Office of Public Advocacy v. Fannie Berezkin f/n/a Fannie Smith and Harold Smith
514 P.3d 1281
Alaska2022Background
- ALSC’s pro bono program screens low-income clients, assigns volunteer private attorneys, and provides training, malpractice insurance, office space, mentorship, and expense reimbursement.
- In Oct 2019 ALSC assigned a volunteer attorney to represent Fannie Berezkin in a divorce and child-custody action against Harold Smith.
- Smith, indigent and incarcerated with limited access to legal resources, requested appointed counsel; the superior court ordered the Office of Public Advocacy (OPA) to represent him under Flores and state statute.
- OPA moved to vacate, arguing ALSC pro bono volunteers are not “counsel provided by a public agency,” that ALSC’s support is de minimis, and that OPA lacks statutory authority/resources for such appointments.
- The superior court denied OPA’s motion, concluding ALSC’s pro bono program effectively “provides” counsel using public funds; OPA sought interlocutory review. The case settled after OPA’s appointment.
Issues
| Issue | Plaintiff's Argument (OPA) | Defendant's Argument (ALSC / Berezkin) | Held |
|---|---|---|---|
| Whether an ALSC pro bono attorney is “counsel provided by a public agency” under Flores / AS 44.21.410(a)(4) | Pro bono volunteers are only loosely affiliated; ALSC support is aimed at recruiting volunteers and is de minimis; volunteers are not “provided by” ALSC. | ALSC recruits, screens, trains, mentors, insures, and supports volunteers with public funds; clients have an attorney-client relationship with ALSC; volunteers confer the same advantages as staff attorneys. | Pro bono attorneys assigned through ALSC are “provided by a public agency”; Flores/AS 44.21.410(a)(4) apply; OPA must provide counsel. |
| Mootness / public-interest exception | The case settled and is therefore moot; review unnecessary. | Issue is capable of repetition, likely to be circumvented by settlement, and implicates important public interests (parental rights). | Case is moot but satisfies the public-interest exception; court addresses merits. |
| Whether Mathews balancing or Dennis O. limits Flores here | Flores should be narrowly read; apply Mathews balancing to deny categorical Flores relief to cases with pro bono counsel. | Flores governs child-custody disputes where opposing counsel is provided by a public agency; statute mirrors Flores so categorical rule applies. | Court declines to apply Mathews here; adheres to Flores/ANDVSA framework and finds categorical application when opposing counsel is provided by a public agency. |
| Statutory obligation of OPA under AS 44.21.410(a)(4) | OPA claims statutory authority/resources do not extend to representing indigent parents opposed by ALSC pro bono counsel. | Statute tracks Flores; when opposing parent has counsel provided by a public agency OPA is required to appoint counsel to indigent parent. | Court holds OPA is statutorily required to provide representation in these circumstances; appointment affirmed. |
Key Cases Cited
- Flores v. Flores, 598 P.2d 893 (Alaska 1979) (establishes due-process right to appointed counsel for indigent parent when opposing party is represented by counsel provided by a public agency)
- In re Alaska Network on Domestic Violence & Sexual Assault, 264 P.3d 835 (Alaska 2011) (holds a nonprofit largely funded by government qualifies as a “public agency” for Flores purposes)
- Mathews v. Eldridge, 424 U.S. 319 (U.S. 1976) (articulates the three-factor due-process balancing test)
- Dennis O. v. Stephanie O., 393 P.3d 401 (Alaska 2017) (declines categorical right to appointed counsel when opposing parent has private counsel; applies Mathews to individual due-process claims)
- In re K.L.J., 813 P.2d 276 (Alaska 1991) (recognizes state involvement via judicial process can require appointment of publicly funded counsel in parental-rights termination contexts)