Gilford v. People, No. 99SC79.

• Decision Date: 30 May 2000
• Docket Number: No. 99SC79.
• Citation: 2 P.3d 120
• Parties: Frank GILFORD, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.
• Court: Colorado Supreme Court

2 P.3d 120

Frank GILFORD, Petitioner, v. The PEOPLE of the State of Colorado, Respondent.

No. 99SC79.

Supreme Court of Colorado. En Banc.

May 30, 2000.

Judith M. Firestone, Denver, Colorado, Attorney for Petitioner.

Daniel E. Muse, City Attorney, City and County of Denver, R.W. Hibbard, III, Assistant City Attorney, Mental Health Division, Denver, Colorado, Attorneys for Respondent.

Justice MARTINEZ delivered the Opinion of the Court.

This case concerns the statutory process for committing mentally ill individuals to long-term care and treatment against their will. See § 27-10-109, 8 C.R.S. (1999). The only issue before us on certiorari is whether the failure to comply with the statutory requirement that a copy of the petition for longterm care and treatment be delivered personally to the individual for whom such treatment is sought creates either a jurisdictional or procedural defect requiring dismissal of the petition.¹ The court of appeals held that the failure to comply with the service provisions of section 27-10-109(2) did not deprive the trial court of personal jurisdiction over Frank Gilford in long-term certification proceedings, but nonetheless concluded that no action can be taken on the petition until such service occurs. See People v. Gilford, 981 P.2d 1099, 1101-02 (Colo.App.1998). We disagree with the analysis of the court of appeals, and hold, instead, that the failure to personally deliver a copy of the petition to Gilford deprived the probate court of personal jurisdiction.

I.

Frank Gilford, the petitioner, suffers from chronic schizoaffective disorder and cocaine dependency. Over the last twenty-seven years, Gilford has been hospitalized involuntarily on at least twenty separate occasions at various state mental health facilities. These periods of hospitalization have been marked by Gilford's repeated refusal to submit to voluntary medication programs. When in an unmedicated state, Gilford exhibits pronounced psychosis and paranoia, resulting in disorganized cognition and delusion.

On December 6, 1996, Gilford was certified for short-term care and treatment pursuant to section 27-10-108, 8 C.R.S. (1999) and, shortly thereafter, was transferred to the Mental Health Corporation of Denver (MHCD). This term of care and treatment was later extended pursuant to section 27-10-108, C.R.S. (1999). The extended short-term certification order would remain in effect until June 6, 1997.

On or about April 4, 1997, Gilford terminated contact with the treatment program. It appears that Gilford was undergoing outpatient treatment at this stage of his involuntary commitment² and that his outpatient regimen consisted of monthly visits to a MHCD clinic and weekly meetings with his case worker.

On May 23, 1997, while Gilford remained at large, MHCD petitioned for certification for long-term care and treatment pursuant to section 27-10-109, 8 C.R.S. (1999). A copy of the petition was delivered to Gilford's court-appointed attorney on May 29, 1997, as specifically required by section 27-10-109(2). It is undisputed that Gilford was neither served personally with a copy of the petition, as required by section 27-10-109(2), nor was he advised of the availability of voluntary treatment, as specifically required by section 27-10-109(1)(b).

On June 4, 1997, Gilford's attorney filed a motion to dismiss the petition for long-term certification on the grounds that the MHCD failed to comply with the mandatory procedures set forth under section 27-10-109. On June 6, 1996, the probate court held a hearing on the petition, the motion for authorization to administer involuntary medical treatment, and Gilford's motion to dismiss. Gilford was not present at the hearing and, by all indications, remained at large during the pendency of these proceedings. Dr. Clark, the psychiatrist appearing in support of the long-term certification order, testified that he had last observed Gilford on March 27, 1997, some two months earlier. The court, in a nunc pro tunc order issued on June 16, 1997, denied the motion to dismiss and granted both the request for long-term certification and the motion seeking authorization to administer involuntary medical treatment. This order would remain in effect until December 6, 1997.

Although the record is somewhat unclear as to what transpired after the issuance of this latest order, it appears that Gilford was taken into custody in late June. Shortly after his transfer to MHCD, Gilford filed a notice of appeal. At the court of appeals, he argued that the failure to serve him personally with notice of the long-term certification proceedings violated his due process rights and that dismissal was an appropriate remedy for this violation. Although the court of appeals concluded that the failure to deliver to Gilford a copy of the petition did not divest the probate court of personal jurisdiction, it nonetheless held that the long-term certification proceedings could not go forward until the statutory requirement of personal service was fulfilled.

However, as the panel recognized, holding the long-term certification proceedings in abeyance pending Gilford's return to custody could potentially conflict with the statute of limitations set forth under section 27-10-109(2). The court of appeals accordingly concluded that the statutory time-limits would be tolled during Gilford's absence and that the existing short-term certification order would remain in effect until personal service could occur. Thus, Gilford was to remain under the extended short-term certification order until long-term certification proceedings could be properly initiated pursuant to section 27-10-109.

Gilford petitioned this court for a writ of certiorari and the MHCD cross-petitioned. We granted Gilford's petition and now reverse the judgment of the court of appeals.

II.

We first address the threshold question as to whether the issue before us is, in fact, justiciable. The People initially contended, in response to the petition for certiorari, that the procedural posture of Gilford's case renders the issue moot and, therefore, nonjusticiable. We disagree.

During the pendency of Gilford's appeal in this case, the People filed for an extension of the certification for long-term care and treatment. See § 27-10-109(5). Gilford's court-appointed attorney responded with a motion to dismiss. It would appear (although the record does not disclose) that Gilford had been located and was in custody at this time. Hearings were held on December 12 and December 15, 1997, after which the probate court denied the motion to dismiss and granted the People's request for an extension of the long-term certification and their motion seeking authorization to administer involuntary medical treatment. An appeal followed. The court of appeals affirmed the order of the probate court, holding that Gilford's due process rights were not impaired as a result of the trial court's failure to conduct a hearing before the expiration date of the original long-term certification order. See People in Interest of Gilford, 983 P.2d 156, 158-59 (Colo.App.),cert. denied, No. 99SC404 (Colo. Aug. 23, 1999). The certification order at issue in that case would remain in effect until December 6, 1999.

At oral arguments before this court on March 3, 2000, Gilford's attorney could not provide definite information as to her client's current whereabouts or present circumstances. Although it may well be that Gilford is no longer subject to restraint pursuant to an enforceable certification order, both he and similarly situated individuals may be threatened with such restraint in the future by operation of the very procedures challenged here. Because civil commitment procedures necessarily implicate protected liberty interests, see People in Interest of Dveirin, 755 P.2d 1207, 1209 (Colo.1988), and because we view this issue as one that is capable of repetition, yet evasive of our review, we elect to resolve it. See Feigin v. Colorado Nat'l Bank, 897 P.2d 814, 817 (Colo.1995) (citing cases); see also People in Interest of Hoylman, 865 P.2d 918, 920 (Colo.App.1993); People in Interest of King, 795 P.2d 273, 274 (Colo.App.1990).

III.

A.

Gilford contends that the probate court erred in refusing to dismiss the petition for certification for long-term care and treatment, and that the court of appeals compounded this error by concluding that tolling of the statutory time-limits, not dismissal, is the appropriate remedy for a violation of the personal delivery requirement set forth under section 27-10-109(2). He first argues that dismissal is required because the failure to comply with the personal delivery requirement divests the trial court of personal jurisdiction. If the probate court did not have jurisdiction over him, then it had no power to act on the petition for long-term certification. See, e.g., Iwerks v. People, 130 Colo. 86, 89, 273 P.2d 133, 134-35 (1954) (citing cases).

Arguing in the alternative, Gilford maintains that, even if the failure to comply with section 27-10-109(2) does not amount to an incurable jurisdictional defect, it nonetheless constitutes a violation of an "essential condition" of the statutory process, which is so grave as to "`undermine confidence in the fairness and outcome of the certification proceedings.'" People in Interest of Lynch, 783 P.2d 848, 851 (Colo.1989) (quoting People in Interest of Clinton, 762 P.2d 1381, 1389 (Colo.1988)).

Deviations from the statutory process governing civil commitment proceedings, however minor, are subject to exacting appellate review, for even the slightest departure from these codified procedures can raise profound constitutional concerns. See, e.g., Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 60 L.Ed.2d 323 (1979) (citing cases); see also Dveirin, 755 P.2d at 1209; People v. Medina, 705 P.2d 961, 967 (Colo.1985); Sisneros v. District Court, 199 Colo. 179, 181, 606 P.2d 55, 57 (1980), ...