The Law Project for Psychiatric Rights (PsychRights®) is again challenging Alaska’s commitment law as unconstitutional. Briefing has recently been completed in the Alaska Supreme Court case of In the Matter of the Hospitalization of D.G., with oral argument likely to be held in mid-October, 2013. In this case, PsychRights is challenging the common practice of getting court orders to lock people up for continued psychiatric evaluation without even notifying the person of the legal proceeding filed against him or her and giving him or her a chance to give their side of the story.
The setting is that D.G. was brought into the psychiatric emergency room by the police on February 26, 2013 at 8:50 a.m., after his father called saying D.G. was suicidal. See, Notice of Emergency Detention and Application for Evaluation. Then, at 3:09 p.m., the psychiatric emergency room filed an ex parté Petition for Involuntary Commitment for Evaluation (Ex Parté Petition). “Ex parté” is a Latin phrase that translates to “from (by or for) one party” and is defined in Black’s Law Dictionary, 7th Ed., to mean “On or from one party only, usually without notice to or argument from the adverse party.” In other words, D.G. was not given notice of the court filing against him and therefore had no opportunity to respond.
The Court issued an ex parté Order on Petition for Commitment for Evaluation (Ex Parté Order) that D.G. be delivered to the Alaska Psychiatric Institute for further evaluation just 36 minutes after the Ex Parté Petition was filed. Two days later, the Alaska Psychiatric Institute, discharged D.G. because he did not meet commitment standards. See, Notice of Release.
The appeal is based upon the principle that Due Process of Law requires people to be notified of legal proceedings against them and an opportunity to tell their side of the story unless there is an emergency justifying lack of notice. As the United States Supreme Court has held:
For more than a century the central meaning of procedural due process has been clear: ‘Parties whose rights are to be affected are entitled to be heard; and in order that they may enjoy that right they must first be notified.’ It is equally fundamental that the right to notice and an opportunity to be heard ‘must be granted at a meaningful time and in a meaningful manner.’ (Hamdi v. Rumsfeld, 542 U.S. 507, 124 S.Ct. 2633, 2648-2649 (2004)).
As suggested, this right is not absolute. The classic justification for no notice is the search warrant situation where if notice was given, whatever is being searched for would likely disappear before the court hearing.
In Alaska, the Alaska Supreme Court states:
We have consistently held that, except in emergencies, due process requires the State to afford a person an opportunity for a hearing before the State deprives that person of a protected property interest. (Hoffman v. State, 834 P.2d 1218, 1219 (Alaska 1992)).
The United States Supreme Court has phrased it slightly differently, holding that a hearing is constitutionally required before rights can be taken away if the State can reasonably provide one. (Zinermon v. Burch, 494 U.S. 113, 132 (1990)).
Thus, the basis of D.G.’s appeal is that there can be no emergency justifying depriving him of notice and an opportunity to give his side of the story when he is in custody, presumptively safe, and unable to harm anybody else either. The State’s substantive argument is basically, “hey, he was only held for two additional days, the system worked.” In fact most of the briefing is over whether the Alaska Supreme Court should decide the issue. In the past, the court has held commitment appeals are moot because the person has been let go by the time the appeal is heard.
Prosecuting this appeal is important for a number of reasons. First, of course, is that people, such as D.G., accused of being mentally ill and dangerous to themselves or others should have the same Due Process rights as people not so labeled. However, the most important reason is it is important to reorient the courts hearing these cases to treat them as real legal proceedings. In my law review article, Involuntary Commitment and Forced Psychiatric Drugging in the Trial Courts: Rights Violations as a Matter of Course, (25 Alaska L. Rev. 51 (2008)), I characterize these proceedings as shams. This law review article discusses about half of the ways I have identified in which people’s rights are uniformly violated in Alaska, including the grounds for D.G.’s appeal. Another reason it is important is that people subjected to these “Kangaroo Courts” quite properly feel they have not had a legitimate court proceeding before their rights were taken away. They certainly don’t have “their day in court” when court orders are sought and awarded without even notifying them. Of course, when they express such sentiments, they are characterized as symptoms of the person’s “mental illness.” Being treated this way leads to escalation.
Secret court proceedings against someone certainly justifies the feeling that people are out to get them. Expressing this sentiment is characterized as paranoia. If people felt they had a fair legal process they are likely to be less upset.
All of the briefing and other documents in this case are available at In the Matter of the Hospitalization of D.G.
For those interested in learning how PsychRights uses court cases, I will be giving a talk on the Role of Litigation in a Strategic Approach to Mental Health System Change at the National Association for Rights Protection and Advocacy (NARPA) 2013 Annual Rights Conference, September 26-28 in Hartford, Connecticut.