Source: Lake Geneva Regional News

Judge can’t donate services

by Chris Schultz

March 29, 2012

ELKHORN — Judge Robert Kennedy, who will retire from the Walworth County Circuit Court bench in July, wanted to return as a reserve judge to continue running the county’s OWI Court.

“I would volunteer to do it for free,” Kennedy said in a recent interview. “I don’t want the money.”

Unfortunately, Wisconsin doesn’t allow reserve judges to give it away for free.

And that may delay the county’s plans to start a drug court, which would treat controlled-substance abusers much the same way the OWI Court provides treatment to drunken drivers.

State statutes require reserve judges to accept a salary, Kennedy said. And with the state on an austerity budget, there’s no money for additional reserve judges, he said.

Temporary and permanent reserve judges are retired jurors whom the chief justice of the Wisconsin Supreme Court may call upon to help counties in which circuit judges are overwhelmed with work, or to handle cases in which judges have recused themselves.

County Administrator David Bretl expressed frustration with the rules and limitations that keep Kennedy from offering his services to the county.

The safe way to handle OWIs is to just lock up those convicted of three or more offenses and then take no responsibility for that person’s actions once they get out of jail, Bretl said.

“Here we’re striving for a more permanent solution,” Bretl said. “If the state would allow this, it would be a great boon to the county.”

Kennedy presides over the Walworth County OWI Court, which takes in three-time drunken driving offenders and puts them through a rigorous program designed to break their dependency on alcohol, and their tendency to drive while drunk.

The participants agree to enter the program in lieu of a jail sentence.

The program was started in October 2011, after nearly two years of study and training to create a program that takes drunken drivers out of the jail and Huber dorm and puts them on a path to recovery and self-reliance. Although participants spend a few days in jail, they are returned to the community wearing electronic monitoring devices that alert jail staff to where they are at any time during the day, and can even detect if they’ve been drinking alcohol.

The program is reducing the population pressure in the jail, effectively pushing back the date when the county will have to either expand the existing jail or build a new one.

More importantly, it’s changing offenders’ behaviors, Kennedy said.

“We’ve kept people off alcohol who you wouldn’t believe would stay off alcohol,” he said.

However, after 24 years, Kennedy has decided it’s time to step down. He filed for noncandidacy in the upcoming April 3 elections. Walworth County District Attorney Phil Koss is the only candidate on the ballot for Kennedy’s seat.

Although the elections are in April, judges do not leave their posts until the end of July, said Walworth County Clerk Kim Bushey.

Once he leaves, Kennedy said, he will have to wait 30 days before he can take a new position under current law. The state Legislature is considering lengthening that waiting period to 75 days, he added.

Judge David Reddy, who was instrumental in starting the county’s OWI Court, will take the court over when Kennedy leaves.

But Reddy also had plans to start the drug court sometime this year.

“We’re kind of on hold right now because of this situation,” Reddy said in a telephone interview last week.

Talk about starting the drug court came up because of a U.S. Justice Department grant, which would have helped, pay for establishing the drug court and paid for some of its operations, Reddy said.

However, Reddy said he found out about the grant just three weeks before applications were due. The county’s Criminal Justice Coordinating Committee decided not to pursue the grant, at least for this year, he said.

However, if the county wants to go after the grant and start the drug court next year, it will need someone to run the OWI Court while Reddy and county staff set up the drug court.

The advantage to that, Kennedy said, is that the program would no longer have a trial judge running it, which should allow the circuit court to free up its calendar a bit more.

Reddy said he thought Kennedy’s offer to work as a judge free would have worked out.

Without Kennedy’s help, the drug court will have to wait.

“I don’t think I can do both courts,” Reddy said.

Kennedy said there is no way the two courts can be combined, either.

Drug court would focus on those who controlled substances, and not necessarily those who drive while impaired.

Kennedy said the two courts deal with completely different problems

“That’s a different breed of animal,” Kennedy said of drug court. “Different kind of treatment is needed.”

Bretl said he had considered the option of having Kennedy appointed a county family court commissioner. Unfortunately, said Bretl, the court commissioner doesn’t have the authority of a judge.

“If you’re a court commissioner, you can’t impose the penalties that a judge can,” Kennedy explained. While not common, there are situations in which the OWI Court judge must impose sanctions on an OWI Court participant who is not following the rules, he said.

Meanwhile, Reddy said he’s been talking to local officials to find out if there is some way to keep the OWI court rolling while allowing for the start up of a drug court. Reddy said it’s a shame that the county can’t avail itself of Kennedy’s offer.

“It would have been good to utilize Judge Kennedy’s services,” he said.

For his part, Kennedy said he hopes the county can run a program for controlled-substance abusers, just as it has a program for drunken drivers.

“I hope we have a drug court,” he said.