Wagstaff v. Superior Court, Family Court Div.
| Decision Date | 12 May 1975 |
| Docket Number | No. 2208,2208 |
| Citation | 535 P.2d 1220 |
| Parties | Robert WAGSTAFF, Petitioner, v. SUPERIOR COURT, FAMILY COURT DIVISION et al., Respondents. |
| Court | Alaska Supreme Court |
Robert H. Wagstaff, in pro per.
James Lane Rhoads, Melchor P. Evans, Anchorage, for respondents.
Before RABINOWITZ, C. J., and CONNOR, ERWIN and BOOCHEVER, JJ.
In this case, which arose from two separate proceedings in family court, we are presented with issues concerning attorneyclient relationships with juveniles in non-delinquency matters.
The factual backgroun of the two matters is as follows:
A. In the Matter of K. R.
K. R., a fifteen-year-old female, appeared before the court on a petition for dependency in December of 1973. Her mother was deceased; her father was missing and was believed to be dead. The question of a possible estate and the need for a guardian arose at this proceeding. No one was appointed at that time.
By March of 1974, the father was officially declared dead. At a dependency hearing at that time, K. R.'s social worker requested a guardian or an attorney to help with the probate of the estate. The court expressed the view that it was the duty of the Attorney General to represent K. R.'s interests and, therefore, appointed no private party to assist her.
In April, 1974, the social worker requested the probate court to appoint a conservator, and one was finally appointed in May of 1974. Sometime during the period when she had no court-appointed representative, K. R. contacted petitioner Wagstaff, a practicing attorney, about the probate matter. Attorney Wagstaff alleges that, after doing considerable work on the matter, he was informed that the family court master did not believe that petitioner was entitled to represent K. R., since a court appointment was a necessary prerequisite for the representation of a juvenile. However, he was at no time formally refused the right to represent K. R.
B. In the Matter of J. T.
J. T., a fourteen-year-old female, left home in February of 1974 and sought police aid in obtaining foster placement. She was placed in temporary custody with the Division of Family & Children's Services in their emergency shelter, which she left after two days. A day later, she returned and was detained at McLaughlin Youth Center.
The following day, she was interviewed by a family court intake officer and released to her parents' custody. She then refused to remain home and, at her parents' request, was again placed in detertion on the authority of the intake officer. Finding that her actions tended to endamger her health, welfare and morals, the officer filed a petition alleging that she was a 'child in need of supervision', pursuant to AS 47.10.010(a)(3).
At the hearing on the petition, attorney Wagstaff made an appearance, claiming to be J. T.'s attorney. He stated that he had become involved in the proceeding at the request of the minor, who had contacted him the previous evening. Also present were Mr. Wayne Ross, an attorney for the girl's parents, the parents, Micheals Giesler of the Division of Family & Children's Services, attorney Edith Glennon of the Attorney General's office, and Mr. Kord Rosen-Runge from Alaska Children's Services.
Mr. Ross objected to the presence of Mrs. Giesler, Mr. Rosen-Runge and Mr. Wagstaff. Pursuant to statute, the first two persons were excluded on the grounds of being potential witnesses. 1
Attention then was turned to the matter of Mr. Wagstaff. Mr. Ross objected to his presence on the theory that the parents should choose the juvenile's attorney since they would be monetarily liable, and that a juvenile had no capacity to contract for the attorney's services. He also argued that the juvenile did not have a right to an attorney in a 'child in need of supervision' proceeding, and to allow one in a non-delinquency 'family problem' would be contrary to the beneficent purposes of the family court.
The master maintained that J. T. had a right to counsel 'because there's a possibility of her being detained', but he expressed the belief that the parents, rather than the child, should choose the attorney. He stated that,
After petitioner wagstaff refused to leave, he was assisted in his exit by the security bailiff.
The master next told J. T. that she was entitled to be represented by an attorney, and she said that she would like a lawyer. He then engaged in an extended colloquy with Mr. Ross and J. T. This discussion revealed that J. T.' § father was to be transferred to Utah, and the parents wanted J. T. and her mother to precede him to that state. In fact, the plans were to leave that same evening. Any court-ordered counseling would, of necessity, be of short duration.
The master asked J. T. if she had any objection to this plan. J. T. at first said that she had no objection to the arrangement but then hesitated stating:
The court pointed out that she would have access to the family court in Utah if further roblems were to arise. J. T. eventually said that she was satisfied, and the recommendation was made that the petition be dismissed. The dismissal order was signed by Superior Court Judge Lewis, and J. T. was released to the custody of her parents.
Mr. Wagstaff, that same day, filed a motion for extraordinary relief with this court, asking that the superior court be directed to allow him to represent J. T., and that she be prohibited from being sent to Utah. The motion argued that any decisions made by minors without counsel of choice were invalid. The motion was supported by an affidavit of the crisis-director of Alaska Children's Services stating that, in his opinion, the removal of J. T. would be detrimental to her mental health as well as to the possibility of a positive resolution of the family problem.
This court immediately remanded the matter to Superior Court Judge Lewis, who, because of the imminent departure of J. T. and her mother, went to the airport and conducted a hearing with J. T. and her parents. Before going to the airport, he discussed the situation with Mr. Wagstaff and Mr. Ross, and both were present at the airport. It is unclear from the record whether these two men participated in the airport conversation which Judge Lewis had with J. T. and her parents.
Judge Lewis came away from the discussion with the impression 'that the 'crisis' was either contrived, or blundered into, and that it appeared that Alaska Children's Services and Mr. Wagstaff were interlopers' at the time they entered the case. Judge Lewis determined that the order of dismissal would stand, and J. T. and her mother apparently went to Utah.
The questions presented for review from the two fact situations are:
(1) Whether a juvenile may establish an attorney-client relationship with an attorney of his choice;
(2) if a minor may establish such a relationship, whether such choice should be permitted whenever the juvenile determines an attorney is necessary; and
(3) whether any persons the juvenile or his attorney desires to be present at the proceeding must be permitted to remain.'
Because of the different nature of the two matters giving rise to the issues presented for review, the questions will be discussed in the context of the two different fact situations. First, however, there are several jurisdictional questions which must be answered.
This case originally reached this court by petition for extraordinary relief in the nature of mandamus. Attorney Wagstaff, as petitioner, requested that the family court be directed to cease interfering with attorney-client relationships in the juvenile court. However, since the children are no longer before the court, and the matters are, for all practical purposes, closed, mandamus is inappropriate. The trial court cannot be ordered to allow petitioner to represent persons no longer before the court.
The Superior Court urges that lack of service of process upon the Attorney General is fatal to the jurisdiction of this court, basing its contention on Appellate Rules 25(a)(3) and 39(b). 2 The record is unclear as to whether the Attorney General was in fact served. Petitioner alleges in his brief that the Attorney General's office was served by ordinary and certified mail, but no documentation appears in the record.
Proof of service may be 'by certificate of an attorney . . . or by any other proof satisfactory to the court.' Civil Rule 5(f)(1). Under the unusual circumstances of this case, we find petitioner's signed brief adequate to satisfy this requirement.
The Superior Court next argues that Attorney Wagstaff does not have the requisite standing to bring the issues in this petition before us.
The modern requirements for standing are somewhat less rigorous than their earlier...
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J.A.R. v. Superior Court In and For County of Maricopa
...that parents are entitled to choose their children's attorney simply because they would be liable for the expenses. Wagstaff v. Superior Court, 535 P.2d 1220 (Alaska 1975). In Wagstaff, the court also rejected the argument that the minor child was incapable, because of his age, of contracti......
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A.W., In Interest of
...the court is obligated to respect the wishes of minors with respect to their choice of representation. In Wagstaff v. Superior Court, Family Court Division (1975), 535 P.2d 1220, the Supreme Court of Alaska rejected the theory that the parents should choose the juvenile's attorney since the......