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

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

                                                                               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@ akcourts.us  



                             IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                                     



ALASKA  PUBLIC  DEFENDER  AGENCY,  

                                                                                                                                                

                                                                                                      Court of Appeals No. A-12814  

                                                                                                                                                             

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



                                        v.  

                                                                                                                   O  P  I  N  I  O  N  

                                                                                                                                                 

SUPERIOR  COURT,  



                                                      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  



                   

Advocacy.  



                                                                                                                      

                    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  



                                                                                                                                                                                     1  

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  

                                                                                                                                                                                                                        



                                                                                                                                                                                       2  

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).                                                                                                                 



         2  

                                                                                                                   

                 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                                                                  



                                                                    3  

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  

                                                                                                                                                             



                                                                                                                                                                 4  

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).                     



      4  

                                                                                                                                                       

             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
  

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