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Gates v. City of Tenakee Springs (3/13/98), 954 P 2d 1035
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.
THE SUPREME COURT OF THE STATE OF ALASKA
JONI GATES, )
) Supreme Court No. S-7257
) Superior Court No.
v. ) 1JU-87-375 CIV
CITY OF TENAKEE SPRINGS, ) O P I N I O N
Appellee. ) [No. 4955 - March 13, 1998]
Appeal from the Superior Court of the State of
Alaska, First Judicial District, Juneau,
Thomas M. Jahnke and Thomas E. Schulz, Judges.
Appearances: Joni Gates, pro se, Petersburg.
William T. Council, Council & Sanders, Juneau, for Appellee.
Before: Compton, Chief Justice, Rabinowitz,
Matthews, Eastaugh, and Fabe, Justices.
Joni Gates appeals the superior court's order on remand
denying her motion for relief from judgment. We affirm.
II. FACTS AND PROCEEDINGS
This is the third time that this case has come before
this court. The following facts are taken from Gates v. City of
Tenakee Springs, Mem. Op. & J. No. 0744 (Alaska, October 26, 1994)
In Gates v. City of Tenakee Springs, 822 P.2d
455 (Alaska 1991), Gates claimed, inter alia, that the City of
Tenakee Springs negligently removed a fence, resulting in damage to
her property. The trial court granted summary judgment in favor of
Tenakee Springs. One basis for the trial court's decision was that
Tenakee Springs had municipal immunity from Gates' claims. Id. at
457. We held that Tenakee Springs' decision to remove the fence
was protected, but that the manner in which the fence was removed
was not immune. Therefore, if negligent removal caused Gates'
damages, she should be compensated. The case was remanded to
determine whether Gates' alleged damages were the result of
negligent removal of the fence. Id. at 459. Additionally, the
trial court was to determine the extent of the damage caused by the
method Tenakee Springs selected to remove the fence. Id.
The trial on remand was rescheduled to
take place in Juneau at 9:30 a.m. on October 30, 1992. Gates
failed to appear. She did not contact the clerk of court's office,
the assigned judge's chambers, the opposing party or its attorney.
Tenakee Springs moved ex parte for and was granted entry of
judgment by default under Alaska Civil Rule 55(c)(1).
On November 4, 1992, Gates moved to
reschedule the trial. She claimed she was unable to attend the
October 30 trial because of a medical emergency. Gates explained
that she had an appointment in Juneau with Dr. Nell Wagoner on
October 29, 1992, for a medical examination. She had scheduled the
examination for the same week as the trial to save making an extra
trip to Juneau. After examining Gates, Dr. Wagoner scheduled some
tests for Gates at Bartlett Hospital. One test required the
injection of an IVP anti-allergenic contrast agent -- a dye to
which Gates is allegedly allergic. This test was administered at
8:39 a.m., on the morning Gates' trial was to take place. Gates
claims that Dr. Wagoner prescribed some medication for her to take
before the test because of her allergy. Gates claims that the
doctor "assured [her] that the medicine would work,"but that she
"was concerned about [her] having enough time to take all of the
medicine before the kidney test." Although Gates had not completed
taking all of the medication, she had the test done on October 30.
Gates did not suffer an immediate reaction to the IVP dye.
However, she claims that thirty to forty-five minutes after the
injection of the dye and after her test was completed, she got
hives and became a "little breathless." She asserts that she then
realized that she would be unable to "physically and mentally
function at the scheduled remand hearing in about half an hour."
She did not contact the court at that time.
According to the affidavit of Albert
Lodovici, the radiologic technologist who
administered the IVP dye to Gates, the x-ray procedure that
followed the injection of the dye took approximately twenty-five
minutes. During the test, Gates manifested no adverse reactions.
Additionally, the affidavit of Dr. Gordon T. Blair, a radiologist,
stated that significant reactions to IVP dye typically occur within
a few minutes after injection and that it would be "extremely
unusual for there to be no significant reaction initially, and then
to have a significant reaction occur later." He further noted that
Gates' records would have indicated such a reaction if one had
Id. at 1-4 (footnotes omitted) (alterations in original). The
superior court treated Gates's motion to reschedule the trial as a
motion to set aside judgment under Alaska Civil Rule 60(b). Id. at
4. The court denied the motion without making any findings on
whether Gates experienced a medical emergency. Id. at 4, 7.
In Gates II, we held that "a party's failure to appear at
a scheduled proceeding because of a medical emergency can be
considered excusable neglect under Civil Rule 60(b)(1), if in fact
the party had a medical emergency." Id. at 6. We declined to
review the superior court's denial of Gates's motion because the
superior court failed to enter findings. Id. at 7. It was unclear
to us whether the superior court's denial of Gates's motion "meant
that Gates failed to submit enough evidence supporting the fact
that she had a medical emergency, or whether in light of the
evidence submitted by Tenakee Springs, the court meant that it did
not believe Gates' version of the events." Id. We remanded the
case "for entry of findings of fact supporting the trial court's
On remand the superior court made the following findings:
[Gates's] affidavit of December 4, 1992,
states that she had an appointment with Dr. Jones in October, 1992.
Dr. Jones denies that she ever had such an appointment with
[Gates], indeed that there was ever a doctor-patient relationship
with [Gates]. [Gates's] affidavit further states that her
appointment with Dr. [Wagoner] was for the week of October 30th but
there is no indication that the appointment interfered with
[Gates's] scheduled court appearance on October 30. The only
possible support for [Gates's] failure to appear on October 30 was
her statement that she had an adverse reaction to the kidney test
and, "I had hives and respiratory problems and was prostrate for a
day and a half."
Since [the City of Tenakee Springs']
affidavits remained uncontroverted on April 19, 1993, this court
denied [Gates's] motion. Her affidavit dated December 4, 1992,
simply fails to persuade this court that there was a medical
emergency on October 30, 1992, that would in any way have prevented
her appearance in court and participation in the proceedings
scheduled for that date. [Gates] never addressed Dr. Blair's
affidavit, or Albert Lodovici's affidavit, though she had nearly a
month to do so before this court ruled.
On the basis of these findings, the court again denied Gates's
motion. The order entering the findings and denying the motion was
signed on March 2, 1995, by Judge Thomas Jahnke "at [the] direction
[of] Thomas E. Schulz/Superior Court Judge Retired." This appeal
Gates's primary argument on this appeal is that Judge
Schulz lacked the authority to enter findings on remand because he
"had been a resident of California for three years." According to
Gates, because Judge Schulz lacked authority to enter findings on
remand, his findings must be set aside and Gates is entitled to a
new hearing on the issue of whether she suffered a medical
emergency on October 30, 1992.
Before considering this argument, we note that, apart
from the residency question, entry of the order and findings of
March 2, 1995, was appropriate. Judge Schulz was properly
appointed superior court judge pro tempore by Special Order of
Chief Justice Daniel A. Moore. [Fn. 1] Judge Schulz had the
authority under this order to enter findings on remand clarifying
his denial of Gates's motion, [Fn. 2] and Judge Jahnke could
properly endorse those findings at his predecessor's direction.
[Fn. 3] Moreover, since Gates's claim that she was entitled to
relief from judgment was based entirely on her medical emergency
argument, see Gates II at 5-6, the court did not abuse its
discretion by denying Gates's motion for relief from judgment under
Civil Rule 60(b). The superior court's finding that Gates was not
prevented from appearing in court by a medical emergency is
supported by the affidavits of Dr. Blair, Dr. Jones, Albert
Lodovici, and others, see Gates II at 2-4, and Gates failed to
present any evidence to refute these affidavits, or to otherwise
support her claim of medical emergency.
Against this backdrop, we proceed to consider Gates's
argument that Judge Schulz lacked authority to enter findings, in
response to our remand in Gates II, because he "ha[d] been a
resident of California for three years."[Fn. 4]
Gates is correct that, assuming Judge Schulz "ha[d] been
a resident of California for three years,"it was inappropriate for
him to serve as a pro tempore judge. [Fn. 5] Alaska
Statute 22.10.090 provides that "[a] judge of the superior court
shall be a citizen of the United States and of the state, a
resident of the state for five years immediately preceding
appointment . . . ."
But Gates is mistaken that the fact that Judge Schulz may
have been a California resident entitles her to relitigate her
medical emergency claims. Neither AS 22.10.090 nor any other
Alaska statute or case indicates that Gates is entitled to such
relief. Authority in other jurisdictions holds that an acting
judge (such as Judge Schulz) who has colorable authority due to his
or her appointment is a de facto officer whose acts are legally
valid and binding on the public and on third persons if done within
the scope and by the apparent authority of his or her office, even
though the judge's actual authority suffers from a procedural
defect. See, e.g., Am. Jur. 2d Judges sec. 242 (1994) (stating
the de facto judge doctrine has been uniformly applied throughout
the country to prevent collateral attacks based on a procedural
defect in the judge's authority); People v. Bowen, 283 Cal. Rptr.
35, 39 (Cal. App. 1991) (applying the doctrine to preclude a
criminal defendant from collaterally attacking the superior court
judge's authority to try him where the judge did not meet county
residency requirement); Humel v. Hoogendorn, 5 Alaska 25, 25
(Alaska 1914) (recognizing that judge who continued to function
after end of term was a de facto judge whose actions could not be
We perceive no compelling reason to deviate from the
approach of these courts and to engraft the remedy that Gates
requests onto AS 22.10.090. Requiring relitigation of matters
decided by a competent, unbiased judge who, except for the matter
of residency, was duly appointed is a poor use of valuable judicial
and private resources. Cf. United States v. James Daniel Good Real
Property, 510 U.S. 43, 64 (1993) ("[T]here is no presumption or
general rule that for every duty imposed upon the court or the
Government and its prosecutors there must exist some corollary
punitive sanction for departures or omissions, even if negligent.")
(quoting United States v. Montalvo-Murillo, 495 U.S. 711, 717
(1990)). In addition, procedural defects in a judge's qualifica-
tions do not affect the fairness of the proceedings. See Bowen,
283 Cal. Rptr. at 39 (stating that the issue of whether the judge
met county residency requirement was "wholly removed from the
question of [the defendant's] guilt or innocence or the fairness of
the trial."). [Fn. 6] Furthermore, the de facto judge doctrine
protects third parties and the public in their dealings with the
judicial system. See, e.g., Farm Bureau Policyholders & Members v.
Farm Bureau Mut. Ins. Co., 952 S.W.2d 675, 676 (Ark. 1997).
Gates argues that the de facto judge doctrine does not
apply to pro tempore judges. However, several cases have held that
the doctrine applies to judges pro tempore. See, e.g., Survance v.
State, 465 N.E.2d 1076, 1081-82 (Ind. 1984); Giles v. State ex rel.
Giles, 235 S.W.2d 24, 29 (Tenn. 1950); Mattingly v. Commonwealth,
221 S.W.2d 82, 84 (Ky. 1949). We agree with these cases, because
the policy considerations previously discussed apply with equal
force to judges pro tempore. In addition, just as with regularly
appointed judges, judges pro tempore act under color of authority.
See State v. Hill, 564 P.2d 841, 843 n.1 (Wash. App. 1977) (holding
that where a judge pro tempore is in actual possession of the
office and discharging its duties, he or she acts under color of
title and is a judge de facto); see also Pickens v. Johnson, 267
P.2d 801, 805, 808 (Cal. 1954) (holding that the appointment of a
pro tempore judge "vest[s] in [him or her] the powers of a judge of
the  court during the period specified in the assignment.").
Here, Judge Schulz was appointed as a judge pro tempore
for a specific period of time and to a particular office, so he was
acting under color of authority in a de jure office. We thus hold
that even if he failed to meet the state residency requirement, he
was a de facto judge, and had authority to enter the findings on
The order on remand is AFFIRMED.
Alaska Supreme Court Order No. 3043 (December 21, 1992). The
Alaska Constitution provides that retired judges "shall render no
further service on the bench except for special assignments as
provided by court rule." Alaska Const. art. IV, sec. 11. Alaska
Administrative Rule 23(a) authorizes the chief justice to appoint
a retired superior court judge to sit pro tempore "where such
assignment is deemed necessary for the efficient administration of
justice." Pro tempore appointments "may be made for one or more
cases or for a specified period of time up to two years, except
that a pro tempore judge or justice may complete a trial or appeal
in progress at the time of the conclusion of the appointment." Id.
The appointment term ran from January 4, 1993 through March
31, 1993, continuing "through any additional time necessary to
reasonably complete"any assigned matters. Alaska Supreme Court
Order No. 3043 (December 21, 1992); see also Alaska R. Admin. P.
See Alaska R. Civ. P. 63(c); Pollastrine v. Severance, 375
P.2d 528, 530 (Alaska 1962) ("The two oral opinions of the trial
judge are comprehensive and yet particularized to a degree
sufficient to indicate the factual basis for the trial judge's
ultimate conclusion. . . . [Therefore] it is concluded that the
successor superior court judge had authority to file the April 18,
1961 decree in this cause.").
At the request of this court, the parties briefed the issue of
whether, assuming that Judge Schulz failed to meet the state
residency requirement, he still had authority to enter the findings
on remand pursuant to the de facto judge doctrine.
It was inappropriate for Judge Schulz to serve as a pro
tempore judge if he was a California resident either at the time of
his initial appointment or at the time he entered his Gates II
findings on remand.
We reject Gates's argument that a violation of a state
residency requirement is a substantive instead of a procedural
defect. Several cases have applied the de facto judge doctrine to
judges who fail to meet residency requirements. See, e.g., Bowen,
283 Cal. Rptr. at 39 (applying doctrine where judge failed to meet
county residency requirement); Hovanec v. Diaz, 397 N.E.2d 1249,
1250 (Ind. 1979) (applying doctrine where judge failed to meet city
residency requirement). In addition, residency requirements,
whether state, county, or city, are procedural requirements that do
not affect the fairness of the trial.