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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Dennis O. v. Stephanie O. (3/17/2017) sp-7161
Notice: This opinion is subject to correction before publication in the P ACIFIC REPORTER.
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
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corrections@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
DENNIS O., )
) Supreme Court No. S-15802
Appellant, )
) Superior Court No. 3PA-09-01278 CI
v. )
) O P I N I O N
STEPHANIE O., )
) No. 7161 - March 17, 2017
Appellee. )
)
Ap
peal from the Superior Court of the State of Alaska, Third
Judicial District, Palmer, Gregory Heath, Judge.
Appearances: Dennis O., pro se, Palmer, Appellant.
Stephanie O., pro se, Big Lake, Appellee. Nikole Nelson,
James J. Davis, Jr., Hollis Handler, and Sydney Tarzwell,
Anchorage, for Amicus Curiae Alaska Legal Services
Corporation. Christine M. Pate, Sitka, for Amicus Curiae
Alaska Network on Domestic Violence and Sexual Assault.
Gregory P. Razo, Anchorage, for Amicus Curiae Alaska
Native Justice Center. Mark W. Regan, Anchorage, for
Amicus Curiae The Disability Law Center of Alaska.
Thomas M. Daniel, Perkins Coie LLP, Anchorage,
Theodore A. Howard, Wiley Rein LLP, Washington, D.C.,
and Paulette Brown, American Bar Association, Chicago,
Illinois, for Amicus Curiae American Bar Association.
Brooke Berens, Assistant Public Advocate, Chad Holt,
DeputyDirector,andRichard Allen, Director, Anchorage,for
Amicus Curiae Office of Public Advocacy.
----------------------- Page 2-----------------------
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
WINFREE, Justice.
I. INTRODUCTION
A father requested court-appointed counsel in a child custody modification
proceeding after learning that the mother had hired a private attorney. The court denied
the request. The father - supported in part by several amici curiae - claims that the
denial violated his due process and equal protection rights under theAlaska Constitution.
We disagree: We decline to expand our prior decisions by mandating court-appointed
counsel for every indigent parent in a child custody proceeding when the opposing
parent is represented by private counsel, and we conclude that on the facts of this case
the father's constitutional rights were not violated by the denial of court-appointed
counsel.
II. FACTS AND PROCEEDINGS
Dennis and Stephanie O. divorced in 2011 and were awarded joint legal
custody of their four children.1 They shared physical custody of their three younger
children, and Stephanie was granted primary physical custody of their oldest daughter.
In January 2014 Stephanie moved to modify the original custody order,
seeking sole legal and primary physical custody of all four children. In an affidavit
supporting the motion Stephanie alleged that in 2013 Dennis had sexually assaulted her
and later trespassed in her home. Those allegations were the principal basis of
Stephanie's claim of a substantial change of circumstances warranting a custody
modification, and they also had been the basis of a long-term domestic violence
1
We use an initial in lieu of the parties' last name to protect the family's
privacy.
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protective order granted two months earlier. The superior court judge presiding over the
2
divorce proceeding referred the matter to a family court master.
Although Stephanie initiated the proceedings while self-represented, she
secured an attorney for the limited purpose of representing her during the custody
modification hearing before the master. In response Dennis requested that the master
3
appoint him counsel for the hearing, citing our decisions in Flores v. Flores, In re
4 and Reynolds v. Kimmons5 and quoting Alaska Administrative Rule 12(e).6 He
K.L.J.,
argued that those authorities supported appointing him counsel based on his indigence
and the risk of losing custody of his children, and he expressed specific concern about
the risk of self-incrimination due to Stephanie's criminal allegations against him.
At the hearing and in a separate written order the master denied Dennis's
motion for appointment of counsel. The master noted at the hearing that he was not
aware "of any authority that mandates that the [c]ourt appoints counsel for all indigent
parents in all custody cases." When Dennis later expressed frustration about that
decision during the hearing, the master responded:
2 See Alaska R. Civ. P. 53(b) (allowing referral of issues to special masters).
3
598 P.2d 893, 895-96 (Alaska 1979) (holding that due process requires
appointment of counsel to every indigent parent in custody case when state agency
represents opposing parent).
4 813 P.2d 276, 282 n.7 (Alaska 1991) (holding that due process requires
appointment of counsel to every indigent parent defending against parental rights
termination).
5 569 P.2d 799, 803 (Alaska 1977) (holding that due process requires
appointment of counsel to every indigent parent in paternity suit prosecuted by state).
6 Alaska Admin. R. 12(e)(1) ("If the court determines that counsel . . . is
required by law or rule, the court shall appoint an attorney . . . .").
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----------------------- Page 4-----------------------
[F]rankly, if I thought that the [L]egislature and the
Supreme Court had the intent and ability to provide legal
counsel for you right now, I would order it in a heartbeat. . . .
But there simply is not the authority for it.
. . . .
I think it's very clear that I'm not authorized to do that.
During the hearing Dennis cited cases and statutes supporting his various
legalpositions,and heimpeachedStephanie's credibility. Butthehearing involved some
complex legal issues, and the master observed that Dennis occasionally became
frustrated at not having the assistance of an attorney. The master accommodated Dennis
by structuring the proceedings to make them easier for him, frequently explaining legal
issues, and even requiring Stephanie's attorney to warn Dennis when he was in danger
of opening the door to cross examination about the criminal accusations.
In a November 2014 Report and Order the master determined there was a
7 The master
substantial change in circumstances warranting modification of custody.
found by a preponderance of the evidence that Dennis had sexually assaulted Stephanie
in August 2013, committed criminal trespass after hiding in Stephanie's garage and
refusing to leave in September 2013, and violated the domestic violence protective order
in September 2013. The master's sexual assault and trespass findings were based on
Stephanie's testimony about the incidents. Because Dennis separately had been
criminally convicted of violating the protective order, the master determined collateral
estoppel applied to that incident.
The master also found that "Dennis presented compelling, credible
testimony" regarding two instances of domestic violence Stephanie had committed in
7 See Alaska R. Civ. P. 53(d)(1) ("The master shall prepare a report upon the
matters submitted to the master by the order of reference and, if required to make
findings of fact and conclusions of law, the master shall set them forth in the report.").
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1993 and 2003. Because both parents had committed multiple incidents of domestic
violence, the master applied AS 25.24.150(i) and found Stephanie "far less likely to
8 That, in addition to the seriousness of the
continue to perpetrate domestic violence."
sexual assault, led the master to recommend awarding Stephanie sole legal and primary
physical custody of the children. Finally, the master recommended awarding Dennis
supervised visitation twice per week and unsupervised visitation upon completion of a
batterers' intervention program and a parenting education program,9 despite Dennis's
statements rejecting visitation absent some form of custody.
The superior court adopted the master's recommendations and awarded
Stephanie primary physical and sole legal custody of the children.10 Dennis appeals only
the denial of his motion to appoint counsel to represent him at the hearing. Both Dennis
and Stephanie represent themselves on appeal, and we have accepted three amicus briefs
from: (1) jointly Alaska Legal Services Corporation, Alaska Native Justice Center,
Alaska Network on Domestic Violence and Sexual Assault, and The Disability Law
Center of Alaska (collectively Agency amici); (2) the Office of Public Advocacy (OPA);
and (3) the American Bar Association (ABA).
Dennis makes two arguments on appeal: (1) that the denial of appointed
counsel violated his due process rights under the Alaska Constitution and (2) that the
8 AS 25.24.150(i) provides that "[i]f the court finds that both parents have
a history of perpetrating domestic violence" the court may "award sole legal and physical
custody to the parent who is less likely to continue to perpetrate the violence and require
that the custodial parent complete a treatment program."
9 See AS 25.24.150(j) (permitting "only supervised visitation by [a] parent"
who has a history of domestic violence, "conditioned on that parent's . . . successfully
completing an intervention program for batterers, and a parenting education program").
10 Because the oldest daughter by then had turned 18, the modification
involved only the three younger children.
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statutory mandate to appoint counsel to an indigent parent if the other parent is
represented by a state agency but not by private counsel violates the Alaska
11 Agency amici and the ABA also argue that the
Constitution's equal protection clause.
Alaska Constitution's due process clause requires court-appointed counsel for every
indigent parent when the other parent in a custody case has hired private counsel.
III. STANDARD OF REVIEW
We review constitutional questions, including due process and equal
protection, de novo,12
and we "will adopt the rule of law that is most persuasive in light
13
of precedent, reason, and policy."
IV. DISCUSSION
We conclude that due process does not mandate court-appointed counsel
for all indigent parents in Dennis's situation and that neither due process nor equal
14
protection requires reversal of the decision not to appoint Dennis counsel.
11 We assume that Dennis is indigent for purposes of this appeal.
12
del Rosario v. Clare, 378 P.3d 380, 383 (Alaska 2016) (citing Grimmett v.
Univ. of Alaska , 303 P.3d 482, 487 (Alaska 2013)) (due process); Pub. Emps.' Ret. Sys.
v. Gallant, 153 P.3d 346, 349 (Alaska 2007) (citing Alaska Civil Liberties Union v. State ,
122 P.3d 781, 785 (Alaska 2005)) (equal protection). Although we have previously
stated that the decision to appoint counsel in a civil case is a procedural decision
reviewed for an abuse of discretion, the constitutional nature of these due process
decisions makes de novo review the appropriate standard. Cf. Richardson v.
Municipality of Anchorage, 360 P.3d 79, 84 (Alaska 2015); Barber v. Schmidt, 354 P.3d
158, 160 (Alaska 2015); Bustamante v. Alaska Workers' Comp. Bd., 59 P.3d 270, 272
(Alaska 2002); Midgett v. Cook Inlet Pre-Trial Facility, 53 P.3d 1105, 1109 (Alaska
2002).
13 Jerry B. v. Sally B., 377 P.3d 916, 924-25 (Alaska 2016) (quoting Garibay
v. State, Dep't of Admin., Div. of Motor Vehicles, 341 P.3d 446, 448 (Alaska 2014)).
14 Although the superior court adopted the master's custody
(continued...)
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A. Due Process Does Not Require Appointment Of Counsel.
"The crux of due process is [having the] opportunity to be heard and the
15 That right stems directly fromthe Alaska
right to adequately represent one's interests."
Constitution, which states that "[n]o person shall be deprived of life, liberty, or property,
without due process of law."16 "A valid constitutional challenge based on due process
requires 'state action and the deprivation of an individual interest of sufficient
importance to warrant constitutional protection.' "17
Due process under the Alaska Constitution is "flexible, and the concept
should be applied in a manner which is appropriate in the terms of the nature of the
14 (...continued)
recommendations, neither the master's report nor the superior court's final order
mentioned Dennis's request for appointed counsel or the master's denial of that request.
Neither party objected to the master's findings. See Alaska R. Civ. P. 53(d)(2) ("Within
10 days after being served with notice of the filing of the report any party may serve
written objections . . . ."). Because the issue has not been raised we express no opinion
whether the superior court should have addressed the master's denial of Dennis's motion
to appoint counsel. Cf. Alaska R. Civ. P. 53(b) ("[T]he master has and shall exercise the
power to regulate all proceedings in every hearing before the master and to do all acts
and take all measures necessary or proper for the efficient performance of the master's
duties . . . ."). Any error would be harmless in light of our de novo review of the
master's decision.
15 In re K.L.J., 813 P.2d 276, 279 (Alaska 1991) (quoting Matanuska Maid,
Inc. v. State, 620 P.2d 182, 192 (Alaska 1980)).
16 Alaska Const. art. I, § 7.
17 Ostrow v. Higgins, 722 P.2d 936, 942 (Alaska 1986) (quoting Nichols v.
Eckert, 504 P.2d 1359, 1362 (Alaska 1973)); see also In re K.L.J., 813 P.2d at 283
(holding minimal state involvement - where private adoption was "state mechanism,"
and where state issued new birth certificate, maintained records, and enforced adoption
decree - was sufficient to trigger due process where indigent, disabled father faced
termination of his parental rights).
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----------------------- Page 8-----------------------
18
proceeding." To determine what process is due, we have adopted the three-factor
Mathews balancing test: 19
[1] the private interest affected by the official action; [2] 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 . . . [3] the
government's interest, including the fiscal and administrative
burdens that additional or substitute procedural requirements
would entail.[20]
We have held that due process requires appointment of counsel to an
indigent parent if the proceeding could lead to a criminal charge or the deprivation of
liberty.21 We also have extended that due process right to three specific classes of
indigent parents.
First, in Flores v. Flores we held that indigent parents in private child
custody proceedings whose opponents were represented by a state agency were, as a
18 In re K.L.J. , 813 P.2d at 278 (quoting Otton v. Zaborac , 525 P.2d 537, 539
(Alaska 1974)).
19 Id. at 279 (citing Mathews v. Eldridge, 424 U.S. 319, 335 (1976)).
20 Id. (quoting Keyes v. Humana Hosp. Alaska, Inc., 750 P.2d 343, 353
(Alaska 1988)).
21 See Reynolds v. Kimmons, 569 P.2d 799, 801-02 (Alaska 1977) (holding
that due process required appointed counsel in paternity suit prosecuted by state, in part
because "an indirect outcome of this suit could be a criminal charge"); Otton, 525 P.2d
at 539 (holding that due process required appointed counsel in contempt proceeding for
nonsupport because "[t]he potential deprivation of liberty in nonsupport contempt
proceedings is as serious a matter as the restraint of liberty possible in criminal, juvenile,
and criminal contempt proceedings").
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----------------------- Page 9-----------------------
22
class, entitled to appointed counsel. That case involved a parent represented by Alaska
Legal Services Corporation and a parent living in California who was unable to travel
23 We held that the indigent parent's private interest, "the
to Alaska due to indigence.
24 Further, the risk of erroneous
right to direct the upbringing of one's child," was high.
deprivation of that parent's interest was grave due to the unfairness of having a state
agency representing the other parent.25 We noted that "[a]lthough the legal issues in a
given case may not be complex," custody determinations are difficult due to their
"emotional nature."26 We determined that due process demanded the appointment of
counsel for all parents in that situation, but the facts of that case were particularly
compelling.27 Unable to travel to Alaska, the indigent parent would have defaulted and
effectively lost all parental rights.28
Second, in V.F. v. State we determined that due process required
appointment of counsel for indigent parents, as a class, in Child in Need of Aid
22 598 P.2d 893, 895-96 (Alaska 1979).
23
Id. at 894 & n.4.
24
Id. at 895.
25 Id. at 895-96.
26
Id. at 896.
27 Id.
28
Id. at 895 n.8, 896.
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29
proceedings brought by the state to terminate parental rights. We noted that a parent's
private interest was even higher in a termination case than in a custody proceeding. 30
Finally, we extended that latter holding to nonconsensual private adoptions
31
-
- when a parent's parental rights are terminated to allow the adoption to proceed
32
in In re K.L.J . We stated that the private interest of the indigent parent, with
termination of parental rights at stake, was "of the highest magnitude."33 The state's
interests in the children and in "an accurate and just decision" outweighed its "legitimate
interest in avoiding the cost of appointed counsel and its consequent lengthening of
judicial procedures."34 The benefits of an attorney would have been significant in that
35
case. It involved "complex legal questions"; the superior court made an important legal
error; the indigent parent failed at effectively presenting evidence, cross examining
witnesses, and testifying; the indigent parent's physical disability made communication
with the court very difficult; and indigency prevented him from appearing in person.36
We recognized a right to counsel for all indigent parents "defending against the
29 666 P.2d 42, 45 (Alaska 1983).
30 Id.
31 See AS 25.23.130(a) ("A final decree of adoption . . . terminate[s] all legal
relationships between the adopted person and the natural parents . . . ."); AS 25.23.050
(permitting adoption in certain cases without parent's consent).
32 813 P.2d 276, 283-84 (Alaska 1991).
33 Id. at 279.
34 Id. at 280.
35 Id. at 280-81.
36 Id. at 281-82.
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termination of their parental rights," even though the facts of that case were "compelling
enough by themselves to indicate a violation" of due process. 37
1. Due process for parents as a class
With the foregoing cases in mind, we first examine the assertion by Agency
amici and the ABA that due process requires the appointment of counsel for every
indigent parent in a custody case when the opposing parent is represented by private
counsel.
The private interests of parents in these custody cases are weighty, but they
do not rise to the level considered in the parental rights termination cases. We observe
that "[t]he right to the care and custody of one's own child is a fundamental right
38
and that it "clearly falls within
recognized by both the federal and state constitutions"
39
the protections of the due process clause and should be accorded significant weight."
But custody hearings do not threaten termination of parental rights. We recognized in
V.F. that "a proceeding for the termination of parental rights affects a parent's right to
direct the upbringing of . . . [a] child even more than does a private child custody
40 And as we noted in In re K.L.J., the risk of termination creates an interest
proceeding."
37 Id. at 282 nn.6-7 (emphasis omitted).
38
J.M.R. v. S.T.R., 15 P.3d 253, 257 (Alaska 2001) (citing In re K.L.J., 813
P.2d at 279).
39 Richard B. v. State, Dep't of Health & Soc. Servs., Div. of Family & Youth
Servs., 71 P.3d 811, 831 (Alaska 2003); see also Flores v. Flores, 598 P.2d 893, 895
(Alaska 1979) (holding in custody case that "[t]he interest at stake . . . is one of the most
basic of all civil liberties, the right to direct the upbringing of one's child").
40 666 P.2d 42, 45 (Alaska 1983).
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41
"of the highest magnitude." Although custody is a significant private interest, it does
not reach that magnitude.
Similarly, the risk of erroneous deprivation of these parents' rights is less
significant than in those cases requiring appointed counsel. We readily acknowledge the
challenges of self-representation in custody cases; such cases are difficult and emotional.
We stated in Flores :
[T]he crucial determination of what will be best for the child
can be an exceedingly difficult one as it requires a delicate
process of balancing many complex and competing
considerations that are unique to every case. A parent who
is without the aid of counsel in marshalling and presenting
[favorable] arguments . . . will be at a decided and frequently
decisive disadvantage which becomes even more apparent
when one considers the emotional nature of child custody
disputes, and the fact that all of the principals are likely to be
distraught.[42]
Many parents involved in custody disputes surely have felt the same way at the close of
a difficult hearing.
We are not blind to the advantages that a parent represented by any counsel
- private or public - has over a self-represented parent. But that advantage does not
necessarily violate a self-represented parent's due process rights. In Flores we stated
that "[t]his disadvantage is constitutionally impermissible where the other parent has an
attorney supplied by a public agency."43 If one parent enjoys the benefit of
representation by a state agency, we held that "[f]airness alone dictates that the [other
41 813 P.2d at 279.
42 598 P.2d at 896.
43 Id.
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44
parent] should be entitled to a similar advantage." If one parent is represented by
private counsel, however, that advantage does not raise the same "constitutionally
45
impermissible" fairness concerns.
Procedural safeguards, including the Family Law Self-Help Center and
informal resolution programs, also reduce the risk of erroneous deprivation for these
parents. The court may appoint a custody investigator, a guardian ad litem, or an
46 And judges have experience providing procedural assistance to
attorney for a child.
self-represented parties. Because these cases do not involve the inherent unfairness of
a state agency representing one parent, and because of the ways that the judicial system
assists self-represented parents in custody cases, the probable value of court-appointed
counsel here is lower than in cases where we have mandated court-appointed counsel.
Finally, in any due process case involving families the government has
multiple important interests at stake. "First and foremost, the state has an interest in the
47 On one hand appointment of counsel can lead to more "accurate and just
children."
48 On the other hand, to the extent
results," and therefore better outcomes for children.
that appointment of counsel causes increased conflict between parents and the
"lengthening of judicial procedures," the state's interest in the children weighs against
appointment.49 Additionally "the state undoubtedly has a legitimate interest in avoiding
44 Id. at 895.
45 Id. at 896.
46 See AS 25.24.310; Alaska R. Civ. P. 90.6; Alaska R. Civ. P. 90.7.
47 In re K.L.J., 813 P.2d 276, 279 (Alaska 1991).
48 Id. at 280 (quoting Lassiter v. Dep't of Soc. Servs. , 452 U.S. 18, 28 (1981)).
49 Id.
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50
the cost of appointed counsel," and - based on OPA's experience as statutory Flores
51
counsel
- mandating appointment of counsel to this class of parents could potentially
cost several million dollars annually. Although the state's and parents' interests partially
coincide, the "fiscal and administrative burdens" here are significant enough that the
52
government interest weighs against appointing counsel to this class of parents.
On balance self-represented indigent parents facing opposing parents
represented by private counsel are not, as a class, deprived of due process rights solely
because they do not have counsel. The private interest at stake - custody of one's
children - supports appointment of counsel.53 But unlike termination cases the interest
here is not "of the highest magnitude."54 And although counsel could protect the
interests of indigent parents, the risk of erroneous deprivation does not categorically
55 Finally, the substantial potential cost to the state
reach an unconstitutional level.
outweighs the benefit of appointing counsel to all such parents.
50 Id.
51 See AS 44.21.410(a)(4) (requiring OPA to represent indigent parent in
custody case when opposing parent is represented by public agency).
52 Mathews v. Eldridge, 424 U.S. 319, 335 (1976) (citing Goldberg v. Kelly,
397 U.S. 254, 263-71 (1970)).
53 See Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979).
54 In re K.L.J., 813 P.2d at 279.
55 See Flores, 598 P.2d at 896 ("This disadvantage is constitutionally
impermissible where the other parent has an attorney supplied by a public agency.").
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2. Due Process for Dennis
Having determined that these parents do not, as a class, require court-
appointed counsel, we now apply the Mathews factors to Dennis's claim that he has an
individual due process right to counsel.
a. Private interest
In this case the custody modification hearing did not threaten to terminate
Dennis's parental rights. And unlike in Flores, where "the distance between California
and Alaska and the petitioner's indigency" meant that losing custody would "have the
56
same consequences" as termination,
Stephanie and Dennis reside in nearby
communities. Because this case involved only custody and would not have the effect of
depriving Dennis of his parental rights, his interest here is not "of the highest
magnitude."57
b. Risk of erroneous deprivation
To determine the risk of erroneous deprivation on an individual basis, we
58
"consider the likelihood that [the requested procedure] might alter the outcome." That
assessment "is not the same as determining whether any constitutional error was
harmless, but more fundamentally considers" the effect of the request for counsel on the
56 Id. at 895 n.8.
57 In re K.L.J., 813 P.2d at 279.
58 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 212 (Alaska
2000).
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59
parent's opportunity to present a case. We first determine the hypothetical value of
appointment of counsel, and then we review the record to confirm that determination. 60
Flores and In re K.L.J. illustrate the types of risks that implicate due
process concerns. In addition to the unfairness of a state agency representing the other
parent, in Flores we noted that "a denial of the right to counsel will necessarily be fatal
to the petitioner's cause, because she lacks the funds to come to Alaska and will therefore
lose the custody proceeding by default."61 Thus that parent's "right to be heard [would]
truly be meaningless" without appointed counsel.62 The risks in In re K.L.J. were
similarly grave because the father's indigency "prohibited him from appearing in court"
and his physical disability "affected his ability to communicate with the court" by
telephone.63
The risks to Dennis's rights were less grave. As a self-represented litigant
Dennis was unfamiliar with the rules of evidence and procedure, and like in many
64 Dennis was
custody cases, representing himself likely was difficult and emotional.
facing an opponent represented by counsel, who did not have those disadvantages.
59 Id. at 212-13.
60 See id.
61 598 P.2d at 896. We recognize that the specific facts of Flores and In re
K.L.J. have less precedential value because we determined in each case that an entire
class of indigent parents was entitled to appointed counsel. See In re K.L.J., 813 P.2d
at 282 n.6 ("Even if we were not to establish a bright line right to counsel, we would
conclude that the facts here are compelling enough by themselves to indicate a violation
of [the indigent parent's] procedural due process rights.").
62 Flores, 598 P.2d at 896.
63 813 P.2d at 282.
64 See Flores, 598 P.2d at 896.
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Dennis was also concerned before the hearing that without a lawyer he would be unable
to defend himself against Stephanie's criminal accusations and that those accusations
would lead to a criminal charge.
Those risks, however, did not rise to an unconstitutional level. The
assistance available to all self-represented parents was available to Dennis. The master
was required to advise Dennis of proper procedures and to hold him to a relatively
65 Because Stephanie hired private counsel, the hearing did not involve
lenient standard.
the inherent unfairness of state assistance to one parent.66 To the extent Dennis's concern
about self-incrimination stemmed fromhisFifthAmendment rights,thoseenjoy separate
procedural protections and are not relevant to the risk of deprivation of custody. And
even with criminal accusations looming, Dennis's risk of erroneous deprivation of his
parental rights did not approach the risk found in situations like Flores and In re K.L.J.,
where parents had virtually no way to defend themselves.67 Unlike the parents in those
cases Dennis had the opportunity to appear at the hearing, make his case, and testify if
he desired.
This conclusion - that the probable value of appointing counsel was not
sufficiently high - "is confirmed by our review of the record, and by [Dennis's] failure
to identify any plausible way that [he] was prejudiced" at the hearing.68 Dennis capably
represented himself throughout the hearing. He appeared in person, presented evidence,
65 See Bush v. Elkins, 342 P.3d 1245, 1253-54 (Alaska 2015) (discussing
"affirmative duty [courts have] to advise self-represented litigants" (citing Breck v.
Ulmer, 745 P.2d 66, 75 (Alaska 1987))).
66 See Flores, 598 P.2d at 895.
67 See id. at 896; In re K.L.J., 813 P.2d at 281-82.
68 D.M. v. State, Div. of Family & Youth Servs., 995 P.2d 205, 213 (Alaska
2000).
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and cross examined Stephanie, impeaching her credibility. He also cautiously avoided
admitting to any criminal actions.
Dennis nonetheless claims on appeal that the master unfairly directed him
not to testify "about critical evidence necessary to making his case." Dennis also
disputes the master's weighing of the testimony, claiming that if Stephanie's actions did
69
not exhibit a "reckless disregard for the truth, it is hard . . . to imagine what does."
Dennis fails to explain, and we fail to see, how those claims of prejudice arise from
Dennis's self-representation. Instead the record reflects that the master took every
opportunity to safeguard Dennis, going so far as to order Stephanie's attorney to "[s]hout
it right out" whenever Dennis's testimony might open the door to cross examination
about the alleged sexual assault. The master explained the law, granted Dennis
considerable latitude, and structured the proceedings in an effort to make them easier for
Dennis. The master ultimately considered the evidence Dennis presented, weighing it
against Stephanie's testimony, and found them both credible. The record confirms our
conclusion that the risk of erroneous deprivation to Dennis did not require appointment
of counsel.
69 Dennis further argues that the master violated Alaska Code of Judicial
Conduct Canon 3(B)(4), requiring a judge to be "patient, dignified, and courteous to
litigants," by commenting on what he viewed as Dennis's immature behavior. This
claim has no merit. See Luker v. Sykes , 357 P.3d 1191, 1199 (Alaska 2015) (holding that
" 'expressions of impatience, dissatisfaction, annoyance and even anger, that are within
the bounds of what imperfect men and women . . . sometimes display' do not establish
bias or partiality" (alteration in original) (quoting Kingery v. Barrett , 249 P.3d 275, 286
n.43 (Alaska 2011))); see also Crawford v. State , 337 P.3d 4, 33 (Alaska App. 2014)
(holding that under Alaska Code of Judicial Conduct Canon 3(B)(4) "judges generally
are not required to remove themselves from a case simply because they have made
remarks that are critical of, or even hostile to, an attorney or litigant" (citing Hanson v.
Hanson, 36 P.3d 1181, 1183-87 (Alaska 2001))).
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c. State's interests
The state's interests in this case, the third Mathews factor, include an
70
interest in the children
and an interest in avoiding the "fiscal and administrative
71
In addition to a probable cost of $5,000,
burdens" of appointing Dennis counsel.
appointing Dennis counsel would have caused further delays for a hearing that already
72
had lasted longer than anticipated. This "lengthening of judicial procedures," an
administrative burden that can negatively impact children, coupled with the likely fiscal
cost, weighs against appointment of counsel in this case.
d. Conclusion
Wereiteratethatthecrux ofdueprocess ishaving ameaningful opportunity
to be heard and represent one's interests.73 Here Dennis was able to defend his interest
in having custody of his children and no unique risks or challenges demanded
appointment of counsel at state expense. For future cases we emphasize that the trial
courts are guardians of due process; to determine whether due process requires
appointment of counsel in a particular case, trial courts are required to engage in a
prospective analysis, weighing the risks of erroneous deprivation and balancing the
Mathews factors. If the particular facts of a case demonstrate that the parent would
otherwise be deprived of a meaningful opportunity to be heard, procedural due process
70 See In re K.L.J. , 813 P.2d at 279.
71 Mathews v. Eldridge , 424 U.S. 319, 335 (1976) (citing Goldberg v. Kelly ,
397 U.S. 254, 263-71 (1970)).
72 In re K.L.J., 813 P.2d at 280.
73 See id. at 279 ("The crux of due process is opportunity to be heard and the
right to adequately represent one's interests." (quoting Matanuska Maid, Inc. v. State,
620 P.2d 182, 192 (Alaska 1980))).
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----------------------- Page 20-----------------------
74
may require court appointment of counsel to a parent in a custody proceeding. The
facts of Dennis's case, however, did not rise to that level.
B. Equal Protection Does Not Require Appointment Of Counsel.
The Alaska Constitution guarantees "that all persons are equal and entitled
75
to equal rights, opportunities, and protection under the law."
Equal protection claims
raise thequestion "whether two groups of people who are treated differently are similarly
76
situated and thus entitled to equal treatment." We have taken two approaches to
determining whether groups of people are similarly situated: a "shorthand" analysis, and
77
a full, multi-step analysis. Under either test the key issues are "which classes must be
78
The
compared" and whether treating similarly situated classes differently is justified.
shorthand analysis, used in "exceedingly clear" cases, allows us to "summarily conclude
79 which "implies that the different legal
that two classes are not similarly situated,"
treatment of the two classes is justified by the differences between the two classes."80
74 Alaska Admin. R. 12(e)(1) ("If the court determines that [appointment of]
counsel . . . is required by law . . . the court shall appoint an attorney . . . ." (emphasis
added)).
75 Alaska Const. art. I, § 1.
76 Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994).
77 Shepherd v. State, Dep't of Fish & Game, 897 P.2d 33, 44 n.12 (Alaska
1995).
78 Planned Parenthood of the Great Nw. v. State, 375 P.3d 1122, 1135-36
(Alaska 2016) (citing State v. Schmidt, 323 P.3d 647, 660 (Alaska 2014)).
79 Id. at 1136 & n.81.
80 Shepherd, 897 P.2d at 44 n.12 (resident and nonresident users of fish and
game not similarly situated); see also Alaska Inter-Tribal Council v. State, 110 P.3d 947,
(continued...)
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Under the full analysis for closer cases we apply "a flexible three-step sliding-scale" to
determine the burden the state must meet to "justify[] its legislation." 81
Dennis claims that AS 44.21.410 violates the equal protection clause by
treating similarly situated indigent parents differently. That statute requires OPA to
represent "indigent parties in cases involving child custody in which the opposing party
is represented by counsel provided by a public agency."82 But the law does not require
OPA, or any other state-appointed counsel, to represent indigent parents if the opposing
party is represented by private counsel.83
Dennis's argument fails under our due process holding. Here the two
classes of parents are those with a categorical right under Flores to appointed counsel,
and those without. Alaska Statute 44.21.410 codified our decision in Flores that parents
facing state opposition in custody cases have a due process right to appointed counsel,
and gave OPA the responsibility of providing that constitutionally required counsel.84
80 (...continued)
968 (Alaska 2005) (on-road and off-road Alaskan communities not similarly situated);
Shearer v. Mundt, 36 P.3d 1196, 1199 (Alaska 2001) (attorney and nonattorney pro se
litigants not similarly situated); Lauth v. State, Dep't of Health & Soc. Servs., Div. of
Pub. Assistance, 12 P.3d 181, 187 (Alaska 2000) (children with one and children with
noeconomically secureparents not similarly situated); Smith v. State,Dep't of Corr.,872
P.2d 1218, 1227 (Alaska 1994) (discretionary and mandatory parolees not similarly
situated).
81 Planned Parenthood, 375 P.3dat1137 (quoting Alaska Pac. AssuranceCo.
v. Brown, 687 P.2d 264, 269 (Alaska 1984)).
82 AS 44.21.410(a)(4).
83 See id.
84 See In re Alaska Network on Domestic Violence &Sexual Assault , 264 P.3d
835, 838 (Alaska 2011) (interpreting the statute based on our Flores holding because it
(continued...)
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By contrast, we hold today that due process does not require appointment of counsel to
the class of indigent parents to which Dennis belongs. The distinct due process concerns
applying to each class of indigent parents allow us to conclude that they are not similarly
situated without needing to conduct a full equal protection analysis. Because "real
diversityjustifies differential treatment," thedifferencesbetween theseclasses ofparents
85 Alaska Statute 44.21.410 does not violate Dennis's
justify their differential treatment.
equal protection rights under the Alaska Constitution.
V. CONCLUSION
We AFFIRM the decision denying Dennis's motion for appointment of
counsel.
84 (...continued)
"was enacted in 1984 as part of the law establishing" OPA and its "language appears to
have been drawn directly from Flores" (citing Office of Pub. Advocacy v. Superior
Court, Second Judicial Dist., 799 P.2d 809, 810 (Alaska App. 1989))).
85 Gonzales v. Safeway Stores, Inc., 882 P.2d 389, 396 (Alaska 1994).
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