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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Public Defender Agency v Superior Court (10/11/2019) sp-7413

Alaska Public Defender Agency v Superior Court (10/11/2019) sp-7413

          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@akcourts.us.  



                     THE  SUPREME  COURT  OF  THE  STATE  OF  ALASKA  



ALASKA  PUBLIC  DEFENDER                                     )  

AGENCY,                                                      )                                    

                                                                  Supreme Court No. S-16983  

                                                                                                     

                                                             )    Court of Appeals No. A-12814  

                              Petitioner,                    )  

                                                                                                                          

                                                             )    Superior Court No. 4SM-16-00002 DL  

          v.                                                 )  

                                                                                      

                                                             )    O P I N I O N  

                    

SUPERIOR COURT,                                              )  

                                                                                                        

                                                             )    No. 7413 - October 11, 2019  

                              Respondent.                    )  

                                                             )  



                                  

                                                                                                             

                    Petition for Hearing from the Court of Appeals of the State of  

                                                                                                             

                    Alaska, on appeal from the Superior Court of the State of  

                                                                                                          

                    Alaska,   Fourth   Judicial   District,   Bethel,   Dwayne   W.  

                                        

                    McConnell, Judge.  



                                                                                                 

                    Appearances:  Kelly R. Taylor, Assistant Public Defender,  

                                                                                                          

                    and  Quinlan  Steiner,  Public  Defender,  Anchorage,  for  

                                                                                                   

                    Petitioner. David A. Wilkinson, Assistant Attorney General,  

                                                                                                     

                    Anchorage,and JahnaLindemuth,Attorney General,Juneau,  

                                                                                                          

                    for Intervenor State of Alaska, Department of Health and  

                                                                                                            

                    Social  Services,  Division  of  Juvenile  Justice.                         Notice  of  

                                                                                                             

                    nonparticipation filed by Jeffrey W. Robinson, Ashburn &  

                                                                  

                    Mason, P.C., Anchorage, for Respondent.  



                                                                                                                 

                    Before:  Bolger, Chief Justice, Winfree, Stowers, Maassen,  

                                         

                    and Carney, Justices.  



                                         

                    MAASSEN, Justice.  


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

I.         INTRODUCTION  



                     A juvenile from a small village could not afford to travel to the site of his  

                                                                                                                                 



juvenile delinquency proceeding.  His attorney with the Public Defender Agency (the  

                                                                                                                                



Agency) filed a motion asking the superior court to require the Division of Juvenile  

                                                                                                                         



Justice (DJJ) to pay the travel expenses for both the juvenile and one of his parents. The  

                                                                                                                                



superior court denied the motion and required the Agency to pay the expenses.  The  

                                                                                                                               



court  of  appeals  upheld  the  superior  court's  decision,  reasoning  that  the  Agency's  

                                                                                                                      



authorizing statute could plausibly be interpreted to cover client travel expenses and that  

                                                                                                                                



this reading was supported by administrative guidance in the form of two Attorney  

                                                                                                                        



General opinions and a regulation governing reimbursements by the Office of Public  

                                                                                                                            



Advocacy (OPA).  

                  



                     We granted the Agency's petition for hearing, asking the Agency and DJJ  

                                                                                                                                



to address two questions:  (1) whether the Agency has a statutory obligation to pay its  

                                                                                                                        



clients' travel expenses and (2) whether DJJ has a statutory obligation to pay those  

                                                                                                                             



expenses. We conclude that neither entity's authorizing statutes require the payment and  

                                                                                                                                 



therefore reverse the decision of the court of appeals.  We do not address the question  

                                                                                                 



of how these necessary expenses are to be funded; that is an issue for the executive and  

                                                                                                                                



legislative branches.  

                  



II.        FACTS AND PROCEEDINGS  

                                  



                     In 2013 M.T., a juvenile from Hooper Bay, faced delinquency charges  

                                                                                                                          



scheduled for an adjudication trial in Bethel, 167 miles away and not reachable from  

                                                                                                                              

Hooper Bay by road.1   M.T. and his parents could not afford to pay for travel to the trial  

                                                                                                                                



           1         See   Alaska R. Crim. P.               18 (listing presumptive trial sites for                     Alaskan  



communities);   Transportation   Geographic   Information   Section,   ALASKA   DEP 'T   OF  

TRANSP. & PUB. FACILITIES,   Distance   Between   Cities   on   Map,   DISTANCEFROMTO,  

                             

                                                                                                                (continued...)  



                                                                -2-                                                          7413
  


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

site, so his Agency attorney filed a motion asking the superior court to order DJJ to pay                                                                                                                     



the travel expenses of both M.T. and one of his parents.                                                                                  The superior court granted the                                       



motion in part, ordering DJJ to pay M.T.'s travel expenses but not his father's; the court                                                                                                                



ruled that M.T.'s travel expenses constituted a "court cost" that DJJ was required to pay                                                                                                                     



under its authorizing statute, AS 47.12.120(e).                                                                      



                                 The court of appeals reversed the superior court's ruling in an unpublished                                                                             

               2     Relying on the legislative history of AS 47.12.120(e), the court of appeals  

order.                                                                                                                                                                                             

concluded that the statute "does not obligate" DJJ to pay M.T.'s travel expenses.3  

                                                                                                                                                                                                            



                                 In 2016 another indigent juvenile,  I.M. from Pilot Station, was facing  

                                                                                                                                                                                                      



delinquency charges scheduled for an adjudication trial in Bethel, 90 miles away and not  

                                                                                                                                                                                                               

connected to Pilot Station by road.4  The superior court invited briefing fromthe Agency,  

                                                                                                                                                                                                  



DJJ, OPA, the Alaska Court System, and the Department of Law on two questions: (1) if  

                                                                                                                                                                                                                   



"neither a minor nor the minor's parents" can pay for their travel to the presumptive trial  

                                                                                                                                                                                                             



site, "is the State obligated to fund travel and per diem for the minor? For a parent?" and  

                                                                                                                                                                                                              



(2) if yes, "which particular agency should bear that expense, and why?"  

                                                                                                                                                                                       



                                 The government entities agreed that the State was obligated to pay the  

                                                                                                                                                                                                               



travel expenses for both the minor and a parent, but they disagreed as to which of them  

                                                                                                                                                                                                          



bore that financial burden.  The superior court held that it was DJJ.  The court reasoned  

                                                                                                                                                                                                 



that it would be inappropriate for the Court System to bear the costs when the juvenile  

                                                                                                                                                                                                   



                 1               (...continued)
  



http://dot.alaska.gov/stwdplng/mapping  (search  for  "Bethel"  and  "Hooper  Bay").
    



                 2               State  v.  M.T.,  Nos.  A-11942/11961  (Alaska  App.  Order,  July  24,  2014).  



                 3               Id.  



                 4               See  Transportation  Geographic  Information  Section,  supra  note  1  (search  



for  "Bethel"  and  "Pilot  Station").  



                                                                                                        -3-                                                                                               7413
  


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

was not represented by an attorney appointed by the court under Alaska Administrative                                                                                                                                                                                                                                                              



Rule 12(e).                                             It decided that the Agency and OPA were not responsible because their                                                                                                                                                                                                                                                                      



enabling statutes "do not encompass travel and per diem for the minor's or a parent's                                                                                                                                                                                                                                                                                        



attendance at the adjudication in a delinquency case, unless the minor or the parent is                                                                                                                                                                                                                                                                                        



called as a witness by appointed counsel."                                                                                                                                                                          The court then looked to two Attorney                                                                                                                    



General opinions,DJJ's broad statutory dutytoprovide due process to juvenileoffenders                                                                                                                                                                                                                                                                                         



and their parents, and the semantic truism that " 'costs' means costs" to conclude that                                                                                                                                                                                                                                                                                                                 



DJJ was responsible for paying the travel expenses.                                                                                                                                                    



                                                                This brings us to the present case.                                                                                                                                   In 2016 J.B. was a juvenile living in                                                                                                                                     



Marshall, another small village in western Alaska, facing delinquency charges for a                                                                                                                                                                                                                                                                                                                                



third-degree assault.  Bethel, the presumptive site for his adjudication trial, is 73 miles                                                                                                                                                                                                                                                                                      

                                                                                                                                                                                                                       5        Because J.B.'s family was indigent, his  

away and not connected to Marshall by road.                                                                                                                                                                                                                                                                                                                                                                 



Agency lawyer moved for an order requiring DJJ or the court to pay the trial-related  

                                                                                                                                                                                                                                                                                                                                                                  



travel expenses for J.B. and one of his parents.  The superior court denied the motion.  

                                                                                                                                                                                                                                                                                                                                                                                                                             



                                                                                                                                                                                                                                                                   6  

Relying on the court of appeals' order in State v. M.T.,  

                                                                                                                                                                                                                                                                       the court held that DJJ was not                                                                                                     



responsible for the travel expenses because they are not "court costs" that DJJ is required                                                                                                                                                                                                                                                                                        



by statute to pay. The court concluded instead that the Agency was responsible because                                                                                                                                                                                                                                                                                               



of its statutory obligation to pay "the cost of representation," supporting this conclusion                                                                                                                                                                                                                                                                           



by reference to the obligations of OPA, which has a similar statutory mandate and an                                                                                                                                                                                                                                                                                                                          



implementing   regulation   that   specifically   authorizes   reimbursements   to   appointed  



                                5                              See   Transportation   Geographic   Information   Section,   see   supra   note   1  



 (search for "Bethel" and "Marshall").                                                                                



                                6                              Nos. A-11942/11961 (Alaska App. Order, July 24, 2014).  

                                                                                                                                                                                                                                                                                                                    



                                                                                                                                                                                                       -4-                                                                                                                                                                                          7413
  


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

                                                                                                                                                           7  

attorneys for "necessary travel and per diem by the defendant."                                                                                                The court also cited                  



Delinquency Rule 1(e), adopting Criminal Rule 17(b), which requires that the entity                                                                                                                



providing legal representation to an indigent defendant pay necessary witness fees.                                                                                                                        



                                The Agency filed an original application in the court of appeals, asking that                                                                                           



the superior court's order be reversed, and DJJ intervened. The court of appeals affirmed                                                                                                    

                                                                 8     The court reasoned that it was plausible to interpret the  

the superior court's order.                                                                                                                                                                              



Agency's authorizing statute as requiring that "the cost of transporting the defendant to  

                                                                                                                                                                                                            



the site of their trial is a necessary 'service' or 'facility' of the representation" for which  

                                                                                                                                                                                                  

the Agency must pay.9                                    The court of appeals acknowledged, however, that this was "by  

                                                                                                                                                                                                        



no means the only possible interpretation of the statute," and it therefore looked to other  

                                                                                                                                                                                                     

sources to resolve any textual ambiguity.10                                                                    It interpreted the two Attorney General  

                                                                                                                                                                                             



opinions mentioned above as stating the Department of Law's conclusion "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  

                                                                                                                                                                                    

                                                                                11         The  court  reasoned  that  the  OPA  regulation  

necessary  transportation  costs."                                                                                                                                                    

                                                               



authorizing payment of a defendant's travel expenses indicated that "the Department of  

                                                                                                                                                                                                            



                7               2  Alaska  Administrative  Code  (AAC)  60.040  (2019).  



                8               Alaska  Pub.  Defender  Agency   v.   Superior   Court,   413   P.3d   1221,   1223  



(Alaska  App.  2018).  



                9               Id.  at   1222.  



                10              Id.  



                11              Id.   



                                                                                                     -5-                                                                                             7413
  


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

Administration apparently agrees with (or at least has acquiesced in) the position taken                                                                       



                                                   12  

by the Attorney General."                               



                           The court concluded that "[b]ecause all three parties to this case agree that  

                                                                                                                                                                   



some government entity should be responsible for paying [these transportation costs],  

                                                                                                                                                             



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

                                                                                                                                                         

 issues of budgeting and finances - i.e., administrative questions."13  The court therefore  

                                                                                                                                                        



 "accord[ed] substantial weight to the statutory interpretation adopted by the Attorney  

                                                                                                                                                        

 General and  the Department of  Administration."14                                                       The court held that the agency  

                                                                                                                                                           



 "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 . . . shall pay the necessary expense" of the  

                                                                                                                                                                   



juvenile  defendant,  as  well  as  that  of  a  parent  in  the  case  of  "a  minor  who  is  not  

                                                                                                                                                                   



                                                                15  

reasonably able to travel alone."                                   

                                                  



                           The court of appeals recognized "that [its] decision may have significant  

                                                                                                                                                     



 financial  consequences  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."16  

                                                                                                                                                                           



              12          Id.  at 1222-23.   



              13          Id.  at 1223 (emphasis in original).              



              14          Id.   



              15          Id.   



              16          Id.  (emphasis in original).      



                                                                                  -6-                                                                           7413
  


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

The court noted that it is for the legislature to fund the agencies at sufficient levels to                                                                                                                                                              



                                                                                         17  

accommodate these expenses.                                                                    



                                        The Agency filed a petition for hearing, which we granted.  We asked the  

                                                                                                                                                                                                                                                      



parties to brief whether either the Agency or DJJ is "required by statute to pay the travel  

                                                                                                                                                                                                                                              



expenses for indigent juveniles who are unable to afford to travel to the site of their  

                                                                                                                                                                                                                                                 

adjudication hearings."18                                                      We did not require the Court System to participate in the  

                                                                                                                                                                                                                                                     



appeal, and it chose not to.  

                                                                                 



III.                STANDARD OF REVIEW  

                                                                           



                                        "We exercise our independent judgment when  we review the court of  

                                                                                                                                                                                                                                                        

appeals' decision on a petition for hearing."19  

                                                                                                                                                                                                                                                    

                                                                                                                                        Questions of statutory interpretation and  



                                                                                                                                                                                                                                                          20  

                                                                                                                                                                                                                                                                

                                                                                                                                                                                                                             

constitutional issues are questions of law to which we apply our independent judgment. 



                                                                                                                                                                                                                                        

"We  interpret  the  Alaska  Constitution  and  Alaska  Statutes  'according  to  reason,  



                                                                                                                                                                                       

practicality, and common sense, taking into account the plain meaning and purpose of  



                    17                 Id.  



                    18                  Subsequent events have mooted this case as to J.B., but we decide the case                                                                                                                                



under the public interest exception to the mootness doctrine.                                                                                                                       See In re Hospitalization       

of Tracy C.                      , 249 P.3d 1085, 1090 (Alaska 2011) ("Whether the public interest exception                                                                                                                      

 [to the mootness doctrine] applies depends on three factors: '(1) whether the disputed                                                                                                                                               

issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause                                                                                                                                                     

review of the issues to be repeatedly circumvented, and (3) whether the issues presented                                                                                                                                           

are so important to the public interest as to justify overriding the mootness doctrine.' "                                                                                                                                                                 

 (quoting  Wetherhorn v. Alaska Psychiatric Inst.                                                                                          , 156 P.3d 371, 380-81 (Alaska 2007))).                                                     



                    19                 Estrada v. State, 362 P.3d 1021, 1023 (Alaska 2015).  

                                                                                                                                                                                  



                    20                 Eberhartv. AlaskaPub.Offices Comm'n, 426 P.3d 890, 894 (Alaska2018);  

                                                                                                                                                                                                                                            

Hendricks-Pearce v. State, Dep't of Corr., 323 P.3d 30, 35 (Alaska 2014).  

                                                                                                                                                                                                        



                                                                                                                            -7-                                                                                                                 7413
  


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

                                                                                           21  

the law as well as the intent of the drafters.' "                                               " '[A]n agency's interpretation of a law                                



within its area of jurisdiction can help resolve lingering ambiguity, particularly when the                                                                               

agency's interpretation is longstanding.' "                                          22  



IV.	          DISCUSSION  



                           "When determining a statute's meaning, we consider three factors:  'the  

                                                                                                                                                                       



language of the statute, the legislative history, and the legislative purpose behind the  

                                                                                                                                                                         

 statute.' "23   " 'We decide questions of statutory interpretation on a sliding scale': '[T]he  

                                                                                                                                                                   



plainer the language of the statute, the more convincing any contrary legislative history  

                                                                                                                                                                  

must be . . . to overcome the statute's plain meaning.' "24  

                                                                                                                     



              A.	          The Agency Is Not Required By Statute To Pay The Expenses For An  

                                                                                                                                                                         

                           Out-Of-Custody  Indigent  Juvenile  To  Travel  To  The  Site  Of  An  

                                                                                                                                                                        

                           Adjudication Hearing.  

                                                          



                           In AS 18.85.100, Alaska's Public Defender Act describes the rights of  

                                                                                                                                                                           



indigent persons "to representation, services, and facilities." Under subsection (a) of the  

                                                                                                                                                                          



 statute, a covered person "is 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  

                                                                                                                                                                     



              21            Grimm v. Wagoner                      , 77 P.3d 423, 427 (Alaska 2003) (quoting                                             Native Vill.   



of Elim v. State               , 990 P.2d 1, 5 (Alaska 1999)).                  



              22           Hendricks-Pearce,  323  P.3d  at  35  (quoting  Bartley  v.  State,  Dep't  of  

                                                                                                                                                                           

Admin., Teacher's Ret. Bd. , 110 P.3d 1254, 1261 (Alaska 2005)).  

                                                                                                                       



              23           Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce , 414  

                                                                                                                                                                        

P.3d 630, 634 (Alaska 2018) (quoting Oels v. Anchorage Police Dep't Emps. Ass'n, 279  

                                                                                                                                                                        

P.3d 589, 595 (Alaska 2012)).  

                                                



              24           Id. (alterations in original) (first quoting Marathon Oil Co. v. State, Dep't  

                                                                                                                                                                    

of Nat. Res., 254 P.3d 1078, 1082 (Alaska 2011); then quoting Peninsula Mktg. Ass'n  

                                                                                                                                 

v. State, 817 P.2d 917, 922 (Alaska 1991)).  

                                                                          



                                                                                     -8-	                                                                            7413
  


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

                     25  

preparation."               In   subsection   (b),   the   statute   states   that   "the   attorney   services   and  

facilities and the court costs shall be provided at public expense to the extent that the                                       



person, at the time the court determines indigency, is unable to provide for payment  

                                                                                                                              

                                         26   Persons covered by the statute include juveniles "entitled to  

without undue hardship."                                                                                                                  

                         

representation under the Supreme Court Delinquency . . . Rules."27  

                                                                                                               



                      1.	       The language of AS 18.85.100(a) and (b) does not appear to  

                                                                                                                                         

                                impose the costs of client travel on the Agency.  

                                                                                                    



                      The first question we must answer is whether any of the statutory terms  

                                                                                                                                   

describing what is to "be provided at public expense" - i.e., by the Agency28  

                                                                                                                                 

                                                                                                                           - include  



                                                                                                                         

travel costs.   We construe the statute's subsections "so as to produce a harmonious  



             29  

                                                                                                                                

whole."          We assume, therefore, that "the attorney services and facilities" to be publicly  



                                                                                                                                      

funded under AS 18.85.100(b) are the same "necessary services and facilities of this  



                                                                                                                         

representation,includinginvestigation and other preparation,"named in theimmediately  



                                                                                                                                    

preceding subsection (a)(2). And "this representation" to which subsection (a)(2) refers  



                                                                                                                           

is the representation "by an attorney" stated in the immediately preceding subsection  



           25         AS   18.85.100(a).  



           26         AS   18.85.100(b).  



           27         AS   18.85.100(a).     Alaska   Delinquency   Rule   16   addresses   the   right   to  



counsel.   See  also  A.A.  v.  State,  538  P.2d  1004,  1005  (Alaska  1975)  ("A  juvenile's  right  

to  counsel in a delinquency proceeding  has been clearly established in this jurisdiction.").   



           28         See Alaska Legal Servs. Corp. v. Thomas, 623 P.2d 342, 344 (Alaska 1981)  

                                                                                                                                   

("The plain meaning of the words 'at public expense' as used in AS 18.85 is that either  

                                                                                                                                   

the public defender agency will pay the attorney's fees if it hires private counsel for a  

                                                                                                                                           

defendant, or the court system will pay if it appoints the private counsel.  In any case, it  

                                                                                                                                          

is the state that pays.").  

                                        



           29         Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 99 (Alaska 2012) (quoting  

                                                                                                                               

Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992)).  

                                                                                               



                                                                    -9-	                                                            7413
  


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

(a)(1) - which is to be provided "to the same extent as" it would be to "a person                                                                                                               



retaining an attorney."                                  



                                DJJ does not contend                               that privatelyretainedattorneysassumeresponsibility                                           



for their clients' travel costs as a general matter; the Agency's payment of indigent                                                                                                       



clients' travel costs would not be payment to "the same extent as a person retaining an                                                                                                                    

                                                                                                   30     DJJ contends, however, that the necessary  

attorney  is entitled                        " but rather beyond it.                                                                                                                     



services  and  facilities  of  Agency  representation  must  include  travel  costs  because  

                                                                                                                                                                                            



attendance at trial "facilitate[s] access to counsel and engagement in [the] defense."  

                                                                                                                                                                                                                   



While that is true, the right to attend trial is derived from the constitutional rights of  

                                                                                                                                                                                                           

confrontation and due process, not the right to counsel.31  The right exists as much for  



unrepresented as represented defendants; it is not a concomitant of the representation.  

                                                                                                                                                                            

                                                                                                                                                         32  as encompassing the  

                                We also cannot interpret the phrase "court costs"                                                                                                                        

                                                                                                                                          



expense  of  the  indigent  juvenile's  travel.                                                                  "Court  costs"  are  not  defined  in  the  

                                                                                                                                                                                                        



                30               Cf.  Alaska R. Prof. Conduct 1.8(e) ("A lawyer shall not provide financial                                                                                 



assistance to a client in connection with pending or contemplated litigation, except                                                                                                            

that . . . a lawyer representing an indigent client                                                                   may  pay court costs and expenses of                                                  

litigation on behalf of the client." (emphasis added)).                                                     



                31              See Douglas v. State, 214 P.3d 312, 319 (Alaska 2009) ("The right of a  

                                                                                                                                                                                                              

criminal defendant to be present at every stage of trial is rooted in the right to confront  

                                                                                                                                                                                            

adverse witnesses and the right to due process of law." (internal citation omitted)); RLR  

                                                                                                                                                                                                      

v. State, 487 P.2d 27, 42 (Alaska 1971) ("We see no difference in principle between the  

                                                                                                                                                                                                          

child's right to be present at his hearing and a criminal defendant's right to be present at  

                                                                                                                                                                                                             

his trial."); see also P.H. v. State, 504 P.2d 837, 842 n.14 (Alaska 1972) ("The right of  

                                                                                                                                                                                                            

confrontation  applies  to  children's  proceedings  in  which  the  child  is  charged  with  

                                                                                                                                                                                                     

misconductfor which hemay be incarcerated."), superseded bystatuteon other grounds,  

                                                                                                                                                                                            

Ch. 63,  13, 15, SLA 1977, as recognized In The Matter of F.S., 586 P.2d 607, 610  

                                                                                                                                                                                                       

(Alaska 1978).  

                     



                32              AS 18.85.100(b).  

                                          



                                                                                                   -10-                                                                                              7413
  


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

                                                       33  

delinquency statutes.                                        "In the absence of a [statutory] definition, we construe statutory                                                                              



terms according to their common meaning[;] [d]ictionaries 'provide a useful starting                                                                                                                            

                                                                    34     For a definition of "court costs," Black's Law Dictionary  

point' " for this exercise.                                                                                                                                                                             



directs the reader to a particular definition of "costs":  "The charges or fees taxed by the  

                                                                                                                                                                                                                            

court, such as filing fees, jury fees, courthouse fees, and reporter fees."35                                                                                                                      The expense  

                                                                                                                                                                                                               



of a party's travel to court is generally not a cost that could be included in those "taxed  

                                                                                                                                                                                                                   



by the court" against the other party, and the legislature is therefore unlikely to have  

                                                                                                                                                                                                                       



intended  "court  costs"  to  include  the  defendant's  travel;  DJJ  agrees  with  this  

                                                                                                                                                                                                                        



interpretation.  

                                        



                                   DJJ also argues, however, that in determining the costs to be borne by the  

                                                                                                                                                                                                                             



Agency we should be guided by the Public Defender Act's definitions of "indigent  

                                                                                                                                                                                                           



person" and "expenses."  DJJ observes that the Act defines "indigent person," in part,  

                                                                                                                                                              



as  one  who  lacks  the  "means  to  provide  for  payment  of  an  attorney  and  all  other  

                                                                                                                                                                                                

                                                                                                     36  and that it defines "expenses," "when used with  

necessary expenses of representation,"                                                                                                                                                                                   

                                                           



reference to representation," to include "an expense of investigation, other preparation,  

                                                                                                                                                                                                     



                  33               See  AS 18.85.170 (defining other terms used in AS 18.85).                                                                                



                  34               Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce , 414  

                                                                                                                                                                                                                           

P.3d 630, 635 (Alaska 2018) (quoting Alaskans For Efficient Gov't, Inc. v. Knowles , 91  

                                                                                                                                                                                                                              

P.3d 273, 276 n.4 (Alaska 2004)).  

                                                                       



                  35                Court Costs, Cost definition 2, BLACK 'S LAW  DICTIONARY  (11th ed. 2019);                                                                                                      

                                                                                                                   

see Kuretich v. Alaska Trustee, LLC                                                           , 287 P.3d 87, 92 (Alaska 2012) (noting trial court's                                                               

view that " 'court costs' are defined 'more broadly than costs incurred in court' and                                                                                                                                     

 'include costs that would be recoverable under [Alaska Civil] Rule 79,' " and rejecting                                                                                                                     

argument that "costs that commonly attend a non-judicial foreclosure - e.g., recording                                                                                                                     

fees and the cost of title searches -" could be "court costs" because they are not costs                                                                                                                               

"obtained by the prevailing party in a court proceeding").                                                          



                  36               AS 18.85.170(4).  

                                              



                                                                                                             -11-                                                                                                      7413
  


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

                         37  

and trial.             "       DJJ argues that, when these statutes are read together, the Agency should                                                                                       



be   required   to   pay   all   "necessary   expenses   that   cannot  be   paid   due   to   indigence,"  



including the cost of traveling to the trial location (which DJJ labels "an expense of . . .                                                                                                                



trial").   



                                But even if the definition of "expenses" is read broadly enough to include                                                                                   



travel expenses, the Act does not impose those expenses on the Agency. The legislature                                                                                                



did not use the word "expenses" anywhere in the Act except in its definition of "indigent                                                                                                

                    38     The legislature used different and more precise terms when describing what  

person."                                                                                                                                                                                           



the  Agency  had  to  provide  "at  public  expense":                                                                           "attorney  services  and  facilities  

                                                                                                                                                                              

and . . . court costs."39                               "[W]hen the legislature uses certain language in one part of the  

                                                                                                                                                                                                        



statute and different language in another, the court assumes different meanings were  

                                                                                                                                                                                                   

                         40   A person's inability to afford the expense of travel to the trial location may  

intended."                                                                                                                                                                                           



be an indication that the person is an "indigent person" as defined in the statute, but that  

                                                                                                                                                                                                      



does not mean that the Agency is required to pay that expense; the legislature chose to  

                                                                                                                                                                                                          



describe the Agency's obligations more narrowly.  

                                                                                                 



                37              AS   18.85.170(3)  (emphasis  added).  



                38              See  AS   18.85.170(4).  



                39              AS   18.85.100(b); see   also   AS   18.85.100(a)(2)   (addressing   "necessary  



services    and    facilities    of    this   representation,    including    investigation    and    other  

preparation").  



                40              2A  NORMAN   J.   SINGER   &   SHAMBIE   SINGER,   SUTHERLAND ON   STATUTES  



AND   STATUTORY CONSTRUCTION     46:06,  at  261  (7th  ed.  2014);  see  Rubey  v.  Alaska  

Comm'n  on  Postsecondary  Educ.,  217  P.3d  413,  416  n.9  (Alaska  2009)  (recognizing  

principle   that "[d]ifferent   words   used   in   the   same,   or   a   similar,   statute   are   assigned  

different  meanings  whenever  possible").  



                                                                                                   -12-                                                                                            7413
  


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

                           2.	           Legislative history and purpose do not support imposing the                                                                      

                                         costs of client travel on the Agency.                       



                           To determine whether we should read meaning into the statutory language                                                             



that is not apparent from the language itself, we next look at the legislative history and                                                                                



                  41  

purpose.                                                                                                                                                                      

                       We find no clear indication there that the legislature intended the Agency to  



                                                                                                                                                           

pay its clients'  travel costs.                                The relevant language  of  AS 18.85.100  is essentially  



                                                                                                     42  

                                                                                                                                                              

unchanged since the Agency's creation in 1969.                                                             At that time, the House Judiciary  



                                                                                                                                                            

Committee report explained that the purpose of the bill was "to assure needy defendants  



                                                                                                                                                             

of adequate legal representation and to more equitably distribute the public obligation  



                                                                43  

                                                                                                                                                                

to provide this representation."                                      The report expressed concern that indigent persons'  



                                                                                                                                                                           

constitutional right to counsel was currently being supported "almost entirely by the  



                                                                                                                                                                        

members of the legal profession alone" and that the bill would both "reliev[e] the legal  



                                                                                                                                                            

profession of this unique burden" and "establish a more efficient and more uniformly,  



                                                                                                                                                                           

highly skilled and specialized representation system, comparable to the services of the  

                                                        44    A later report prepared by the Alaska Judicial Council  

                                                                                                                                                                 

district attorneys' offices." 

largely confirmed that these purposes underlay the Agency's creation.45  

                                                                                                                                                      



              41           See  Alaska  Ass'n  of  Naturopathic  Physicians  v.  State,  Dep't  of  Commerce,  



414  P.3d  630,  634  (Alaska  2018).  



              42           See  Ch.   109,  SLA   1969.  



              43            1969  House  Journal  220.  



              44           Id .  



              45           ALASKA  JUDICIAL  COUNCIL,  THE  ALASKA  PUBLIC  DEFENDER  AGENCY  IN  



P       E      R       S      P       E      C       T      I      V       E                3       -      2      2                 (      1      9       7       4      )      ,  

http://www.ajc.state.ak.us/publications/docs/research/PDPer1969-74.pdf                                                                                         (relating  

persistent concerns with system of assigning and  paying  private attorneys  to  represent  

criminal  defendants).  



                                                                                    -13-	                                                                              7413
  


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

                      The language of the Public Defender Act closely mirrored that of the 1966                                          



Model   Defense   of   Needy   Persons   Act,   drafted   by  the   National   Conference   of  

                                                                    46  Commenting on the Model Act's analog to  

Commissioners on Uniform State Laws.                                                                                              



AS 18.85.100, the drafters explained that their intent was to "make[] clear that the  

                                                                                                                                            

criminal defendant is entitled to all the necessary elements of adequate representation."47  

                                                                                                                                                   



The  Model  Act  as  a  whole  was  not  intended  "to  codify  the  other  aspects  of  a  

                                                                                                                                               



constitutionally adequate criminal procedure . . . [but rather was] confined to equipping  

                                                                                                                                 

the needy person with necessary defensive facilities."48                                        The Model Act clarified that  

                                                                                                                                           



indigent defendants are entitled to a defense equivalent to that of "persons of adequate  

                                                                                                                                   



means," and that, "to the extent that [the indigent defendant] is unable to pay for it, he  

                                                                                                       

is entitled to have it paid for by the state."49  

                                                            



                      The Agency's brief describes the establishment and early funding of the  

                                                                                                                                            

Agency, relying primarily on the Alaska Judicial Council's 1974 report.50                                                   The Agency  

                                                                                                                                    



highlights early consideration of the expenses of attorney travel, particularly as Agency  

                                                                                                                                     



offices were initially proposed for only four Alaska cities with a mandate to serve clients  

                                                                                                                                       



statewide.  But the Agency points out that - with one apparently anomalous exception  

                                                                                                                                 



           46          Compare  Ch. 109, SLA 1969,  and  ALASKA JUDICIAL COUNCIL, at Appendix  



IV,  with  Reed  Dickerson,  Model  Defense  of Needy  Persons Act,  4 Harv.  J.  Legis.  3,  8  

(1966).  



           47         Dickerson, supra note 46, at 9.  

                                                                        



           48         Id. at 5.  

                                 



           49         Id.  



           50         See  ALASKA  JUDICIAL  COUNCIL,  supra  note  45.  



                                                                     -14-                                                               7413
  


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

                                           51  

in 1971                                             - there is no legislative discussion of the costs of                                                                                                                                                                                                                                          client  travel in the context                                                                             



 of Agency funding.                                                                                               DJJ also discusses the Agency's basis in the Model Act and the                                                                                                                                                                                                                                                                                                    



Model Act's "broad purpose of providing and funding an 'adequate defense,' " but                                                                                                                                                                                                                                                                                                                                                                                                  



notably it directs us to no cases that define "adequate defense" as broadly as it asks us                                                                                                                                                                                                                                                                                                                                                         



to or that otherwise read the Model Act as requiring public defenders to pay their clients'                                                                                                                                                                                                                                                                                                                                                                  



travel costs.                                                        We see no indication in the Alaska Public Defender Act's source material,                                                                                                                                                                                                                                                                                                       



nor in the legislature's reliance on it, that the legislature intended the "necessary services                                                                                                                                                                                                                                                                                                                                                           



 and facilities of . . . representation" to include Agency-funded transportation of the client                                                                                                                                                                                                                                                                                                                                                                          



to the trial location.                                      



                                                                           3.	                                   Attorney General opinions and OPA regulations do not require                                                                                                                                                                                                                                                                             

                                                                                                                 imposing the costs of client travel on the Agency.                                                                                                                                                                                                 



                                                                            The court of appeals, having found AS 18.85.100 ambiguous, turned for                                                                                                                                                                                                                                                                                                                                    



guidance to two Attorney General opinions and an OPA regulation, and DJJ relies on                                                                                                                                                                                                                                                                                                                                                                                                      



those materials as well in urging us to hold that the transportation obligation belongs to                                                                                                                                                                                                                                                                                                                                                                                                 



the Agency.                                                             The court of appeals decided that because this case presents "issues of                                                                                                                                                                                                                                                                                                                                          



budgeting and finances - i.e., administrative questions," the statutory interpretations                                                                                                                                                                                                                                                                                                                             



 adopted by the Attorney General and the Department of Administration (which includes                                                                                                                                                                                                                                                                                                                                                                   



                                                                                                                                                       52                                                                                                                                                                                                                                                       53  

both the Agency and OPA)                                                                                                                                                                                                                                                                                                                                                                                                                           

                                                                                                                                                                   should be "accord[ed] substantial weight."                                                                                                                                                                                                                 We conclude  



                                      51                                   In 1971 the Agency was allocated $10,000 for a "pilot program" to pay                                                                                                                                                                                                                                                                                                                                 



transportation expenses for indigent clients, released on bail, to return home pending                                                                                                                                                                                                                                                                                                                                                                 

trial.   ALASKA   JUDICIAL   COUNCIL,  supra  note 45, at 43. By statute, the obligation to                                                                                                                                                                                                                                                                                                                                                                                               

return out-of-custody defendants to the place of arrest generally falls on other State                                                                                                                                                                                                                                                                                                                                                                                  

 agencies.     See   AS   33.30.081(b)-(c)   ("The   commissioner   of   corrections   shall   make  

 available return transportation to the place of arrest for a prisoner who is released from                                                                                                                                                                                                                                                                                                                                                                               

 custody in a state correctional facility. . . . [and] for a prisoner who is released from                                                                                                                                                                                                                                                                                                                                                                                

 custody before admission to a state correctional facility.").                                                                                                                                                                                                                                                                                



                                      52                                   Department  of  Administration  Divisions,  ALASKA   DEP 'T   OF   ADMIN.,  

                                                                                                                                                                                                                                                                                                                               

                                                                                                                                                                                                                                                                                                                                                                                                                             (continued...)  



                                                                                                                                                                                                                                         -15-	                                                                                                                                                                                                                              7413
  


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

that none of these materials are particularly relevant, however, and we therefore give                                                                                                                        



them little weight.         



                                                  a.               The 1977 and 1978 Attorney General opinions                                                          



                                  "The weight accorded to opinions of the Attorney General is largely within                                                                                             



                                                                                                                                                                                                                     54  

our discretion.                       In general, they are not controlling but are entitled to some deference."                                                                                                            



                                                                                                                                                                                                                           

The amount of deference to be given depends in large part on the opinion's relevance.  



                                                                                      

                                  In 1977, to resolve a "long standing dispute" between the Department of  



                                                                                                                                                                                           

PublicSafety and theDepartment ofHealth and Social Services'Division ofCorrections,  



                                                                                                                                                                                  

the  Attorney  General  sent  an  opinion  letter  to  both  departments'  commissioners  



                                                                                                                                                                                                        

addressing  when  the  obligation  to  transport  criminal  defendants  arises  and  which  



                                                                                                                      55  

                                                                                                                                                                                                                           

                                                                                                                            The opinion contained three sections.  

government agency must respond when it does. 



                                                                                                                                                                                                                

The first discussed the transportation of in-custody prisoners to and from court; the  



                                                                                                                                                                                                                   

Attorney General concluded that the Department of Public Safety was obligated to  



                 52               (...continued)  



                                                                                                                                                                 

http://www.doa.alaska.gov/divisions.html (last visited Aug. 19, 2019).  



                 53              Alaska Pub. Defender Agency v. Superior Court , 413 P.3d 1221, 1223  

                                                                                                                                                                                                           

(Alaska App. 2018).  

                                    



                 54              State v. Dupier, 118 P.3d 1039, 1050 n.62 (Alaska 2005); see also Basey  

                                                                                                                                                                                                          

v. State, Dep't of Pub. Safety, Div. of Alaska State Troopers, Bureau of Investigations,  

                                                                                                                                                                                    

408 P.3d 1173, 1179 n.44 (Alaska 2017) ("Attorney General's opinions,  while not  

                                                                                                                                                                                                                

controlling, are entitled to some deferenceinmatters of statutory construction." (quoting  

                                                                                                                                                                                                    

Bullock v. State, Dep't of Cmty. & Reg'l Affairs, 19 P.3d 1209, 1216 (Alaska 2001))).  

                                                                                                                                                                                                  



                 55               STATE OF                ALASKA, D                   EP 'T OF           LAW, O             P. A      TT'Y  GEN., 1977 WL 22018, at *1                                             



(Oct. 7, 1977).                        The Agency notes that it was only tangentially involved in this dispute                                                                                        

and was not one of the letter's designated recipients.                                                                             See id.          at *4 ("[W]e have taken the                                  

liberty of forwarding a copy . . . to the Public Defender.").                                                      



                                                                                                       -16-                                                                                                 7413
  


----------------------- Page 17-----------------------

                                                                                     56  

provide   transportation   in   those   circumstances.                                      The   second   section   discussed  



                                                                                                           57  

transportation for released prisoners back to their place of arrest.                                                                   

                                                                                                               The Attorney General  



                                                                                                                                           

concluded              that       an      inter-agency               agreement             between            Public          Safety         and  



                                                                                                                              

Corrections  -  splitting  the  transportation  burden  between  the  two  departments  



                                                                                                                                               

depending on whether the individual had been sentenced - did not logically follow the  

                                   58  TheAttorney General concluded that Corrections shouldprovide  

                                                                                                                                        

statutoryframework. 



transportation to individuals released from Corrections' custody, and that Public Safety  

                                                                                                                                          



should provide transportation to individuals released from its custody without having  

                                                                                                                                         

entered the correctional system.59  

                                                           



                       The third section of the 1977 opinion addressed the transportation to court  

                                                                                                                                            



of persons who had been in custody but had been released.   The Attorney General  

                                                                                                                     



concluded that earlier court orders requiring Public Safety or Corrections to pay their  

                                                                                                                                            



transportation costs were "inappropriate" and that neither agency was "responsible for  

                                                                                                                                               



the cost of any transportation not necessitated by or incidental to any present or prior  

                                                                                                                                            

                60    The Attorney General further concluded that "[i]f the individual [was]  

custody."                                                                                                                                 



represented by the Public Defender Agency . . . and if the expense [was] a necessary  

                                                                                                                                   



incident of representation, then any necessary transportation expenses that may properly  

                                                                                                                                      



           56          Id.  at *1-2.   



           57          Id.  at *2-3.   



           58          Id.  at *2.   



           59          Id.  at *2-3.   



           60          Id.  at *3.   



                                                                      -17-                                                                 7413
  


----------------------- Page 18-----------------------

be authorized at public expense should be paid by the Public Defender Agency pursuant                                                          

to AS 18.85.100."                61  



                        In 1978, the Attorney General issued a "supplement" to the 1977 opinion,  

                                                                                                                                               

                                                                     62   The supplemental opinion was a response to a  

addressing its application to juveniles.                                                                                                                    

                                                     



question from a judge who had released a juvenile defendant from custody because the  

                                                                                                                                                         



Division of Corrections was unable to transport him to court and the Department of  

                                                                                                                                                          

Public Safety refused to do so.63                            The Attorney General opined that "[w]hile a juvenile  

                                                                                                                                               



could arguably be considered a 'prisoner'. . . the general duty of [Public Safety] to  

                                                                                                                                                          



transport prisoners . . . is in this case superseded by the specific duty of the commissioner  

                                                                                                                                     

of health and social services [DJJ] with respect to juveniles under AS 47.10."64                                                                      The  

                                                                                                                                                      



Attorney General further concluded that Public Safety was secondarily responsible for  

                                                                                                                                                         



transportation in such situations if the Department of Health and Social Services was  

                                                                                                                                                       

unavailable, to avoid a repeat of the incident that prompted the opinion.65   The Attorney  

                                                                                                                                              



General continued, "[T]he advice given in the [1977 opinion] with regard to the ability  

                                                                                                                                                   



oftheexecutivebranch toeffectuatepolicy changesthrough inter-agency agreement also  

                                                                                                                                                       

applies to juvenile transportation responsibility."66                                           The 1978 opinion thus explicitly  

                                                                                                                                             



addressed only the transportation of persons in custody (the first section of the 1977  

                                                                                                                                                     



opinion); it did not discuss the obligation to transport out-of-custody juveniles, nor did  

                                                                                                                                                        



            61          Id.   



            62           STATE  OF  ALASKA,  DEP 'T  OF  LAW,  OP.  ATT'Y  GEN.,  1978  WL  18588,  at  *1  



(Sept.  25,   1978).   



            63          Id.  at  *1-2.  



            64          Id.  at  *1.  



            65          Id.  



            66          Id.  



                                                                           -18-                                                                     7413
  


----------------------- Page 19-----------------------

it fully adopt the reasoning of the 1977 opinion in the juvenile context, explaining only                                                                                       

that it was a "follow-up" and "supplement" to that opinion.                                                                    67  



                            Ultimately, we disagree with the court of appeals' reliance on the two  

                                                                                                                                                                                 



Attorney General opinions as proof of the Department of Law's view "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."68   First, the 1977 opinion did not actually conclude that  

                                                                                                                                                                                 



the Agency is responsible for such costs; the Attorney General said only that the costs  

                                                                                                                                                                               



"may  properly  be"  paid  by  the  Agency  "if  the  expense  is  a  necessary  incident  of  

                                                                                                                                                                                    

representation" - a condition the Attorney General did not purport to decide.69   Second,  

                                                                                                                                                                         



the 1978 supplement did not expressly extend to juveniles the earlier opinion's limited  

                                                                                                                                                                          



statements about transporting out-of-custody defendants to trial; thesupplement's scope  

                                                                                                                                                                              

was limited to "prisoners."70  

                                



                             We conclude that the two Attorney General opinions are at most only  

                                                                                                                                                                               



tangentially relevant to the issue before us and should not influence our interpretation of  

                                                                                                                                                                                     



the governing statutory language.  

                                                                          



                                           b.            OPA regulation 2 AAC 60.040  

                                                                                                                



                             The court of appeals also relied on an OPA regulation, 2 AAC 60.040, to  

                                                                                                                                                                                     



conclude that "the Department of Administration apparently agrees with (or at least has  

                                                                                                                                                                                   



              67            Id.  



              68            Alaska Pub. Defender Agency v. Superior Court                                                              , 413 P.3d 1221, 1222                  



(Alaska App. 2018).            



              69             STATE OF             ALASKA,D               EP 'T OF         LAW,O           P. A    TT'Y  GEN., 1977 WL 22018, at *3                                  



(Oct. 7, 1977).     



              70             STATE OF             ALASKA, D              EP 'T OF         LAW,O           P.A     TT'Y  GEN., 1978 WL 18588, at *1                                  



(Sept. 25, 1978).      



                                                                                        -19-                                                                                  7413
  


----------------------- Page 20-----------------------

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  

                                                                                                          71   The Department of  

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



Administration adopted 2 AAC 60.040 under the authority of OPA's authorizing statute,  

                                                                                                                                    



AS  44.21.410.                Under  the  heading  "[e]xtraordinary  expenses,"  it  authorizes  the  

                                                                                                                                         



reimbursement of "necessary travel and per diem by the defendant" incurred by contract  

                                                                                                                                  

attorneys under certain circumstances.72  

                                        



                      By its terms, the regulation does not apply to OPA staff attorneys, much  

                                                                                                                                      



less Agency staff attorneys, and it labels such expenses "extraordinary," not routine. The  

                                                                                                                                          



Agency  suggests  several  "extraordinary"  situations  in  which  client  travel  may  be  

                                                                                                                                           



necessary to the representation:   to meet with an expert witness, to "visit a location  

                                                                                                                                  



relevant to the case," or to "review discovery that the attorney is not permitted to send  

                                         



to the client."  OPA has apparently never interpreted the regulation or its authorizing  

                                                                                                                            



statute as requiring or even permitting it to pay travel expenses for OPA's indigent  

                                                                                                                                  

                                                        73  We agree with the Agency that the OPA regulation,  

clients to attend court proceedings.                                                                                          

                                     



like the two Attorney General opinions, does not support requiring the Agency to pay  

                                                                                                                                         



its clients' travel costs.  

                             



           71         Alaska Pub. Defender Agency                       , 413 P.3d at 1223.         



           72         2  AAC  60.040  (2019).                     This  regulation  is  part  of  a  section  of  OPA  

                                                                                                                                      

regulations regarding private contract attorneys, that is, attorneys appointed by the court  

                                                                                                                                       

under Alaska Administrative Rule 12(b)(1)(B).  See 2 AAC 60.010-.060.  

                                                                                                     



           73         See Davis Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293,  

                                                                                                                                        

299  (Alaska  2014)  ("We  give  more  deference  to  agency  interpretations  that  are  

                                                                                                                                         

'longstanding and continuous.' " (quoting Marathon Oil Co. v. State, Dep't of Nat. Res.,  

                                                                                                                                        

254 P.3d 1078, 1082 (Alaska 2011))).  

                                                  



                                                                    -20-                                                              7413
  


----------------------- Page 21-----------------------

                  B.	              Like   The   Agency,   DJJ   Is   Not   Required   By   Statute   To   Pay The  

                                   Expenses For An Out-Of-Court Indigent Juvenile To Travel To The                                                                                                                     

                                   Site Of An Adjudication Hearing.                                      



                                   DJJ's   payment   obligations  in  this   context   are   also   defined   by   statute.   



Alaska Statute 47.12.120(e) provides: "The department shall pay all court costs incurred                                                                                                                     



in all proceedings in connection with the adjudication of delinquency under this chapter,                                                                                                                     

including hearings that result in the release of the minor."                                                                                                   74  

                                                                                                                                                                                                                          

                                                                                                                                                                        We conclude that the  



                                                                                                                                                                                                                            

legislature's choice of language - "court costs" - does not require DJJ to pay for an  



                                                                                                                

out-of-custody juvenile defendant's travel expenses.  



                                                                                                                                                                                                                   

                                   Thedelinquency statutes, likethePublicDefenderAct, donot define"court  



                  75                                                                                                                                                                                       76  

costs."                                                                                                                                                                                                          

                          As explained above in our discussion of the Public Defender Act,                                                                                                                        "court  



                                                                                                                                                                                                              

costs" may reasonably be interpreted to include such things as filing fees, court reporter  



                                                                                                                                                                                                                              77  

                                                                                                                                                                                                                                     

fees, and other costs of the sort that are sometimes taxed by the court against a party. 



                                                                                                                                                                                                                            

We see no indication in the statutory language that the phrase "court costs" should be  



                                                                                                                                                                                                                 

interpreted any more expansively in the delinquency statutes than it is in the Public  



                          

Defender Act.  



                 74                The   "department"   referred   to   is   the   Department   of   Health   and   Social  



Services; DJJ is the departmental division that manages juvenile delinquency.                                                                                                                                          See  

                                                                                                                                      LASKA   DEP 'T   OF   HEALTH   & S                                                 OC.  

AS   47.12.990(5);   Division   of   Juvenile   Justice, A 

SERVS., http://dhss.alaska.gov/djj/Pages/default.aspx (last visited Aug. 19, 2019).                                                                                                                 



                 75                Cf.  AS  47.12.990.  



                 76                See  supra  Part  IV.A.1.  



                 77                Court  Costs,  Cost  definition  2,  BLACK 'S  LAW  DICTIONARY  (11th  ed.  2019).  



                                                                                                            -21-	                                                                                                    7413
  


----------------------- Page 22-----------------------

                      This reading of "court costs" as used in AS 47.12.120(e) is supported by     



                              78  

legislative history.                                                                                                            

                                  The Territorial government enacted the original payment provision  

                                                   79  The codified version of the 1943 Act required that "the  

                                                                                                                                         

                                           

for the juvenile system in 1943. 



proper and necessary costs of the court and witnesses and other expenses necessarily  

                                                                                                                             



incurred in enforcement of this chapter shall be borne by the Department of Public  

                                                                                                                                    

Welfare."80  This provision covered the entire juvenile system, including both delinquent  

                                                                                                                              

children and dependent children - those now termed children in need of aid.81  

                                                                                                                           



                      In 1957 the Territorial legislature reorganized the juvenile justice system.  

                                                                                                                                                 



It created a new Department of Juvenile Institutions, leaving only the care of dependent  

                                                                                                                               

children  to  the  Department  of  Public  Welfare.82                                  While  the  section  regarding  the  

                                                                                                                                          



Department of Public Welfare retained the earlier-codified language nearly word for  

                                                                                                                                          

                                                                                       83  a new provision for delinquent  

word as it pertains to the care of dependent children,                                         

                                                                         



children was added, requiring "[t]heDepartmentofJuvenileInstitutions [to]payall court  

                                                                                                                                       



           78         The court of appeals in               State v. M.T.        relied on the legislative history to find               



that   AS   47.12.120(e)   did   not   require   DJJ   to   pay   the   travel   expenses.     Nos.   A- 

 11942/11961 (Alaska App. Order, July 24, 2014).                         



           79         Ch. 8,  19, SLA 1943, codified as  51-3-19 Alaska Compiled Laws  

                                                                                                                                      

Annotated (ACLA) (1949).  

                                  



           80          51-3-19 ACLA (1949).  

                                                     



           81         See  51-3-3 ACLA regarding the juvenile jurisdiction  of the courts.  

                                                                                                                             



           82         Ch. 145, Arts. II, III, SLA 1957.  

                                                                   



           83         Compare Ch. 145, Art. III,  4, SLA  1957, codified as  51-3-64 ACLA  

                                                                                                                                    

(Supp. 1958), with  51-3-19 ACLA (1949).  

                                                              



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costs incurred in all proceedings in connection with the adjudication of delinquency                                                            

under this Act, including hearings which result in the release of the minor."                                                                      84  



                          When the Alaska Legislature first codified the Territorial laws regarding  

                                                                                                                                                      



the juvenile system in 1962, it retained the 1957 language.  Former AS 47.10.080(h)  

                                                                                                                                               

(1962) required the Department of Health and Welfare85  to pay "all court costs" in  

                                                                                                                                                                    



adjudications of delinquency while former AS 47.10.260 (1962), relating to the care of  

                                                                                                                                                                     



dependent children, required payment of "the proper and necessary costs of the court and  

                                                                                                                                                                  



witnesses and other expenses necessarily incurred."  The only further change to these  

                                                                                                                                                               

statutes was a renumbering in 1996.86  

                                                            



                          Although there are no legislative statements of intent relevant to the 1957  

                                                                                                                                                               



change,  the  Territorial  legislature  clearly  narrowed  the  expenses  covered  by  DJJ's  

                                                                                                                                                             



predecessor for juvenile delinquents while retaining the broader language for cases  

                                                                                                                                                              



involving the care of dependent children.  Under the circumstances, we construe these  

                                                                                                                                                               

                                       87   The phrase "all court costs" in the delinquency statute appears to  

provisions together.                                                                                                                                                 

                      



             84           Ch. 145, Art. I,  10(2), SLA 1957, codified as  51-3-30(2) ACLA (Supp.                                                          



 1958) (alteration omitted).       



             85           The newly created Department of Health and Welfare contained both the  

                                                                                                                                                                   

Territory's Department of Juvenile Institutions and its Department of Public Welfare.  

                                                                                                                                                                           

See Ch. 64,  12, SLA 1959.  

                                              



             86           Ch. 59,  46-47, 55, SLA 1996; compare former AS 47.10.080(h) (1962),  

                                                                                                                                                           

and former AS 47.10.260 (1962), with AS 47.12.120(e), and AS 47.14.130.  The only  

                                                                                                                                                                

alteration is that the relevant state department is now called the Department of Health and  

                                                                                                                                                                  

Social Services.  See AS 47.12.990(5); AS 47.14.990(6).  

                                                                                     



             87           "Under the in pari materia canon of statutory construction, we construe  

                                                                                                                                                        

statutory provisions 'enacted at the same time, or deal[ing] with the same subject matter'  

                                                                                                                                                           

together." Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 769 (Alaska 2018)  

                                                                                                                                                             

(quoting Bullock v. State, Dep't of Cmty. &Reg'l Affairs, 19 P.3d 1209, 1214-15 (Alaska  

                                                                                                                                                          

                                                                                                                                              (continued...)  



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----------------------- Page 24-----------------------

have been narrowed from the "costs of . . . witnesses and other expenses necessarily                                                                                                                                          



incurred" included in AS 47.14.130. Just as the legislature's addition of the phrase "and                                                                                                                                                        



other expenses necessarily incurred" in Chapter 8,  19, SLA 1943 was presumably                                                                                                                                            



deliberate, so too was the legislature's removal of the phrase in the delinquency statutes.                                                                                                                                                                       



We conclude that AS 47.12.120(e), the only juvenile delinquency statute addressing                                                                                                                                            



DJJ's   payment   obligations,   does   not   require   that   it   pay   the   travel   expenses   of   an  



out-of-custody juvenile defendant to attend trial.                                                                                



                                        The Agency further argues that DJJ should be required to pay these costs                                                                                                                                



because it has an obligation to ensure due process and fair legal proceedings.                                                                                                                                                          Alaska  



 Statute 47.12.010(b)(9) states that one of the purposes of the juvenile justice system is                                                                                                                                                                



to   "provide   due   process   through   which   juvenile   offenders,   victims,   parents,   and  



guardians are assured fair legal proceedings during which constitutional and other legal                                                                                                                                                         



rights are recognized and enforced."                                                                              But this purpose, like the others listed in the                                                                                    

                     88  are broad aspirations for the juvenile justice system as a whole, which includes  

 statute,                                                                                                                                                                                                                              



not only DJJ but also  the Department of Public Safety, the Court System, and the  

                                                                                                                                                                                                                                                     



Agency.   While the defendant's right to appear at a criminal proceeding is partially  

                                                                                                                                                                                                                                     



                    87                  (...continued)  



                                                                                                                                                                                                                                    

2001)). The canon expressio unius est exclusio alterius, which "establishes the inference  

                                                                                                                                                                                                                              

that, where certain things are designated in a statute, all omissions should be understood  

                                                                                                                                                                                                                                      

as exclusions," Ranney v. Whitewater Eng'g, 122 P.3d 214, 218 (Alaska 2005) (quoting  

                                                                                                                                                                                                                                                       

 Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991)), can also be  

                                                                                                                                                                                                                                                      

applied when construing two provisions of the same act.  Cf. Alaska State Comm'n for  

                                                                                                                                                                                                                                              

Human Rights v. Anderson, 426 P.3d 956, 964 (Alaska 2018) (declining to use the canon  

                                                                                                                                                                                                                                      

as a comparison tool for "two completely separate statutory schemes"); see also Russello  

                                                                                                                                                                                                                                 

v.  United  States,  464  U.S.  16,  23  (1983)  ("[W]here  Congress  includes  particular  

                                                                                                                                                                                                                                                          

language in one section of a statute but omits it in another section of the same Act, it is  

                                                                                                                                                                                                                                   

generally  presumed  that Congress acts intentionally  and  purposely  in  the  disparate  

                                                                                                                                                                           

inclusion or exclusion." (alteration in original) (emphasis added)).  



                    88                 See AS 47.12.010.  

                                                               



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----------------------- Page 25-----------------------

                                                                                                                           89  

grounded in due process,                                                                                                           AS 47.12.010(b)(9) does not create an obligation on DJJ in                                                                                                                                                                                                                               



particular to pay whatever is necessary to guarantee that right.                                                                                                                                                                                                                       



V.                               CONCLUSION  



                                                                 Because   neither   DJJ's   nor   the   Agency's   authorizing   statutes   can   be  



interpreted   to   require   either  of   them to                                                                                                                                                         pay   the   travel   expenses   for   out-of-custody  



indigent juvenile defendants to attend their delinquency proceedings, neither is legally                                                                                                                                                                                                                                                                                                             



obligated to pay such costs.                                                                                                                  The task of pinpointing a source of payment is for the                                                                                                                                                                                                                 



legislative or executive branches.                                                                                                                                    



                                                                 We REVERSE the decision of the court of appeals.                                                                                                                                                                      



                                 89                              See Douglas v. State                                                                                    , 214 P.3d 312, 319 (Alaska 2009) ("The right of a                                                                                                                                                                                                     



criminal defendant to be present at every stage of trial is rooted in the right to confront                                                                                                                                                                                                                                                                                                 

adverse witnesses and the right to due process of law." (internal citation omitted));                                                                                                                                                                                                                                                                                                                          RLR  

v.  State, 487 P.2d 27, 42 (Alaska 1971) ("We see no difference in principle between the                                                                                                                                                                                                                                                                                                                               

child's right to be present at his hearing and a criminal defendant's right to be present at                                                                                                                                                                                                                                                                                                                                 

his trial.").   



                                                                                                                                                                                                          -25-                                                                                                                                                                                                 7413
  

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