Drug Court Steering Committee Minutes

Drug Court Steering Committee Meeting (Unapproved)

July 8, 2008

U.W. Outreach Center

Casper, WY

Committee Members Present

Representative Keith Gingery, Co-Chairman

Senator Michael Von Flatern, Co-Chairman

Senator Kathryn Sessions

Representative Saundra Meyer

Nicky Anderson (Tony Lewis attended on behalf of Ms. Anderson)

Sue Chatfield

Honorable Richard Lavery

Steve Lindly

Rodger McDaniel

Honorable Michael Huber

Richard Bohling

Ross McKelvey

Dr. Cary Heck

Diane Lozano

Committee Members Absent

Honorable Keith Kautz

Wyoming Department of Health, Mental Health & Substance Abuse Services Division Staff

Korin Schmidt, Administrator for Policy & Planning

Eydie Trautwein, Interagency Coordinator

Enid White, State Drug Court Coordinator

Mary Campbell, Drug Court Coordinator Assistant

Others Present at Meeting

Kathy Williams

Christopher Knapp

Neal Madsen

Vicki Schofield

Sandi Henderson

Clara Orr

Anne Comeaux

Lora Davidson

Marty Hutckins

Susan Cahill

Kurt Zunker

Bryan Cook

Suzan Pauling

Executive summary

The Drug Court Steering Committee (“Committee”) met for one day in Casper, Wyoming for the sole purpose of working 09LSO-0051.W1, Drug Court Accountability and Treatment Act (“Drug Court Accountability and Treatment Act bill”). The Drug Court Accountability and Treatment Act bill is attached (See Appendix 1). No formal agenda was published. The Committee heard testimony from the Drug Court Panel, drug court coordinators, judges, attorneys and other interested stakeholders.

The Committee will tentatively meet via teleconference to vote on proposed legislation prior to the Joint Judiciary Interim Committee meeting in September, 2008.

Call to order (July 8, 2008)

Co-Chairman Von Flatern called the meeting to order at approximately 9:00 a.m.

Opening remarks, introductions and review of minutes:

Co-Chairman Von Flatern provided opening remarks.

Roll was called: Nicki Anderson, Dr. Cary Heck, and the Honorable Keith Kautz were absent at the calling of the roll.

Committee members provided introductions.

Minutes from the June 2007 meeting were distributed to the Committee. Senator Session moved to approve the minutes and Mr. Richard Bohling seconded the motion. There were no changes to the minutes. The June 2007 minutes were approved.

Public comment and presentation by the Drug Court Panel

Co-Chairman Von Flatern opened the meeting to public comment. Co-Chairman Von Flatern asked the public to keep their comments related to the Drug Court Accountability and Treatment Act bill and to not repeat comments already made by other individuals.

Rodger McDaniel, a member of the Drug Court Panel, offered comment related to the Drug Court Accountability and Treatment Act bill and explained that the Drug Court Panel instead proposed changes to the current drug court statutes. Mr. McDaniel stated that the Drug Court Panel’s proposed changes reflect the June 2007 Committee recommendations. Mr. McDaniel explained that the Drug Court Panel took the existing statutes and recommendations of the Steering Committee and brought them together.

Mr. McDaniel presented the proposed changes to the Committee (See Appendix 2, referred to as the “Drug Court Panel’s bill”).

Judge Huber asked whether any research had been done to see if the highlighted section on Page 4 complied with any insurance rules or how that entity would be insured or covered. Mr. McDaniel informed the Committee that no research had been done, at this time. Judge Huber than asked if the section on revocation on Page 8 meant that revocation hearings would be heard by another judge, not the drug court judge. Mr. McDaniel said that was correct, unless the participant agrees otherwise.

Co-Chairman Von Flatern thanked Mr. McDaniel for his presentation. At this time, Mr. Tony Lewis joined the meeting.

Lora Davidson, Drug Court Coordinator for Fremont County Juvenile addressed the Committee and presented a handout (See Appendix 3). She is very relieved by what was brought forward in Drug Court Panel’s bill. In general, she felt that the Drug Court Accountability and Treatment Act bill replicated the Drug Court Rules and Regulations and that a lot of what was in the bill could be placed in the Department’s rules and regulations and not in statutes. Further, she was very concerned about the fact that the Drug Court Accountability and Treatment Act bill did not incorporate anything inclusive of juvenile drug courts.

There was much discussion on the matter of District Court Commissioners and how the judiciary works in Fremont County.

At this time, Dr. Heck joined the meeting and was introduced to the audience.

Susan Cahill, Drug Court Coordinator for Campbell County Juvenile Drug Court Program addressed the Committee and presented a handout (See Appendix 4). Ms. Cahill mentioned that the language in the Drug Court Accountability and Treatment Act bill was adult drug court oriented. She wanted to see language incorporated in the bill that would deal with delinquency and adjudication matters for juveniles. She also wanted to see language added which would help place the whole family under the court’s rule. One of her main concerns was that family/juvenile court participants should not be counted the same way for the funding formula as adult court participants.

Co-Chairman Gingery explained that the Drug Court Accountability and Treatment Act bill incorporated abuse and neglect cases. Co-Chairman Gingery referenced W.S. 14-6-247 in the Drug Court Accountability and Treatment Act bill which deals with delinquency cases. Co-Chairman Gingery mentioned maybe family treatment courts should be under a different funding model.

There was discussion on whether or not CHINs was included in the Drug Court Accountability and Treatment Act bill or not.

During Ms. Cahill’s testimony, there was a discussion on the matter of District Court Commissioners presiding over drug courts. Co-Chairman Gingery pointed out that Commissioners can hear findings of fact and conclusions of law, and that final determinations of the matter must come from the District Court Judge. With a Commissioner, there is no way for immediate sanctions.

Vicki Schofield, Drug Court Judge for the Treatment Court of Sweetwater County addressed the Committee. Judge Schofield expressed her concerns regarding the Drug Court Accountability and Treatment Act bill. She felt that the drug court judges should have a larger voice. She invited the Committee members to visit the drug courts to see how drug court function. She would like the Committee to better understand drug courts. She expressed her concern that Wyoming may be the first state in the union to dive bomb drug courts with legislation. She was worried about the wording in the Drug Court Accountability and Treatment Act bill that may compromise immunity. She mentioned the 2004 Attorney General opinion and stated that she was reassured that some of the legal issues were addressed by both Attorney General opinions. Judge Schofield felt that the changes in the Drug Court Accountability and Treatment Act bill could be counterproductive. She stated that if the Drug Court Accountability and Treatment Act bill passes, her court may need to close. The Drug Court Accountability and Treatment Act bill did not take into consideration what is really going on in the drug courts. She would like people to tell her that drug courts are actually courts. She believes the Drug Panel’s bill takes into consideration the current system and tightens up the laws. The Drug Court Panel’s recommendation is more compatible with what is going on in the drug courts. She would like to know why the other drug court judges were not there.

Co-Chairman Gingery commented that the Drug Court Accountability and Treatment Act bill was not his personal Bill. Judge Hartman brought the national model bill to his attention and suggested using it. He did state that he had added a few things to the Drug Court Accountability and Treatment Act bill after speaking with various district court judges, circuit court judges, and from suggestions during an impromptu meeting at the state bar. He had spoken with different lawyers and they reviewed the Drug Court Accountability and Treatment Act bill and he reworked it. Some of the judges he spoke with liked his changes. His main concern was why the national model drug court law would kill her drug court?

Judge Schofield replied that the Drug Court Accountability and Treatment Act bill created a county agency and asked the judiciary to oversee that agency, which she cannot do. She has no authority and no jurisdiction to oversee a county agency. The other reason was that there is a vast difference of opinion between the judiciary with the intent of this bill. Judge Huber asked Judge Schofield if there were any other issues of the Drug Court Accountability and Treatment Act bill that she was against. Judge Schofield mentioned that re-entry courts should not be tracked the same as drug courts, that there should be no mention of pre-adjudication in the bill, and that the bill did not address misdemeanors. She further had oversight and due process worries, and pointed to the section of costs for clients mentioned on Page 25 of the Drug Court Accountability and Treatment Act bill. Judge Huber asked if these issues could be cleaned up, if that would address her worries. Judge Schofield answered that it might.

Co-Chairman Gingery informed the Committee that the section on the re-entry courts came from a request by the parole board. He only added the language as a favor to the parole board. Judge Schofield asked the Committee not to remove anything that would be beneficial to the drug court program but felt that the Drug Court Accountability and Treatment Act bill should not lump all courts together.

Co-Chairman Gingery stated that the courts should not handle pre-adjudication hearings, only post. He mentioned that the definition of recidivism is in the Bill because of the sections which mention statistics and felt there needed to be a definition for the term. The definition he used came from the national model. He explained that the section on expenses to the client also came directly from the model law. He felt that this section forces the client to have some buy-in. The county language insures the money is flowing through somebody. He felt that this took the burden off the judges. He modeled the county section after the model used in Teton County.

Anne Comeaux, Teton County Adult Coordinator addressed the Committee. Ms. Comeaux addressed what she felt the goals of any legislation should be. She felt there absolutely needed to be flexibility in the statutes because we are a rural state, and the courts have limited staff. She appreciated the fact that the bills took out the requirement of federal grant applications. She would rather have the opportunity to seek the funding rather than having it as a requirement. She appreciated the fact that the Drug Court Panel drafted the alternative amendments. Her main concern is flexibility for accountability because not all counties are the same. She added that the Wyoming Drug Court Association would like to help in any way possible in formulating any new legislation.

Christopher Knapp, County Commissioner from Campbell County addressed the Committee. He stated that most counties do not feel that the drug courts should be serviced by the county governments, but rather should be under state judicial branches for funding. He felt that the state should come up with adequate funding for drug courts. He pointed to Page 13 subsection (b) of the Drug Court Accountability and Treatment Act bill, and voiced concerns over the lack of clarification about what type of employees were mentioned. Further, under subsection (c) the terms receipts and expenditures should be added. As a county commissioner he would support the amendments set out by the Drug Court Panel.

Brian Christenson, Assistant District Attorney Natrona County addressed the Committee and presented a handout (See Appendix 5). Mr. Christenson did mention that he liked the amendments set out by Drug Court Panel and thinks the Committee could use the best of both proposed bills.

There was discussion on whether CHINS cases should be mentioned in any sections dealing with juvenile drug courts. Judge Huber mentioned that in CHINS cases, there is a prohibition against punishment.

Co-Chairman Gingery mentioned that the Drug Court Accountability and Treatment Act bill contained sections addressing voting by the management committee. Judge Huber suggested the following language for that section: “The drug court judge shall in any event retain final decision making authority.”

Kathy Williams, Campbell County Drug Court Coordinator addressed the Committee and stated that her court did not want to see a standardized fee schedule. Co-Chairman Von Flatern reminded her that there are already rules and regulations on how fees are set. He felt the local drug courts should work with the Department of Health on fees. Co-Chairman Gingery stated that his intent was not for the state to set the fees, that fees should come from the individual drug courts. He thinks fees should be compensatory. He never envisioned the state setting any amounts. Kathy Williams commented that she had heard a rumor that adult drug court judges will not have immunity. She wanted to let the Committee know that she agreed with Drug Court Panel’s proposed bill.

Senator Sessions informed the Committed that there was a lot of misrepresentation of people’s opinions regarding drug courts and the Blanton decision. She also stated that she would be willing to work on a combination of the two proposed bills.

Neal Madson, Sheridan County Adult Drug Court Coordinator provided a handout to the Committee, but did not address the Committee (See Appendix 6).

The Committee adjourned for lunch.

After lunch, Co-Chairman Von Flatern informed the Committee and the floor that the Committee was going to work the Drug Court Accountability and Treatment Act bill and the possible amendments. All suggestions should be done in the form of Motion with no second.

Senator Meyer mentioned that she was concerned that the Drug Court Accountability and Treatment Act bill did not come from the Committee as a whole, and she had discomfort with the fact that the bill came from one person.

Co-Chairman Gingery outlined the history of how the Drug Court Accountability and Treatment Act bill came about. He stated that there were two (2) bills about two (2) sessions ago, one with Casper getting more money for inpatient treatment and one authorizing re-entry courts. He mentioned that there was controversy surrounding those bills. Around the same time, there was an audit of the drug courts. On the House side the Steering Committee was formed and the Committee set out seven (7) objectives. He thought that the judiciary would come up with a bill and not the Drug Court Steering Committee. He did draft the Drug Court Accountability and Treatment Act bill as an individual and Co-Chairman Von Flatern agreed to be the co-sponsored. The Drug Court Accountability and Treatment Act bill comes from Judge Hartman’s suggestion that there should be a model law, and the Drug Court Accountability and Treatment Act bill essentially copies the model legislation. He has also talked with judges and lawyers about the wording contained in the Drug Court Accountability and Treatment Act bill. He mentioned that he is on the judiciary committee but does not know why they did not take up the bill. He has no problem with Sen. Meyer’s suggestion that we do not take up a bill today. He felt the Committee could make suggestions of what might be in the bill. He also mentioned that he did not feel that there were accusations leveled toward any judges. He is not married to the Drug Court Accountability and Treatment Act bill and stated that he proposed the bill and he likes drug courts. He just wants the programs to work.

Sen. Sessions mentioned that she sees procedural problems with this Committee working the Drug Court Accountability and Treatment Act bill. She mentioned that there is usually an LSO attorney that helps set up the bills. She has no problem taking some from the Drug Court Accountability and Treatment Act bill and from the proposed amendments offered up by the Drug Court Panel, and working them together. Her suggestion was to take the suggestions from the Committee to John Rivera to see if he could put something together. Though there are good parts in both bills, she felt there were parts that the Committee had no business addressing. She understood also that the judiciary committee did not want to use the Drug Court Accountability and Treatment Act bill. Part of the problem is due to the fact that municipal courts were excluded. She is not willing to leave some courts out.

Co-Chairman Von Flatern mentioned that the Committee cannot recommend a bill to the Judicial Committee, but that this Committee could give the Judicial Committee an outline so that the LSO could draft a bill correctly. His thought was that this Committee would work the Drug Court Accountability and Treatment Act bill, turn it over to the LSO and then give it to the proper legislative committee.

Copies of the National Model Act were distributed to the Committee for reference (See Appendix 7).

Judge Huber moved and Sen. Meyer seconded going through the Drug Court Panel’s proposal (referred to as the Drug Court Panel bill) first and then adding portions of the Drug Court Accountability and Treatment Act bill if need be. The lone opposition to this motion wasCo-Chairman Gingery.

Mr. McDaniel explained that the Drug Court Panel’s proposed changes. He also moved that the word “court” should be inserted after “Drug” and before “participant” on Line 24, Page 1.

Discussion was held on why the language on Page 2, Subsection (b) beginning with “not to exceed…year” was deleted. Mr. Mc Daniel stated that when the statutes were first adopted the appropriation was for six (6) courts and that is why the $200,000 limit was used.

Dr. Heck asked for the wording “in drug court programs” be stricken from Page 1, subsection (i) because it was redundant. After discussion the wording was stricken.

Discussion was held on the wording on Page 2, subsection (c). Mr. McDaniel explained this language would allow the Division to apply a funding formula which could eliminate the requirement for county matches. The idea is that the Division would have a funding formula which would create a base for the drug courts and then the courts would be able to add on to their funds if need be. Dr. Heck mentioned that not all expenses would be covered by the state funds. Some courts would not be able to function without funding from city/county support as additional funding. This language as it is written will take the leverage out of court’s hands to get matching funds. Mr. McDaniel sees the lever as the fact that the drug courts will only have a portion of the funds come from the formula. In order to maintain the courts at the level they have now, they will need outside sources. Co-Chairman Von Flatern questioned whether this would cause a downward spiral with less money and less clients each year. Mr. McDaniel stated that if the court used only what was available under the state funding they would have to scale back on their program. Senator Sessions inquired whether there should be language that required contributions from the city/county as a buy-in to the court. She felt that the drug courts needed a local buy-in. She proposed leaving the following language: “The department of health shall make recommendations regarding a proportionate contribution from each participating county.”

Further discussion was held on Mr. McDaniel’s suggestion that after the word “department” on Line 19 that some language be incorporated regarding a local contribution. Co-Chairman Von Flatern stated the contribution should be non-state funding. Mr. Bohling stated that his county does not fund the court and if everyone wants to call them courts, the wording should be consistent. He questioned why the counties should be required to kick monies in. Sen. Sessions reminded Mr. Bohling that counties pay for a lot of what the district and circuit courts do already. This is no different. Sublette County was required to get a courthouse ready for a state paid judge. Campbell County had to do the same. Mr. Bohling suggested the state pay for the drug court and the counties pick up what they normally pick up for the other courts. He further stated that he has no judges in his county that believe drug courts are courts and he wants to be treated like other courts not a sentencing option. Judge Huber agreed that the funding formula was long past due and that there needed to be language that encouraged county contributions. Co-Chairman Von Flatern wanted to make sure that the language stayed away from state money being used for in-kind matches. He suggested inserting: “Should require a contribution by either monetary or in-kind by the local courts of non-state funds.” Mr. Bohling wanted language that required the counties to provide the facilities where the drug courts are held and make available such staff as the court may require. He thinks the drug courts should run just like any other court, if this is indeed a court. Sen. Sessions moved to add Co-Chairman Von Flatern’s language. In subsection (c) after “[t]he department…participating county…” add “[t]his contribution shall include facilities provided by the county.”

Discussion began on whether the drug courts should be official courts or not. Judge Huber asked if the Committee could go back to W.S. § 5-10-101(a). In this subsection he wanted to add the following “[t]he… state for drug court programs …. (delete criminal justice system). He further proposed: “ Therefore be it in enacted that the legislature will create drug courts throughout the state---subject to the local courts fulfilling their requirements set forth in this act, and a commitment by the local municipalities and counties to facilitate and support those drug court programs.” Co-Chairman Von Flatern asked if the Committee wanted to make drug courts official courts and Judge Huber replied yes. Ms. Lozano stated she felt if this was the case, the word “program” should be stricken from the proposed Drug Court Panel bill. Co-Chairman Von Flatern asked if the word “court” is used, does that automatically make them a court. Judge Huber explained the language of the state constitution which allows for the making other courts. He stated that you may be able to say that the legislature sees the need for drug courts, the legislature has exercised its constitutional authority to make drug courts, and therefore, the argument that they are not a court is removed because the legislature says it is a court. Co-Chairman Von Flatern was not sure how that worked. Mr. Bohling stated that that was how circuit courts were formed. He pointed to W. S. §5-9-102 which created circuit courts. He further stated that he thought that the legislature has the ability to make such inferior courts as they deem appropriate and necessary. Co-Chairman Von Flatern felt that as long as this did not require every county to set up a drug court, he was fine with the language proposed by Judge Huber. Sen. Sessions asked if the Committee wanted to take on any specialized courts at this time and Co-ChairmanVon Flatern thought the Committee should just deal with drug courts at this time.

Mr. McDaniel suggested taking the language from the circuit court statute and inserting it in after the language that Judge Huber suggested in subsection (a) on Line 10 of Page 1. Co-Chairman Von Flatern questioned whether all of subsection (a) under W.S. § 5-10-101 should be re-titled to incorporate this new language, which would cause a renumbers of the rest of the section. He further felt that the term “program” would also be needed to be deleted from the proposed bill. Judge Huber moved that the Committee re-title subsection (a) to read that “the legislature recognizes that … to addiction.” Then pick up an adaptation of the language from 5-9-101 saying as a new sentence “pursuant to the provisions of Article 2 Section 10 of the Wyoming Constitution, drug courts are hereby established for each judicial district in the state of Wyoming upon local compliance with further provision of this act and upon a showing of a local support by the municipalities in the given areas.” This would give the counties the right to create drug courts upon local compliance with the provisions of this proposed bill and there would not be blanket compliance. Co-Chairman Von Flatern wanted to insure that each court understood that just because of this new language has been inserted, the courts must still follow the eligibility requirements and that there may not be enough money for every court. Judge Huber agreed that everyone should have to go through the same steps to become eligible for state funding.

Co-Chairman Von Flatern proposed that the term drug court would be generic for family, juvenile, and adult courts.

Mr. Lambert suggested the following language: “[p]ursuant to Section 10 Article 5 of the Wyoming Constitution drug courts are hereby authorized - established”. Co-Chairman Von Flatern asked whether any court that fills out the paperwork would automatically become a court? Judge Huber answered that he would not like to make it automatic, there must be steps that each court must go through. He prefers the word “may” in this situation. He would like to see language that says “authorized after following the steps set out in the act…”. Judge Lavery offered the following language: “drug courts are authorized in the district, circuit or municipal court in the state”. This language would tie the court to the existing courts. He did not feel that the Committee should be creating a whole new jurisdiction. He further offered that the bill should say something like: “upon the following conditions” – whatever they are, and maybe tied to financial funding availability.

Ms. Schmidt asked if it was the intent of the Committee to make the statute applicable to all drug courts regardless of whether they receive funding from the Department of Health. Judge Huber did not want to see a hodgepodge of programs. He felt if the court wanted to be called a court that they had to follow the legislation otherwise they should be called something else. Mr. McDaniel questioned how this would affect Converse County (who currently has the Monitoring and Accountability Program “MAP” program). They essentially have a problem solving court, but they do not call it a drug court. They follow the tenants of drug courts. Judge Grant has a juvenile court in conjunction with the Department of Health and the Department of Family Services. He did not want to put them out of business. Judge Huber echoed Mr. McDaniel’s sentiments. But he reiterated the fact that if the Committee makes drug courts a court, with judicial functions, that there should be certain standards that are followed. He stated that if you want to be an official state sanctioned drug court, then you must follow the statute. If you want to be something else, do not expect the same benefits – i.e. immunity and funding.

The Committee adjourned for a short break.

After the break, Co-Chairman Von Flatern recapped what had occurred. He reiterated the fact that the term “program” should be stricken from the Drug Court Panel’s bill – in the proper places. The purpose and goals language would need to be reworked as set out above.

In Subsection (c) of W.S. §5-10-102, Co-Chairman Von Flatern suggested inserting the following: “that should include a requirement of a contribution of a monetary or in-kind amount of non-state funds.” Mr. Lewis asked if there would be a percentage or a set amount for county funding. Co-Chairman Von Flatern thought that it should be an amount to be determined by the Department.

Discussion was held on the language in W.S. §5-10-103(a), lines 30 and 31 and it was agreed that the word “the” would be inserted between “provide” and “funding”.

Further discussion was held on whether there needs to be a definition of the word “program” when it is used in the proposed bill. It was decided to not define program, and to just insert the word “the” in subsection (a) of Section W.S. § 5-10-103, and that should take care of any question.

In subsection (b), of W.S. § 5-10-103, a the Committee discussed the requirement of a “chairman of the board of judicial policy and administration” as part of the Drug Court Panel. It was decided that this language should not change.

Co-Chairman Von Flatern referred to subsection (a) of W.S. §5-10-103 and wondered if the section should be moved in its entirety to W.S. § 5-10-102 because it does not belong in W.S. § 5-10-103. It was agreed to move the language to W.S. § 5-10-103 and make it subsection (e).

In discussing W.S. § 5-10-104, Mr. McDaniel explained a local drug court management committee versus a “team”. The team is the treatment team that reviews cases and make recommendations as opposed to managing the operations of the drug court. Co-Chairman Von Flatern wondered if the judge should participate in the management committee. Judge Huber did not feel that there would be as much of a separation of powers issue with the new language.

Discussion was held on whether the term “court commissioner” should be left in the proposed statute. Judge Huber asked that it be removed and that the following language should be inserted instead: “judge or circuit court magistrate in counties where no circuit court judge is in residence will preside over the local drug court”. His reasoning was that (a) he feels real judges should be handling drug court matters; (b) he does not want to tinker with the guidelines and recipe of creating and running a drug court; and (c) he does not want to see hearing examiners hired for this position. He felt that the term “court commissioner” should be taken out due to the limitations placed on court commissioners. Sen. Sessions asked if removing court commissioners would hurt courts in counties where they are short on judges. Judge Huber stated that all the literature he has read says that a drug court judge should be a real judge. He did not want to see the duties shuffled off on to a part-time judge. He moved to delete “court commissioner” from subparagraph (i) and instead insert “judge or magistrate in counties where no circuit court judge is in residence who presides over the drug court”. Discussion was held on the commissioner matter and the motion was defeated.

Dr. Heck moved to allow members of the audience to be heard on the issue of court commissioners. Ms. Kathy Williams with the Campbell County drug Court stated that there are times when Judge Perry is absent from the drug court but is still in the county. The commissioner sits in on drug court proceedings and they use the court commissioner about 90% of the time when Judge Perry is in county. Judge Huber said he understood the dilemma but he agrees with Co-Chairman Gingery in that commissioners may not have authority to pass judgment.

The term “absent from county” was discussed by the Committee and Kurt Zunker read Art. 5, Sec 14 of the Wyoming Constitution which sets out district court commissioners duties. Co-Chairman Von Flatern felt that the language meant that the judge must be absent from the county or if the sitting judge is in the county they must have a reason for being absent from the court. He further understood this to mean that court commissioners were limited to those things that could be done “in chambers”. Judge Huber said this was different than the abilities of the circuit court magistrates.

Discussion was held on who the “drug court management committee” answered to under subsection (d) of W.S. § 5-10-104. Mr. McDaniel explained that the language is a little confusing because of the language “and enter into contracts on behalf of the drug court program” which should be deleted because it is covered on Lines 24 through 26 on Page 4. It was moved and passed that the language be deleted.

Mr. McDaniel explained that he struck Lines 16-18 on Page 4 because it is covered on Lines 28-30. He would like input from LSO lawyers with respect to Page 4, Lines 40 – 44, Page 5, Lines 1-2.

There was discussion on whether those employed by the drug courts should be state or county employees. Judge Huber suggested adding the following language to Page 4, Line 28: “employees who shall be state employees”. He would like to see the drug court employees become state employees, covered under the state retirement plan. He wanted to ensure that the drug court employees were a recognized entity. He was further worried about respondent superior matters in regard to liability. He questioned whether there should be a footnote so the LSO or AG could come up with language covering this matter.

Discussion was held on how Laramie County handles their employees and if drug court were made state courts, why are they county agencies? Co-Chairman Von Flatern thought the employees should remain county employees. Judge Huber asked, why, if drug court are courts would the employees not be state employees? He wanted language that made it clear what agency the employees were governed by. It was mentioned that the Drug Court Accountability and Treatment Act bill did not clarify this point either. It was decided that the matter should be worked out later as long as there was some entity to employ the drug court employees.

Co-Chairman Gingery suggested someone contact Monty Laurer of the Local Governmental Liability Pool (“LGLP”) to inquire as to whether or not the LGLP would insure the employees of the drug court and how they would insure them. LGLP has the liability insurance coverage for the counties. He felt that there may be coverage if the employee was part of the county. He suggested also looking at the water and sewer statutes for guidance.

Co-Chairman Von Flatern moved to table the discussion on how the drug court employees would be employed until more research could be done.

Co-Chairman Gingery stated that he does not see that the Drug Court Panel’s bill gives any protection to any of the drug court employees, the state does not protect them, and the county does not protect them. He stated that the Drug Court Panel’s bill is a mistake.

Discussion was held on Line 40 of Page 4 the “[s]ue or be sued” clause. Judge Huber would like to see subsection (v) of W.S. § 5-10-104 cleaned up. Co-Chairman Von Flatern mentioned that once the bill ties the employees into a governmental entity, then there would be immunity. Mr. McDaniel suggested asking Monty Laurer if he has any suggestions on how to tie the employees into the county agencies.

Co-Chairman Gingery reiterated that the proposed legislation made drug court employees kind of their own legal entity. He sees this as cutting all ties with any other agencies. He knows that Teton County would not have anything to do with drug courts if the the Drug Court Panel’s bill went through. He does not think counties will want to be liable for something they have no say in and no control over.

Much discussion was held on how to tie the courts into either the state or a county. All agreed that the matter needed to be cleared up. Judge Huber again stated he thought that the employees should be state employees. Sen. Sessions and Co-Chairman Von Flatern both voiced their concerns over not having coverage for the employees. Co-Chairman Von Flatern was not sure how to create a new state agency. Dr. Heck mentioned that most states tie into some entity and there are even some that have 501(c)(3) status. Sen. Sessions asked if the proposed bill could insert language that required the employees to be employed by either the city, county, joint powers board as a requirement to apply to be a court.

Mr. Bohling stated that in Albany County they checked with Monty Laurer and Mr. Laurer was quite comfortable in assuring them that the employees would be covered under LGLP as long as they were county employees. If the drug court is stand alone, he is not willing to extend the same privilege.

Sen. Session moved that on Page 4, Line 28, language should be inserted that would set out that the drug court employees shall be employees of a local public entity – counties, cities, joint powers boards. Judge Huber seconded the motion and mentioned the following terms “local public entity” or “governmental entity”. After some discussion the motion was withdrawn and the Committee decided to let the Attorney General say how to handle this matter. Mr. Bohling said there are still questions on why they would not be employees of the judiciary and thus the state. He wants to make sure everyone understands these are courts and it is logical that the members of the staff are members of the judiciary branch.

Discussion was held on where to insert the language “and as a condition of probation”. The reasoning for the discussions centered around the Blanton decision. By inserting this language it would clarify that drug courts are a condition of probation, which would also give the judiciary the direction and allow the judicial branch the ability to make rules of procedure about how you sentence someone to drug court, etc. Co-Chairman Von Flatern asked if the language should go on line 33 after the word “committee” or at the end of line 34 on Page 7.

Mr. Bohling asked to go back to Page 6 under subsection (a). He suggested placing the following verbiage in the section: “the primary residing drug court judge should be one that is trained in the principals of the 10 fundamentals of the drug court program and is a duly appointed judicial officer”. He felt that this language should be a new subsection (xi) and that it would define what a real drug court judge was. Judge Huber thinks that the suggestion should be “judicial officer resides over a drug court shall be trained in the principals of the 10 fundamentals of the drug court, etc…..” Co-Chairman Von Flatern asked whether the training requirements should be added. Mr. Bohling wanted to insure that the word “primary” was used. He stated that substitutes could be used, but the primary should be a duly appointed judicial officer, which includes judges, commissioners, and magistrates. He further wanted to insure that training requirements or information from the National Drug Court Judge school is incorporated.

Dr. Heck wanted to know if the term probation would hurt family courts, because family courts do not have probation matters per se. Co-Chairman Von Flatern suggested adding an “and/or” clause with the language on probation. Mr. McDaniel felt that there should be some additional Title 14 language which allows judges to involve parents in the treatment plan of the children. Discussion was held on 301 deferrals, juvenile and family court cases and consent decrees. Judge Huber suggested adding the word “adult” in subsection (a) of W.S. § 5-10-108 after “a” and before “drug”. He further suggested making a new subsection (b) which dealt with juvenile and family courts. His suggestion was: “participation in a juvenile drug court program shall be permitted subsequent to an adjudication in a juvenile court, or pursuant to a consent decree satisfying all the requirements of title 14 and meeting the requirements of this act.” This would help alleviate the concerns expressed by Judge Kautz in previous meetings , specifically that some courts may be jumping the gun without adjudication or consent decrees.

The Committee discussed language on Page 8, line 1 and Dr. Heck suggested the following: “[i]n the event that a drug court deems a participant failed, the prosecutor may file a motion to terminate and there shall be a hearing on the motion to revoke probation and that motion shall be heard by a different judge.”

Discussion was also held on whether a new judge would come in to revoke the participant’s probation. Judge Huber felt revocation should be held like any normal revocation matter and moved to insert the following language: “[i]n the event that the drug court deems a participant to have failed the program, then the prosecutor may file a motion to revoke their probation. That motion shall be heard by a judge, other than by the drug court judge, unless waived by the defendant.” Judge Huber wanted to make it clear that the drug court judge does not have the authority to revoke probation. The prosecuting attorney should have the authority to say that there should be a revocation and there should be a full scale revocation hearing. Ms. Lozano stated that she felt due process issues were covered in subsection (d) of W.S. § 5-10-108. Judge Huber’s motion to change the wording was denied.

Mr. McDaniel’s motion to add the word “expel” and add “terminate” on Page 8, Line 4 was carried.

Mr. Bohling asked to make sure that an “s” was placed after the word “court” where necessary.

Sen. Sessions asked if the language on Page 35 of the Drug Court Accountability and Treatment Act bill could be included in Drug Court Panel’s bill. Sen. Sessions was informed that that language came from an existing statute and would need to be worked later.

Co-Chairman Gingery stated he would like all Committee work done prior to August 1 for submission to the Joint Judiciary Interim Committee. He stated it may be best to circulate the Committee’s work via e-mail and votes can be made via e-mail. He stated that the Committee may want to re-draft the Drug Court Panel’s bill, and have it sent around to be voted upon so that there is an actual vote on who voted for and who against. He wanted the minutes to reflect that he is strongly opposed to the actions of the Committee today and that it runs counter to the national model. He stated that the actions taken by the Committee at this meeting will hurt drug courts.

Co-Chairman Von Flatern asked that the Division prepare changes to the bill. Co-Chairman Von Flatern asked that the Committee members read the bill and vote via e-mail. He would contact the judiciary committee chairs and ask for an extension of the August 1 deadline.

Sen. Sessions stated she wanted to ensure that the employee questions were not forgotten. Mr. McDaniel stated he would speak with Monty Laurer and see how options connect.

Mr. McDaniel mentioned that there is still time to look at the model act. He stated that the model act requires all counties to have drug courts and that this is the main difference between the model act and the Drug Court Accountability and Treatment Act bill. He asked the Committee to take a look at the model act and discuss whether the Committee definitively wants to say that drug courts are courts and that every county must be required to have one. The model act says that if the county does not have a court, they could loose their eligibility for certain services. It is a very strong statement.

Dr. Heck presented a revised funding formula paper and provided information about the funding formula and 2008 addendum to the original funding formula paper (See Appendix 8). Dr. Heck reported that the outcomes were not that different from a year ago. He did want to point out that he is strongly suggesting that programs apply for a certain number of slots per year in order to get the maximum funding.

Sen. Sessions requested additional information about drug courts, specifically scenarios or models from other states operating drug courts.

Meeting Adjournment

Co-Chairman Von Flatern adjourned the meeting at approximately 5:00 p.m.

Committee Meeting Materials Index

Appendix	Appendix Topic	Appendix Description	Appendix Provider
1	Drug Court Legislation	09LSO-0051.W1, Drug Court Accountability and Treatment Act (“Drug Court Accountability and Treatment Act bill”).	Co-chairman Von Flatern and Gingery
2	Changes to existing drug court statutes	Changes to existing drug court statutes W.S. 5-10-101 through 107 (also referred to as the “Drug Court Panel’s bill”).	Drug Court Panel
3	Written Comment	Written Comment	Lora Davidson, Fremont County Juvenile Drug Court
4	Written Comment	Written Comment	Susan Cahill, Campbell County Juvenile Drug Court
5	Written Comment	Written Comment	Brian Christenson, Assistant Di strict Attorney Natrona County
6	Written Comment	Written Comment	Neal Madson, Sheridan County Juvenile Drug Court
7	Drug Court Legislation	Model State Drug Court Legislation: Model Drug Offender Accountability and Treatment Act	N/A
8	Drug Court Funding Formula	Funding Problem-Solving Courts: Developing a funding strategy and formula for Wyoming’s specialized courts and 2008 Addendum	Dr. Cary Heck