Tuesday, July 31, 2012

Federal District Court Breaks New Ground In Allowing TABOR Lawsuit To Proceed

Yesterday in Denver, U.S. District Judge William J. Martínez ruled that the lawsuit against Colorado’s Taxpayer Bill of Rights (known as “TABOR,” and which “limits state spending and bars lawmakers from raising taxes without a vote of the people”) could proceed partly under the theory that it violated “Republican Form of Government Clause” of Article IV, Section 4 of the United States Constitution.   In so ruling, Judge Martínez boldly went where no Supreme Court Justice had gone before – she found that a case alleging a “Republican Form of Government” violation as its theoretical basis was justiciable (i.e. the Court could rule on it as opposed to being required to immediately dismiss it).  Many cases, in fact, had held the opposite.  See, e.g.,Luther v. Borden, 48 U.S. (7 how.) 1 (1849), Pacific States Tel. & Tel. Co. v. Oregon, 223 U.S. 118 (1912); Baker v. Carr, 369 U.S. 186 (1962).  It will be interesting to see whether there a possible future appeal on this point reaches the same result.   It will also be interesting to see if any conservative legal groups/attorneys take the ruling as an invitation to challenge taxing and spending mandates approved through the initiative process that progressives have backed.  See, e.g.,  (courtesy of the Reply Brief in the case) Colo. Const. art. IX, § 17 (Amendment 23, added by initiative in 2000); art. X § 21 (Tobacco Tax, added by initiative in 2004).

The Case is Kerr et al. v. Hickenlooper, No. 11-cv-1350-WJM-BNB (D. Colo.)  More information on the progress of this case, including pertinent court filings, can be found here.

Elliot Fladen is a graduate of Stanford Law School and an attorney practicing law in Colorado Springs at The Fladen Law Center.  Nothing in this column constitutes legal advice or begins an attorney-client relationship with Mr. Fladen.

Wednesday, July 25, 2012

Musings On Psychiatric Liability For The Aurora Shootings

According to a FoxNews.com report, the alleged Aurora batman shooter James Holmes sent a notebook “full of details about how he was going to kill people. . . . [with] drawings of what he was going to do in it -- drawings and illustrations of the massacre” to a University of Colorado psychiatrist before the attack. The psychiatrist, however, did not receive the notebook as it had been sitting unopened in a mailroom for almost a week. Additionally, the FoxNews report could not verify whether the shooter had a prior relationship with the psychiatrist to whom he mailed the notebook. These facts now raise questions as to what liability, if any, may ensue from the mailing of this package and the psychiatrists failure to receive it. This blog post will seek to address those questions in an informal/nonlegal advice manner. Again and as usual, nothing here constitutes legal advice, so please consult with an attorney before relying on any of it.

Before beginning my analysis, I'm going to flag several assumption I am making which may or may not be factually and/or legally accurate. First, I will be assuming that Mr. Holmes was previously the psychiatrist in question's patient. Second, I will be assuming that the psychiatrist had a legal duty to open the mail that Mr. Holmes addressed to him. Finally, I will be assuming that the psychiatrist's failure to open said mail will lead a reviewing a Court to deem that he read the notebook in question. Under such assumptions, the psychiatrist may in fact have liability to the victims of the shooting if the notebook's contents either (a) showed a serious threat of imminent physical violence against the specific patrons attending the theater on the date and time in question; or (b) were sufficiently clear to create an obligation place Mr. Holmes under an immediate 72 hour psychological hold.

To start the analysis, C.R.S. § 13-21-117 generally absolves psychiatrists from liability to third persons “for damages in any civil action for failure to warn or protect any person against a mental health patient's violent behavior.” The statute similarly protects psychiatrists for their “failure to predict such violent behavior.” The statute, however creates exceptions to this absolution of psychiatrist liability when: (1) the patient has communicated to the psychiatrist a serious threat of imminent physical violence against a specific person or persons; or (2) after a personal patient evaluation determining that the person appears to have a mental illness and, as a result of the mental illness, the psychiatrist determines that the patient appears to be an imminent danger to others and then negligently fails to initiate involuntary seventy-two-hour treatment and evaluation. Thus, for the psychiatrist to have liability to the Aurora shooting victims, there must be sufficient facts triggering one of these two exceptions.

It is unclear from the FoxNews.com story whether the Notebook's contents were sufficient to trigger liability under the first exception. While the story indicates that the Notebook was “full of details about how [Mr. Holmes] was going to kill people” it did not indicate if the Notebook was full of details as to where or when Mr. Holmes was going to in fact engage in such killing. Without details about timing, the psychiatrist may have a defense that the any danger was not imminent. More importantly, without details regarding the place of the shooting, there would not be a threat against “a specific person or persons” sufficient to trigger said exception. However, if the notebook in fact had details clearly indicating that Mr. Holmes was going to commit murder at the Aurora Mall Theater at the Batman Showing in the early morning hours of July 20, 2012, then the psychiatrist may have liability under this first exception.

As for the second exception, under C.R.S. § 27-65-105(1), the psychiatrist could have had Mr. Holmes placed under a seventy-two-hour hold as a danger to others. The psychiatrist's failure to do so will only trigger liability if there was already a “personal patient evaluation” that determined Mr. Holmes appeared to have a mental illness and was a danger to others. C.R.S. § 13-21-117. Given that we are assuming Mr. Holmes was already a patient of the psychiatrist and would have conceivably, under that assumption, already received a personal patient evaluation, there are two open questions. First, would the psychiatrist already have determined that Mr. Holmes had a mental illness that made him a threat to others? Second, if the psychiatrist had not so determined, would receiving the notebook after the “personal patient evaluation” trigger the second exception? If the answer to either question is yes, then the psychiatrist may in fact have liability.

Again these conclusions that the psychiatrist may in fact have liability under either of C.R.S. § 13-21-117's applicable exceptions are merely musings. They are not in any way legal advice. Moreover, they are based on several assumptions that may or may not be factually and/or legally accurate that I have spelled out above. However, the overall analysis may be useful to an attorney that wishes to use them as the starting point for his or her analysis of this case and as such, I am posting it.
Elliot Fladen is a graduate of Stanford Law School and an attorney practicing law in Colorado Springs at The Fladen Law Center.  Nothing in this column constitutes legal advice or begins an attorney-client relationship with Mr. Fladen.

Sunday, July 08, 2012


I think, despite my earlier contentions to the contrary, that I am going to vote for Romney in the general election. This vote will be due to one consideration only - the sheer number of Supreme Court justices that may be retiring during the next presidential term. 

We need a Supreme Court that will overturn Roe v. Wade, Wickard v. Filburn, Gratz v. Bollinger, and Kelo v. City of New London. The only chance for such a Court is with a Republican in the White House. 

About the author (updated in July 2012): Elliot Fladen is an attorney practicing law in Colorado Springs, Colorado.  Nothing in this blog is meant to constitute legal advice unless explicitly stated to the contrary. 

Sunday, July 01, 2012

The Executive Branch Has Authority To Give Work Authorization To Illegal/Undocumented Immigrants

Yesterday at the Western Conservative Summit, fellow Cleveland sports fan and legal scholar Hugh Hewitt contended that Obama (through the executive branch) does not have authority to grant illegal/undocumented immigrants (hereinafter "unauthorized" work authorization without congressional approval.  Hugh Hewitt is mistaken. 

United States Code Section 1324(a) (citation 8 U.S.C. § 1324a is the statute that makes the employment of unauthorized aliens illegal.  Under Section 1324a(a)(1): 
It is unlawful for a person or other entity—
(A) to hire, or to recruit or refer for a fee, for employment in the United States an alien knowing the alien is an unauthorized alien (as defined in subsection (h)(3) of this section) with respect to such employment
(emphasis added).  Notice the bolded section?  That is crucial as it makes clear that only the hiring of aliens that 8 U.S.C. § 1324a(h)(3) covers is illegal.  Thus, it is crucial to carefully look at what Section 1324a(h)(3) states.  I have copied its language below which makes clear Hugh Hewitt's mistake:
As used in this section, the term “unauthorized alien” means, with respect to the employment of an alien at a particular time, that the alien is not at that time either
(A) an alien lawfully admitted for permanent residence, or

(B) authorized to be so employed by this chapter or by the Attorney General.
(emphasis added). By this language, it is clear that the law allows the executive branch to authorize illegal immigrants to be hired.  Relevant to President Obama's June 15 policy memo allowing certain DREAMers  to apply for Deferred Action and receive work authorization, the executive branch long ago set out a regulation (8 C.F.R. § 274a.12, hereinafter the "Regulation") applying how it would use this authority that Section 1324a gives it.  Section (c) of the Regulation states as follows:
An alien within a class of aliens described in this section must apply for work authorization. If authorized, such an alien may accept employment subject to any restrictions stated in the regulations or cited on the employment authorization document. . . .  
(14) An alien who has been granted deferred action, an act of administrative convenience to the government which gives some cases lower priority, if the alien establishes an economic necessity for employment;
(emphasis added)

This makes clear that by a regulation existing long before the June 15 policy memo, aliens granted deferred action were allowed to apply for employment authorization which the executive branch would consider giving them.  And, to repeat, the authority for such regulations clearly derives from Section 1324a, a statute that a prior session of Congress passed and that a prior President signed into law.  Accordingly, Hugh Hewitt's argument that President Obama does not have authority to grant the DREAMers work authorization is mistaken. 

(1) This is not legal advice.  I am not your attorney and anything said here may be mistaken.  So do not rely on it without first consulting an attorney.
(2) I am not an expert on immigration law - this is just my plain reading of the statute and regulation that appear on point. 

About the author (updated in July 2012): Elliot Fladen is an attorney practicing law in Colorado Springs, Colorado.  Nothing in this blog is meant to constitute legal advice unless explicitly stated to the contrary.