Thursday, October 12, 2006

Is Kendra’s Law constitutional?

AOT opponents in Albuquerque said in a New Mexico court that the answer is “no.” But experiences from every other state with an AOT law prove otherwise.

In fact, 42 states have assisted outpatient treatment laws, some for over 20 years, and NONE have been ruled impermissible.* Most relevant, since the New Mexico bill is based on New York's Kendra's Law, the law in that state was unanimously ruled constitutional by the state's highest court (In the Matter of K.L.).

No challenge to an AOT law or its standard has succeeded.

Interestingly, in her comments in court about the Kendra's Law case, Judge Huling indicated that she was concerned not about whether the law itself was constitutional, but whether the city council overstepped its powers by legislating in an arena pre-empted by state legislation. It appears that the case will turn on an issue of home rule.

It would be unfortunate for the city to be prevented from using the ordinance immediately when it becomes effective. It is a beneficent law with numerous patient protections and great potential to reduce hospitalizations, arrests, incarceration, homelessness (outcomes proven in other states).

But if the court finds that a state technicality will keep Albuquerque from helping its citizens immediately, it is just more pressure on the state to get the law passed so everyone has access to this proven treatment mechanism.

* See In re Detention of LaBelle, 728 P.2d 138 (Washington Supreme Court 1986); State of Wisconsin v. Dennis H., 647 N.W.2d 851 (Wisconsin Supreme Court 2002); In re K. L., 806 N.E.2d 480 (New York Court Of Appeals 2004)

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