Appeal
from the Superior Court No. 1JU-11-00638 of the State of
Alaska, First Judicial District, Juneau, Philip M.
Pallenberg, Judge.
Jerry
B., pro se, Haverhill, Massachusetts, Appellant.
No
appearance by Appellee Sally B.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
OPINION
BOLGER, Justice.
I.
INTRODUCTION
A
husband and wife separated after the husband was charged with
sexually abusing their minor daughter. The husband eventually
pleaded guilty to the crime of indecent exposure in the first
degree. In the civil divorce suit, the superior court took
judicial notice of the conviction, concluded that the
husband's sexual offense was the cause of his current
financial woes and was therefore a form of economic
misconduct, and divided the marital property 70-30 in the
wife's favor. The court also concluded that the wife had
not wasted or otherwise misused marital funds she had
withdrawn between separation and trial and accordingly
declined to recapture those funds in the property division.
The
husband appeals, claiming the superior court should not have
considered his criminal offense and by doing so demonstrated
bias against him. The husband also contends that the superior
court abused its discretion by favoring the wife in the
property division and that his due process rights were
violated.
We
conclude that the impartiality of the superior court can not
be reasonably questioned, that the court properly considered
the husband's conviction and its consequences in the
property division, and that the husband's due process
rights were not violated. But the superior court erred by
treating the wife's attorney's fees as marital
expenses, by failing to address the husband's request for
fees, and by adjusting the property division to account for
expenses the husband was separately obligated to pay.
Accordingly, we remand this case for further proceedings
consistent with this decision.
II.
FACTS AND PROCEEDINGS
Jerry
B. and Sally B.[1] married in August 1999, and moved to
Juneau in the early 2000s. They have three children: Lara,
born in December 1994; John, born in June 2001; and Daniel,
born in March 2006. For most of their marriage, Jerry held
relatively high-paying investment jobs, while Sally raised
their children as a stay-at-home mother.
Jerry
was arrested in April 2011 on allegations that he sexually
abused Lara repeatedly over an eight-year period. He was
indicted the next week on 100 counts of sexual abuse of a
minor in the first degree.[2] In April 2012, however, the superior
court dismissed the indictment. A grand jury soon re indicted
Jerry on four counts of sexual abuse.[3]
Within
a week of Jerry's April 2011arrest, Sally filed for
divorce. Alleging that Jerry had "a history of domestic
violence and sexual abuse, " Sally requested primary
physical and sole legal custody of the parties' children
and asked the superior court to require that Jerry's
contact with the children be supervised. Jerry denied the
claims of domestic violence and sexual abuse and requested
joint legal and shared physical custody of the children.
Sally peremptorily challenged the superior court judge
originally assigned to the case, [4] and the case was reassigned
to Superior Court Judge Philip M. Pallenberg, who also was
presiding over Jerry's criminal case.
Early
in the proceedings Sally moved for interim attorney's
fees and costs, spousal maintenance, and child support. She
noted that she had "been a stay-at-home mother for the
last 12 years[] and [was] currently unemployed, " while
Jerry "earn[ed] over $170, 000 per year working for [a
state agency]." Jerry opposed the motion, pointing out
that his incarceration prevented him from earning an income.
The superior court determined that it would not award Sally
"interim attorney's fees, spousal maintenance, or
child support in excess of the minimum amount" if Jerry
was no longer receiving income from his previous employer.
But the court allowed Sally "to make reasonable
withdrawals [from marital accounts] for attorney's fees
and for living expenses."
In
response to this order Sally requested a hearing "to
address [her] continuing difficulty in accessing marital
funds to support herself and the parties' three children,
pay all the marital bills, and also to pay her attorney's
fees." The superior court granted this request for
hearing. The court's subsequent written order specified
that Sally "shall promptly be paid one-half of
[Jerry's] deferred compensation account, less 25% to be
withheld for federal income tax" and "one-half of
[Jerry's] [Supplemental Annuity Plan] account, less 35%
to be withheld - 25% for federal income tax plus 10% for the
early withdrawal penalty." The court informed the
parties that it would "hold in abeyance until trial any
decision on whether or how the above distributions should
affect the overall property distribution."
In
November Sally moved for a protective order to stay
Jerry's proposed depositions of Sally and Lara and all
other discovery in the case until the conclusion of
Jerry's criminal proceedings.[5] The superior court granted
the motion but clarified that "[t]he issue . . . [was]
not whether [Jerry would] get[] to take these
depositions . . . [but] when he may take them -
before or after his criminal trial." (Emphases in
original.) Because the court concluded that "the primary
reason [Jerry] wants to take the depositions now is to defend
against the sexual abuse allegations" - that is,
not to prepare for his civil divorce trial - the
court stayed all discovery in the civil case until the
resolution of Jerry's criminal case.
In
April 2012 Sally asked the superior court for permission to
lease the marital residence. Sally claimed both she and Lara
had "very strong and very negative associations with the
marital home as the location where [Jerry] repeatedly
sexually abused [Lara], and verbally and emotionally abused
[Sally], over a period of years, " which made it
"very difficult" for Sally and Lara to continue
living there. Sally indicated that by renting a smaller home
in downtown Juneau and by leasing out the marital home, she
could save about $375 monthly. Over Jerry's objection the
superior court granted Sally's request, but limited the
lease period to 12 months.
In late
2012 Jerry pleaded guilty to indecent exposure in the first
degree.[6]All other charges against him were
dismissed.
In
March 2013 Jerry -then self-represented - once again sought
to depose Sally. Sally moved for a protective order
prohibiting the deposition, claiming Jerry would violate his
conditions of parole by deposing her. The superior court
denied Sally's motion but ordered that the deposition be
conducted telephonically. Jerry then sought to videotape the
deposition, and when Sally refused to attend a videotaped
deposition, Jerry moved to compel her participation, arguing
that "video is essential to his understanding of what
actually occurred in the room." At a hearing on the
matter the court reiterated that Jerry could depose Sally
telephonically but "not by videotape." The court
also denied Jerry's request to view the deposition via
video feed in real time, without recording. Jerry then
declined to depose Sally, claiming his inability to view the
deposition would prevent him from effectively questioning
Sally.
In June
Jerry asked the superior court to extend the marital home
lease period an additional nine months. Sally opposed this
extension and cross-moved for the immediate sale of the
property. She argued that "being legally and
economically tied to a sex offender who has abused one's
children is, in and of itself, emotionally damaging and
draining." The court granted Sally's cross-motion to
sell the residence and denied Jerry's request to extend
the lease. Agreeing with Sally's argument, the court
concluded that because "[Sally] is the victim of a
serious felony offense committed by [Jerry] against the
parties' child, I believe it would be entirely
inappropriate to force [Sally] to remain in a business
relationship with [Jerry] against her
will."[7] (Footnote omitted.)
In
November Jerry moved to disqualify Judge Pallenberg for bias.
Jerry noted that Judge Pallenberg had been exposed to
potentially prejudicial information in the criminal case.
Jerry further argued that Judge Pallenberg's exposure to
this evidence had caused the judge to form opinions about the
allegations against Jerry. As a result, Jerry argued, Judge
Pallenberg's adjudication of the criminal case created an
appearance of bias in the civil proceedings.
Jerry
also argued that Judge Pallenberg's decisions in the
civil case demonstrated actual bias. Jerry argued that Judge
Pallenberg, when ruling on interlocutory orders, ignored
Jerry's affidavit-supported denial of all charges while
improperly relying on (1) arguments in Sally's briefings
that were unsupported by evidence; (2) Sally's
accusations against him, which were based in hearsay; and (3)
the indecent exposure conviction. Jerry also took issue with
the court's conclusion that Sally met the legal
definition of "victim." And Jerry complained that
the court had demonstrated bias in favor of Sally by ordering
the sale of the marital home and by prohibiting him from
deposing her in person or by video. The superior court denied
Jerry's disqualification motion, and the reviewing court
affirmed this denial.[8]
The
superior court held a trial in January 2014. At the outset
the parties stipulated to a child custody agreement awarding
Sally sole legal and primary physical custody of John and
Daniel.[9] Sally agreed to keep John and Daniel in
counseling until she was advised by the counselor that
counseling was no longer necessary. The parties also
stipulated to the value of many of the couple's most
significant assets and debts; the property stipulation did
not, however, cover the parties' vehicles or household
goods. And it did not address
how the property should be divided[, ] the economic impacts
of the divorce[, ] . . . the characterization of the
property[, ] . . . [or the] characteriz[ation] [of] property
already distributed to the parties, . . . in particular
whether property distributed to [Sally] post-separation
should be considered as a property distribution as opposed to
spousal and child support.
Because
of the parties' custody agreement and property
stipulation, the issues at trial were limited to the
classification of property, the valuation of the items not
covered by the stipulation, and the equitable division of the
marital estate.
The
property division issue was the most contentious. Sally
presented testimony suggesting that Jerry was capable of
finding high-paying work and was living inexpensively off the
generosity of his mother, while Sally was struggling as a
working mother to support her children's needs.
Accordingly, she argued a disproportionate division of the
marital property in her favor would be
equitable.[10] Jerry presented testimony that he was
unable to find lucrative work because potential employers
inevitably discovered his sexual offender status and because
the Financial Industry Regulatory Authority's rules
prohibited him from working in his former field, that
Sally's financial irresponsibility was the cause of her
financial struggles, and that a 50-50 property division would
be equitable because his financial situation was now worse
than Sally's situation. The parties also disputed whether
Sally's pretrial withdrawals from marital accounts should
be treated as spousal maintenance or as advances against the
property distribution.
The
parties also disagreed about the classification and treatment
of the education savings accounts they had set up for their
children. Sally asked that the accounts be set aside and
exempted from the property division. Jerry contended that the
accounts were marital property and should be treated as such.
In
August the superior court entered a memorandum decision and
order. The court concluded that under the AS 25.24.160(a)(4)
factors[11] "the only fair and equitable
division of property is one that is distributed unevenly in
[Sally's] favor." The court reasoned that "a
party who commits a serious crime which destroys his ability
to earn a living has committed economic
misconduct" and that Jerry should not be legally
rewarded in the property division for the effects his
conviction had on his financial circumstances. (Emphasis in
original.) The court also determined that the sharp reduction
in household income - through no economic fault of Sally -
and Sally's child-care responsibilities strongly
supported a property division award in her favor. With regard
to Sally's withdrawals from marital accounts, the court
concluded that such pretrial depletion of marital assets may
be factored into the property division only if the depletion
was unreasonable; the court found that Sally had not misused
the funds made available to her between separation and trial.
Accordingly, the superior court awarded Sally about 70% of
the marital estate and did not recapture her previous
withdrawals of marital funds.
With
regard to the education savings accounts, the superior court
concluded that "they remain[ed] the property of the
parents" and were "technical[ly] . . . marital
property." But the court found that "the act of
establishing [an education savings] account constitutes an
agreement between the parties to set these funds aside for
the children's education." The court further
reasoned that "the children should not suffer more than
they already have by having their college funds plundered to
meet their parents' needs." Accordingly, the court
excluded these accounts from the property division and
granted Sally management authority over them. But the court
provided that "[n]o funds shall be withdrawn from those
accounts other than for the child[ren]'s educational
expenses except by agreement of both parties or by order of
the court."
The
superior court denied Sally's request for attorney's
fees. It acknowledged that Jerry "paid a very large sum
for representation by counsel during the preliminary stages
of this case, " funded primarily by loans from his
mother, and that "[Jerry] was not represented at
all" through most of the proceedings and at trial.
Quoting from our opinion in Lone Wolf v. Lone Wolf,
the superior court found that because attorney's fees
awards in divorce cases are intended to "assure that
both spouses have the proper means to litigate [a] divorce
action on a fairly equal plane"[12] and because
"ordering an unrepresented party to pay the other party
for their lawyer would seem to make the playing field less
level, " granting Sally attorney's fees was
inappropriate.[13]
Jerry
moved for reconsideration of the property division order. He
argued that the superior court had "improperly
considered moral fault with respect to [his] future earnings
and financial circumstances, " that his due process
rights had been violated throughout the proceedings, that the
property division should have accounted for Sally's
withdrawal of marital assets and included the education
savings accounts, and that Judge Pallenberg was biased
against him.[14] The court summarily denied the motion
for reconsideration but treated the bias claim as a renewed
request for disqualification, which it also denied. The
reviewing court affirmed the denial of this second
disqualification motion.
Jerry
appeals.
III.
STANDARD OF REVIEW
Although
we review the denial of a motion to disqualify a judge based
on actual bias for abuse of discretion, [15] "we
independently review a request for disqualification of a
judge based on the appearance of
impropriety."[16] However, where a party asserts only
"an appearance of partiality, as distinguished
from actual bias, we require the complaining party to make a
'greater showing' for reversal."[17]
We
review the superior court's decision to stay discovery
for abuse of discretion, [18] though we use our
"independent judgment to determine whether [the
superior] court has applied the correct legal
test."[19]
"We
review the superior court's property division for abuse
of discretion, " but an order to recapture marital
assets spent between separation and trial is not justified
without specific findings, based on evidence, that "the
assets in question were actually wasted, dissipated, or
converted to non-marital form."[20]
We
"review constitutional questions de novo, and will adopt
the rule of law that is most persuasive in light of
precedent, reason, and policy."[21]
IV.
DISCUSSION
A.
The Proceedings Did Not Create An Appearance Of Judicial
Bias.
The
superior court twice denied Jerry's motions for
disqualification, and the reviewing court affirmed the
decision in both cases. Jerry argues that the superior court
erred by denying these motions, citing a "[s]et of
facts" which he claims demonstrate an "appearance
of [judicial] bias."[22] For the reasons discussed
below, Jerry has not demonstrated an appearance of bias by
Judge Pallenberg, and we reject Jerry's bias
claims.[23]
1.
Judge Pallenberg's role as judge in both the civil and
criminal cases does not give rise to an appearance of
bias.
Jerry
argues that Judge Pallenberg's exposure to evidence in
the criminal case influenced his decisions in the civil
divorce proceedings. Jerry notes that while presiding over
the criminal prosecution, Judge Pallenberg both heard
testimony from Sally and Lara that was never introduced in
the civil case and was exposed to statements by Jerry that
were later suppressed as illegally obtained. Jerry argues
that Judge Pallenberg improperly relied on this evidence in
his adjudication of the civil dispute.
When
presiding over separate but related proceedings, a judge
inevitably will be confronted with evidence in one proceeding
that is irrelevant or inadmissible in the other. But we
repeatedly have held that a judge has no obligation to order
disqualification merely because he or she presided over a
related proceeding or case.[24] We recently noted:
Trial judges are often called upon to compartmentalize their
decisions - to review evidence that is later declared to be
inadmissible or to rule on similar legal issues at different
stages of a contested case. Generally, these decisions do not
create an appearance of impropriety unless the judge hears
something or does something so prejudicial that further
participation would be unfair to the parties.[25]
a.
The superior court properly relied on Jerry's conviction
for indecent exposure.
Jerry
first contends that Judge Pallenberg "consistently
relied upon [his] belief that [Jerry] committed the crime of
indecent exposure" despite a lack of "evidence
admitted in the divorce case that [Jerry] committed [that]
crime." But evidence of that offense was
introduced in the civil case, because the superior court took
judicial notice of Jerry's indecent exposure
conviction.[26]
Jerry
acknowledges the superior court's reliance on his
indecent exposure conviction, but he argues that the court
was not "allowed to use judicial notice to establish
that [he] had committed the acts for which he was
convicted." This is incorrect. As we recently
reiterated: "A criminal conviction for a serious crime
has a collateral estoppel effect in a subsequent civil action
relying on the same set of operative facts. Thus 'a
criminal conviction . . . could be introduced as conclusive
proof (rather than merely persuasive evidence) of the facts
necessarily determined.' "[27]
However,
Jerry correctly notes that collateral estoppel does not
automatically apply. We have adopted three prerequisites to
the imposition of collateral estoppel: (1) the criminal
conviction must have been for a serious criminal offense; (2)
the defendant must have had a full and fair hearing; and (3)
the issue on which the judgment is offered must have been
necessarily decided in the previous trial.[28] Since there
can be no dispute that Jerry was convicted of a serious
criminal offense, which includes any felony, [29] Jerry takes
issue with the two latter requirements.
First,
Jerry argues that collateral estoppel cannot be applied if
there are "indicia of irregularity" surrounding the
conviction, [30] and he claims that such indicia are
present because his conduct did not satisfy all elements of
the crime of indecent exposure in the first degree. But we
have not held that any "indicia of
irregularity" can prevent the application of collateral
estoppel; rather "a criminal conviction . . . should be
admissible absent strong showing of
irregularity."[31]
Jerry
does not claim he was denied a full and fair hearing with
regard to his guilty plea.[32] Indeed, Jerry was represented
by counsel throughout his criminal proceedings, and he does
not contend that he was involuntarily coerced into pleading
guilty. Instead, Jerry argues that the State's
stipulation at a post-sentencing hearing that "there
were no witnesses to . . . the particular crime he pled
guilty to" invalidates one of the elements of his
offense - that he masturbated "within the
observation of a person under 16 years of
age."[33] (Emphasis in original.) However, Jerry
did not appeal his criminal conviction in light of the
State's "no witnesses"
stipulation.[34] Considering that Jerry made this
decision while fully represented in the criminal case, he
should not be allowed to deny the conviction and its
underlying elements now.
Second,
Jerry argues that the "essential elements of the
offense" of indecent exposure under AS 11.41.458 greatly
limit the adverse inferences the court was allowed to make.
He claims that the offense is one of "recklessness,
" so "any assumption of intent or deviancy may not
be collaterally estopped." But two elements of his
conviction were (a) "knowingly
masturbat[ing]" while (b) "knowingly
exposing [his] genitals in the presence of another
person."[35] Jerry's claim that knowingly
masturbating in the presence of a young child does not
constitute deviant behavior is simply not colorable, hence AS
11.41.458's classification as a sexual
offense.[36]
Jerry
also claims that "since the elements [of indecent
exposure] do not require that the crime be against a member
of the family or be in the family home, these facts may not
be collaterally estopped." But collateral estoppel by
criminal conviction may be used in a civil case to prove that
the offender committed the crime against a particular person,
[37]
and there is no dispute that the "[]other person"
referenced in the elements of Jerry's conviction was
Lara. Moreover, none of the court's decisions turned on
the fact that the offense occurred in the family
home.[38]
For
these reasons, the superior court was well within its
discretion to take judicial notice of Jerry's conviction
in the criminal case and to rely on that conviction as
conclusive evidence that Jerry committed the crime of
indecent exposure in the first degree against Lara.
b.
The superior court did not rely or appear to rely on a belief
that Jerry also committed sexual abuse.
Jerry
also claims that the superior court relied on a belief that
he committed the separate crime of sexual abuse of a minor.
Specifically, Jerry notes that in granting Sally's
request to sell the marital home, Judge Pallenberg stated:
[Sally] makes the following statement, with which the
superior court agrees: "[Sally] is entitled to be free
of [Jerry] at the earliest opportunity, and that includes not
being wed in any fashion to the house where the sex abuse
occurred." ... Under the circumstances, where
[Sally] is the victim of a serious felony offense committed
by [Jerry] against the parties' child, I believe it
would be entirely inappropriate to force [Sally] to remain in
a business relationship with [Jerry] against her will.
(Emphasis added.) (Footnote omitted.) Jerry interprets this
statement to mean Judge Pallenberg fully agreed with Sally
that Jerry committed sexual abuse against Lara in the marital
home. But Judge Pallenberg immediately reframed Sally's
claim against Jerry to match the actual conviction. Judge
Pallenberg's statement meant that he agreed with
Sally's general point that she was entitled to be free of
Jerry and that his agreement stemmed from the fact Jerry
committed "a serious felony offense... against the
parties' child."
Critically,
Judge Pallenberg did not use any variant of the term
"sexual abuse" in his own description of the
offense nor did he refer to the multiple offenses originally
charged. He relied only on Jerry's indecent exposure
conviction in his ruling. And the court's orders
throughout the civil case turned on the lone indecent
exposure offense, not the other accusations of sexual abuse.
c.
The superior court's treatment of Sally as a
"victim" did not give rise to an appearance of
bias.
Jerry
also argues that Judge Pallenberg used Sally's status as
a "victim" in the criminal dispute[39] to
"afford special status in the divorce proceeding."
Specifically, Judge Pallenberg referenced Sally's
"victim" status when granting her request to sell
the marital home and when partially granting her request for
a protective order. But Judge Pallenberg thoroughly explained
his reasoning in the order denying Jerry's first
disqualification motion:
I believe it is fair to consider, in making a decision about
whether the marital home should be sold, the fact that one of
the spouses committed a crime of a somewhat sensitive nature
against the parties' child in the home. Similarly, I
believe it was fair to consider, in ruling on the motions
concerning the deposition of [Sally], the nature of
[Jerry's] criminal conviction.
Whether
Judge Pallenberg correctly interpreted AS 12.55.185(19)(B)
and applied it to this case is irrelevant to Jerry's bias
claim. Judge Pallenberg provided a plausible explanation for
his legal reasoning that did not depend on information
gleaned from the criminal trial.[40] Even if Judge
Pallenberg's reasoning was incorrect, "the fact that
a judge commits error in the course of a proceeding does not
automatically give rise to an inference of actual
bias."[41] Judge Pallenberg's decisions on this
matter do not demonstrate bias.
d.
The superior court's statements in the criminal
proceeding do not indicate bias.
Relatedly,
Jerry argues that Judge Pallenberg made statements in the
criminal case that suggest bias against him. But - critically
- Jerry does not point to any specific incidents where Judge
Pallenberg's views from the criminal case "might
have carried over and actually influenced the judge's
decisions on the matters at stake in the divorce
proceedings."[42] Therefore this argument also fails.
2.
Judge Pallenberg's out-of-court contacts with Sally and
Daniel do not give rise to an appearance of bias.
At
Jerry's criminal sentencing hearing Judge Pallenberg told
the State's and Jerry's attorney at a bench
conference that his son and Daniel recently had been in a
swim class together, and that he occasionally saw Sally when
picking up his son from the pool but did not interact with
her. Judge Pallenberg went on to say that he "didn't
think [these contacts] had any significance until I read all
the materials [and read that] there was discussion in some of
the letters and elsewhere of [Daniel's] behaviors, . . .
[which] I suppose . . . may have some relevance for
sentencing." Jerry's lawyer responded by stating,
"That's fine." Jerry himself did not overhear
this disclosure and attests that he read the transcript of
the proceeding for the first time while preparing his
appellate briefing.
Jerry
concedes that "these facts . . . likely would not
require recusal" in the criminal case, but he notes that
Judge Pallenberg did not make this disclosure in the civil
case wherein "[Sally's] parenting acumen and
[Daniel's] mental health were highly relevant."
(Footnote omitted.) Jerry claims, first, that Judge
Pallenberg's contacts with Daniel and Sally "give[]
a strong . . . appearance of bias" and, second, that
Judge Pallenberg's alleged "failure to comply with
the Code of Judicial Conduct disclosure requirements [is] a
factor indicative of bias requiring
disqualification."[43]
Canon
3(E)(1)(a) of the Alaska Code of Judicial Conduct provides
that "a judge shall disqualify himself or herself in a
proceeding in which the judge's impartiality might
reasonably be questioned, including . . . where . . . the
judge has a personal bias or prejudice concerning a party or
a party's lawyer, or personal knowledge of disputed
evidentiary facts concerning the proceeding." But
"a judge has an obligation not to order disqualification
'when there is no occasion to do so, '
"[44] and Judge Pallenberg's inadvertent
contacts with Daniel and Sally are not nearly significant
enough to warrant recusal or reversal.
Recently
in Phillips v. State the court of appeals reviewed
an order denying disqualification where the trial judge knew
the victim's sister, lived in the same neighborhood as
her, and attended a social event at her house.[45] In reviewing
the judge's decision to deny disqualification, the court
of appeals noted: "[I]t is generally agreed that the
mere fact that a judge maintains an ordinary social
relationship . . . either with [one or more] parties to the
proceeding or with the attorneys . . . does not provide a
valid basis for disqualifying that judge from presiding over
proceedings involving [these] persons."[46] Likewise,
"the fact that the judge may [be] acquainted with [the
alleged] victim of the crime [the] defendant [is] accused of
committing is generally deemed to be insufficient to mandate
[the judge's] disqualification."[47] Accordingly,
because there was no evidence in the record to support the
accusation that the judge's relationship with the
victim's sister "exceeded mere social acquaintance
or social friendship, " the court concluded that there
was no appearance of bias.[48]
Here
the appearance of bias claim stems from Judge
Pallenberg's disclosure in the criminal case that his son
was in the same swim class as Daniel and that he had observed
Sally picking Daniel up from the pool. But nothing in the
record suggests that Judge Pallenberg had any direct
interactions with either Sally or Daniel, and Judge
Pallenberg noted that he "stayed at the far end of the .
. . waiting area" and avoided interacting with Sally.
This "relationship" between Judge Pallenberg and
Sally or Daniel was far less significant that the
relationship between the judge and the victim's sister in
Phillips and would not cause reasonable people to
doubt Judge Pallenberg's ability and willingness to be
fair.
Jerry
also argues that, regardless of the appearance of bias, Judge
Pallenberg gained "personal knowledge of disputed
evidentiary facts concerning the proceeding"from
observing Daniel's behavior and Sally's parenting
abilities. Heclaims that both Daniel's mental health and
Sally's parenting abilities were disputed facts in the
case. But though the property division decision implicitly
referenced Daniel's mental health, it did so only in
passing and did not make a finding about whether Daniel has a
mental illness. Moreover the record does not support
Jerry's claim that Judge Pallenberg gained personal
knowledge about Daniel's mental health.[49] And
Sally's parenting abilities were not at issue in this
case because the parties reached a pretrial custody
agreement which gave Sally sole legal and primary physical
custody.
Because
there is no evidence that Judge Pallenberg gained personal
knowledge that was relevant to a disputed fact in the
proceedings here, Judge Pallenberg had no duty to disclose
the swimming pool incidents to Jerry in the civil setting. We
conclude that Jerry's "extrajudicial contacts"
claim has no merit.
3.
The attenuated connection between this case and a government
official does not ...