Being a Legal Eagle: Confidentiality, Ethical and

LADCP April 13, 2012
National Drug Court Institute
Developed by Hon. William Meyer (Ret.)
Presented/Modified by Hon. Peggy Fulton Hora (Ret.)
Senior Judicial Fellows
Drug Court Resources
Confidentiality, ethics and legal issues chapters in
Drug Court Judges’ Benchbook
Legal link on National Drug Court Resource Center listing all drug court related cases
Is provider a covered entity?
Health care provider, payee or biller using electronic
transmission of private health care information (PHI)
Does the court have in place a order that allows the
transmission and disclosure of potential PHI in the court
45 CFR 164.512 (a), (e) release as required by law or
during administrative or judicial proceedings
HIPPA, cont.
Does your consent form tell the drug court
participant that there is this order and that
potentially PHI will be released to the drug
court team as a condition of his participation
in drug court?
45 CFR 164.508(b)(4)
See: Drug Court Judicial Manual for sample forms
HIPPA, cont.
Contrary to myth, HIPAA covered entities do
not include the courts, court personnel,
accrediting agencies like JCAHO and law
enforcement personnel including police or
probation officers.
GAINS CENTER, “Dispelling the Myths…” Feb. 2007
Confidentiality issues
HIPAA (not applicable to court)
Are there firewalls for electronic reporting?
Releases legal? Updated with personnel changes?
TIP: When reviewing files for phase advancement,
review releases, waivers, etc., for accuracy
TIP: Every time there is a change in personnel, change
release forms
Confidentiality Issues
Mental health & substance abuse releases of
information covered by 42 CFR
Up-to-date releases
Must balance maintenance of the public record with
Who collects, maintains, retains sensitive
Who has access to it?
Permitted and Mandatory Disclosure
Valid Court Order
Child Abuse and
Cause of Death
Medical emergency
Crime on premises
Entity with:
admin control
QSO-legal, billing
Mandatory disclosure
Motion to Compel disclosure of identify of
drug court participants cannot be denied
on basis of confidentiality if information is
relevant to discovery in a civil rights case
United States District Court, E.D. Michigan, Southern Division. Joseph Raymond HANAS, Plaintiff, v.
INNER CITY CHRISTIAN OUTREACH CENTER, INC., et al., Defendants. Civil Action No. 06-CV-10290-DT.
Feb. 20, 2007.
Confidentiality = Closed Courtroom?
The provisions of 42 CFR 2.35 and the need for
open courtrooms required denial of motion to close
Sec. 2.35:
a. need to disclose as a condition of
participation in program
b. disclosure only to those in criminal justice
system on a need to know basis
c. consent
Courtroom as classroom/theatre
“Additionally, and equally as important, drug court
status hearings must be open to all participants so
that all participants can observe each other’s
successes and failures.
“Every participant must be able to observe other
participants’ status hearings because the hearings
and the interaction with the drug court judge are
an essential part of the treatment program.
“The drug court participants who are observing, gain
encouragement by seeing that other participants can
become drug free and that the program works.
“The hearings also give the participants the
opportunity to see what sanctions may be imposed
and thereby help them to avoid the same
behavior.... “
Florida v. Bush, Circuit Court FL (2002)
Former participant may call DC Ees
Drug court employees may be called to testify about
whether another drug court participant (potential
witness) had recently been in trouble for his conduct in
drug court
They could also testify as to whether he had received
favorable treatment for testifying against defendant
Supreme Court of Wyoming. Kilen Patrick DYSTHE, Appellant (Defendant), v. The STATE of Wyoming, Appellee
(Plaintiff). No. 01-125. Feb. 19, 2003.
Best Practices
Assume Confidentiality Laws apply
 Designate someone on the team to be
Confidentiality Compliance Officer
 Provide CCO with resources
 Your Consents should cover HIPAA, open courtroom
and voluntariness
Best Practices, cont.
Follow the rule of minimization
 Obtain an Administrative Judicial Order for
 Update your Releases regularly
 Document your privacy policies
Constitutional Issues
First Amendment
Establishment Clause
First Amendment Establishment Clause
Working the twelve steps requires:
Confess to God “the nature of our wrongs” (Step 5);
Appeal to God to “remove our short comings” (Step 7);
By “prayer and meditation” to make “contact” with God to
achieve the “knowledge of his will” (Step 11).
Estalishment, cont.
Kerr v. Ferry, 95 F.3d 472, 479-80 (7th Cir. 1996)
(prison violated Establishment Clause by requiring
attendance at Narcotics Anonymous meetings which
used “God” in its treatment approach);
Griffin v. Coughlin, 88 N.Y. 2d 674 (1996) cert.
denied 519 U.S. 1054 (1997) (conditioning desirable
privilege – family visitation – on prisoner’s
participation in program that incorporated Alcoholics
Anonymous doctrine was unconstitutional as violation
of the Establishment Clause);
Establishment, cont.
Inouye v. Kemna, 504 F.3d 705 (9th Cir. 9-7-2007,
amended on 10/3/07)(Parole officer lost
qualified immunity by forcing AA on Buddhist)
Hanas v. Inter City Christian Outreach, 542 F. Supp.
2d 683 (E.D. Mich. 2/29/08) (Drug Court
program manager and drug court consultant held
liable for actions related to referral to faith
based program, where they knew of participant’s
objections while in the program and when the
program denied the participant the opportunity to
practice his chosen faith –Catholicism)
Not all is lost
O’Conner v. California, 855 F. Supp. 303, 308 (C. D. Calif.) (no
Establishment Clause violation where DWI probationer had choice over
program, including self-help programs that are not premised or
monotheistic deity)
In Re Restraint of Garcia, 24 P.3d 1091 (Wash. App. 2001) (same)
Americans United v. Prison Fellowship, 509 F.3d 406 (8th Cir. 12/3/07)
(state supported non-coercive, non-rewarding faith based program
unconstitutional First Amendment establishment clause violation, where
alternative not available)
Alternatives to AA/NA
LifeRing Recovery
 Secular Organizations for Sobriety/ Save Our
Selves (SOS)
 SmartRecovery®
First Amendment
Area Restrictions
First Amendment and Area Restrictions
Who uses place and area restrictions?
Reasonable when narrowly drawn:
Whether the defendant has a compelling need to go through/to the
A mechanism for supervised entry into the area;
The geographic size of the area restricted, and
The relatedness between the restriction and the rehabilitation needs of
the offender.
See People v. Rizzo, 362 Ill. App. 3d 444 (2005).
First Amendment
Association Restrictions
Association Restrictions
Watch who you hang out with
Not necessarily know that they are drug users or felons;
look at what associates are doing and where they are
Jones v. State, 41 P.3d 1247 (Wyo. 2001) (persons of disreputable
character); State v. Hearn, ___ P.3d ___ (Wash. App. 2/6/06) (prohibition
against associating with drug users or dealers constitutional); Birzon v. King,
469 F.2d 1241, 1242 (2nd. Cir. 1972); Commonwealth v. LaPointe, 759 N.E.2d
294 (Mass. 2001).
Permissible or Overbroad?
“Persons with disreputable character”
 “Drug dealers”
 “People on probation”
How do they come to court or go to group?
Fourth Amendment
Search and Seizure including Drug Testing
Fourth Amendment and Related Issues
Search of person on probation and parole does not
require probable cause
Reduced expectation of privacy and special need to
control recidivism
Griffin v. Wisconsin, 483 U.S. 868 (1987); U.S. v. Knights, 534 U.S. 112 (2001).
No reasonable suspicion needed
In parole case, mandatory search waiver constitutional
and totally suspicionless search is upheld.
Like Knights, but goes further because does not make a
finding of reasonableness, but notes cannot be
“Tearing Down a Pillar of Fourth Amendment
Protections” Harvard Law Review
Sampson v. California, 547 U.S. 843 (2006)
Search waivers in non-convicted cases
Compare State v. Ullring, 741 A.2d 1065 (Me. 1999)
(search waiver as condition of bond constitutional);
and In Re York, 9 Cal. 4th 1133 (Calif. 1995) (same)
Terry v. Superior Court, 73 Cal. App. 4th 661 (Cal.
App. 1999) (4th Amendment waiver improper
condition in diversion case, without statutory authority)
and U.S. v. Scott, 450 F.3d 863 (9th Cir. 2006) (search
waiver probably improper when person on bond)
Random Drug and Alcohol Testing
Distinction between convicted vs. non-convicted status
As a condition of bond or pre-trial release must be
reasonable and based upon individual assessment
Steiner v. State, 763 N.E. 2d 1024 (Ind. App. 2002); Oliver v. U.S., 682 A.2d
186, 192 (D.. 1996); State v. Ullring, 741 A.2d 1045 (Me.1999);
Drug Testing TN
P terminated from community corrections/drug court
Ordered to serve his sentence in confinement
Positive test results from drug patch which he claims
was unreliable
Testified he had never failed a urinalysis test during
his entire time in drug court
No abuse of discretion
P not a credible witness since previously revoked for
positive tests
Court of Criminal Appeals of Tennessee, at Jackson. STATE of Tennessee v. Justin VAULX.
No. W2008-00772-CCA-R3-CD. Assigned on Briefs Jan. 6, 2009. May 13, 2009.
What kind of test?
Roche Varian On Trak TesTcup
No violation of due process
Misc.3d 1011(A), 2004 WL 2495849 (N.Y.Sup.), 2004 N.Y. Slip Op. 51326(U) Supreme
Court, New York County, New York. The PEOPLE of the State of New York v. Luis DIAGO,
Defendant. No. 6252/03. Nov. 3, 2004.
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Due Process of Law
What to “Due” before cuffin’ and
Due Process
Procedural protections are due under the due process
clause when the defendant will potentially suffer a
loss to a recognized liberty or property right under
the 5th/14th Amendment.
If due process applies, the question remains what
process is due.
Fuentes v. Shevin, 407 U.S. 67 (1972)
Morrissey v. Brewer, 408 U.S. 471 (1972)
Tribal Courts
Court did not follow its policies and procedures in
Without proper notice of the intent to revoke, the
due process provisions of the Indian Civil Rights Act
are violated
The Blackfeet Tribe vs. Deamarr Rutherford, Defendant. Case No. 00-AC-41. Opinion/Order. August 16,
Adult Rights=Juvenile Rights
Juvenile proceedings must be in conformity with the
essentials of due process and fair treatment as
guaranteed by the Due Process Clause of the Fourteenth
Amendment of the Constitution of the United States.
In re Gault, 387 U.S. 1(1967); In Re R.W.S. 2007 ND 37
"[N]either the Fourteenth Amendment nor the Bill of Rights
is for adults alone." In re Gault, 387 U.S. 1, 13, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).
Nicholas v. People, 973 P.2d 1213 (Colo. 1999); IN RE CT, 2006 WY 101, 140 P.3d 643 (2006)
Do Due Process?
Parole Morrissey v. Brewer 408 U.S. 471 (1972)
 Probation Gagnon v. Scarpelli 411 U.S. 778 (1973)
 Pre-Plea Diversion Wood v. U.S. 622 A.2d 67 (DC Cir., 1993); Deurloo v. State
690 NE2d 1210 (Ind.Ct.App., 1998) Contra WA and NJ
Post-Plea Diversion State v. Rogers, 170 P.3d 881 (Idaho 2007)
Due Process
People v. Anderson, 833 N.E.2d 390 (Ill. App. 2005); State v. Cassill-Skilton, 122 Wash. App. 652 (Wash. App. 2004);
Hagar v. State, 990 P.2d 894 (Ok. 1999).
Discussion Question
When participant enters into drug court and signs
the contract he/she waives their right to a hearing.
It’s a matter of contract law, not Constitutional law.
It’s a contract
Due process concerns are therefore sufficiently allayed through
the contract-based means commonly used to remedy breaches
of agreements between the State and a defendant.
By this opinion we do not wish to dissuade a judge from
following termination procedures in drug court akin to those
employed in a probation revocation process. To the contrary, in
order to eliminate uncertainty and the appearance of
unfairness, we encourage courts to do so.
What is recommended is not, however, the equivalent of what
is required.
STATE v. ROGERS, 31264 (Idaho Ct. App. 8/22/2006)
Appellate Court reversed
Supreme Court of Idaho did not even mention the
contract analysis
Key was diversionary program where guilty plea
entered thus due process was required
Rogers Reversed State v. Rogers, 170 P.3d 881 (Idaho 2007)
How much jail invokes DP?
Any loss of liberty triggers Due Process rights.
 Jail time of more than 6 days increases
recidivism rates
Courts that use jail greater than 6 days have worse
(higher) recidivism
Elements of a Due Process Hearing
(1) written notice of the time and place of the
(2) disclosure of evidence;
(3) a neutral fact-finding body or person;
opportunity to be heard in person and to present witnesses
and documentary evidence;
(5) the right to cross-examine adverse witnesses; and,
(6) a written statement by the fact finder as to the evidence
relied on and the reasons for revoking the conditional liberty
What’s missing?
No Federal right to counsel – state mandate
Gagnon v. Scarpelli, 411 U.S. 778, 781-782 (1973)
No counsel at termination hearing
Due process rights not violated by not having counsel
represent probationer at drug court termination
“Drug Court" is not a "court" in the jurisprudence
sense it is a drug treatment program administered by
the court system
Termination from drug treatment program not subject
to due process protections any more than
participation in a private drug treatment program
would have been
Court of Appeals of Kentucky. Keith Aaron DUNSON, Appellant, v. COMMONWEALTH of Kentucky, Appellee. No. 1999-CA001253-MR. Aug. 3, 2001. Case Ordered Published by Court of Appeals Oct. 5, 2001.
Record and Due Process
Given the therapeutic component of problem-solving-court
programs, we are not prepared to say that each and every
action taken in such a proceeding must be a matter of record.
But we have no difficulty in concluding that when a judge of a
problem-solving court conducts a hearing and enters an order
affecting the terms of the juvenile's probation, the proceeding
must be on the record. We agree with other courts which have
held that where a liberty interest is implicated in problemsolving-court proceedings, an individual's due process rights
must be respected.
IN RE INTEREST OF TYLER T., 279 Neb. 806 (2010)
Recent Due Process/Drug Court Cases
Participant had no opportunity to participate in the termination decision.
When deciding whether to revoke Harris' liberty and impose the terms
of the plea agreement he was entitled to the opportunity to be heard
regarding the propriety of the revocation of his liberty interest.
HARRIS v. COMMONWEALTH, 279 Va. 541 689 S.E.2d 713 (Va. 2-25-2010)
In termination from drug court, due process rights include:
written notice of the claimed violations, disclosure of the evidence against him, an
opportunity to be heard and present evidence, the right to confront and crossexamine witnesses, and a neutral and detached hearing body
GOSHA v. STATE, 48A02-0912-CR-1210 (Ind.App. 5-28-2010)
Nebraska's Supreme Court ruled that the state
carries the burden of proving an offender should
be expelled from a post-conviction drug court
program and that it should not be up to that person
to prove why he or she should not be.
STATE V. SHAMBLEY 281 Neb. 317 (2011)
Hearsay at termination hearing
At a termination hearing the minimal due process rights
an offender possesses include the right to confront
adverse witnesses, unless good cause exists not to allow
the confrontation.
A court may consider alternatives to live testimony
including affidavits and other documentary evidence
that would otherwise be considered hearsay.
However, hearsay evidence should be considered only
if there is good cause to forgo live testimony.
Court of Appeals of Washington, Division 1. STATE of Washington, Respondent,
v. Eddie James FRANCIS, Appellant. Nos. 59771-0-I, 59772-8-I, 59773-6-I. July 21, 2008.
What if it’s not a termination?
When intermediate sanctions are going to be
imposed, what Due Process is due?
Is there a difference between weekend garbage
pick up and writing an essay?
What about increasing testing?
Does changing level of care require a hearing?
What if it’s going from IOP to Live in?
No hearing rights for non-custodial sanctions
Many diversionary programs are informal in nature, and we do
not want to unnecessarily impede the functioning of
diversionary programs.
The principles articulated in this opinion apply only when a
participant in a diversionary program is facing termination
from the program because that is when the participant faces a
loss of liberty.
Intermediate sanctions imposed in these programs do not
implicate the same due process concerns, and continued use
of informal hearings and sanctions need not meet the
procedural requirements articulated here.
State v. Rogers, 170 P. 3d 881 (Idaho 10/22/07)
Involuntary Placement in Drug Court
Juvenile drug court program as a special term of
standard probation
Involuntary placement in drug court does not violate
due process, equal protection, 5th Am. right against
self incrimination
Court of Appeals of Arizona, Division 1, Department E. In re MIGUEL R., In re Jose J. Nos. 1CA-JV 020016, 1CA-JV 02-0072. Feb. 25, 2003.
5 /14
Equal Protection
Discretionary entry or exclusion
Is it a suspect class or does it involve a
fundamental right? STRICT SCRUTINY
Is it a semi-suspect class? IMMEDIATE SCRUTINY
Not suspect class or fundamental right? RATIONAL
Drug Court is not a “Right”
There is no Constitutional right to participate in
Drug Court
United States District Court, W.D. North Carolina. Brent JACOBY, Plaintiff, v. BUNCOMBE COUNTY Drug treatment
PROGRAM et., al, Defendants. No. 1:09CV304-03-MU. Aug. 13, 2009.
Equal Protection
Defendant excluded from drug court because he was HIV positive
Equal protection challenge
Americans with Disabilities Act challenge
Held: Rational relation to legitimate government interest because
medical regimen too complicated to participate in Drug Court.
ADA does not apply because drug court is not an Activity of
Daily Lliving (ADL)
Evans v. State, 293 Ga. App 371, ___ S.E. 2d ___ (Ga. App. 8/22/08)
No Right to Hearing for Rejection
May defer to the DA’s decision about admission to DTC
DA may be gatekeeper for admission
New Jersey v. Jones, Superior Court Appellate Division, 5-19-09
People v. Forkey, NY 4-8-10
District Court of Appeal of Florida, Third District. Samson LOUIS, Appellant, v. The STATE
of Florida, Appellee. No. 3D08-506. Nov. 12, 2008.
BUT exclusion by DA re:“gang membership” reviewed and
rejected by judge OK. High standard.
New Jersey v. Woodward, Superior Court Appellate Division, 6-8-11
5 /14
Double Jeopardy
Double Jeopardy
Juvenile participant broke curfew and mistreated
animals—sanctioned in drug court
 53 days later DA filed new charges
Double jeopardy?
1. Sanction in JDC like probation revocation
2. VOP not a stage of criminal proceeding—
not guilt or innocence but compliance with terms of
supervision so no double jeopardy
In Re O.F., 2009 ND 177 (10/13/09)
Miscellaneous Legal Issues
Drug Court Credits?
P “flunked out” of drug court and was sentenced to prison
Is P entitled to sentencing credits for the time he spent in the
drug court program?
We don’t know although we suspect _____
Not proper grounds for appeal
Court of Criminal Appeals of Tennessee, at Nashville. STATE of Tennessee v. Noah Chris RUSS.
No. M2007-00676-CCA-R3-CD. Assigned on Briefs Aug. 14, 2007. March 10, 2008.
Appeal from the Circuit Court for Lawrence County. Court of Criminal Appeals of Tennessee, at Nashville. STATE
of Tennessee v. Jimmy CANTRELL.
No. M2007-00048-CCA-R3-CD. Assigned on Briefs Aug. 15, 2007. Dec. 18, 2007.
Appeal from the Circuit Court for Rutherford County, No. F-47455
Grounds for Termination
Threatening the staff and threatening suicide are
sufficient grounds for termination
“Treatment resistant”
May be related to his medication for Parkinson’s
Termination upheld
Court of Criminal Appeals of Tennessee, at Knoxville. STATE of Tennessee v. Daniel GONZALEZ, Jr.
No. E2009-01863-CCA-R3-CD. Assigned on Briefs Aug. 24, 2010. Jan. 12, 20
More grounds
Falsifying peer support group attendance cards
Lied to the court
“Drug court participants are entitled to the same
minimal due process rights as persons facing
alleged probation, parole, SSOSA, or conditions of
sentence violations.”
Court of Appeals of Washington, Division 1. STATE of Washington, Respondent, v Lorenzo BELL,
Appellant. No. 59784-1-I. April 27, 2009.
FTA and Absconding
Failed to report
Didn’t attend court review
Sufficient grounds to revoke and resentence to state
Court of Criminal Appeals of Tennessee, at Knoxville. STATE of Tennessee v. Daniel GONZALEZ, Jr.
No. E2009-01863-CCA-R3-CD. Assigned on Briefs Aug. 24, 2010. Jan. 12, 2010
Best Practices
Provide a secular alternative to AA or
written waiver
 Place and Area restrictions rationally
related to rehabilitation and narrowly
 Written, knowing 4th Amend. Waiver
Provide DP protections at sanctions hearing if
participant denies factual basis and jail possible
Provide equal access to drug court participation
to all and be sure ground for exclusion pass
Defendant can recuse Judge for revocation, or
written waiver
Ensure participant knows what (s)he getting into
(Boykin advisement)
LEGAL ACTION CENTER, “Confidentiality and Communication”, (LAC 2006)
NDCI, “Ethical Considerations for Judges and Attorneys in Drug Court” (May
NDCI, “Federal Confidentiality Laws and How They Affect Drug Court
Practitioners” (2001)
NDCI, “Critical Issues for Defense Attorneys in Drug Court” (2003)
GAINS CENTER, “Dispelling the Myths…” Feb. 2007
Chapter 9 in Drug Court Judicial Manual available on line at

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