Curnow v. Yarbrough

• Decision Date: 21 February 1984
• Docket Number: No. 82SA203,82SA203
• Citation: 676 P.2d 1177
• Parties: In the Matter of Ken CURNOW, Petitioner-Appellant, v. Ron YARBROUGH, Administrator, Windsor Health Care Center, Defendant-Appellee, Theron G. Sills, M.D., and Yale L. Klugman, M.D., Defendants, State of Colorado, Department of Institutions, Intervenor-Appellee.
• Court: Colorado Supreme Court

Page 1177

676 P.2d 1177

In the Matter of Ken CURNOW, Petitioner-Appellant, v. Ron YARBROUGH, Administrator, Windsor Health Care Center Defendant-Appellee Theron G. Sills, M.D., and Yale L. Klugman, M.D., Defendants State of Colorado, Department of Institutions, Intervenor-Appellee.

No. 82SA203.

Supreme Court of Colorado En Banc.

Feb. 21, 1984.

Edward M. Caswall, Caswall & Pic, Greeley, for petitioner-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Margery T. Bornstein, Asst. Atty. Gen., Human Resources, Denver, for intervenor-appellee State of Colo.

Lee D. Morrison, Asst. Weld County Atty., Greeley, for defendant-appellee Yarbrough.

DUBOFSKY, Justice.

Petitioner Ken Curnow appeals a decision of the Weld County District Court dismissing his petition for habeas corpus and denying his request for declaratory relief. The district court concluded that the lack of a state-initiated probable cause hearing prior to involuntary short-term mental health commitment does not violate due process and equal protection under the United States Constitution. We agree with the district court that section 27-10-107, C.R.S., which requires the immediate appointment of counsel and a full adversary hearing within ten days of request, provides sufficient due process protection, and that the absence of a hearing requirement does not deny equal protection. Therefore, we affirm the judgment of the district court.

On May 14, 1981, after the petitioner had been evaluated for seventy-two hours at St Joseph's Hospital in Denver, Yale L. Klugman, a psychiatrist on the staff of the Adams County Mental Health Center, certified the petitioner to the Adams Manor Nursing Home for short-term mental health treatment. The certification specified that the petitioner was mentally ill and, as a result, a danger to himself or to others and that, although the petitioner accepted voluntary treatment, reasonable grounds existed to believe that he would not remain in a voluntary program; thus, his commitment was involuntary. The psychiatrist's affidavit accompanying the certification noted that the petitioner had a history of grand mal seizures. The psychiatrist observed that the petitioner was depressed and had a borderline personality disorder, resulting in his failure to take medication to prevent frequent seizures in uncontrolled settings.

The notice of certification was filed in the Adams County District Court on May 18, 1981, and personally served on the petitioner. The notice of certification included the following printed advisement:

"You are advised that the law gives you a right to a hearing upon your certification for short-term treatment before a court or jury. In addition to the right of review of this certification you have the right of review by the court of your treatment or that your treatment be on an out-patient basis. If you wish to take advantage of any of these rights, you should direct a written response to the District Court of Adams County, specifying the type of hearing. You may make this request any time that this certification for short-term treatment is in effect."

The same day the certification was filed, the Adams County District Court appointed counsel to represent the petitioner.

On June 22, 1981, a notice was filed in the Adams County District Court indicating that the petitioner had been transferred to the Windsor Health Care Center in Weld County under the care of Theron G. Sills, M.D. The certification was filed in Weld County District Court on June 23, 1981 and the court appointed Weld County counsel on June 25, 1981.

On July 7, 1981 the petitioner filed a petition for a writ of habeas corpus seeking release from involuntary hospitalization joined with a request for declaratory judgment that his involuntary commitment and continued confinement was in violation of due process and equal protection guaranteed under the Fourteenth Amendment to the United States Constitution and 42 U.S.C. § 1983. ¹ The petitioner did not request a hearing under section 27-10-107(6), C.R.S., claiming that only a mandatory state-initiated probable cause hearing would satisfy due process requirements.

The parties stipulated to the petitioner's release from Windsor Health Care Center on July 15, 1981. ² The district court heard the petitioner's motion for declaratory judgment on October 14, 1981. The court took judicial notice of 163 mental health certifications filed in Weld County from July 1, 1975 through June 30, 1981. The court noted that in the 163 cases there had been 15 requests for hearings, and that of the seven hearings held, only one resulted in a vacated certification. The court heard testimony presented by the state that before the hearing in 1981, 933 short-term certifications had been filed in El Paso, Jefferson, Denver, Boulder, Adams, Arapahoe and Pueblo counties, and that hearings had been requested in approximately 12% of the certifications filed.

The district court determined that the petitioner's challenge was not moot, although the petitioner had been released from custody; that the petitioner had standing to challenge the lack of a mandatory hearing, although there was no indication that a mandatory hearing would have resulted in the petitioner's release; and that the petitioner's failure to request a hearing under the statute did not waive his opportunity to make a constitutional argument in the context of a habeas corpus proceeding. Relying on Parham v. J.R., 442 U.S. 584, 99 S.Ct. 2493, 61 L.Ed.2d 101 (1979), the court ruled that due process does not require automatic judicial review of short-term commitments because statutory safeguards sufficiently minimize the risk of erroneous short-term commitments, and, based upon the statistics provided by Weld County and the state, mandatory state-initiated hearings would not lessen whatever risk remained. ³

I.

At the outset, the respondents and the intervenor assert that the petitioner lacks standing to challenge the failure of section 27-10-107 to provide a mandatory probable cause hearing because the petitioner made no showing that such a hearing would have resulted in his release from certification. However, the petitioner challenged the statute as facially invalid for failing to provide automatic judicial review on the basis that a committed person may not be capable of seeking elective review. The lack of an allegation that a mandatory probable cause hearing would have resulted in his release is not fatal to the claim he framed. The petitioner's complaint alleges an injury in fact to a legally protected interest, giving him standing to challenge the statute. Cloverleaf Kennel Club v. Colorado Racing Commission, 620 P.2d 1051 (Colo.1980); Wimberly v. Ettenberg, 194 Colo. 163, 570 P.2d 535 (1977).

II.

A.

A number of federal and state courts throughout the country have addressed state statutory protections for persons who are confined as mentally ill. Of the statutes addressed by these courts, no two are alike, and each decision has turned on the specific provisions of the challenged statute. Therefore, we begin our analysis with the Colorado statutory provisions governing civil commitment of the mentally ill.

Under section 27-10-105, C.R.S., when any person appears to be mentally ill and an imminent danger to others or to himself or gravely disabled, a peace officer, a physician, a psychologist, or a licensed social worker, upon probable cause, may place the person in a designated facility for seventy-two hour evaluation and treatment. ⁴ Persons detained for seventy-two hour evaluation and treatment must then be released, referred for further care and treatment on a voluntary basis, or certified for treatment under section 27-10-107.

A person may be certified under section 27-10-107 for not more than three months of short-term treatment if the professional staff of the facility providing seventy-two hour treatment and evaluation analyzes the person's condition and finds that he is mentally ill and, as a result of mental illness, a danger to others or to himself or gravely disabled. If a person is advised of the availability of, but does not accept, voluntary treatment, or, if he indicates his willingness to accept voluntary treatment, but reasonable grounds exist to believe that he will not remain in a voluntary treatment program, he may be certified for short-term treatment. The notice of certification is to be signed by a professional person who is on the staff of the evaluation facility and participated in the evaluation. The certification shall state facts sufficient to establish reasonable grounds to believe that the person is mentally ill and, as a result of mental illness, a danger to others or to himself or gravely disabled. The notice of certification shall be filed within forty-eight hours with the court in the county in which the respondent ⁵ resided or was physically present immediately prior to his being taken into custody. Within twenty-four hours of certification, copies of the certification shall be personally delivered to the respondent, and the respondent shall be asked to designate one other person whom he desires to be informed about his certification. In addition to the copy of the certification, the respondent shall be given a written notice that a hearing upon his certification for short-term treatment may be had before the court or a jury upon written request by the respondent or his attorney. Whenever a certification is filed with the court, the court shall forthwith appoint an attorney to represent the respondent. Either the respondent or his attorney at any time may file a written request that the certification for short-term treatment be reviewed by the court, and the court shall hear the matter within ten days after the request.

Section 27-10-111, C.R.S. provides that a hearing shall be conducted in the same manner as other civil proceedings before the court...