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Latham v. Municipality of Anchorage (8/17/2007) ap-2116

Latham v. Municipality of Anchorage (8/17/2007) ap-2116

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


BEN LATHAM, )
) Court of Appeals No. A-9739
Petitioner, ) Trial Court No. 3AN-03-8947 Civ
)
v. )
) O P I N I O N
MUNICIPALITY OF ANCHORAGE, )
)
Respondent. ) No. 2116 August 17, 2007
)
          Petition for Hearing from the Superior Court,
          Third  Judicial District, Anchorage, Eric  A.
          Aarseth, Judge.

          Appearances:    No   appearance    for    the
          Petitioner.    James  N.  Reeves,   Municipal
          Attorney, Anchorage, for the Respondent.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Stewart, Judges.

          MANNHEIMER, Judge.

          Ben  Latham is an indigent defendant who was  convicted
and  sentenced  to  jail  for violating two  Anchorage  municipal
ordinances.   Latham filed an appeal to the superior  court,  but
the  superior  court affirmed his convictions.   Latham  has  now
filed  a  petition for hearing, asking this Court to  review  the
superior courts decision.
          In Alexander v. Anchorage, 490 P.2d 910, 915-16 (Alaska
1971),  our supreme court held that an indigent defendant who  is
prosecuted  for  violating a municipal ordinance is  entitled  to
court-appointed counsel under AS 18.85.100 if the ordinance is  a
serious  crime   that is, if the potential penalty for  violating
the  ordinance  includes incarceration, or  a  fine  sufficiently
large to connote criminality, or the loss of a valuable license.
          Although Alexander dealt with a defendant who needed an
attorney  to  represent her in the trial court,  AS  18.85.100(a)
also  applies  to  defendants  who are  being  detained  under  a
conviction  of  a serious crime  in other words,  defendants  who
need an attorney to pursue an appeal or, by extension, a petition
for  hearing  under  Alaska  Appellate  Rule  302  following   an
unsuccessful  appeal.  Thus, because Latham faced  (and  in  fact
received) jail time for violating the municipal ordinances, he is
entitled   to   a   court-appointed  appellate   attorney   under
AS  18.85.100(a)  to  assist him in pursuing  this  petition  for
hearing.
          The  problem is that the Municipality has not been able
to  procure  an attorney to represent Latham.  According  to  the
Municipality, all of the attorneys who are normally available  to
take   defense  work  in  municipal  criminal  cases  are  either
unavailable or unwilling to represent Latham.
          The  Municipality  notes that it has  no  authority  to
force an attorney to take Lathams case (or any other case).   The
Municipality suggests that, given the unusual situation presented
here,  this  Court  should  invoke  its  authority  under  Alaska
Administrative  Rule  12(e) to appoint an attorney  to  represent
Latham in this appeal.
          Alaska Administrative Rule 12(e)(1) authorizes a  court
to  appoint  an  attorney for an indigent  person  if  the  court
concludes that the person has a legal right to the assistance  of
counsel.   However,  by its terms, Administrative  Rule  12(e)(1)
applies  only  to cases where the appointment of counsel  is  not
authorized by AS 18.85.100.  As we have just explained, Latham is
entitled  to  counsel  under AS 18.85.100.  Thus,  Administrative
Rule 12(e)(1) does not apply here.
          However,  as we are about to explain, we conclude  that
another  provision  of Administrative Rule 12  subsection  (b)(1)
is premised on a courts implicit authority to appoint an attorney
for a defendant in Lathams situation.

     Alaska  law  governing the appointment of  counsel  for
     indigent defendants in municipal prosecutions
     
               In  1971,  when  our  supreme  court  decided
     Alexander,  there  was one primary  source  for  court-
     appointed  attorneys  in criminal  cases:   the  Alaska
     Public  Defender  Agency.  (If, for  some  reason,  the
     Public  Defender Agency could not provide the necessary
     attorney, AS 18.85.130(a) authorized a court to appoint
     a member of the private bar.)
               As we explained above, the supreme court held
     in  Alexander v. Anchorage that if the violation  of  a
     municipal  ordinance constitutes a  serious  crime,  an
     indigent   defendant  prosecuted  for  violating   that
     ordinance is entitled to court-appointed counsel  under
     AS 18.85.100.  The supreme court further ruled that the
     Public  Defender  Agency  was obliged  to  provide  the
     needed  defense attorney, but the municipal  government
     was   obliged  to  pay  for  the  attorneys   services.
     Alexander, 490 P.2d at 916.
          In  1984, the legislature modified the law on
this  point  when it enacted AS 18.85.155.1  Subsection
(a)  of  this  statute restates the rule  announced  in
Alexander   that  when  a  municipality  prosecutes  an
indigent defendant for a serious crime (thus triggering
the   right   to   counsel  at  public  expense),   the
municipality shall pay for the services of the attorney
appointed  by the court to defend the indigent  person.
However, subsection (b) of AS 18.85.155 gives municipal
governments three ways of meeting this obligation.
          One   clause  of  subsection  (b)  authorizes
municipalities  to  adopt  the  method   described   in
Alexander:   that is, municipalities may contract  with
the Public Defender Agency to provide defense attorneys
in  municipal  cases.   But the other  two  clauses  of
subsection (b) offer municipalities alternative methods
of  providing defense services without any  involvement
by  the  Alaska  Public Defender Agency.   Under  these
provisions of the statute, a municipality may  contract
with  private  attorneys  to provide  criminal  defense
services   or,   alternatively,  a   municipality   may
establish its own municipal public defender agency.
          The  Municipality of Anchorage has chosen  to
meet its obligation by contracting with members of  the
private bar to provide criminal defense services.   The
problem  in  Lathams case is that these contracts  have
proved inadequate to procure an attorney for Latham.

How  Lathams  case  would be handled  if  he  had  been
prosecuted by the State of Alaska

          If  Lathams case had been prosecuted  by  the
State  instead of a local government, our statutes  and
court  rules  would  provide a clear  solution  to  the
problem.
          AS   18.85.110(d)  (the  statute  authorizing
appointment  of  the  Public Defender  Agency)  and  AS
44.21.410(a)(5)    (the   statute    authorizing    the
appointment of the Office of Public Advocacy  in  cases
where the Public Defender Agency has a conflict) create
a  two-step  procedure  for obtaining  an  attorney  to
represent an indigent defendant who is being prosecuted
by  the  State.   This procedure is also  described  in
subsection (1)(A) of Alaska Administrative Rule 12(b).
          Under  our  statutes and  rules,  the  Public
Defender  Agency  has  the primary  responsibility  for
providing the defense attorney.  If the Public Defender
Agency  has a conflict that prevents it from  providing
the defense attorney, the Office of Public Advocacy has
the  backup  responsibility for providing the  attorney
either  from  among the Offices salaried attorneys,  or
from among its contract attorneys.
          Even though our statutes do not speak of  it,
there  is one more potential step in this process   the
third  (and  least used) step set forth  in  subsection
(1)(B)  of  Administrative Rule 12(b).  This subsection
of  Administrative Rule 12(b) describes  the  procedure
for   cases   where  the  two  statutory  steps   prove
inadequate   that  is, cases where neither  the  Public
Defender  Agency nor the Office of Public Advocacy  can
provide the needed attorney.
          Administrative   Rule  12(b)(1)(B)   declares
that,  as  a last resort, the Office of Public Advocacy
can  petition  the court to appoint an  attorney.   The
rule   requires  the  Office  of  Public  Advocacy   to
demonstrate   that  it  is  unable  to   provide   [the
necessary] counsel either by staff or by contract,  and
also  to provide[] the court with the name or names  of
the attorneys who shall be appointed in that particular
case.
          (The rule further provides that the Office of
Public  Advocacy shall be responsible for  compensating
[the] attorney appointed under this [procedure].)

How this law relates to Lathams case

          Latham    is   being   prosecuted   by    the
Municipality  of  Anchorage, and the  Municipality  has
opted under AS 18.85.155(b) to provide defense services
by   contracting  with  members  of  the  private  bar.
Because  the Municipality of Anchorage has chosen  this
option,  the Public Defender Agency and (by  extension)
the  Office  of  Public Advocacy are  not  involved  in
providing   defense   attorneys   in   criminal   cases
prosecuted by the Municipality.  Seemingly,  then,  the
attorney-appointment    procedures     described     in
Administrative Rule 12(b) would have no application  to
Lathams   case.    Nevertheless,   we   conclude   that
subsection (1)(B) of that rule provides the  answer  to
the problem presented here.
          As  we  noted  in the preceding section,  the
last-resort  appointment procedure  described  in  Rule
12(b)(1)(B)   is   not  derived  from   AS   18.85   or
AS   44.21.400  et  seq.   Rather,  subsection   (1)(B)
describes an appointment procedure to be employed  when
the  statutory appointment procedures prove inadequate.
From  this  fact, we conclude that Administrative  Rule
12(b)(1)(B)  is based on a courts common-law  authority
to  appoint  counsel to represent a criminal  defendant
when  (1)  the  defendant is entitled to counsel  under
AS   18.85.100   but   (2)  the   pertinent   statutory
appointment  mechanisms  fail  to  provide  the  needed
attorney.
          That  is  the  situation  here.   Latham   is
indigent,  and  he  is appealing his  conviction  of  a
serious crime as defined in Alexander.  He is therefore
entitled to court-appointed counsel under AS 18.85.100.
The   pertinent  statutory  mechanism  for   appointing
Lathams   attorney  is  the  method   chosen   by   the
Municipality  under  AS  18.85.155(b)   to   wit,   the
Municipalitys  contracts with private  attorneys.   And
this method has proved inadequate.
          Accordingly, we conclude that we can  indeed,
we  must   exercise our common-law authority to appoint
an  attorney  for Latham using procedures analogous  to
the ones described in Administrative Rule 12(b)(1)(B).
          The  Municipality has already  complied  with
the  first part of Rule 12(b)(1)(B)  the part requiring
a  declaration  that  the  Municipality  is  unable  to
provide [the necessary] counsel either by staff  or  by
contract.   What  remains is for  the  Municipality  to
provide[]  the  court with the name  or  names  of  the
attorneys who shall be appointed in Lathams case.
          We  note that Administrative Rule 12(b)(1)(B)
specifies that the Office of Public Advocacy  shall  be
responsible  for compensating [the] attorney  appointed
under  this  [procedure].  However, we  interpret  this
clause  of  the rule as simply meaning that the  agency
that  would normally be required to pay for the defense
attorneys  services remains obliged to  pay  for  those
services even though the attorney is being appointed by
the court.
          Here,  the  Municipality of  Anchorage  would
normally  be required to pay for the defense  attorneys
services.  See AS 18.85.155(a); Alexander, 490 P.2d  at
916.  Accordingly, the Municipality will be required to
pay  for  the services of the attorney who is appointed
to represent Latham in this case.

Conclusion

          We remand this case to the superior court for
the  appointment of appellate counsel.  Within 15  days
of  this decision, the Municipality shall submit to the
superior  court  a list of names of attorneys  who  are
qualified to pursue a criminal appeal and who are  not,
to   the  Municipalitys  knowledge,  disqualified  from
representing  Latham.  The superior  court  shall  then
have 30 days to appoint an attorney to represent Latham
in  this  appeal.  The superior court is authorized  to
seek an extension of this deadline if necessary.
          The superior court shall promptly notify this
Court  of the identity of the attorney who is appointed
to  represent Latham, and the superior court shall also
direct  that  attorney to promptly  file  an  entry  of
appearance in this Court.

_______________________________
1 See SLA 1984, ch. 125,  3.

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