive branch function and a collaborative model would dissolve the separation of powers. Mr. McDaniel responded that the structure the Committee discussed is collaborative but does not require the judiciary to be part of the management.

Sen. Von Flatern asked the Committee if they would prefer to table this discussion until the next meeting to give members the opportunity to review Dr. Heck’s paper on the different models. The Committee stated they would like to table the discussion.

Further Discussion of Creation of a Permanent Steering Committee.

Mr. Lindly, Drug Court Panel Chairman, stated that principal function of the Panel has been to distribute to funds. He had a question on the practicality of that and what kind of membership should be on it? He stated that the more formula driven the funding is the less input is necessary from the Panel. He indicated that this discussion should address the overall guidance that is needed and aside from fund distribution, what would be the role of some panel or steering committee? He went on to say that the panel’s role to date has been narrow but not very well defined and there has been no guidance as to the discretion of the panel. He asked the Committee what are they trying to gain for the long term and what is the role of a steering committee in the long term planning?

Sen. Von Flatern suggested morphing the legislation that created this into the panel statute. Rep. Gingery suggested not having a Panel and using the Steering Committee to discuss changes to standards, operations, and suggestions as to how to make this work better. He commented that by taking the funding away from the Panel, judges could participate without a concern of funding decisions.

After Committee discussion, Sen. Von Flatern noted that there does not appear to be support for the Steering Committee to usurp the panel. He asked Mr. Lindly to discuss with the Drug Court Panel if they have suggestions as to how the Panel could be provided with more statutory guidance. Sen. Von Flatern directed that any Committee recommendations on changes to the statute involving panel should be directed to Mr. Lindly.

Next steps

The Committee decided to allow for public comment at the next meeting. Committee members are to submit their date preference of June 25 or June 26 to Ms. Schmidt. Ms. Schmidt will write up the recommendations and submit them to the Chairmen for approval. After approval, the recommendations will be distributed to the Committee, Legislative Service Office and other interested parties.

Agenda items for the next meeting include:

Multiple problem solving courts coming on line and using separate pots of money to fund them.
Every county gets one court.
Discuss the role of juvenile courts and juvenile drug courts. Rep. Gingery expressed confusion as to why there are juvenile drug courts as the juvenile court already allows for the same things as a drug court. Suggestion to make it cleaner by having just adult drug courts

Ms. Susan Cahill responded to the proposed agenda item three with the following:

Juvenile drug court is different than the regular process.

Entire family goes to court every week
Unlike regular juvenile court, families in drug court come to court at the same time. Provides support to the youth in families.
Kids are in court every week for consistency and continual oversight. Exit interviews suggest that this is incredibly important.
Access to services and organized to provide more intense, upfront services.
Substance Abuse treatment is coordinated with family treatment. Team operates in a connected matter with continual contact…not like an MDT every three months

She also stated that she believed that Circuit Court would not work for juvenile drug courts because of jurisdiction and authority. She also commented that the Committee can not look at success for juveniles the same way as adults and it is important to understand the distinction between juvenile and adult drug courts.

Rep. Gingery commented that it seems like the juvenile drug court is compensating for a lack of effective juvenile court and expressed concern that drug courts could create a back log of cases. Ms. Cahill responded that the judges are very effective, but it is just not the protocol to operate juvenile court in the same manger. She also stated that when the drug courts started there was little guidance on the judicial process and no clear direction. Until now, drug courts have not been able to engage a large body like the Steering Committee. Sen. Von Flatern remarked that legislative point of view is around accountability and now hearing from judges that some programs might be overstepping boundaries.

Sen. Von Flatern asked if there were other comments. Hearing none, the meeting was adjourned 5:00 pm.