In re Office of Pub. Advocacy, S-17855

CourtSupreme Court of Alaska (US)
Writing for the CourtCARNEY, Justice.
PartiesIn the Matter of OFFICE OF PUBLIC ADVOCACY,
Docket NumberS-17855
Decision Date12 August 2022

In the Matter of OFFICE OF PUBLIC ADVOCACY, Regarding appointment ordered in Smith v. Smith, Superior Court No. 4BE-19-00403 CI

No. S-17855

Supreme Court of Alaska

August 12, 2022


Petition for Review from the Superior Court of the State of Alaska, Fourth Judicial District, Bethel, Terrence P. Haas, Judge.

Elizabeth Russo, Deputy Director, Assistant Public Advocate, Office of Public Advocacy, and James E. Stinson, Public Advocate, Anchorage, for Petitioner.

Samuel J. Fortier, Fortier & Mikko, PC, Anchorage, for Respondent Fannie Berezkin f/k/a Fannie Smith. No appearance by Respondent Harold Smith.

Sydney Tarzwell, Alaska Legal Services Corporation, Anchorage, for Amicus Curiae Alaska Legal Services Corporation.

Before: Winfree, Chief Justice, Maassen, Carney, Borghesan, and Henderson, Justices.

OPINION

CARNEY, Justice.

I. INTRODUCTION

We granted the Office of Public Advocacy's (OP A) petition for review on the question whether counsel provided through Alaska Legal Service Corporation's (ALSC) pro bono program is counsel "provided by a public agency" within the meaning

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of Flores v. Flores[1] and OPA's enabling statute.[2] We conclude that such counsel is "provided by a public agency" and we affirm the superior court's order appointing OPA to represent an indigent parent in a child custody case.

II. FACTS AND PROCEEDINGS

In October 2019 Fannie Berezkin contacted ALSC for help obtaining a divorce from Harold Smith. To serve as many indigent Alaskans as possible, ALSC's pro bono program matches clients who are eligible for ALSC services with volunteer attorneys. ALSC assigned Samuel Fortier, a private attorney who volunteered for an assignment through ALSC s pro bono program. Fortier filed a complaint for divorce and sole legal and physical custody of Berezkin and Smith's child. In mid-December Smith filed an affidavit with the court in response. It does not appear that Smith served the affidavit on Berezkin, and two days after the filing, Berezkin moved for entry of default against Smith.

At a status hearing in February 2020 the court noted that after it received Berezkin's request for entry of default, it had reviewed the file and discovered Smith's affidavit. Berezkin then withdrew her request. The court advised Smith that he had the right to hire an attorney; Smith responded that he was indigent and asserted a right to have one appointed under the Sixth Amendment. The court suggested that Smith read the Flores case and research his right to appointed counsel. Smith, who was incarcerated, explained that the law library at the prison was unavailable because the

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internet was not working. The court set trial for April and scheduled a status hearing for mid-March. The court also agreed to send a letter to the prison explaining that Smith would benefit from the use of the law library.

Smith did not appear for the March status hearing, but filed a motion for assistance of counsel that day. He argued that because Berezkin was represented by a lawyer provided by ALSC, he was entitled to appointed counsel. He explained he was indigent and did not have the proper training to represent himself and described his efforts to obtain a lawyer through ALSC. He also submitted an affidavit explaining that he had attempted to arrange transportation to the status hearing, but had been told transportation was provided only in criminal proceedings. Berezkin filed a non-opposition to Smith's motion for appointed counsel.

The superior court granted Smith's motion and ordered OP A to "designate counsel to assist Mr. Smith in these proceedings." Two weeks later OPA moved to vacate the appointment. It argued that because Berezkin was being represented by a private attorney working with ALSC's pro bono program, Smith was not entitled to representation under Flores. OPA argued that ALSC's support for its pro bono attorneys was "de minimis" and contrasted it with the support ALSC provided to its staff attorneys. OPA further argued that it was not statutorily authorized to provide representation to Smith and did not have sufficient resources to provide services if the right to counsel under Flores included such cases.

Berezkin opposed OPA's motion to vacate, arguing thai Flores and OPA's enabling statute[3] required only that the other parent's counsel be "provided by" a public agency not that the public agency assign a staff attorney. She also argued that ALSC

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provided substantial support to its pro bono attorneys and that Smith was disadvantaged because of Berezkin's representation. She pointed out that of 500 custody cases handled by ALSC in the past year, pro bono counsel were assigned in only 7 and that requiring OP A to provide representation in such cases would not be a substantial additional burden.

ALSC was granted leave to file an amicus brief. ALSC supported broad access to representation for low-income Alaskans and noted that having opposing counsel instead of a self-represented opposing party often led to speedy resolution of the case. It argued that due process required the appointment of counsel in cases like Smith's and that its cooperating pro bono attorneys were provided by ALSC and supported by public funds. ALSC agreed with Berezkin that providing counsel when the other party had an ALSC pro bono attorney would not place a large burden on OPA because ALSC did not provide pro bono counsel to many clients; it noted that this issue had not come up previously in the 40 years since Flores was decided. In reply OPA reiterated its initial arguments.

The court denied OPA's motion to vacate. It held that denying Smith appointed counsel while Berezkin was represented by an ALSC pro bono attorney violated due process because

the existence of a publicly funded program that organizes trains, and insures lawyers to whom it then refers pre-screened clients who thereby enjoy the benefit of a no-cost attorney with access to the administrative resources and legal clout of a federally grant-funded statewide agency inevitably affords "advantages" well beyond the mere cost of counsel.

It noted that Smith would be at a disadvantage when "squar[ing] up against an opposing lawyer provided by and substantially supported by what is quite likely Alaska's largest public interest law firm," which was "made possible by the presence of public funding

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and support."

OPA moved to stay the proceedings and petitioned for interlocutory review. We granted OPA's petition, but denied the stay and directed OP A to continue representing Smith. According to ALSC and Berezkin, the case settled two weeks after OPA counsel was appointed.[4]

III. STANDARD OF REVIEW

"We apply our independent judgment in determining mootness because, as a matter of judicial policy, mootness is a question of law."[5] Whether a pro bono attorney provided through ALSC's pro bono program qualifies as "counsel provided by a public agency" under AS 44.21.410(a)(4) is a question of law, which we review de novo.[6]

IV. DISCUSSION

A. The Appeal Satisfies The Public Interest Exception To The Mootness Doctrine.

Because the case settled soon after OPA was appointed and petitioned for review, this case is moot.[7] But "[e]ven when a case is moot, we may address certain issues if they fall within the public interest exception to the mootness doctrine."[8] "The

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exception consists of 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.' "[9]

This case satisfies all of the criteria for the public interest exception to mootness. First, whether the other party is entitled to appointed counsel may arise any time ALSC assigns pro bono counsel in a custody dispute and the other party is indigent. Second, as happened here, the appointment of counsel may lead to settlement of the case, which would eliminate an appeal of the issue. And because the indigent party who could benefit from counsel's appointment pursuant to Flores will always be unrepresented, that party is unlikely to rely on Flores to request appointed counsel. Third, there is an important public interest in resolving the issue because it implicates the constitutional right "to direct the upbringing of one's child."[10] We therefore address the issue despite this case's mootness.

B. An Overview Of Flores, Its Progeny, And AS 44.21.410(a)(4).

In Flores we recognized a due process right under the Alaska constitution to appointed counsel for indigent parents in custody cases when the other parent is represented by ALSC.[11] We held that, based on the importance of "the right to direct the upbringing of one's child" and the "exceedingly difficult" nature of determining a child's

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best interests, an unrepresented parent is at a "decided and frequently decisive disadvantage" facing a represented opposing parent and that disadvantage becomes "constitutionally impermissible where the other parent has an attorney supplied by a public agency."[12] We observed that because the unrepresented mother lived in a different state and was not able to travel to Alaska, she would "lose the custody proceeding by default" if she were not to secure representation.[13] We held that "[f]airness alone dictate[d]" that an indigent, unrepresented parent facing "counsel provided by a public agency" should have appointed counsel.[14] We ordered that the court appoint counsel paid by the court system because ALSC did not have the capacity to provide conflict-free counsel and the Public Defender Agency's enabling statute did not require the agency to provide counsel in child custody cases.[15]

In 1984 the Alaska legislature created OP A[16] and directed that, among its other obligations,...

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