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Bustamante v. Alaska Workers' Compensation Board (11/29/2002) sp-5648
Bustamante v. Alaska Workers' Compensation Board (11/29/2002) sp-5648
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
email corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
JOHNNIE BUSTAMANTE, )
) Supreme Court No. S-10003
Appellant, )
) Superior Court No.
v. ) 3AN-00-3661 CI
)
ALASKA WORKERS ) O P I N I O N
COMPENSATION BOARD, SPACE )
MARK, INC., AMERICAN HOME ) [No. 5648 - November 29,
2002]
ASSURANCE, OUNALASHKA )
CORPORATION, and RELIANCE )
INSURANCE CO., )
)
Appellees. )
________________________________)
Appeal from the Superior Court of the State
of Alaska, Third Judicial District,
Anchorage, Elaine M. Andrews, and Kodiak,
Donald D. Hopwood, Judges.
Appearances: Johnnie Bustamante, pro se,
Anchorage. Theresa Hennemann and Rebecca J.
Hiatt, Holmes Weddle & Barcott, PC,
Anchorage, for Appellees Ounalashka
Corporation and Reliance Insurance Co. Allan
E. Tesche, Russell, Tesche, Wagg, Cooper &
Gabbert, Anchorage, for Appellees Space Mark
and American Home Assurance.
Before: Fabe, Chief Justice, Matthews,
Eastaugh, Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
I. INTRODUCTION
I. Johnnie Bustamantes workers compensation administrative
appeal was dismissed in the superior court due to his failure to
pay for the preparation of a transcript of the Workers
Compensation Board proceedings. Because the superior court had
the power to waive the transcript requirement, we remand for the
superior court to decide whether to waive the requirement in this
case.
II. FACTS AND PROCEEDINGS
Johnnie Bustamante worked for both Space Mark,
Inc. and Ounalashka Corporation in 1997. Bustamante claimed an
injury from the overuse of his hands while working on computers
at Space Mark and filed a claim with the Alaska Workers
Compensation Board (the board). Both employers controverted all
benefits. The board found that Bustamante did not suffer a
compensable injury in the course and scope of his employment with
either employer. Bustamantes claims for benefits were denied and
dismissed.
Bustamante alleged six errors in his appeal to the
superior court. At the time of filing his appeal, Bustamante
also filed a request for court-appointed counsel, an extension of
time to prepare his appeal, and an exemption from payment of
fees. Superior Court Judge Elaine M. Andrews granted Bustamante
an exemption from the payment of fees specified in Administrative
Rule 9(f)(1). However, Judge Andrews denied Bustamantes request
for counsel, stating that there is no provision to appoint
counsel in these cases.
Bustamante was informed several times that, to prepare
the record for appeal, he would need to arrange and pay for the
preparation of a transcript of the boards proceedings. In
response, Bustamante filed a request for a waiver of all costs
and fees, stating that he was a disabled student relying on
charity to maintain himself. Judge Andrews issued an order
stating that all costs and fees that could be waived had already
been waived.
The board, having filed a notice of non-participation
in the appeal, filed a motion requesting more time to prepare the
record on appeal, citing Bustamantes failure to prepare the
transcripts. In response to the second notice sent to him by the
board regarding the transcript, Bustamante replied:
I agree that ordinarily I would be
responsible to provide transcripts to the
superior court under Appellate Rule 604(b).
However, since the Alaska Workers[]
Compensation Board (AWCB) doubts my
competency and [I] have not been provided
with appropriate legal coun[sel] to represent
me, I cannot comply with your request.
Since AWCB doubts my current mental
stability, I simply cannot enter into any
agreement to authorize production of the
requested transcripts.
Recommend AWCB forward requested transcripts
to the superior court as soon as possible.
In addition, please be advised that I am a
disabled student currently attending Alaska
Pacific University and have no financial
resources to produce the requested
transcripts.
Space Mark filed a motion to dismiss Bustamantes appeal
with prejudice on the grounds that Bustamante had not paid for or
accepted responsibility for the payment of preparation of a
transcript. Ounalashka filed a nonopposition to Space Marks
motion to dismiss. Superior Court Judge Donald D. Hopwood
dismissed Bustamantes case without prejudice. Bustamante
appeals.
III. STANDARD OF REVIEW
We exercise our independent judgment when interpreting
the civil rules,1 adopt[ing] the rule of law that is most
persuasive in light of precedent, reason, and policy.2 The
decision to appoint counsel for a civil litigant is a procedural
decision, which we review for an abuse of discretion.3 A court
abuses its discretion when we are left with a definite and firm
conviction, after reviewing the whole record, that the trial
court erred in its ruling.4
IV. DISCUSSION
A. The Superior Court Had the Discretion To Allow Deviation
from the Requirements of Appellate Rule 604(b).
Bustamante argues that the superior court erred in
dismissing his case without reviewing the entire record. Space
Mark moved for dismissal on the grounds that Bustamante had not
paid for or accepted responsibility for the payment of
preparation of a transcript of Board proceeding as required by
Appellate Rule 604(b).
Appellate Rule 604(b) governs the record on
administrative appeals.5 The preparation of the transcript is
governed by Appellate Rule 604(b)(1)(B)(iv), imposing the costs
of preparing a transcript on the appellant absent an agreement to
the contrary or an order of the court and allowing the agency to
require advance payment of the estimated costs.
We have previously expressed our support for the
principle that financial hardship should not preclude access to
the courts.6 The text of Appellate Rule 604(b)(1)(B)(iv)
supports this principle: The court may order the parties to
deviate from the default position that the appellant pays for the
transcript.7 The superior courts order denying Bustamantes
request for a waiver of costs indicates that the court was not
aware of this power, as it stated that [a]ll costs and fees that
can be waived have been waived.
We have previously held that deviation from Appellate
Rule 604(b)(1)(B)(iv) is acceptable to ensure access to the
courts. In Baker v. University of Alaska,8 we were faced with
the question whether Appellate Rule 604(b)(1)(B)(iv) allows for
accommodation when a party requests relief from the prepayment
requirement.9 While we specifically stated that the case did not
require us to determine whether Baker should be absolved of his
duty to pay for preparing the record and transcript, just whether
he must pay in advance,10 we held that Appellate Rule
604(b)(1)(B)(iv) allows the superior court to deviate from the
ordinary procedure requiring prepayment upon a showing of good
cause, citing the principle that the size of a partys bank
account should not foreclose [that] partys opportunity to be
heard.11 While there was no agreement between the parties
pursuant to Appellate Rule 604(b)(1)(B)(iv) regarding costs of
transcript preparation, the court had the power to order
otherwise; this power included waiving the prepayment
requirement, requiring the appellant to narrow the designation of
needed transcripts, or even allowing designation of the use of
tapes (with log notes) if the testimony being reviewed was not so
lengthy as to cause an undue burden for the reviewing court. As
the courts statement indicates it was not aware of the options
available, it was an abuse of discretion simply to dismiss
Bustamantes case.
B. Bustamante Was Not Entitled to Appointed Counsel for His
Appeal.
Bustamante argues that the trial court should have
appointed counsel to assist him in his appeal. To hire private
counsel, Bustamante states, one must be competent. Citing to the
boards statement questioning his competency, Bustamante
apparently asserts that he was entitled to have counsel appointed
for him.12
In its decision, the board discussed Bustamantes
psychiatric history, including his diagnosis of a conversion
disorder. The board relied on Bustamantes previous psychiatric
history in coming to its conclusion that this history was the
cause of his current conversion disorder, not his work at Space
Mark. The board did state that based on the employees
psychiatric diagnoses, he did not knowingly make false or
misleading statement[s]. The board also question[ed] whether his
mental condition may affect his recollection of his medical or
pharmacological history, or his ability to testify truthfully.
The board, however, did not indicate that Bustamante was not
competent to enter into a contract for legal representation.
Further, we are unpersuaded that it did anything to prevent
Bustamante from hiring counsel.
As it does not appear that the boards decision
prevented Bustamante from hiring counsel, we next consider
whether the superior court erred in refusing to appoint counsel
for Bustamante. Relying on the principles justifying appointment
of counsel in criminal cases, we have allowed appointment of
counsel in certain civil cases or quasi-civil proceedings.13
While an indigent person has no right to appointed counsel in
most civil cases, we have allowed appointment in several types of
cases,14 including termination of parental rights,15 child
custody,16 paternity suits,17 and civil contempt proceedings.18
Bustamantes claim does not fall into one of the already
recognized exceptions for appointment of counsel in a civil
proceeding. We must therefore determine whether Bustamantes due
process rights were violated by the superior courts failure to
appoint counsel. We have adopted19 the balancing test from
Mathews v. Eldridge20 to determine what process is due:
Identification of the specific dictates of
due process generally involves consideration
of three distinct factors: the private
interest affected by the official action; the
risk of an erroneous deprivation of such
interest through the procedures used and the
probable value, if any, of additional or
substitute procedural safeguards; and
finally, the governments interest, including
the fiscal and administrative burdens that
additional or substitute procedural
requirements would entail.[21]
The private interest of a litigant to have counsel in a
workers compensation case is not nearly as strong as the interest
involved in cases where the litigants are already afforded
appointed counsel by this court. While an unlitigated claim is a
species of property,22 it is an interest that is much less
important than the exercise of parental rights, the custody of
children, or the deprivation of liberty.
Without counsel, a litigants chance of success on a
workers compensation claim may be decreased. However, it is not
clear that failing to appoint counsel in a workers compensation
case results in an erroneous deprivation of a litigants rights,
especially considering that the workers compensation board has
extensive experience with pro se litigants and considering the
statutory framework for the recovery of attorneys fees for
successful workers compensation claimants.23
Finally, the state has a very strong interest in not
appointing counsel for workers compensation litigants. Requiring
the state to pay for counsel for workers compensation claims
would be an extraordinary fiscal burden.
As the board did not prevent Bustamante from hiring
private counsel with its decision and there is no legal basis for
appointment of counsel, the board did not err in refusing to
appoint counsel for Bustamante.
V. CONCLUSION
Because Bustamante had no right to the appointment of
counsel at public expense, we AFFIRM the superior courts denial
of his motion for appointment of counsel. Because the superior
court was apparently unaware that it had the discretion to waive
the requirement that Bustamante prepay for transcript preparation
costs, or to narrow the designation of needed transcripts, or to
order that the appeal be heard by listening to tapes instead of
by reading transcripts, we REVERSE the order of dismissal and
REMAND for the superior court to exercise its discretion
regarding preparation of a transcript.
_______________________________
1 Peter v. Progressive Corp., 986 P.2d 865, 867 (Alaska
1999).
2 Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
3 Balough v. Fairbanks N. Star Borough, 995 P.2d 245, 254
(Alaska 2000).
4 Peter Pan Seafoods, Inc. v. Stepanoff, 650 P.2d 375,
378-79 (Alaska 1982).
5 Alaska R. App. P. 604(b)(1) provides, in part:
(b) Appeals From Administrative
Agencies. (1) Record on Appeal. (A) The record
on appeal consists of the original papers and exhibits filed with
the administrative agency, and a typed transcript of the record
of proceedings before the agency. (B) Appellate
Rule 210 shall apply except that:
(i) Appellate Rule 210(b)(1)
and (2) shall not apply.
. . . .
(iv) In the absence of an
agreement between the parties or an order of
the court to the contrary, all reasonable
costs incurred in connection with preparing
the transcript and the courts copy of the
agency file shall be borne by the appellant.
The preparing agency may require advance
payment of the costs as reasonably estimated
by the agency.
6 Baker v. Univ. of Alaska, 22 P.3d 440, 442-43 (Alaska
2001).
7 Alaska R. App. P. 604(b)(1)(B)(iv).
8 22 P.3d 440 (Alaska 2001).
9 Id. at 442.
10 Id.
11 Id. at 443 (internal quotation marks and footnotes
omitted) (alteration in original).
12 It is unclear on what legal grounds Bustamante bases
this proposition. While this court has appointed counsel for
indigent civil litigants in certain cases, see, e.g., V.F. v.
State, 666 P.2d 42, 44-45 (Alaska 1983) (termination of parental
rights); Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979) (child
custody); Reynolds v. Kimmons, 569 P.2d 799, 803 (Alaska 1977)
(paternity); and Otton v. Zaborac, 525 P.2d 537, 538 (Alaska
1974) (civil contempt proceedings for nonpayment of child
support), the decision to do so has turned on the requirements of
due process, and not the mental state of the party for whom
appointed counsel is sought. See also infra at 8-10.
13 Reynolds, 569 P.2d at 801.
14 Langfeldt-Haaland v. Saupe Enters., 768 P.2d 1144, 1146-
47 (Alaska 1989).
15 V.F., 666 P.2d at 44-45.
16 Flores, 598 P.2d at 895.
17 Reynolds, 569 P.2d at 803.
18 Otton v. Zaborac, 525 P.2d 537, 538 (Alaska 1974).
19 In the Matter of K.L.J., 813 P.2d 276, 279 (Alaska
1991).
20 424 U.S. 319 (1976).
21 In the Matter of K.L.J., 813 P.2d at 279 (quoting Keyes
v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353 (Alaska 1988)).
22 Patrick v. Lynden Transp., Inc., 765 P.2d 1375, 1378
(Alaska 1988).
23 See AS 23.30.145.
