People in Interest of Clinton, 87SC200

• Decision Date: 17 October 1988
• Docket Number: No. 87SC200,87SC200
• Citation: 762 P.2d 1381
• Parties: The PEOPLE of the State of Colorado, Petitioner, In the Interest of Wendy Ann CLINTON, Respondent.
• Court: Colorado Supreme Court

Page 1381

762 P.2d 1381

The PEOPLE of the State of Colorado, Petitioner In the Interest of Wendy Ann CLINTON, Respondent.

No. 87SC200.

Supreme Court of Colorado En Banc.

Oct. 17, 1988.

Thomas O. David, Weld County Atty., Jan Rundus, Asst. County Atty., Greeley, for petitioner.

Pueblo County Legal Services, Inc., Thomas B. Flesher, Pueblo, for respondent.

LOHR, Justice.

In People in Interest of Clinton, 742 P.2d 946 (Colo.App.1987), the Colorado Court of Appeals held that the failure to appoint an attorney "forthwith" to represent the respondent, Wendy Ann Clinton, at a mental health certification proceeding deprived the district court of subject matter jurisdiction. We granted the People's petition for certiorari, and we now reverse the judgment of the court of appeals.

I.

Wendy Ann Clinton was certified for short-term treatment pursuant to section 27-10-107, 11 C.R.S. (1982), on Friday, November 22, 1985. The certification was filed in the Weld County District Court the following Monday, November 25. Section 27-10-107(5) requires that "[w]henever a certification is filed with the court, the court ... shall forthwith appoint an attorney to represent the respondent." Court was not in session on Thursday or Friday, November 28 and 29, due to the Thanksgiving holidays, and the district court did not appoint counsel until Tuesday, December 3. This represented a delay of eight days, or four business days, from the date that the certification was filed.

Clinton moved for a "change of jurisdiction," § 27-10-111(4), from Weld County to Pueblo County. She waived five days of time ¹ to facilitate the change, and the trial court granted the motion on December 27, 1985. On the same day, Clinton requested a hearing in order to contest her certification for short-term treatment.

The case was set for hearing on January 13, 1986, in the Pueblo County District Court. On that day, after the People presented evidence and rested, Clinton moved to dismiss on the ground that counsel had not been appointed "forthwith" as required by section 27-10-107(5), 11 C.R.S. (1982). The district court agreed that counsel had not been appointed forthwith but denied Clinton's request to dismiss because it had not been timely raised and because she had failed to show prejudice by the delay. The court found that Clinton was mentally ill and, as a result of her mental illness, was gravely disabled, and it upheld the certification for short-term treatment.

Clinton then appealed the district court's order upholding the short-term certification. The court of appeals reversed the district court in People in Interest of Clinton, 742 P.2d 946 (Colo.App.1987). Based on its interpretation of Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953), the court of appeals concluded that because of the failure to comply with the statutory provisions regarding forthwith appointment of counsel in mental health certification proceedings, the district court had "no jurisdiction to act." Clinton, 742 P.2d at 947. The court of appeals further held that this jurisdictional defect involved subject matter jurisdiction, and therefore it could be properly raised at any point in the proceedings. Id. (citing C.R.C.P. 12(h)(3)).

II.

Since our decision in Hultquist v. People, 77 Colo. 310, 236 P. 995 (1925), this court on several occasions has examined the impact of the failure to comply with statutory requirements in mental health certification proceedings. A careful review of these decisions demonstrates an inadequate basis for the court of appeals' conclusion that a failure to appoint counsel forthwith deprives a court of subject matter jurisdiction in such proceedings. Additionally, the court of appeals' conclusion finds no support in established jurisdictional principles. Together, these cases and jurisdictional principles establish that the statutory violation at issue here does not implicate jurisdictional concerns, and that the effect of the violation on the proceedings should be determined by evaluating the gravity of the statutory violation and its prejudicial effect on the respondent.

A.

We first addressed the issue of failure to comply with the statutory requirements for mental health certification in Hultquist v. People, 77 Colo. 310, 236 P. 995 (1925). Although the mental health statute at issue in Hultquist has since been repealed and replaced, the general principles developed in that case formed the foundation for our later mental health certification decisions and are still applicable today. In Hultquist, the respondent challenged the validity of a lunacy proceeding in which the sheriff failed to deliver a copy of the complaint or arrest order to the respondent as required by statute. 77 Colo. at 315, 236 P. at 997. Additionally, the respondent's guardian ad litem was not given the required two-day notice of the lunacy commission hearing nor was the respondent allowed the required five-day period in which to request a jury trial. Id. at 316 236 P. at 998. We held in Hultquist that these various deviations from essential statutory requirements constituted reversible error, and thus the commitment proceeding was invalidated. Id. at 315, 322, 236 P. at 998, 1000. We explicitly did not decide a jurisdictional issue in Hultquist, stating that "it is not necessary to determine whether the alleged failure or errors of the county court are jurisdictional." 77 Colo. at 315, 236 P. at 997.

Most of our cases since Hultquist can be divided into two broad categories. First are those cases treating the failure to comply with essential statutory provisions as serious enough to amount to "reversible error" requiring the invalidation of the certification proceedings. See Okerberg v. People, 119 Colo. 529, 205 P.2d 224 (1949) (failure to give required five-day notice of lunacy commission meeting invalidates proceeding); Watkins v. People, 140 Colo. 228, 344 P.2d 682 (1959) (failure to allow for required five-day waiting period to execute commitment order deprives respondent of opportunity to exercise right to jury trial and invalidates commitment proceeding); Ford v. District Court, 179 Colo. 64, 498 P.2d 1125 (1972) (failure to follow statutory commitment procedures by relying on out-of-state incompetency adjudication invalidates Colorado incompetency order).

Second are those cases finding defects in notice or process, or attempts by courts to exercise power over persons not within the scope of the court's statutorily prescribed jurisdiction. In these cases, we held that the court lacked the required jurisdiction over the respondent in order to issue the challenged certification orders. See Iwerks v. People, 130 Colo. 86, 273 P.2d 133 (1954) (failure to serve process properly prevents court from acquiring jurisdiction in lunacy proceeding); Rickey v. People, 129 Colo. 174, 267 P.2d 1021 (1954) (failure to allege facts showing satisfaction of jurisdictional requirements on face of complaint prevents Denver county court from acquiring jurisdiction where respondent was resident of Elbert County); Kendall v. People, 126 Colo. 573, 252 P.2d 91 (1952) (person arrested in Montezuma County and brought to Denver is not a Denver resident, and therefore is not a person "in [Denver] County" for the purpose of a statute prescribing the Denver court's jurisdiction in lunacy proceedings). Cf. Isham v. Miller, 80 Colo. 380, 252 P. 353 (1926) (a resident of Adams County can be subjected to jurisdiction of Adams County court for purposes of lunacy proceeding by service upon him in Denver where statute gives court jurisdiction over any person in the county).

However, some of our cases have also confused these two categories and suggested that deviations from the statutory requirements that did not implicate notice, process, or the statutory limits on the court's jurisdiction nonetheless resulted in jurisdictional defects. See Sisneros v. District Court, 199 Colo. 179, 606 P.2d 55 (1980) (failure to advise respondent of availability of voluntary treatment as required by statute deprives court of jurisdiction). The source of this confusion appears to be our decision in Barber v. People, 127 Colo. 90, 254 P.2d 431 (1953).

In Barber the respondent, Marie Barber, challenged the validity of the lunacy proceedings that resulted in an order committing her to the Colorado State Hospital. 127 Colo. at 91, 94, 254 P.2d at 431-33. The basis of Barber's challenge was that the sheriff serving the required notice on her had improperly altered the documents. We held that this defect in notice invalidated the proceedings. "Since a valid service upon the respondent ... is an essential prerequisite ... it follows that the ... commitment of respondent [is] without legal force or effect." Barber, 127 Colo. at 96, 254 P.2d at 434. In deciding Barber, we held that the decisions in Hultquist, 77 Colo. 310, 236 P. 995 (1925), and Okerberg, 119 Colo. 529, 205 P.2d 224 (1949), were controlling. Barber, 127 Colo. at 95, 254 P.2d at 434. We also stated that:

It is sufficient for determination of this case to rely upon the well-established rule that, in an action which is entirely statutory, the procedure therein prescribed is the measure of the power of the tribunal to which jurisdiction of causes arising under the statute is given.

There must be a strict compliance with the provisions of such a statute, which are mandatory, and in the absence of such compliance the court has no jurisdiction to act.

Barber, 127 Colo. at 95, 254 P.2d at 433-34.

In the present case, the court of appeals relied on the above passage from Barber to hold that the district court was without jurisdiction to act due to the failure to appoint counsel "forthwith" as required by the statute. Clinton, 742 P.2d at 947. However, because we held in Barber that our decisions in Hultquist and Okerberg were controlling, the passage quoted above was not necessary to the disposition of the issues presented in Barber and should be...