The state of Alaska sued itself. Was it worth it?

This massive seal of the state of Alaska hangs on April 19, 2018, behind the dais where Alaska Supreme Court justices hear cases in the Boney Courthouse in Anchorage.
The seal of the state of Alaska hangs on April 19, 2018, behind the dais where Alaska Supreme Court justices normally hear cases in the Boney Courthouse in Anchorage. As part of its outreach program Supreme Court LIVE, the court heard Alaska Public Defender Agency v. Superior Court at West Anchorage High School. (Photo by Jeremy Hsieh/KTOO)


Sometimes, the state of Alaska sues itself.

In October, the Alaska Supreme Court ruled on a particularly odd intrastate case. Through one lens, the case was about grand legal questions of poverty, how inaccessible the court system is for rural Alaska, and how those factors undermine core rights in our justice system.

But through another lens, the justices were basically deciding a down-in-the-weeds accounting question with almost no practical effect — except for running up publicly-funded legal bills.

In 2016, the state’s Division of Juvenile Justice was prosecuting a minor from the village of Marshall. The state’s Public Defender Agency represented him.

The minor wasn’t in state custody and wanted to stand trial, which meant getting to a courthouse in Bethel. But his family couldn’t afford the travel. A Bethel Superior Court judge ordered the Public Defender Agency to pick up the tab.

Then, the agency sued the court system, arguing that the courts or Juvenile Justice should pay for the travel. It eventually went to the Alaska Supreme Court.

“So what we really have here is a squabble between two different agencies of the state about who’s going to pay,” said Justice Craig Stowers during oral arguments last year.

Chief Justice Craig Stowers waits outside the House speaker’s office before delivering his State of the Judiciary address to a joint session of the Alaska Legislature on Feb. 7, 2018. (Photo by Skip Gray/360 North)

Just noodle on that another second: The lawyers and judges all agreed the state must pay the travel bill. So whatever the outcome of this case, the effect on the state of Alaska’s bottom line was the same. Except now, there’s lawyers’ fees, too.

The court system hired an outside law firm for its defense. That cost $32,700, according to court system spokesperson Mara Rabinowitz. Juvenile Justice also got pulled into the case, and racked up legal fees from the Department of Law. By the end, those lawyers logged 388 billable hours worth $53,046.37, according to Department of Law spokesperson Cori Mills.

And then there’s the Public Defender Agency’s time, which isn’t easy to quantify because it doesn’t log billable hours. But collectively, about $86,000 in lawyers’ fees, plus the agency’s time, went into this legal exercise in budgetary semantics.

The travel expenses themselves would be a fraction of the legal costs: plane tickets for the youth and a parent, and some money for food and a place to stay. Doug Moody worked on the case for the Public Defender Agency. He said he can’t disclose the dollar value of the travel in this specific case due to confidentiality.

Dollars and cents aside, the court’s ruling could have set a precedent for the next time a poor, juvenile defendant asserts their right to stand trial. Which is rare.

Division of Juvenile Justice Director Tracy Dompeling said only about a third of their cases lead to formal court action, and only a small fraction of those go to trial. Dompeling said her division resolves most cases through things like youth court, restorative justice interventions within the community, or tribal courts. She polled her team to see how often trial travel comes up.

“Most of the responses I got back were folks from all over the state that couldn’t even remember the last time there was a juvenile trial,” she said.

The attorneys arguing the case came up with two cases. One originated in 2013 in Hooper Bay and another in 2015 in Pilot Station. The Hooper Bay case was resolved before going to trial. In the Pilot Station case, the courts ordered Juvenile Justice to pay.

So, it’s a niche issue. But the court fight in this Marshall case opened a big can of worms. The Court of Appeals decided that not only should that kid’s travel bill go to the Public Defender Agency, but that the agency should also be paying for travel for all of its cases like this — juveniles and adults.

KTOO couldn’t get someone with the Public Defender Agency to agree to a formal interview, but in separate filings at the Bethel Superior Court level and the Court of Appeals, two assistant public defenders said that the potential consequences of this ruling are “enormous.” They framed it as a threat to the agency’s ability to defend Alaskans who can’t afford their own lawyers, that paying for all of their clients’ travel bills could come at the expense of hiring experts, calling witnesses, or employing lawyers, investigators and paralegals.

“The Agency could be responsible for travel expenses for every indigent out-of-custody client, not only for airfare from Marshall to Bethel, but even for taxi or bus fare from one part of Anchorage or Fairbanks to another,” the assistant public defenders wrote. “The legal argument … is thus so broad that it does not distinguish between indigent child and adult defendants or between indigent defendants traveling long and short distances.”

So from the Public Defender Agency’s perspective, the down-in-the-weeds accounting debate over rare situations involving small dollar figures had blown up into a potentially huge problem that could touch every case involving clients who aren’t in state custody that must travel.

David Mannheimer was the chief judge of the Court of Appeals at the time and wrote the court’s opinion.

“We are aware that our 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,” Mannheimer wrote. “In the end, this litigation is about money and budgeting. Now that we have identified the government agencies who are responsible for paying these travel expenses, it is the legislature’s task to adjust the agencies’ budgets to accommodate these expenses.”

Elected lawmakers usually aren’t inclined to spend more money on an agency whose core mission is to defend people accused of crimes. So the Public Defender Agency appealed. The Supreme Court heard the case last February.

One exchange between Justice Susan Carney and David Wilkinson, the lawyer representing the Division of Juvenile Justice, highlighted an absurd legal workaround for getting travel covered.

Carney: So what happens if the juvenile and his parents can’t afford to get him there and he doesn’t show up?
Wilkinson: So if the juvenile can’t afford to get there, he doesn’t show up and the court hasn’t authorized the waiver of that attendance, then the … trial wouldn’t wouldn’t be able to go forward. That’s my understanding.
Carney: It just wouldn’t happen?
Wilkinson: It — well, it — the juvenile would — the court could order that DJJ then detain the juvenile.
Carney: Which would involve a juvenile probation officer or perhaps a police officer arresting the kid?
Wilkinson: That’s correct.
Carney: Putting the kid in custody?
Wilkinson: Mmm hmm.
Carney: And then being transported?
Wilkinson: Yes, Your Honor.
Carney: On Juvenile Justice’s dime.
Wilkinson: Yes, Your Honor.

In October, the high court concluded that state law doesn’t specify who gets the travel bill in this case. The justices said it’s up to lawmakers and policymakers to rewrite the rules so that they do. Stowers brought this up during the Supreme Court hearing.

“If you’ve got two agencies that just want an answer, why don’t the agencies go to the Legislature and ask the Legislature to clarify what it is that the Legislature intends? Why is this a court case, why don’t you folks go and solve the problem, if you can?” he asked.

After the legal dust settled last fall, representatives of the Division of Juvenile Justice and the Public Defender Agency said they did informally agree that, yes, going forward they would work it out themselves.