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Hanson v. Hanson (12/14/2001) sp-5515
Hanson v. Hanson (12/14/2001) sp-5515
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
WILLIAM R. HANSON, )
) Supreme Court No. S-9896
Appellant, )
) Superior Court No.
v. ) 3AN-95-1666 CI
)
YELENA V. HANSON, ) O P I N I O N
)
Appellee. ) [No. 5515 - December 14, 2001]
______________________________)
Appeal from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage,
John E. Reese, Judge.
Appearances: William R. Hanson, pro se, Anchorage. No
appearance by appellee.
Before: Fabe, Chief Justice, Matthews, Eastaugh,
Bryner, and Carpeneti, Justices.
CARPENETI, Justice.
1. INTRODUCTION
During a custody hearing involving the child of Yelena and William Hanson,
Superior Court Judge John E. Reese observed that William appeared to "really hate women"
and was "absolutely insensitive to different cultures." William later moved that Judge Reese
recuse himself because he is "biased against men." That motion was denied by Judge Reese,
and the denial was upheld by Superior Court Judge Dan A. Hensley. William now appeals
the decision not to recuse. He also alleges various procedural errors by Judge Reese during
hearings on domestic violence and custody issues. Because William has not presented
evidence that merits disqualification of Judge Reese and because he does not raise a valid
procedural complaint, we affirm the decisions of the superior court.
II. FACTS AND PROCEEDINGS
Yelena and William Hanson were married in Anchorage on February 21, 1993,
after William made arrangements for Yelena and her son, Dimitri, to come to Alaska from
Russia earlier that month. The couple have one child together, Anastasia, who was born in
late 1993.
The couple separated in February 1995 and were granted a divorce on April
1, 1996, based on an "incompatibility of temperament." A few months later, Yelena was
awarded sixty-five percent of the marital property, but none of William's pre-marital assets.
In September 1996 the court entered a custody order providing that Yelena and William
would share legal custody of Anastasia, while Yelena would have primary physical custody.
The events that give rise to the issues considered here began on February 1,
2000. Yelena filed a petition for a protective order based on her allegation that William
pushed Anastasia into his car and threw Yelena to the ground when she was attempting to
leave Anastasia with her sister earlier that day. William filed a motion to dissolve the
protective order on February 3. At a hearing before Judge Reese on February 4, the court
consolidated the domestic violence case with the parties' ongoing custody and support case.
William filed a motion on February 15 to modify custody and support, seeking primary
physical custody of Anastasia.
The court considered the domestic violence claim as well as the motion to
modify custody at a hearing on February 28. After hearing evidence from both sides, the
court found that William was guilty of domestic violence against Yelena. The court initially
stated that the parties would be allowed to file briefs before the court decided whether there
was a sufficient change in circumstance to merit a change in the custody arrangement.
However, after hearing evidence on the issue of domestic violence, the court found that there
was sufficient evidence of a change of circumstance to go forward with a hearing on the
motion to modify custody and visitation.
When the parties returned to Judge Reese's courtroom on May 8, William's
attorney, Patrick J. Blackburn, asked for a continuance. Counsel claimed that there was
some uncertainty about the trial date, although he admitted that it was properly marked in his
calendar. After a series of specific questions aimed at determining how much time would
be needed to prepare, the court continued the case until May 31 and ordered William to pay
Yelena's costs for attending court that day. At one point during this hearing, Judge Reese
stated to William, "In the last hearing and again today in this hearing so far, what you have
convinced me of is that you really hate women, you're very judgmental, that you're
absolutely insensitive to different cultures."
The next day William filed a motion to recuse Judge Reese from the case. The
motion was supported by affidavits from both William and Blackburn who alleged that Judge
Reese is "prejudiced against men." Judge Reese denied the motion to recuse himself. The
motion to recuse was also denied by Superior Court Judge Dan A. Hensley when he
reviewed it as required under AS 22.20.020(c). [Fn. 1]
At the trial on May 31, Blackburn delivered an opening argument, and then,
after a brief disagreement with his client, withdrew from the case. William asked the court
for another continuance so that he could hire a new attorney. The court denied this request
and proceeded with the trial. After hearing extensive evidence from several witnesses on
both sides, the court ruled that the parties should continue to split legal custody, while
Yelena maintained primary physical custody. The court also resolved several minor
disagreements about how visitation should be handled during those times that Anastasia was
not in school.
William brings this appeal challenging the decisions of Judge Reese and Judge
Hensley denying his motion to recuse. In addition, William alleges various procedural errors
and violations of the Code of Judicial Conduct by Judge Reese. Yelena has not responded
to this appeal.
III. STANDARD OF REVIEW
This court reviews the decision on a motion to recuse for an abuse of
discretion. [Fn. 2] "This court will not overturn a trial judge's recusal decision unless it is plain
that a fair-minded person could not rationally come to that conclusion on the basis of the
known facts." [Fn. 3]
"Findings of fact shall not be set aside unless clearly erroneous, and due regard
shall be given to the opportunity of the trial court to judge the credibility of the witnesses." [Fn. 4]
IV. DISCUSSION
A. It Was Not an Abuse of Discretion for Judge Reese and Judge Hensley To
Deny William's Motion To Disqualify Judge Reese.
William argues that Judge Reese should be recused from this case because
statements made by Judge Reese were "unprofessional and inappropriate" and provide
evidence that he is "prejudiced against men." William also contends that Judge Reese's bias
manifested itself in his assistance to Yelena in the presentation of her case. William
complains that Judge Hensley's review decision was merely "a blatant statement of support
for a fellow ju[rist] and not a review of whether Judge Reese's conduct was appropriate . . . ."
Judge Reese denied the motion to recuse based on his conclusion that "[t]he
comments made to [William] in this case were well justified by [William's] comments made
in open court." Judge Hensley concluded that "Judge Reese's findings about Mr. Hanson
are reasonable based on the entire record," and, taken in context, the purpose of the
statements was to "warn Mr. Hanson that he was harming his case by his verbal attack on his
wife." Judge Hensley found the evidence of bias against Judge Reese to be "mostly
anecdotal . . . reflect[ing] Mr. Blackburn's view of the outcome of [previous] cases rather
than providing specific evidence demonstrating bias."
Alaska Statute 22.20.020(a) requires disqualification of a judge when "the
judicial officer feels that, for any reason, a fair and impartial decision cannot be given." [Fn. 5] A
judicial officer must disqualify himself or herself in any proceeding in which the judicial
officer's impartiality might reasonably be questioned. [Fn. 6] In addition, the Alaska Code of
Judicial Conduct requires that "[i]n the performance of judicial duties, a judge shall act
without bias or prejudice and shall not manifest [such bias or prejudice] by words or
conduct." [Fn. 7] Canon 3(E) of the Code requires disqualification of the judge "in a proceeding
in which the judge's impartiality might reasonably be questioned [because] the judge has a
personal bias or prejudice concerning a party or a party's lawyer." [Fn. 8]
We have previously held that a judge is not disqualified from presiding over
a case merely because the judge has previously made adverse findings regarding a party. [Fn. 9]
To succeed on a motion to disqualify a judge for bias, the movant must show that the
judge's actions "were the result of personal bias developed from a nonjudicial source." [Fn. 10]
The United States Supreme Court addressed claims of judicial disqualification
for bias under similar federal standards in Liteky v. United States. [Fn. 11] In Liteky, the Court
noted that the "extrajudicial source" doctrine, which requires that any disqualifying bias or
prejudice stem from an extrajudicial source, is the most common, though not the exclusive,
basis for establishing bias or prejudice. [Fn. 12] As a result, a judge is not disqualified if the
judge's "knowledge and the opinion it produced were properly and necessarily acquired in
the course of the proceedings, and are indeed sometimes (as in a bench trial) necessary to
completion of the judge's task." [Fn. 13] The primary exception to the "extrajudicial source"
doctrine exists when an opinion, "even though it springs from the facts adduced or the events
occurring at trial, [] is so extreme as to display clear inability to render fair judgment." [Fn. 14]
With regard to comments made by the judge during trial, the Court specifically
noted:
[J]udicial remarks during the course of a trial that are critical or
disapproving of, or even hostile to, counsel, the parties, or their
cases, ordinarily do not support a bias or partiality challenge.
They may do so if they reveal an opinion that derives from an
extrajudicial source; and they will do so if they reveal such a
high degree of favoritism or antagonism as to make fair
judgment impossible . . . . Not establishing bias or partiality,
however, are expressions of impatience, dissatisfaction,
annoyance and even anger, that are within the bounds of what
imperfect men and women . . . sometimes display. [Fn. 15]
The example of a "high degree of favoritism or antagonism as to make fair judgment
impossible" noted by the Court was the statement by the judge in a World War I espionage
case that "[o]ne must have a very judicial mind, indeed, not [to be] prejudiced against the
German Americans [because their] hearts are reeking with disloyalty." [Fn. 16]
Other courts have found examples of bias or prejudice requiring
disqualification. During the Vietnam war, a judge told another judge that it was his policy
to sentence all Selective Service violators to thirty months in prison if they are good people,
even though the statute did not mandate a prison sentence. [Fn. 17] A federal appellate court held
that the judge was disqualified from hearing a case involving a violation of the Selective
Service laws because his statements gave the appearance that he was biased against the class
of people who violated the Selective Service laws. [Fn. 18]
Similarly, the Supreme Judicial Court of Massachusetts considered the
statements of an appellate judge made during a case involving a government employees'
union. [Fn. 19] With respect to the president of the union, the judge said in relevant part:
[The president] had his whole family on the [union] payroll . . .
. [T]his is a[] union gone amok . . . . [P]eople in the courthouse
here who pay their dues get absolutely nothing . . . . [The
president] and all his family are making $200,000 a year, plus
they have cars and expense accounts . . . . [The union doesn't]
represent anybody, as far as I can see. They just take the money
and keep on stepping and buy more condos and have more
expense accounts and have fancy banquets.[Fn. 20 ]
The court held that the judge should be disqualified from any future actions involving the
union or any member of the president's family because the judge's comments "express what
appears to be a strong animus against the union and its leadership. . . . Such accusations go
far beyond any comment appropriate to the circumstances of this particular dispute." [Fn. 21]
Similar cases have arisen when a judge's statements evidenced prejudgment
of a person [Fn. 22] or an industry [Fn. 23] that was not connected to the events taking place in court and
required disqualification.
However, most cases examining comments made by a judge fail to find the
kind of bias or prejudice requiring disqualification. In United States v. Bertoli, [Fn. 24] the
defendant claimed that statements made by the judge to both the defendant and his attorney
during the course of the trial created the appearance of bias or partiality. In part, the judge
stated:
Mr. Bertoli, your smirks, your laughing, your rolling your eyes,
your sneering can't be tolerated any more. . . . You're out of
bounds and unprofessional. You're not conducting yourself the
way you should. . . . From day one in this case either you or
your attorneys have been taunting me.[Fn. 25]
The court held that disqualification was not merited because "the judge's comments, while
perhaps reflecting impatience and frustration, appear to have been directed solely at the
manner in which Bertoli tried his case." [Fn. 26]
Similarly, in Logue v. Dore [Fn. 27], a husband arrested for violating a restraining
order brought suit against the arresting officer for false imprisonment and excessive force.
After the plaintiff testified and the jury was excused, the judge stated on the record that "I
totally disbelieve the plaintiff in this case. I think he's an absolute and incorrigible liar." [Fn. 28]
The judge also made critical remarks about plaintiff's counsel, at one point disparagingly
referring to him as a "smart little guy." [Fn. 29] Although the court found that the judge "could
perhaps have been more delicate in his choice of phrase," the statements did not evidence
the kind of bias requiring disqualification. [Fn. 30]
Finally, in Dumas v. State [Fn. 31], a criminal defendant raised a claim of bias when
shortly after sentencing, the judge said "it is time that the citizens of New Haven and society
in general are protected from marauders like [the defendant]. That's what he is." [Fn. 32] The
court found that the defendant's allegations of bias failed because he did not provide any
evidence to support the assertion that use of the term "marauder" indicated that the court was
biased against him. [Fn. 33]
The statements in the present case are much closer to these latter cases.
Although we conclude that Judge Reese's comment that Mr. Hanson "really hate[s] women"
was unnecessary to any judicial action he was taking and was arguably inappropriate, it was
not "so extreme as to display clear inability to render fair judgment." [Fn. 34] William has failed
to present evidence to support a claim of bias against the judge. The affidavits upon which
he relies only supply general claims that Judge Reese has made similar findings in similar
cases and speculate as to an extrajudicial source for this bias. Conversely, there is
considerable evidence in the record of the proceedings to support our conclusion that Judge
Reese's comments were the result of opinions and attitudes formed in court by the evidence
that the judge heard.
During the February 28 hearing on Yelena's claims of domestic violence,
William repeatedly disparaged Yelena's Soviet ancestry, claiming that Soviets "ha[ve] no
concept of honor or truth." [Fn. 35] William also minimalized Yelena's claims of domestic
violence, referring to her reports as "a game that she's been playing . . . entirely flaky . . .
almost comical." William admitted to the court that on one occasion he had attempted to
lure his wife into believing that her sick daughter was alone in William's house so that she
would break into the house to care for her, and William could have her arrested. There was
also sufficient evidence presented at the hearing to support Judge Reese's finding that
William had been domestically violent by forcing Anastasia into his car and pushing Yelena
to the ground.
William and his attorney arrived at trial on May 8 completely unprepared.
During that hearing, William made a pointed statement that he was "the mature one here."
At a later hearing, William accused Yelena's sister of "[coming] to this country and
sle[eping] around until she found someone to marry her."
Judge Reese specifically prefaced his statement to William by noting that his
comments were based on his perceptions "in the last hearing and again today in this hearing
so far." And again, despite his statement, Judge Reese granted William a continuance of the
trial date as he requested. Based upon this evidence, we find that Judge Reese need not have
recused himself for bias. Although his statements may have been the result of his frustration
and annoyance with William, they do not originate in an extrajudicial source and do not
display an inability to render fair judgment.
We add one note. Judges of this state are subject to "high standards of judicial
conduct" in order to preserve the integrity of the judiciary. [Fn. 36] It is important that all Alaska
judges reflect on the effect of the language they choose in dealing with litigants and their
attorneys. Even though the court's language does not require disqualification and was no
doubt prompted by its frustration at Mr. Hanson's actions and statements, the court and the
judicial system would have been better served by more temperate words.
2. William's Various Claims of Procedural Error Are Meritless.
William alleges various procedural errors by Judge Reese. Since these claims
were not raised in the trial court by William, they have likely been waived. [Fn. 37] Any question
of waiver, however, is irrelevant as his arguments of procedural error are meritless and the
errors he claims are harmless.
First, William claims that the hearing on his motion to modify custody was
held only three days after his motion was filed, which violates Alaska Civil Rule 77(c)'s
requirement that each party opposing the motion shall have ten days to make certain
responses. [Fn. 38] But William filed his motion to modify custody on February 15. A calendaring
order on February 18 set the hearing on the motion for February 28, which was more than
ten days after the motion was filed. There was no violation of Rule 77(c). In addition,
William is the one who made the motion to modify, while the provisions of Rule 77(c) are
designed to protect the interests of those who are opposing such a motion. He has no
standing to claim that he was harmed by violation of this rule, even if there was one.
William also objects that the court considered the motion to modify at the
February 28 hearing after Judge Reese initially stated that the hearing would only consider
the domestic violence claim. But William does not argue that Judge Reese violated any
procedural rule by that change. And in fact, the court's action was supported by statute. As
a part of a motion to modify, the movant must show that a significant change of
circumstances has occurred. [Fn. 39] Alaska Statute 25.20.100(c) specifically directs that a finding
of domestic violence establishes a change of circumstance for purposes of modifying
custody. [Fn. 40] Judge Reese simply recognized the legal impact that his ruling on the domestic
violence issue would have on William's pending motion to modify custody. And since
William was the one who moved to modify custody, and therefore had the burden of showing
a change of circumstances, he should not be heard to complain that the court found a change
of circumstances.
William's next claim of procedural error asserts that the scheduling of the May
8 hearing was "bizzare at least," and that the court was negligent in setting the date. [Fn. 41]
However, although the scheduling of the trial date is not in the transcript, the log notes
clearly evidence that the May 8 date was agreed to off the record by the parties, and
William's own attorney admitted that the hearing was properly noted in his personal
calendar. Any confusion on this point does not appear to be the result of error by the court
but rather negligence by William and his attorney. Moreover, the point is moot because
William was granted a continuance to May 31.
Finally, William argues that the court failed to provide reasons for modifying
custody and visitation on the record as required by AS 25.20.110(a). [Fn. 42] However, the motion
to modify was denied. Judge Reese only resolved some disagreements about the visitation
arrangement, but did not change legal custody or primary physical custody of Anastasia.
Therefore, the statute did not require Judge Reese to give reasons on the record.
Because William's claims of procedural error are meritless, we conclude that
the superior court did not err.
V. CONCLUSION
The decision to deny William's motion to recuse was not an abuse of
discretion. Additionally, William's claims of procedural error are meritless. Therefore, we
AFFIRM the decision of the superior court.
FOOTNOTES
Footnote 1:
AS 22.20.020(c) states, in relevant part:
If a judicial officer denies disqualification the question shall be
heard and determined by another judge assigned for the purpose
by the presiding judge of the next higher level of courts or, if
none, by the other members of the supreme court.
Footnote 2:
Capital Info. Group v. Office of the Governor, 923 P.2d 29, 41 (Alaska 1996).
Footnote 3:
R.J.M. v. State, 946 P.2d 855, 869-70 (Alaska 1997) (internal quotation marks omitted).
Footnote 4:
Alaska R. Civ. P. 52(a).
Footnote 5:
AS 22.20.020(a)(9).
Footnote 6:
See Amidon v. State, 604 P.2d 575, 578 (Alaska 1979); Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991).
Footnote 7:
Alaska Code of Judicial Conduct Canon 3(B)(5).
Footnote 8:
Alaska Code of Judicial Conduct Canon 3(E)(1)(a).
Footnote 9:
Lacher v. Lacher, 993 P.2d 413, 421 (Alaska 1999); Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994).
Footnote 10:
Nelson v. Jones, 781 P.2d 964, 972 (Alaska 1989); see also Lacher, 993 P.2d at 421.
Footnote 11:
510 U.S. 540 (1994).
Footnote 12:
Id. at 551.
Footnote 13:
Id.
Footnote 14:
Id.
Footnote 15:
Id. at 555-56 (emphasis in original).
Footnote 16:
Id. (quoting Berger v. U.S., 255 U.S. 22, 28 (1921)).
Footnote 17:
U.S. v. Thompson, 483 F.2d 527, 528-29 (3d Cir. 1973).
Footnote 18:
Id. at 529.
Footnote 19:
In re Brown, 691 N.E.2d 573 (Mass. 1998).
Footnote 20:
Id. at 574-75.
Footnote 21:
Id. at 576.
Footnote 22:
E.g., Don King Productions v. Chavez, 768 So. 2d 538, 539 (Fla. Dist. App.
2000) (holding that judge was disqualified for prejudice against Don King after stating during
summary judgment motion that "[i]f I'm in the boxing business, . . . if Bob Arum called
me up, said, 'Don King said, "I've got a contract with such and such a fighter." ' I would
say, 'show it to me.' I wouldn't act based on what he told me.").
Footnote 23:
E.g., Royal Carribean Cruises, Ltd. v. Doe, 767 So. 2d 626, 627 (Fla. Dist. App. 2000)
(holding that judge should be disqualified for statements suggesting pre-existing unfavorable
opinions about the management and litigation tactics of the cruise line industry); but see
Shank v. American Motors Corp., 575 F. Supp 125, 127-29 (E.D. Pa. 1983) (holding that judge's
statement that "[a]utomobile manufacturers are among the most devious groups of defendants
that I have ever seen in 21 years on the Bench" did not require disqualification
because opinion was admittedly based on judicial experience).
Footnote 24:
40 F.3d 1384 (3d Cir. 1994).
Footnote 25:
Id. at 1413 n.29.
Footnote 26:
Id. at 1413.
Footnote 27:
103 F.3d 1040 (1st Cir. 1997).
Footnote 28:
Id. at 1046.
Footnote 29:
Id.
Footnote 30:
Id.
Footnote 31:
739 A.2d 1251 (Conn. App. 1999).
Footnote 32:
Id. at 1259.
Footnote 33:
Id. at 1260.
Footnote 34:
Liteky v. United States, 510 U.S. 540, 551 (1994).
Footnote 35:
Specifically, William asserted:
Yelena is a . . . product of the Soviet system. She has no
concept of - of honor or truth, or any of those other things that
go into what my background, my makeup is. She also has paid
for and supported her sister to come over here. She has a goal in
life of bringing her entire family over. I guess that's every
immigrant's dream.
Footnote 36:
Alaska Code of Judicial Conduct Canon 1.
Footnote 37:
Alaska Wildlife Alliance v. Rue, 948 P.2d 976, 980-81, n.5 (Alaska 1997)
(citing Zeman v. Lufthansa German Airlines, 699 P.2d 1274, 1280 (Alaska 1985))
(court will not consider matters on appeal that are not raised below).
Footnote 38:
Alaska R. Civ. P. 77(c).
Footnote 39:
AS 25.20.110(a) ("An award of custody of a child or visitation with the
child may be modified if the court determines that a change in circumstances
requires the modification of the award and the modification is in the best
interests of the child."); Garding v. Garding, 767 P.2d 183, 185 (Alaska 1989).
Footnote 40:
AS 25.20.110(c) provides:
In a proceeding involving the modification of an award for
custody of a child or visitation with a child, a finding that a
crime involving domestic violence has occurred since the last
custody or visitation determination is a finding of change of
circumstances under (a) of this section.
Footnote 41:
Although he does not mention it as part of his argument, William did
file a motion for a continuance on May 5 that arguably preserves this issue
for appeal. However, at the May 8 hearing, Judge Reese granted the continuance
so that William and his attorney would have more time to prepare.
Footnote 42:
AS 25.20.110(a) provides in relevant part:
If a parent opposes the modification of the award of custody or
visitation with the child and the modification is granted, the
court shall enter on the record its reason for the modification.
-22-
5515
