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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Office of Public Advocacy v. Superior Court, Second Judicial District (6/23/00) sp-5291

Office of Public Advocacy v. Superior Court, Second Judicial District (6/23/00) sp-5291

     Notice:  This opinion is subject to correction before publication in
the Pacific Reporter.  Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.


                              )    Supreme Court No. S-9508
             Petitioner,      )
                              )    Superior Court Nos.
     v.                       )    2BA-86-15 CP/2BA-89-42 CP
JUDICIAL DISTRICT,            )    O P I N I O N
             Respondent.      )    [No. 5291 - June 23, 2000]

          Petition for Review from the Superior Court of
the State of Alaska, Second Judicial District, Barrow,
                    Michael I. Jeffery, Judge.

          Appearances:  Susan M. Carney, Assistant
Public Advocate, Fairbanks, and Brant McGee, Public Advocate,
Anchorage, for Petitioner.  Linda T. McKinney, Assistant Attorney
General, Fairbanks, and Bruce M. Botelho, Attorney General, Juneau,
for Respondent.   

          Before: Matthews, Chief Justice, Eastaugh,
Fabe, Bryner, and Carpeneti, Justices.  

          EASTAUGH, Justice. 

          The superior court ordered the Office of Public Advocacy
(OPA) to continue to represent the father of children alleged to be
children in need of aid, although the court found that the father
was no longer eligible for appointed counsel.  Interpreting Alaska
Administrative Rule 12 and Alaska Rule of Criminal Procedure 39, we
hold that the superior court had discretion to require OPA to
continue to represent the father.  We therefore affirm.  
          In October 1999 OPA was appointed in two superior court
proceedings to represent the father of two children who were
alleged to be children in need of aid. [Fn. 1]  When the assigned
OPA attorney learned that the father was employed in a position
paying about thirty dollars an hour, OPA filed a motion asking the
superior court to determine whether the father was eligible under
Criminal Rule 39 for appointed counsel at state expense in the CINA
          Magistrate Karen Hegyi, standing master for the superior
court, found that the father was not eligible for appointed
counsel, but recommended that OPA remain his attorney and that he
pay attorney's fees at the rate of $100 per hour for the attorney's
representation.  The superior court, by order, found those
recommendations to be reasonable and accepted them, implicitly
accepting the finding that the father was not eligible for counsel
appointed at state expense.  The court noted that OPA was familiar
with the case, and that the adjudication trial was then scheduled
for January 10, 2000.  "It is appropriate to continue the
appointment under these circumstances so that the children and the
other parties do not have a long delay in the hearing while a new
attorney becomes familiar with the case."  In so ruling, the
superior court relied on Criminal Rule 39(e)(2)(B) and based that
reliance on Alaska Child in Need of Aid (CINA) Rule 1(f).  The
court also required the father to pay his attorney's airfare and
hotel costs when counsel attended court hearings in Barrow.  The
court required the father to pay fees beginning November 18, 1999,
the date of OPA's motion to review the father's eligibility. 
          The superior court's order in the two consolidated cases
was entered January 4, 2000, and was immediately transmitted by
facsimile to all counsel. 
          On January 11, 2000, OPA filed a petition seeking our
immediate review of this order.  The adjudication hearing
originally scheduled to begin January 10 had been continued by the
superior court.  On January 26 the Alaska Department of Health and
Social Services (the petitioner in the two CINA cases) filed a
response that joined the request for review and expressed the
state's nonopposition to OPA's request for relief.  On February 15
we issued an order granting the petition, summarily affirming the
superior court's decision continuing the appointment of OPA as
counsel, and stating that an opinion would follow.
     A.   Standard of Review
          We apply our independent judgment when interpreting the
statutes governing appointment of counsel and our administrative
and procedural rules. [Fn. 2]  We granted discretionary review in
this case to clarify who is entitled to appointed counsel in such
cases, and because the issue might otherwise evade review. [Fn. 3] 
     B.   The Applicable Rules
          OPA argues that the rules of criminal procedure do not
apply because these were CINA proceedings and that the superior
court should not have relied on Criminal Rule 39.  OPA relies on
Administrative Rule 12(d) and (f) to argue that appointed counsel
must move to withdraw if the client is no longer eligible for
appointed counsel.  It argues that the superior court misconstrued
its authority under CINA Rule 1(f), which, it argues, cannot be
read to incorporate the criminal rules, particularly Criminal Rule
39.  It also argues that Criminal Rule 39 does not address
procedures governing the conduct of CINA hearings.  Finally, it
argues that the applicable statutes contradict the superior court's
order.  It refers us to AS 44.21.410(a)(5), and to AS 18.85.100 and
AS 18.85.170.  It reasons that because the father is not an
"indigent person" as AS 18.85.170 defines that term, [Fn. 4] he
would not qualify for representation by the Public Defender Agency
and therefore could not qualify for OPA representation.  
          We first note that the conjunction of AS 18.85.100(a)
[Fn. 5] and Administrative Rule 12(b)(1) [Fn. 6] gives OPA
authority to represent indigent persons entitled to representation
in CINA proceedings.  Administrative Rule 12(b)(1) governs a
conflict situation, specifying that a person entitled to a public
defender under AS 18.85.100(a) will receive an OPA attorney if the
Public Defender Agency has a conflict.  That is the undisputed
situation here, given OPA's assertion that it was appointed to
represent the father because the Public Defender Agency had a
conflict of interest.  And OPA has recognized that it was primarily
responsible for the father's representation under AS 18.85.100(a). 
          Upon learning that its client was potentially ineligible
for representation at public expense, OPA appropriately moved, as
it was required to do, for a determination of eligibility. [Fn. 7] 
Administrative Rule 12(b)(2) requires that determinations of
eligibility for appointment of counsel must be made in accordance
with the provisions of Criminal Rule 39.  That is so even when an
appointment concerns not a criminal matter but a CINA proceeding,
because Administrative Rule 12(b)(1) refers to appointments under
AS 18.85.100(a), and that statute encompasses appointments in CINA
          Consequently, Criminal Rule 39(e) applies in this case. 
Criminal Rule 39(e)(2) gives the superior court authority to
fashion appropriate relief if it determines that a party is no
longer eligible for court-appointed counsel. [Fn. 8]  Criminal Rule
39(e)(2) permits the superior court either to terminate the
appointment or to continue the appointment.  If the court chooses
the latter alternative, it may, at the conclusion of the
proceedings, enter judgment for the actual cost of appointed
counsel including actual expenses.
          The superior court in this case therefore had authority
to decide whether to terminate or continue OPA's appointment. 
Having decided to continue the appointment, the court then
appropriately followed the procedure set out in Criminal Rule
39(e)(2)(B) to recapture the cost of counsel's services and
          In so holding, we reject OPA's argument that
Administrative Rule 12(d) requires a different result.  That rule
          Withdrawal From Unauthorized Appointment.  The
public defender agency and the office of public advocacy shall
accept appointments only in those cases for which the basis for the
appointment is clearly authorized.  If the agency or office
determines that the basis for an appointment is not clearly
authorized, the agency or office shall file with the court a motion
to withdraw from the appointment.

Rule 12(d) obliges OPA to move to withdraw if it determines that
the basis for an appointment is not clearly authorized.  It does
not, however, require the superior court to order OPA to withdraw. 
Rule 12(d) imposes an obligation on the agency, not the court. 
Instead, as we saw above, Administrative Rule 12(b)(2) adopts
Criminal Rule 39(e), and that rule permits the court to continue an
appointment even if the client is ineligible.  
          The superior court also relied on CINA Rule 1(f) as
authority for invoking Criminal Rule 39(e)(2)(B). [Fn. 9]  In our
view, that reliance was appropriate.  CINA Rule 1(f) confirmed the
authority of the superior court to adopt the procedure set out in
Criminal Rule 39(e)(2)(B).  
          Because the superior court had authority to continue
OPA's representation of the father, we AFFIRM the order continuing
OPA's appointment.


Footnote 1:

     These facts are taken from OPA's petition for review and the
few papers submitted in support of the petition.  

Footnote 2:

     See Airoulofski v. State, 922 P.2d 889, 892 (Alaska 1996)
(applying independent judgment to interpretation of civil rules);
Deal v. Kearney, 851 P.2d 1333, 1356 n.4 (Alaska 1993) (applying
independent judgment to interpretation and application of statute).

Footnote 3:

     See Alaska R. App. P. 402(b)(2), (4).  

Footnote 4:

     AS 18.85.170 states in relevant part: 

          (4)  "indigent person" means a person who, at
the time need is determined, does not have sufficient assets,
credit, or other means to provide for payment of an attorney and
all other necessary expenses of representation without depriving
the party or the party's dependents of food, clothing, or shelter
and who has not disposed of any assets since the commission of the
offense with the intent or for the purpose of establishing
eligibility for assistance under this chapter . . . . 

Footnote 5:

     AS 18.85.100(a) expressly covers CINA appointments: 

          An indigent person who is under formal charge
of having committed a serious crime and the crime has been the
subject of an initial appearance or subsequent proceeding, or is
being detained under a conviction of a serious crime, or is on
probation or parole, or is entitled to representation under the
Supreme Court Delinquency or Child in Need of Aid Rules, or is
detained under an order issued under AS 18.15.120 - 18.15.149, or
against whom commitment proceedings for mental illness have been
initiated, is entitled
               (1)  to be represented, in connection
with the crime or proceeding, 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. 

(Emphasis added.) 

Footnote 6:

     Administrative Rule 12(b)(1) states: 

          Appointments Under AS 18.85.100(a) (Public
Defender Agency).
               (1)  Appointment Procedure.
               (A)  When a person is entitled to counsel
under AS 18.85.100(a), appointments shall be made first to the
public defender agency.  If the agency files a motion to withdraw
on the grounds that it cannot represent the person because of a
conflict of interest, if the parties stipulate on the record that
the agency has a conflict of interest, or if the court on its own
motion finds an obvious conflict of interest, the court accepting
such motion or stipulation or making such finding shall appoint the
office of public advocacy to provide counsel.
               (B)  The court may appoint an attorney in
a case in which the office of public advocacy has been appointed
only if:
               (i)  The office of public advocacy has
shown that it is unable to provide counsel either by staff or by
contract; and
               (ii) The office of public advocacy has
provided the court with the name or names of the attorneys who
shall be appointed in that particular case.
               The office of public advocacy shall be
responsible for compensating any attorney appointed under this
               (C)  All claims for payment for services
performed after July 1, 1984, by attorneys appointed by the court
shall be submitted to the director of the office of public
advocacy, under such procedures as the director may prescribe.  The
director shall approve, modify or disapprove the claim. 

Footnote 7:

     Administrative Rule 12(b)(2) provides:  "Determination of
Indigency.  Determination of indigency or financial inability for
appointments under paragraph (b) of this rule must be made in
accordance with the provisions of Criminal Rule 39." 

Footnote 8:

     Criminal Rule 39(e)(2) provides:

          If the court determines that a defendant is no
longer eligible for court-appointed counsel under Criminal Rule
39.1, the court may
               (A) terminate the appointment; or
               (B) continue the appointment and, at the
conclusion of the criminal proceedings against the defendant in the
trial court, enter judgment against the defendant for the actual
cost of appointed counsel, including actual expenses, from the date
of the change in the defendant's financial status through the
conclusion of the trial court proceedings. 

Footnote 9:

     CINA Rule 1(f) states:  

          Situations Not Covered by These Rules. Where
no specific procedure is prescribed by these rules, the court may
proceed in any lawful manner, including application of the Civil
Rules, applicable statutes, the Alaska and United States
Constitutions or the common law. Such a procedure may not be
inconsistent with these rules and may not unduly delay or otherwise
interfere with the unique character and purpose of child in need of
aid proceedings.