Office of Public Advocacy v. Fannie Berezkin f/n/a Fannie Smith and Harold Smith ( 2022 )

Notice: This opinion is subject to correction before publication in the PACIFIC REPORTER .
Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email
corrections@akcourts.gov.
THE SUPREME COURT OF THE STATE OF ALASKA
In the Matter of )
) Supreme Court No. S-17855
OFFICE OF PUBLIC ADVOCACY, )
) OPINION
Regarding appointment ordered in Smith v. )
Smith, Superior Court No. 4BE-19-00403 CI ) No. 7610 – August 12, 2022
)
Petition for Review from the Superior Court of the State of
Alaska, Fourth Judicial District, Bethel, Terrence P. Haas,
Judge.
Appearances: Elizabeth Russo, Deputy Director, Assistant
Public Advocate, Office of Public Advocacy, and
James E. Stinson, Public Advocate, Anchorage, for
Petitioner. Samuel J. Fortier, Fortier & Mikko, PC,
Anchorage, for Respondent Fannie Berezkin f/k/a Fannie
Smith. No appearance by Respondent Harold Smith. Sydney
Tarzwell, Alaska Legal Services Corporation, Anchorage, for
Amicus Curiae Alaska Legal Services Corporation.
Before: Winfree, Chief Justice, Maassen, Carney,
Borghesan, and Henderson, Justices.
CARNEY, Justice.
BORGHESAN, Justice, concurring.
I. INTRODUCTION
We granted the Office of Public Advocacy’s (OPA) petition for review on
the question whether counsel provided through Alaska Legal Service Corporation’s
(ALSC) pro bono program is counsel “provided by a public agency” within the meaning
of Flores v. Flores1 and OPA’s enabling statute. 2 We conclude that such counsel is
“provided by a public agency” and we affirm the superior court’s order appointing OPA
to represent an indigent parent in a child custody case.
II. FACTS AND PROCEEDINGS
In October 2019 Fannie Berezkin contacted ALSC for help obtaining a
divorce from Harold Smith. To serve as many indigent Alaskans as possible, ALSC’s
pro bono program matches clients who are eligible for ALSC services with volunteer
attorneys. ALSC assigned Samuel Fortier, a private attorney who volunteered for an
assignment through ALSC’s pro bono program. Fortier filed a complaint for divorce and
sole legal and physical custody of Berezkin and Smith’s child. In mid-December Smith
filed an affidavit with the court in response. It does not appear that Smith served the
affidavit on Berezkin, and two days after the filing, Berezkin moved for entry of default
against Smith.
At a status hearing in February 2020 the court noted that after it received
Berezkin’s request for entry of default, it had reviewed the file and discovered Smith’s
affidavit. Berezkin then withdrew her request. The court advised Smith that he had the
right to hire an attorney; Smith responded that he was indigent and asserted a right to
have one appointed under the Sixth Amendment. The court suggested that Smith read
the Flores case and research his right to appointed counsel. Smith, who was
incarcerated, explained that the law library at the prison was unavailable because the
1
598 P.2d 893, 895-96 (Alaska 1979) (holding that due process required
appointment of counsel for indigent parent in child custody case when other parent was
represented by ALSC, a public agency).
2
See AS 44.21.410(a)(4) (requiring OPA to provide counsel “to indigent
parties in cases involving child custody in which the opposing party is represented by
counsel provided by a public agency”).
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internet was not working. The court set trial for April and scheduled a status hearing for
mid-March. The court also agreed to send a letter to the prison explaining that Smith
would benefit from the use of the law library.
Smith did not appear for the March status hearing, but filed a motion for
assistance of counsel that day. He argued that because Berezkin was represented by a
lawyer provided by ALSC, he was entitled to appointed counsel. He explained he was
indigent and did not have the proper training to represent himself and described his
efforts to obtain a lawyer through ALSC. He also submitted an affidavit explaining that
he had attempted to arrange transportation to the status hearing, but had been told
transportation was provided only in criminal proceedings. Berezkin filed a non-
opposition to Smith’s motion for appointed counsel.
The superior court granted Smith’s motion and ordered OPA to “designate
counsel to assist Mr. Smith in these proceedings.” Two weeks later OPA moved to
vacate the appointment. It argued that because Berezkin was being represented by a
private attorney working with ALSC’s pro bono program, Smith was not entitled to
representation under Flores. OPAargued that ALSC’s support for its pro bono attorneys
was “de minimis” and contrasted it with the support ALSC provided to its staff attorneys.
OPA further argued that it was not statutorily authorized to provide representation to
Smith and did not have sufficient resources to provide services if the right to counsel
under Flores included such cases.
Berezkin opposed OPA’s motion to vacate, arguing that Flores and OPA’s
enabling statute3 required only that the other parent’s counsel be “provided by” a public
agency not that the public agency assign a staff attorney. She also argued that ALSC
3
Id.-3- 7610
provided substantial support to its pro bono attorneys and that Smith was disadvantaged
because of Berezkin’s representation. She pointed out that of 500 custody cases handled
by ALSC in the past year, pro bono counsel were assigned in only 7 and that requiring
OPA to provide representation in such cases would not be a substantial additional
burden.
ALSC was granted leave to file an amicus brief. ALSC supported broad
access to representation for low-income Alaskans and noted that having opposing
counsel instead of a self-represented opposing party often led to speedy resolution of the
case. It argued that due process required the appointment of counsel in cases like
Smith’s and that its cooperating pro bono attorneys were provided by ALSC and
supported by public funds. ALSC agreed with Berezkin that providing counsel when the
other party had an ALSC pro bono attorney would not place a large burden on OPA
because ALSC did not provide pro bono counsel to many clients; it noted that this issue
had not come up previously in the 40 years since Flores was decided. In reply OPA
reiterated its initial arguments.
The court denied OPA’s motion to vacate. It held that denying Smith
appointed counsel while Berezkin was represented by an ALSC pro bono attorney
violated due process because
the existence of a publicly funded program that organizes,
trains, and insures lawyers to whom it then refers pre­
screened clients who thereby enjoy the benefit of a no-cost
attorney with access to the administrative resources and legal
clout of a federally grant-funded statewide agency inevitably
affords “advantages” well beyond the mere cost of counsel.
It noted that Smith would be at a disadvantage when “squar[ing] up against an opposing
lawyer provided by and substantially supported by what is quite likely Alaska’s largest
public interest law firm,” which was “made possible by the presence of public funding
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and support.”
OPAmoved to stay the proceedings and petitioned for interlocutory review.
We granted OPA’s petition, but denied the stay and directed OPA to continue
representing Smith. According to ALSC and Berezkin, the case settled two weeks after
OPA counsel was appointed.4
III. STANDARD OF REVIEW
“We apply our independent judgment in determining mootness because, as
a matter of judicial policy, mootness is a question of law.”5 Whether a pro bono attorney
provided through ALSC’s pro bono program qualifies as “counsel provided by a public
agency” under AS 44.21.410(a)(4) is a question of law, which we review de novo.6
IV. DISCUSSION
A. The Appeal Satisfies The Public Interest Exception To The Mootness
Doctrine.
Because the case settled soon after OPA was appointed and petitioned for
review, this case is moot.7 But “[e]ven when a case is moot, we may address certain
issues if they fall within the public interest exception to the mootness doctrine.”8 “The
4
Smith’s attorney did not sign the notice to court stating that the parties had
settled and OPA did not mention this fact in its briefing. However, OPA conceded at
oral argument that this case was moot.
5
Akpik v. State, Off. of Mgmt. & Budget, 115 P.3d 532, 534 (Alaska 2005).
6
See Harrold-Jones v. Drury, 422 P.3d 568, 570 (Alaska 2018).
7
See Fairbanks Fire Fighters Ass’n, Loc. 1324 v. City of Fairbanks, 48 P.3d
1165, 1167 (Alaska 2002) (“A claim is moot if it is no longer a present, live controversy
. . . .”).
8
Akpik, 115 P.3d at 535.
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exception consists of three factors: ‘(1) whether the disputed issues are capable of
repetition, (2) whether the mootness doctrine, if applied, may cause review of the issues
to be repeatedly circumvented, and (3) whether the issues presented are so important to
the public interest as to justify overriding the mootness doctrine.’ ”9
This case satisfies all of the criteria for the public interest exception to
mootness. First, whether the other party is entitled to appointed counsel may arise any
time ALSC assigns pro bono counsel in a custody dispute and the other party is indigent.
Second, as happened here, the appointment of counselmay lead to settlement of the case,
which would eliminate an appeal of the issue. And because the indigent party who could
benefit from counsel’s appointment pursuant to Flores willalways be unrepresented, that
party is unlikely to rely on Flores to request appointed counsel. Third, there is an
important public interest in resolving the issue because it implicates the constitutional
right “to direct the upbringing of one’s child.”10 We therefore address the issue despite
this case’s mootness.
B. An Overview Of Flores, Its Progeny, And AS 44.21.410(a)(4).
In Flores we recognized a due process right under the Alaska constitution
to appointed counsel for indigent parents in custody cases when the other parent is
represented by ALSC.11 We held that, based on the importance of “the right to direct the
upbringing of one’s child” and the “exceedingly difficult” nature of determining a child’s
9
Id. (quoting Kodiak Seafood Processors Ass’n v. State, 900 P.2d 1191,
1196 (Alaska 1995)).
10
Flores v. Flores, 598 P.2d 893, 895 (Alaska 1979) (“The 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.”).
11
Id. at 894.
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best interests, an unrepresented parent is at a “decided and frequently decisive
disadvantage” facing a represented opposing parent and that disadvantage becomes
“constitutionally impermissible where the other parent has an attorney supplied by a
public agency.”12 We observed that because the unrepresented mother lived in a
different state and was not able to travel to Alaska, she would “lose the custody
proceeding by default” if she were not to secure representation.13 We held that
“[f]airness alone dictate[d]” that an indigent, unrepresented parent facing “counsel
provided by a public agency” should have appointed counsel.14 We ordered that the
court appoint counsel paid by the court system because ALSC did not have the capacity
to provide conflict-free counsel and the Public Defender Agency’s enabling statute did
not require the agency to provide counsel in child custody cases.15
In 1984 the Alaska legislature created OPA16 and directed that, among its
other obligations, OPA “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.”17 We later observed that “[t]his language appears to have
been drawn directly from Flores.”18
12
Id. at 895-96.
13
Id. at 896.
14
Id. at 895.
15
Id. at 896-97.
16
See ch. 55, § 1, SLA 1984.
17
AS 44.21.410(a)(4).
18
In re Alaska Network on Domestic Violence & Sexual Assault, 264 P.3d
(continued...)
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In 2011 we decided In re Alaska Network on Domestic Violence & Sexual
Assault (ANDVSA),19 reiterating 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.”20 We therefore concluded that
ANDVSA, a nonprofit corporation receiving 99% of its funding from federal and state
government, was a public agency for the purposes of Flores.21 We emphasized that the
right to counsel in this context “arises, at least in part, from the government’s otherwise
one-sided support for the party with an attorney supplied by a public agency.”22
C. Smith Was Entitled To Flores Counsel.
OPA argues that the Flores decision was based on consideration of “due
process being afforded a parent who was facing a de facto termination of her parental
rights as a direct result of the custody case” and urges to us apply the Mathews v.
Eldridge balancing test.23 But we have never construed Flores so narrowly: in
18
(...continued)
835, 838 (Alaska 2011).
19
Id.
20
Id. at 836.
21
Id. at 839-41.
22
Id. at 838; cf. Dennis O. v. Stephanie O., 393 P.3d 401, 403-04, 406 (Alaska
2017) (declining to extend right to appointed counsel to indigent parent when other
parent represented by private counsel).
23
424 U.S. 319, 335 (1976). Mathews established a balancing test which
weighs the following three factors to determine whether an individual has received due
process:
First, the private interest that will be affected by the official
(continued...)
-8- 7610
ANDVSA, we held simply that Flores applied in “the specific context of child custody
disputes.”24 Flores (and OPA’s subsequent enabling statute) require appointment of
counsel when the opposing parent has “counsel provided by a public agency,” not by
engaging in an analysis of the Mathews balancing test.25
Here, Berezkin obtained counsel through ALSC in a child custody matter
with Smith, and ALSC assigned one of its pro bono attorneys to her case. The issue
before us is whether ALSC pro bono counsel is counsel “provided by” ALSC and
supported by public funds, giving the represented parent a “constitutionally
impermissible” advantage over the unrepresented parent under Flores.26
OPA argues that pro bono attorneys are only loosely affiliated with ALSC,
and that the resources ALSC provides are “aimed at attorneys in order to encourage them
to volunteer” and do not confer any special advantage on the litigants themselves. ALSC
counters that the only difference between a client represented by a pro bono attorney and
one represented by a staff attorney is that ALSC does not pay the salary of the pro bono
attorney. ALSC emphasizes its attorney-client relationship with the pro bono client and
23
(...continued)
action; second, the risk of an erroneous deprivation of such
interest through the procedures used, and the probable value,
if any, of additional or substitute procedural safeguards; and
finally, the Government’s interest, including the function
involved and the fiscal and administrative burdens that the
additional or substitute procedural requirement would entail.
Id. at 335.
24
ANDVSA, 264 P.3d at 836.
25
Cf. Dennis O., 393 P.3d at 403-04, 406 (concluding due process does not
require appointing counsel for parent when other parent retained private counsel).
26
Flores v. Flores, 598 P.2d 893, 896 (Alaska 1979).
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that the resources it provides pro bono attorneys are the same as those available to ALSC
attorneys.
According to ALSC, it “is Alaska’s largest and oldest agency providing free
civil legal assistance to low-income Alaskans.” ALSC is primarily funded by the Legal
Services Corporation (LSC), a nonprofit corporation established to provide federal
funding to legal service providers across the country. LSC requires legal service
providers that receive funds from it to maintain a pro bono program “to stretch scarce
public funds available for representation of indigent people.” All clients, including those
who will be represented by pro bono attorneys, are screened for eligibility27 and conflicts
and have an attorney-client relationship with ALSC. And if the pro bono attorney
withdraws from the case, ALSC still continues to represent the client.
ALSC’s pro bono attorneys are unpaid volunteers. But ALSC provides
malpractice insurance and reimburses their litigation expenses. ALSC also gives its pro
bono attorneys office space, access to its law library and training, and mentorship by
staff attorneys. In 2015 ALSC formalized its training program with a Pro Bono Training
Academy “to assist pro bono volunteers in areas of law that may be unfamiliar to them.”
ALSC also employs “multiple staff . . . to work [exclusively] on pro bono-related
projects.”
In Flores we focused on the advantage that a parent represented by counsel
from a public agency has in a custody case.28 An ALSC client receives the same level
of representation whether ALSC assigns a staff attorney or a volunteer attorney to the
case. The parent is screened by ALSC staff for eligibility and accepted as an ALSC
27
ALSC provides services to clients who qualify as “low income.”
28
Flores, 598 P.2d at 895-96.
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client before an attorney is assigned. The assigned attorney receives support from the
same ALSC staff and has access to the same ALSC resources. Here, ALSC determined
that Berezkin was eligible for its services and then provided her an attorney. Although
Berezkin’s attorney was a private attorney who volunteered to take a case assignment
from ALSC, he was “provided” to her by ALSC and afforded her the same advantage as
an ALSC staff attorney. And unlike an attorney who takes a pro bono case independent
of the ALSC program, Berezkin’s attorney received ALSC training, mentorship, and
institutional support.29
In ANDVSA we underscored “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.”30 We recognized that “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.’ ”31 We also concluded that “the term ‘public
agency’ . . . must be understood as referring primarily to the nature of an organization’s
29
OPA also argues that “other publicly available resources . . . level the
playing field for self-represented litigants,” and lists telephonic hearings, the Family Law
Self-Help Center, the Early Resolution Program, informal trials, and the leniency
afforded to pro se litigants. But as ALSC points out, many of these resources were not
available to Smith because he was incarcerated. And many of these resources were
available when we decided ANDVSA in 2011. See Stacey Marz, Early Resolution for
Family Law Cases in Alaska’s Courts, 31 ALASKA JUSTICE FORUM, Spring/Summer
2014, at 13 (describing establishment of Family Law Self-Help Center in 2001 and Early
Resolution Program between 2009 and 2011); Breck v. Ulmer, 745 P.2d 66, 75 (Alaska
1987) (requiring lenience to pro se litigants).
30
ANDVSA, 264 P.3d 835, 838 (Alaska 2011).
31
Id.-11- 7610
funding sources, and not to an organization’s status as a government agency.”32 We held
that ANDVSA qualified as a public agency because it was supported by public funding.33
Public funds also support ALSC’s pro bono program: LSC, which provides
ALSC’s largest source of funding, requires that 12.5% of its grant be used for the pro
bono program. With those funds ALSC provides pro bono attorneys training,
malpractice insurance, office services, and space to meet with their clients. The funds
are also used for staff to screen prospective clients and support pro bono attorneys. And
although OPA argues that “[t]he resources that ALSC puts into its program are . . . not
specifically provided to litigants,” the same is true for all ALSC clients, and all law firms
and agencies.
Neither Flores nor ANDVSA requires an analysis of whether and how
public funds are expended by the public agency in a particular case.34 Whether the
attorney assigned by ALSC was a paid staff attorney or an unpaid volunteer pro bono
attorney is not dispositive. Because Berezkin’s attorney was “provided by a public
agency,” Smith is entitled to appointed counsel.35
32
Id. at 839.
33
Id. at 838, 841.
34
Moreover, because ALSC receives funding from both private and public
sources, it is possible that some of its staff may be supported more by private than by
public funds. The source of an individual employee’s salary, however, does not
determine whether the agency is a public agency and is not relevant to our determination
that attorneys volunteering in ALSC’s pro bono program are “provided by a public
agency.”
35
OPA’s concern that requiring appointment of counsel in cases involving
ALSC pro bono attorneys “will significantly increase the number of cases to which OPA
is appointed” appears to be unfounded based upon the statistics provided by ALSC. In
(continued...)
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V. CONCLUSION
We AFFIRM the superior court’s order appointing counsel to Smith.
35
(...continued)
any case, because counsel is required under Flores, OPA is statutorily required to
provide representation. See AS 44.21.410(a)(4).
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BORGHESAN, Justice, concurring.
I agree with the court’s decision to affirm the superior court based on the
conclusion that this case is not meaningfully distinguishable from Flores v. Flores.1
OPA does not ask us to revisit Flores or otherwise attempt to argue that ALSC is not a
“public agency.” It argues solely that pro bono volunteers are not “provided by” ALSC
and therefore do not fall under the holding of Flores or OPA’s enabling statute. The
record in this case shows that ALSC recruits pro bono attorneys and uses its own funds
to give these attorneys substantial administrative and other support. ALSC therefore
“provides” these attorneys to ALSC’s clients, so under the holding and logic of Flores,
attorneys volunteering through ALSC’s pro bono program are “counsel provided by a
public agency.”2 And that must be true as well for a statute that appears to simply codify
the Flores ruling.3
However, I write separately because subsequent decisions have undercut
the basis for Flores’s holding that ALSC is a public agency — a holding that Justice
Stowers described as resting on a “complete lack of analysis or explanation” and a
“justification unconsidered and derived from whole cloth.”4 Whatever doctrinal and
practical justification Flores may once have had is now substantially eroded.
First, it is doubtful whether merely receiving public funds remains enough
1
598 P.2d 893 (Alaska 1979).
2
Id. at 895.
3
AS 44.21.410(a)(4) (requiring OPA to “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”).
4
In re Alaska Network on Domestic Violence & Sexual Assault, 264 P.3d
835, 841 (Alaska 2011) (Stowers, J., dissenting).
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to transform a corporate entity into a public agency. In Anderson v. Alaska Housing
Finance Corporation5 we articulated a test for when a corporation is a “state actor” for
purposes of due process: “when the State has specifically created that corporation for
the furtherance of governmental objectives, and not merely holds some shares but
controls the operation of the corporation through its appointees.”6 If receipt of public
funds alone were enough to make a corporation a state actor, it would not have been
necessary to apply this test to the Alaska Housing Finance Corporation (AHFC), which
receives substantial amounts of public funds.7
Second, due process protections now apply to private custody litigation
even if no parent is represented by a “public agency.” The State’s interference with a
parent’s custody rights, via the courts, has been held sufficient governmental action to
5
462 P.3d 19 (Alaska 2020).
6
Id. at 26-27 (quoting Lebron v. Nat’l R.R. Passenger Corp., 513 U.S. 374,
399 (1995)) (holding that due process applies when Alaska Housing Finance Corporation
pursues nonjudicial foreclosure against homeowner).
7
See, e.g., AS 18.56.082 (providing that Alaska housing finance revolving
fund consists of “appropriations made to the revolving fund by the legislature” as well
as other monies); House Bill (H.B.) 69, 32d Leg., 1st Sess. (2021) (enacted)
(appropriating funds to Alaska Housing Finance Corporation for fiscal year 2022).
Perhaps there is some distinction to be drawn in the fact that public funds
are provided to ALSC specifically for the purpose of litigating the custody rights of
private persons, while AHFC’s public funding is not expressly provided for the purpose
of evicting tenants and mortgage-borrowers (which is a predictable aspect of the home-
lending and affordable-housing businesses in which AHFC is engaged). But it is not
obvious that the test for whether a corporate entity is subject to due process should vary
based on whether public funds are appropriated to that entity for the express purpose of
interfering with private rights or for a purpose that merely entails interference with
private rights.
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trigger due process and the right to appointed counsel. In In re K.L.J. we held that
“sufficient state involvement exists” to require appointment of publicly funded counsel
in litigation initiated by one parent to terminate the parental rights of the other parent
because termination “is accomplished through a state mechanism” — the judicial
system.8 Then in Dennis O. v. Stephanie O. we applied the familiar Mathews v. Eldridge
framework to determine whether due process entitles an indigent parent in custody
litigation to appointment of publicly funded counsel when the other parent is represented
by private counsel.9 We held that indigent parents, as a class, are not entitled to publicly
funded counsel in a custody dispute merely because the other parent is represented by
private counsel.10 But if particular facts show the indigent parent would be unable to
adequately litigate the case, “procedural due process may require court appointment of
counsel to a parent in a custody proceeding.”11
Because Dennis O. authorizes appointment of publicly funded counsel
when a parent is not capable of self-representation, the practical justification for Flores
has been undercut. In Dennis O., for example, we concluded that “the probable value
of appointing counsel was not sufficiently high” because the father “capably represented
himself throughout the hearing” and was not able to identify any way the lack of counsel
8
813 P.2d 276, 283 (Alaska 1991).
9
393 P.3d 401, 406-11 (Alaska 2017) (citing Mathews v. Eldridge, 424 U.S.
319, 335 (1976)).
10
Id. at 408-09.
11
Id. at 411.
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prejudiced him.12 By contrast, in this case, the superior court observed that the father
faced a disadvantage by being incarcerated with limited access to legal materials.
Dennis O. ensures publicly funded counsel when it is actually needed — perhaps
including cases like this one. Therefore Flores’s much broader holding is no longer
necessary to protect parental custody rights.
In the wake of our decision in Dennis O., Flores’s holding that ALSC is a
public agency creates an arbitrary system. Dennis O. held that litigants in child custody
matters whose spouses are represented by private counsel are not, as a class, entitled to
publicly funded counsel under the due process clause.13 Yet because of Flores, litigants
in child custody matters whose spouses are represented by private counsel volunteering
through ALSC are, as a class, entitled to publicly funded counsel. For purposes of due
process, which is concerned with the risk of erroneous deprivation of protected
interests,14 there is no meaningfuldifference between the two classes. There is only what
Dennis O. described as the “inherent unfairness of a state agency representing one
parent,”15 which has no bearing on whether a parent is likely to be erroneously deprived
of custody.
Finally, Flores opens the door to doctrinal inconsistency. If ALSC is a
12
Id. at 410.
13
Id. at 408-09.
14
See Seth D. v. State, Dep’t of Health & Soc. Servs., Off. of Child.’s Servs.,
175 P.3d 1222, 1227 (Alaska 2008) (requiring court assessing whether proceedings
comport with due process to consider “the risk of an erroneous deprivation of [a
protected] interest through the procedures used, and the probable value, if any, of
additional or substitute procedural safeguards” (quoting Mathews v. Eldridge, 424 U.S.
319, 335 (1976))).
15
Dennis O., 393 P.3d at 408.
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public agency for these purposes, why not in other contexts? For example, it seems
unlikely that an employee of ALSC has a First Amendment right against being fired for
offensive speech.16 It seems equally unlikely that representation by ALSC is a public
benefit entitling ALSC’s clients to notice and a hearing before representation is
terminated.17 If concerns about perception of fairness raised by ALSC receiving funds
from the government are significant enough to justify constitutional protections for its
adversaries in court, why not for its own employees and clients? I do not see a principled
way to carve out public agency status for this one purpose.
Nevertheless, if Flores is our starting point — and OPA does not ask us to
revisit Flores — then I agree with the conclusion the court reaches in this case.
16
Cf. Methvin v. Bartholomew, 971 P.2d 151, 154 (Alaska 1998) (“[T]he
State may not fire a public employee for exercising the right to free speech protected by
the First Amendment to the United States Constitution. This is because ‘implicit in [a]
contract of employment [is] the State’s promise not to terminate [the employee] for an
unconstitutional reason.’ ” (quoting State v. Haley, 687 P.2d 305, 318 (Alaska 1984))).
17
Cf. Heitz v. State, Dep’t of Health & Soc. Servs., 215 P.3d 302, 305 (Alaska
2009) (“Due process of law requires that before valuable property rights can be taken
directly or infringed upon by governmental action, there must be notice and an
opportunity to be heard.” (quotingBostic v. State, Dep’t of Revenue, Child Support Enf’t
Div., 968 P.2d 564, 568 (Alaska 1998))).
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