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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Heber v. Heber (8/1/2014) sp-6930

Heber v. Heber (8/1/2014) sp-6930

         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  


TODD HEBER,                                           )  

                                                      )        Supreme Court No. S-15355  

                           Appellant,                 )  

                                                      )        Superior Court No. 3AN-11-10347 CI  

         v.                                           )  

                                                      )        O P I N I O N  

TAMARA HEBER,                                         )  

                                                      )       No. 6930 B August 1, 2014  

                           Appellee.                  )  


_______________________________ )  

                  Appeal from the Superior Court of the State of Alaska, Third  


                  Judicial  District,  Anchorage,  John  Suddock  and  Andrew  

                  Guidi, Judges.  

                  Appearances:    Richard  W.  Postma,  Jr.,  Law  Offices  of  

                  Mitchell K. Wyatt, Anchorage, for Appellant.  Jean W. Sato,  


                  Sato & Sato, LLC, Anchorage, for Appellee.  

                  Before:  Winfree, Stowers, Maassen, and Bolger, Justices.  

                  [Fabe, Chief Justice, not participating.]  

                  BOLGER, Justice.  


                  In a custody modification proceeding, the superior court found that Todd  


Heber had a history of domestic violence and awarded Tamara Heber primary physical  


custody and sole legal custody of the parties' son.  Todd filed a motion arguing that this  


award was void because the assigned judge had received email communications from  

----------------------- Page 2-----------------------


Tamara and subsequently disqualified himself.  On appeal, we conclude that there was  

no risk of injustice that required a second judge to set aside the custody award.  


                    Todd  also  argues  that  Tamara  engaged  in  fraud  because  their  original  


dissolution petition stated that there was no domestic violence between them.  But the  


record of the motion proceedings shows that Todd had adequate notice of this issue and  

that, regardless of the accuracy of the dissolution petition, Tamara's motion to modify  

custody did not clearly involve fraud.  

                    Todd  also  argues  that  the  second  judge  should  have  been  disqualified  


because he had once reported that Todd's lawyer had a disagreement with another staff  


member.  We conclude that these circumstances do not suggest any disqualifying bias.  


                    Todd and Tamara Heber petitioned to dissolve their marriage on August 29,  


2011.  In their petition, they agreed to joint physical and legal custody of their two minor  

                                                                                                                  1  They also  


children and chose not to have the court order a specific visitation schedule. 

indicated that no domestic violence occurred during their marriage.  Superior Court  


Judge John Suddock entered a decree of dissolution incorporating the parties' agreement  

on December 5, 2011.  


                    On July 27, 2012, Tamara sought an order requiring that their son remain  


at his current elementary school.  She alleged that Todd had decided to enroll their son  

at a new school without her consent.  


                    At a hearing before the superior court on August 7, the parties testified to  


their  disagreement  about  their  son's  education.                             But  the  judge  noted  that  their  



                    This appeal only concerns the the parties' minor son. Custody of their other  

child is not at issue.  

                                                               -2-                                                             6930  

----------------------- Page 3-----------------------

disagreement went deeper than education and suggested that Tamara might want to move                       

to modify the custody arrangement concerning the parties' son.  She did so on   


August 9, requesting sole legal custody and primary physical custody with a weekly  

visitation schedule.  

                   A custody modification hearing was held on August 15 and August 21.  


During the hearing, Tamara testified that Todd had committed several acts of domestic  


violence while they were married.  She also testified that Todd raped her "at least twice"  


while the couple was "working to repair [their] marriage."  During his own testimony,  

Todd did not deny that these incidents of abuse and assault occurred.  Nor did Todd  


confront Tamara with the 2011 dissolution agreement, which indicated that no domestic  

violence had occurred during the marriage.  

                   On August 23, the judge entered a custody modification order.  The court  


awarded Tamara sole legal custody of the parties' son.  Because the court found that  


Todd had committed "more than two acts of domestic violence against"  Tamara, it gave  


                                                         But the court suggested that it would modify the  

Tamara sole physical custody as well. 


physical custody order once Todd completed a "domestic violence intervention course."  

Although the court ordered the parties to implement an "alternating week" visitation  


schedule, it permitted Todd supervised visitation only, until he completed the domestic  

violence course.  

                   Because Todd was permitted supervised visitation only, the parties and the  


court had to approve supervisors.  The parties communicated with the court by email  

during this process.  

          2        The  court  noted  that  AS  25.24.150(j)  prohibited  it  from  granting  joint  

physical custody.  

                                                             -3-                                                         6930  

----------------------- Page 4-----------------------

                     On August 24, the person acting as Todd's visitation supervisor informed  


the court by email that Todd had violated several provisions of the August 23 custody  


modification order.  After a hearing on August 27,  the superior court found that Todd  


had violated its order and therefore altered the visitation schedule again, limiting Todd  

to visits on two out of every three weekends.                           The court did not put its oral order into           

writing at that time.  


                     On   September   5,   Todd,   now   represented   by   counsel,   moved   for  


reconsideration and a new custody modification hearing.   He argued that he did not  


receive adequate notice that Tamara would raise allegations of domestic violence at the  


custody  hearing.              The  superior  court  denied  the  motion,  noting  that  "[i]t  is  not  

uncommon that domestic violence surfaces unexpectedly in a custody hearing."  


                     On October 29, Todd moved for relief from the existing custody orders and  

the  parties'  dissolution  agreement  under  Alaska  Civil  Rule  60(b)(3).    Although  he  


maintained that Tamara's allegations of domestic violence were false, he argued that,  

since the court had found Tamara's testimony credible, "the logical conclusion is that  


Tamara misrepresented material facts in the [petition for dissolution]."  Therefore, he  

argued, the dissolution and custody orders were "void for misrepresentation, and the  

parties should be allowed to fully litigate their property and custody issues."  

                     On October 30, Todd moved to disqualify Judge Suddock.  He argued that  


emails Tamara and his visitation supervisor had sent directly to the judge in August were  

impermissible ex parte communications that created an appearance of bias requiring  



                     Judge Suddock granted the motion for disqualification on December 10.  

The judge explained that Todd's visitation supervisor sent the judge an email on  


August 21 requesting that Todd pay her $250 per week for the supervision and reimburse  

her  for  gas.    The  court  approved  that  arrangement,  writing  "So  Ordered"  on    the  

                                                                -4-                                                          6930

----------------------- Page 5-----------------------

supervisor's email.  Although Judge Suddock believed that the approval "was not an  


order in substance," it appeared to be one.  Therefore, he disqualified himself "due to the  


superficial appearance that the court entered an order binding Mr. Heber to some course,  

without first hearing from him."  

                   On December 19, Todd moved under Rule 60(b)(4) for relief from the  

custody  modification  orders  issued  on  and  after  August  21.    He  argued  that  Judge  


Suddock had "acted in a manner inconsistent with due process of law" by "engag[ing]  


in ex parte communication with Tamara Heber and her witnesses and extra [-] judicial  


fact-finding" and by failing to "afford Todd the advance notice required by due process  

before converting an evidentiary hearing about which school to send the parties' minor  


child  .  .  .  into  a  full  blown  custody  modification  hearing  for  domestic  violence."  

                   The case was reassigned to Superior Court Judge Andrew Guidi on  


March 11, 2013.  The next day, Todd filed a motion to disqualify, arguing that Judge  


Guidi was biased against his attorney.  Judge Guidi denied the disqualification motion  

two months later,and the denial was referred to Superior Court Judge Erin B. Marston  

for review.  Judge Marston affirmed Judge Guidi's decision.  

                   On October 14, 2013, Judge Guidi also issued an amendment to the  


August 23 custody modification order. The amended order incorporated changes Judge  

Suddock had made orally on August 27, 2012, but had never put in writing.  

                   Judge Guidi denied Todd's October 29, 2012 Rule 60(b)(3) motion and  


December 19, 2012 Rule 60(b)(4) motion.  Todd appeals, arguing that the superior court  


erred when it: (1) denied his motion for Rule 60(b)(4) relief from the August 23 custody  

modification  order;  (2)  denied  his  motion  for  Rule  60(b)(3)  relief  from  the  custody  


modification order; (3) amended the custody modification order without notice or a  

hearing; and (4) denied his motion to disqualify Judge Guidi.  

                                                             -5-                                                      6930

----------------------- Page 6-----------------------


          A.        Todd's Rule 60(b)(4) Motion Was Properly Denied.  

                    Todd argues that the superior court should have granted his Rule 60(b)(4)  


motion  for  relief  from  the  custody  modification  orders.    He  argues  that  relief  from  


judgment is required because, once the assigned judge engaged in disqualifying conduct,  


he lost his "power and jurisdiction[] to take any further action in the case," and any  

orders he issued after that point were void.  


                    Alaska Civil Rule 60(b)(4) provides that a court may relieve a party from  

a final judgment on the ground that "the judgment is void."  A judgment is void  


                    only  where  the  court  that  issued  it  had  no  jurisdiction  to  

                    subject  the  parties  or  the  subject  matter  to  its  control,  or  


                    where the defendant was not given proper notice of the action  


                    and opportunity to be heard, or where the judgment was not  


                    rendered  by  a  duly  constituted  court  with  competency  to  

                    render it, or where there was a failure to comply with such  


                    requirements as are necessary for the valid exercise of power  

                                       [3 ] 

                    by the court.  

"In  the  interests  of  finality,  the  concept  of  void  judgments  is  narrowly  construed."4  


                    Although the denial of most Rule 60(b) motions is reviewed for abuse of  

discretion,  "no  question  of  the  [superior]  court's  discretion  is  presented  by  a  Rule  


60(b)(4) motion seeking relief from a void judgment because the validity of a judgment  

                                           5                                                             6  

is strictly a question of law."   Questions of law are reviewed de novo.  

          3         Leisnoi,  Inc.  v.  Merdes & Merdes, P.C. ,  307 P.3d 879, 891 (Alaska 2013)  

(internal quotation marks omitted) (quoting Holt v. Powell , 420 P.2d 468, 471 (Alaska  


          4         Id.  

          5         Id.  at 884 (quoting Aguchak    v.  Montgomery   Ward Co., 520 P.2d 1352,  


                                                              -6-                                                        6930

----------------------- Page 7-----------------------

                      Todd argues that the custody modification orders are void because they  


were issued after the assigned judge had engaged in the conduct that eventually led the  


judge to disqualify himself.  Todd relies on  Channel Flying, Inc. v. Bernhardt, where we  


vacated a judgment entered by a judge after he had been removed from the case by a  

                                             7  That case involved the automatic effect of the peremptory  

peremptory disqualification.                                                                                   

disqualification statute, which states that the judge must be replaced after a challenge has  



been filed "at once, and without requiring proof[.]"   We did not have the occasion to  

consider whether an appearance of impropriety alone would nullify the proceeding.  In  

general,  "a  judgment  is  not  void  because  of  disqualification  of  a  judge,  but  is  only  


voidable  on  direct  attack  by  appeal  or  by  motion  to  set  it  aside."     Therefore,  the  


disqualification  of  a  judge  is  generally  insufficient  to  support  relief  under  Rule  




                      But even if Todd had asserted his challenge under the catchall provision of  

Rule 60(b)(6), this record would not require the superior court to vacate the judgment.  

As our court of appeals suggested in  Vent v. State, to determine whether to vacate an  


           5          (...continued)  

 1354 (Alaska 1974)) (internal quotation marks and alteration omitted).  

           6         Id.  

           7          451 P.2d 570, 574-76 (Alaska 1969).  

           8         Id. at 573 (quoting AS 22.20.022(a)).  

           9         Smith v. Clark, 468 So. 2d 138, 141 (Ala. 1985).  

           10        See Leisnoi, 307 P.3d at 890 ("The critical question is whether the superior         

court's 1995 judgment issued in violation of 43 U.S.C.  1621(a) was void - and thus  

amenable to a Rule 60(b)(4) challenge - or merely voidable, and not subject to such a  


                                                                   -7-                                                            6930

----------------------- Page 8-----------------------


allegedly  tainted  judgment  a  court  should  look  to  the  factors  outlined  by  the  U.S.  

Supreme Court in Liljeberg v. Health Services Acquisition Corp. :  


                     (1) 	     the risk of injustice to the parties in the particular case;  


                     (2)	      the risk that the denial of relief will produce injustice  

                               in other cases; and  


                     (3)	      the risk of undermining the public's confidence in the  


                              judicial process.  


In this case, there was no risk of injustice that would require relief from the custody  

modification orders.   


                    Judge  Suddock  granted  Todd's  disqualification  motion  because  of  the  


"superficial appearance" that the court had issued an order without first allowing Todd  

an opportunity to respond.  But the "order" in question concerned the amount that Todd  


would pay his visitation supervisor; it did not concern the merits of the custody decision  

at all.  


                    It is true that the visitation supervisor's August 24, 2012 emails, in which  


she alleged that Todd had violated the August 23 custody modification order, related to  


the merits of the court's decision to alter custody again four days later.  But the judge  


quickly disclosed the contents of the emails and gave Todd ample opportunity to cross- 

examine the visitation supervisor and respond to her allegations at a hearing on   

August 27.  Therefore, Todd was not prejudiced by the fact that the supervisor first  

reported his alleged violations in the emails.  

                    Todd also argues that the judge improperly cross-examined one of Todd's  


witnesses   at   an   August   24   hearing   while   Tamara   was   absent.      But   Todd   is  

mischaracterizing the record.  At the August 24 hearing, Todd presented an alternative  



                     Vent v. State, 288 P.3d 752, 757 (Alaska App. 2012) (citing Liljeberg  v.  

Health Servs. Acquisition Corp. , 486 U.S. 847, 862-64 (1988)).  

                                                                -8-	                                                            6930  

----------------------- Page 9-----------------------

supervisor for the court's approval.  The court asked the proposed supervisor limited  


questions concerning his ability to act as a supervisor before approving him.  It is simply  

untrue that Judge Suddock "cross-examin[ed] Todd's witness" or "prosecuted Tamara's  


case."  Therefore, Todd was not prejudiced by the judge's conduct at the August 24  


                    Todd  also  alleges  that  there  was  an  exchange  of  emails  between  his  


visitation supervisor, Tamara, and the assigned judge. He notes that our court of appeals  


concluded in State v. Dussault that an ex parte exchange of emails created an appearance  


of bias.       But, unlike in Dussault , there was no exchange of emails in this case; there is  


no indication in the record that the assigned judge responded to any of the emails sent  

to him by the parties.  

                    Finally, Todd alleges that the judge must have initiated ex parte contact  


with Tamara by supplying her with his court system email address sometime before the  

end of the August 21 hearing, when he issued the initial custody modification order.  

However, Todd points to no evidence that such an exchange actually occurred.  And  

although the record suggests Tamara sent an email message directly to the judge, it is  


clear  that  Tamara  was  not  given  priority  access  to  the  judge  or  otherwise  treated  


differently from Todd.  The record indicates that Todd had the email address of the  


judge's law clerk.  Todd contacted the clerk to schedule a hearing concerning a substitute  

supervisor, and she promptly set a hearing in response to his email.  


                    Although we conclude that permitting the custody modification order to  


stand will not cause Todd injustice, we take this opportunity to note that judges should  


use email to communicate with parties and other persons about court business only on  

          12        See 245 P.3d 436, 442-43 (Alaska App. 2011).  

                                                              -9-                                                           6930  

----------------------- Page 10-----------------------



the occasions authorized by the Alaska Code of Judicial Conduct.                                  There is a significant  

danger  that  ex  parte  email  communication,  even  if  well  intentioned,  will  create  an  

appearance of impropriety.14  


                    In summary, we conclude that it was proper to deny Todd's motion for Rule  

60(b)(4) relief.  


          B.        Todd's Rule 60(b)(3) Motion Was Properly Denied.  


                    Todd argues that it was error to deny his Rule 60(b)(3) motion for relief  


from      the   custody        modification          orders.        He   argues        that    Tamara        engaged   in  

misrepresentation when she testified at the custody hearing that, contrary to her statement  


in the parties' 2011 dissolution agreement, Todd committed domestic violence against  


her during their marriage.  He also argues that Tamara's ex parte communications with  

Judge Suddock constituted misconduct warranting relief from judgment.  He also argues  


that he was afforded inadequate notice that Tamara intended to allege domestic violence  


during the custody hearing.  Finally, he argues that Judge Guidi's summary denial of his  

Rule 60(b)(3) motion did not adequately state the reasons for the denial.  

                    Under Alaska Civil Rule 60(b)(3), a party may seek relief from judgment  


on   the   grounds   that   "an   adverse   party"   committed   "fraud   (whether   heretofore  


denominated intrinsic or extrinsic), misrepresentation, or other misconduct."  The fraud,  

misrepresentation, or misconduct must be proven by clear and convincing evidence.15  

And the moving party must prove that the fraud or misconduct "prevented [that party]  

          13        See     Alaska       Code       Jud.     Conduct        Canon        3(B)(7)(a)-(e)         (outlining  

circumstances in which judges may engage in ex parte contacts).  

          14        See Dussault, 245 P.3d at 443.  



                   Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat , 307 P.3d 955,  

960 (Alaska 2013).  

                                                             -10-                                                       6930

----------------------- Page 11-----------------------


from fully and fairly presenting its case at trial."                           "We review the denial of a Rule  

60(b)(3) motion for abuse of discretion."17  


                    First, Todd argues that Tamara engaged in misrepresentation when she  

testified  that  Todd  assaulted  her  during  their  marriage.    He  argues  that  Tamara's  


testimony during the custody proceeding was perjury because she "swore under oath and  


penalty of perjury that no domestic violence occurred during the marriage" in the parties'  

2011 dissolution agreement.  


                    But Tamara's prior sworn statement is not clear and convincing evidence  


that her testimony during the custody hearing was false.  Although the two statements  


contradict, it is just as likely that Tamara's prior  statement was false and her more recent  


testimony truthful.             Therefore, the contradiction between the dissolution petition and  


Tamara's testimony at trial does not establish that she committed fraud; it merely calls  

into question the credibility of her statements.  

                    Moreover,  it  is  well  established  in  Alaska  that,  "in  custody  matters  

involving domestic violence," the superior court must "look back to events that occurred  


before the initial custody order if [they were] not adequately addressed at the initial  



custody  determination  or  subsequent  proceedings."                                This  rule  recognizes  that  the  

          16        Id.  

          17        Espeland v. OneWest Bank, FSB , 323 P.3d 2, 8 (Alaska 2014).  

          18        And  Todd  did  not  deny  during  the   hearing   that  the  alleged  domestic  

violence occurred.  

          19        McAlpine v. Pacarro , 262 P.3d 622, 626 (Alaska 2011) (citing Williams v.  


Barbee , 243 P.3d 995, 1001, 1002-03 (Alaska 2010); Michele M. v. Richard R. , 177 P.3d  


830, 831, 835-36 (Alaska 2008)).  

                                                              -11-                                                         6930

----------------------- Page 12-----------------------



presumption against a custody award to a parent with a history of domestic violence 


was established in order "to decrease the likelihood that children would be placed in the  


custodial household where domestic violence exists."                                 That is, because "the ultimate  


                                                                                                                      we must  

focus in the custody modification context is the best interests of the children," 


disregard the stipulation in the dissolution petition even if that result is unfair to one of  

the parents.  


                    Second, Todd argues that he was not given notice that Tamara would testify  


to domestic violence during the hearing, and therefore, he had inadequate time to prepare  


a defense against those allegations.  He argues that Tamara was required under several  


Alaska statutes to plead domestic violence in the petition for dissolution and her motion  


to modify custody. But none of those statutes requires a party to plead domestic violence  

                                                    23  Todd had ample opportunity to prepare to respond  

in a divorce or custody proceeding. 

to  Tamara's  allegations  during  the  six  days  between  the  August  15  and  August  21  


hearings.  But Todd did not attempt to refute Tamara's allegations, either when he cross- 

          20        See AS 25.24.150(g).  

          21        Williams, 243 P.3d at 1001.  

          22        Id.  (internal quotation marks omitted) (quoting                        Lashbrook v. Lashbrook ,  

957 P.2d 326, 328 (Alaska 1998)).  

          23        See AS 25.24.210(e) (requiring that a petition for dissolution state whether  


either spouse has been charged with a crime involving domestic violence and whether  

either spouse was subject to a domestic violence protective order but not requiring the  


parties  to  state  whether  domestic  violence  otherwise  occurred);  AS  25.24.220(h)  

(requiring the superior court to view dissolution agreements with a "heightened level of  


scrutiny" if either spouse was charged with a crime involving domestic violence, if either  


spouse was subject to a domestic violence protective order, or if "there is evidence that  


a  party  committed  a  crime  involving  domestic  violence");  AS  25.24.230(b)  (list  of  

findings the superior court must make before entering a decree of dissolution, none of  

which involves domestic violence).  

                                                              -12-                                                         6930

----------------------- Page 13-----------------------

examined her or when he presented his own testimony.  The superior court even offered  


to give the parties more time to prepare, but Todd insisted that the court make a custody  

decision as soon as possible.  


                   Third, Todd argues that Tamara engaged in misconduct by sending ex parte  

emails to the assigned judge.  But, as we have already explained above, those ex parte  


communications did not prevent Todd from "fully and fairly presenting [his] case at  


                   Finally, Todd argues that this court should remand the order denying his  


Rule 60(b)(3) motion because the superior court did not adequately explain the basis for  

the denial.  But the basis for the superior court's decision to deny Todd's motion is clear  

from the record as set forth above.  We conclude that it was not an abuse of discretion  

to deny Todd's Rule 60(b)(3) motion.  


         C.	       The October 14, 2013 Order Amending The August 23, 2012 Custody  

                   Modification Order Was Not Issued Without Due Process.  

                   Todd  argues  that  the  superior  court  amended  the  August  23  custody  


modification order without providing Todd an opportunity to be heard.  But the amended  

order merely put into writing changes that Judge Suddock imposed orally at the end of  

the August 27 hearing.  


                   Todd also argues that Judge Guidi wrongfully deleted the language in the  

August 23, 2012 custody modification order providing that, once Todd completes the  


domestic violence course, "the court will presumptively grant joint custody."  But Alaska  

Statute  25.24.150(a)  provides  that  a  court  with  jurisdiction  may  "make,  modify,  or  

vacate" a custody order if such action seems "necessary or proper."  As the superior  

court explained in an October 29, 2013 "Order on Request for Clarification," because  



                   See Alaskan Adventure Tours, Inc. v. City & Borough of Yakutat , 307 P.3d  

955, 960 (Alaska 2013).  

                                                          -13-	                                                       6930  

----------------------- Page 14-----------------------


"the trial court cannot presumptively grant custody on the condition that a parent has  


                                                                                  the court therefore "interpret[ed]  

completed a" domestic violence intervention course, 

Judge Suddock's Aug. 23, 2012 order as permitting a hearing to determine whether the  


presumption against Mr. Heber having  custody has been overcome, which revolves  


around proof that he has been rehabilitated."  The superior court was well within its  


discretion when it modified the August 23 order to make it conform to Alaska law.                                                

                    Finally, Todd argues that the superior court reimposed the "supervised  


visitation" requirement despite the fact that Todd had already completed the domestic  


violence intervention course.  However, because the superior court released Todd from  

the supervision requirement on November 26, 2013, this claim is moot.  

                    We conclude that the superior court did not err when it issued the October  

 14, 2013 order without further notice and hearing.  

          D.        Todd's Motion To Disqualify Judge Guidi Was Properly Denied.  


                    Todd argues that Judge Guidi should have disqualified himself because the  

judge is biased against Todd's attorney.  Todd alleges that the judge previously retaliated  


against Todd's attorney by "knowingly or recklessly spreading a provably false rumor  


about"  the  attorney  after  the  attorney  reported  sexual  and  racial  discrimination  and  

harassment by Alaska Court System employees.  

          25        See Stephanie F. v. George C.                , 270 P.3d 737, 754 (Alaska 2012) ("Even if  

a parent with a history of domestic violence overcomes the statutory presumption, he or   

she is not necessarily entitled to custody; a complete analysis of the best interest factors  

must be undertaken.").  

          26        See AS 25.24.150(a).  

                                                              -14-                                                         6930

----------------------- Page 15-----------------------


                   A judicial officer must disqualify himself if he "feels that, for any reason,  


                                                                             For  example,  the  Alaska  Code  of  

a  fair  and  impartial  decision  cannot  be  given." 

Judicial  Conduct  requires  disqualification  where  "the  judge  has  a  personal  bias  or  



prejudice concerning . . . a party's lawyer."                       Disqualification is also required where,  

given the facts, a reasonable person might question a judge's impartiality.29  

                   A judge's decision that he is actually capable of conducting a fair trial is  


reviewed for abuse of discretion.30  The separate question whether a judge's participation  


in a case would lead reasonable people to question his ability to be fair is a question of  


law reviewed de novo.31  

                    Todd alleges that his attorney was subject to sexual harassment and racial  


discrimination while his attorney was a state district court judge and that the Alaska  


Commission  on  Judicial  Conduct  retaliated  against  his  attorney  for  reporting  the  

harassment and discrimination.  Todd alleges that Judge Guidi was involved because,  

when questioned about his experience working with the attorney when both were in  

private practice, Judge Guidi reported that the attorney had been involved in a staff  


          27       AS 22.20.020(a)(9).  

          28       Alaska Code Jud. Conduct Canon 3(E)(1)(a).  

          29       See  Peterson  v.  Swarthout,  214  P.3d  332,  339  (Alaska  2009)  ("[T]he  

[disqualification]  statute  requires  a  judge  to  consider  the  appearance  of  partiality  in  


addition to actual bias . . . .").  

          30       Hymes v. DeRamus , 222 P.3d 874, 880 (Alaska 2010); Phillips v. State , 271  


P.3d 457, 459 (Alaska App. 2012).  

          31        Griswold  v.  Homer  City  Council,  310  P.3d  938,  941  (Alaska  2013);  

Phillips , 271 P.3d at 468.  

                                                            -15-                                                       6930

----------------------- Page 16-----------------------

                 But  the  record  contains  no  evidence  that  Judge  Guidi's  actions  were  

motivated by bias or prejudice.  The facts simply do not suggest real or apparent bias.  

                 Todd also argues that Judge Marston, who reviewed Judge Guidi's decision  


not to disqualify himself, erred by failing to hold a hearing on the disqualification motion  

under  AS  22.20.020(c).    Although  AS  22.20.020(c)  provides  that  the  question  of  


disqualification will be "heard and determined by another judge," it also provides that  

the "hearing may be ex parte and without notice to the parties or judge."  Therefore,  

AS 22.20.020(c) does not entitle Todd to the evidentiary hearing he requested.  


                 We AFFIRM the superior court's judgment.  

                                                      -16-                                                6930

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