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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In the Matter of Alaska Network on Domestic Violence and Sexual Assault (12/2/2011) sp-6620
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
In the Matter of )
ALASKA NETWORK ON ) Supreme Court No. S-13685
DOMESTIC VIOLENCE AND )
SEXUAL ASSAULT. ) Superior Court No. 1JU-09-00781 CI
)
O P I N I O N
No. 6620 - December 2, 2011
Petition for Review from the Superior Court of the State of
Alaska, First Judicial District, Juneau, Philip M. Pallenberg,
Judge.
Appearances: Beth Lewis Trimmer, Assistant Public
Advocate, and Rachel Levitt, Public Advocate, Anchorage,
for Petitioner. Christine McLeod Pate, Supervising Attorney,
ANDVSA Legal Advocacy Project, Sitka, for Respondent.
James J. Davis, Jr., Alaska Legal Services Corporation,
Anchorage, for Amicus Curiae Alaska Legal Services
Corporation.
Before: Carpeneti, Chief Justice, Fabe, Winfree, Christen,
and Stowers, Justices.
CHRISTEN, Justice.
STOWERS, Justice, dissenting.
I. INTRODUCTION
We granted the Office of Public Advocacy's petition for review on the
limited question whether the Alaska Network on Domestic Violence and Sexual Assault
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(ANDVSA) qualifies as a "public agency" within the meaning of Flores v. Flores and
AS 44.21.410(a)(4), such that the Office of Public Advocacy is required to provide
representation to an indigent party in a child custody dispute in which the other party is
represented by ANDVSA. Because we maintain our holding from Flores that it would
be fundamentally unfair, in the specific context of child custody disputes, to allow public
funding to support one party but not that party's indigent opponent, we hold that
ANDVSA does qualify as a public agency for purposes of AS 44.21.410(a)(4).
II. FACTS AND PROCEEDINGS
This case grew out of a child custody dispute in the Juneau Superior Court.
The mother was represented by the Alaska Network on Domestic Violence and Sexual
Assault (ANDVSA), a nonprofit corporation. The father was indigent, and the superior
court determined, sua sponte, that it was obligated under AS 44.21.410(a)(4) to appoint
counsel for him through the Office of Public Advocacy (OPA). After the court
appointed counsel, OPA moved to intervene, withdraw from representation, and convert
the representation issue to a declaratory judgment action. OPA argued that its
appointment was improper under Flores v. Flores1 and AS 44.21.410(a)(4) because
ANDVSA is not a "public agency" for purposes of the requirement that OPA provide
legal representation to indigent parties in child custody cases where the opposing party
is represented by a public agency. OPA contended that ANDVSA is not a "public
agency" because, among other things, it is funded through discretionary grants rather
than state or federal budget designations, it is not a creature of the Alaska Legislature or
United States Congress, and its Board of Directors is not appointed by any member of
the state or federal executive branch. ANDVSA opposed OPA's motion to withdraw.
1 598 P.2d 893 (Alaska 1979) (requiring that party to litigation be provided
with appointed counsel when opposing party is represented by public agency).
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At a hearing on October 26, 2009, the superior court expressed doubts that
it could "make any distinction at all for the purpose of applying the Flores holding
between [Alaska Legal Services Corporation, which was the "public agency" in Flores]
and [ANDVSA]" given that "they are both private nonprofits, largely publicly funded,
subject to a number of strings and government entanglements by virtue of their public
funding, [and] subject to a number of state and federal laws." The court also observed
that "the Flores holding doesn't give a lot of explanation as to why [the Alaska Supreme
Court] concluded that [Alaska Legal Services Corporation] is a public agency." Two
days later, the superior court entered an order in which it: (1) granted OPA's motion to
intervene for the purpose of filing a motion to withdraw as counsel for the father;
(2) denied OPA's motion to withdraw as counsel; and (3) denied OPA's motion to
convert the action to a declaratory judgment action.
OPA filed an original application with this court under Appellate Rule 404.2
We ordered that the original application be converted into a petition for review to be
considered under Appellate Rule 403, and granted the petition on the limited question
whether ANDVSA qualifies as a "public agency" within the meaning of Flores v. Flores
and AS 44.21.410(a)(4). We also ordered that OPA continue to represent the father in
the underlying child custody dispute. In the interim between the filing of the original
application and our order, the parents reached a custody agreement without the need for
trial.
2 ANDVSA filed a response to OPA's original application in which it made
procedural objections but acknowledged that "[t]he question of whether ANDVSA is a
public agency should be addressed . . . since the issue keeps recurring."
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III. STANDARD OF REVIEW
The question whether ANDVSA qualifies as a "public agency" is a question
of law, which we review de novo.3
IV. DISCUSSION
A. Overview Of Flores v. Flores And AS 44.21.410(a)(4)
Flores v. Flores was a divorce proceeding in which custody of the
divorcing couple's child was the only contested issue.4 Both parties were indigent, but
the father obtained the representation of the Alaska Legal Services Corporation (ALSC).5
The mother asked that the Public Defender Agency be appointed to represent her in the
6
divorce proceeding, but the trial court ruled that counsel would not be appointed for the
mother due to lack of agency funding. The court ordered that the case proceed with the
mother unrepresented.7
On appeal, we held that, "[t]he interest at stake in this case is one of the
most basic of all civil liberties, the right to direct the upbringing of one's child."8 Given
the nature of that right, we concluded that the "decided and frequently decisive
disadvantage" to a parent not represented by counsel is "constitutionally impermissible
3 See, e.g., Jacob v. State, Dep't of Health & Soc. Servs ., 177 P.3d 1181,
1184 (Alaska 2008) (citing Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979)) ("We
apply our independent judgment to questions of law, adopting 'the rule of law most
persuasive in light of precedent, reason, and policy.' ").
4 598 P.2d at 894.
5 Id.
6 Id.
7 Id.
8 Id. at 895.
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where the other parent has an attorney supplied by a public agency."9 We emphasized
that the constitutional right to counsel in custody cases was "limited to cases . . . where
an indigent party's opponent is represented by counsel provided by apublic agency. "10
We went on to hold that, because it had been stipulated that ALSC could not represent
both parties in a divorce11 and the Public Defender Agency's responsibility did not
extend to such cases, "counsel should be appointed from the private bar," with
compensation provided under Alaska Administrative Rule 15.1.12
Alaska Statute 44.21.410(a)(4) was enacted in 1984 as part of the law
establishing the Office of Public Advocacy. The statute provides in part: "The office of
public advocacy shall . . . provide legal representation . . . to indigent parties in cases
involving child custody in which the opposing party is represented by counsel provided
by a public agency." This language appears to have been drawn directly from Flores.13
Because neither party argues that the limited legislative history of AS 44.21.410(a)(4)
provides an independent basis for interpreting the statute, we base our holding entirely
on Flores.
9 Id. at 896.
10 Id. at 896 n.12 (emphasis added).
11 Id. at 894.
12 Id. at 897.
13 See Office of Pub.Advocacy v. Super. Ct., Second Jud. Dist ., 779 P.2d 809,
810 (Alaska App. 1989) ("OPA has demonstrated . . . that the language of [AS
44.21.410(a)(4)] was derived from Flores.").
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B. Under Flores, ANDVSA Is A Public Agency.
1. Flores defined "public agency" largely by reference to an
organization's public funding sources.
In holding that there was a right to counsel in Flores, we noted that,
although the custody proceedings below had been initiated by a "private individual,"14
that individual "was represented by counsel provided by a public agency" and "[f]airness
alone dictates that the petitioner should be entitled to a similar advantage."15 Later in the
opinion, we reiterated that a parent in a custody case "who is without the aid of counsel
. . . will be at a decided and frequently decisive disadvantage" and "[t]his disadvantage
is constitutionally impermissible where the other parent has an attorney supplied by a
public agency."16
This emphasis on fairness and equal advantage indicates that the right to
counsel where the opposing party is represented by a "public agency" arises, at least in
part, from the government's otherwise one-sided support for the party with an attorney
supplied by a public agency. Such support need not be provided exclusively through
funding or the direct provision of government resources; but fairness considerations
undoubtedly do arise where one party benefits from the government's funding of a
"public agency." As ANDVSA puts it, this court was concerned in Flores with "the
fundamental imbalance of power that occurs when one side has an attorney being paid
in part by public funding and the other side is indigent and is without any counsel."
14 This was in contrast to prior cases - cited in Flores - in which custody-
related proceedings prosecuted by the State were found to entitle an indigent defendant
to court-appointed counsel. See, e.g., Cleaver v. Wilcox, 599 F.2d 940 (9th Cir. 1974);
Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977).
15 Flores, 598 P.2d at 895.
16 Id. at 896.
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The notion that government funding sources are among the characteristics
required for an organization to be classified as a "public agency" is underscored by the
remedy we provided in Flores: after finding that ALSC and the Public Defender Agency
could not provide representation under the circumstances of the case, we concluded that
counsel should be appointed from the private bar, with attorney compensation provided
by the State pursuant to Administrative Rule 15.1.17 In other words, the solution to the
potential unfairness of public agency representation for one party was to pay for
representation of the other party through public funds, thus equalizing the public
financial support on both sides of the dispute.18
In its brief, OPA provides an overview of how courts in other jurisdictions
have defined "public agency," both pre-1980 (i.e., "during the Flores period") and post-
1980. OPA explains that this history is "set forth to give this Court a broad range of
sources from which to review whether or not ANDVSA meets any 'public agency'
definition." We find this approach overbroad. The question before us is not whether
ANDVSA meets any public agency definition, but whether ANDVSA is a public agency
under Flores and the related statute. Definitions of "public agency" used in other
17 Id. at 897.
18 Commentators have placed similar emphasis on ALSC's funding sources.
See, e.g., Clare Pastore, A Civil Right to Counsel: Closer to Reality? , 42 LOY. L.A. L.
REV . 1065, 1070-71 (2009) (describing Flores as "holding that an indigent in a custody
dispute is entitled to counsel when facing an opponent with a publicly funded lawyer")
(emphasis added). Our own characterization ofFlores in an unpublished decision noted,
"Flores involved a civil child custody proceeding in which one of the parties was
represented by [ALSC], essentially a government-funded entity." Hamilton v. Hamilton,
Mem. Op. & J. No. 5331, 1994 WL 16459407, at *2 (Alaska, March 9, 1994)
(contrasting the facts of Flores with those of Hamilton, in which the party requesting
court-appointed counsel did not allege any government involvement in the opposing
party's representation).
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contexts and jurisdictions are useful only to the extent that they represent the background
that the Flores court may have had in mind when it chose to use the term. But, given that
the Flores court did not cite to any other jurisdictions or definitions, there is no
indication of an intention to draw on prior interpretations of "public agency"; and it is
unlikely that the court considered criteria for public agencies that only appeared in cases
that came after Flores.
Moreover, where definitions from other jurisdictions are in direct conflict
with the Flores holding that ALSC was a public agency, those definitions are clearly
irrelevant to the question on appeal. It is reasonable to assume, at a minimum, that the
Flores court was aware of the characteristics of ALSC specifically identified by Justice
Connor in his partial dissent, where he noted that "the Alaska Legal Services Corporation
is a private corporation and not an agency of the state or federal government."19 The
court presumably considered these aspects of ALSC's organizational structure and status,
but nonetheless determined that ALSC was a public agency.
Flores thus suggests that the characteristics identified by Justice Connor -
namely, being a private non-profit corporation with no connection to a formal
government agency - do not preclude an organization from designation as a public
agency. Several of the "public agency" definitions cited by OPA require that an
organization be a government agency or government-created agency in order to qualify
as a "public agency." To now adopt those definitions would, as ANDVSA argues,
effectively overrule the approach we took in Flores. We decline to take that step.20
19 Flores, 598 P.2d at 900 n.8 (Connor, J., dissenting in part, concurring in
part).
20 OPA claims that it is not proposing to overrule the core premise of Flores
"that a due process right to counsel for an indigent parent [exists] in a child custody
(continued...)
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We conclude that the use of the term "public agency" in Flores must be
understood as referring primarily to the nature of an organization's funding sources, and
not to an organization's status as a government agency.
2. Based on its funding sources and similarity to ALSC, ANDVSA
should be considered a public agency.
As of 1979, ALSC received approximately 78 percent of its funding from
the national Legal Services Corporation (LSC), which was created by Congress as a
private nonprofit corporation to distribute federal funds to local grantee legal assistance
organizations.21 ANDVSA's Legal Advocacy Project (the legal services arm of the
organization) currently receives over 99 percent of its funding from the Department of
Justice's Office on Violence Against Women (OVW), a federal AmeriCorps grant, and
the State.22 OPA argues that ANDVSA's funding structure is distinguishable from that
of ALSC because LSC, a federally-created agency, provided (and continues to provide)
direct funding to ALSC, while ANDVSA receives its state and federal government
funding through discretionary grants rather than as budget items. In addition, OPA
20(...continued)
proceeding." But it also contends that "the Flores Court did not provide an analysis for
its conclusion that the 1978-ALSC was a 'public agency' and . . . the case law and
definitions in existence at the time of the Flores decision do not, without more
information, support that conclusion. The review [of case law and definitions] further
supports the concerns raised by Justice Connor about labeling ALSC a 'public agency'
. . . ." To the extent that OPA is arguing that the holding that ALSC was a public agency
(arguably as much a part of the Flores decision as the finding of a right to counsel) was
incorrect, OPA seems to call for at least a partial overruling of Flores.
21 Overall federal funding comprised 96 percent of ALSC's total 1979 funding
of approximately $1,763,286. An additional three percent came from state sources and
one percent from tribal sources.
22 The record does not appear to include information regarding the breakdown
of ANDVSA's total budget.
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distinguishes the organizations' funding sources, noting that although LSC - which it
describes as "ALSC's somewhat 'parent' corporation" - has a board appointed by the
President and confirmed by the Senate, ANDVSA has no equivalent "parent"
organization.
We do not find these distinctions to be meaningful. OPA provides no
explanation for why funding received from the government through discretionary grants
is less significant for purposes of designating a "public agency" than funding received
through the normal state or federal budget process. More importantly, it is not clear that
ALSC receives or ever did receive guaranteed budget funding rather than grants: though
the record does not include detailed budget information about the status of ALSC in
1978-79, its 2009 accounting records label the majority of its funding from LSC as a
"Basic Field Grant," and designate other government funding as, for example, "Family
Caregiver Grants" and "Domestic Violence Grants"; and ALSC's 1978-79 accounting
statements include a broad category of "grants and contracts" from LSC and a number
of other sources. OPA implies that these contributions are non-discretionary or
otherwise different from the grants that fund ANDVSA. But as ALSC explains in its
amicus brief:
[S]ometimes a "grant" is issued to ALSC in lieu of a
budgetary allocation and sometimes this is done because of
budgetary and/or political concerns . . . . [C]ontrary to OPA's
intimation, the application for funds from LSC is a
competitive one and other nonprofit law firms could
[compete] against ALSC . . . for those funds.
Similarly, OPA's description of LSC as ALSC's "parent" corporation is
called into question by the affidavit of ALSC's executive director Andy Harrington, who
stated that "[a] review of the regulations reflects that LSC does not refer to the individual
programs as LSC entities or LSC branch offices, nor does it refer to itself as the parent
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of the individual programs. . . . The most common term the regulations use to refer to
the individual programs is 'recipients' . . . ." The LSC-ALSC relationship does not seem
to extend far beyond funding; as Harrington's affidavit makes clear, LSC places
restrictions on how its funding can be used, but it does not create individual legal
services programs, hire or fire those programs' directors, or appoint board members.
Indeed, ANDVSA draws a compelling parallel between ALSC's relationship with LSC
and its own relationship with the OVW, a federal agency that supplies most of
ANDVSA's funding. Like LSC, OVW requires that ANDVSA comply with federal
regulations and imposes other special conditions - including regular progress reports
that are made available to the public - for ANDVSA to maintain its funding eligibility.
We conclude that the grounds OPA proposes for distinguishing between
ALSC's and ANDVSA's funding structures and sources are not persuasive.23 Indeed,
based purely on the extent of government funding, ANDVSA might be considered to
have more in common with the 1978-79 ALSC than the current ALSC does. ALSC
received the majority of its funding - about 78 percent - from LSC in 1979, compared
to 47 percent in 2009; ANDVSA's Legal Advocacy Project currently receives over 99
percent of its funding from federal and state government sources. We do not intend to
establish a threshold for the proportion of government funding an organization must
receive to qualify as a public agency; however, given that it is funded almost entirely by
23 OPA argues, alternatively, that even if the grants received by ANDVSA
were considered government funding for public agency purposes, "the amount of money
an entity receives from government is not solely determinative of whether the entity is
the functional equivalent of a public agency." It derives this principle from a United
States Supreme Court case, United States v. Orleans, 425 U.S. 807 (1976). But like
several of the cases OPA cites, Orleans turned on a context-specific statutory definition
of "federal agency" - the phrase "public agency" was not actually used in the statute
or the decision - within the Federal Tort Claims Act, a very different context than the
right to counsel that is at issue here. Id. at 814.
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government sources, ANDVSA qualifies as a public agency based on its funding. We
also emphasize that this holding extends only to ANDVSA and does not reach the
question whether any other organization is a public agency for purposes of
AS 44.21.410(a)(4).
3. ANDVSA is not meaningfully distinguishable from ALSC on
any other grounds.
From its inception in 1966, ALSC has been governed by a board of fifteen
directors; nine are attorneys selected by the Alaska Bar Association and six are non-
attorneys nominated by other organizations specified in ALSC's bylaws. LSC has no
power over the director staffing or board membership of its grantees, although the
funding it provides is subject to restrictions on use. In addition to the funding
distinctions discussed above, OPA argues that ANDVSA differs from ALSC because its
board of directors includes appointees from the Alaska Bar Association, "an
instrumentality of the State of Alaska," whereas ANDVSA's board consists of all
members of the ANDVSA corporation and is not subject to similar government
"direction or control."
ANDVSA responds that the organizational differences cited by OPA are
minor and unrelated to whether ANDVSA is a public agency. We agree. Although OPA
emphasizes the government "control and direction" exercised on ALSC's board, board
composition for both ALSC and ANDVSA is determined by each organization's self-
imposed bylaws.24 The somewhat attenuated "government" presence in the form of Bar
Association appointees on ALSC's board is not mandated by the State; the fact that
ANDVSA could presumably choose to adopt a similar composition by amending its
24 See Alaska Legal Services Corporation Bylaws art. IV, available at
http://www.alsc-law.org/public-corp/bylaws/Bylaws_May_3_2008.pdf.
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bylaws suggests that this is not a defining characteristic of the organization sufficient to
place it in a different category from ALSC.
V. CONCLUSION
We AFFIRM the superior court's holding that ANDVSA is a public agency
under Flores for purposes of AS 44.21.410(a)(4).
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----------------------- Page 14-----------------------
STOWERS, Justice, dissenting.
1
I agree with Justice Connor's dissenting opinion in Flores v. Flores :
(1) the Alaska Legal Services Corporation is a private non-profit corporation and not an
agency of the state or federal government; (2) therefore, a "public agency" in the sense
of being an agency of the government did not provide Mr. Flores with counsel; and (3)
there is no authoritative precedent, state or federal, to firmly support an extension of due
process rights to an indigent parent proceeding pro se in a custody case where the other
parent has counsel provided by the Alaska Legal Services Corporation (ALSC). Of
course, Flores is precedent with respect to custody cases where one parent is represented
by ALSC, and I am bound to follow it.
But given the complete lack of analysis or explanation of how and why the
Flores court determined that ALSC is a "public agency," and my sense that the Flores
court's use of the phrase "public agency" was a justification unconsidered and derived
from whole cloth, I am loath to join in the ANDVSA opinion and expand Flores to
include ANDVSA merely because ANDVSA shares certain organizational and funding
source similarities with ALSC. I don't think stare decisis compels us to extend one
conclusory opinion resting on questionable premises to another case involving a different
private, non-profit corporation. I don't see that the due process clause of the Alaska
Constitution requires us to do so. If as a matter of policy Flores should be extended
beyond its facts, that is the legislature's prerogative.
One of the arguments in Flores was that the Public Defender Agency
should be required to represent such an indigent parent. (The Office of Public Advocacy
had not yet been created at the time Flores was decided.) The court rejected that
1 598 P.2d 893, 897-900 and 900 n.8 (Alaska 1979) (Connor, Justice,
dissenting in part).
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argument, but suggested that ALSC probably could provide both parties with legal
representation if appropriate regulations were developed such that "two attorneys
employed by ALSC could represent conflicting positions in litigation, each having
undivided loyalty to his client and fully able to exercise that independent professional
judgment which is required by the Code of Professional Responsibility."2 The court
"encouraged such an effort."3 But without such regulations in place, and having rejected
the argument that the Public Defender Agency was required to provide counsel, the court
determined in Flores that counsel for the indigent parent should be appointed from the
private bar.4
I agree with the court that it appears likely that the legislature considered
the decision in Flores when it enacted AS 44.21.410(a)(4) in 1984 as part of the law
establishing the Office of Public Advocacy. Alaska Statute 44.21.410(a)(4) provides in
part that "[t]he office of public advocacy shall . . . provide legal representation . . . to
indigent parties in cases involving child custody in which the opposing party is
represented by counsel provided by a public agency."5
2 Id. at 897.
3 Id. at 897 n.14.
4 Id. at 897.
5 This language mirrors the court's cautionary note in Flores:
"We emphasize that our holding in this opinion is limited to cases involving child
custody where an indigent party's opponent is represented by counsel provided by a
public agency." Id. at 896 n.12. It is noteworthy that this reference to a "public agency"
is only the second instance where that term is used in the majority's opinion. The first
instance is the conclusory and unsupported finding : "Although a private individual
initiated the proceeding below, he was represented by counsel provided by a public
agency." Id. at 895. The court made this finding with no analysis or explanation.
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I therefore agree with the Office of Public Advocacy that ANDVSA is not
a public agency and that its appointment was improper under Flores and
AS 44.21.410(a)(4). I respectfully dissent from today's opinion that decides to the
contrary.
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