*1 trial, again in of We have held mencement before of counsel. assistance disqualification is In the ab- considering jury. a motion case submitted showing of his right timely objections to counsel a defendant’s sence and a absolute, subject to is and is choice not of ineffective prejudice, own a demonstration balancing takes into considera counsel, test which not a the error should assistance of a to be defendant tion interests and a trial. result reversal new lawyer and the particular a represented Accordingly, judg- I would affirm the integrity right to maintain public’s ment of conviction. process. Rodriguez v. District judicial say RO- I am authorized to that Justice (Colo.1986). Court, joins in this dissent. VIRA not a sixth Indigent defendants do have own right to counsel of their amendment Wainright, v.
choice. See Gideon
372 U.S.
83 S.Ct.
Williams
(Colo.1985). indigent do Since defendants right their own have a to counsel of
not choice, person has financial a who Edmiston; GOEBEL; Kathy George Ruth attorney not be employ an should means Wooten; Williams, Jr.; A. Laura Lee guar- right granted supplemental a which Munson; Similarly and All Other Situ he him a if counsel new trial antees Persons, ated right to erroneously denied the selects is be no difference participate. There should right coun- the defendant’s when between Griffith; Arevalo; Lindsey Robert Jessie appointed. Standard sel is retained and Phares; Pemberton, individually Bill the ABA for Criminal 4-3.9 of Standards and on behalf of (1986), lawyer “Once a provides: Justice described, Petitioners, herein representation of an undertaken the has accused, obligations are the duties and lawyer privately re- whether the same DEPARTMENT OF INSTI COLORADO tained, serving legal aid appointed, or in a M.D., TUTIONS, Traylor, and Frank opin- program.” majority or defender capacity official as the Director of his effectively a creates double standard ion Department of Institu the Colorado solely on defendant’s financial abil- a based Denver; tions; County Fed he ity to retain the counsel desires. Pena, capacity as in his official erico objected The defendant to the removal City; Joyce Ne Executive of Chief year more a before trial be- counsel than ville, capacity as Director her official a for a gan, argument of motion Hospi Department of Health and of the trans- mistrial for the admission similar tals; Casper, in his offi and Edmund evidence, again in a motion action Depart capacity as Director of the cial was after the case submitted withdraw Hospitals Mental ment Health He issue in jury. also raised the Respondents. Program, Health view, my new motion for new trial. No. 87SC27. granted of an should not be because trial validity of the that did not affect error Colorado, Supreme Court truth-finding process prejudice the de- En Banc. rights. judge A trial should be fendant’s 14, 1988. Nov. to correct an erroneous afforded ruling disqualification of defense Rehearing As Modified on Denial of right to I believe a defendant’s counsel. 19, 1988. Dec. disqualifica- appellate review for the seek must be lawyer he retained tion prior to the com-
preserved objection
Legal Denver, Metropolitan Aid Soc. Dean, Mullen, Denver, James W. Kathleen Committee, Pryor, Lawyers Colorado Car- P.C., ney Johnson, Rodney Patula, R. & Englewood, petitioners. for Gen., Woodard, Atty. Duane Charles B. Howe, Gen., Deputy Atty. H. Chief Richard Forman, Gen., Lievers, Carolyn Sol. First Atty. Gen., Margery Bornstein, Asst. Sp. T. Atty. Gen., Denver, respondents Asst. for Institutions, Dept, Tray- Colorado Frank lor, M.D., of the as the Director Colorado Institutions, Dept, Joyce Neville as the Dept, Hospi- Director of the of Health and tals, Casper and Edmund as the Director of Dept, Hospitals of Health and Mental Program. Health Stephen .Kaplan, City Atty., P. H. Morris Evans, Hibbard, III, Asst. At- R.W. tys., Denver, respondents City and for County of Federico Pena as Denver and City. Chief of the Executive Dice, Turner, Charles Michael R. Jon S. Nicholls, Boyer, Joseph Lloyd L. N. de Raismes, Taubman, Denver, M. Daniel amicus Bar Ass’n. curiae Colorado LOHR, Justice. brought
In this on behalf of class action mentally persons ill re- chronically certain Denver, siding in northwest challenged adequacy of the mental by the provided to them Colora- care Department and the Den- do of Institutions Department Hospitals, Health and ver sought declaratory injunctive re- holding After damages. lief as well as hearings, the trial court dis- number of plain- missed all for relief. The the claims areas, appealed, then tiffs defendants cross- catchment each a separate served litigation granted prior we certiorari to mental health center. This appealed, and focus- area, es the northwest catchment judgment by Appeals the Colorado Court of which includes Capitol downtown Denver and Hill required We pursuant to C.A.R. 50. high and which has a concentration of the certification of the determine whether chronically mentally persons.2 Many and, proper if class was under C.R.C.P. these were released into com- so, claims under the whether munity from the Colorado Hospital State Colorado Act the Care and Treatment and other state during institutions Mentally Ill, -127, 27-10-101 §§ part 1960s and 1970s as aof nationwide (1982 Supp.); & 1988 C.R.S. Colora- movement toward deinstitutionalization of Community Health do Mental Services Pur- litigation ill. At the time this -208, Act, 27-1-201 to chase C.R.S. §§ commenced, the community mental health (1982 Supp.); the & 1988 Federal Rehabili- center for the northwest Denver catchment Act tation 29 U.S.C. § *4 Department area was the Denver of Health Act, Rights 42 the Federal Civil U.S.C. (DHH), Hospitals and which had contracted first, (1982); fifth, eighth the and § with the capacity. state to serve in that fourteenth amendments to the United long complex This case has a history. and Constitution; II, States article During it became that clear Denver Constitution; of the Colorado and for would to funding not able continue duty breach of the common of law clinical DHH in amounts required to maintain ser- properly care were dismissed.1 We affirm existing vices at levels unless the state part, in judgment part, the reverse it in and legislature increased its support. When case remand this to trial court for necessary support from the state was proceedings. further forthcoming, not Denver study conducted a to assess the situation at DHH and to I. ways recommend budget. to cut the Rec- delivery public The of mental health ser- ommendations for service reductions were mayor in supervised by April vices Colorado is submitted to the in the Colo- of 1981. accepted Department These were and through rado scheduled to take Institutions effect on June 1981. its Division of Mental Health. Mental provided through health services are two May In claims in were asserted hospitals—the Hospi- state Colorado State Denver on Probate Court behalf of the Logan tal and at Pueblo the Fort Mental chronically ill mentally persons in north Health Center—and a number of communi- west Denver several who individuals ty throughout mental health centers had illness received treatment for mental particular areas, serving state geographic Department from the Colorado of Institu called “catchment areas.” The tions and in who resided the northwest County of Denver is into divided four Denver catchment area. These claims plaintiffs originally "mentally person” The also raised claims un- 2. A ill is now defined sec- governing county der the 27-10-102(7), statutes (1988 assistance for Supp.), tion 11 C.R.S. as "a poor, -108, §§ 30-17-101 12A C.R.S. person tive, volitional, cogni- awith substantial disorder of the (1986), provisions relating and the to the licens- processes or emotional that ing of mental health facilities Colorado grossly impairs judgment capacity recog- Health, -121, Department of §§ 25-1-101 reality or to nize control behavior....” (1982 Supp.), C.R.S. & 1988 but withdrew these psychiatrists testifying agreed at trial a that prior claims to trial. The claims un- chronically mentally person ill who someone Community der the Federal Health Mental Cen- long standing suffers from mental that illness Act, (1980 Supp.); § ters 42 U.S.C. Om- generally many is severe and invades areas Budget August nibus Act Reconciliation patient’s major categories life. The legislation Pub.L. No. 97-35 the state schizophrenia, chronic mental illness are manic- enabling Colorado to receive federal illness, depressive organic syndrome. brain funds, 27-1-206, mental health (1982), see C.R.S. prior were dismissed the trial court trial, plaintiffs do contest these dis- missals. May hearing, the court against Depart At the also brought the Colorado were Institutions the director prelimi- ment evidence the motion heard chal plaintiffs department.3 that nary injunction. plaintiffs asserted health adequacy of the mental lenged the likely program reductions were that ill chronically mentally provided to care chronically the time ill increase Denver, living quadrant northwest spend hospitalized would or in individuals inadequacy that and asserted among jail and number of suicides to them their care violated available mentally ill, causing irreparable chronically state consti number federal and under a motion, The court harm. denied con- statutory provisions. The case tutional cluding had not that sus- designated People the Interest was showing irreparable their burden of tained Goebel, plaintiffs moved 81MH270. The harm, and the in services reduction took temporary certification and for a for class 1, 1981. A place as scheduled on June preliminary injunc restraining order mental number of of mental prevent reduction tion reopened closed at time several effect on scheduled to take health services later, although months on a smaller scale. June 29, 1981, hearing held on May was On August four other filed re- The individual these motions. in Denver Court an action District individu- similarly quested they and others all ally and on behalf of the class of chronical- under C.R. be certified a class situated persons residing ly mentally north- They the state had C.P. 23. asserted that *5 designated Denver. This action was west grounds general- to act acted or refused on Denver, City County and Arevalo of ly class, applicable to the that there were Goebel, As in the No. 81CV6961. fact, questions of and and that common law sought injunc- declaratory in this case and representative parties of the the claims relief for violations of the class mem- tive of the of the class. typical were claims statutory rights and constitutional bers’ The estimated that there were adequate community-based mental receive 5,000 3,000 chronically mental- and between They health treatment and services. also ly persons northwest Denver sought damages plaintiff named for each the catchment area. motion described treatment, appropriate of care and for loss class as physical anguish, and as well as mental persons presently receiv- all Colorado of deprivation liberty of and violations oth- services, ing who receive services guarantees. The named er constitutional action, during pendency the of this City and consisted of the Coun- defendants upon discharge from aftercare whose Denver, Council, City ty of the the Denver facility the any other mental health Department Mayor, Director of the of the Hos- responsibility of Health and Denver Hospitals, and the Director the pitals/Mental Program Health virtue Health any statutory provisions.... Program, the DHH Mental Health Colora- director, its Department do Health and granted for class The court the motion Department the Colorado Institu- 23(b)(2) and and certification under C.R.C.P. September In (b)(3). tions and its director.4 Program original and the DHH Mental Health its 3. The record does contain the and pleadings joined the None in this matter. From were defendants. amended director as sketchy appropriateness references in the materials available parties contest of the the the us, genesis followed, understand the case had its present purposes we procedures and for that were in four individual mental health cases important or detail the it is not to understand respondents in those later consolidated. The the cases or of the initiation of the intricacies successfully sought restructure the actions pleadings. We refer to of the the amendments posture plaintiffs and pleadings to themselves as asserting plaintiffs. claims as the claims that in the case to assert the are involved By agreement parties, Colorado of the De- persons, On as now before us. motion of these were Denver, partment of Health its director later County Mayor and City and the Denver, defendants, Council, was the Depart- as named as Den- City dismissed the Denver director, Hospitals and its ver Council. ment of Health and judge prehensive of the Denver District Mental chief Health Center and a and ac- Court ordered Goebel Arevalo number of co-sponsors. DHH’s contract hearing designat- for and tions consolidated provide community the state to mental judge acting ed district probate completed health services would be as of judge court to hear the consolidated cases. 1, 1985, January point and at that DHH would as a withdraw mental municipal and state defendants filed center, organization and new motions to dismiss all the claims for relief. However, would take over. Denver Gener- ruling issued mo- court its these Hospital al would continue to serve as a 7, 1982, July pro April tions on nunc tunc long-term facility, pro- and short-term care judge legal 1982. The reviewed the viding inpatient care. See 27-10-105 to §§ upon theories which the claims -109, (1982 Supp.). & C.R.S. were and for based dismissed claims on: relief that were based plaintiffs again December eighth A. The first and amendments to temporary for restraining moved order United States constitution and preliminary injunction. They re- counterpart; Colorado its quested implementa- enjoin that the court Community B. The Federal Mental aspects reorganiza- tion of certain Health Center Act Omnibus plan tion scheduled to take effect on Janu- Budget August Reconciliation Act of ary asserting plan that if the took (as request private to the for effect there be a sharp would reduction in reform, rights and in- institutional support treatment and services cluding programs; creation ill, chronically mentally thereby increasing request but not as to the for declara- risk psychotic episodes, which in injunctive relief); tory hospital- turn could in an result increase C. The Federal Rehabilitation Act of izations, charges, incarcerations on criminal (as request pri- [sic] plaintiffs argued and suicides. The reform, vate and institutional plans the transition and new including programs); the creation of inadequate were therefore class of chronically mentally ill would suffer imme- *6 Rights irreparable D. injury 1983 the Federal Civil diate and if court the did Act. not intervene. The court treated the mo- preliminary tion as one for injunction and proceeded The to cases trial a before it days hearings, denied after three not- judge remaining different on the claims. ing while possibility that there was a real trial, agreed Prior to it was that the initial mentally ill that would be hearing rights the would focus on the in process, “bruised” the transition it was plaintiff class and that remedies would be persuaded not- the plan new would so a proceeding. addressed in later Fourteen “drastically demonstrably” injure and the days of trial were held over a three week injunction plaintiffs that an was warranted. period during September judge 1982. The reorganization plan The went into effect as then took the cases under and advisement January planned on 1985. years more passed than two deci- without a During period, sion. municipal this the and 7,May the On court entered its developed plan state defendants a reor- to fact, findings of conclusions of law and ganize mental health services the north- declaratory judgment. findings The de- west Denver catchment area. problems the facing tailed the trying community, to live in the August 1984 and re- Department the Colorado the request pro- sent viewed offered the state Institutions out posals seeking organization replace municipal an and defendants. The court to de- provider DHH community as the termined that the Act for the Care and Ill, Mentally care services The Treatment of the northwest Denver. 27-10- §§ Department -129, (1982 accepted Supp.) Institutions the 101 11 1988 C.R.S. & proposal (Care Act), Community Aurora Com- and Treatment creates a statu- May substantially order un- appropriate treatment right tory changed. patients vol- community for who have been hospitalized, and
untarily involuntarily In December the court issued an this establishing defendants had violated procedure order for deter- mining appropriate remedies failing provide adequate contin- plaintiffs’ of the under the violation community treatment coordinated uum of Treatment The defendants Care and Act. The court also con- support services. and plan were ordered to submit a for the deliv- had not estab- cluded that ery appropriate mental on cognizable claims for relief based lished appointed The health services. court also of the Rehabilitation Federal experts independent the remedi- evaluate (29 (1982)), the Act of U.S.C. § f plan. developed The state al defendants care, duty or the law of clinical common plan required, munici- remedial but States Colorado Constitutions. United pal summary judg- defendants moved for funding did stated that lack of The order dismissing proceed- ment them future from fulfilling the defendants from not excuse ings, arguing long- DHH no since was statutory right to care and plaintiffs’ providing er ser- community mental health community. parties The treatment longer necessary par- vices no were motions, post-trial includ- filed a number arguments ties. court heard on this ing motion for a determina- 9,May motion and denied it implement of remedies and relief tion plan approved Before the remedial was declaratory judgment, the state and implemented, legislature passed municipal to alter defendants’ motions Bill which amended the Care Senate findings judgment. or amend the inserting Act by and Treatment the lan- ruling post-trial on these motions court’s guage “subject appropriations” to available some minor alterations left in various sections of statute.5 Senate made provided part: Senate Bill 120 27-10-116(1), Revised Section 4. Statutes, Colorado introductory portion 1. The to 27- Section Vol., 10-101(1) 27-10-101(2), Repl. is amended to read: Colorado Re- Statutes, Vol., (l)(a) Repl. Right Any vised are amended 27-10-116. treatment. receiving to read: person un- evaluation or treatment (1) Legislative 27-10-101. declaration. provisions of this article is der that, assembly general hereby SUB- declares psychiatric medical care and entitled to APPROPRIATIONS,the JECT TO AVAILABLE treatment, SERVICES WITH REGARD TO purposes of this article are: 27-l-201(l)(a) TO LISTED IN SECTION (2) carry purposes, out SUBJECT TO To these (l)(e) AND SERVICES LISTED IN RULES APPROPRIATIONS, provi- AVAILABLE REGULATIONS BY SEC- AND AUTHORIZED liberally con- sions of article shall be 27-1-202, to meet his individual TION suited strued. needs, way keep delivered in such a as to *7 27-10-107(6), Section 2. Statutes, Colorado Revised SUB- him in the least restrictive environment Vol., Repl. to read: is amended JECT TO AVAILABLE APPROPRIATIONS. treat- 27-10-107. Certification for short-term agency person professional the or The and (6) respondent ment. The for short-term evaluation, care, facility providing or treat- attorney may any file or his time treatment at detailing keep all care and ment shall records request for a written that the certification by person, such received and treatment such be re- short-term treatment or the treatment available, upon that be records shall made viewed the court or that the treatment authorization, attorney person’s to his written outpatient requested, an is on basis. If review physician. shall personal Such records or his shall within ten the court hear the matter permanent records. give days request, after the shall and the court (b) Any person receiving or treat- evaluation attorney respondent the his and notice to and any provisions of this arti- ment under the certifying treating professional person and the petition pursuant to to court cle is entitled the place hearing the time and The thereof. C.R.S., 13-45-102, provisions of section the 27- shall be held in accordance with section TO APPROPRIA- SUBJECT TIONS, AVAILABLE hearing, At the the 10-111. conclusion of the setting to for release a less restrictive may court enter confirm the certification treating facility or release treatment, within or without discharge re- short-term the for spondent, der, treating adequate facility medi- from a when appropriate or enter or- other psychiatric treatment is not cal and care and TO APPROPRIA- SUBJECT AVAILABLE TIONS. administered. signed Second, patients.7 Bill 120 the Governor and ized was we will examine the 3,May 210, on arising effective 1986. Ch. became claims under the and Treat- Care 1986 Colo.Sess.Laws 1010-11. state ment Act. The assert the that then asserted that under defendants the correctly interpreted trial court the act act, longer juris- no had amended the court 1985, order, May its that Bill and Senate plan, implement diction to the remedial and not deprive jurisdiction, 120 did the court of plaintiffs’ the moved dismiss claims disagree while the defendants with both injunctive municipal for relief. The defend- Third, propositions. these we will address supported position. June ant that On plaintiffs’ the assertion that the trial court arguments the heard on court oral its improperly arising dismissed the claim un- require plan, jurisdiction to a remedial and Community der the Colorado Mental July 11, stating issued an order on it Fourth, Health Services Purchase Act. we longer it no jurisdiction that to order had plaintiffs’ argument will consider the injunctive urged relief. The court the state section 504 of the Federal Rehabilitation municipal implement and defendants provides Act them with for cre- claims plan voluntarily remedial and ordered the damages ation of new reports defendants to furnish semi-annual past Fifth, remedy discrimination. will we outlining steps implemen- toward taken plaintiffs’ examine the assertion plan. tation municipal defendants their com- violated care, duty mon law of clinical and the mu- judgment pursu- The court entered final nicipal defendants’ contention that there is 54(b) ant C.R.C.P. on October duty. Finally, no such we will consider the dismissing prejudice plain- all of statutory and constitutional except damages tiffs’ claims those in- arising claims under U.S.C. 1983 and curred for violation of the Care and Treat- the Colorado Constitution. prior passage Act ment Senate Bill 120.6 In an order issued on December 4, 1986, the court supplemented its final A. CLASS CERTIFICATION
judgment, stating Care Treat- “provides express ment Act an Before we examine the is- neither nor substantive sues, implied must first damages” cause of action for we determine whether the dismissing properly damage were certified as a class claims. The plaintiffs appealed governs under which judg- from the final C.R.C.P. the certi- ment, and the state fication and maintenance class municipal defend- actions. prerequisites cross-appealed. ants While case certification of a class was 23(a): pending in are described in section appeals, plain- the court of petitioned tiffs for expedited court re- One or more members of a class sue pursuant to view C.A.R. 50 or for extraor- representative sued parties or be on dinary under granted relief C.A.R. 21. We (1) behalf all if: is so expedited certiorari under C.A.R. 50. joinder all numerous that members (2) impracticable; questions there are
II. class; (3) or fact law common to the addressing the issues representative raised claims defenses of the parties, municipal parties we first typical will consider the of the claims or de- class; challenge (4) defendants’ represent- class certifica- fenses of the grounds parties tion fairly that the class should adequately ative will *8 only hospital- have included involuntarily protect the interests of the class. 2, 4, 27-10-101, -107, -116, Ch. sec. argue any §§ 7. The state defendants also the under Care and Treatment Act to Colo.Sess.Laws 1010-11. care discharge hospitalization treatment after from 7, 1985, only incorporated May applies tients, involuntarily hospitalized pa- The 6. trial court to its argument declaratory do not cast the judgment judgment this the into final challenge a form of to the class certification. issued on October IIB(l). § See infra any residing plaintiffs’ motion such individual its ruling on the Goebel within In class, catchment area. the trial court for certification requirements and deter- considered these municipal challenge The defendants’ In they were satisfied. order mined that the certification is class based on the as a class action to be maintained for an should contention that the class not include action, require- satisfy also the it must persons hospitalization on who received general types the of class ments for one of basis, voluntary since the Care and Treat 23(b). The trial described in section actions provide ment Act does not them with the this case met court determined right to treatment in the least restrictive 23(b)(3).8 23(b)(2) and criteria of sections Although reject environment. we the as ruling court made May its sertion that the Care and Treatment Act in class certification was clear that Goebel respect only involuntarily applies enough encompass the named broad IIB, hospitalized patients, see we infra plaintiffs in Arevalo9 and described conclude that the trial court abused its class as follows: certifying plaintiff discretion in class as residing in persons All the Northwest appropriate respect the class to each County Area of the Catchment July of the claims asserted. In its Denver, Colorado, of whom Denver ruling, recognized the court that “[t]he Hospitals/Mental Health and Health plaintiffs, being lumped in despite their (or reasonably knows should be class, Center single posi in fact in are different aware) during pendency of this who system,” tions the mental health within (1) services; mental health action: receive categories the different within described (2) or whose mental health care aftercare plaintiff class: upon discharge any from other mental clear, [Tjhere relatively are two distinct facility statutory responsi- is the categories plaintiffs, and several sub- Hospi- bility of Denver Health and categories nearly status is not so whose Health Center. tals/Mental category plaintiffs clear. The first includes those ... who are or have been chronically
This class excludes those involuntary in-patients under certifica- that catch- within tion, and who would benefit from com- chronically ment area of status as whose munity That is the class of treatment. mentally ill it would be unreasonable rights to defendants whose treat- [sic] Hospi- expect Denver Health clearly protected by ment are most Health Center to be aware tals/Mental provisions. statute and the constitutional functions, except until the exercise of its during pendency time of this are those such Another class non-institutionalized, Hospi- and not action as Health and who are Denver less clear- certified. Those are tals/Mental Health Center is made aware 23(b) (A) part: of the class in provides The interest of members 8. C.R.C.P. in relevant controlling prosecution individually or de- Any action be maintained as a actions; (a) separate prerequisites fense of action if the satisfied, of section (B) any litigation and in addition: The extent and nature of controversy already concerning the com- (2) party opposing class has acted or class; against members of the menced or generally applicable grounds refused to act on (C) desirability undesirability of con- class, making thereby appropriate final to the centrating litigation in the of the claims declaratory injunctive corresponding relief or forum; particular whole; respect class as a relief with (D) likely difficulties to be encountered (3) questions of law The court finds that the management of class action. members of the class or fact common affecting predominate questions over brought Although purportedly was Arevalo members, and that a class individual action, previously court had never a class superior available methods action is to other that it could be so main- 23(c)(1). determined order adjudication of the for the fair and efficient C.R.C.P. tained. See controversy. pertinent The matters findings include: *9 794 categories plaintiffs to either constitutional or stat- of ask
ly entitled who could for such relief. rights utory to treatment. great Trial courts of have deal discre there least court sees that are at determining in certify tion whether to categories_ kinds of in-between
two class action. Friends Chamber Music alleg- first includes the sub class County Denver, v. and illusory voluntary in-patients. edly (Colo.1985). 316-17 23 C.R.C.P. allows pa- ill would Those be those flexibility shaping the trial court in a class involuntary pa- in fact tients who are provides “ample action. It the court with tients, nominally although on the books powers, both in conduct of trial and responsible treat- of the institution for granted things relief to treat common ment, they volun- are characterized as distinguish distinguish and common tary patients because of circumstances Corp., able.” Jenkins v. United Gas they under which or someone on their (5th Cir.1968). F.2d Subsection signed behalf in.... 23(c)(4)provides appropriate: that when category The second in-between (A) may brought An action be main- composed chronically mentally of those respect as a action tained class certified, patients previously who were issues, (B) particular may a class presently legally are and who certificable into divided subclasses and each subclass fact, who are not certified in but [sic] class, provisions treated as a and the living community, are in the who Rule then shall be construed and advantage take of the would applied accordingly. if were available. particularly helpful This subsection is 7,May 1985, ruling, In its court trial enabling complex courts to restructure recognized also that the class eli- members requirements cases meet the Rule gible relief under Care and Treat- Wright, Kane, See 7B C. A. Miller M.& asserting ment Act10 differ from those a Federal Practice and Procedure § However, right.11 constitutional the court (1986). may A powers court utilize its un go enough defining did not far how 23(c)(4) parties der on a motion or on categories were each related to its own initiative. v. Regan, See Marcello relief, claim relying instead on its certi- F.Supp. 586, (D.R.I.1983). 591-92 one plaintiff fication of broad class. Given fact, in some it cases be an abuse of range extent class wide discretion if the court trial does initiate presented case, of issues in this court 23(c)(4) under action structure the class carefully Ben’s, should have more Inc., delineated action. See Johnson Uncle (5th Cir.1980), nature of each claim for relief 628 F.2d cert. de initially any 10.The court mem- described the class 11.The court noted that constitutional rights bers with under Care and Treatment to treatment would limited to: Act as follows: Those who released were into the commu- inpatients 1. Those who been have under nity hospitals part from the state of the certification, involuntary certi- still are movement, now deinstitutionalization re- fied; and Area; side in the Northwest Catchment inpatients 2. untary who Those have been on a vol- discharged 2. Those into the Northwest basis; and, in-patient hospital- from Catchment Area 3. Those who at one time were presently certified Department ization of Health and Hos- fact, although are not certified in pitals; and presently legally certifiable. presently 3. Those confined in mental health 7, 1985, order, May The court’s however is not aegis facilities under the De- the Denver entirely describing categories consistent in partment Hospitals of Health and who are granted rights who are under capable being community. treated in the act. conclude We those who have received evaluation or under treatment virtually 12.C.R.C.P. 23 is identical to Fed.R.Civ. provisions of the Care and Treatment therefore, interpreting P. the Colora- Act are within the has under rely 27-10-116(l)(a), applying do rule we on cases federal that act. See (1982). C.R.S. rule.
795
(1987).
293,
primary
If the
967, 103
Practice
74 L.Ed.2d
S.Ct.
1123.45[1]
nied 459 U.S.
injunctive
declaratory
for
relief
claim is
(1982).
277
damages
requested,
also
the case
are
court
23(c)(4)
a trial
authorizes
C.R.C.P.
23(b)(2)
proceed as a
action without
can
repre
for
appropriate
issues
to isolate the
damages
notice to class
if the
members
treatment,
Rice v.
see
sentative
can be characterized as incidental
claim
17,
(E.D.Pa.
20
Philadelphia, 66 F.R.D.
See, e.g.,
nature.
Probe v. State Teachers’
Crest, Inc., 59
1974);
Regal
v.
Goldstein
776,
(9th
F.2d
System,
Retirement
(E.D.Pa.1973),
or to subdi
F.R.D.
Cir.1986),
476 U.S.
cert. denied
categories, such
into suitable
vide a class
under involuntary certification and those inpatients who have voluntary been on a Treatment Act Care and was enacted basis. substantially present in its form 1973 municipal The state and defendants do provides comprehensively for the com challenge this applies conclusion as it mitment, persons care and treatment of involuntary patients, they argue that and, mentally who are ill aas result of the trial court in holding erred this illness, danger mental a to others or to right applies as voluntary patients. well to gravely themselves or disabled. The act They contend that the Care and Treatment encompasses voluntary both and involun distinguishes Act between voluntary and treatment, tary to be in desig administered involuntary patients right and that the set hospitals nated and other mental health 27-10-116(1)(a) forth in section applies only statutory facilities. The scheme contem to those involuntarily hospitalized. The plates seventy-two an initial hour treat municipal emphasize defendants that this ment and evaluation followed further court has referred to the Care and Treat voluntary care on a basis or certification ment Act as a commitment provid statute for not more than three months of short- ing hospitalize a method to involuntarily term pa treatment the absence of the those danger who are a to themselves or -108, tient’s consent. 27-10-103 to §§ others, see, e.g., People Taylor, (1982 Supp.). C.R.S. 1988& When further (Colo.1980), argue only those required, treatment patient may is be patients involuntarily committed have a long-term certified for treatment for suc continuing right to treatment after dis periods cessive six months. charge from a facility. treatment How 27-10-109,11 (1982 Supp.). C.R.S. & 1988 § ever, noted, as the trial court in section Provisions are periodic made for review of 27-10-101, (1982 11 C.R.S. Supp.), & 1988 appropriateness of continued certifica legislature purposes described the judicial tion and for determination that the the Care and extending Treatment Act as criteria for involuntary continued treats comprehensively to address the needs of all 27-10-111, 11 ment have been met. C.R. mentally ill as follows: (1982 Supp.). S. & 1988 (a) person To secure for each who contend such care that the Care and treatment provides and Treatment Act as will be suited ap to the needs of the person propriate care and treatment for to insure that such the chron care and ill, ically mentally hospitalized skillfully humanely while treatment are both ad- for living respect treatment and while ministered with full per- the com for the munity son’s discharge. dignity personal after At integrity; the time actions, commenced these section 27-10- (b) deprive person To of his liberty 116(l)(a), (1982),provided 11 C.R.S. perti purposes of treatment or only care part: nent when less restrictive alternatives are un- Any person receiving evaluation or treat- safety available and when his or the ment under provisions of this safety endangered; others (c) provide possible To the fullest mea- tinuum of coordinated treat privacy, dignity, sure of and other support ment and services.” The defend persons undergoing care and treat- challenge part ants of the trial court’s illness; ment for mental findings. argue The state defendants (d) present class is bound the use evidence encourage voluntary To regard ed in representatives, rather measures to than coercive secure state contends that this treatment and care mental evidence illness.... establishes that the named did (2) purposes, these carry To out receive treatment based their individual provisions liberally of this article shall be needs in setting. the least restrictive We construed. reject the argument. state’s The state de *12 addition, 27-10-116(l)(a) express- In fendants refer to no authorities sup person ly receiving states that “[a]ny eval- port argument, their which seems to be provi- uation or treatment under the based on premise the that the treatment (emphasis added) sions of this article” has accorded the named must also right psychiatric to medical and care and have been available to the other class mem treatment. bers. While it the plain is true that named construing Our in primary task a statute tiffs were to transferred less restrictive is give to ascertain and effect to the intent placements during action, the course legislature. People of the v. District the presented evidence at trial established Court, 918, (Colo.1986). 713 P.2d 921 To that many class were members not similar intent, legislative discern we must look to ly testimony treated. The revealed that statute, language the of the and words and many mentally ill chronically individuals in phrases given according must effect to the northwest Denver catchment area live plain their ordinary meaning. Id.; in boarding nursing houses or homes that Trinity Hall, Universal Insurance Co. v. adequate support lack and treatment ser 227, (Colo.1984). 690 P.2d 230 We conclude provide vices and therefore do a desir reading that the trial court’s of the Care therapeutic able environment. The record providing rights and Treatment Act as to shows small numbers of voluntary involuntary both patients is persons ill by are served such as fully language consistent the with of the care, outreach, day and vocational rehabili legislative expressed act and intent the in tation, many while others could benefit section 27-10-101. Halderman v. Cf. from such services. conclude that We Hospital, Pennhurst State School and evidence amply supports the trial court’s (3d Cir.1979) F.2d (construing 100-03 finding that failed satisfy the defendants to Pennsylvania’s Health Mental and Mental obligation provide plaintiff their to Retardation Act of 1966 to create an obli- adequate care and treatment in gation provide to mentally services hand- community. icapped on the basis of need), grounds, 1, rev’d on other 451 U.S. ruling, In May its the trial S.Ct. 67 L.Ed.2d Dix- funding court also determined that lack of F.Supp. on v. Weinberger, 405 979 did not excuse the defendants from fulfill (D.D.C.1975)(construing Hospital- the 1964 ing rights chronically mentally Mentally ization Ill require of the Act to under the Care and Treatment Act. In a placement in facilities in alternative ruling, later the court added that the Care community that are less restrictive than an Treatment Act created entitlement inpatient placement such facility when continuing and that treatment “nowhere purposes consistent with the rehabilitative Care and did Treatment [the Act] act). of the Legislature equate that entitlement to the court, having
The trial found a funds available from time to time for the stat treatment, purpose.” Legisla “if utory right concluded The court stated granted rights ture intended the under the by defendants had violated that “failing] required Colorado of the Men provide broad con Care and Treatment
tally expand implementation rights Ill Act to contract re whether cre- infusions, sponse fiscal by to its annual ated the Care and Treatment Act was Legislature ought make that intention legislature by intended to be limited crystal clear....” availability appropriations. trial court prema- We conclude that the Declaratory judgments are not to be is unnecessarily turely addressed the is- sued in the absence an actual controver sue of whether afflicted with sy. County Board Sullivan v. rights chronic mental illness have created Comm’rs, (Colo.1985); 692 P.2d by the Act Care and Treatment that must Tele-Communications, Community Inc. regard be satisfied without the amount (Colo. Corp., Heather 677 P.2d money appropriated legislature 1984); County Beacom v. Board of legislature purpose. for that chose to Comm’rs, (Colo.1983). create strong such use of In declaratory judgment order for a to be language of entitlement section 27-10- appropriate, 116(l)(a) pur- the statement of the complaint must therefore state a poses of the Treatment Care and Act in question which is existent and not a mere language section 27-10-101. This reflects academic or question. nonexistent firm part commitment and resolve on the words, justiciable other there must be a *13 Assembly of the adequate General legal controversy extant, issue or a and care provided and treatment will be to possibility not a mere that at some fu- mentally those ill who receive ser- ture question may time such a arise. vices under the Care and Treatment inAct County Denver, Heron v. keep order to them in the least restrictive 314, (1966); Colo. 411 P.2d However, possible. environment accord, e.g., Taylor v. Tinsley, 138 Colo. necessary money amount of to assure that 182, 183-84, 330 P.2d see any this commitment will be satisfied in -115, generally to 13-51-101 6A C.R.S. §§ is, nature, by year very subject its not to (1987) (Uniform Declaratory Judgments prediction. precise Law); C.R.C.P. 57. We conclude that the The trial plain- court has found that the trial court issuing abused its discretion in provided adequate were with tiffs care declaratory judgment question on the community. and treatment rights by whether the created the Care and court, however, stopped requiring short of by Treatment Act limited ap- available approving plan remedy to the viola- propriations because this issue is not a plaintiffs’ right tions of the to treatment present controversy. of its because conclusion Senate Bill declaratory Our conclusion judg- deprived jurisdiction 120 had the court to ment on was inappropriate this issue is implement plan. a remedial The features by reinforced the fact that the Care and plan adequacy of such a existing amended, Treatment Act has been as dis- funding implement facilities and to such a following cussed in the Section II B and plan have leg- never been determined. The that the governs amended section now islature, therefore, present- has never been rights of the adequate to care ed with a appropriations situation where obligations treatment of the have been found to insufficient to reme- legislature provide funding to neces- dy by violations of created the Care sary satisfy rights. to those
and Treatment no Act. have reason to We speculate Assembly that the would General unresponsive request supple- to a for a
mental appropriation legislature responded in such a situation.13 to the tri therefore, premature, is It to al ruling by passing determine court’s Senate Bill 13. The General Assembly empowered Assembly is appropriations plena- to enact General over supplemental, special appropriations 'by sepa- ry, subject only to constitutional limitations.” bills, embracing Lamm, subject.” rate Assembly each but one Colo.Gen. Const, V, power (Colo.1987). Colo. art. "The § 32. of the 27-10-116(l)(a) any enjoining to enter orders amended section the State De- which provide: implement fendants plan to the remedial implement was receiving which drawn to the for-
Any person evaluation treat- provisions merly-existing rights of this ment under these Plaintiffs. psychiat- However, article is entitled to medical and voluntary actions which treatment, regard ric to care will be taken the State Defendants 27-l-201(l)(a) listed services great public toward that end are of inter- (l)(e)14 listed in rules and and services est, and should be made known. Conse- regulations authorized section 27-1- quently, proper the Court deems it needs, 202, suited to meet his individual jurisdiction require within its it be way keep in such a and delivered furnished reports semi-annual of the ac- him in the least restrictive environment steps tual taken both State Defend- subject appropriations. to available Municipal ants and Defendants toward 27-10-116, Ch. sec. 1986 Colo. voluntary implementation of the re- added.) (Emphasis Sess.Laws plan. medial language emphasized also was inserted argue The defendants that the trial court provisions in other of the Care and Treat- properly dismissed the claims for 5,n. supra.15 ment Act. See When this injunctive relief.16 The state defendants law, amendment the state defend- became assert that under the amended statute dismiss, asserting ants moved to that the there is no unlimited community deprived as amended the court of statute based services and therefore no mandate implement jurisdiction plan. the remedial for the creation of additional agreed, concluding The trial court that it programs.17 fact, the state contends jurisdiction lacked to order the defendants that had the imple- trial court ordered the implement proposed plan: plan, mentation of the remedial its inter- (i.e., upon Based the current statute C.R. vention in a resource allocation decision 27-10-101, *14 seq., by S. et as amended Sen- separation pow- would have violated the of 120), Legislature ate Bill has cur- ers doctrine. rights given tailed the to these Plaintiffs. Separation Article III of the
Pursuant Colorado Constitution Powers Doctrine, jurisdiction provides: the Court lacks 27-l-201(l)(a) (e) part damages
14. Section
of a
16. The named
also asserted a
center,”
"community
definition of
mental health
claim for the violation of their
under the
provides:
which
prior
Care and Treatment Act
to its amendment
(1) "Community
by
mental health
Senate Bill 120. The trial court dismissed
center" means
claim,
physical plant
group
either a
concluding
of services
this
that the Care and Treat-
under unified administration or affiliated
"provides
express
Act
ment
neither an
nor an
another,
including
with one
following
at least the
implied
damages.”
cause of action for
We
provided
prevention
services
for the
agree
legis-
with the court’s
that the
conclusion
and treatment of mental
illness in
provide
lature did not intend to
for enforcement
residing
particular community
in a
in or near
by
damages.
individual claims for
facility
so situated:
services;
(a) Inpatient
emphasize
generally
17. The defendants
in
services;
(b) Outpatient
kind,
apply
cases of this
a court is to
the law in
(c)
hospitalization;
Partial
See,
effect at
time it
renders its decision.
services;
(d) Emergency
Board,
e.g., Bradley v. Richmond School
416
(e) Consultative and educational services.
696, 711,
2006, 2016,
U.S.
94 S.Ct.
40 L.Ed.2d
Realty
476
Miami Int'l
Co. v. Town of
15. We do not conclude that Senate Bill 120
Butte,
448,
(D.Colo.
F.Supp.
Crested
Mt.
607
451
any
exhibits
withdrawal
the General Assem-
1985).
cogency
This has
in the context of this
bly
provide
from its commitment to
services to
case,
overseeing
develop
since the court is
ill under the Care and Treatment
plan
ap
ment of a mental health
that will be
Instead,
appears
Act.
it
to reflect an under-
plied prospectively.
County
See
pub-
to maintain control of the
standable desire
410,
Tramway Corp.,
v. Denver
F.2d
Denver
187
expose
lic fisc and not to
it to unconditional
fact,
(10th Cir.1951).
parties ap
obligations
416-17
In
in absence of sufficient information
pear
agree
applies
permit
obligations
reliably quanti-
that the amended law
such
to be
case,
they disagree
over what it means.
fied.
this
government
powers
implementation
of this
plan
a remedial
into three distinct
state are divided
de-
this case would not violate the constitution
legislative,
partments,—the
executive
separation
al
powers,
mandate of
since
judicial;
person
no
collection the court
simply
interpreting
would
persons charged
with the exercise of
Act,
Care and Treatment
determining the
powers properly belonging to one of
requirements
act,
of that
directing
departments
these
shall exercise
spend
defendants
appropriated
the funds
power properly belonging to either of the
legislature
in accordance with those
others, except as in this constitution ex-
requirements.
pointed
As we
out in Unit
pressly
permitted.
directed or
ed Presbyterian Association v. Board of
power
appropriation
is vested in the County Commissioners,
485,
167 Colo.
Assembly.
As
Colorado General
General
(1968),
448 P.2d
judiciary
“the
Lamm,
(Colo.
sembly v.
700 P.2d
is the
authority
final
in the construction of
”
1985).
given
duty
The executive is
the constitution and the laws....
faithfully executed,
see that the laws are
As the
Supreme
Massachusetts
Judicial
and in
duty,
order to fulfill this
the execu
Court stated in Blaney v. Commissioner
authority
tive has the
to administer the
Correction,
374 Mass.
372 N.E.2d
appropriated by
legislature
funds
(1978),
traditionally
courts
have had the
legislature.
enacted
power to
“directing public
issue orders
offi-
Lamm,
Anderson v.
195 Colo.
carry
cials to
out their
obligations.”
lawful
(1978).
P.2d
authority
This
allows
Id. 372
case,
N.E.2d at
In
“specific
the executive to make
staffing
supervised
trial court
the development of a
and resource allocation decisions.” 195
specific plan regulating the classification of
Colo. at
ture and
or
ACT
not
contravene
Int’l,
existing statute.” Accord Miller
assert that
trial court
Revenue,
Department
Inc. v.
646 P.2d
dismissing
erred in
their claim based on
(Colo.1982);
Indemnity
Travelers
section 504 of
Act of
the Rehabilitation
Barnes,
Co. v.
191 Colo.
act. As the Director the State Division reform, private and institutional trial, of Mental Health testified at the rules including programs.” the creation of In its simply a mental state that 7, 1985, ruling, May the trial court noted health center: dismissal, by previous the earlier entered judge, apparently
is not to discriminate on the basis considered itself whatever, people class or that the who bound that earlier order. The court area, them, found, however, live in the catchment all of that: municipal disputed “handicapped term It is not that the state and individual" means [T]he (i) any person physical ... who has funding defendants receive federal their impairment substantially mental which limits chronically mental health or that the major person’s more of such life one or activi- mentally ill come within the definition of handi- ties, (ii) impairment, has a record of such 706(7)(B) capped persons 29 U.S.C. § under (iii) regarded having impair- such (Supp.1987): ment. *18 tioning patients part, Hospi- most Health and are able to travel to the [F]or care, physical health and mental health day tals’ facilities vocational reha- where designed are not for the se- programs bilitation, located, programs and other are chronically mentally persons verely, severely while the more ill or func- lower illness, who, their are unable because of tioning partic- individuals unable pursue appro- or to actively seek out ipate. The record also contains evidence priate care and treatment for their men- that outreach services are not available at problems. tal health boarding nursing most of the houses and in that mental homes the northwest Denver catchment The court then determined area, equally were not accessible that the are offered health services services that chronically mentally ill to all classes of scope. are limited in Without outreach ser- respect in persons vices, and that the mental severely effectively the most ill are program overtly was “both and cov- variety important denied access to a of ertly discriminatory.” selective programs. provides Finally, the record possible remedy court concluded that a support plaintiffs’ for the contention that July such discrimination consistent its programs termination of certain injunctive order would be relief reorganization of at the others end programs directing that curtailed in problems of 1984 exacerbated the access reopened expanded previously severely the more ill. This evidence turn however, existing Inexplicably, levels. supports finding the trial court’s of dis- plaintiffs then court ruled that had not Therefore, crimination. the trial court cognizable established a claim for relief dismissing erred in claim un- under section 504 of the Federal Rehabilita- der 504 of section the Federal Rehabilita- tion Act. tion Act. On remand the trial court should plaintiffs contend that the failure to specific findings concerning make factual provide severely persons the more disabled handicap discrimination based on and on access to services constitutes discrimina findings basis those should deter- solely particular tion on the basis of handi mine whether have estab- caps, in violation of section 504. Other lished violation of section 504. courts have determined that discrimination severity handicap on the basis vio the Federal lates Rehabilitation Act. See question of remedies available Branstad, v. 731 F.2d Plummer for violation of section 504 be before (8th Cir.1984)(“we assume that the severi remand, the trial court on and we elect to ty plaintiffs’ handicaps is itself a which, guidance May on this handicap offer issue. its under section 504 of the Act, 1985, order, above, as noted 1973 Rehabilitation cannot the sole trial court denying suggested possible reason for day remedy them that a would be [adult care] funding”); Bound, injunctive directing reopening Homeward Inc. v. His relief Center, som Memorial No. expansion 85-C-437-E provide the level (N.D.Okla. 24, 1987) July [available of services available before cutbacks WESTLAW, (institution 1987 WL 27104] 1981. The contend that the court retarded discrimi suggestion injunc- was correct its severity handicap); nated on basis relief tive would be available for the re Gallen, Garrity F.Supp. 215 opening programs, assert that (D.N.H.1981) (same). persuaded We are the court could have ordered relief broader correctly interpret that these cases discrimination, remedy past including programs. development They of new Bound, rely on Homeward Inc. v. Hissom findings The trial court’s indicate that Center, (N.D. Memorial No. 85-C-437-E program the mental health discriminated 24, 1987) July Okla. on WEST- against plaintiff some members of the [available LAW, 27104], severity handicap. based on 1987 WL in which the court The record higher contains evidence that func- is a to effective concluded that there
«05 *19 integrated provided services under section 504 individual must be with mean- the that of Federal Rehabilitation Act and ingful access to the benefit that the grantee underdevelopment community itself, offers. The
the
of a
benefit
of
course,
system
services
the
con-
cannot
in a way
Defendants
be defined
that
original
effectively
stitutes a
of the
qualified
continuation
denies otherwise
continuing
practiced by
handicapped
discrimination
the meaningful
individuals
against
people;
retarded
State
entitled;
to
they
access which
are
to as-
development
affirmative
of
meaningful access,
sure
reasonable ac-
necessary
services
to
ef-
remedy
grantee’s
commodations in the
program
fect.
may
or benefit
be
have to made.
Slip op. at 51.
300-01,
Id. 469
at
U.S.
We conclude that the
not
are
injunctive
entitled to the broad
relief
construing
Other courts
section 504 have
Community
seek.
In Southeastern
Col- emphasized
requires
that the
only
statute
Davis,
397,
2361,
lege v.
442 U.S.
99 S.Ct.
changes
programs.
“reasonable”
As the
(1979),
The balance struck in Davis
qualified handicapped
available
northwest
that an otherwise
holding
Denver catchment area for those
damages
members
courts
are
available under the
plaintiff
class who can realize the
Federal Rehabilitation
Congress
Act conclude that
intended to al
programs.21
of such
benefits
through
low for enforcement
actions for
plaintiffs in
also ar
The named
Arevalo
damages, noting that the Act does not ex
damages
should
gued to the trial court
pressly
availability
limit the
damages.
remedy for
as a
violation
available
Kling County
Angeles,
Los
769 F.2d
rejected
court
that con
but the
(9th Cir.) (damages
particular
*20
there is a consensus that
tention. While
ly appropriate
injunctive
where
relief will
private right of action
section 504 creates a
harm),
remedy
rev’d on other
relief,
declaratory
injunctive
federal
for
grounds,
936,
300,
474 U.S.
106 S.Ct.
88
question
courts are divided on the
of wheth
(1985);
Missouri,
L.Ed.2d 277
Miener v.
damages remedy
er
for
a
available
viola
969,
(8th Cir.) (damages
673 F.2d
977-78
holding
The courts
that
tion of section 504.
discrimination),
necessary remedy
available as
damages remedy generally
is no
there
have
denied,
909,
t.
459 U.S.
103
cer
legislative
Longoria
relied
intent.
on
v.
215,
S.Ct.
E.
COMMON LAW DUTY
manner in
OF
which DHH with-
CLINICAL CARE
drew as a
mental health center
January
instances,
In both
assert
the trial
patients received a maximum of thirty days
*21
dismissing
court
erred
their claim that
notice, while some received no notice at all.
municipal
defendants
duty
violated the
plaintiffs
The
assert
that the municipal
de-
plaintiff
clinical care owed to the
class.
They contend that
fendants
providers
health care
should be held accountable for
duty
have
common law
to exercise rea
their
duty
being
breach of this
required
diligence
sonable care and
in the treatment
provide
compensate
services that will
patients,
of their
and that such a health
class members for
injuries they
suf-
provider may
care
be found
for
liable
aban
fered when mental health services were
doning patients who are still in need of
addition,
reduced.
assert
care
providing adequate
without
notice.
should
damages
be free to seek
Kinton,
See Bolles v.
147, 149,
83 Colo.
263
for this breach.
26,
(1928) (“A
P.
27
physician cannot dis
imposition
duty
of a
raises serious
charge a case and relieve himself of re
Bell,
see Taco
policy implications,
Inc. v.
sponsibility
by simply
for it
staying away
Lannon,
43,
(Colo.1987);
Univ
744 P.2d
46
without
patient.”).
notice to the
Katse
Cf.
Whitlock,
ersity
Denver v.
54,
Nolan,
tos v.
637,
172,
170 Conn.
368 A.2d
(Colo.1987);
County School
56-7
Jefferson
(a
(1976)
182
physician
duty
is under a
Justus,
Dist. R-1 v.
22. Section 323 the harm is suffered because of the other’s undertakes, upon undertaking. gratuitously who reliance [o]ne or for con- sideration, duty to render services to another Section 324 describes the of one who recognize necessary which he should for charge helpless, takes of another who is protection person things, of the other's or 324(A) liability outlines the an actor subject liability physical to the other for negligent performance to third owes for resulting harm from his failure to exercise of services. perform undertaking, reasonable care to his if (a) his failure to exercise such care increases harm, the risk of such or actions difficulties in assess- presents This case the defendants’ affected damages.23 damages, Each class or both. liability liability, ing both respect resulting from the asserting injury member violation of the com- municipal defendants’ II, F. 42 U.S.C. AND ARTICLE § clinical care would have to duty mon law 25, OF THE COLORADO § individually the services he or she establish CONSTITUTION 1, 1981, receiving prior to June was plaintiffs argue that the trial court 1, 1985, as the services
January
as well
improperly
their claim based on
dismissed
change
delivery
received after
Act,
Rights
Federal Civil
42 U.S.C.
services. Once a claimant
mental health
(1982),
deprivation
of federal
that the mental
services
established
statutory rights under
constitutional and
him or her were reduced or
provided to
of state
It is well established
color
law.
notice,
adequate
without
terminated
that section 1983 itself creates no substan
claimant would still have to establish
reduction,
rights;
provides
remedy
merely
as a result of this
tive
it
harm suffered
necessary
and it would then be
to fashion
deprivations
rights protected by
of federal
monetary
injunctive
appropriate
relief.
the United States Constitution or federal
appears
City
This case
similar to Rice v.
Tuttle,
City
laws.
Oklahoma
Philadelphia,
F.R.D. at
which
808, 816,
2427, 2432,
471 U.S.
S.Ct.
court noted:
(1985);
Thiboutot,
L.Ed.2d 791
Maine v.
case,
present
In the
would the
448 U.S.
100 S.Ct.
Manecke v. School Bd.
Pinellas Coun
process
there is a federal constitutional due
(concluding
ty,
F.Supp.
at 790-91
that a
right
based mental health
damages remedy
either
under
504 or
§
plain
services for certain members of the
pur
1983 would be inconsistent with the
§
class,24
corresponding state
that a
tiff
Act)
poses
the Federal
Rehabilitation
right
II,
also exists under article
Independent
and Ruth Anne M v. Alvin
plain
of the Colorado Constitution. The
Dist.,
(same);
F.Supp. at 475-76
School
urge
tiffs
this court to address the exist
Regents University
with Pushkin v.
ence of a federal or state constitutional
Colorado,
(10th Cir.1981)
F.2d 1372
community. They
to treatment in the
(recognizing
that a
1983 claim
§
anticipate
adequate
that there will not be
504)
Sequoia
based on
and Boxall v.
§
funding
implement the
state’s remedial
Dist.,
High
F.Supp.
at
Union
School
plan25 and
ask this
court to determine
(damages
1112-13
are not available under whether the United States and Colorado
such a
could
claim
be asserted
§
require that
the remedial
Constitutions
1983).
sug
under
At least one court has
However,
plan
fully implemented.
more
gested
recog
that since most courts have
point
question
premature.
at this
It
private right
injunctive
nized a
of action for
money
is not clear how much
is available to
declaratory
relief under section
court-approved
plan.
fund
remedial
many
recognized
damages
courts have
addition,
appropriated
if the amount
is not
action,
pro
the Federal Rehabilitation Act
sufficient,
the defendants must first re
comprehensive range
vides a
of remedies
quest
legislature provide
that the
the fund
for enforcement and an action to enforce
ing
implement
plan fully.
required to
*23
unnecessary.
the act under section 1983 is
Correction,
Blaney
See
v. Comm’r
of
Special
See Miener v.
School Dist.
St.
(“the
at 774
defendants have not
N.E.2d
of
F.Supp.
County,
Louis
567-68
the
they
shown that
could not fulfill
man
(E.D.Mo.1984),
grounds,
rev’d on other
appropria
date of
within the
[the statute]
(8th Cir.1986). However,
F.2d 749
since
Legisla
department
tions of the
or that the
disagree on
federal courts
this issue and
appropriate
has declined to
funds nec
ture
developments, including
further
resolution
essary
permit the defendants to fulfil
to
question
types
of the related
of the
of
statutory duty”). Only
their
after the de
relief
for violation of section 504
attempted
implement
available
to
the
fendants have
Act, may
plan fully
of the Federal Rehabilitation
clar
do so should
and are unable to
plaintiffs’
24. The
contention that there
Romeo,
is a due
Youngberg
457 U.S.
102 S.Ct.
process right
community
to
(1982).
treatment under the
«11
Any
obligation
under which Senate
such
so raised
contra-
The circumstances
passed
Bill
indicate that
Gener
vention of this section shall not be bind-
120 was
to limit the relief that
Assembly
ing against
al
intended
the state but shall be null
of section
could be ordered for violation
incapable
and void
initio and
ab
of rat-
ap
to the amount of available
27-10-116
by any
authority
ification
administrative
Bill 120 was a re
propriations. Senate
give
against
of the state to
effect thereto
sponse to the trial court’s invitation to the
every person incurring
the state. But
Assembly
“crystal
to make
clear”
General
ordering
voting
for the incurrence of
concerning availability of mone
its intent
obligation
surety
such
and his
shall be
tary relief for violation of the Care and
jointly
severally
liable therefor.
title of
Bill
Treatment Act. The
Senate
(1982).1
statute,
10 C.R.S.
Under this
de-
controlling, supports
though not
partment
approve
officials
an ex-
Assembly
intended
view that
General
penditure in
appropri-
excess of the amount
monetary
to limit
relief to the amount of
Assembly.
ated
the General
To do so
appropriations. Senate Bill 120 is
available
subject
personal
could
them to
liability for
Concerning
entitled “An Act
Clarification
appropriations.
the amount of excess
Any Right
That
To Mental Health Services
interpretation adopted by the trial court
Assembly’s
To The
Subject
Is
General
place
public
would
these
officials in the
Establish,
Right
By Appropriation,
To
position
being compelled
untenable
Level Of Service To Be Rendered.” Ch.
statutorily prohibit-
release funds
27-10-116, 1986
210, 4,
Colo.Sess.Laws
§
releasing.
ed from
That the General As-
added).
(emphasis
I conclude
sembly intended such a result is unthink-
Assembly
from the title that the General
able.
prior
passage
of Senate Bill 120 intended
any right
to limit
to mental health services
II.
pursuant
Care and Treatment Act to
appropriations. Finally,
available
restric
remaining
issues addressed
placed by
Assembly
tions
the General
on majority
properly
are not
before the court
in payment
disbursements made
of liabili
disposition
of its
because
the case for
ties incurred on behalf of the state indicate
comply
failure to
with various subsections
monetary
implementation
relief for
of of
23. I would refrain
C.R.C.P.
from offer-
section 27-10-116 could not be ordered
ing
advisory opinion
amounts to an
what
appropriations.
excess of available
Section
II.C, II.D,
the issues addressed in Parts
24-30-202(3) provides:
II.E,
majority opinion.
and II.F of the
This
any
give
In no
empowered
advisory
event shall the head of
state
court is not
institution,
department,
agency
opinions
hypothetical
or other
based on
fact situa-
controller,
Johnson,
Tippett
or the
either
himself or
tions.
v.
P.2d
him,
(Colo.1987);
through any
designated by
Sav.,
assistant
Kemp
Empire
v.
approve any
Ass’n,
Bldg.
commitment voucher involv-
Loan
660 P.2d
&
ing
(Colo.1983);
expenditure
any
People Campbell,
sum in excess of
196 Colo.
the unencumbered balance of the allot-
see
resulting
Beals,
ment to which the
disburse-
also Hall v.
396 U.S.
90 S.Ct.
(1969).
charged.
person
ment would be
No
shall
much of Part express opinion I no
special concurrence. II.C, II.D, II.F, II.E
as to Parts
dissent as Part II.B.l. say
I ER- am authorized Justice in this joins
ICKSON concurrence dis-
sent. OF COUNTY BOARD COMMIS- OF the
SIONERS COUNTY OF La
PLATA, political governmental Colorado,
subdivision State of
Petitioner, MORELAND, Respondent.
Frederick
No. 86SC181. Colorado,
Supreme Court of
En Banc. Nov. Evans, Waltz, & A. Hall Richard Alan Denver,
Epstein, petitioner. Johnson, Durango, E. respon- Alan dent. Woodard, Gen., Atty.
Duane Charles B. Howe, Gen., Deputy Chief Atty. Richard H. Forman, Gen., Hutchins, Sol. Milton John Gen., Atty. Denver, Asst. for amicus curiae State of Colorado. Robinson, McDermott, H.
Scott P. Gerald Denver, for amicus curiae Colorado Trial Lawyers Assn.
LOHR, Justice. respondent, Frederick More- land, a paraplegic became as a result of a fall from an of a unenclosed deck cabin Durango. brought near located He suit in against negligence County of La Plata (County)1 upon based failure of 30-11-105, (1986), requires be, 1. § 12A C.R.S. or be sued shall county “The board com- ’" proceedings by against all county "[i]n suits missioners of of... The defendant county, county styled county the name in which the shall sue case in this was as “The board of