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Jerry B. v. Sally B.

Supreme Court of Alaska

June 10, 2016

JERRY B., Appellant,
SALLY B., Appellee.

         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.


          BOLGER, Justice.


         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 The court also concluded that the wife had not wasted or otherwise misused marital funds she had withdrawn between separation and trial and accordingly declined to recapture those funds in the property division.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.


         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.


         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]


         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 ...

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