State, Department of Revenue, Child Support Enforcement Division ex rel. Dew v. Superior Court

[15] OPINION COMPTON, Justice. In a paternity action, the superior court ordered the State, Department of Revenue, Child Support Enforcement Division (State), to advance fees to appointed counsel in accordance with the court’s interpretation of a form court order entitled “Order Appointing Attorney Under Soldiers’ and Sailors’ Civil Relief Act.” The State petitioned this court for review. See Alaska Appellate Rule 402(a)(1). We granted review to answer the following question: when counsel is appointed pursuant to the Soldiers’ and Sailors’ Civil Relief Act (SSCRA) to represent a defendant in a paternity action and the State files the action on behalf of the minor child or the mother, who must advance compensation to counsel, the State or the superior court? We conclude that the superior court correctly placed the initial burden of compensating appointed counsel on the State. Therefore, we affirm. I. FACTS AND PROCEEDINGS On April 10, 1992, the State of Alaska, Department of Revenue, Child Support Enforcement Division, filed a paternity suit on behalf of a minor child against Adam Poston, pursuant to AS 25.27.040(a).1 Poston, who was in the military, did not answer the complaint. Pursuant to the State’s motion made in compliance with the SSCRA, 50 U.S.C. app. § 520 (1990), the superior court appointed counsel to contact Poston and assist him as specifically directed in the order.2 To effect the appointment, the court used a form order which stated in part that: “Unless the box below is checked, plaintiff shall compensate the above-named attorney_ These fees and costs may later be included in plaintiffs cost bill under Civil Rule 79.” Checking the box would make operative the following language: Plaintiff has shown an inability to pay for such representation. Therefore, counsel will be paid by the Alaska Court System as provided in Administrative Rule 12(d)(2)(E) — (I). All claims for compensation must be submitted on court form ADM-121 within 30 days following disposition of the case. The box was not checked. After appointed counsel performed the services required by the order, he submitted to the State a request for compensation.3 The State requested that the superior court grant it relief from the order of appointment on the ground that the plaintiff minor child was unable to pay for the representation. The court denied relief, ordering the State to advance compensation to counsel because “the State is the plaintiff and not indigent.” On reconsideration, the court affirmed its previous holding, stating that former Administrative Rule 12(d)(2)(B)(vii),4 then applica [16] ble, authorized “non-indigent plaintiffs, in this case the State Dept, of Revenue, to pay for representation.” Shortly thereafter, in Anderson v. Bynum, Case No. 3AN-92-6989, a different paternity ease also initiated by the State, the superior court appointed counsel for a defendant under the SSCRA and held that the defendant’s counsel was to submit her request for payment of fees to the court. In that case, the court regarded the child’s mother as the “plaintiff’ and determined she was unable to pay for the representation. The State then filed a Petition for Review of the superior court’s order that the State compensate Poston’s appointed counsel, which we granted. II. DISCUSSION The State urges this court to conclude that it is the superior court and not the State that should advance compensation to counsel appointed under the SSCRA. The State makes two arguments to support its claim: (1) no statutory authority exists for the court to order the State to advance appointed counsel’s fees; and (2) the State is not an “opposing party” as that term was intended under former Administrative Rule 12(d)(2)(B)(vii). We disagree. The issue in this case is whether the superior court erred in determining that former Administrative Rule 12(d)(2)(B)(vii) authorized it to order the State to advance SSCRA counsel’s fees. This is a question of law. This court reviews questions of law de novo, adopting the rule that is most persuasive in light of precedent, reason, and policy. Langdon v. Champion, 745 P.2d 1371, 1372 n. 2 (Alaska 1987). A. Administrative Rule 12(d)(2)(B)(vii) Was Adopted Under Authority Granted By the State Constitution The State argues that the superior court does not have statutory authority to order the State to advance fees for counsel appointed pursuant to the SSCRA. The State contends that Alaska statutes provide for compensation of appointed counsel only in proceedings which result in a “prevailing party.” The State asserts that where the appointed counsel performs specific tasks to assist a defendant who is in the military, and does not litigate the merits of the action, there is no “prevailing party.” Thus any assessment of SSCRA counsel’s fees is unauthorized. The State argues that the right to counsel’s fees is purely statutory because no such right existed at common law. McDonough v. Lee, 420 P.2d 459, 460 (Alaska 1966). The State’s argument is misguided. It confuses the SSCRA appointment procedure with awarding counsel’s fees to a prevailing party at the conclusion of litigation. In the case at bar, the services rendered by SSCRA counsel are analogous to services rendered by persons who assist a party in effectuating a lawsuit, such as process servers. While SSCRA counsel’s services are not ministerial, they are limited and essentially informational. Significantly, the plaintiff cannot obtain a default judgment unless SSCRA counsel is appointed and performs the services required by the appointment.5 Whether the plaintiff prevails is irrelevant to the question of whether the State or the superior court must advance SSCRA counsel’s fees. The Alaska Constitution grants the supreme court authority to make and promulgate “rules governing the administration of all courts” and “rules governing practice and procedure in civil and criminal eases in all courts.” Alaska Const, art. IV, § 15. [17] This court’s power under this section is “explicitly broad and very nearly complete.” Citizens Coalition for Tort Reform, Inc. v. McAlpine, 810 P.2d 162, 165 (Alaska 1991). In McAlpine, this court reviewed a proposed initiative that would have affected contingency fees in tort cases. The lieutenant governor had refused to place it on the ballot. His refusal had been upheld by the superior court. This court affirmed, holding that the fee limit was a rule of court, forbidden to the initiative process. Id. This court also cited Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 575 (Alaska 1969), for the proposition that the legislature may not initiate rules, but may only override the supreme court’s rules. These cases confirm the power of this court to regulate “practice and procedure in ... all courts.” Alaska Const, art. IV, § 15. Who advances SSCRA counsel’s fees is a matter of “practice and procedure.” Former Administrative Rule 12(d)(2)(B)(vii) provided the mechanism to address this issue. Hence the Rule was within this court’s power to establish. The State argues that State v. Superior Court, 718 P.2d 466 (Alaska 1986), controls this case. In Superior Court, this court struck an order requiring the Attorney General’s office to pay for an attorney appointed under the SSCRA. We held that “no authority permitted] the court to mandate that such fee be paid by the Attorney General.” Id. at 467. At the time that case was decided, the version of Administrative Rule 12 at issue in this case did not exist. Rather, Administrative Rule 13 was the applicable rule, and it made no mention of payment by an “opposing party.”6 In contrast, former Administrative Rule 12(d)(2)(B)(vii) did refer to payment of fees by the opposing party and, by implication, required that an opposing party who was financially able to pay such fees pay them. Therefore, Superior Court does not control the outcome of this case. B. Former Administrative Rule 12 Required the Superior Court to Order the State to Pay the Costs of Appointed Counsel The superior court issued two orders directing the State to pay SSCRA counsel’s fees pursuant to former Administrative Rule 12(d)(2)(B)(vii), reasoning that the State was “the plaintiff’ and not indigent. The State argues that it is not an “opposing party” because it is not acting as a private litigant in a paternity case, but rather in a representative capacity. The State claims that the child or custodian is more appropriately viewed as the defendant’s “opposing party.” To support this argument, the State relies on Reynolds v. Kimmons, 569 P.2d 799 (Alaska 1977). In Reynolds, this court held that an indigent defendant has the right to appointment of counsel in a paternity suit in which the plaintiff is represented by the State. Id. at 803. The State had filed suit in the name of the mother, who this court referred to as “the real party in interest.” Id. at 799-800. The State suggests that this is determinative of the question of whom is the opposing party. The State fails to note one predicate for the court’s holding: In light of the fact that paternity suits, in effect, are brought by the State, the significance of the parent-child relationship involved and the peculiar problems presented, we hold that due process requires the appointment of counsel for an indigent defendant. Id. at 803 (emphasis added). The State concedes that “[the State] is authorized by statute to bring paternity actions and, therefore, is a real party in interest for the purpose of being able to bring the suit.”7 However, it asserts that Civil Rule [18] 17(a) is not determinative of whether the State should be considered an “opposing party” under Administrative Rule 12. The State contends that although the State will benefit in some cases by being able to recoup paid public assistance from the biological father if paternity is established, the child has an interest in all cases, and therefore should be regarded as the “opposing party.” The State’s argument again is misguided. Administrative Rule 12 does not determine the ultimate liability for SSCRA counsel’s fees. It provides for the advancement of counsel’s fees once counsel’s services have been performed. The State controls the conduct of the litigation. The opposing party, unless unable to pay, initially must advance the costs associated with prosecuting the action. SSCRA counsel’s fees are one such cost. III. CONCLUSION Former Administrative Rule 12(d)(2)(B)(vii) provided the court with statutory authority to order the State to advance appointed counsel’s fees. The State is the opposing party and has made no showing of an inability to pay. The order of the superi- or court is AFFIRMED. Footnotes [1] AS 25.27.040(a) provides in part: The agency shall appear on behalf of minor children or their mother or legal custodian or the state and initiate efforts to have the paternity of the children bom out of wedlock determined by the court. [2] The Soldiers’ and Sailors’ Civil Relief Act provides that a member of the armed services is entitled to appointed counsel prior to a default judgment being entered against him or her. 50 U.S.C. app. § 520 (1990). The appointed attorney has the following duties: 1. contact the defendant and assure that defendant has actual notice of the lawsuit, 2. advise defendant of the protections of the Soldiers' and Sailors' Civil Relief Act, 3. advise defendant of the possibility of entry of default judgment and of the consequences of such a judgment, 4. ascertain whether defendant's ability to appear and defend his or her legal interests is affected in any way by defendant’s military status, and 5.if the defendant wishes, move for a stay of the proceedings to enable defendant to obtain counsel or prepare a defense on the merits of the case. [3] The State notes that the appointed attorney will request compensation before the case is concluded as the compensation for fees does not depend on the outcome of the case. [4] Appointments may be made in the following 1ypes of cases without prior approval of the administrative director, but only in cases in which the required services would not otherwise be provided by a public agency: (vii) Attorneys appointed for absent service persons pursuant to the Soldiers!'] and Sailors!'] Civil Relief Act (50 USC 520) when the opposing party is financially unable to pay for such representation. [16] Former Alaska R.Admin.P. 12(d)(2)(B). Former Administrative Rule 12(d)(2)(B)(vii) has been amended and renumbered as Administrative Rule 12(e)(2) (1994). [5] A plaintiff may recover this cost from the defendant if the plaintiff prevails. Civil Rule 79(b) provides: (b) Items Allowed as Costs. A party entitled to costs may be allowed ... the expense of service and publication of summons or notices, and postage when the same are served by mail.... In addition to the items allowed as costs by law and in these rules, a party shall be allowed any other expenses necessarily incurred in order to enable a party to secure some right accorded the party in the action or proceeding. [6] In part, the rule provided that: “Attorneys appointed by the court to represent persons ... pursuant to statute ... shall be compensated at the rate of $40.00 per hour.” Former Alaska R.Admin.P. 13(a). [7] The State cites Civil Rule 17(a), which provides: Real Party in Interest. Every action shall be prosecuted in the name of the real party in interest. An executor, administrator, guardian, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in his [or her] own name without joining with him [or her] [18] the parly for whose benefit the action is brought; and when a statute of the state so provides, an action for use or benefit of another shall be brought in the name of the state. Alaska R.Civ.P. 17(a) (emphasis added).