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Child Support Enforcement Division v. Superior Court (11/24/95), 907 P 2d 14
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THE SUPREME COURT OF THE STATE OF ALASKA
STATE OF ALASKA, DEPARTMENT )
OF REVENUE, CHILD SUPPORT ) Supreme Court No. S-5820
ENFORCEMENT DIVISION, ex rel, )
BRYAN T. DEW, )
) Superior Court No.
v. ) 3AN-92-3134 CI
THE SUPERIOR COURT FOR )
THE STATE OF ALASKA, ) O P I N I O N
Respondent. ) [No. 4283 - November 24, 1995]
Petition for Review from the Superior Court
of the State of Alaska, Third Judicial
District, Anchorage, Elaine Andrews, Judge.
Appearances: Mary A. Gilson, Assistant
Attorney General, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for
Petitioners. Wilson A. Rice, Rice, Volland
and Gleason, P.C., Anchorage, for Respondent.
Before: Moore, Chief Justice, Rabinowitz,
Matthews, Compton and Eastaugh, Justices.
EASTAUGH, Justice, with whom RABINOWITZ,
Justice, joins, dissenting.
In a paternity action, the superior court ordered the
State, Department of Revenue, Child Support Enforcement Division
(State), to advance fees to appointed counsel in accordance with
the court's interpretation of a form court order entitled "Order
Appointing Attorney Under Soldiers' and Sailors' Civil Relief
Act." The State petitioned this court for review. See Alaska
Appellate Rule 402(a)(1). We granted review to answer the
following question: when counsel is appointed pursuant to the
Soldiers' and Sailors' Civil Relief Act (SSCRA) to represent a
defendant in a paternity action and the State files the action on
behalf of the minor child or the mother, who must advance
compensation to counsel, the State or the superior court? We
conclude that the superior court correctly placed the initial
burden of compensating appointed counsel on the State.
Therefore, we affirm.
I. FACTS AND PROCEEDINGS
On April 10, 1992, the State of Alaska, Department of
Revenue, Child Support Enforcement Division, filed a paternity
suit on behalf of a minor child against Adam Poston, pursuant to
AS 25.27.040(a).1 Poston, who was in the military, did not
answer the complaint. Pursuant to the State's motion made in
compliance with the SSCRA, 50 U.S.C. app. ' 520 (1990), the
superior court appointed counsel to contact Poston and assist him
as specifically directed in the order.2 To effect the
appointment, the court used a form order which stated in part
that: "Unless the box below is checked, plaintiff shall
compensate the above-named attorney . . . . These fees and costs
may later be included in plaintiff's cost bill under Civil Rule
79." Checking the box would make operative the following
Plaintiff has shown an inability to pay for
such representation. Therefore, counsel will
be paid by the Alaska Court System as
provided in Administrative Rule 12(d)(2)(E)-
(I). All claims for compensation must be
submitted on court form ADM-121 within 30
days following disposition of the case.
The box was not checked.
After appointed counsel performed the services required
by the order, he submitted to the State a request for
compensation.3 The State requested that the superior court grant
it relief from the order of appointment on the ground that the
plaintiff minor child was unable to pay for the representation.
The court denied relief, ordering the State to advance
compensation to counsel because "the State is the plaintiff and
not indigent." On reconsideration, the court affirmed its
previous holding, stating that former Administrative Rule
12(d)(2)(B)(vii),4 then applicable, authorized "non-indigent
plaintiffs, in this case the State Dept. of Revenue, to pay for
Shortly thereafter, in Anderson v. Bynum, Case No. 3AN-
92-6989, a different paternity case also initiated by the State,
the superior court appointed counsel for a defendant under the
SSCRA and held that the defendant's counsel was to submit her
request for payment of fees to the court. In that case, the
court regarded the child's mother as the "plaintiff" and
determined she was unable to pay for the representation.
The State then filed a Petition for Review of the
superior court's order that the State compensate Poston's
appointed counsel, which we granted.
The State urges this court to conclude that it is the
superior court and not the State that should advance compensation
to counsel appointed under the SSCRA. The State makes two
arguments to support its claim: (1) no statutory authority
exists for the court to order the State to advance appointed
counsel's fees; and (2) the State is not an "opposing party" as
that term was intended under former Administrative Rule
12(d)(2)(B)(vii). We disagree.
The issue in this case is whether the superior court
erred in determining that former Administrative Rule
12(d)(2)(B)(vii) authorized it to order the State to advance
SSCRA counsel's fees. This is a question of law. This court
reviews questions of law de novo, adopting the rule that is most
persuasive in light of precedent, reason, and policy. Langdon v.
Champion, 745 P.2d 1371, 1372 n.2 (Alaska 1987).
A. Administrative Rule 12(d)(2)(B)(vii) Was Adopted
Under Authority Granted By the State Constitution
The State argues that the superior court does not have
statutory authority to order the State to advance fees for
counsel appointed pursuant to the SSCRA. The State contends that
Alaska statutes provide for compensation of appointed counsel
only in proceedings which result in a "prevailing party." The
State asserts that where the appointed counsel performs specific
tasks to assist a defendant who is in the military, and does not
litigate the merits of the action, there is no "prevailing
party." Thus any assessment of SSCRA counsel's fees is
unauthorized. The State argues that the right to counsel's fees
is purely statutory because no such right existed at common law.
McDonough v. Lee, 420 P.2d 459, 460 (Alaska 1966).
The State's argument is misguided. It confuses the
SSCRA appointment procedure with awarding counsel's fees to a
prevailing party at the conclusion of litigation. In the case at
bar, the services rendered by SSCRA counsel are analogous to
services rendered by persons who assist a party in effectuating a
lawsuit, such as process servers. While SSCRA counsel's services
are not ministerial, they are limited and essentially
informational. Significantly, the plaintiff cannot obtain a
default judgment unless SSCRA counsel is appointed and performs
the services required by the appointment.5 Whether the plaintiff
prevails is irrelevant to the question of whether the State or
the superior court must advance SSCRA counsel's fees.
The Alaska Constitution grants the supreme court
authority to make and promulgate "rules governing the
administration of all courts" and "rules governing practice and
procedure in civil and criminal cases in all courts." Alaska
Const. art. IV, ' 15. This court's power under this section is
"explicitly broad and very nearly complete." Citizens Coalition
for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 165 (Alaska
1991). In McAlpine, this court reviewed a proposed initiative
that would have affected contingency fees in tort cases. The
lieutenant governor had refused to place it on the ballot. His
refusal had been upheld by the superior court. This court
affirmed, holding that the fee limit was a rule of court,
forbidden to the initiative process. Id. This court also cited
Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 575 (Alaska
1969), for the proposition that the legislature may not initiate
rules, but may only override the supreme court's rules. These
cases confirm the power of this court to regulate "practice and
procedure in . . . all courts." Alaska Const. art. IV, ' 15.
Who advances SSCRA counsel's fees is a matter of
"practice and procedure." Former Administrative Rule
12(d)(2)(B)(vii) provided the mechanism to address this issue.
Hence the Rule was within this court's power to establish.
The State argues that State v. Superior Court, 718 P.2d
466 (Alaska 1986), controls this case. In Superior Court, this
court struck an order requiring the Attorney General's office to
pay for an attorney appointed under the SSCRA. We held that "no
authority permit[ted] the court to mandate that such fee be paid
by the Attorney General." Id. at 467. At the time that case was
decided, the version of Administrative Rule 12 at issue in this
case did not exist. Rather, Administrative Rule 13 was the
applicable rule, and it made no mention of payment by an
In contrast, former Administrative Rule
12(d)(2)(B)(vii) did refer to payment of fees by the opposing
party and, by implication, required that an opposing party who
was financially able to pay such fees pay them. Therefore,
Superior Court does not control the outcome of this case.
B.Former Administrative Rule 12 Required the
Superior Court to Order the State to Pay the Costs
of Appointed Counsel
The superior court issued two orders directing the
State to pay SSCRA counsel's fees pursuant to former
Administrative Rule 12(d)(2)(B)(vii), reasoning that the State
was "the plaintiff" and not indigent.
The State argues that it is not an "opposing party"
because it is not acting as a private litigant in a paternity
case, but rather in a representative capacity. The State claims
that the child or custodian is more appropriately viewed as the
defendant's "opposing party." To support this argument, the
State relies on Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).
In Reynolds, this court held that an indigent defendant has the
right to appointment of counsel in a paternity suit in which the
plaintiff is represented by the State. Id. at 803. The State
had filed suit in the name of the mother, who this court referred
to as "the real party in interest." Id. at 799-800. The State
suggests that this is determinative of the question of whom is
the opposing party. The State fails to note one predicate for
the court's holding:
In light of the fact that paternity
suits, in effect, are brought by the State,
the significance of the parent-child
relationship involved and the peculiar
problems presented, we hold that due process
requires the appointment of counsel for an
Id. at 803 (emphasis added).
The State concedes that "[the State] is authorized by
statute to bring paternity actions and, therefore, is a real
party in interest for the purpose of being able to bring the
suit."7 However, it asserts that Civil Rule 17(a) is not
determinative of whether the State should be considered an
"opposing party" under Administrative Rule 12. The State
contends that although the State will benefit in some cases by
being able to recoup paid public assistance from the biological
father if paternity is established, the child has an interest in
all cases, and therefore should be regarded as the "opposing
The State's argument again is misguided.
Administrative Rule 12 does not determine the ultimate liability
for SSCRA counsel's fees. It provides for the advancement of
counsel's fees once counsel's services have been performed. The
State controls the conduct of the litigation. The opposing
party, unless unable to pay, initially must advance the costs
associated with prosecuting the action. SSCRA counsel's fees are
one such cost.
Former Administrative Rule 12(d)(2)(B)(vii) provided
the court with statutory authority to order the State to advance
appointed counsel's fees. The State is the opposing party and
has made no showing of an inability to pay. The order of the
superior court is AFFIRMED.
EASTAUGH, Justice, with whom RABINOWITZ, Justice,
I dissent because the result reached by the majority,
however desirable, is not permitted by the pertinent court rules.
A. The Question
The question as I see it is fundamentally simple:
could the superior court in 1993 require a non-indigent plaintiff
to advance the fees of an attorney appointed by the superior
court pursuant to the Soldiers' & Sailors' Civil Relief Act
(SSCRA), 50 U.S.C. app. ' 520 (1990), in a civil suit filed by
the plaintiff against a member of the armed services.8 The
question is not who must ultimately pay those fees, but only
whether the plaintiff must advance them.
The majority opinion would impose this burden on CSED,
because the majority reads former Administrative Rule
12(d)(2)(B)(vii) "by implication, [to require] that an opposing
party who was financially able to pay such fees pay them."
Opinion at 8.
B. The Rule Imposes No Duty
The former rule is no model of clarity, but it
certainly did not "by implication" or otherwise impose any duty
on an opposing party financially able to pay these fees to pay
them. When the superior court appointed counsel on January 11,
1993, former Administrative Rule 12(d)(2)(B) stated in pertinent
Appointments may be made in the
following types of cases without
prior approval of the
administrative director, but only
in cases in which the required
services would not otherwise be
provided by a public agency:
. . . .
(vii) Attorneys appointed for
absent service persons pursuant to
the . . . [SSCRA] when the opposing
party is financially unable to pay
for such representation.
Read literally, subparagraph (B)(vii) did no more than permit
appointment of SSCRA attorneys without prior approval of the
administrative director of the Alaska Court System (ACS) "when
the opposing party is financially unable to pay for such
representation." Subparagraph (B)(vii) dealt only with one
contingency: suit brought by an indigent opposing party. It did
not address the contingency raised in this case: suit brought by
a non-indigent opposing party (CSED). Thus, the rule did not
permit the appointing court to require any plaintiff to advance
the fees, even if the plaintiff was financially able to do so.
The rule conspicuously failed to impose on plaintiffs, directly
or impliedly, the burden the majority thinks CSED should bear.
C. The Role of the Alaska Court System
Former Administrative Rule 12(d)(2) (now Rule 12(e)(2))
focused on appointment of counsel whose fees would be advanced by
the Alaska Court System. Former Administrative Rule 12(d) was
titled: "Other Appointments at Public Expense." That rule
encompassed SSCRA appointments. Rule 12(e) bears the same title. Although they
are not discussed in the majority opinion, various subparagraphs in former Rule 12(d)(2)
confirm that focus. Thus, Rule 12(d)(2)(D) required the court, when appointing an
attorney under the provisions of Rule 12(d)(2), to "immediately send a copy of the
appointment order to the administrative director."10 Rule 12(d)(2)(E) required that "[a]ll
claims for compensation must be submitted within 30 days following the disposition of a
case . . . . Claims will be submitted to the assigned trial judge, who shall make a
recommendation regarding approval and forward the recommendation to the administrative
director. The administrative director shall approve or disapprove the claim." The
remaining subparagraphs of former Rule 12(d)(2) all prominently discussed the role of the
ACS administrative director in approving various expenses.11 Alaska R. Admin. P.
There is no reason why the rule would require the ACS
administrative director to review and approve (or disapprove)
such expenses unless they were to be advanced by the ACS;
certainly there was no reason for the administrative director's
review and approval if those expenses were to be advanced by a
Rule 12(d)(2) thus expressly contemplated payment by
the ACS, and addressed no other possibility. In the absence of
any other language expressly imposing a duty on non-indigent
plaintiffs to advance those fees, the language discussing the
role of the ACS precludes any conclusion that CSED could be
required to advance these SSCRA fees.
D. The Effect of Our Prior Decision
State v. Superior Court, 718 P.2d 466
(Alaska 1986), appears to control and to call
for a different result. The trial court
there ordered the Attorney General's Office
to pay for an attorney appointed under the
SSCRA. This court held on appeal that "no
authority permit[ted] the court to mandate
that such fee be paid by the Attorney
General." Id. at 467. It relied on former
Administrative Rule 1312 to hold that the
superior court did not have authority to
order the Attorney General to pay fees for
counsel appointed under the SSCRA in a
paternity and support case. While payment of
some fee to appointed counsel is appropriate,
we know of no authority permitting the court
to mandate that such fee be paid by the
Attorney General. Former Administrative Rule
13, in effect at the time of this action,
provided for compensation of attorneys
appointed by the court. Attorneys appointed
to represent persons under the Rules of
Children's Procedure, pursuant to statute, or
where the appointment was constitutionally
mandated were entitled to compensation at $40
per hour to a maximum of $1500.
Administrative Rule 13(a). Claims for
compensation were to be submitted to the
assigned judge subject to the approval of the
administrative director of the courts.
Administrative Rule 13(c). The
administrative director of the courts is
responsible for all requests requiring
payment of funds appropriated to the
judiciary. Administrative Rule 1(j).
Id. (footnote and emphasis omitted). Thus, this court concluded
that Rule 13 required the superior court to pay the fees. Id.
As the majority opinion now notes, Rule 13 did not then
contain language requiring payment by the opposing party, and the
version of Administrative Rule 12 at issue in this case did not
exist when State v. Superior Court arose. The majority would
distinguish that case on a theory that former Administrative Rule
12(d)(2)(B)(vii) "by implication" required an opposing party
financially able to pay such fees to pay them. Opinion at 8.
However, as seen above, that rule did not impose, impliedly or
otherwise, any such duty on the opposing party. In all other
respects, the language in Rule 13 that convinced the court to
reverse in State v. Superior Court was carried over to Rule 12.
It was error to require CSED to advance the SSCRA fees here for
the same reasons it was error for the trial court to require the
Attorney General to advance those fees in State v. Superior
E. History of the Rule
The history of the rule does not support reading it
contrary to its clear language. Before amendment, Administrative
Rule 12(d)(2)(J) (1988) provided:
(J) To the extent required by the Soldiers
and Sailors Civil Relief Act (50 USCA ' 520),
attorneys will be appointed to represent
litigants from lists of eligible attorneys
provided by the Alaska Bar Association, as
provided in (2)(C), above. No compensation
will be paid from state funds for these
In 1988, that rule was deleted, and Rule 12(d)(2)(B)
was amended. The Court Rules Attorney who proposed that
amendment stated: "The amendment adds a provision that says the
court will pay for such representation if the opposing party is
unable to pay." The memorandum of the Court Rules Attorney did
not address payment of SSCRA fees when the opposing party was
able to pay.
F. The Court System Form Order
Poston's SSCRA attorney was appointed by order of
January 11, 1993, executed on ACS Form CIV-660 (8/90). The form
expressly purported to do what Administrative Rule 12(d)(2) did
not do. That form contemplated two alternative situations: (1)
suit by a plaintiff able to pay for the SSCRA representation for
the service member, or (2) suit by a plaintiff unable to pay for
that representation. In the first situation, the form order
would expressly require the plaintiff to compensate the
defendant's SSCRA attorney. In the second situation, the form
order states that counsel "will be paid by the Alaska Court
System as provided in Administrative Rule 12(d)(2)(E)-(I)." The
January 11, 1993 order imposed the expense on CSED, the trial
court apparently having concluded that CSED was able to pay for
Although the order and form embody a common sense
approach to the question who should advance these fees, the order
and form do something that was not permitted by the rule.
Unfortunately, nothing in Administrative Rule 12 imposes that
obligation on CSED, or on any other non-indigent plaintiff, and
the majority opinion recites no other authority that might be a
source of such a duty. The SSCRA itself does not address the
G. Administrative Function
This dispute may appear insignificant. After all, the
choice between imposing this expense on CSED and the Alaska Court
System may seem theoretical (either way, the State of Alaska will
pay). It is nonetheless of genuine importance to the agencies
whose budgets are potentially involved. Also, if Rule 12(d)(2)
could be read to require CSED, as the non-indigent opposing
party, to advance SSCRA fees, the existing rule would impose the
same duty on any non-indigent plaintiff, including those which
are not public agencies. Further, the method of exercising this
choice is of institutional importance. If this court wishes to
reach the result selected by the majority, it should do so
through its administrative function by amending the
Administrative Rules (and possibly the Civil Rules) to impose
this responsibility on non-indigent plaintiffs. This would
authorize the reasonable and logical result reached under ACS
Form CIV-660 (8/90). Adopting a new rule which would expressly
do what the majority proposes is preferable to issuing a judicial
opinion that attempts to squeeze that result from the hopelessly
inadequate language of the rule before us. There is nothing
financially or factually so compelling about the present case
that we should be induced to issue an opinion reading into the
rule a duty that is not there.
Although it is desirable to require the opposing party
to advance these fees, and although this court certainly could
adopt a rule so requiring, it has not done so. Perhaps it
intended to do so when it promulgated the changes to
Administrative Rule 12 culminating in former Rule
12(d)(2)(B)(vii), but if that was its intention, it failed to
carry it out. State v. Superior Court is not distinguishable on
the ground advanced by the majority opinion, and the rationale
employed in that case remains sound. Given the vacuum in former
Rule 12(d)(2)(B)(vii), the language in former Rule 12(d)(2)(E)
and (F) controls, requiring the ACS to pay the fees of Poston's
I would consequently reverse the order of the superior
1 AS 25.27.040(a) provides in part:
The agency shall appear on behalf of minor
children or their mother or legal custodian
or the state and initiate efforts to have the
paternity of the children born out of wedlock
determined by the court.
2 The Soldiers' and Sailors' Civil Relief Act provides
that a member of the armed services is entitled to appointed
counsel prior to a default judgment being entered against him or
her. 50 U.S.C. app. ' 520 (1990).
The appointed attorney has the following duties:
1.contact the defendant and assure that
defendant has actual notice of the
2.advise defendant of the protections of
the Soldiers' and Sailors' Civil Relief
3.advise defendant of the possibility of
entry of default judgment and of the
consequences of such a judgment,
4.ascertain whether defendant's ability
to appear and defend his or her legal
interests is affected in any way by
defendant's military status, and
5.if the defendant wishes, move for a
stay of the proceedings to enable
defendant to obtain counsel or prepare a
defense on the merits of the case.
3 The State notes that the appointed attorney will
request compensation before the case is concluded as the
compensation for fees does not depend on the outcome of the case.
4 Appointments may be made in the following
types of cases without prior approval of the
administrative director, but only in cases in
which the required services would not
otherwise be provided by a public agency:
. . . .
(vii) Attorneys appointed
for absent service persons pursuant
to the Soldiers['] and Sailors[']
Civil Relief Act (50 USC 520) when
the opposing party is financially
unable to pay for such
Former Alaska R. Admin. P. 12(d)(2)(B).
Former Administrative Rule 12(d)(2)(B)(vii) has been
amended and renumbered as Administrative Rule 12(e)(2) (1994).
5 A plaintiff may recover this cost from the defendant if
the plaintiff prevails. Civil Rule 79(b) provides:
(b) Items Allowed as Costs. A party entitled
to costs may be allowed . . . the expense of
service and publication of summons or
notices, and postage when the same are served
by mail . . . . In addition to the items
allowed as costs by law and in these rules, a
party shall be allowed any other expenses
necessarily incurred in order to enable a
party to secure some right accorded the party
in the action or proceeding.
6 In part, the rule provided that: "Attorneys appointed
by the court to represent persons . . . pursuant to statute . . .
shall be compensated at the rate of $40.00 per hour." Former
Alaska R. Admin. P. 13(a).
7 The State cites Civil Rule 17(a), which provides:
Real Party in Interest. Every action shall
be prosecuted in the name of the real party
in interest. An executor, administrator,
guardian, trustee of an express trust, a
party with whom or in whose name a contract
has been made for the benefit of another, or
a party authorized by statute may sue in his
[or her] own name without joining with him
[or her] the party for whose benefit the
action is brought; and when a statute of the
state so provides, an action for use or
benefit of another shall be brought in the
name of the state.
Alaska R. Civ. P. 17(a) (emphasis added).
8 The State Child Support Enforcement Division (CSED)
filed suit for the benefit of a minor child against a service
member, Adam Poston, to establish the child's paternity, and,
thus, Poston's liability for child support. I assume that the
child is financially unable to advance the fees of the SSCRA
attorney and that CSED is the "opposing party" as that term was
used in former Administrative Rule 12(d)(2)(B)(vii).
9 The pertinent Administrative Rules have been
periodically amended. When the superior court appointed SSCRA
counsel for Poston, Administrative Rule 12(d)(2)(B)(vii) dealt
with such appointments. That rule has since been amended and
renumbered as Administrative Rule 12(e)(2) (1994). It presently
(e) Other Appointments at Public Expense.
. . . .
(2) Soldiers & Sailors Civil Relief
Act. When the opposing party is financially
unable to pay for such representation, the
court shall appoint a member of the Alaska
Bar Association to represent an absent
service person pursuant to the . . . [SSCRA].
Prior approval of the administrative director
is not required.
10 Administrative Rule 12(d)(2)(B) listed various types of
cases in which counsel would be appointed. It distinguished
between six listed types of cases, and "all other cases." See
former Alaska R. Admin. P. 12(d)(2)(B) ("In all other cases, the
court shall inform the administrative director of the specific
reasons why an appointment is required prior to making the
appointment."). In the six listed types of cases (including
those governed by the SSCRA when the opposing party is indigent),
the court could appoint counsel without the ACS administrative
director's prior approval, no doubt because appointment was
mandatory in such cases and prior approval would have been
pointless. In "all other cases," the administrative director's
prior approval was necessary because appointment was implicitly
optional. The reason for that approval seems obvious: the ACS
was expected to pay the resulting expense.
11 Those subparagraphs are now contained in Administrative
Rule 12(e)(4),(5) (1994).
12 Former Administrative Rule 13(c) (1985) provided:
Claims for compensation shall be submitted,
on forms provided by the court, within thirty
days following the disposition of the case.
Claims shall be submitted for approval to the
judge assigned to hear the case and shall be
subject to final approval by the