Something Rotten In The State of Colorado: Free Sharisa (Part 2)

NB. I apologize for the delay in this post’s publication. Real life interjected for me in the form of family illnesses. 

In my last post on this matter, I had one question remaining in the list of issues that had to be addressed in the imprisonment of Sharisa Joy Kochmeister (because, frankly, it is imprisonment): What causes of action might one bring against county and/or state officials, if any?

This question deserved its own post, because it is a long and complex question. The very short answer, I believe, is that there are indeed actions that lie against Jefferson County and/or her officials if brought by Jan Kochmeister, but not if brought by Sharisa Kochmeister. There may not be any actions that lie against the State of Colorado. All this will be explained, but fair warning, it’s long and complex in itself. I’m sorry to be so wordy, but there are so many factors that have to be taken into account when one gets into nitty-gritty law like this, that leaving anything out seemed slipshod.

A couple of clarifications I feel I have to make here:

  1. This post is not intended to be legal advice, nor is it intended to create any kind of attorney-client relationship with any reader. If you are in need of legal representation, please contact a competent attorney licensed in your jurisdiction.
  2. Just because I’m explaining what the law seems to be here doesn’t mean I agree with it. I am trying to explain how it would likely look to a judge, not how it looks in my eyes. So please don’t waste your time and mine commenting on how mean I am. (Yes, I’ve received such comments. Reading comprehension fail much?)

Okay. To the relevant bits.

(A) First and most easily dispensed with, the question of whether or not any action lies against the State of Colorado (that is, whether anything can be brought against the state). The answer, as I read it, is no, and the reason for this primarily has to do with American federal law.

The 11th Amendment to the U.S. Constitution (which applies to the states via the 14th Amendment, at least in the relevant portions in this matter) contains a provision that grants state entities what is referred to as sovereign immunity (SOI). SOI states that a governmental entity may not be sued for certain causes of action, because to do so would open the state (or country, or whatever governing body) up to claims so steep it would bankrupt the government and take all its’ employees’ time. Given that bankrupt governments are generally to be avoided, SOI is usually seen as good public policy, despite its potential to be unfair. Because it could be unfair, a lot of states and state subdivisions (counties and cities) have begun to waive SOI either in whole or in part, laying out in law the causes of action under which they essentially agree to be sued. This is relevant because Colorado’s sovereign immunity law governs the right to sue public entities and/or officials. If the law does not permit, then Sharisa and her father may not sue, period.

[Image description: An American flag waving with the breeze, set over a blue sky with two or three wispy white clouds.]

[Image description: An American flag waving with the breeze, set over a blue sky with two or three wispy white clouds.]

Colorado’s Revised Statutes, at Title 24, Article 10 deal with governmental immunity. However, most of the concrete examples given in the law have to deal with physical torts – negligence related to slipping on ice, for example, or inappropriate operation of a motor vehicle, found at 24-10-106(1). There is very little actual language detailing the consequences, if any, for the kind of alleged mental and emotional abuse that Sharisa has suffered due to the negligence and discrimination of Jefferson County officials. And, unfortunately, when nothing in the law states that immunity is waived, we have to conclude that it has not been waived. Thus, no action may be brought against the State of Colorado in this matter (when in the past, it has been common to bring suit against both county and state officials in the same suit, alleging a lack of oversight).

(B) The next question is, can Jefferson County be sued by Jan Kochmeister for his own harms suffered during this whole ordeal? I feel like a magic 8-ball, but signs point to yes.

According to Supreme Court jurisprudence, the case of Lincoln County v. Luning, 133 U.S. 529 (1890), bars counties and municipalities from claiming sovereign immunity. So all the stuff I was just talking about with regard to the State of Colorado? Does not apply to Jefferson County. The county can be sued in the same manner as a company or business, and its employees can be sued in the same manner as ordinary citizens. (Luning points to a “general acquiescence” to have suits against counties, and that trend continues.) However: any suit against a county official in their official capacity has to be brought under federal law, and recovery would be limited. Still, it can be done.

That said. The causes of action that could be brought by Sharisa’s father Jan on his own behalf are fairly simple, in my opinion, provided that his version of events is the true one. (I am not insinuating any kind of claim regarding Mr. Kochmeister’s memory or honesty; merely stating that what I am about to write hinges upon his retelling of the story being accurate, which I have no reason to doubt.) He has already engaged an attorney, according to an interview he gave to Autism Daily Newscast, and while I don’t want to comment on a case that is already in motion, let’s just leave it that if I were him, I would be investigating two possible ways to bring suit against Jefferson County and/or its officials:

(1) A civil suit for defamation of character (the subsets of which are slander and libel). In Colorado, the standard to allege defamation of character is found in a case called Keohane v. Stewart, 88 P.2d 1293, 1297 (Colo 1994). It states that defamation is when it can be proved that an individual made “a communication [either orally or written] holding an[other] individual up to contempt or ridicule that causes the individual to incur injury or damage.” Mr. Kochmeister has been treated and spoken of for months as a suspected abuser (even after a District Attorney found no evidence on which to charge him with anything!), as well as an alleged sufferer of Munchausen syndrome by proxy. These allegations can cause serious long-term difficulty and shame that can lead to very real harm.

There are three important parts to a defamation suit: the statement must be false; it must be ‘published’ to a third party (Jeremy Meyer’s piece in the Denver Post would likely fit that criteria); and the person affected must be able to show material harm. I am not privy to the details of Mr. Kochmeister’s life, but I would not be in the least surprised if he were able to show significant damage to his reputation, mental or physical health, or all three.

(2) Various theories, including loss of companionship and negligent infliction of emotional distress, that fall under the rubric of negligence law. Four things have to be present for someone to have a valid negligence claim: (a) A duty of care owed to plaintiff by defendant; (b) a breach of that duty, (c) proof that defendant’s act was the direct cause of plaintiff’s injury, and (d) a tangible injury or damages, not necessarily physical, suffered by the plaintiff. Honestly, I think the only place such causes of action might fail is on the question of duty. In the abstract, every county agency owes a duty of care to its customers and their families – a duty to carry out their jobs to the best of their ability, instead of resorting to negligence and bigotry. But I just don’t know how easy that is to prove in a Colorado court.

(C) The meat of the question – I know it feels like it’s taken an age to get here, but I assure my readers, all the other stuff is important – can Jefferson County be sued by Sharisa Kochmeister for the harms she has suffered during this whole ordeal? After studying all of this, I believe that the answer is not at this point – but in the future, her father could bring suit on her behalf, as her guardian. This is not because she has not suffered – but because Colorado’s definition of “incapacitated adult” and her status as someone under guardianship prevent her from mounting this kind of action on her own. Quite honestly, it’s legalese bullshit, but right now it’s legalese bullshit that effectively silences Sharisa.

Because this post is almost two thousand words long, I’m going to call it here and post a third later this week, so if you’re only interested in what Sharisa can do to Jefferson County, that’ll be the post you want to read.

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2 comments

  1. I can’t believe, well, I don’t want to believe, how backward and wrong doing our government still is, not just in our Colorado, but nationwide. Sure, some states are more forward acting, but it’s an exception and that simply isn’t enough of anything.
    I am a person with a disability and have also been misused/abused by the state of Colorado. I had hoped my situation was one of those 1 in a 1,000,000 chance type things. Guess I’m wrong.

    1. Unfortunately, the more I research, the more sad we get in my estimation when it comes to the rights of people with disabilities. In this country, if someone gets guardianship over you, you have essentially no legal rights or autonomy. It’s simply not the case in other countries – the UK in particular has a law that I want to do more research on. I’m in the process of writing a law review article about all this stuff that will hopefully get noticed. If it helps Sharisa at all – or anyone else in a similar situation – So much the better.

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