CHRISTEN, Justice.
We granted the Office of Public Advocacy's petition for review on the limited question whether the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA) qualifies as a "public agency" within the meaning of Flores v. Flores and AS 44.21.410(a)(4), such that the Office of Public Advocacy is required to provide representation to an indigent party in a child custody dispute in which the other party is represented by ANDVSA. Because we maintain our holding from Flores that it would be fundamentally unfair, in the specific context of child custody disputes, to allow public funding to support one party but not that party's indigent opponent, we hold that ANDVSA does qualify as a public agency for purposes of AS 44.21.410(a)(4).
This case grew out of a child custody dispute in the Juneau Superior Court. The mother was represented by the Alaska Network on Domestic Violence and Sexual Assault (ANDVSA), a nonprofit corporation. The father was indigent, and the superior court determined, sua sponte, that it was obligated under AS 44.21.410(a)(4) to appoint counsel for him through the Office of Public Advocacy (OPA). After the court appointed counsel, OPA moved to intervene, withdraw from representation, and convert the representation issue to a declaratory judgment action. OPA argued that its appointment was improper under Flores v. Flores
At a hearing on October 26, 2009, the superior court expressed doubts that it could "make any distinction at all for the purpose of applying the Flores holding between [Alaska Legal Services Corporation, which was the "public agency" in Flores] and [ANDVSA]" given that "they are both private nonprofits, largely publicly funded, subject to a number of strings and government entanglements by virtue of their public funding, [and] subject to a number of state and federal laws." The court also observed that "the Flores holding doesn't give a lot of explanation as to why [the Alaska Supreme Court] concluded that [Alaska Legal Services Corporation] is a public agency." Two days later, the superior court entered an order in which it: (1) granted OPA's motion to intervene for the purpose of filing a motion to withdraw as counsel for the father; (2) denied OPA's motion to withdraw as counsel; and (3) denied OPA's motion to convert the action to a declaratory judgment action.
OPA filed an original application with this court under Appellate Rule 404.
The question whether ANDVSA qualifies as a "public agency" is a question of law, which we review de novo.
Flores v. Flores was a divorce proceeding in which custody of the divorcing couple's child was the only contested issue.
On appeal, we held that, "[t]he interest at stake in this case is one of the most basic of all civil liberties, the right to direct the upbringing of one's child."
Alaska Statute 44.21.410(a)(4) was enacted in 1984 as part of the law establishing the Office of Public Advocacy. The statute provides in part: "The office of public advocacy shall ... provide legal representation ... to indigent parties in cases involving child custody in which the opposing party is represented by counsel provided by a public agency." This language appears to have been drawn directly from Flores.
In holding that there was a right to counsel in Flores, we noted that, although the custody proceedings below had been initiated by a "private individual,"
This emphasis on fairness and equal advantage indicates that the right to counsel where the opposing party is represented by a "public agency" arises, at least in part, from the government's otherwise one-sided support for the party with an attorney supplied by a public agency. Such support need not be provided exclusively through funding or the direct provision of government resources; but fairness considerations undoubtedly do arise where one party benefits from the government's funding of a "public agency." As ANDVSA puts it, this court was concerned in Flores with "the fundamental imbalance of power that occurs when one side has an attorney being paid in part by public funding and the other side is indigent and is without any counsel."
The notion that government funding sources are among the characteristics required for an organization to be classified as a "public agency" is underscored by the remedy we provided in Flores: after finding that ALSC and the Public Defender Agency could not provide representation under the circumstances of the case, we concluded that counsel should be appointed from the private bar, with attorney compensation provided by the State pursuant to Administrative Rule 15.1.
Moreover, where definitions from other jurisdictions are in direct conflict with the Flores holding that ALSC was a public agency, those definitions are clearly irrelevant to the question on appeal. It is reasonable to assume, at a minimum, that the Flores court was aware of the characteristics of ALSC specifically identified by Justice Connor in his partial dissent, where he noted that "the Alaska Legal Services Corporation is a private corporation and not an agency of the state or federal government."
Flores thus suggests that the characteristics identified by Justice Connor—namely, being a private non-profit corporation with no connection to a formal government agency—do not preclude an organization from designation as a public agency. Several of the "public agency" definitions cited by OPA require that an organization be a government agency or government-created agency in order to qualify as a "public agency." To now adopt those definitions would, as ANDVSA argues, effectively overrule the approach we took in Flores. We decline to take that step.
We conclude that the use of the term "public agency" in Flores must be understood as referring primarily to the nature of an organization's funding sources, and not to an organization's status as a government agency.
As of 1979, ALSC received approximately 78 percent of its funding from the national Legal Services Corporation (LSC), which was created by Congress as a private nonprofit corporation to distribute federal funds to local grantee legal assistance organizations.
We do not find these distinctions to be meaningful. OPA provides no explanation for why funding received from the government through discretionary grants is less significant for purposes of designating a "public agency" than funding received through the normal state or federal budget process. More importantly, it is not clear that ALSC receives or ever did receive guaranteed budget funding rather than grants: though the record does not include detailed budget information about the status of ALSC in 1978-79, its 2009 accounting records label the majority of its funding from LSC as a "Basic Field Grant," and designate other government funding as, for example, "Family Caregiver Grants" and "Domestic Violence Grants"; and ALSC's 1978-79 accounting statements include a broad category of "grants and contracts" from LSC and a number of other sources. OPA implies that these contributions are non-discretionary or otherwise different from the grants that fund ANDVSA. But as ALSC explains in its amicus brief:
Similarly, OPA's description of LSC as ALSC's "parent" corporation is called into question by the affidavit of ALSC's executive director Andy Harrington, who stated that "[a] review of the regulations reflects that LSC does not refer to the individual programs as LSC entities or LSC branch offices, nor does it refer to itself as the parent of the individual programs.... The most common term the regulations use to refer to the individual programs is `recipients'...." The LSC-ALSC relationship does not seem to extend far beyond funding; as Harrington's affidavit makes clear, LSC places restrictions on how its funding can be used, but it does not create individual legal services programs, hire or fire those programs' directors, or appoint board members. Indeed, ANDVSA draws a compelling parallel between ALSC's relationship with LSC and its own relationship with the OVW, a federal agency that supplies most of ANDVSA's funding. Like LSC, OVW requires that ANDVSA comply with federal regulations and imposes other special conditions—including regular progress reports that are made available to the public—for ANDVSA to maintain its funding eligibility.
We conclude that the grounds OPA proposes for distinguishing between ALSC's and ANDVSA's funding structures and sources are not persuasive.
From its inception in 1966, ALSC has been governed by a board of fifteen directors; nine are attorneys selected by the Alaska Bar Association and six are non-attorneys nominated by other organizations specified in ALSC's bylaws. LSC has no power over the director staffing or board membership of its grantees, although the funding it provides is subject to restrictions on use. In addition to the funding distinctions discussed above, OPA argues that ANDVSA differs from ALSC because its board of directors includes appointees from the Alaska Bar Association, "an instrumentality of the State of Alaska," whereas ANDVSA's board consists of all members of the ANDVSA corporation and is not subject to similar government "direction or control."
ANDVSA responds that the organizational differences cited by OPA are minor and unrelated to whether ANDVSA is a public agency. We agree. Although OPA emphasizes the government "control and direction" exercised on ALSC's board, board composition for both ALSC and ANDVSA is determined by each organization's self-imposed bylaws.
We AFFIRM the superior court's holding that ANDVSA is a public agency under Flores for purposes of AS 44.21.410(a)(4).
STOWERS, Justice, dissenting.
STOWERS, Justice, dissenting.
I agree with Justice Connor's dissenting opinion in Flores v. Flores
But given the complete lack of analysis or explanation of how and why the Flores court determined that ALSC is a "public agency," and my sense that the Flores court's use of the phrase "public agency" was a justification unconsidered and derived from whole cloth, I am loath to join in the ANDVSA opinion and expand Flores to include ANDVSA merely because ANDVSA shares certain organizational and funding source similarities with ALSC. I don't think stare decisis compels us to extend one conclusory opinion resting on questionable premises to another case involving a different private, non-profit corporation. I don't see that the due process clause
One of the arguments in Flores was that the Public Defender Agency should be required to represent such an indigent parent. (The Office of Public Advocacy had not yet been created at the time Flores was decided.) The court rejected that argument, but suggested that ALSC probably could provide both parties with legal representation if appropriate regulations were developed such that "two attorneys employed by ALSC could represent conflicting positions in litigation, each having undivided loyalty to his client and fully able to exercise that independent professional judgment which is required by the Code of Professional Responsibility."
I agree with the court that it appears likely that the legislature considered the decision in Flores when it enacted AS 44.21.410(a)(4) in 1984 as part of the law establishing the Office of Public Advocacy. Alaska Statute 44.21.410(a)(4) provides in part that "[t]he office of public advocacy shall... provide legal representation ... to indigent parties in cases involving child custody in which the opposing party is represented by counsel provided by a public agency."
I therefore agree with the Office of Public Advocacy that ANDVSA is not a public agency and that its appointment was improper under Flores and AS 44.21.410(a)(4). I respectfully dissent from today's opinion that decides to the contrary.
