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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of Alaska Network on Domestic Violence and Sexual Assault (12/2/2011) sp-6620

In the Matter of Alaska Network on Domestic Violence and Sexual Assault (12/2/2011) sp-6620

        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, email 
        corrections@appellate.courts.state.ak.us. 

                THE SUPREME COURT OF THE STATE OF ALASKA 

In the Matter of                                 ) 
ALASKA NETWORK ON                                )   Supreme Court No. S-13685 
DOMESTIC VIOLENCE AND                            ) 
SEXUAL ASSAULT.                                  )   Superior Court No. 1JU-09-00781 CI 
                                                 ) 
                                                     O P I N I O N 

                                                     No. 6620 - December 2, 2011 

               Petition for Review from the Superior Court of the State of 
               Alaska, First Judicial District, Juneau, Philip M. Pallenberg, 
               Judge. 

               Appearances:        Beth    Lewis    Trimmer,     Assistant   Public 
               Advocate, and Rachel Levitt, Public Advocate, Anchorage, 
               for Petitioner. Christine McLeod Pate, Supervising Attorney, 
               ANDVSA Legal Advocacy Project, Sitka, for Respondent. 
               James     J.  Davis,  Jr.,  Alaska  Legal   Services   Corporation, 
               Anchorage,       for  Amicus    Curiae    Alaska    Legal   Services 
               Corporation. 

               Before:  Carpeneti, Chief Justice, Fabe, Winfree, Christen, 
               and Stowers, Justices. 

               CHRISTEN, Justice. 
               STOWERS, Justice, dissenting. 

I.      INTRODUCTION 

               We granted the Office of Public Advocacy's petition for review on the 

limited question whether the Alaska Network on Domestic Violence and Sexual Assault 

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

(ANDVSA) qualifies as a "public agency" within the meaning of Flores v. Flores and 

AS 44.21.410(a)(4), such that the Office of Public Advocacy is required to provide 

representation to an indigent party in a child custody dispute in which the other party is 

represented by ANDVSA.   Because we maintain our holding from Flores that it would 

be fundamentally unfair, in the specific context of child custody disputes, to allow public 

funding   to   support   one   party   but   not   that   party's   indigent   opponent,   we   hold   that 

ANDVSA does qualify as a public agency for purposes of AS 44.21.410(a)(4). 

II.     FACTS AND PROCEEDINGS 

                This case grew out of a child custody dispute in the Juneau Superior Court. 

The mother was represented by the Alaska Network on Domestic Violence and Sexual 

Assault (ANDVSA), a nonprofit corporation.   The father was indigent, and the superior 

court determined, sua sponte, that it was obligated under AS 44.21.410(a)(4) to appoint 

counsel     for  him  through    the  Office   of   Public  Advocacy     (OPA).    After   the   court 

appointed counsel, OPA moved to intervene, withdraw from representation, and convert 

the   representation    issue   to  a  declaratory   judgment     action.    OPA    argued    that  its 
appointment was improper under Flores v. Flores1 and AS 44.21.410(a)(4) because 

ANDVSA is not a "public agency" for purposes of the requirement that OPA provide 

legal representation to indigent parties in child custody cases where the opposing party 

is represented by a public agency.          OPA contended that ANDVSA   is   not a "public 

agency" because, among other things, it is funded through discretionary grants rather 

than state or federal budget designations, it is not a creature of the Alaska Legislature or 

United States Congress, and its Board of Directors is not appointed by any member of 

the state or federal executive branch.       ANDVSA opposed OPA's motion to withdraw. 

        1       598 P.2d 893 (Alaska 1979) (requiring that party to litigation be provided 

with appointed counsel when opposing party is represented by public agency). 

                                                 -2-                                              6620 

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

                At a hearing on October 26, 2009, the superior court expressed doubts that 

it could "make any distinction at all for the purpose of applying the Flores holding 

between [Alaska Legal Services Corporation, which was the "public agency" in Flores] 

and [ANDVSA]" given that "they are both private nonprofits, largely publicly funded, 

subject to a number of strings and government entanglements by virtue of their public 

funding, [and] subject to a number of state and federal laws."                The court also observed 

that "the Flores holding doesn't give a lot of explanation as to why [the Alaska Supreme 

Court] concluded that [Alaska Legal Services Corporation] is a public agency."                      Two 

days later, the superior court entered an order in which it:   (1) granted OPA's motion to 

intervene   for   the   purpose   of   filing   a   motion   to   withdraw   as   counsel   for   the   father; 

(2)  denied   OPA's   motion   to   withdraw   as   counsel;   and   (3)   denied   OPA's   motion   to 

convert the action to a declaratory judgment action. 
                OPA filed an original application with this court under Appellate Rule 404.2 

We ordered that the original application be converted into a petition for review to be 

considered under Appellate Rule 403, and granted the petition on the limited question 

whether ANDVSA qualifies as a "public agency" within the meaning of Flores v. Flores 

and AS 44.21.410(a)(4).         We also ordered that OPA continue to represent the father in 

the underlying child custody dispute.           In the interim between the filing of the original 

application and our order, the parents reached a custody agreement without the need for 

trial. 

        2       ANDVSA filed a response to OPA's original application in which it made 

procedural objections but acknowledged that "[t]he question of whether ANDVSA is a 
public agency should be addressed . . . since the issue keeps recurring." 

                                                   -3-                                                6620 

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

III.    STANDARD OF REVIEW 

                The question whether ANDVSA qualifies as a "public agency" is a question 
of law, which we review de novo.3 

IV.     DISCUSSION 

        A.      Overview Of Flores v. Flores And AS 44.21.410(a)(4) 

                Flores    v.  Flores   was   a  divorce    proceeding     in  which    custody   of  the 
divorcing couple's child was the only contested issue.4            Both parties were indigent, but 

the father obtained the representation of the Alaska Legal Services Corporation (ALSC).5 

The mother asked that the Public Defender Agency be appointed to represent her in the 

                        6 
divorce proceeding,  but the trial court ruled that counsel would not be appointed for the 

mother due to lack of agency funding.   The court ordered that the case proceed with the 
mother unrepresented.7 

                On appeal, we held that, "[t]he interest at stake in this case is one of the 
most basic of all civil liberties, the right to direct the upbringing of one's child."8          Given 

the   nature   of  that  right,  we   concluded     that  the  "decided     and  frequently    decisive 

disadvantage" to a parent not represented by counsel is "constitutionally impermissible 

        3       See, e.g., Jacob v. State, Dep't of Health & Soc. Servs ., 177 P.3d 1181, 

1184 (Alaska 2008) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)) ("We 
apply our independent judgment to questions of law, adopting 'the rule of law most 
persuasive in light of precedent, reason, and policy.' "). 

        4       598 P.2d at 894. 

        5       Id. 

        6       Id. 

        7       Id. 

        8       Id. at 895. 

                                                  -4-                                             6620
 

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

where the other parent has an attorney supplied by a public agency."9                  We emphasized 

that the constitutional right to counsel in custody cases was "limited to cases . . . where 
an indigent party's opponent is represented by counsel provided by apublic agency. "10 

We went on to hold that, because it had been stipulated that ALSC could not represent 
both   parties   in   a   divorce11  and   the   Public   Defender   Agency's   responsibility   did   not 

extend     to  such   cases,   "counsel     should   be   appointed     from   the   private   bar,"   with 
compensation provided under Alaska Administrative Rule 15.1.12 

                 Alaska   Statute   44.21.410(a)(4)   was   enacted   in   1984   as   part   of   the   law 

establishing the Office of Public Advocacy.  The statute provides in part:  "The office of 

public advocacy shall . . . provide legal representation . . . to indigent parties in cases 

involving child custody in which the opposing party is represented by counsel provided 
by a public agency."   This language appears to have been drawn directly from Flores.13 

Because neither party argues that the limited legislative history of AS 44.21.410(a)(4) 

provides an independent basis for interpreting the statute, we base our holding entirely 

on Flores. 

        9       Id. at 896. 

        10      Id. at 896 n.12 (emphasis added). 

        11      Id. at 894. 

        12      Id. at 897. 

        13       See Office of Pub.Advocacy v. Super. Ct., Second Jud. Dist ., 779 P.2d 809, 

810    (Alaska    App.   1989)     ("OPA     has  demonstrated       .   .   .  that  the  language  of   [AS 
44.21.410(a)(4)] was derived from Flores."). 

                                                    -5-                                              6620
 

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

        B.	     Under Flores, ANDVSA Is A Public Agency. 

                1.	     Flores    defined     "public    agency"     largely    by  reference     to  an 
                        organization's public funding sources. 

                In   holding   that   there   was   a   right   to   counsel   in  Flores,   we   noted   that, 
although the custody proceedings below had been initiated by a "private individual,"14 

that individual "was represented by counsel provided by a public agency" and "[f]airness 
alone dictates that the petitioner should be entitled to a similar advantage."15           Later in the 

opinion, we reiterated that a parent in a custody case "who is without the aid of counsel 

. . . will be at a decided and frequently decisive disadvantage" and "[t]his disadvantage 

is constitutionally impermissible where the other parent has an attorney supplied by a 
public agency."16 

                This emphasis on fairness and equal advantage indicates that the right to 

counsel where the opposing party is represented by a "public agency" arises, at least in 

part, from the government's otherwise one-sided support for the party with an attorney 

supplied by a public agency.         Such support need not be provided exclusively through 

funding or the direct provision of government resources; but fairness considerations 

undoubtedly   do   arise   where   one   party   benefits   from   the   government's   funding   of   a 

"public agency."       As ANDVSA puts it, this court was concerned in Flores with "the 

fundamental imbalance of power that occurs when one side has an attorney being paid 

in part by public funding and the other side is indigent and is without any counsel." 

        14      This was in contrast to prior cases - cited in Flores - in which custody- 

related proceedings prosecuted by the State were found to entitle an indigent defendant 
to court-appointed counsel.  See, e.g., Cleaver v. Wilcox, 599 F.2d 940 (9th Cir. 1974); 
Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977). 

        15      Flores, 598 P.2d at 895. 

        16      Id. at 896. 

                                                  -6-	                                            6620
 

----------------------- Page 7-----------------------

                The notion that government funding sources are among the characteristics 

required for an organization to be classified as a "public agency" is underscored by the 

remedy we provided in Flores: after finding that ALSC and the Public Defender Agency 

could not provide representation under the circumstances of the case, we concluded that 

counsel should be appointed from the private bar, with attorney compensation provided 
by the State pursuant to Administrative Rule 15.1.17  In other words, the solution to the 

potential   unfairness   of   public   agency     representation   for   one   party   was   to  pay   for 

representation   of   the   other   party   through   public   funds,   thus   equalizing   the   public 
financial support on both sides of the dispute.18 

                In its brief, OPA provides an overview of how courts in other jurisdictions 

have defined "public agency," both pre-1980 (i.e., "during the Flores period") and post- 

1980.    OPA explains that this history is "set forth to give this Court a broad range of 

sources from which to review whether or not ANDVSA meets any 'public agency' 

definition."     We find this approach overbroad.           The question before us is not whether 

ANDVSA meets any public agency definition, but whether ANDVSA is a public agency 

under  Flores   and   the   related   statute.  Definitions   of   "public   agency"   used   in   other 

        17      Id. at 897. 

        18      Commentators have placed similar emphasis on ALSC's funding sources. 

See, e.g., Clare Pastore, A Civil Right to Counsel: Closer to Reality? , 42 LOY. L.A. L. 
REV . 1065, 1070-71 (2009) (describing Flores as "holding that an indigent in a custody 
dispute is entitled to counsel when facing an opponent with a publicly funded  lawyer") 
(emphasis added). Our own characterization ofFlores in an unpublished decision noted, 
"Flores  involved   a   civil   child   custody   proceeding   in   which   one   of   the   parties   was 
represented by [ALSC], essentially a government-funded entity." Hamilton v. Hamilton, 
Mem.      Op.   &   J.  No.  5331,   1994    WL    16459407,      at  *2  (Alaska,    March    9,  1994) 
(contrasting the facts of Flores with those of Hamilton, in which the party requesting 
court-appointed counsel did not allege any government involvement in the opposing 
party's representation). 

                                                   -7-                                             6620
 

----------------------- Page 8-----------------------

contexts and jurisdictions are useful only to the extent that they represent the background 

that the Flores court may have had in mind when it chose to use the term.  But, given that 

the  Flores     court   did   not   cite   to   any   other   jurisdictions   or   definitions,   there   is   no 

indication of an intention to draw on prior interpretations of "public agency"; and it is 

unlikely that the court considered criteria for public agencies that only appeared in cases 

that came after Flores. 

                 Moreover, where definitions from other jurisdictions are in direct conflict 

with the Flores holding that ALSC was a public agency, those definitions are clearly 

irrelevant to the question on appeal.          It is reasonable to assume, at a minimum, that the 

Flores court was aware of the characteristics of ALSC specifically identified by Justice 

Connor in his partial dissent, where he noted that "the Alaska Legal Services Corporation 
is a private corporation and not an agency of the state or federal government."19                     The 

court presumably considered these aspects of ALSC's organizational structure and status, 

but nonetheless determined that ALSC was a public agency. 

                Flores thus suggests that the characteristics identified by Justice Connor - 

namely,      being   a  private    non-profit    corporation     with   no   connection      to  a  formal 

government agency -   do not preclude an organization from designation as a public 

agency.     Several   of   the   "public   agency"   definitions   cited   by   OPA      require   that   an 

organization be a government agency or government-created agency in order to qualify 

as a "public agency."         To now   adopt those definitions would, as ANDVSA argues, 
effectively overrule the approach we took in Flores.              We decline to take that step.20 

        19      Flores, 598 P.2d at 900 n.8 (Connor, J., dissenting in part, concurring in 

part). 

        20       OPA claims that it is not proposing to overrule the core premise of Flores 

"that a due process right to counsel for an indigent parent [exists] in a child custody 
                                                                                           (continued...) 

                                                    -8-                                              6620
 

----------------------- Page 9-----------------------

               We conclude that the use of the term "public agency" in Flores must be 

understood as referring primarily to the nature of an organization's funding sources, and 

not to an organization's status as a government agency. 

               2.	     Based on its funding sources and similarity to ALSC, ANDVSA 
                       should be considered a public agency. 

               As of 1979, ALSC received approximately 78 percent of its funding from 

the national Legal Services Corporation (LSC), which was created by Congress as a 

private nonprofit corporation to distribute federal funds to local grantee legal assistance 
organizations.21    ANDVSA's Legal Advocacy Project (the legal services arm of the 

organization) currently receives over 99 percent of its funding from the Department of 

Justice's Office on Violence Against Women (OVW), a federal AmeriCorps grant, and 
the State.22  OPA argues that ANDVSA's funding structure is distinguishable from that 

of ALSC because LSC, a federally-created agency, provided (and continues to provide) 

direct   funding   to   ALSC,   while   ANDVSA   receives   its   state   and   federal   government 

funding through discretionary grants rather than   as budget items.             In addition, OPA 

        20(...continued) 

proceeding."  But it also contends that "the Flores Court did not provide an analysis for 
its conclusion that the 1978-ALSC was a 'public agency' and . . . the case law and 
definitions    in  existence   at  the  time  of  the  Flores   decision   do  not,  without   more 
information, support that conclusion.        The review [of case law and definitions] further 
supports the concerns raised by Justice Connor about labeling ALSC a 'public agency' 
. . . ."  To the extent that OPA is arguing that the holding that ALSC was a public agency 
(arguably as much a part of the Flores decision as the finding of a right to counsel) was 
incorrect, OPA seems to call for at least a partial overruling of Flores. 

        21      Overall federal funding comprised 96 percent of ALSC's total 1979 funding 

of approximately $1,763,286.  An additional three percent came from state sources and 
one percent from tribal sources. 

        22      The record does not appear to include information regarding the breakdown 

of ANDVSA's total budget. 

                                                 -9-	                                         6620
 

----------------------- Page 10-----------------------

distinguishes the organizations' funding sources, noting that although LSC - which it 

describes as "ALSC's somewhat 'parent' corporation" - has a board appointed by the 

President    and   confirmed    by   the  Senate,   ANDVSA       has   no  equivalent    "parent" 

organization. 

               We do not find these distinctions to be meaningful.           OPA provides no 

explanation for why funding received from the government through discretionary grants 

is less significant for purposes of designating a "public agency" than funding received 

through the normal state or federal budget process.  More importantly, it is not clear that 

ALSC receives or ever did receive guaranteed budget funding rather than grants:  though 

the record does not include detailed budget information about the status of ALSC in 

1978-79, its 2009 accounting records label the majority of its funding from LSC as a 

"Basic Field Grant," and designate other government funding as, for example, "Family 

Caregiver Grants" and "Domestic Violence Grants"; and ALSC's 1978-79 accounting 

statements include a broad category of "grants and contracts" from LSC and a number 

of   other  sources.   OPA     implies   that  these  contributions   are  non-discretionary    or 

otherwise different from the grants that fund ANDVSA.             But as ALSC explains in its 

amicus brief: 

               [S]ometimes      a  "grant"   is  issued  to  ALSC    in  lieu  of  a 
               budgetary allocation and sometimes this is done because of 
               budgetary and/or political concerns . . . . [C]ontrary to OPA's 
               intimation,    the   application   for  funds    from   LSC    is  a 
               competitive     one   and   other   nonprofit   law   firms   could 
               [compete] against ALSC . . . for those funds. 

               Similarly, OPA's description of LSC as ALSC's "parent" corporation is 

called into question by the affidavit of ALSC's executive director Andy Harrington, who 

stated that "[a] review of the regulations reflects that LSC does not refer to the individual 

programs as LSC entities or LSC branch offices, nor does it refer to itself as the parent 

                                              -10-                                          6620
 

----------------------- Page 11-----------------------

of the individual programs. . . .     The most common term the regulations use to refer to 

the individual programs is 'recipients' . . . ." The LSC-ALSC relationship does not seem 

to   extend   far  beyond    funding;   as  Harrington's     affidavit   makes   clear,   LSC   places 

restrictions   on   how   its   funding   can   be   used,   but   it   does   not   create   individual   legal 

services programs, hire or fire those programs' directors, or appoint board members. 

Indeed, ANDVSA draws a compelling parallel between ALSC's relationship with LSC 

and    its  own   relationship   with   the  OVW,     a  federal   agency    that  supplies   most   of 

ANDVSA's funding.          Like LSC, OVW requires that ANDVSA comply with federal 

regulations and imposes other special conditions - including regular progress reports 

that are made available to the public - for ANDVSA to maintain its funding eligibility. 

                We conclude that the grounds OPA proposes for distinguishing between 
ALSC's and ANDVSA's funding structures and sources are not persuasive.23                     Indeed, 

based purely on the extent of government funding, ANDVSA might be considered to 

have more in common with the 1978-79 ALSC than the current ALSC does.                          ALSC 

received the majority of its funding - about 78 percent - from LSC in 1979, compared 

to 47 percent in 2009; ANDVSA's Legal Advocacy Project currently receives over 99 

percent of its funding from federal and state government sources.               We do not intend to 

establish a threshold for the proportion of government funding an organization must 

receive to qualify as a public agency; however, given that it is funded almost entirely by 

        23      OPA argues, alternatively, that even if the grants received by ANDVSA 

were considered government funding for public agency purposes, "the amount of money 
an entity receives from government is not solely determinative of whether the entity is 
the functional equivalent of a public agency."           It derives this principle from a United 
States Supreme Court case,  United States v. Orleans, 425 U.S. 807 (1976).                   But like 
several of the cases OPA cites, Orleans turned on a context-specific statutory definition 
of "federal agency" - the phrase "public agency" was not actually used in the statute 
or the decision - within the Federal Tort Claims Act, a very different context than the 
right to counsel that is at issue here.  Id. at 814. 

                                                 -11-                                           6620
 

----------------------- Page 12-----------------------

government sources, ANDVSA qualifies as a public agency based on its funding.  We 

also   emphasize   that   this   holding   extends   only   to   ANDVSA   and   does   not   reach   the 

question     whether     any   other   organization     is  a   public   agency    for   purposes     of 

AS 44.21.410(a)(4). 

                3.	     ANDVSA is not meaningfully distinguishable from ALSC on 
                        any other grounds. 

                From its inception in 1966, ALSC has been governed by a board of fifteen 

directors; nine are attorneys selected by the Alaska Bar Association and six are non- 

attorneys nominated by other organizations specified in ALSC's bylaws.                   LSC has no 

power   over   the   director   staffing   or   board   membership   of   its   grantees,   although   the 

funding     it  provides   is  subject  to  restrictions   on  use.   In   addition   to  the  funding 

distinctions discussed above, OPA argues that ANDVSA differs from ALSC because its 

board     of  directors    includes   appointees     from    the   Alaska    Bar   Association,     "an 

instrumentality   of   the   State   of   Alaska,"   whereas   ANDVSA's   board   consists   of   all 

members      of  the  ANDVSA        corporation     and  is  not  subject   to  similar   government 

"direction or control." 

                ANDVSA responds that the organizational differences cited by OPA are 

minor and unrelated to whether ANDVSA is a public agency. We agree. Although OPA 

emphasizes the government "control and direction" exercised on ALSC's board, board 

composition for both ALSC and ANDVSA is determined by each organization's self- 
imposed bylaws.24      The somewhat attenuated "government" presence in the form of Bar 

Association appointees on ALSC's board is not mandated by the State; the fact that 

ANDVSA   could presumably choose to adopt a similar composition by amending its 

        24      See   Alaska    Legal    Services   Corporation     Bylaws    art.  IV, available     at 

http://www.alsc-law.org/public-corp/bylaws/Bylaws_May_3_2008.pdf. 

                                                 -12-	                                             6620 

----------------------- Page 13-----------------------

bylaws suggests that this is not a defining characteristic of the organization sufficient to 

place it in a different category from ALSC. 

V.     CONCLUSION 

              We AFFIRM the superior court's holding that ANDVSA is a public agency 

under Flores for purposes of AS 44.21.410(a)(4). 

                                            -13-                                       6620
 

----------------------- Page 14-----------------------

STOWERS, Justice, dissenting. 

                                                                                                           1 
                 I   agree   with   Justice   Connor's   dissenting   opinion   in  Flores   v.   Flores  : 

(1) the Alaska Legal Services Corporation is a private non-profit corporation and not an 

agency of the state or federal government; (2) therefore, a "public agency" in the sense 

of being an agency of the government did not provide Mr. Flores with counsel; and (3) 

there is no authoritative precedent, state or federal, to firmly support an extension of due 

process rights to an indigent parent proceeding pro se in a custody case where the other 

parent has counsel provided by the Alaska Legal Services Corporation (ALSC).  Of 

course, Flores is precedent with respect to custody cases where one parent is represented 

by ALSC, and I am bound to follow it. 

                 But given the complete lack of analysis or explanation of how and why the 

Flores court determined that ALSC is a "public agency," and my sense that the Flores 

court's use of the phrase "public agency" was a justification unconsidered and derived 

from   whole   cloth,   I   am   loath   to   join   in   the ANDVSA   opinion   and   expand  Flores   to 

include ANDVSA merely because ANDVSA shares certain organizational and funding 

source similarities with ALSC.            I don't think stare decisis compels us to extend one 

conclusory opinion resting on questionable premises to another case involving a different 

private, non-profit corporation.          I don't see that the due process clause of the Alaska 

Constitution requires us to do so.           If as a matter of policy Flores should be extended 

beyond its facts, that is the legislature's prerogative. 

                 One   of   the   arguments   in Flores   was   that   the   Public   Defender   Agency 

should be required to represent such an indigent parent. (The Office of Public Advocacy 

had   not   yet   been   created   at   the   time  Flores  was   decided.)    The   court   rejected   that 

         1       598   P.2d   893,   897-900   and   900   n.8      (Alaska   1979)   (Connor,   Justice, 

dissenting in part). 

                                                    -14-                                                 6620 

----------------------- Page 15-----------------------

argument,   but   suggested   that   ALSC   probably   could   provide   both   parties   with   legal 

representation      if   appropriate  regulations    were    developed     such   that   "two  attorneys 

employed   by   ALSC   could   represent   conflicting   positions   in   litigation,   each   having 

undivided loyalty to his client and fully able to exercise that independent professional 
judgment which is required by the Code of Professional Responsibility."2                     The court 

"encouraged such an effort."3       But without such regulations in place, and having rejected 

the argument that the Public Defender Agency was required to provide counsel, the court 

determined in Flores that counsel for the indigent parent should be appointed from the 
private bar.4 

                I agree with the court that it appears likely that the legislature considered 

the decision in Flores when it enacted AS 44.21.410(a)(4) in 1984 as part of the law 

establishing the Office of Public Advocacy.  Alaska Statute 44.21.410(a)(4) provides in 

part that "[t]he office of public advocacy shall . . . provide legal representation . . . to 

indigent     parties  in  cases   involving    child   custody    in  which    the  opposing    party   is 
represented by counsel provided by a public agency."5 

        2       Id. at 897. 

        3       Id. at 897 n.14. 

        4       Id. at 897. 

        5       This      language     mirrors     the    court's    cautionary     note    in  Flores: 

"We   emphasize   that   our   holding   in   this   opinion  is  limited  to   cases   involving   child 
custody where an indigent party's opponent is represented by counsel provided by a 
public agency."  Id. at 896 n.12.  It is noteworthy that this reference to a "public agency" 
is only the second instance where that term is used in the majority's opinion.                 The first 
instance is the conclusory and unsupported finding :               "Although a private individual 
initiated the proceeding below, he was represented by counsel provided by a public 
agency."  Id. at 895.      The court made this finding with no analysis or explanation. 

                                                  -15-                                             6620
 

----------------------- Page 16-----------------------

                I therefore agree with the Office of Public Advocacy that ANDVSA is not 

a    public   agency     and    that   its  appointment      was    improper      under   Flores     and 

AS   44.21.410(a)(4).      I   respectfully   dissent   from   today's   opinion   that   decides   to   the 

contrary. 

                                                   -16-                                           6620
 
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