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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALASKA PUBLIC DEFENDER AGENCY,
Court of Appeals No. A-12814
Petitioner, Trial Court No. 4SM-16-002 DL
v.
O P I N I O N
SUPERIOR COURT,
Respondent. No. 2582 - January 12, 2018
Original Application for Relief from the Superior Court, Fourth
Judicial District, Bethel, Dwayne W. McConnell, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender, and
Quinlan Steiner, Public Defender, Anchorage, for the Petitioner.
Jeffrey W. Robinson, Ashburn & Mason, P.C., Anchorage, for
the Respondent. David A. Wilkinson, Assistant Attorney
General, Fairbanks, and Jahna Lindemuth, Attorney General,
Juneau, for the Alaska Division of Juvenile Justice (intervenor).
Before: Mannheimer, Chief Judge, and Suddock, Superior
Court Judge.*
Judge MANNHEIMER.
* Sitting by assignment made pursuant to Article IV, Section 16 of the Alaska
Constitution and Administrative Rule 24(d).
----------------------- Page 2-----------------------
This case arises out of juvenile delinquency proceedings against J.B., a
minor who lives in the village of Marshall. J.B.'s family is indigent, and J.B. is
represented by the Public Defender Agency.
J.B. has invoked his right to trial and, under the venue rules, J.B.'s trial is
to be held in Bethel. But J.B.'s family has no funds to transport him to Bethel.
Moreover, because of J.B.'s youth, his parents take the position that one of them must
accompany J.B. to Bethel.
The superior court has ordered the Public Defender Agency to pay for this
travel expense. Quoting the language of AS 18.85.100(a)(2), the superior court reasoned
that this transportation expense was one of the "necessary services and facilities of [the
Agency's] representation" of J.B.
The Public Defender Agency now petitions this Court to review and reverse
the superior court's order. The Agency takes the position that the transportation expense
should be borne either by the Division of Juvenile Justice (i.e., the government entity that
is prosecuting J.B.) or, alternatively, by the Court System.
Both the Alaska Court System and the Alaska Division of Juvenile Justice
are actively participating in this litigation; they ask this Court to uphold the superior
court's ruling.
The parties are in essential agreement that some government entity should
pay to transport an indigent minor (and, when necessary, a parent or guardian) to the site
of the minor's trial. The problem is to identify which government entity that should be.
The Division of Juvenile Justice concedes that they should pay the expense
of transporting a minor who is in custody. But with regard to minors who are released
from custody pending trial (such as the minor in this case), the Division of Juvenile
Justice argues that the expense of transportation should be borne by the legal agency that
is representing the minor (i.e., the Public Defender Agency or the Office of Public
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----------------------- Page 3-----------------------
Advocacy), just as the agency would bear other necessary expenses of the representation
such as the transportation of needed witnesses.
The Division of Juvenile Justice bases its argument on the Public Defender
Agency's authorizing statute, AS 18.85.100. Subsection (a) of this statute declares that
indigent defendants in criminal proceedings and indigent minors in delinquency
proceedings are entitled:
(1) to be represented ... by an attorney to the same
extent as a person retaining an attorney is entitled; and
(2) to be provided with the necessary services and
facilities of this representation, including investigation and
other preparation.
See also AS 44.21.410(a)(5), the parallel authorizing statute of the Office of Public
Advocacy.
The Division of Juvenile Justice contends that when the Public Defender
Agency or the Office of Public Advocacy is representing an indigent defendant, and
when that defendant is not in custody, the cost of transporting the defendant to the site
of their trial is a necessary "service" or "facility" of the representation.
This is a plausible interpretation of the statute, but it is by no means the
only possible interpretation of the statute. We acknowledge that some people might
reasonably conclude that the phrase "necessary services and facilities of [the]
representation" does not include the cost of transporting the defendant to court.
But we note that the position advocated by the Division of Juvenile Justice
was expressly adopted by the Alaska Department of Law some forty years ago.
In 1977 and 1978, the Alaska Attorney General issued two formal opinions
dealing with the question of who should pay the transportation expenses of indigent
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----------------------- Page 4-----------------------
criminal defendants and indigent juvenile defendants. In those opinions, the Department
of Law concluded that when a criminal defendant or a juvenile delinquency defendant
is represented at public expense by the Public Defender Agency, the Agency is
1
responsible for paying the defendant's necessary transportation costs.
Consistent with these Attorney General Opinions, the Department of
Administration has promulgated an administrative regulation, 2 AAC 60.040, which
authorizes the Office of Public Advocacy to pay "necessary travel and per diem by the
2
defendant, ... not [to] exceed the rate authorized for state employees."
According to the Administrative Code, the authority for this regulation is
AS 44.21.410. This statute is the authorizing statute for the Office of Public Advocacy,
and it requires the Office of Public Advocacy to provide the same legal representation
1 See Attorney General Opinion dated October 7, 1977 (1977 WL 22018 at *3),
(concluding that when it is necessary for a defendant to travel, this expense is a "necessary
incident of [the] representation" within the meaning of the Public Defender's authorizing
statute, AS 18.85.100); and Attorney General Opinion dated September 25, 1978 (1978 WL
18588 at *1) (concluding that the reasoning of the 1977 opinion applies to juvenile cases).
2
The complete text of this regulation is:
2 AAC 60.040. Extraordinary expenses.
Extraordinary expenses for appointed attorneys will be reimbursed only if prior
authority has been obtained from the public advocate. In this section, "extraordinary
expenses" are limited to expenses for:
(1) investigation;
(2) expert witnesses; and
(3) necessary travel and per diem by the defendant, appointed counsel, and witnesses,
which may not exceed the rate authorized for state employees.
- 4 - 2582
----------------------- Page 5-----------------------
that an indigent person would receive from the Public Defender Agency if the Agency
3
did not have a disqualifying conflict.
Thus, the Department of Administration apparently agrees with (or at least
has acquiesced in) the position taken by the Attorney General - the position that the
payment of transportation expenses is a necessary incident of a public agency's
representation of its clients if those clients are not in custody.
Our decision in this case is not controlled by the fact that the Attorney
General has interpreted the Public Defender Agency's authorizing statute in this fashion,
nor by the fact that the Department of Administration has interpreted the Office of Public
Advocacy's authorizing statute in the same way. Nevertheless, the Alaska Supreme
Court has said that an appellate court should accord some deference to Attorney
General's opinions, as well as to interpretations of a statute that are adopted by the
4
executive agency responsible for enforcing or overseeing the operation of that statute.
Because all three parties to this case agree that some government entity
should be responsible for paying to transport indigent defendants to the site of their trial,
this case does not present a question of criminal law or procedure. Rather, it presents
issues of budgeting and finances - i.e., administrative questions. In these circum-
stances, we believe that we should accord substantial weight to the statutory interpreta-
tion adopted by the Attorney General and the Department of Administration.
3 See AS 42.21.410(a)(5).
4
See, e.g., State v. Dupier, 118 P.3d 1039, 1050 n. 62 (Alaska 2005) ("The weight
accorded to opinions of the Attorney General is largely within our discretion. In general,
they are not controlling but are entitled to some deference."); Bullock v. Dept. of Community
& Regional Affairs, 19 P.3d 1209, 1216 (Alaska 2001) ("When an executive [agency]
interprets legislation, that interpretation is entitled to be given weight ... in construing the
intent of the statute.").
- 5 - 2582
----------------------- Page 6-----------------------
We accordingly hold that when the Public Defender Agency or the Office
of Public Advocacy is representing an indigent defendant who is (1) not in custody and
who is (2) unable to afford to travel to the site of their trial, the agency shall pay the
necessary expense. And when a delinquency case involves a minor who is not
reasonably able to travel alone, the agency shall pay for a parent or guardian to
accompany the minor.
We are aware that our decision may have significant financialconsequences
for the Public Defender Agency and the Office of Public Advocacy - just as a different
decision might have significant financial consequences for the Court System or the
Division of Juvenile Justice.
But this is a situation where having an answer is arguably more important
than the specific content of the answer. In the end, this litigation is about money and
budgeting. Now that we have identified the government agencies who are responsible
for paying these travel expenses, it is the legislature's task to adjust the agencies' budgets
to accommodate these expenses.
The decision of the superior court is AFFIRMED.
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