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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Alaska Public Defender Agency v Superior Court (10/11/2019) sp-7413
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@akcourts.us.
THE SUPREME COURT OF THE STATE OF ALASKA
ALASKA PUBLIC DEFENDER )
AGENCY, )
Supreme Court No. S-16983
) Court of Appeals No. A-12814
Petitioner, )
) Superior Court No. 4SM-16-00002 DL
v. )
) O P I N I O N
SUPERIOR COURT, )
) No. 7413 - October 11, 2019
Respondent. )
)
Petition for Hearing from the Court of Appeals of the State of
Alaska, on appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel, Dwayne W.
McConnell, Judge.
Appearances: Kelly R. Taylor, Assistant Public Defender,
and Quinlan Steiner, Public Defender, Anchorage, for
Petitioner. David A. Wilkinson, Assistant Attorney General,
Anchorage,and JahnaLindemuth,Attorney General,Juneau,
for Intervenor State of Alaska, Department of Health and
Social Services, Division of Juvenile Justice. Notice of
nonparticipation filed by Jeffrey W. Robinson, Ashburn &
Mason, P.C., Anchorage, for Respondent.
Before: Bolger, Chief Justice, Winfree, Stowers, Maassen,
and Carney, Justices.
MAASSEN, Justice.
----------------------- Page 2-----------------------
I. INTRODUCTION
A juvenile from a small village could not afford to travel to the site of his
juvenile delinquency proceeding. His attorney with the Public Defender Agency (the
Agency) filed a motion asking the superior court to require the Division of Juvenile
Justice (DJJ) to pay the travel expenses for both the juvenile and one of his parents. The
superior court denied the motion and required the Agency to pay the expenses. The
court of appeals upheld the superior court's decision, reasoning that the Agency's
authorizing statute could plausibly be interpreted to cover client travel expenses and that
this reading was supported by administrative guidance in the form of two Attorney
General opinions and a regulation governing reimbursements by the Office of Public
Advocacy (OPA).
We granted the Agency's petition for hearing, asking the Agency and DJJ
to address two questions: (1) whether the Agency has a statutory obligation to pay its
clients' travel expenses and (2) whether DJJ has a statutory obligation to pay those
expenses. We conclude that neither entity's authorizing statutes require the payment and
therefore reverse the decision of the court of appeals. We do not address the question
of how these necessary expenses are to be funded; that is an issue for the executive and
legislative branches.
II. FACTS AND PROCEEDINGS
In 2013 M.T., a juvenile from Hooper Bay, faced delinquency charges
scheduled for an adjudication trial in Bethel, 167 miles away and not reachable from
Hooper Bay by road.1 M.T. and his parents could not afford to pay for travel to the trial
1 See Alaska R. Crim. P. 18 (listing presumptive trial sites for Alaskan
communities); Transportation Geographic Information Section, ALASKA DEP 'T OF
TRANSP. & PUB. FACILITIES, Distance Between Cities on Map, DISTANCEFROMTO,
(continued...)
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site, so his Agency attorney filed a motion asking the superior court to order DJJ to pay
the travel expenses of both M.T. and one of his parents. The superior court granted the
motion in part, ordering DJJ to pay M.T.'s travel expenses but not his father's; the court
ruled that M.T.'s travel expenses constituted a "court cost" that DJJ was required to pay
under its authorizing statute, AS 47.12.120(e).
The court of appeals reversed the superior court's ruling in an unpublished
2 Relying on the legislative history of AS 47.12.120(e), the court of appeals
order.
concluded that the statute "does not obligate" DJJ to pay M.T.'s travel expenses.3
In 2016 another indigent juvenile, I.M. from Pilot Station, was facing
delinquency charges scheduled for an adjudication trial in Bethel, 90 miles away and not
connected to Pilot Station by road.4 The superior court invited briefing fromthe Agency,
DJJ, OPA, the Alaska Court System, and the Department of Law on two questions: (1) if
"neither a minor nor the minor's parents" can pay for their travel to the presumptive trial
site, "is the State obligated to fund travel and per diem for the minor? For a parent?" and
(2) if yes, "which particular agency should bear that expense, and why?"
The government entities agreed that the State was obligated to pay the
travel expenses for both the minor and a parent, but they disagreed as to which of them
bore that financial burden. The superior court held that it was DJJ. The court reasoned
that it would be inappropriate for the Court System to bear the costs when the juvenile
1 (...continued)
http://dot.alaska.gov/stwdplng/mapping (search for "Bethel" and "Hooper Bay").
2 State v. M.T., Nos. A-11942/11961 (Alaska App. Order, July 24, 2014).
3 Id.
4 See Transportation Geographic Information Section, supra note 1 (search
for "Bethel" and "Pilot Station").
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was not represented by an attorney appointed by the court under Alaska Administrative
Rule 12(e). It decided that the Agency and OPA were not responsible because their
enabling statutes "do not encompass travel and per diem for the minor's or a parent's
attendance at the adjudication in a delinquency case, unless the minor or the parent is
called as a witness by appointed counsel." The court then looked to two Attorney
General opinions,DJJ's broad statutory dutytoprovide due process to juvenileoffenders
and their parents, and the semantic truism that " 'costs' means costs" to conclude that
DJJ was responsible for paying the travel expenses.
This brings us to the present case. In 2016 J.B. was a juvenile living in
Marshall, another small village in western Alaska, facing delinquency charges for a
third-degree assault. Bethel, the presumptive site for his adjudication trial, is 73 miles
5 Because J.B.'s family was indigent, his
away and not connected to Marshall by road.
Agency lawyer moved for an order requiring DJJ or the court to pay the trial-related
travel expenses for J.B. and one of his parents. The superior court denied the motion.
6
Relying on the court of appeals' order in State v. M.T.,
the court held that DJJ was not
responsible for the travel expenses because they are not "court costs" that DJJ is required
by statute to pay. The court concluded instead that the Agency was responsible because
of its statutory obligation to pay "the cost of representation," supporting this conclusion
by reference to the obligations of OPA, which has a similar statutory mandate and an
implementing regulation that specifically authorizes reimbursements to appointed
5 See Transportation Geographic Information Section, see supra note 1
(search for "Bethel" and "Marshall").
6 Nos. A-11942/11961 (Alaska App. Order, July 24, 2014).
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7
attorneys for "necessary travel and per diem by the defendant." The court also cited
Delinquency Rule 1(e), adopting Criminal Rule 17(b), which requires that the entity
providing legal representation to an indigent defendant pay necessary witness fees.
The Agency filed an original application in the court of appeals, asking that
the superior court's order be reversed, and DJJ intervened. The court of appeals affirmed
8 The court reasoned that it was plausible to interpret the
the superior court's order.
Agency's authorizing statute as requiring that "the cost of transporting the defendant to
the site of their trial is a necessary 'service' or 'facility' of the representation" for which
the Agency must pay.9 The court of appeals acknowledged, however, that this was "by
no means the only possible interpretation of the statute," and it therefore looked to other
sources to resolve any textual ambiguity.10 It interpreted the two Attorney General
opinions mentioned above as stating the Department of Law's conclusion "that when a
criminal defendant or a juvenile delinquency defendant is represented at public expense
by the Public Defender Agency, the Agency is responsible for paying the defendant's
11 The court reasoned that the OPA regulation
necessary transportation costs."
authorizing payment of a defendant's travel expenses indicated that "the Department of
7 2 Alaska Administrative Code (AAC) 60.040 (2019).
8 Alaska Pub. Defender Agency v. Superior Court, 413 P.3d 1221, 1223
(Alaska App. 2018).
9 Id. at 1222.
10 Id.
11 Id.
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Administration apparently agrees with (or at least has acquiesced in) the position taken
12
by the Attorney General."
The court concluded that "[b]ecause all three parties to this case agree that
some government entity should be responsible for paying [these transportation costs],
this case does not present a question of criminal law or procedure. Rather, it presents
issues of budgeting and finances - i.e., administrative questions."13 The court therefore
"accord[ed] substantial weight to the statutory interpretation adopted by the Attorney
General and the Department of Administration."14 The court held that the agency
"representing an indigent defendant who is (1) not in custody and who is (2) unable to
afford to travel to the site of their trial . . . shall pay the necessary expense" of the
juvenile defendant, as well as that of a parent in the case of "a minor who is not
15
reasonably able to travel alone."
The court of appeals recognized "that [its] decision may have significant
financial consequences for the Public Defender Agency and the Office of Public
Advocacy - just as a different decision might have significant financial consequences
for the Court System or the Division of Juvenile Justice. But this is a situation where
having an answer is arguably more important than the specific content of the answer."16
12 Id. at 1222-23.
13 Id. at 1223 (emphasis in original).
14 Id.
15 Id.
16 Id. (emphasis in original).
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The court noted that it is for the legislature to fund the agencies at sufficient levels to
17
accommodate these expenses.
The Agency filed a petition for hearing, which we granted. We asked the
parties to brief whether either the Agency or DJJ is "required by statute to pay the travel
expenses for indigent juveniles who are unable to afford to travel to the site of their
adjudication hearings."18 We did not require the Court System to participate in the
appeal, and it chose not to.
III. STANDARD OF REVIEW
"We exercise our independent judgment when we review the court of
appeals' decision on a petition for hearing."19
Questions of statutory interpretation and
20
constitutional issues are questions of law to which we apply our independent judgment.
"We interpret the Alaska Constitution and Alaska Statutes 'according to reason,
practicality, and common sense, taking into account the plain meaning and purpose of
17 Id.
18 Subsequent events have mooted this case as to J.B., but we decide the case
under the public interest exception to the mootness doctrine. See In re Hospitalization
of Tracy C. , 249 P.3d 1085, 1090 (Alaska 2011) ("Whether the public interest exception
[to the mootness doctrine] applies depends on three factors: '(1) whether the disputed
issues are capable of repetition, (2) whether the mootness doctrine, if applied, may cause
review of the issues to be repeatedly circumvented, and (3) whether the issues presented
are so important to the public interest as to justify overriding the mootness doctrine.' "
(quoting Wetherhorn v. Alaska Psychiatric Inst. , 156 P.3d 371, 380-81 (Alaska 2007))).
19 Estrada v. State, 362 P.3d 1021, 1023 (Alaska 2015).
20 Eberhartv. AlaskaPub.Offices Comm'n, 426 P.3d 890, 894 (Alaska2018);
Hendricks-Pearce v. State, Dep't of Corr., 323 P.3d 30, 35 (Alaska 2014).
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21
the law as well as the intent of the drafters.' " " '[A]n agency's interpretation of a law
within its area of jurisdiction can help resolve lingering ambiguity, particularly when the
agency's interpretation is longstanding.' " 22
IV. DISCUSSION
"When determining a statute's meaning, we consider three factors: 'the
language of the statute, the legislative history, and the legislative purpose behind the
statute.' "23 " 'We decide questions of statutory interpretation on a sliding scale': '[T]he
plainer the language of the statute, the more convincing any contrary legislative history
must be . . . to overcome the statute's plain meaning.' "24
A. The Agency Is Not Required By Statute To Pay The Expenses For An
Out-Of-Custody Indigent Juvenile To Travel To The Site Of An
Adjudication Hearing.
In AS 18.85.100, Alaska's Public Defender Act describes the rights of
indigent persons "to representation, services, and facilities." Under subsection (a) of the
statute, a covered person "is entitled (1) to be represented . . . by an attorney to the same
extent as a person retaining an attorney is entitled; and (2) to be provided with the
necessary services and facilities of this representation, including investigation and other
21 Grimm v. Wagoner , 77 P.3d 423, 427 (Alaska 2003) (quoting Native Vill.
of Elim v. State , 990 P.2d 1, 5 (Alaska 1999)).
22 Hendricks-Pearce, 323 P.3d at 35 (quoting Bartley v. State, Dep't of
Admin., Teacher's Ret. Bd. , 110 P.3d 1254, 1261 (Alaska 2005)).
23 Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce , 414
P.3d 630, 634 (Alaska 2018) (quoting Oels v. Anchorage Police Dep't Emps. Ass'n, 279
P.3d 589, 595 (Alaska 2012)).
24 Id. (alterations in original) (first quoting Marathon Oil Co. v. State, Dep't
of Nat. Res., 254 P.3d 1078, 1082 (Alaska 2011); then quoting Peninsula Mktg. Ass'n
v. State, 817 P.2d 917, 922 (Alaska 1991)).
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25
preparation." In subsection (b), the statute states that "the attorney services and
facilities and the court costs shall be provided at public expense to the extent that the
person, at the time the court determines indigency, is unable to provide for payment
26 Persons covered by the statute include juveniles "entitled to
without undue hardship."
representation under the Supreme Court Delinquency . . . Rules."27
1. The language of AS 18.85.100(a) and (b) does not appear to
impose the costs of client travel on the Agency.
The first question we must answer is whether any of the statutory terms
describing what is to "be provided at public expense" - i.e., by the Agency28
- include
travel costs. We construe the statute's subsections "so as to produce a harmonious
29
whole." We assume, therefore, that "the attorney services and facilities" to be publicly
funded under AS 18.85.100(b) are the same "necessary services and facilities of this
representation,includinginvestigation and other preparation,"named in theimmediately
preceding subsection (a)(2). And "this representation" to which subsection (a)(2) refers
is the representation "by an attorney" stated in the immediately preceding subsection
25 AS 18.85.100(a).
26 AS 18.85.100(b).
27 AS 18.85.100(a). Alaska Delinquency Rule 16 addresses the right to
counsel. See also A.A. v. State, 538 P.2d 1004, 1005 (Alaska 1975) ("A juvenile's right
to counsel in a delinquency proceeding has been clearly established in this jurisdiction.").
28 See Alaska Legal Servs. Corp. v. Thomas, 623 P.2d 342, 344 (Alaska 1981)
("The plain meaning of the words 'at public expense' as used in AS 18.85 is that either
the public defender agency will pay the attorney's fees if it hires private counsel for a
defendant, or the court system will pay if it appoints the private counsel. In any case, it
is the state that pays.").
29 Ward v. State, Dep't of Pub. Safety, 288 P.3d 94, 99 (Alaska 2012) (quoting
Forest v. Safeway Stores, Inc., 830 P.2d 778, 781 (Alaska 1992)).
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----------------------- Page 10-----------------------
(a)(1) - which is to be provided "to the same extent as" it would be to "a person
retaining an attorney."
DJJ does not contend that privatelyretainedattorneysassumeresponsibility
for their clients' travel costs as a general matter; the Agency's payment of indigent
clients' travel costs would not be payment to "the same extent as a person retaining an
30 DJJ contends, however, that the necessary
attorney is entitled " but rather beyond it.
services and facilities of Agency representation must include travel costs because
attendance at trial "facilitate[s] access to counsel and engagement in [the] defense."
While that is true, the right to attend trial is derived from the constitutional rights of
confrontation and due process, not the right to counsel.31 The right exists as much for
unrepresented as represented defendants; it is not a concomitant of the representation.
32 as encompassing the
We also cannot interpret the phrase "court costs"
expense of the indigent juvenile's travel. "Court costs" are not defined in the
30 Cf. Alaska R. Prof. Conduct 1.8(e) ("A lawyer shall not provide financial
assistance to a client in connection with pending or contemplated litigation, except
that . . . a lawyer representing an indigent client may pay court costs and expenses of
litigation on behalf of the client." (emphasis added)).
31 See Douglas v. State, 214 P.3d 312, 319 (Alaska 2009) ("The right of a
criminal defendant to be present at every stage of trial is rooted in the right to confront
adverse witnesses and the right to due process of law." (internal citation omitted)); RLR
v. State, 487 P.2d 27, 42 (Alaska 1971) ("We see no difference in principle between the
child's right to be present at his hearing and a criminal defendant's right to be present at
his trial."); see also P.H. v. State, 504 P.2d 837, 842 n.14 (Alaska 1972) ("The right of
confrontation applies to children's proceedings in which the child is charged with
misconductfor which hemay be incarcerated."), superseded bystatuteon other grounds,
Ch. 63, §§ 13, 15, SLA 1977, as recognized In The Matter of F.S., 586 P.2d 607, 610
(Alaska 1978).
32 AS 18.85.100(b).
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33
delinquency statutes. "In the absence of a [statutory] definition, we construe statutory
terms according to their common meaning[;] [d]ictionaries 'provide a useful starting
34 For a definition of "court costs," Black's Law Dictionary
point' " for this exercise.
directs the reader to a particular definition of "costs": "The charges or fees taxed by the
court, such as filing fees, jury fees, courthouse fees, and reporter fees."35 The expense
of a party's travel to court is generally not a cost that could be included in those "taxed
by the court" against the other party, and the legislature is therefore unlikely to have
intended "court costs" to include the defendant's travel; DJJ agrees with this
interpretation.
DJJ also argues, however, that in determining the costs to be borne by the
Agency we should be guided by the Public Defender Act's definitions of "indigent
person" and "expenses." DJJ observes that the Act defines "indigent person," in part,
as one who lacks the "means to provide for payment of an attorney and all other
36 and that it defines "expenses," "when used with
necessary expenses of representation,"
reference to representation," to include "an expense of investigation, other preparation,
33 See AS 18.85.170 (defining other terms used in AS 18.85).
34 Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce , 414
P.3d 630, 635 (Alaska 2018) (quoting Alaskans For Efficient Gov't, Inc. v. Knowles , 91
P.3d 273, 276 n.4 (Alaska 2004)).
35 Court Costs, Cost definition 2, BLACK 'S LAW DICTIONARY (11th ed. 2019);
see Kuretich v. Alaska Trustee, LLC , 287 P.3d 87, 92 (Alaska 2012) (noting trial court's
view that " 'court costs' are defined 'more broadly than costs incurred in court' and
'include costs that would be recoverable under [Alaska Civil] Rule 79,' " and rejecting
argument that "costs that commonly attend a non-judicial foreclosure - e.g., recording
fees and the cost of title searches -" could be "court costs" because they are not costs
"obtained by the prevailing party in a court proceeding").
36 AS 18.85.170(4).
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37
and trial. " DJJ argues that, when these statutes are read together, the Agency should
be required to pay all "necessary expenses that cannot be paid due to indigence,"
including the cost of traveling to the trial location (which DJJ labels "an expense of . . .
trial").
But even if the definition of "expenses" is read broadly enough to include
travel expenses, the Act does not impose those expenses on the Agency. The legislature
did not use the word "expenses" anywhere in the Act except in its definition of "indigent
38 The legislature used different and more precise terms when describing what
person."
the Agency had to provide "at public expense": "attorney services and facilities
and . . . court costs."39 "[W]hen the legislature uses certain language in one part of the
statute and different language in another, the court assumes different meanings were
40 A person's inability to afford the expense of travel to the trial location may
intended."
be an indication that the person is an "indigent person" as defined in the statute, but that
does not mean that the Agency is required to pay that expense; the legislature chose to
describe the Agency's obligations more narrowly.
37 AS 18.85.170(3) (emphasis added).
38 See AS 18.85.170(4).
39 AS 18.85.100(b); see also AS 18.85.100(a)(2) (addressing "necessary
services and facilities of this representation, including investigation and other
preparation").
40 2A NORMAN J. SINGER & SHAMBIE SINGER, SUTHERLAND ON STATUTES
AND STATUTORY CONSTRUCTION § 46:06, at 261 (7th ed. 2014); see Rubey v. Alaska
Comm'n on Postsecondary Educ., 217 P.3d 413, 416 n.9 (Alaska 2009) (recognizing
principle that "[d]ifferent words used in the same, or a similar, statute are assigned
different meanings whenever possible").
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2. Legislative history and purpose do not support imposing the
costs of client travel on the Agency.
To determine whether we should read meaning into the statutory language
that is not apparent from the language itself, we next look at the legislative history and
41
purpose.
We find no clear indication there that the legislature intended the Agency to
pay its clients' travel costs. The relevant language of AS 18.85.100 is essentially
42
unchanged since the Agency's creation in 1969. At that time, the House Judiciary
Committee report explained that the purpose of the bill was "to assure needy defendants
of adequate legal representation and to more equitably distribute the public obligation
43
to provide this representation." The report expressed concern that indigent persons'
constitutional right to counsel was currently being supported "almost entirely by the
members of the legal profession alone" and that the bill would both "reliev[e] the legal
profession of this unique burden" and "establish a more efficient and more uniformly,
highly skilled and specialized representation system, comparable to the services of the
44 A later report prepared by the Alaska Judicial Council
district attorneys' offices."
largely confirmed that these purposes underlay the Agency's creation.45
41 See Alaska Ass'n of Naturopathic Physicians v. State, Dep't of Commerce,
414 P.3d 630, 634 (Alaska 2018).
42 See Ch. 109, SLA 1969.
43 1969 House Journal 220.
44 Id .
45 ALASKA JUDICIAL COUNCIL, THE ALASKA PUBLIC DEFENDER AGENCY IN
P E R S P E C T I V E 3 - 2 2 ( 1 9 7 4 ) ,
http://www.ajc.state.ak.us/publications/docs/research/PDPer1969-74.pdf (relating
persistent concerns with system of assigning and paying private attorneys to represent
criminal defendants).
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The language of the Public Defender Act closely mirrored that of the 1966
Model Defense of Needy Persons Act, drafted by the National Conference of
46 Commenting on the Model Act's analog to
Commissioners on Uniform State Laws.
AS 18.85.100, the drafters explained that their intent was to "make[] clear that the
criminal defendant is entitled to all the necessary elements of adequate representation."47
The Model Act as a whole was not intended "to codify the other aspects of a
constitutionally adequate criminal procedure . . . [but rather was] confined to equipping
the needy person with necessary defensive facilities."48 The Model Act clarified that
indigent defendants are entitled to a defense equivalent to that of "persons of adequate
means," and that, "to the extent that [the indigent defendant] is unable to pay for it, he
is entitled to have it paid for by the state."49
The Agency's brief describes the establishment and early funding of the
Agency, relying primarily on the Alaska Judicial Council's 1974 report.50 The Agency
highlights early consideration of the expenses of attorney travel, particularly as Agency
offices were initially proposed for only four Alaska cities with a mandate to serve clients
statewide. But the Agency points out that - with one apparently anomalous exception
46 Compare Ch. 109, SLA 1969, and ALASKA JUDICIAL COUNCIL, at Appendix
IV, with Reed Dickerson, Model Defense of Needy Persons Act, 4 Harv. J. Legis. 3, 8
(1966).
47 Dickerson, supra note 46, at 9.
48 Id. at 5.
49 Id.
50 See ALASKA JUDICIAL COUNCIL, supra note 45.
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51
in 1971 - there is no legislative discussion of the costs of client travel in the context
of Agency funding. DJJ also discusses the Agency's basis in the Model Act and the
Model Act's "broad purpose of providing and funding an 'adequate defense,' " but
notably it directs us to no cases that define "adequate defense" as broadly as it asks us
to or that otherwise read the Model Act as requiring public defenders to pay their clients'
travel costs. We see no indication in the Alaska Public Defender Act's source material,
nor in the legislature's reliance on it, that the legislature intended the "necessary services
and facilities of . . . representation" to include Agency-funded transportation of the client
to the trial location.
3. Attorney General opinions and OPA regulations do not require
imposing the costs of client travel on the Agency.
The court of appeals, having found AS 18.85.100 ambiguous, turned for
guidance to two Attorney General opinions and an OPA regulation, and DJJ relies on
those materials as well in urging us to hold that the transportation obligation belongs to
the Agency. The court of appeals decided that because this case presents "issues of
budgeting and finances - i.e., administrative questions," the statutory interpretations
adopted by the Attorney General and the Department of Administration (which includes
52 53
both the Agency and OPA)
should be "accord[ed] substantial weight." We conclude
51 In 1971 the Agency was allocated $10,000 for a "pilot program" to pay
transportation expenses for indigent clients, released on bail, to return home pending
trial. ALASKA JUDICIAL COUNCIL, supra note 45, at 43. By statute, the obligation to
return out-of-custody defendants to the place of arrest generally falls on other State
agencies. See AS 33.30.081(b)-(c) ("The commissioner of corrections shall make
available return transportation to the place of arrest for a prisoner who is released from
custody in a state correctional facility. . . . [and] for a prisoner who is released from
custody before admission to a state correctional facility.").
52 Department of Administration Divisions, ALASKA DEP 'T OF ADMIN.,
(continued...)
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that none of these materials are particularly relevant, however, and we therefore give
them little weight.
a. The 1977 and 1978 Attorney General opinions
"The weight accorded to opinions of the Attorney General is largely within
54
our discretion. In general, they are not controlling but are entitled to some deference."
The amount of deference to be given depends in large part on the opinion's relevance.
In 1977, to resolve a "long standing dispute" between the Department of
PublicSafety and theDepartment ofHealth and Social Services'Division ofCorrections,
the Attorney General sent an opinion letter to both departments' commissioners
addressing when the obligation to transport criminal defendants arises and which
55
The opinion contained three sections.
government agency must respond when it does.
The first discussed the transportation of in-custody prisoners to and from court; the
Attorney General concluded that the Department of Public Safety was obligated to
52 (...continued)
http://www.doa.alaska.gov/divisions.html (last visited Aug. 19, 2019).
53 Alaska Pub. Defender Agency v. Superior Court , 413 P.3d 1221, 1223
(Alaska App. 2018).
54 State v. Dupier, 118 P.3d 1039, 1050 n.62 (Alaska 2005); see also Basey
v. State, Dep't of Pub. Safety, Div. of Alaska State Troopers, Bureau of Investigations,
408 P.3d 1173, 1179 n.44 (Alaska 2017) ("Attorney General's opinions, while not
controlling, are entitled to some deferenceinmatters of statutory construction." (quoting
Bullock v. State, Dep't of Cmty. & Reg'l Affairs, 19 P.3d 1209, 1216 (Alaska 2001))).
55 STATE OF ALASKA, D EP 'T OF LAW, O P. A TT'Y GEN., 1977 WL 22018, at *1
(Oct. 7, 1977). The Agency notes that it was only tangentially involved in this dispute
and was not one of the letter's designated recipients. See id. at *4 ("[W]e have taken the
liberty of forwarding a copy . . . to the Public Defender.").
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56
provide transportation in those circumstances. The second section discussed
57
transportation for released prisoners back to their place of arrest.
The Attorney General
concluded that an inter-agency agreement between Public Safety and
Corrections - splitting the transportation burden between the two departments
depending on whether the individual had been sentenced - did not logically follow the
58 TheAttorney General concluded that Corrections shouldprovide
statutoryframework.
transportation to individuals released from Corrections' custody, and that Public Safety
should provide transportation to individuals released from its custody without having
entered the correctional system.59
The third section of the 1977 opinion addressed the transportation to court
of persons who had been in custody but had been released. The Attorney General
concluded that earlier court orders requiring Public Safety or Corrections to pay their
transportation costs were "inappropriate" and that neither agency was "responsible for
the cost of any transportation not necessitated by or incidental to any present or prior
60 The Attorney General further concluded that "[i]f the individual [was]
custody."
represented by the Public Defender Agency . . . and if the expense [was] a necessary
incident of representation, then any necessary transportation expenses that may properly
56 Id. at *1-2.
57 Id. at *2-3.
58 Id. at *2.
59 Id. at *2-3.
60 Id. at *3.
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be authorized at public expense should be paid by the Public Defender Agency pursuant
to AS 18.85.100." 61
In 1978, the Attorney General issued a "supplement" to the 1977 opinion,
62 The supplemental opinion was a response to a
addressing its application to juveniles.
question from a judge who had released a juvenile defendant from custody because the
Division of Corrections was unable to transport him to court and the Department of
Public Safety refused to do so.63 The Attorney General opined that "[w]hile a juvenile
could arguably be considered a 'prisoner'. . . the general duty of [Public Safety] to
transport prisoners . . . is in this case superseded by the specific duty of the commissioner
of health and social services [DJJ] with respect to juveniles under AS 47.10."64 The
Attorney General further concluded that Public Safety was secondarily responsible for
transportation in such situations if the Department of Health and Social Services was
unavailable, to avoid a repeat of the incident that prompted the opinion.65 The Attorney
General continued, "[T]he advice given in the [1977 opinion] with regard to the ability
oftheexecutivebranch toeffectuatepolicy changesthrough inter-agency agreement also
applies to juvenile transportation responsibility."66 The 1978 opinion thus explicitly
addressed only the transportation of persons in custody (the first section of the 1977
opinion); it did not discuss the obligation to transport out-of-custody juveniles, nor did
61 Id.
62 STATE OF ALASKA, DEP 'T OF LAW, OP. ATT'Y GEN., 1978 WL 18588, at *1
(Sept. 25, 1978).
63 Id. at *1-2.
64 Id. at *1.
65 Id.
66 Id.
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it fully adopt the reasoning of the 1977 opinion in the juvenile context, explaining only
that it was a "follow-up" and "supplement" to that opinion. 67
Ultimately, we disagree with the court of appeals' reliance on the two
Attorney General opinions as proof of the Department of Law's view "that when a
criminal defendant or a juvenile delinquency defendant is represented at public expense
by the Public Defender Agency, the Agency is responsible for paying the defendant's
necessary transportation costs."68 First, the 1977 opinion did not actually conclude that
the Agency is responsible for such costs; the Attorney General said only that the costs
"may properly be" paid by the Agency "if the expense is a necessary incident of
representation" - a condition the Attorney General did not purport to decide.69 Second,
the 1978 supplement did not expressly extend to juveniles the earlier opinion's limited
statements about transporting out-of-custody defendants to trial; thesupplement's scope
was limited to "prisoners."70
We conclude that the two Attorney General opinions are at most only
tangentially relevant to the issue before us and should not influence our interpretation of
the governing statutory language.
b. OPA regulation 2 AAC 60.040
The court of appeals also relied on an OPA regulation, 2 AAC 60.040, to
conclude that "the Department of Administration apparently agrees with (or at least has
67 Id.
68 Alaska Pub. Defender Agency v. Superior Court , 413 P.3d 1221, 1222
(Alaska App. 2018).
69 STATE OF ALASKA,D EP 'T OF LAW,O P. A TT'Y GEN., 1977 WL 22018, at *3
(Oct. 7, 1977).
70 STATE OF ALASKA, D EP 'T OF LAW,O P.A TT'Y GEN., 1978 WL 18588, at *1
(Sept. 25, 1978).
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acquiesced in) the position taken by the Attorney General - the position that the
payment of transportation expenses is a necessary incident of a public agency's
71 The Department of
representation of its clients if those clients are not in custody."
Administration adopted 2 AAC 60.040 under the authority of OPA's authorizing statute,
AS 44.21.410. Under the heading "[e]xtraordinary expenses," it authorizes the
reimbursement of "necessary travel and per diem by the defendant" incurred by contract
attorneys under certain circumstances.72
By its terms, the regulation does not apply to OPA staff attorneys, much
less Agency staff attorneys, and it labels such expenses "extraordinary," not routine. The
Agency suggests several "extraordinary" situations in which client travel may be
necessary to the representation: to meet with an expert witness, to "visit a location
relevant to the case," or to "review discovery that the attorney is not permitted to send
to the client." OPA has apparently never interpreted the regulation or its authorizing
statute as requiring or even permitting it to pay travel expenses for OPA's indigent
73 We agree with the Agency that the OPA regulation,
clients to attend court proceedings.
like the two Attorney General opinions, does not support requiring the Agency to pay
its clients' travel costs.
71 Alaska Pub. Defender Agency , 413 P.3d at 1223.
72 2 AAC 60.040 (2019). This regulation is part of a section of OPA
regulations regarding private contract attorneys, that is, attorneys appointed by the court
under Alaska Administrative Rule 12(b)(1)(B). See 2 AAC 60.010-.060.
73 See Davis Wright Tremaine LLP v. State, Dep't of Admin., 324 P.3d 293,
299 (Alaska 2014) ("We give more deference to agency interpretations that are
'longstanding and continuous.' " (quoting Marathon Oil Co. v. State, Dep't of Nat. Res.,
254 P.3d 1078, 1082 (Alaska 2011))).
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B. Like The Agency, DJJ Is Not Required By Statute To Pay The
Expenses For An Out-Of-Court Indigent Juvenile To Travel To The
Site Of An Adjudication Hearing.
DJJ's payment obligations in this context are also defined by statute.
Alaska Statute 47.12.120(e) provides: "The department shall pay all court costs incurred
in all proceedings in connection with the adjudication of delinquency under this chapter,
including hearings that result in the release of the minor." 74
We conclude that the
legislature's choice of language - "court costs" - does not require DJJ to pay for an
out-of-custody juvenile defendant's travel expenses.
Thedelinquency statutes, likethePublicDefenderAct, donot define"court
75 76
costs."
As explained above in our discussion of the Public Defender Act, "court
costs" may reasonably be interpreted to include such things as filing fees, court reporter
77
fees, and other costs of the sort that are sometimes taxed by the court against a party.
We see no indication in the statutory language that the phrase "court costs" should be
interpreted any more expansively in the delinquency statutes than it is in the Public
Defender Act.
74 The "department" referred to is the Department of Health and Social
Services; DJJ is the departmental division that manages juvenile delinquency. See
LASKA DEP 'T OF HEALTH & S OC.
AS 47.12.990(5); Division of Juvenile Justice, A
SERVS., http://dhss.alaska.gov/djj/Pages/default.aspx (last visited Aug. 19, 2019).
75 Cf. AS 47.12.990.
76 See supra Part IV.A.1.
77 Court Costs, Cost definition 2, BLACK 'S LAW DICTIONARY (11th ed. 2019).
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This reading of "court costs" as used in AS 47.12.120(e) is supported by
78
legislative history.
The Territorial government enacted the original payment provision
79 The codified version of the 1943 Act required that "the
for the juvenile system in 1943.
proper and necessary costs of the court and witnesses and other expenses necessarily
incurred in enforcement of this chapter shall be borne by the Department of Public
Welfare."80 This provision covered the entire juvenile system, including both delinquent
children and dependent children - those now termed children in need of aid.81
In 1957 the Territorial legislature reorganized the juvenile justice system.
It created a new Department of Juvenile Institutions, leaving only the care of dependent
children to the Department of Public Welfare.82 While the section regarding the
Department of Public Welfare retained the earlier-codified language nearly word for
83 a new provision for delinquent
word as it pertains to the care of dependent children,
children was added, requiring "[t]heDepartmentofJuvenileInstitutions [to]payall court
78 The court of appeals in State v. M.T. relied on the legislative history to find
that AS 47.12.120(e) did not require DJJ to pay the travel expenses. Nos. A-
11942/11961 (Alaska App. Order, July 24, 2014).
79 Ch. 8, § 19, SLA 1943, codified as § 51-3-19 Alaska Compiled Laws
Annotated (ACLA) (1949).
80 § 51-3-19 ACLA (1949).
81 See § 51-3-3 ACLA regarding the juvenile jurisdiction of the courts.
82 Ch. 145, Arts. II, III, SLA 1957.
83 Compare Ch. 145, Art. III, § 4, SLA 1957, codified as § 51-3-64 ACLA
(Supp. 1958), with § 51-3-19 ACLA (1949).
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costs incurred in all proceedings in connection with the adjudication of delinquency
under this Act, including hearings which result in the release of the minor." 84
When the Alaska Legislature first codified the Territorial laws regarding
the juvenile system in 1962, it retained the 1957 language. Former AS 47.10.080(h)
(1962) required the Department of Health and Welfare85 to pay "all court costs" in
adjudications of delinquency while former AS 47.10.260 (1962), relating to the care of
dependent children, required payment of "the proper and necessary costs of the court and
witnesses and other expenses necessarily incurred." The only further change to these
statutes was a renumbering in 1996.86
Although there are no legislative statements of intent relevant to the 1957
change, the Territorial legislature clearly narrowed the expenses covered by DJJ's
predecessor for juvenile delinquents while retaining the broader language for cases
involving the care of dependent children. Under the circumstances, we construe these
87 The phrase "all court costs" in the delinquency statute appears to
provisions together.
84 Ch. 145, Art. I, § 10(2), SLA 1957, codified as § 51-3-30(2) ACLA (Supp.
1958) (alteration omitted).
85 The newly created Department of Health and Welfare contained both the
Territory's Department of Juvenile Institutions and its Department of Public Welfare.
See Ch. 64, § 12, SLA 1959.
86 Ch. 59, §§ 46-47, 55, SLA 1996; compare former AS 47.10.080(h) (1962),
and former AS 47.10.260 (1962), with AS 47.12.120(e), and AS 47.14.130. The only
alteration is that the relevant state department is now called the Department of Health and
Social Services. See AS 47.12.990(5); AS 47.14.990(6).
87 "Under the in pari materia canon of statutory construction, we construe
statutory provisions 'enacted at the same time, or deal[ing] with the same subject matter'
together." Mat-Su Valley Med. Ctr., LLC v. Bolinder, 427 P.3d 754, 769 (Alaska 2018)
(quoting Bullock v. State, Dep't of Cmty. &Reg'l Affairs, 19 P.3d 1209, 1214-15 (Alaska
(continued...)
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have been narrowed from the "costs of . . . witnesses and other expenses necessarily
incurred" included in AS 47.14.130. Just as the legislature's addition of the phrase "and
other expenses necessarily incurred" in Chapter 8, § 19, SLA 1943 was presumably
deliberate, so too was the legislature's removal of the phrase in the delinquency statutes.
We conclude that AS 47.12.120(e), the only juvenile delinquency statute addressing
DJJ's payment obligations, does not require that it pay the travel expenses of an
out-of-custody juvenile defendant to attend trial.
The Agency further argues that DJJ should be required to pay these costs
because it has an obligation to ensure due process and fair legal proceedings. Alaska
Statute 47.12.010(b)(9) states that one of the purposes of the juvenile justice system is
to "provide due process through which juvenile offenders, victims, parents, and
guardians are assured fair legal proceedings during which constitutional and other legal
rights are recognized and enforced." But this purpose, like the others listed in the
88 are broad aspirations for the juvenile justice system as a whole, which includes
statute,
not only DJJ but also the Department of Public Safety, the Court System, and the
Agency. While the defendant's right to appear at a criminal proceeding is partially
87 (...continued)
2001)). The canon expressio unius est exclusio alterius, which "establishes the inference
that, where certain things are designated in a statute, all omissions should be understood
as exclusions," Ranney v. Whitewater Eng'g, 122 P.3d 214, 218 (Alaska 2005) (quoting
Croft v. Pan Alaska Trucking, Inc., 820 P.2d 1064, 1066 (Alaska 1991)), can also be
applied when construing two provisions of the same act. Cf. Alaska State Comm'n for
Human Rights v. Anderson, 426 P.3d 956, 964 (Alaska 2018) (declining to use the canon
as a comparison tool for "two completely separate statutory schemes"); see also Russello
v. United States, 464 U.S. 16, 23 (1983) ("[W]here Congress includes particular
language in one section of a statute but omits it in another section of the same Act, it is
generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion." (alteration in original) (emphasis added)).
88 See AS 47.12.010.
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89
grounded in due process, AS 47.12.010(b)(9) does not create an obligation on DJJ in
particular to pay whatever is necessary to guarantee that right.
V. CONCLUSION
Because neither DJJ's nor the Agency's authorizing statutes can be
interpreted to require either of them to pay the travel expenses for out-of-custody
indigent juvenile defendants to attend their delinquency proceedings, neither is legally
obligated to pay such costs. The task of pinpointing a source of payment is for the
legislative or executive branches.
We REVERSE the decision of the court of appeals.
89 See Douglas v. State , 214 P.3d 312, 319 (Alaska 2009) ("The right of a
criminal defendant to be present at every stage of trial is rooted in the right to confront
adverse witnesses and the right to due process of law." (internal citation omitted)); RLR
v. State, 487 P.2d 27, 42 (Alaska 1971) ("We see no difference in principle between the
child's right to be present at his hearing and a criminal defendant's right to be present at
his trial.").
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