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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. In Re Estate of Bavilla (3/6/2015) sp-6985

In Re Estate of Bavilla (3/6/2015) sp-6985

          Notice:  This opinion is subject to correction before publication in the PACIFIC  REPORTER .  

          Readers are requested to bring errors to the attention of the Clerk of the Appellate Courts,  

          303 K Street, Anchorage, Alaska 99501, phone (907) 264-0608, fax (907) 264-0878, email  

                                                                                          

          corrections@akcourts.us.  



                    THE SUPREME COURT OF THE STATE OF ALASKA  



In the Matter of the Estate of                            )  

                                                          )        Supreme Court No. S-15582  

OFFENESIA YAKO BAVILLA,                                   )  

                                                          )        Superior Court No. 3AN-12-01316 PR  

                             Deceased.                    )  

                                                          )        O P I N I O N  

                                                          )  

                                                          )        No. 6985 - March 6, 2015  

                                                          )  



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

                                                                      

                   Judicial District, Anchorage, Patrick J. McKay, Judge.  



                   Appearances:    Etta  Marie  Bavilla,  pro  se,  Eagle  River,  

                   Appellant.  



                   Before:  Fabe, Chief Justice, Winfree, Stowers, Maassen, and  

                                          

                   Bolger, Justices.  



                   FABE, Chief Justice.  



I.        INTRODUCTION  



                   This appeal arises from Etta Bavilla's attempt to informally probate the  



1987 will of her mother, Offenesia Bavilla.  Because Offenesia signed a new will in  

                                                                                               



2006, the superior court did not accept Etta's informal probate of the 1987 will.  Etta, a  

                                                                                                             



pro se litigant, attempted to contest the validity of the 2006 will by filing a motion to  

                                                                                                             



amend her probate of the 1987 will to include a challenge to the 2006 will.  Her motion  

                             



to  amend  was  denied,  as  was  her  motion  for  recusal  of  the  magistrate  judge  who  

                                   



recommended denial of that amendment. On appeal, Etta challenges the superior court's  

                                                                            


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

denial of her motion to amend her pleadings and the magistrate judge's decision not to  

                                



recuse himself.  We remand for the superior court to allow Etta to amend her pleadings  

                                                                   



but affirm the magistrate judge's decision not to recuse himself.  



II.       FACTS AND PROCEEDINGS  



          A.        Facts  



                    Offenesia Yako Bavilla died in 2010.  She was an Alaska Native woman  



                                                                                                 1  

who lived in Dillingham and had two children, Etta and Steven.   In 1987 Offenesia  

                     



executed  a  will  that  left  most  of  her  assets  to  Etta  and  Steven.    In  the  mid-2000s  



                                                                                                    

Offenesia was elderly and slipping mentally.  In November 2005 a doctor at the Bristol  



Bay  Area  Health  Corporation  wrote  that  Offenesia's  "mental  status  has  declined  



                                                                                             

significantly," that she "has become nearly mute," and that she "appears to hallucinate."  



                                                                                       

The  doctor  concluded  that  "[d]ue  to  her  dementia,  her  condition  is  quite  likely  to  



continue to deteriorate."  



                    In February 2006 Offenesia executed a new will, which was prepared by  



                                                     2  

Alaska Legal Services Corporation.   The new will was witnessed by individuals who  



                                                                                              

worked at the elder care facility where Offenesia resided.  This new will eliminated Etta  



                                              

from any inheritance but still included her brother, Steven.  The 2006 will included a  



statement explicitly "revoking all prior wills and codicils."  



                                         

          B.        Proceedings  



                                                                                             

                    In June 2012 Etta applied for informal probate of the 1987 will.  Etta noted  



                                   

in her application that the 1987 will was followed by a 2006 will, but she asserted that  



          1         The  filings  and  proceedings  variously  refer  to  Steven  as  "Steven,"  



"Stephen," and "Stephan."  This opinion refers to him as Steven since that is how both  

                                           

the 1987 and 2006 wills list his name.  



          2         The will includes a certification that it had been translated into the Yupik  

                                                                     

language.  



                                                              -2-                                                        6985
  


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

                                       3  

                                                                                            

the 2006 will was invalid.                Based on this, Magistrate Judge John Duggan, acting in his  



                                                                                        

capacity  as  a  probate  master,  held  a  status  hearing  in  early  November  2012.    Etta  



participated in the hearing telephonically because she was incarcerated at the Hiland  



                                     

Mountain Correctional Center.  Magistrate Judge Duggan told Etta that he could not  



                                                                                                           

admit Offenesia's 1987 will for probate "until [the court] ha[d] a copy of that 2006 will"  



and could "make a determination that that will is invalid."  



                                                                                         

                    When Etta asked about the specific process she would need to follow for  



        

this determination, Magistrate Judge Duggan responded that "[i]f there is a second will,  



                                                                                            

that has to be filed with the court, [and] if it is after 1987, . . . then there has to be a court  



hearing and you can present evidence why that will should not be admitted [and] why  



                         

it is not valid."  Magistrate Judge Duggan noted that the 1987 will did not nominate Etta  



                                                            

as the personal representative and that the two individuals so named had not renounced  



                                  

their appointment; he warned that the court could not consider Etta's probate application  



                                                         4  

"until we hear something from them."   Magistrate Judge Duggan also told Etta that she  



                                                                        

would have to file "a waiver in renunciation of the nomination" and that he did not have  



authority  to  grant  her  request  for  a  court-appointed  attorney  to  represent  her.    The  



application for informal probate of the 1987 will was left open pending further filings.  



          3         The application stated that "[t]o the best of Applicant's knowledge, [the  



1987]  Will  was  validly  executed,  and,  after  the  exercise  of  reasonable  diligence,  

                                        

applicant is unaware of any valid instrument revoking said Will, although a subsequent  

                                                                     

invalid will was executed in February of 2006.  Applicant believes that the [1987] Will  

                                            

is the decedent's last valid Will."  At a subsequent status hearing on her petition, Etta  

alleged that the 2006 will was "illegally crafted" by her brother, Steven, and the director  

                                                                          

of the elder care home where Offenesia was living when Offenesia signed the 2006 will,  

                                                                    

for which the director served as a witness.  



          4         The 1987 will nominated Patty Heyano as personal representative, or Janet  



Hannahs Hiratsuka if Ms. Heyano is unable to serve.  The 2006 will nominated Etta's  

brother, Steven, to be the executor and personal representative.  



                                                                -3-                                                         6985
  


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

                                                                                                                   

                      In late November 2012 Etta filed a motion asking that the 2006 will be  



declared invalid and that her brother Steven "lose all rights to inheritance" described in  



the 1987 will.  Etta served Steven and Alaska Legal Services Corporation by regular  



                                                                                                                                 

mail.  Etta attached a number of documents to the motion, including copies of the 2006  



                                                   

will  and  the  November  2005  letter  from  a  doctor  with  the  Bristol  Bay  Area  Health  



                                                                                               5  

                                                                                                          

Corporation describing Offenesia's declining mental state.                                       Etta indicated that although  



                                                     

neither Steven nor any personal representatives or executors named in the 2006 will had  



       

yet entered that will into probate, they had "accessed/utilized assets of the estate."  The  



                                                                                                                      

documents  indicate  that  Offenesia's  Native  corporation  stock  was  transferred  in  



                                                                                                                                             6  

                                                                                                                       

accordance with the 2006 will to Steven and to Offenesia's great-niece, Clara Torsen. 



                      In response to Etta's November 2012 motion, Magistrate Judge Duggan  



held another hearing in January 2013.  Magistrate Judge Duggan told Etta during the  



                                                                                 

January 2013 telephonic hearing that he could not determine the precise relief her motion  



                                                                                                                        

was requesting.  Etta explained that she was attempting to invalidate the 2006 will and  



                                                                                                         

have the 1987 will declared Offenesia's true will.  Etta argued that Offenesia was not  



           5          The  attachments  also  included  an   Emergency  Physician  Record  from  



January 2006, when Offenesia was brought to a hospital in part due to her "mental status         

changes."    The  physical   exam  record  indicated  that  Offenesia  was  known  to  have  

dementia.  



           6  

                                                                                     

                      Etta contacted Bristol Bay Corporate Services (BBCS) to challenge this  

                                                                  

transfer based on Offenesia's dementia, which had been diagnosed before she executed  

                                               

the 2006 will.  In June 2011 BBCS responded that, based on its investigation into Etta's  

                                                                                         

claim  ("including  contacting  Alaska  Legal  Services  who  assisted  [Etta's]  mother  in  

executing her will"), BBCS made a "good faith determination that [Etta's] mother's stock  

will executed in 2006 was validly executed and BBCS found no evidence of undue  

influence or duress."  BBCS indicated that it would distribute Offenesia's shares in  

accordance with the 2006 will.  BBCS noted that if Etta disagreed with its determination,  

                                                                                   

she had "the right to bring a claim in the Superior Court in accordance with Alaska  

                                                                                                 

Statute Section 13.16.[0]70."  



                                                                     -4-                                                              6985
  


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

                                                                            

competent to execute a will in 2006, that the 2006 will was the result of undue influence  



by Steven and individuals working at the elder care home where Offenesia had been  



                                                      

living (who served as witnesses to the will), and that those witnesses had a conflict of  



                                                                                                                   

interest.  Magistrate Judge Duggan then told Etta that she would need to file a "separate  



                                                                   

proceeding" to invalidate the 2006 will.  He suggested that Etta consult an attorney and  



                                 

denied Etta's request for court-appointed counsel.  Magistrate Judge Duggan concluded  



the conference by informing Etta that her application for informal probate of the 1987  



will was denied without prejudice.  



                                                                

                    In May 2013 Etta filed two motions.  First, she asked for leave to file an  



                                                                  

amended pleading to contest the 2006 will.  Her motion requested that she "be allowed  



                                                                              

to amend [her] original pleading and contest the 2nd will of decedent" based on "possible  



illegal activity and misrepresentation involved with the decedent's 2nd will."  Second,  



Etta filed a motion to disqualify Magistrate Judge Duggan on the grounds that he was  



                                                                                   

"biased and prejudiced" toward her. In mid-June 2013 Magistrate Judge Duggan signed  



two  orders:    one  recommending  denial  of  the  disqualification  motion  and  a  second  



                                                                                      

recommending denying without prejudice Etta's original application to probate the 1987  



will, which the order stated was revoked by the 2006 will.  



                    Two  weeks  later  Magistrate  Judge  James  Stanley  signed  an  order  



                         

recommending that Etta's motion to amend be denied.  The recommendation stated that  



a  January  2013  court  order,  issued  after  Magistrate  Judge  Duggan's  second  status  



                                                          

conference, "ruled that the 1987 will, [the] subject of the petition filed [June 21, 2012],  



                                                                                                     

had been revoked when the decedent executed a new will in 2006." The order stated that  



                                                                                                            

Etta "cannot now use this action as a forum to invalidate the 2006 will." The order noted  



                        

that "petitioner may wish to commence an action in Superior Court" to contest the 2006  



will.  



                                                               -5-                                                         6985
  


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

                          In April 2014 Superior Court Judge Patrick J. McKay issued two final  



                                                                                                                              

orders:  one approving Magistrate Judge Duggan's decision not to recuse himself and a  



                                                                                                    

second approving and adopting Magistrate Judge Stanley's recommendation to deny  



Etta's motion to amend her pleadings to contest the 2006 will.  The order approving  



                                                                                                                  

Magistrate Judge Duggan's decision not to recuse himself concluded that, after a review  



of the pleadings, Etta's recusal request was "not supported by any evidence of bias on  



the part of Master Duggan," but rather reflected that Etta was "unhappy with Master  



Duggan's decision and orders."  The order stated that "[t]his is not a ground for recusal  



                                            

and the Court sees no further grounds requiring recusal."  Judge McKay's second order  



adopted Magistrate Judge Stanley's recommendation to deny Etta's motion to amend  



without further discussion.  



                                                                                                                            

                          Etta has appealed these final orders, arguing that the superior court erred  



                               

by denying her motion to amend her original pleading to contest the 2006 will and by not  



investigating her claim that the 2006 will "was crafted and drafted possibly through  



                             7  

                                          

illegal means."                 She contends that Offenesia was not competent to execute a will in 2006  



                                                                                                 

and asserts that the witnesses to the 2006 will had conflicts of interest.  She also requests  



that Judge McKay, Magistrate Judge Duggan, and Magistrate Judge Stanley be barred  



             7            Etta's brief on appeal also asserts that the superior court "erred in the facts"     



and  in  ignoring  her  claim  that  her  brother   and  her  mother's  caretakers  engaged  in  

criminal and fraudulent conduct.                                  Etta also suggests that the superior court erred by not         

holding Steven responsible for "any or all illegalities" regarding the 2006 will. But none                                                               

of these issues is properly before us since they were not addressed in the rulings below                       

and this decision only considers whether Etta may proceed as a procedural matter and                 

does not consider the merits of Etta's claims.                                           See Hoffman Const. Co. of Alaska v. U.S.              

Fabrication & Erection, Inc. , 32 P.3d 346, 351 (Alaska 2001) ("[W]e will not consider  

arguments that were not raised below, unless the issues establish plain error, or the issues  

(1) do not depend upon new facts, (2) are closely related to other arguments at trial, and  

                                                                                                                               

(3) could have been gleaned from the pleadings.").  



                                                                                  -6-                                                                           6985
  


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

                                               

from presiding over her case based on their alleged discrimination against her and refusal  



to appoint counsel for her.  



III.	      STANDARD OF REVIEW  



                      "We review a superior court's denial of a motion to amend a complaint for  



abuse of discretion.  It is within a trial court's discretion to deny such a motion where  



                                                                                                                             

amendment  would  be  futile  because  it  advances  a  claim  or  defense  that  is  legally  

insufficient on its face."8  "We consider with independent judgment whether a proposed  



amended complaint could survive dismissal; if we conclude that it could not, we will  



                                              

hold that the superior court did not abuse its discretion by denying the motion for leave  



                  9  

                                                                                           

to amend."   "The refusal by a judge to be recused from a case is reviewed for an abuse  

of discretion."10  



IV.	       DISCUSSION  



           A.	        The  Superior  Court  Should  Have  Allowed  Etta  To  Amend  Her  

                      Original  Pleading  -  Informal  Probate  Of  The  1987  Will  -  To  

                                                                               

                      Contest The 2006 Will.  



                      The primary question in this appeal is whether the superior court should  

                                                                                                                        



have allowed Etta to amend her application for informal probate of Offenesia's 1987 will  



                                                                                                

to contest Offenesia's 2006 will.  Under Alaska Civil Rule 15(a), leave to amend "shall  



                                                                                    

be freely given when justice so requires."  We have recognized that absent "apparent or  



declared reason - such as undue delay, bad faith or dilatory motive on the part of the  



                                                                                                   

movant, repeated failure to cure deficiencies by amendments previously allowed, undue  



prejudice to the opposing party by virtue of allowance of the amendment, futility of  



           8         Krause v. Matanuska-Susitna Borough                             , 229 P.3d 168, 174 (Alaska 2010)   



(citations and internal quotation marks omitted).  



           9         Id. at 177.  



           10  

                                                                                                            

                     Jourdan v. Nationsbanc Mortg. Corp. , 42 P.3d 1072, 1082 (Alaska 2002).  



                                                                    -7-	                                                            6985
  


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

amendment, etc. - the leave sought should, as the rules require, be freely given."11  



Additionally, "the pleadings of pro se litigants should be held to less stringent standards  

                                                                                  

than those of lawyers."12  As discussed below, none of the exceptions to Rule 15(a) apply  

                                                                          



to this case. As a result, the superior court abused its discretion by denying Etta's motion  

                       



to amend her pleading to contest Offenesia's 2006 will.  



                   First, Etta's actions do not fall within the Rule 15(a) exception regarding  



                                    13  

                                        While it is within the superior court's discretion to deny a  

"futility of amendment." 



motion to amend "where amendment would be futile because it advances a claim or  



                                                                    14 

                                                                       Etta's proposed amendments do not  

defense that is legally insufficient on its face," 



                                                                                                 

appear to be legally insufficient; rather, the merits of her challenge to the validity of the  

                                                                                                         15   If the facts  

                                                                                                              

2006 will turn on factual findings that the superior court has not yet made.  



are as Etta alleges, her claim would not be legally insufficient on its face.  



                                                                                    

                   To contest a will, as Etta sought to do here, a party must initiate a formal  



                             16  

                                   Though  Etta  initially  filed  her  claim  as  an  informal  probate  

probate  proceeding.                                   



          11       Miller v. Safeway, Inc. , 102 P.3d 282, 294 (Alaska 2004) (quoting Betz v.  



Chena Hot Springs Grp., 742 P.2d 1346, 1348 (Alaska 1987)) (internal quotation marks  

                                                            

omitted).  



          12       Breck v. Ulmer , 745 P.2d 66, 75 (Alaska 1987).  



          13       See,  e.g.,  AS  13.16.040(a)  ("An  informal  probate  .  .  .  may  not  be  



commenced more than three years after the decedent's death . . . .").  



          14  

                                                                                                   

                   Krause v. Matanuska-Susitna Borough , 229 P.3d 168, 174 (Alaska 2010)  

(quoting Hallam v. Alaska Airlines, Inc. , 91 P.3d 279, 287 (Alaska 2004)) (internal  

quotation marks omitted).  



          15       Cf.  Crittell  v.  Bingo,  36  P.3d  634,  638  (Alaska  2001)  ("Issues  of  



testamentary capacity and undue influence involve questions of fact . . . .").  



          16       See  AS  13.16.140(a)  ("A  formal  testacy  proceeding  is  litigation  to  



                                                                                                         (continued...)  



                                                            -8-                                                      6985
  


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

proceeding, there is no statutory bar precluding the superior court from converting an  



                                                                        17  

                                                                              The  Uniform  Probate  Code,  which  

informal  probate  proceeding  to  a  formal one.  



                                                          18  

                                                                                

Alaska adopted in its entirety in 1972,                       is silent on how to convert an informal probate  



                                                                                                                             19  

                                                                                                                                  In  

proceeding into a formal one, but nothing in the Code prevents such conversion. 



             

Riddell v. Edwards , we recognized that "in deciding claims arising under the probate  

code, a court may exercise its equitable powers unless explicitly forbidden to do so."20  



Moreover, "Alaska's Uniform Probate Code generally gives trial courts broad latitude  

to supplement statutory provisions with equitable principles."21  There is also no statutory  



          16(...continued)  



determine whether a decedent left a valid will."); cf. In re Estate of Bell, 4 P.3d 504, 506  

(Colo. App. 2000) (holding that doctrine of res judicata did not bar caregivers' challenge  

                                                                                                

to validity of will in formal probate proceeding because the caregivers' challenge could  

                                

not have been litigated in prior informal proceeding); E 

                                                                                        UNICE  L.   ROSS  &   THOMAS  J.  

REED ,  Will Contests  12:17 (2d ed. 2014) ("Will contests are initiated by petition or  

objections filed with the court and result in formal testacy proceedings.").  



          17         See  Fields  v.  Fields,  219  P.3d  995,  1005  (Alaska  2009)  (rejecting  the  



misconception that there is a difference between the probate court and the superior court  

                                                                                                     

and explaining that when Alaska adopted the Uniform Probate Code it placed subject  

matter jurisdiction for probate matters in the superior court).  



          18         See  Jaworski  v.  Estates  of  Horwath  ex  rel.  Streets,  277  P.3d  753,  759  



(Alaska 2012) (citing ch. 78,  1, SLA 1972).   



          19         See  AS   13.16.120  ("If the Registrar is not satisfied that a will is entitled to     



be probated in informal proceedings . . . , he may decline the application.  A declination       

of  informal  probate  is  not  an  adjudication  and  does   not   preclude  formal  probate  

proceedings."); AS 13.16.140(b) ("A petition may seek formal probate of a will without           

regard to whether the same or a conflicting will has been informally probated.").  



          20         76 P.3d 847, 858 (Alaska 2003).  



          21  

                                                                                  

                    Id. at 855 (citing AS 13.06.015).  AS 13.06.015 provides that "[u]nless  

                                                                                                    

displaced by the particular provisions of AS 13.06 - AS 13.36 [the Uniform Probate  

                                                                                                                (continued...)  



                                                                -9-                                                          6985
  


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

                                                                                                                   

provision that prohibits a party from contesting the validity of a subsequent will as part  



                                                                                                       

of a proceeding to determine whether to probate a former will or that requires a will  



                                               

contest to take the form of a  separate proceeding.  In the absence of such statutory  



                                                       

prohibitions, it is unclear why the superior court denied Etta's request to amend her  



                                

pleadings to contest Offenesia's 2006 will or failed to permit her to convert her informal  



probate to a formal probate proceeding.  



                    Nor  do  Etta's  actions  fall  within  the  Rule  15(a)  exception  regarding  



                                                            22  

                                                                Etta initially attempted to comply with the  

"repeated failure to cure deficiencies."                                                              



probate court's directives as to how to proceed with her claims.  Of note, the directives  

                                                        



that resulted from the November 2012 and January 2013 status hearings were somewhat  

                                                                 



contradictory.  At the November 2012 status hearing Magistrate Judge Duggan told Etta  



                                     

that he could not admit Offenesia's 1987 will for probate "until [the court] ha[d] a copy  



                                                                

of that 2006 will" and had held a hearing and determined its validity.  When Etta asked  



about  the  specific  process  she  would  need  to  follow  toward  this  determination,  



                            

Magistrate Judge Duggan told her she would need to file a copy of the 2006 will with the  



                       

court and that there would then be a hearing during which she could present evidence  



                                                                                                           

regarding why that will should not be admitted and why it is invalid.  In response, Etta  



                                                            

promptly submitted a copy of the 2006 will.  Magistrate Judge Duggan did not indicate  



     

in November 2012 that Etta could not use the informal probate proceeding as a forum  



                                                                                         

to contest the 2006 will.  Only later during a January 2013 status hearing did Magistrate  



          21(...continued)  



Code, as adopted], the principles of law and equity supplement those provisions."  See  

                              

also Pestrikoff v. Hoff , 278 P.3d 281, 286 (Alaska 2012) (noting that AS 13.06.015  

                                     

"permits a court to apply equitable principles to supplement the probate code").  



          22        Miller  v.  Safeway,  Inc. ,  102  P.3d  282,  294  (Alaska  2004)  (citing  Civil  



Rule 15(a)).  



                                                              -10-                                                         6985
  


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

           

Judge Duggan tell Etta that she would need to file a separate proceeding to invalidate the  



          

2006  will.  Thus, it appears that Etta attempted to comply with the superior court's  



directives.   



                                                                                                                          23  

                    Given the latitude the superior court is to give to pro se litigants,                                     we  



                                             

remand with instructions for the superior court to allow Etta to amend her pleadings to  



                                                                                                  

convert her informal probate petition into a formal proceeding conditioned upon her  



                                                                                                     24  

                                                                                                          Etta will then be  

meeting all of the notice and other requirements for formal probate.                                                    



permitted to submit additional evidence to substantiate her claims so that the superior  

                     



court may consider the merits of her challenge to the 2006 will.  



          B.        Magistrate Judge Duggan Was Not Required To Recuse Himself.  



                    The second question on appeal is whether Magistrate Judge Duggan should  

                                                                                                             



have recused himself as Etta requested. The bases for disqualification of a judge are laid  

                                                                                                         

                                                    2 5    Non e        o f     the       reasons           E tta      offers  

o u t     in      A S      22.20.020(a).   

                                                                                        



          23        See Breck v. Ulmer, 745 P.2d 66, 75 (Alaska 1987) ("[T]he pleadings of pro         



se litigants should be held to less stringent standards than those of lawyers.").  



          24        AS 13.16.150(a) requires notice be given to "devisees and executors named  



in any will that is being, or has been probated or offered for informal or formal probate"  

                        

and to "any personal representative of the decedent whose appointment has not been  

terminated,"  among  others.    AS  13.16.145  provides  other  requirements  for  formal  

probate proceedings.  



          25        AS 22.20.020(a) provides:   



                    A judicial officer may not act in a matter in which  



                    (1)       the judicial officer is a party;  



                    (2)       the  judicial  officer  is  related  to  a  party  or  a  party's  

                    attorney by consanguinity or affinity within the third degree;  



                    (3)	      the judicial officer is a material witness;  

                                                                                                              (continued...)  



                                                              -11-	                                                        6985
  


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

                                                                                                               

fall within the reasons for recusal listed in the statute.  While judges are required to  



                                                                                                      26 

                                                                                                          none  of  Etta's  

recuse  themselves  if  there  is  actual  bias  or  the  appearance  of  bias, 



allegations suggest either.  



                    Etta  requested  disqualification  based  on  the  fact  that  Magistrate  Judge  



Duggan  "refused  to  grant  [her]  a  filing  fee  waiver  fully  aware  that  [Etta]  [is]  an  



                                    

incarcerated individual who earns a very low income with two institutional jobs."  She  



          25(...continued)  



                    (4)      the judicial officer or the spouse of the judicial officer,  

                                                                                                  

                    individually or as a fiduciary, or a child of the judicial officer  

                                                                                  

                    has a direct financial interest in the matter;  



                    (5)      a party, except the state or a municipality of the state,  

                                                                                                

                    has retained or been professionally counseled by the judicial  

                    officer   as   its   attorney   within   two   years   preceding   the  

                    assignment of the judicial officer to the matter;  



                    (6)      the judicial officer has represented a person as attorney  

                                                               

                    for   the   person   against   a   party,   except   the   state   or   a  

                    municipality  of  the  state,  in  a  matter  within  two  years  

                    preceding the assignment of the judicial officer to the matter;  

                                                              



                    (7)      an  attorney  for  a  party  has  represented  the judicial  

                                                                         

                    officer or a person against the judicial officer, either in the  

                   judicial officer's public or private capacity, in a matter within  

                                                       

                    two years preceding the filing of the action;  



                    (8)      the  law  firm  with  which  the  judicial  officer  was  

                    associated  in  the  practice  of  law  within  the  two  years  

                    preceding the filing of the action has been retained or has  

                                                   

                    professionally  counseled  either  party  with  respect  to  the  

                    matter;  



                    (9)      the judicial officer feels that, for any reason, a fair and  

                                                                                                  

                    impartial decision cannot be given.  



          26  

                                                                                                  

                    See Jourdan v. Nationsbanc Mortg. Corp., 42 P.3d 1072, 1082 (Alaska  

2002).  



                                                             -12-                                                       6985
  


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

                                                          

also asserts that he improperly refused to appoint counsel for her.  Magistrate Judge  



Duggan informed Etta that he did "not believe there is a statute or law in Alaska that  



requires the court to appoint  an attorney" in this circumstance, but invited Etta to submit  



                                                 27  

a citation to such a law, if it exists.              



                   Magistrate Judge Duggan ultimately denied her motion for disqualification.  



                                                                                             

Judge McKay reviewed Magistrate Judge Duggan's decision not to recuse himself and  



                                              

concluded that, after a review of the pleadings, Etta's recusal request was "not supported  



by  any  evidence  of  bias  on  the  part  of  Master  Duggan,"  but  rather  that  Etta  was  



"unhappy with Master Duggan's decision and orders."  



                   Magistrate Judge Duggan's rulings, although unfavorable to Etta, did not  



form  grounds  for  disqualification.    A  party's  dissatisfaction  with  the  court's  ruling  



                                                                                             28  

neither  suggests  bias  nor  provides  grounds  for  disqualification.                            "By  themselves,  



                                                                                                                 29  

                                                                                                                     We  

interpretations of the law are not sufficient to demonstrate the existence of bias." 



                                                

thus affirm Judge McKay's order approving Magistrate Judge Duggan's decision not to  



recuse  himself.    We  similarly  deny  Etta's  request  on  appeal  that  Judge  McKay,  



Magistrate Judge Duggan, and Magistrate Judge Stanley be barred from presiding over  



                                       

further case proceedings.  After a review of the record, we can discern no evidence or  



         27        Alaska Administrative Rule 12, titled "Procedure for Counsel and Guardian  



Ad  Litem  Appointments  at  Public  Expense,"  does  not  provide  for  appointment  of  

counsel in probate cases.  



         28        See  Jourdan, 42 P.3d at 1082 (citing Lacher v. Lacher , 993 P.2d                                413,  



420-21  (Alaska  1999)  (dismissing  an  argument  for  recusal  as  "little  more  than  an  

expression of [appellant's] dissatisfaction with the superior court's ruling")) (alteration  

                                       

in original).  



         29        Id.  



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

                                                                              

manifestation of bias or any appearance of bias against Etta on the part of any of these  



judicial officers.  



V.        CONCLUSION  



                                                               

                   We REVERSE and REMAND to the superior court to allow Etta to convert  



                                                                                                           

this action to a formal probate proceeding and amend her filing to contest the 2006 will,  



but  we  AFFIRM  the  superior  court's  order  approving  Magistrate  Judge  Duggan's  



decision not to recuse himself.  



                                                         -14-                                                    6985
  

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