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NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| BEN LATHAM, | ) |
| ) Court of Appeals No. A-9739 | |
| Petitioner, | ) Trial Court No. 3AN-03-8947 Civ |
| ) | |
| v. | ) |
| ) O P I N I O N | |
| MUNICIPALITY OF ANCHORAGE, | ) |
| ) | |
| Respondent. | ) No. 2116 August 17, 2007 |
| ) | |
Petition for Hearing from the Superior Court,
Third Judicial District, Anchorage, Eric A.
Aarseth, Judge.
Appearances: No appearance for the
Petitioner. James N. Reeves, Municipal
Attorney, Anchorage, for the Respondent.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
Ben Latham is an indigent defendant who was convicted
and sentenced to jail for violating two Anchorage municipal
ordinances. Latham filed an appeal to the superior court, but
the superior court affirmed his convictions. Latham has now
filed a petition for hearing, asking this Court to review the
superior courts decision.
In Alexander v. Anchorage, 490 P.2d 910, 915-16 (Alaska
1971), our supreme court held that an indigent defendant who is
prosecuted for violating a municipal ordinance is entitled to
court-appointed counsel under AS 18.85.100 if the ordinance is a
serious crime that is, if the potential penalty for violating
the ordinance includes incarceration, or a fine sufficiently
large to connote criminality, or the loss of a valuable license.
Although Alexander dealt with a defendant who needed an
attorney to represent her in the trial court, AS 18.85.100(a)
also applies to defendants who are being detained under a
conviction of a serious crime in other words, defendants who
need an attorney to pursue an appeal or, by extension, a petition
for hearing under Alaska Appellate Rule 302 following an
unsuccessful appeal. Thus, because Latham faced (and in fact
received) jail time for violating the municipal ordinances, he is
entitled to a court-appointed appellate attorney under
AS 18.85.100(a) to assist him in pursuing this petition for
hearing.
The problem is that the Municipality has not been able
to procure an attorney to represent Latham. According to the
Municipality, all of the attorneys who are normally available to
take defense work in municipal criminal cases are either
unavailable or unwilling to represent Latham.
The Municipality notes that it has no authority to
force an attorney to take Lathams case (or any other case). The
Municipality suggests that, given the unusual situation presented
here, this Court should invoke its authority under Alaska
Administrative Rule 12(e) to appoint an attorney to represent
Latham in this appeal.
Alaska Administrative Rule 12(e)(1) authorizes a court
to appoint an attorney for an indigent person if the court
concludes that the person has a legal right to the assistance of
counsel. However, by its terms, Administrative Rule 12(e)(1)
applies only to cases where the appointment of counsel is not
authorized by AS 18.85.100. As we have just explained, Latham is
entitled to counsel under AS 18.85.100. Thus, Administrative
Rule 12(e)(1) does not apply here.
However, as we are about to explain, we conclude that
another provision of Administrative Rule 12 subsection (b)(1)
is premised on a courts implicit authority to appoint an attorney
for a defendant in Lathams situation.
Alaska law governing the appointment of counsel for
indigent defendants in municipal prosecutions
In 1971, when our supreme court decided
Alexander, there was one primary source for court-
appointed attorneys in criminal cases: the Alaska
Public Defender Agency. (If, for some reason, the
Public Defender Agency could not provide the necessary
attorney, AS 18.85.130(a) authorized a court to appoint
a member of the private bar.)
As we explained above, the supreme court held
in Alexander v. Anchorage that if the violation of a
municipal ordinance constitutes a serious crime, an
indigent defendant prosecuted for violating that
ordinance is entitled to court-appointed counsel under
AS 18.85.100. The supreme court further ruled that the
Public Defender Agency was obliged to provide the
needed defense attorney, but the municipal government
was obliged to pay for the attorneys services.
Alexander, 490 P.2d at 916.
In 1984, the legislature modified the law on
this point when it enacted AS 18.85.155.1 Subsection
(a) of this statute restates the rule announced in
Alexander that when a municipality prosecutes an
indigent defendant for a serious crime (thus triggering
the right to counsel at public expense), the
municipality shall pay for the services of the attorney
appointed by the court to defend the indigent person.
However, subsection (b) of AS 18.85.155 gives municipal
governments three ways of meeting this obligation.
One clause of subsection (b) authorizes
municipalities to adopt the method described in
Alexander: that is, municipalities may contract with
the Public Defender Agency to provide defense attorneys
in municipal cases. But the other two clauses of
subsection (b) offer municipalities alternative methods
of providing defense services without any involvement
by the Alaska Public Defender Agency. Under these
provisions of the statute, a municipality may contract
with private attorneys to provide criminal defense
services or, alternatively, a municipality may
establish its own municipal public defender agency.
The Municipality of Anchorage has chosen to
meet its obligation by contracting with members of the
private bar to provide criminal defense services. The
problem in Lathams case is that these contracts have
proved inadequate to procure an attorney for Latham.
How Lathams case would be handled if he had been
prosecuted by the State of Alaska
If Lathams case had been prosecuted by the
State instead of a local government, our statutes and
court rules would provide a clear solution to the
problem.
AS 18.85.110(d) (the statute authorizing
appointment of the Public Defender Agency) and AS
44.21.410(a)(5) (the statute authorizing the
appointment of the Office of Public Advocacy in cases
where the Public Defender Agency has a conflict) create
a two-step procedure for obtaining an attorney to
represent an indigent defendant who is being prosecuted
by the State. This procedure is also described in
subsection (1)(A) of Alaska Administrative Rule 12(b).
Under our statutes and rules, the Public
Defender Agency has the primary responsibility for
providing the defense attorney. If the Public Defender
Agency has a conflict that prevents it from providing
the defense attorney, the Office of Public Advocacy has
the backup responsibility for providing the attorney
either from among the Offices salaried attorneys, or
from among its contract attorneys.
Even though our statutes do not speak of it,
there is one more potential step in this process the
third (and least used) step set forth in subsection
(1)(B) of Administrative Rule 12(b). This subsection
of Administrative Rule 12(b) describes the procedure
for cases where the two statutory steps prove
inadequate that is, cases where neither the Public
Defender Agency nor the Office of Public Advocacy can
provide the needed attorney.
Administrative Rule 12(b)(1)(B) declares
that, as a last resort, the Office of Public Advocacy
can petition the court to appoint an attorney. The
rule requires the Office of Public Advocacy to
demonstrate that it is unable to provide [the
necessary] counsel either by staff or by contract, and
also to provide[] the court with the name or names of
the attorneys who shall be appointed in that particular
case.
(The rule further provides that the Office of
Public Advocacy shall be responsible for compensating
[the] attorney appointed under this [procedure].)
How this law relates to Lathams case
Latham is being prosecuted by the
Municipality of Anchorage, and the Municipality has
opted under AS 18.85.155(b) to provide defense services
by contracting with members of the private bar.
Because the Municipality of Anchorage has chosen this
option, the Public Defender Agency and (by extension)
the Office of Public Advocacy are not involved in
providing defense attorneys in criminal cases
prosecuted by the Municipality. Seemingly, then, the
attorney-appointment procedures described in
Administrative Rule 12(b) would have no application to
Lathams case. Nevertheless, we conclude that
subsection (1)(B) of that rule provides the answer to
the problem presented here.
As we noted in the preceding section, the
last-resort appointment procedure described in Rule
12(b)(1)(B) is not derived from AS 18.85 or
AS 44.21.400 et seq. Rather, subsection (1)(B)
describes an appointment procedure to be employed when
the statutory appointment procedures prove inadequate.
From this fact, we conclude that Administrative Rule
12(b)(1)(B) is based on a courts common-law authority
to appoint counsel to represent a criminal defendant
when (1) the defendant is entitled to counsel under
AS 18.85.100 but (2) the pertinent statutory
appointment mechanisms fail to provide the needed
attorney.
That is the situation here. Latham is
indigent, and he is appealing his conviction of a
serious crime as defined in Alexander. He is therefore
entitled to court-appointed counsel under AS 18.85.100.
The pertinent statutory mechanism for appointing
Lathams attorney is the method chosen by the
Municipality under AS 18.85.155(b) to wit, the
Municipalitys contracts with private attorneys. And
this method has proved inadequate.
Accordingly, we conclude that we can indeed,
we must exercise our common-law authority to appoint
an attorney for Latham using procedures analogous to
the ones described in Administrative Rule 12(b)(1)(B).
The Municipality has already complied with
the first part of Rule 12(b)(1)(B) the part requiring
a declaration that the Municipality is unable to
provide [the necessary] counsel either by staff or by
contract. What remains is for the Municipality to
provide[] the court with the name or names of the
attorneys who shall be appointed in Lathams case.
We note that Administrative Rule 12(b)(1)(B)
specifies that the Office of Public Advocacy shall be
responsible for compensating [the] attorney appointed
under this [procedure]. However, we interpret this
clause of the rule as simply meaning that the agency
that would normally be required to pay for the defense
attorneys services remains obliged to pay for those
services even though the attorney is being appointed by
the court.
Here, the Municipality of Anchorage would
normally be required to pay for the defense attorneys
services. See AS 18.85.155(a); Alexander, 490 P.2d at
916. Accordingly, the Municipality will be required to
pay for the services of the attorney who is appointed
to represent Latham in this case.
Conclusion
We remand this case to the superior court for
the appointment of appellate counsel. Within 15 days
of this decision, the Municipality shall submit to the
superior court a list of names of attorneys who are
qualified to pursue a criminal appeal and who are not,
to the Municipalitys knowledge, disqualified from
representing Latham. The superior court shall then
have 30 days to appoint an attorney to represent Latham
in this appeal. The superior court is authorized to
seek an extension of this deadline if necessary.
The superior court shall promptly notify this
Court of the identity of the attorney who is appointed
to represent Latham, and the superior court shall also
direct that attorney to promptly file an entry of
appearance in this Court.
_______________________________
1 See SLA 1984, ch. 125, 3.
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