Made available by Touch N' Go Systems, Inc. and
This was Gottstein but needs to change to what?
406 G Street, Suite 210, Anchorage, AK 99501
(907) 274-7686 fax 274-9493

You can of the Alaska Court of Appeals opinions.

Touch N' Go, the DeskTop In-and-Out Board makes your office run smoother. Visit Touch N' Go's Website to see how.

Alaska Public Defender Agency v. Superior Court (1/12/2018) ap-2582

Alaska Public Defender Agency v. Superior Court (1/12/2018) ap-2582


              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@  

                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                     



                                                                                                      Court of Appeals No. A-12814  


                                                      Petitioner,                                   Trial Court No. 4SM-16-002 DL  


                                                                                                                   O  P  I  N  I  O  N  



                                                      Respondent.                                      No. 2582 - January 12, 2018  


                           Original Application for Relief from the Superior Court, Fourth  


                           Judicial District, Bethel, Dwayne W. McConnell, Judge.  


                           Appearances:  Kelly R. Taylor, Assistant Public Defender, and  


                           Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.  


                           Jeffrey W. Robinson, Ashburn & Mason, P.C., Anchorage, for  


                           the   Respondent.                      David  A.  Wilkinson,  Assistant  Attorney  


                           General,  Fairbanks,  and  Jahna  Lindemuth,  Attorney  General,  


                           Juneau, for the Alaska Division of Juvenile Justice (intervenor).  


                           Before:             Mannheimer,  Chief  Judge,  and  Suddock,  Superior  


                           Court Judge.*  



                           Judge MANNHEIMER.  

       *      Sitting    by   assignment   made   pursuant   to   Article   IV,   Section   16   of   the   Alaska  

Constitution and Administrative Rule 24(d).                             

----------------------- Page 2-----------------------


                     This case arises out of juvenile delinquency proceedings against J.B.,  a  


minor  who  lives  in  the  village  of  Marshall.                       J.B.'s  family  is  indigent,  and  J.B.  is  


represented by the Public Defender Agency.  


                      J.B. has invoked his right to trial and, under the venue rules, J.B.'s trial is  


to  be  held  in  Bethel.             But  J.B.'s  family  has  no  funds  to  transport  him  to  Bethel.  


Moreover, because of J.B.'s youth, his parents take the position that one of them must  


accompany J.B. to Bethel.  


                     The superior court has ordered the Public Defender Agency to pay for this  


travel expense.  Quoting the language of AS 18.85.100(a)(2), the superior court reasoned  


that this transportation expense was one of the "necessary services and facilities of [the  


Agency's] representation" of J.B.  


                     The Public Defender Agency now petitions this Court to review and reverse  


the superior court's order.  The Agency takes the position that the transportation expense  


should be borne either by the Division of Juvenile Justice (i.e., the government entity that  


is prosecuting J.B.) or, alternatively, by the Court System.  


                     Both the Alaska Court System and the Alaska Division of Juvenile Justice  


are actively participating in this litigation; they ask this Court to uphold the superior  


court's ruling.  


                     The parties are in essential agreement that some government entity should  


pay to transport an indigent minor (and, when necessary, a parent or guardian) to the site  


of the minor's trial.  The problem is to identify which government entity that should be.  


                     The Division of Juvenile Justice concedes that they should pay the expense  


of transporting a minor who is in custody.  But with regard to minors who are released  


from custody pending trial (such as the minor in this case),  the Division of Juvenile  


Justice argues that the expense of transportation should be borne by the legal agency that  


is representing the minor (i.e.,  the  Public Defender Agency or the Office of Public  

                                                               - 2 -                                                          2582

----------------------- Page 3-----------------------


Advocacy), just as the agency would bear other necessary expenses of the representation  


such as the transportation of needed witnesses.  


                    The Division of Juvenile Justice bases its argument on the Public Defender  


Agency's authorizing statute, AS 18.85.100.  Subsection (a) of this statute declares that  


indigent  defendants  in  criminal   proceedings  and  indigent  minors  in  delinquency  


proceedings are entitled:  



                               (1)  to be represented ... by an attorney to the same  


                    extent as a person retaining an attorney is entitled; and  


                               (2) to be provided with the necessary  services and  


                     facilities  of  this  representation,  including investigation  and  


                    other preparation.  


See also AS 44.21.410(a)(5),  the parallel authorizing statute of the Office  of  Public  




                    The Division of Juvenile Justice contends that when the Public Defender  


Agency or the Office of Public  Advocacy is representing an indigent defendant, and  


when that defendant is not in custody, the cost of transporting the defendant to the site  


of their trial is a necessary "service" or "facility" of the representation.  


                    This is a plausible interpretation of the statute, but it is by no means the  


only possible interpretation of the statute.   We acknowledge that some  people might  


reasonably  conclude  that  the  phrase  "necessary  services  and   facilities  of  [the]  


representation" does not include the cost of transporting the defendant to court.  


                    But we note that the position advocated by the Division of Juvenile Justice  


was expressly adopted by the Alaska Department of Law some forty years ago.  


                    In 1977 and 1978, the Alaska Attorney General issued two formal opinions  


dealing with the  question of who should pay the transportation expenses of indigent  

                                                               - 3 -                                                          2582

----------------------- Page 4-----------------------

criminal defendants and indigent juvenile defendants.                                                                                    In those opinions, the Department                        

of Law concluded that when a criminal defendant or a juvenile delinquency defendant                                                                                                                    

is   represented   at   public   expense   by   the   Public   Defender   Agency,   the   Agency   is  


responsible for paying the defendant's necessary transportation costs.                                                                                                                  

                                   Consistent  with  these  Attorney  General  Opinions,  the  Department  of  


Administration has promulgated an administrative regulation,  2 AAC 60.040,  which  


authorizes the Office of Public Advocacy to pay "necessary travel and per diem by the  



defendant, ... not [to] exceed the rate authorized for state employees."  


                                   According to the Administrative Code, the authority for this regulation is  


AS 44.21.410.  This statute is the authorizing statute for the Office of Public Advocacy,  


and it requires the Office of Public Advocacy to provide the same legal representation  


         1       See   Attorney General                                   Opinion dated October                                        7,   1977   (1977   WL   22018   at   *3),  

(concluding that when it is necessary for a defendant to travel, this expense is a "necessary                                                                                                        

incident of [the] representation" within the meaning of the Public Defender's authorizing                                                                                                            

statute, AS 18.85.100); and Attorney General Opinion dated September 25, 1978 (1978 WL                                                                                                                                  

 18588 at *1) (concluding that the reasoning of the 1977 opinion applies to juvenile cases).                                                                                                                 



                 The complete text of this regulation is:  


         2 AAC 60.040. Extraordinary expenses.  


                 Extraordinary expenses  for  appointed attorneys  will  be  reimbursed only if  prior  


         authority has  been  obtained from the  public  advocate.  In this  section,  "extraordinary  


         expenses" are limited to expenses for:  


                  (1) investigation;  


                  (2) expert witnesses; and  


                  (3) necessary travel and per diem by the defendant, appointed counsel, and witnesses,  


         which may not exceed the rate authorized for state employees.  

                                                                                                           - 4 -                                                                                                      2582

----------------------- Page 5-----------------------

that an indigent person would receive from the Public Defender Agency if the Agency                                                                  


did not have a disqualifying conflict.                                  

                         Thus, the Department of Administration apparently agrees with (or at least  


has acquiesced in) the position taken by the Attorney General - the position that the  


payment  of  transportation  expenses  is  a  necessary  incident  of  a  public  agency's  


representation of its clients if those clients are not in custody.  


                         Our decision in this case is not controlled  by  the  fact that the Attorney  


General has interpreted the Public Defender Agency's authorizing statute in this fashion,  


nor by the fact that the Department of Administration has interpreted the Office of Public  


Advocacy's authorizing statute in the same way.   Nevertheless, the Alaska Supreme  


Court  has  said  that  an  appellate  court  should  accord  some  deference  to  Attorney  


General's opinions,  as well as to interpretations of a statute that are adopted by the  



executive agency responsible for enforcing or overseeing the operation of that statute.  


                         Because all three parties to this case agree that some  government  entity  


should be responsible for paying to transport indigent defendants to the site of their trial,  


this case does not present a question of criminal law or procedure.  Rather, it presents  


issues of budgeting and finances -  i.e.,  administrative questions.                                                               In these circum- 


stances, we believe that we should accord substantial weight to the statutory interpreta- 


tion adopted by the Attorney General and the Department of Administration.  


      3       See  AS 42.21.410(a)(5).                     



             See, e.g., State v. Dupier, 118 P.3d 1039, 1050 n. 62  (Alaska 2005) ("The weight  


accorded to opinions of the Attorney General  is largely within our discretion.  In general,  


they are not controlling but are entitled to some deference."); Bullock v. Dept. of Community  


& Regional  Affairs,  19  P.3d  1209,  1216  (Alaska 2001)  ("When an executive  [agency]  


interprets legislation, that interpretation is entitled to be  given weight ... in construing the  


intent of the statute.").  

                                                                             - 5 -                                                                         2582

----------------------- Page 6-----------------------


                    We accordingly hold that when the Public Defender Agency or the Office  


of Public Advocacy is representing an indigent defendant who is (1) not in custody and  


who is  (2) unable to afford to travel to the site of their trial, the agency shall pay the  


necessary  expense.                And  when  a  delinquency  case  involves  a  minor  who  is  not  


reasonably  able  to  travel  alone,  the  agency  shall  pay  for  a  parent  or  guardian  to  


accompany the minor.  


                    We are aware that our decision may have significant financialconsequences  


for the Public Defender Agency and the Office of Public Advocacy - just as a different  


decision might have significant financial consequences for the  Court  System or the  


Division of Juvenile Justice.  


                    But this is a situation where having an answer is arguably more important  


than the specific content of the answer.  In the end, this litigation is about money and  


budgeting.  Now that we have identified the government agencies who are responsible  


for paying these travel expenses, it is the legislature's task to adjust the agencies' budgets  


to accommodate these expenses.  


                    The decision of the superior court is AFFIRMED.  

                                                              - 6 -                                                          2582

Case Law
Statutes, Regs & Rules

IT Advice, Support, Data Recovery & Computer Forensics.
(907) 338-8188

Please help us support these and other worthy organizations:
Law Project for Psychiatraic Rights