IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF COLORADO 

Civil Action No. 11-CV-02285-NYW

CENTER FOR LEGAL ADVOCACY, d/b/a 

DISABILITY LAW COLORADO,

Plaintiff,

v. 

REGGIE BICHA, 

in his official capacity as Executive Director 

of the Colorado Department of Human Services, and 

RONALD B. HALE, 

in his official capacity as Superintendent 

of the Colorado Mental Health Institute at Pueblo, 

Defendants.

UNOPPOSED MOTION TO REOPEN ACTION FOR ENFORCEMENT 

OF SETTLEMENT AGREEMENT 

Plaintiff, Center for Legal Advocacy, d/b/a Disability Law Colorado (“DLC”), 

respectfully moves the Court to reopen this action for enforcement of the settlement agreement 

between Plaintiff and Defendants Reggie Bicha, in his official capacity as Executive Director of 

the Colorado Department of Human Services (the “Department”) and Ronald B. Hale,

1

in his 

official capacity as Superintendent of the Colorado Mental Health Institute at Pueblo 

 

1

 Ronald Hale has been replaced by Chief Executive Officer Jill Marshall, a caption change 

which the parties will make once the case is reopened. Upon reopening, Plaintiffs will add Dr. 

Robert Werthwein, Director of the Office of Behavioral Health, who is also responsible for the 

contractual and constitutional violations at issue. 

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(“CMHIP”). This motion is deemed unopposed pursuant to the terms of the parties’ Amended 

and Restated Settlement Agreement ¶ 6(c) (Dkt. 78-1) (the “Settlement Agreement”). 

Certification pursuant to D.C.Colo.LCivR 7.1 

Counsel for Plaintiff and Defendants have communicated since June 2017 about the 

issues raised in this motion. These conferrals have included numerous letters, emails, phone 

calls, at least five multi-hour in-person meetings, a full-day stakeholder meeting and a follow-up 

half day settlement meeting. However, the parties have been unable to resolve what DLC 

believes constitute egregious breaches of the Settlement Agreement that settled this action twice 

previously. While this motion is deemed unopposed pursuant to the parties’ Settlement 

Agreement, Defendants have advised DLC that they do oppose the relief sought herein and they 

also oppose reopening to the extent the motion goes beyond challenging the Department’s 

invocation of departmental special circumstances. 

INTRODUCTION 

1. Despite consenting to two court-approved settlement agreements with DLC, the 

State of Colorado, through the Department of Human Services and cabinet-level officials, 

continues to disregard the constitutional rights of some of the most vulnerable members of our 

community—individuals who suffer from severe mental illness—by failing to provide timely 

competency examinations and restorative treatment. Through inaction, the State continues to 

unlawfully jail presumed innocent people solely because they suffer from mental illness. This 

situation is unconstitutional, unconscionable, and unacceptable. 

2. The State claims that it lacks sufficient capacity to meet the needs of this helpless 

population, but ignores that it is statutorily charged with providing these mental health services 

and must timely do so to comport with due process. There should be no excuses, particularly 

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after ten years of largely empty promises to fix the problem and address foreseeable increases in 

referrals. Rather than partner with and fund community mental health treatment centers or 

initiate and support legislative changes to remedy the current situation, the State has 

unconstitutionally used county jails as its own private self-storage to house the mentally ill. 

County jails are ill-equipped to provide the necessary mental health care and treatment to these 

individuals and lengthy stays further jeopardize their health and welfare. 

3. Many pretrial detainees who are suffering from serious mental illness are being 

held in jail due to an arrest on minor offenses, but they cannot afford the most minimal bail to 

be released from jail as they wait resolution of their cases. A natural and desperate consequence 

of the extraordinary length of jail stays that are occurring in breach of the Settlement Agreement 

is that there is no place to keep detainees safe from themselves and other inmates while in jail 

except to lock them away in solitary confinement or “lock down.” Solitary confinement is far 

from therapeutic, and most of the time it is contraindicated for an individual who is 

experiencing psychosis or delusions. In some cases, while being physically restrained or 

forcibly taken to isolation, detainees may flail or intentionally hit the corrections officers who 

are trying to move them, resulting in felony assault charges being added to the list of criminal 

charges facing the detainee. 

4. Recent studies show that there are more inmates suffering from serious mental 

illness housed in Colorado’s jails than at CMHIP. Currently, there are close to 300 individuals or 

2000 individuals per year languishing in county jails in limbo. They are presumed, or have been 

determined by a judge, to lack the ability to proceed in their criminal cases, yet they remain 

locked up for an indefinite period of time waiting for the State to provide its competency 

examination or restoration services. The State is obligated under the terms of the Settlement 

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Agreement to admit these individuals for examination or restorative treatment at CMHIP within 

28 days. Some of these individuals have been waiting for more than 100 days. For those found 

incompetent and waiting for treatment at CMHIP, their wait can amount to five months from the 

date they were arrested. The wait times bear no relationship to the offenses these individuals 

have been charged with, which are often low-level and non-violent misdemeanor charges 

stemming from their mental illnesses. The result of these lengthy, unconstitutional delays is a 

vicious cycle. The longer the State makes these individuals wait for evaluation and restorative 

services, the more exacerbated their mental illnesses become, thereby leading to longer 

restorative timeframes and a higher likelihood that these individuals will be deemed permanently 

incompetent. In many cases, the wait times exceed the amount of time (if any) these 

presumptively innocent individuals would have served if they had pled guilty. 

5. For DLC, Colorado’s federally-charged protection and advocacy system for 

people with disabilities, this is more than just a numbers game. Not only do the current delays 

violate the timeframes Defendants twice agreed to in the settlement agreements, they also are in 

violation of the United States Constitution. These individuals have the right to be treated with 

dignity and respect. For the pretrial detainees warehoused in Colorado’s jails, Defendants’ 

unconstitutional and unconscionable delays providing competency evaluations and restorative 

treatment are the result of ineptitude, a tragic pattern of institutional indifference, or both. 

6. In the Settlement Agreement, Defendants agreed to timelines for handling inpatient competency evaluations and restorative treatment at CMHIP. Specifically, Defendants 

are required to offer admission to such persons within 28 days from when they are deemed ready 

for admission. Defendants are also required to maintain a monthly “days waiting” average of 24 

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days. The purpose of these timeframes is to ensure timely evaluation and treatment of the 

mentally incompetent and to prevent the very circumstances that exist today. 

7. If, however, the Department’s ability to meet the timeframes under the Settlement 

Agreement was impacted by a special circumstance outside of its control that is unforeseen or 

unanticipated, then the Department could invoke “Departmental Special Circumstances” to 

temporarily suspend the timeframe requirements of the Settlement Agreement for no longer than 

six months to allow the Department sufficient time to return to compliance. 

8. Unfortunately, Defendants have made little effort to comply with the timeframes 

they reaffirmed only two years ago, and have instead abused Departmental Special 

Circumstances to excuse their conduct. Initially, the Department invoked Departmental Special 

Circumstances in June 2017. The Department re-invoked it in December 2017, on the day that it 

would have been in further breach, claiming it can consecutively invoke Departmental Special 

Circumstances for the same problem. 

9. The problem with Defendants’ invocation of Departmental Special Circumstances 

is that: (1) Defendants cannot invoke Departmental Special Circumstances based on 

circumstances that are within their control and have persisted for more than a decade and by 

definition are not unanticipated or unforeseen; and (2) even if Defendants’ initial invocation in 

June 2017 was well-grounded (which it was not), they could not re-invoke Departmental Special 

Circumstances six months later in December 2017 for the same alleged reason. Under that logic, 

Defendants could re-invoke Departmental Special Circumstances every six months and never 

have to return to compliance. Allowing Defendants to misuse the Settlement Agreement by 

placing the timelines on hold for a year or more (or forever) eviscerates the agreement’s purpose 

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to protect the constitutional rights of the mentally ill by requiring timely evaluation and 

treatment. 

10. DLC did not come to this Court without exhausting all other options first. It has 

spent a year negotiating with the State. In late February 2018, DLC and Defendants held a 

stakeholder meeting lasting an entire day. The parties, prosecutors, public defenders, mental 

health practitioners, judges, state court administrators, and the legislative budget liaison 

participated to find solutions. At the stakeholder meeting, the State left DLC with the impression 

that it was negotiating in good faith and looking for long-term solutions. 

11. The larger stakeholder group discussed proposed legislation that parties could 

accept and help solve the problem. The Defendants assured DLC it would support and pursue 

legislation that would help pretrial detainees and address the long jail wait times. The 

Defendants introduced a bill (SB-252) that would have reduced the number of pretrial detainees 

taking up beds at CMHIP and the jails. DLC supported SB-252 as proposed (as well as three 

other bills to help with the jail waits, all of which passed). The Defendants then revised the bill 

to add a provision that would have allowed them to keep pretrial detainees found incompetent 

locked down in jails for up to five months while providing some undefined type of jail-based 

restorative services—services which Colorado’s county jails are ill-equipped to provide and to 

date have never provided. 

12. Jail-based restoration is unconstitutional. The Department’s former Chief 

Medical Officer (who resigned partway through the legislative process) had previously stated in 

similar jail wait litigation in Washington that such lengthy jail restoration was improper. The 

parties’ Independent Consultant submitted his report from similar jail wait litigation in 

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Pennsylvania and his affidavit from parallel litigation in Louisiana which stated the same, and 

advised the Defendants of his opinion that unchecked and lengthy jail restoration is improper. 

13. Nevertheless, the Department pushed for SB 18-252, claiming it was the only way 

to resolve this lawsuit and the State’s decade of constitutional violations. Had the bill been 

enacted, it would have lacked any meaningful protections for the thousands of mentally ill 

Colorado pretrial detainees who would have been subjected to the statute. The bill only failed 

when Colorado State Senator Irene Aguilar filibustered. 

14. The Defendants’ continued inability to reduce wait times and willful disregard for 

the constitutional rights of this most vulnerable population shows that the State is unwilling, 

unable, or does not care to provide the constitutionally-mandated services for which it is solely 

responsible. As a result, after a year of conferral with the State, DLC seeks the aid of this Court 

to reopen the matter and enforce the Settlement Agreement (a role the Court expressly reserved 

for itself in the Dismissal Order), and permit the underlying claims to move forward based on the 

State’s continuing constitutional violations.

PROCEDURAL BACKGROUND 

15. DLC initially commenced this matter on August 31, 2011. Dkt. 1. The complaint 

alleged that Defendants failed to timely admit pre-trial detainees in jails across Colorado into 

CMHIP, the State’s only forensic mental health facility, for competency evaluations and 

restorative treatment for those determined to be incompetent to stand trial. Id. This failure 

created unconstitutional delays to provide competency evaluations and treatment for up to 80 

pretrial detainees, for as long as six months. Id. 

16. The parties participated in several settlement conferences with now-retired 

Magistrate Judge Boland, which produced the first settlement agreement. Dkt. 51-1. The 

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agreement was incorporated by reference in the Court’s Order of Dismissal on April 9, 2012 

under Fed. R. Civ. P. 41(a)(2). Dkt. 52. 

17. In July and August 2015, Plaintiff learned that Defendants had breached the 

Settlement Agreement, including by falsifying data in the monthly report, and moved to reopen 

the matter for enforcement of the agreement. Dkt. 53. After the matter was reopened by the 

Court (Dkt. 62), the parties engaged in mediation and again resolved the matter through the 

current Settlement Agreement, which was filed with the Court on July 28, 2016. Dkt. 78-1. This 

Court retained jurisdiction to enforce the Settlement Agreement. Id. ¶¶ 3, 4. 

18. Less than one year later, Defendants again failed to meet the timeframes set forth 

in the parties’ Settlement Agreement. Declaration of Jennifer Purrington, attached as Exhibit 1, 

at Ex. A (6/22/2017 Notice of Invocation of DSC). As a result, on June 22, 2017, Defendants 

invoked Departmental Special Circumstances under the Settlement Agreement. Id. Defendants 

claimed that they could not comply with the Settlement Agreement timeframes due to “an 

unanticipated spike in court-ordered referrals for inpatient competency evaluation and restoration 

treatment services.” Id. at 1. 

19. Under the Settlement Agreement, the Department’s invocation of Departmental 

Special Circumstances results in an automatic suspension of the evaluation and restoration 

timeframes for up to six months. Dkt. 78-1 ¶ 6(c). The Settlement Agreement, however, does 

not afford the Department any additional time to return to compliance if it remains unable to 

meet the timeframes set forth in the agreement after expiration of the six-month suspension 

period. See id.

20. On December 22, 2017—the day the Department’s six-month suspension period 

was set to expire—the Department sent DLC another notice of invocation of Departmental 

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Special Circumstances. Purrington Decl., Ex. B (Dec. 22, 2017 Notice). In that notice, the 

Department claimed Departmental Special Circumstances due to an “unabated” and “sustained 

increase” in court orders for evaluation and restoration as the reason why the Department 

remained unable to comply with the evaluation and restoration timeframes set forth in the 

Settlement Agreement. See id. at 1-2. 

21. It is undisputed that Defendants are out of compliance with the timeframes set 

forth in the Settlement Agreement. In his September 2017 report, the Independent Consultant 

charged with overseeing the Defendants’ compliance with the Settlement Agreement concludes 

that “currently the State is clearly failing to meet the deadlines contained in the Settlement 

Agreement.” Purrington Decl., at Ex. C at 4 (9/4/2017 Report of Independent Consultant). 

ARGUMENT 

A. This Matter Should Be Reopened for Enforcement of the Settlement Agreement. 

22. This motion is deemed unopposed pursuant to the Settlement Agreement. Dkt. 

78-1, ¶ 6(c). The agreement states that if “DLC decides to challenge the invocation of 

Departmental Special Circumstances, it may do so by filing a motion to reopen the Action to 

seek enforcement of this Agreement. The Department agrees that it will not oppose a motion to 

reopen the Action challenging the invocation of Departmental Special Circumstances and DLC 

may designate any such motion as ‘unopposed.’” Id. 

23. During the pendency of this action, the Court had jurisdiction pursuant to 

28 U.S.C. §§ 1331, 1343(a)(3), and 2201-02, and 42 U.S.C. § 1983. Dkt. 80. 

24. Upon dismissal of the matter, both originally and after the matter was reopened 

and resettled in 2016, the parties agreed that “the Court shall retain continuing jurisdiction over 

the settlement and enforcement of the Settlement Agreement for the duration of the agreement 

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plus 60 days following the delivery of the final report made by Defendants under the 

Agreement.” Dkt. 52 ¶ 4; Dkt. 80 ¶ 4. The Court also retained continuing jurisdiction over the 

settlement and enforcement of the Settlement Agreement until after the conclusion of the term of 

the agreement under the authority of Kokkenen v. Guardian Life Insurance Co., 511 U.S. 375, 

381-82 (1994), and Bell v. Board of County Commissioners, 451 F.3d 1097, 1103 (10th Cir. 

2006). Dkt. 52 at 1; Dkt. 80 at 1. 

25. The Settlement Agreement approved by the Court and incorporated in its 

dismissal order entered on July 29, 2016 remains in effect today and has not been modified or 

amended by mutual written agreement or waiver. 

26. It is settled that the Court may reopen a case and retain jurisdiction over the 

implementation and enforcement of a settlement agreement when, as here, its dismissal order 

expressly states that it will maintain continuing jurisdiction. Kokkonen, 511 U.S. at 381-83. 

27. Because the State cannot meet its obligations under the Settlement Agreement and 

has resorted to improperly invoking Departmental Special Circumstances to cover its failings, 

the Court should find good cause pursuant to D.C.COLO.LCivR 41.2 to reopen the matter to 

enforce the Settlement Agreement, without prejudice to prosecution of the underlying claims for 

the State’s continuing constitutional violations. 

B. Defendants Have Failed to Meet the Requirements for Conducting Competency 

Evaluations and Restorative Treatment under the Express Terms of the Settlement 

Agreement. 

28. The keystone of the Settlement Agreement is timeframes within which the 

Defendants are obligated to conduct competency evaluations and restorative treatment. See Dkt. 

78-1 ¶ 2. Under the Settlement Agreement, the Department is required to admit all pretrial 

detainees to CMHIP for in-patient restorative treatment and competency evaluations within 28 

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days of the pretrial detainees being deemed ready for admission. Id. at ¶ 2(a). The Department 

also must maintain a monthly average of 24 days or fewer for all detainees for both competency 

examinations and restorative treatment. See id. 

29. The below chart details the Defendants’ failure to meet the Settlement Agreement 

timelines since June 2017 for restorative treatment at CMHIP or its second facility in Arapahoe 

County. 

Month 

Detainees on 

Wait List, 28+ 

Days 

Average 

Wait Time 

Longest Wait 

Time 

June 2017 3 23.93 29 

July 2017 19 28.12 45 

August 2017 87 37.35 56 

September 2017 104 47.26 68 

October 2017 120 58.17 88 

November 2017 144 66.46 87 

December 2017 170 67.14 129 

January 2018 177 72.84 129 

February 2018 193 74.51 114 

March 2018 221 90.24 133 

April 2018 213 87.34 136 

May 2018 206 93.98 142 

Purrington Decl., ¶ 11. 

30. Since June 2017, Defendants have failed to admit all pretrial detainees within 28 

days of their ready for admission date and failed to maintain a monthly average of 24 days. 

31. Based upon recent reports, wait times for pretrial detainees to be admitted to 

CMHIP for restorative treatment have exceeded 100 days. The March 2018 data showed 221 

detainees out of compliance for restoration, with the longest waiting 133 days. The April 2018 

data are no better. A total of 213 detainees were out of compliance for restoration, with the 

longest waiting 136 days. And in May 2018, there were 206 detainees out of compliance for 

restoration, with the longest detainee having to wait 142 days in jail. 

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32. The monthly averages for inpatient evaluation and restoration are nearly 

quadruple the 24-day average required by the Settlement Agreement. According to the March 

2018 data, the average wait time for restoration was 90.2 days, 87.3 days in April 2018, and 94 

days in May 2018. The State claims it will not be back in compliance until July 2019. By that 

point, it would have been in breach of the Settlement Agreement for 24 consecutive months. 

33. It is estimated that 25-30% of pretrial detainees listed in the Department’s reports 

are individuals being held in jail as a result of an arrest on a petty, misdemeanor, non-violent, or 

drug offense. Tragically, the length of their detention while waiting for an evaluation or 

treatment exceeds the jail sentence they likely would have received if they had pled guilty on the 

day they were arrested. Many of these pretrial detainees are seriously mentally ill and in danger 

of harming themselves or others, and are victimized by other detainees as they wait for a humane 

environment to be evaluated and treated. See Purrington Decl., ¶ 12. 

34. The Department’s abysmal effort in 2017 is part of an accelerating trend of failing 

to stay in compliance with the Settlement Agreement and the United States Constitution. In 

2015, Defendants were unable to comply with the Settlement Agreement for ten of the twelve 

months. Id. at ¶ 13. In 2016, they were out of compliance for five out of twelve months. Id. In 

2017, Defendants were out of compliance for the last seven months of the year. Id. It appears 

the Defendants will not be back in compliance until July 2019. The result will be a five-year 

period in which they have spent more time out of compliance than in compliance. 

C. Defendants Are in Breach of the Settlement Agreement through Their Improper 

Invocation of Departmental Special Circumstances. 

35. The Settlement Agreement recognizes “that to some extent the Department’s 

ability to perform its statutory obligations and its obligations under th[e] Agreement is based on 

factors beyond its control.” Dkt. 78-1 ¶ 6. To account for this, the parties built into the 

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Settlement Agreement a mechanism that allows the Department to temporarily suspend the 

timeframe requirements of the Agreement through invocation of “Special Circumstances.” Id. 

36. At-issue here is the Department’s attempt to invoke “Departmental Special 

Circumstances” pursuant to Paragraph 6(a)(ii) of the Agreement. The Settlement Agreement 

defines Departmental Special Circumstances as “circumstances beyond the control of the 

Department which impact the Department’s ability to comply with the timeframes set forth in 

Paragraph 2. Id. at ¶ 6(a)(ii). “This could mean an unanticipated spike in referrals, a national or 

statewide disaster impacting admissions decisions system wide,” or some other “unique” or 

“unforeseen” circumstance. Id. (emphasis added). Critically, the circumstance must be “beyond 

the control of the Department.” Id. (emphasis added). 

(1) Defendants have improperly claimed Departmental Special 

Circumstances for circumstances within their control and which have 

persisted for decades. 

37. In June 2017, the Department invoked Departmental Special Circumstances on 

the alleged basis that it “has experienced an unanticipated spike in court-ordered referrals for 

inpatient competency evaluation and restoration treatment services.” See Purrington Decl., Ex. 

A at 1; but see id. at 3 (claiming “[a] steady increase in the number of orders for inpatient 

restoration treatment,” rather than an unanticipated spike). The Department claims, in that letter, 

that the increase in referrals, combined with “a decrease in the number of discharges,” has 

“result[ed] in fewer beds available to meet the demand.” Id. at 3. 

38. The Department’s December 2017 letter arguing for a second invocation of 

Departmental Special Circumstances states the same basis as the June 2017 notice: “the 

sustained increase in the number of court orders for inpatient competency restoration treatment 

has outpaced the Department’s capacity and is beyond its control.” Purrington Decl., Ex. B at 2. 

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39. Departmental Special Circumstances invocations must satisfy two requirements. 

First, the basis for invocation of Departmental Special Circumstances must be something 

“outside the control of the Department.” Dkt. 78-1 at ¶ 6. In addition, that basis must be 

something “unique” or “unforeseen.” Id. at ¶ 6(c). 

40. The Department fails to meet either requirement. First, the Department’s recent 

attempts to invoke Departmental Special Circumstances do not qualify under the express 

definition of Departmental Special Circumstances because the basis for the Department’s 

invocation—lack of capacity caused by an increase in referrals—is wholly within the 

Department’s control. 

41. Notably, the Department’s failure to maintain adequate facilities to keep up with 

the pace of referrals is a problem that has plagued timely admission of pretrial detainees to 

CMHIP for decades. See Dkt. 53 at ¶¶ 39-58; see also Dkt. 53-8 at ¶¶ 8-25. It, thus, cannot be 

considered a “statewide disaster,” or otherwise “unique” or “unforeseen.” 

42. In any event, the State’s own data shows their invocation is based on a false 

premise. Below are the monthly totals of new evaluations and restorations. 

Fiscal Year In Patient Competency 

Evaluations 

In Patient Restorations 

June 2016 25 45 

July 2016 21 47 

August 2016 32 46 

September 2016 25 53 

October 2016 28 43 

November 2016 23 72 

December 2016 24 48 

January 2017 27 58 

February 2017 28 58 

March 2017 27 54 

April 2017 29 75 

May 2017 26 84 

June 2017 37 73 

July 2017 22 66 

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August 2017 31 76 

September 2017 30 66 

October 2017 25 66 

November 2017 19 76 

December 2017 14 68 

January 2018 19 77 

February 2018 17 78 

March 2018 30 65 

April 2018 9 71 

Purrington Decl., ¶ 14. 

43. The data indicates that there has been no unabated increase. Evaluations have 

increased and decreased but remained relatively flat over the last two years. As for restorations, 

there was some increase leading into the spring of 2017 when they peaked at 84, but they have 

since decreased back to a lower level. 

44. The annual data for the last ten years further discredits the Defendants’ claim of 

an unanticipated spike. The below table (based on information provided by Defendants to DLC) 

shows the number of referrals for in-patient evaluation and restoration for each fiscal year from 

2005 through 2017 and the percentage of change on an annual basis. 

Fiscal Year In Patient 

Competency 

Evaluations 

% Change In Patient 

Restorations 

% Change 

2005-06 115 - 167 - 

2006-07 144 25.2% 224 34.1% 

2007-08 184 27.8% 219 -2.2% 

2008-09 238 29.3% 170 -22.4% 

2009-10 275 15.5% 212 24.7% 

2010-11 276 0.4% 213 0.5% 

2011-12 287 3.9% 268 25.8% 

2012-13 355 23.7% 274 2.2% 

2013-14 378 6.4% 342 24.8% 

2014-15 415 9.7% 462 35.1% 

2015-16 326 -21.4% 550 19.0% 

2016-17 327 0.3% 711 29.3% 

Purrington Decl., ¶ 15. 

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45. The long-term data shows that evaluations have stabilized nearly 20% below the 

level they reached in 2014-15 (when the Department complied for most of the fiscal year). It is 

true there was a 29% increase in restorations in 2016-17, but the Department has seen six 

increases of at least 24% in restorations in the last ten years. When the Department has had five 

24% or more increases in a short period of time, the sixth one cannot credibly be claimed to be 

“unanticipated.” At that point, the Department should be preparing for increases of that size 

most years and its failure to budget and plan for that is a failure within its control. 

46. In sum, the State faces an increasing demand on its system. But the increase has 

been a trend for the last decade and thus cannot be characterized as unanticipated. The 

Agreement does not give the Defendants a pass from their constitutional duties for an increase, 

but only for an unanticipated one that is outside its control. There was nothing unforeseen and 

unique about the Department’s lack of capacity to handle the 2017 increases in demand for 

restorations and the Department’s own data undercuts its claimed increase. What is different is 

the State’s utter failure since June 2017 to respond and react to it. 

47. Regardless, states across the country have been held accountable through court 

rulings and consent decrees in similar litigation. The State’s defense that more persons with 

mental illness have been filling up jails is not a new phenomenon. In 2015, an increase was 

predictable in reviewing the data regarding the number of persons with serious mental illness 

entering jails and prisons. The State failed to mitigate this situation, work with the Independent 

Consultant in any meaningful way, or set up contracts and forge relationships with other public 

and private agencies to assist in outpatient restoration. 

48. Beneath the bluster, the State admits they are violating the constitutional rights of 

thousands of Coloradans stuck on the waiting list. At DLC’s suggestion, the State sent letters to 

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judges and attorneys involved in 15 cases since April 2018. Purrington Decl., Ex. D. In the 

letters, the State admits that it is holding pretrial detainees in jail for months whom it concedes 

would be better served in the community. Sadly, the effort has not been as successful as it could 

have been because the State has failed to partner with community mental health centers—for 

example, the letters fail to provide a judge any direction on what resources exist in the court’s 

community if the detainee were to be released. 

(2) Defendants have improperly invoked Departmental Special 

Circumstances consecutively to suspend the timeframe requirements of 

the Settlement Agreement in perpetuity. 

49. On December 22, 2017, the day on which the Department’s June invocation of 

Departmental Special Circumstances was set to expire, Defendants provided DLC with a second 

notice of invocation of Departmental Special Circumstances. Purrington Decl. at Ex. B. The 

basis for Defendants’ second invocation was the same it previously provided six months earlier. 

See id. at 2. 

50. The Settlement Agreement does not allow the State to consecutively invoke 

Departmental Special Circumstances to extend the automatic six-month suspension period for up 

to another six months. Dkt. 78-1 at ¶ 6(c). 

51. Allowing the Department to re-invoke Departmental Special Circumstances the 

day the prior invocation ended, as it claimed to do on December 22, 2017, would render the 

timeframes set forth in the Settlement Agreement meaningless. Summit Bank & Tr. v. Am. 

Modern Home Ins. Co., 71 F. Supp. 3d 1168, 1171 (D. Colo. 2014) (“The review of the contract 

must strive to give effect to all provisions so that none is rendered meaningless.”). Such an 

interpretation would render the maximum six-month timeframe for Departmental Special 

Circumstances a nullity. Under this logic, the State could serially re-invoke Departmental 

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Special Circumstances every six months in perpetuity and never need to come back into 

compliance. It also would eliminate the three-month penalty provision found in the Settlement 

Agreement, which increases the term of the agreement by three months for each month in a 

given calendar year that the Department is unable to meet the timeframes set forth in Paragraph 2 

of the agreement. See Dkt. 78-1 at ¶ 4(b). 

52. While the Settlement Agreement does permit the State to invoke Individual 

Special Circumstances (a separate “time out” provision limited to one specific person) more than 

once so long as it follows the procedures set forth in the agreement, it is silent with respect to the 

invocation of Departmental Special Circumstances. See id. at ¶ 6(b)(ii). DLC agreed to allow 

multiple invocations for individuals through the inclusion of express language in the agreement, 

but it did not agree to the same procedure for departmental special circumstances. Compare id. 

at ¶ 6(b), with id. at ¶ 6(c). 

53. The Defendants’ consecutive invocation of Departmental Special Circumstances 

constitutes a breach of the Settlement Agreement and a breach of the implied covenant of good 

faith and fair dealing, at best. See Amoco Oil Co. v. Ervin, 908 P.2d 493, 498 (Colo. 1995) 

(explaining that “every contract contains an implied duty of good faith and fair dealing” to 

“effectuate the intentions of the parties or to honor their reasonable expectations”). At worst, it 

is a willful and intentional breach of the agreement and demonstrates the State’s continuous and 

deliberate indifference to the due process rights of Colorado’s mentally ill. The Court should 

reopen this case and explore the claims emanating from this bad-faith conduct by Defendants. 

(3) The Independent Consultant 

54. As part of the Settlement Agreement, the parties agreed to have an Independent 

Consultant monitor the State’s compliance with the settlement timeframes and assist the State to 

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avoid this constitutional problem for a third time. The Independent Consultant has been 

ineffective, and in this crisis has still not reviewed the data, nor completed the quarterly report 

due in April 2018, which would identify areas of non-compliance and provide expert 

recommendations to get back into compliance. Once again, DLC is left to attempt to monitor the 

State, without full information. 

CONCLUSION

55. It is undeniable that the system is (and has been for decades) in a state of 

disrepair. But the reason for the disrepair is not outside the Department’s control or due to 

unique, unanticipated or special circumstances. Rather, it is wholly due to Defendants’ 

ineptitude, lack of vision, and continuous and willful disregard for the health and well-being of 

the very people they are statutorily tasked with helping: the mentally ill. 

56. DLC is at a loss. It has engaged in negotiations and litigation with Defendants for 

seven years to no avail. The Independent Consultant has been ineffective. The Defendants have 

spent more time in the last four years out of compliance with the Settlement Agreement than they 

have spent meeting the timeframes they agreed to abide by in good faith. DLC seeks this Court’s 

assistance to protect and preserve the constitutional rights of these individuals and to enforce the 

Settlement Agreement. 

PRAYER FOR RELIEF 

WHEREFORE, Plaintiff respectfully requests that the Court grant this Motion and enter 

an order: 

a. reopening this action to conduct proceedings to enforce the Settlement 

Agreement, including permitting limited, expedited discovery and setting an 

evidentiary hearing; 

b. reopening this action to permit the underlying claims for the State’s continuing 

constitutional violations, including holding a preliminary injunction regarding the 

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State’s continuing constitutional violations and the appropriate sanctions for those 

continuing violations; 

c. declaring that Defendants breached the Settlement Agreement; 

d. directing Defendants to eliminate the wait list by August 1, 2018, or sooner, and 

notifying Defendants that their failure to do so could result in a finding of 

contempt, including associated fines or penalties; 

e. directing Defendants to comply with the deadlines set out in the Settlement 

Agreement for all referrals made on and after August 1, 2018 and notifying 

Defendants that their failure to do so could result in a finding of contempt, 

including associated fines and/or penalties; 

f. appointing an independent court monitor to oversee and scrutinize Defendants’ 

future performance under the Settlement Agreement; 

g. extending the Amended Settlement Agreement by three months for each month 

Defendants failed to comply with the timeframes in the Settlement Agreement; 

h. awarding Plaintiff its reasonable costs and attorneys’ fees associated with the 

preparation and filing of this motion and the conduct of any further proceedings; 

and 

i. granting such other or further relief against Defendants as the Court deems just 

and proper. 

/// 

 

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DATED: June 13, 2018. 

Respectfully submitted, 

s/ Iris Eytan 

Iris Eytan 

EYTAN NIELSEN LLC 

3200 Cherry Creek South Drive 

Denver, CO 80209 

Telephone: 720.440.8155 

Facsimile: 720.440.8156 

Email: iris@eytan-nielsen.com 

s/ Caleb Durling 

Caleb Durling 

ROLLIN BRASWELL FISHER LLC 

8350 East Crescent Pkwy., Suite 100 

Greenwood Village, Colorado 80111 

Telephone: 303-945-7415 

Facsimile: 303-974-7468 

Email: cdurling@rbf.law 

Attorneys for Plaintiff Center for Legal Advocacy, 

d/b/a Disability Law Colorado

s/ Mark J. Ivandick 

Mark J. Ivandick 

Jennifer Purrington 

DISABILITY LAW COLORADO

455 Sherman St., Ste. 130 

Denver, CO 80203 

Telephone: 303.722.0300 

Facsimile: 303.722.0720 

Email: mivandick@disabilitylawco.org 

s/ Ellie Lockwood 

Ellie Lockwood 

SNELL AND WILMER LLP 

1200 Seventeenth Street, Suite 1900 

Denver, CO 80202 

Telephone: 303-634-2000 

Facsimile: 303-634-2020 

Email: elockwood@swlaw.com 

 

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CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on June 13, 2018, a true and correct copy of this 

MOTION TO REOPEN ACTION FOR ENFORCEMENT OF SETTLEMENT AGREEMENT 

was electronically filed the foregoing with the Clerk of the Court using the CM/ECF system, 

which will send notification of such filing to the following e-mail addresses: 

Tanja E. Wheeler 

Lauren Peach 

Libbie McCarthy 

First Assistant Attorney General 

Colorado Department of Law 

State Services Section 

Ralph L. Carr Colorado Judicial Center 

1300 Broadway, 6th Floor 

Denver, CO 80203 

Ph: 720-508-6151 

Fax: 720-508-6041 

tanja.wheeler@coag.gov 

Lauren.Peach@coag.gov

Libbie.McCarthy@coag.gov

Counsel for Defendants 

 /s/Sandy Braverman 

 Sandy Braverman 

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