Clinton Redux: a Mental Health and Technical Defense Follow-up

• Jurisdiction: Colorado,United States
• Citation: Vol. 22 No. 11 Pg. 2389
• Pages: 2389
• Publication year: 1993

22 Colo.Law. 2389 Colorado Lawyer 1993.

1993, November, Pg. 2389. Clinton Redux: A Mental Health and Technical Defense Follow-up

---

2389

Vol. 22, No. 11, Pg. 2389

Clinton Redux: A Mental Health and Technical Defense Follow-up

by Philip Robert James

This article updates previous articles concerning appellate court decisions regarding mental health certification defense and technical defenses.(fn1) "Technical defense" in this article means any defense in favor of the certified respondent that tends toward the procedural, rather than the substantive. For example, complaining that an attorney was not appointed for the respondent forth with, that the certification documents were not sent promptly from the hospital to the court or that the wrong judge signed the mental health hold are all procedural. Bringing in an independent psychiatrist to testify that the respondent is not dangerous to himself or herself or others is substantive

Background: The Clinton Decision

The first procedural defense mentioned above, forthwith appointment of an attorney, is old news and not good news for the defense. In the 1990 case of People in the Interest of Clinton,(fn2) the trial court judge determined that the court's failure to appoint an attorney for eight days, including four working days, was not sufficient to cause the certification to fail.

The Colorado Supreme Court agreed. If a certification is "properly filed" in the district court, the Supreme Court said, subject matter jurisdiction attaches, and no error on the part of the court can extinguish it. If the trial court makes an error, or the state, doctor or hospital makes an error, the court by motion or at trial must determine whether the error is sufficiently extreme (that is, a due process violation so terrible) as to require the certification to fail as a remedy for the violation of law. Clinton rejects the contention that an error, even by the court, after proper filing of the certification, extinguishes subject matter jurisdiction in the trial court, causes the certification to fail and frees the respondent to leave the certifying hospital.

However, Clinton also leaves open the question of the effect of errors that occur prior to the proper filing of the certification in the district court, such as mistreatment of the respondent or abuse of his or her rights. Tantalizing language in Clinton leaves open the possibility of a jurisdictional, technical defense for errors arising prior to the filing of the certification:

It is not sufficient that the court has, in the abstract, the authority to decide the particular class of case which is before it. The court's authority must be invoked before it can act. . . . Once the petition has been properly filed, the court in which the petition is filed is the court of original and continuing jurisdiction. . . .(fn3) [Emphasis supplied.]

The two new Court of Appeals cases discussed below make it clear that jurisdictional, technical defenses are alive and well, and living in the period preceding the filing of the certification in the district court. Moreover, these defenses substantiate the statutory protections for otherwise helpless mental health respondents at a time in the mental health certification process when there is no court...