OPINION: State Supreme Court ‘nonsense’ no fun for Alaskans jailed without due process

“Yada yada” means “boring or idle chatter.” It replaces words that are too boring or predictable to bear repeating. It was used by comedian Lenny Bruce in 1961. It was revived in an episode of “Seinfeld.”

The recent Alaska Supreme Court decision, IN RE: the Necessity for the Hospitalization of Jayden A., is a yada yada about the rights of Alaskans suspected of having a mental illness. At issue was a Supreme Court judge’s order that Jayden be transported and held for 72 hours for a psychiatric evaluation to determine whether he meets the criteria for long-term detention. By law, the transfer must be “immediate.”

Instead, according to a ruling by our state’s Supreme Court, Alaskans were repeatedly “detained” from transportation for “a period nearly six times longer than the assessment period” — because there was no room at the state’s assessment center.

“Detained” is a soft way of saying that the state held these Alaskans in custody against their will. That some may have been held in the hospital doesn’t change that. If they refuse to be confined, they are restrained by staff and tied down.

In Jayden A., the Court cited numerous cases in which it had previously ruled that such “unreasonably long detentions” violated due process. Apparently, the Supreme Court judge in Jayden had not received the Supreme Court’s repeated rulings—or simply ignored them.

Worse, after Jayden was detained for seven days, his lawyer asked the Supreme Court to immediately review whether his ongoing detention violated his rights. Although the request was met with no objection, the Supreme Court judge scheduled the review for 12 days later—at which time Jayden would still be “detained.” Jayden’s lawyer immediately filed a petition with the Alaska Supreme Court.

In its opinion, the Supreme Court “echoed” previous cases in which it had ruled that such long detentions pending a 72-hour review violated due process. As if that “blah blah” wasn’t enough, the Supreme Court added:

“(W)e emphasize the critical nature of a high court’s review of the commitment process, particularly when pretrial detention is extended. … (The) court has scheduled a review hearing for the 19th day of the court-ordered pretrial detention. This … undoubtedly raises concerns about the respondent’s fair trial rights, particularly in light of our decisions(.)”

These unconstitutional seclusions aren’t unique to pre-assessment detentions. Last year, I wrote about another Alaska Supreme Court decision, In Re Sergio F. The Supreme Court violated Sergio’s constitutional rights by subjecting him to 90 days of involuntary psychiatric treatment while ignoring statutory requirements. The Supreme Court emphasized that it has addressed this abuse repeatedly in previous decisions.

What’s more, these repeated violations don’t just happen in cases the Supreme Court decides to hear. An independent study last year of 30 consecutive cases in which the state attempted to forcibly drug Alaskans with mental illness revealed a systemic denial of due process by Supreme Court justices. I’ve written about that as well. What was the Alaska Supreme Court’s response to this systemic judicial failure? It rhymes with yada — nada.

It may seem funny to hear blah blah blah repeated and emphasized by the Supreme Court, but it is not funny to the people of Alaska who are unconstitutionally locked down.

As Nick Feronti, a staff attorney for the Northern Justice Project, said: “If this were to happen in a criminal context — for example, if people were just held in jail for more than 48 hours without probation and additional monitoring — it would be absurd. It would be illegal.”

But criminal proceedings are open court. Proceedings involving Alaskans suspected of having mental illness are conducted in secret, ostensibly to protect their privacy. Instead, the secrecy conceals from the public the courts’ systemic failure to protect the rights of Alaskans who have committed no crime.

The constitutional rights of these vulnerable Alaskans are not a comedy routine. Enough is enough, yada yada. If Supreme Court justices ignore or disregard the decisions of the Alaska Supreme Court, they should be required to attend mandatory training, disciplined, or both.

Under the statute, judges can have their pay withheld if they don’t make a decision on a case for more than six months. Perhaps the same should apply if they dissent from a state Supreme Court ruling. Perhaps they should be required to certify that they’ve read a higher court ruling.

There is another consequence of our judicial branch failing to respect the constitutional rights of these Alaskans. It leaves the legislative and executive branches unchecked. Separating our judicial, legislative, and executive branches, so that each branch provides independent checks and balances on the other, ensures that neither can oppress its citizens with impunity.

Our legislature has passed laws authorizing the state (executive branch) to forcibly lock up Alaskans suspected of having a mental illness. These laws and our state constitution require due process for these Alaskans. This includes specific time limits and a proven need for lockup. However, the legislature has failed to fund community-based services (which are less expensive in the long run) that could alleviate pressure on state mental health facilities, and has underfunded state facilities.

Instead of checking this unfunded exercise of power by the Legislature and the state to unconstitutionally restrict vulnerable Alaskans, Supreme Court justices issue court orders that enable it—time and time again. And how does the Alaska Supreme Court respond? Blah, blah. It’s unconstitutional. It’s shameful. It’s certainly not funny.

Val Van Brocklin is a former state and federal prosecutor in Alaska who now teaches and writes on criminal justice issues across the country. She lives in Anchorage.

The views expressed here are the author’s own and are not necessarily endorsed by the Anchorage Daily News, which welcomes a wide range of viewpoints. To submit an article for consideration, send an email comment(at)adn.com. Submissions of less than 200 words should be sent to: [email protected] Or click here to send using any web browser. Read our full guidelines for letters and comments Here.