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Vaska v. State (4/3/98) ap-1582
Notice: This opinion is subject to formal correction
before publication in the Pacific Reporter. Readers are requested to bring
typographical or other formal errors to the attention of the Clerk of the
Appellate Courts, 303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
STANLEY VASKA, )
) Court of Appeals No. A-6312
Appellant, ) Trial Court No. 4BE-S95-111CR
)
v. ) O P I N I O N
)
STATE OF ALASKA, )
)
Appellee. ) [No. 1582 - April 3, 1998]
)
Appeal from the Superior Court, Fourth
Judicial District, Bethel, Dale O. Curda, Judge.
Appearances: Margi Mock, Assistant Public
Defender, and Barbara K. Brink, Public Defender, Anchorage, for
Appellant. Kenneth M. Rosenstein, Assistant Attorney General,
Office of Special Prosecutions and Appeals, Anchorage, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, Mannheimer and
Stewart, Judges.
COATS, Chief Judge.
Stanley Vaska was convicted, following a jury trial, of
sexual abuse of a minor in the first degree, an unclassified felony
with a maximum sentence of thirty years of imprisonment, and sexual
abuse of a minor in the second degree, a class B felony. AS
11.41.434(a)(1); AS 11.41.436(a)(2). Superior Court Judge Dale O.
Curda sentenced Vaska to a composite sentence of forty years with
fifteen years suspended. Judge Curda placed Vaska on probation for
a period of ten years following his release from confinement.
Vaska appeals his conviction to this court. We remand.
Vaska contends that Judge Curda erred in refusing to
recuse himself and to set aside his rulings and the verdict in this
case. Some factual background is necessary to understand Vaska's
claim. In the middle of March 1996, around the time of Vaska's
trial, the case of State v. Jones, No. 4BE-S92-1258CR, was
scheduled for trial before Judge Curda. A few days before the
Jones trial was to commence, Bethel District Attorney Jake Metcalfe
became concerned that pre-trial motions had not been decided in
Jones. Metcalfe encountered Debran Rowland, Judge Curda's law
clerk, in the courthouse and asked about the motions. Rowland told
Metcalfe to "stop nagging her." Within twenty-four hours, Metcalfe
received a copy of a confidential bench memorandum from Rowland to
Judge Curda; this memorandum discussed a pre-trial motion in the
Jones case. Rowland attached a sticky note to the memorandum which
stated the following:
FYI -- Just so you know how great a friend you
have here -- This is an indication of the
battles I take on for you guys (and, of
course, for the law). It is also part of the
reason decisions take so fucking long. When
you reason w/o the law, you can say anything.
The point is to do it right. So, quit
nagging, and don't ever cross me, or I'll get
you.
P.S. FOR YOUR EYES ONLY!!!
About two weeks later, on April 3, 1996, Metcalfe
informed Judge Curda of the note and memorandum he received from
Rowland. At the same time, Metcalfe provided the court with
documents indicating that Rowland had had sexual relations with a
Bethel assistant district attorney. The record does not disclose
the identity of Rowland's sexual partner. [Fn. 1]
Vaska's attorney was apprised of these facts in mid-May,
1996, almost two months after the jury verdict in Vaska's case.
Vaska filed a motion to set aside the verdict and to assign a new
judge to his case. Vaska argued that Rowland was biased in favor
of the state, and that this bias either tainted Judge Curda's
rulings or at least gave rise to a reasonable appearance that the
judge's rulings were tainted. [Fn. 2] Judge Curda denied this
motion, stating in part that he had independently reviewed his
pretrial rulings and that he reaffirmed each one. On July 25,
1996, Superior Court Judge Richard D. Savell affirmed Judge Curda's
ruling. See AS 22.20.020(c). On appeal, Vaska claims that Judge
Curda erred in refusing to recuse himself and to set aside the
verdict based upon the misconduct of his law clerk and the
appearance of unfairness which the law clerk's actions created.
Vaska does not claim that Judge Curda himself was biased.
Although this appears to be an issue of first impression
in Alaska, several federal courts have considered the issue of
whether apparent bias or conflict of interest on the part of a
judge's law clerk could result in an appearance of impropriety
which would require reversal of a case. [Fn. 3] Compare Hamid v.
Price Waterhouse, 51 F.3d 1411 (9th Cir. 1995) (judge did not abuse
discretion in refusing to recuse herself on account of her law
clerks' professional relationships with two law firms because the
relationships were insignificant and did not create an appearance
of impropriety); In re Allied-Signal, Inc., 891 F.2d 967 (1st Cir.
1989) (judge did not err in refusing to disqualify himself and
declare a mistrial based upon his law clerks' family relationships
to attorneys representing parties in light of the number of lawyers
and parties involved in the complex litigation and the relatively
weak and remote nature of the conflict) with Parker v. Connors
Steel Co., 855 F.2d 1510 (11th Cir. 1988) (judge erred in refusing
to disqualify himself based upon his law clerk's close family
relationship with a partner in a law firm representing parties in
the case and the law clerk's extensive participation in the
decision of the case; however, the error was harmless since the
decision was a summary judgment motion which the appellate court
could review and independently determine); Hall v. Small Business
Administration, 695 F.2d 175 (5th Cir. 1983) (judgment vacated
because magistrate erred in allowing law clerk with a conflict of
interest to participate in the case).
These federal cases suggest several conclusions. First,
because "judges, not law clerks, make the decisions", In re Allied
Signal, 891 F.2d at 971, judges are presumptively capable of taking
their law clerks' philosophical or political biases into account
during the decision-making process; judges thus remain capable of
rendering fair and impartial decisions in spite of their clerks'
philosophical or political leanings. At the same time, however, we
recognize that law clerks can play a significant role in judicial
decision-making:
Law clerks are not merely the judge's errand
runners. They are sounding boards for tentative opinions and legal
researchers who seek the authorities that affect decisions. Clerks
are privy to the judge's thoughts in a way that neither [the]
parties to the law suit nor [the judge's] most intimate family
members may be.
Hall, 695 F.2d at 179.
Codes of judicial conduct have long recognized the
principle that it is not enough for judicial officers to be
untainted by bias; judicial officers must, in addition, conduct
themselves so as to avoid engendering reasonable suspicions of
bias. See Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991)
(Canon 3C(1) of the Code of Judicial Conduct requires judges to
disqualify themselves in "[any] proceeding in which [their]
impartiality might reasonably be questioned"). Moreover, the
conduct of members of the judge's staff can, in some circumstances,
implicate the judge's duty to avoid creating the appearance of
bias. Under Alaska Judicial Canon 3B(2), judges must supervise
their staff so as to "require [them] ... to observe the standards
of fidelity and diligence that apply to [the judge]."
Because of the close working relationship between judges
and their law clerks, there comes a point where a law clerk's bias
for or against a particular party or attorney, or a law clerk's
potential interest in the outcome of particular litigation, rises
to an intolerable level a level where the judicial decision-
making process comes under reasonable suspicion. As the court
stated in Hamid, 51 F.3d at 1416, "[e]ven if the judge has no
[personal] reason to recuse herself . . . , a law clerk's
relationships might cause [people to reasonably question] the
impartiality of [the] decisions . . . in which the [law] clerk
participates."
If a judge's law clerk is actually biased for or against
a party or an attorney, or if the law clerk has a substantial
personal interest in the outcome of litigation, then the law clerk
should not participate in any facet of the case. Compare AS
22.20.020(a)(9), forbidding judges from participating in litigation
when they "feel[] that, for any reason, a fair and impartial
decision cannot be given." Also compare Canon 3E(1)(a) of the
American Bar Association's Model Code of Judicial Conduct: "A
judge shall disqualify himself or herself ... [when] the judge has
a personal bias or prejudice concerning a party or a party's
lawyer[.]"
More difficult problems are posed by situations short of
actual bias or conflict of interest, where a law clerk's actions or
a law clerk's relationship to a party or an attorney may give rise
to an appearance of partiality. In the worst of such
circumstances, disqualifying the law clerk would still be the
proper course of action. However, if circumstances gave less cause
for alarm, a judge might reasonably decide to reveal the law
clerk's potential bias or conflict of interest to the parties
and see if they would be willing to waive the problem. Compare
AS 22.20.020(b) (allowing the parties to waive various grounds of
judicial disqualification but not actual bias); Canon 3F of the
American Bar Association's Model Code of Judicial Conduct (again,
allowing the parties to waive various grounds of disqualification
but not a judge's "personal bias or prejudice concerning a
party").
In the present case, the record raises the possibility
that Judge Curda's law clerk, because of her personal relationship
with one of the state's attorneys, may have had an actual bias in
favor of the attorney who prosecuted Vaska. Compare Canon
3E(1)(d)(ii) of the American Bar Association's Model Code of
Judicial Conduct (requiring disqualification when "the judge's
spouse ... is acting as a lawyer in the proceeding"). Even if this
was not so, Rowland's act of revealing a confidential memo to the
district attorney might create a reasonable suspicion that she was
more than simply philosophically biased in favor of the state
that she was an active partisan who was willing to break the rules
to benefit the state.
If reasonable people could conclude that Rowland either
was biased or appeared biased, then reasonable people could also
question the impartiality of the judicial decisions in which she
participated to any significant degree. The record raises the
possibility that Rowland participated in the decision of several of
the pre-trial motions in Vaska's case.
Our wording in the previous two paragraphs has been
tentative because, even now, the pertinent facts are not well
developed. Judge Curda refused Vaska's request for an evidentiary
hearing, and thus many of the critical facts remain clouded, many
of the crucial allegations unresolved. At present, all we can say
is that there is reason to suspect that Rowland may have done
significant work on Vaska's case, there is reason to suspect that
she may have had a personal bias that affected her work in this
case, and, even if her work was not affected by any actual bias,
there is a significant possibility that her conduct gave rise to a
reasonable appearance of bias.
We therefore remand Vaska's case to the superior court
for an investigation of these issues. From the briefing and the
oral argument in this case, it appears that many of the pertinent
facts are not in dispute and could be established by stipulation or
affidavit. However, because there is a significant possibility
that an evidentiary hearing will be required, and because, if a
hearing is required, there is a significant possibility that Judge
Curda will be a material witness, the proceedings on remand should
be conducted by another judge. See AS 22.20.020(a)(3).
On remand, it will be Vaska's burden to establish, by a
preponderance of the evidence, the factual grounds for distrusting
Rowland's participation in the superior court's rulings in Vaska's
case. This would apparently involve proof (a) that Rowland was
personally biased in favor of the attorney who prosecuted Vaska, or
(b) that Rowland engaged in conduct that created a reasonable
appearance of strong personal bias in favor of the state a bias
above and beyond philosophical or political bias in favor of the
government in criminal cases.
If Vaska succeeds in proving either actual bias or a
reasonable appearance of bias, this will presumptively invalidate
any of the superior court's rulings in which Rowland significantly
participated. However, the state should be given the opportunity
to prove (again, by a preponderance of evidence) that Rowland did
not significantly participate in one or more of those rulings (thus
negating the presumption that those rulings are invalid).
After the superior court identifies which (if any) of the
prior rulings in this case should be deemed invalid, the final
issue will be whether those prior rulings can realistically be
reconstructed at this time. With regard to pre-trial rulings
involving suppression of evidence, propriety of the indictment, and
the like, there is apparently no impediment to having another judge
decide these matters de novo. However, mid-trial rulings involving
the presentation of evidence, the examination of witnesses, and
other discretionary matters may present a more difficult problem.
The superior court must assess whether it is realistic to have a
new judge re-decide these issues or whether it is simply impossible
to reconstruct those decisions in which case Vaska should receive
a new trial.
The superior court shall enter findings on these issues
and on any others which, during the remand proceedings, appear
reasonably necessary to a fair resolution of this case. The court
shall transmit its findings to us within 90 days of this order.
(If more time is required, either party or the superior court may
request an extension.)
REMANDED.
FOOTNOTES
Footnote 1:
Apparently Metcalfe informed Judge Curda of the identity of
the assistant district attorney with whom Rowland had the sexual
relationship.
Footnote 2:
The state claims that Vaska's motion was based solely on
Rowland's sexual involvement with an assistant district attorney
and not on Rowland's ex parte communication with Metcalfe. We
disagree. While Vaska did not mention the ex parte communication
in his original motion, Vaska thoroughly addressed this issue in
supplemental briefing filed June 20, 1996.
Footnote 3:
AS 22.20.020, which deals with disqualification of a judicial
officer for cause does not directly deal with the possibility that
the judge could be disqualified based upon a conflict which arises
from the judge's staff. However Canon 3(B)(2) provides that:
A judge should require his staff and
court officials subject to his direction and control to observe the
standards of fidelity and diligence that apply to him.
