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.
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:
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.
The parties stipulated to the petitioner's release from Windsor Health Care Center on July 15, 1981.
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).
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.
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
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. The burden of proof shall be upon the person or facility seeking to detain the respondent. The court or jury shall determine that the respondent is in need of care and treatment only if the court or jury finds by clear and convincing evidence that the respondent is mentally ill and, as a result of his mental illness, a danger to others or to himself or is gravely disabled. At the request of the respondent or his attorney, the court may appoint a professional person to examine the respondent and to testify at the hearing before the court on the results of his examination. At the conclusion of the hearing, the court may enter or confirm the certification for short-term treatment, discharge the respondent, or enter any other appropriate order.
The petitioner claims that the provision in section 27-10-107 for a court hearing
The petitioner's due process claim must recognize, however, that "not all situations calling for procedural safeguards call for the same kind of procedure." Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); People v. Chavez, supra. In cases involving commitment to a mental institution where there is a protectable liberty interest, three factors must be balanced to determine the process due:
"`First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.' Mathews v. Eldridge, 424 U.S. 319, 335 [96 S.Ct. 893, 903, 47 L.Ed.2d 18] (1976), quoted in Smith v. Organization of Foster Families, 431 U.S. 816, 848-849 [97 S.Ct. 2094, 2111-12, 53 L.Ed.2d 14] (1977)."
Parham v. J.R., 442 U.S. at 599-600, 99 S.Ct. at 2502-2503; see also P.F. v. Walsh, supra; People v. Chavez, supra.
The first factor, the private interest in freedom from involuntary commitment and a portion of the third, the government's interest in protection of persons and society, are not questioned. No one disputes the severity of deprivation of one's liberty interest or the adverse social consequences to the individual engendered by commitment to a mental hospital, Vitek v. Jones, supra; Addington v. Texas, supra; O'Connor v. Donaldson, 422 U.S. 563, 95 S.Ct. 2486, 45 L.Ed.2d 396 (1975); People v. Chavez, supra, nor does anyone contest the government's police power and parens patriae duty to protect society against dangerously disturbed individuals and to protect persons who are dangerous to themselves or gravely disabled. The determinative factors in this case, therefore, are the second—whether the risk of an erroneous deprivation of liberty will be lessened by requiring a mandatory probable cause hearing prior to a short-term certification and the probable value, if any, of the additional procedural safeguards—and a portion of the third factor, the fiscal and administrative burdens that the additional procedure would entail for the government.
The petitioner asserts that the Colorado short-term commitment statute's reliance on a patient-initiated hearing as a due process protection is inadequate because most patients will not ask for a hearing. Several courts and commentators have addressed the petitioner's point. The Connecticut Supreme Court, in overturning a statute placing the burden of requesting a hearing and
Many courts, without addressing a patient's difficulties in initiating a hearing, have required a state-initiated probable cause hearing
Other courts have concluded that the risk of an erroneous deprivation of liberty is satisfied by procedural protections short of a state-initiated probable cause hearing. In Parham v. J.R., supra, the United States Supreme Court upheld a Georgia statute which allowed commitment of children to mental hospitals without notice and an adversary-type hearing before an impartial tribunal. The court concluded, "[W]e are satisfied that an independent medical decisionmaking process, which includes ... [a] thorough psychiatric investigation..., followed by an additional periodic review of a child's condition, will protect children who should not be admitted; we do not believe the risks of error in that process would be significantly reduced by a more formal, judicial-type hearing." Id. 442 U.S. at 613, 99 S.Ct. at 2509.
Similarly, a federal appellate court recently upheld the New York civil commitment law which allows hospitalization for sixty days without a judicial hearing unless a hearing is requested by the patient. Project Release v. Prevost, 722 F.2d 960 (2nd Cir.1983). The court described the statutory scheme as reflecting a careful balance between the rights of the individual and the interests of society, and concluded that, given the layers of professional review, notice to relatives and others designated by the patient, and the availability of a judicial hearing within five days of demand
The district court in the instant case correctly applied the due process balancing test. Although section 27-10-107 does not provide for a mandatory probable cause hearing, it does contain a number of compensating factors to protect against an erroneous commitment. These include a professional decision to initiate the seventy-two hour evaluation; professional medical evaluation at the time of involuntary short-term commitment; certification signed by a professional medical evaluator and filed with the court; notice concerning certification within twenty-four hours to the person committed; notice concerning certification to one other person the respondent designates; forthwith appointment of an attorney to represent the respondent; a hearing within ten days if requested by the respondent or his attorney; the burden of proof by clear and convincing evidence upon the person or facility seeking to detain the respondent; and optional court appointment of an independent professional person to examine the respondent. The statistics relied upon by the district court support the petitioner's position that few persons involuntarily committed to short-term care challenge that commitment by requesting a hearing and the state's concern that mandatory probable cause hearings would multiply by ten times the number of hearings now held under section 27-10-107. Although the state's concern about increased administrative and fiscal burdens is not determinative, we share the observation of the United States Supreme Court in Parham v. J.R., 442 U.S. at 606, 99 S.Ct. at 2506; "the utilization of the time of psychiatrists, psychologists, and other behavioral specialists in preparing for and participating in hearings rather than performing the task for which their special training has fitted them .... [is] ... of little help to patients."
A legislative act is presumed constitutional, and the burden is upon the party attacking it to establish its unconstitutionality beyond a reasonable doubt. Dawson v. Public Employees' Retirement Association, 664 P.2d 702 (Colo.1983); People v. Alexander, 663 P.2d 1024 (Colo.1983); Bollier v. People, 635 P.2d 543 (Colo.1981); People in the interest of C.M., 630 P.2d 593 (Colo.1981). We have deferred in the past to the General Assembly's determination that a mixture of medical and legal judgments is sufficient to protect one who is mentally ill from the risk of an erroneous deprivation of liberty. People v. Taylor, supra. We conclude that section 27-10-107, without the requirement of a mandatory probable cause hearing, is facially constitutional.
The petitioner also claims that he is denied equal protection by the failure of section 27-10-107 to require a mandatory probable cause hearing before the imposition of short-term commitment because legal deprivations imposed upon the mentally ill under section 27-10-125, C.R.S. can only be enforced after a mandatory judicial hearing. Section 27-10-125 allows any interested person to commence an action to impose a legal disability or the deprivation of a legal right, including contractual rights and rights with regard to the operation of motor vehicles, against a person who is mentally ill and a danger to himself or others, gravely disabled, mentally retarded, developmentally disabled or insane. Pending a hearing under section 27-10-125, the court may issue an order temporarily imposing a disability or depriving the respondent of a legal right for a period of not more than ten days in conformity with the standards for issuance of ex parte temporary restraining orders in civil cases.
The equal protection doctrine does not require that "`all persons be dealt
Moreover, the mental commitment statute requires the involvement of professional medical persons who make several probable cause determinations in the course of the commitment proceeding. By contrast, any interested person, without an initial determination of another's mental illness by a professional medical person, may request that the other person be deprived of a right. Equal protection analysis does not compel identical procedures when parties are not similarly situated. A statute is presumed constitutional, and the burden is upon the party attacking it to establish its unconstitutionality beyond a reasonable doubt. Dawson v. Public Employees' Retirement Association, supra; People v. Alexander, supra. The petitioner here has not overcome the presumption that the statute is constitutional. We decline to substitute our judgment for that of the General Assembly. Smith v. Charnes, 649 P.2d 1089 (Colo.1982). The lack of a mandatory probable cause hearing under section 27-10-107 does not violate the equal protection clause of the United States Constitution.
Sections 27-10-105 and 27-10-106, C.R.S. allow any other person to initiate a seventy-two hour evaluation and treatment by filing a petition with the court which may trigger a professional screening of the allegedly mentally ill person to determine if probable cause exists to believe that the person is mentally ill and a danger to others or to himself or gravely disabled. If the court determines that a person will not accept a seventy-two hour evaluation voluntarily, the court may order the person taken into custody and placed in a designated or approved facility for treatment and evaluation. Whenever a person is involuntarily admitted to a seventy-two hour treatment and evaluation facility, he shall be advised by the facility director of his right to retain and consult with an attorney and that if he is indigent, an attorney will be appointed by the court without cost to the patient.