Kinnan v. Sitka Counseling

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THE SUPREME COURT OF THE STATE OF ALASKA
ARTHUR J. KINNAN, )
) Supreme Court No. S-15437
Appellant, )
) Superior Court No. 1SI-12-00216 CI
v. )
) OPINION
SITKA COUNSELING, MICHAEL )
McGUIRE, & ERIC SKOUSEN, ) No. 6998 – April 17, 2015
)
Appellees. )
)
Appeal from the Superior Court of the State of Alaska, First
Judicial District, Sitka, David V. George, Judge.
Appearances: Arthur J. Kinnan, pro se, Sitka, Appellant.
Brian E. Hanson, Brian E. Hanson, LLC, Sitka, for
Appellees.
Before: Fabe, Chief Justice, Winfree, Stowers, Maassen, and
Bolger, Justices.
BOLGER, Justice.
I. INTRODUCTION
Arthur J. Kinnan lived in a three-bedroom residence as part of a substance
abuse treatment program operated by Sitka Counseling. Funding for that program ended,
and Sitka Counseling informed Kinnan that he would be required to vacate the residence.
Kinnan filed suit against Sitka Counseling and two of its staff members, alleging several
torts based on the defendants’ conduct when removing him from the premises, violations
of Alaska’s Landlord Tenant Act, and deprivation of constitutional rights under
42 U.S.C. § 1983. After a bench trial, the superior court ruled in favor of Sitka
Counseling on all claims.
Kinnan argues that the superior court wrongfully denied a continuance to
allow him to seek counsel, wrongfully excluded the testimony of a late-disclosed witness
and two affidavits, and improperly facilitated questioning regarding Kinnan’s mental
disability. We conclude that any error resulting from the exclusion of Kinnan’s witness
was harmless and we see no abuse of discretion in the superior court’s denial of Kinnan’s
continuance, its exclusion of the affidavits as hearsay, or its consideration of Kinnan’s
mental disability. And we also reject Kinnan’s argument that the superior court’s
adverse rulings created an appearance of judicial bias.
II. FACTS AND PROCEEDINGS
Sitka Counseling operated a substance abuse treatment program in a three-
bedroom residence. Arthur J. Kinnan lived in the residence as part of this program, but
Sitka Counseling terminated the program in September 2011, after program funding
ended. On August 31, 2012, Sitka Counseling provided Kinnan written notice that he
had ten days to vacate the residence. Kinnan vacated the residence on September 14,
after visits to the residence from Michael McGuire, Sitka Counseling’s executive
director, and Eric Skousen, another staff member.
Kinnan then filed suit against Sitka Counseling, McGuire, and Skousen
(collectively Sitka Counseling), alleging that McGuire and Skousen committed assault
and battery in attempting to remove him from the residence. In particular Kinnan alleged
that on September 10, 2012, McGuire entered the residence uninvited and stated “in an
angry voice” while standing “very close” to Kinnan that because he had resigned from
Sitka Counseling, “he was not bound by the ususal constraints of his professional
relationship with . . . Kinnan and . . . intended to engage in physical combat.” Kinnan
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further alleged that on September 14, Skousen “barged into” the residence and “took
hold of the front of [Kinnan’s] shirt, lifted [Kinnan] off the ground, shook [Kinnan] and
told [Kinnan] that if [Kinnan] didn’t leave the house immediately he would throw him
to the floor, handcuff [Kinnan] and drag [Kinnan] out into the street and hurt him.”
In addition to the assault and battery claims, Kinnan alleged negligent
hiring and supervision; trespass to real estate; trespass to personal property; violations
of the Landlord Tenant Act1; intentional infliction of emotional distress; violation of
constitutional rights under 42 U.S.C. § 1983; and conspiracy to violate constitutional
rights under 42 U.S.C. § 1983.
According to Sitka Counseling, Kinnan subsequently returned to the
residence. Sitka Counseling allowed him to remain there but filed a forcible entry and
detainer (FED) counterclaim,2 seeking to regain possession of the residence.
A scheduling conference was held on February 5, 2013. Both Kinnan and
his attorney, James McGowan, were present. The superior court then entered a pretrial
order setting the trial for the week of October 28, 2013, and establishing various pretrial
deadlines, including due dates for Alaska Civil Rule 26 disclosures and witness lists.
A hearing on the FED action was held on February 22, 2013. At the outset
of the hearing, McGowan informed the superior court that Kinnan wished to “fire” him,
and the court allowed McGowan to withdraw as counsel. Kinnan proceeded without
counsel from this point forward. Following the FED hearing, the court ruled that
Kinnan’s occupancy of the residence was not covered by the Landlord Tenant Act and
ordered Kinnan to peacefully vacate the residence by February 28, 2013.
1
AS 34.03.010-.380.
2
See AS 09.45.070(a) (“When a forcible entry is made upon a premises, or
when an entry is made in a peaceable manner and the possession is held by force, the
person entitled to the premises may maintain an action to recover the possession.”).
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As for Kinnan’s suit, Sitka Counseling never received any initial
disclosures from Kinnan nor any responses to its discovery requests in the months that
followed.3 Nor does it appear that Kinnan took any action or submitted any filings in his
case until October 10, 2013, when he filed a witness list that was eight days late and
included only his witnesses’ names and addresses. On October 15 Kinnan filed a request
for a continuance, citing his difficulty in retaining another attorney. He requested that
the trial date be postponed until November 18, 2013.
A pretrial conference was held on October 17, 2013. The judge denied
Kinnan’s request for continuance and explained that the trial would be held as scheduled
on October 28, 2013. The court also partially granted Sitka Counseling’s request to
exclude the witnesses on Kinnan’s untimely witness list. The judge explained that
Kinnan would be allowed to call himself, the other parties, and impeachment witnesses.
A bench trial on Kinnan’s complaint was held on October 28, 2013. The
superior court granted a directed verdict in Sitka Counseling’s favor on Kinnan’s
Landlord Tenant Act claim, his trespass to personal property claim, and his § 1983
claims. At the conclusion of the trial, the court ruled that Kinnan failed to carry his
burden of proof on his remaining claims: assault, battery, trespass to real property,
negligent supervision and hiring, and intentional infliction of emotional distress. The
court then dismissed Kinnan’s complaint with prejudice. Kinnan appeals pro se, based
on 1) the denial of his requested continuance, 2) the exclusion of his eyewitness, 3) the
exclusion of two affidavits as hearsay, 4) inquiries into the nature of his mental disability,
and 5) the judge’s alleged appearance of bias.
3
Under the pretrial order, initial Civil Rule 26 disclosures were due March
15, 2013, and discovery was to be closed by September 27, 2013.
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III. STANDARD OF REVIEW
“We will not disturb a trial court’s refusal to grant a continuance unless an
abuse of discretion is demonstrated. An abuse of discretion exists when a party has been
deprived of a substantial right or seriously prejudiced by the [trial] court’s ruling.”4 “We
consider the particular facts and circumstances of each individual case to determine
whether the denial was so unreasonable or so prejudicial as to amount to an abuse of
discretion.”5 “[D]ecisions about the admissibility of evidence” are reviewed for abuse
of discretion.6 “We review de novo the question of whether a judge appears biased,
which is assessed under an objective standard.”7
IV. DISCUSSION
A. The Superior Court Did Not Abuse Its Discretion By Denying
Kinnan’s Request For Continuance.
“A continuance for the purpose of finding and obtaining counsel requires
a showing of diligence.”8 “There is no general right to counsel in civil cases under the
4
Greenway v. Heathcott, 294 P.3d 1056, 1062 (Alaska 2013) (quoting Azimi
v. Johns, 254 P.3d 1054, 1059 (Alaska 2011)) (internal quotation marks omitted).
5
Id. (quoting Bigley v. Alaska Psychiatric Inst., 208 P.3d 168, 183 (Alaska
2009)) (internal quotation marks omitted).
6
Shooshanian v. Dire, 237 P.3d 618, 622 (Alaska 2010).
7
Sagers v. Sackinger, 318 P.3d 860, 863 (Alaska 2014); see also Phillips v.
State, 271 P.3d 457, 459 (Alaska App. 2012) (“On the separate issue of whether, given
the circumstances, reasonable people would question the judge’s ability to be fair, the
proper standard of review is de novo — because reasonable appearance of bias is
assessed under an objective standard.” (emphasis and internal quotation marks omitted)).
8
Greenway, 294 P.3d at 1067.
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United States or Alaska Constitutions. Further, many litigants successfully represent
themselves in civil litigation.”9
Kinnan filed his motion for continuance on October 15, 2013, less than two
weeks before his case was set for trial. In this motion Kinnan claimed his original
attorney had charged him $5,000 for each telephonic appearance, “effectively wiping out
[his] savings.” Kinnan contended that his “first choice” attorney was unavailable and
that “there are fewer and fewer lawyers of experience and integrity,” but did not
otherwise detail any of his efforts to retain new counsel.
At the pretrial conference, Kinnan was unable to further articulate a
justification for his requested continuance. The judge noted that Kinnan had
“presumably” been seeking counsel since his original attorney had withdrawn and had
not shown how his efforts would be successful given more time. Accordingly, the judge
denied Kinnan’s request for continuance. At trial Kinnan sought reconsideration of that
decision, but the judge reiterated the reasoning behind his original ruling and concluded
there was no rationale for reconsideration.
On appeal Kinnan claims he “lives on meager funds,” his prior attorney
exhausted his savings, and “[t]o retain an experienced, interested, available law firm,
willing to work on a contingency basis without retainer is a time consuming endeavor.”
But even assuming these claims are true, difficulties in retaining counsel cannot alone
justify a continuance, absent a “showing of diligence.”10 Although Kinnan claimed at
trial that he had obtained the name of a law firm to which he could try to “sell [his] case,”
he offered no other evidence of his efforts to retain counsel.
9
Azimi, 254 P.3d at 1061.
10
Greenway, 294 P.3d at 1067.
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Kinnan also cites his “severe mental disability” and appears to argue that
this favored granting a continuance. But even considering the “particular facts and
circumstances” of Kinnan’s situation, denying a continuance where Kinnan’s attorney
had withdrawn nearly eight months prior was not “unreasonable” or “prejudicial.”11 The
superior court therefore did not abuse it discretion in denying Kinnan’s requested
continuance.12
B. Any Error Resulting From The Exclusion Of Daniel Klannot, Jr.’s
Testimony Was Harmless.
Kinnan appears to argue that he should have been allowed to call Daniel
Klannot, Jr. as an “eye witness” at trial, despite his failure to include Klannot on a timely
submitted witness list. We conclude that although the judge should have considered
alternative sanctions for Kinnan’s noncompliance with the pretrial order, any error
resulting from the exclusion of Klannot’s testimony was harmless.13
Under the pretrial order entered in February 2013, the parties were required
to submit preliminary witness lists in May and final witness lists by October 2. Neither
Kinnan nor Sitka Counseling timely submitted a preliminary list. Sitka Counseling
11
See id. at 1062 (citation and internal quotation marks omitted).
12
Kinnan also appears to argue that it was unfair not to grant him a
continuance because Sitka Counseling received a routine extension of time to file its
appellee’s brief. But different standards apply to a continuance as opposed to a routine
extension of time under Alaska Appellate Rule 503.5. Compare Wagner v. Wagner, 299
P.3d 170, 175 (Alaska 2013) (“[A] motion for continuance should be denied absent a
weighty reason to the contrary.” (citation and internal quotation marks omitted)), with
Alaska R. App. P. 503.5(b), (c) (requiring “a showing of diligence and substantial need”
only for a non-routine motion).
13
See Hill v. Giani, 296 P.3d 14, 22 n.23 (Alaska 2013) (“We must disregard
harmless errors that have no substantial effect on the rights of the parties or on the
outcome of the case.”).
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timely submitted a final witness list, noting that because no preliminary witness list had
been submitted, Sitka Counseling would rely on the defendants’ testimony alone. On
October 10, 2013, Kinnan filed his first witness list, which included Klannot’s name and
address.
At the pretrial conference, Sitka Counseling sought to exclude all witnesses
besides the parties. The judge asked Kinnan if he could offer any excuse for his failure
to timely submit a witness list. In response Kinnan stated only that his prior attorney had
been “ineffective” and that he was merely a lay person. The judge then ruled that Kinnan
would be allowed to call only himself, the defendants, and impeachment witnesses.
“If a party or party’s attorney fails to obey a scheduling or pretrial
order, . . . the judge, upon motion or the judge’s own initiative, may make such orders
with regard thereto as are just, and among others any of the orders provided in Rule
37(b)(2)(B), (C), (D).”14 As this court has noted, the exclusion of a witness “falls
squarely within this language.” 15 “The trial court has broad discretion to choose an
appropriate sanction,”16 but in fashioning such a sanction, the court must consider:
(A) the nature of the violation, including the willfulness of
the conduct and the materiality of the information that the
party failed to disclose;
(B) the prejudice to the opposing party;
(C) the relationship between the information the party failed
to disclose and the proposed sanction;
14
Alaska R. Civ. P. 16(f).
15
Sykes v. Melba Creek Mining, Inc., 952 P.2d 1164, 1169 (Alaska 1998); see
also Alaska R. Civ. P. 37(b)(2)(B) (providing for “[a]n order . . . prohibiting [the
disobedient] party from introducing designated matters in evidence”).
16
Cartee v. Cartee, 239 P.3d 707, 720 (Alaska 2010) (citation and internal
quotation marks omitted).
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(D) whether a lesser sanction would adequately protect the
opposing party and deter other discovery violations; and
(E) other factors deemed appropriate by the court or required
by law.[17]
Kinnan indisputably violated the pretrial order by failing to disclose
Klannot as a witness until October 10, 2013 — more than four months after preliminary
witness lists were due. But in fashioning an appropriate remedy, the superior court was
required to consider the above factors.18 And in light of Kinnan’s pro se status and his
alleged mental disability, consideration of a “lesser sanction” would have been
particularly appropriate under the circumstances of this case.19 Accordingly, the superior
court should have considered alternative options, such as ordering a deposition to clarify
the content of Klannot’s testimony prior to trial.20
But “[w]hen the trial court has erroneously excluded evidence, a party must
show that the error was harmful or prejudicial before we will reverse the trial court.”21
“The test for determining whether an error was harmless is whether on the whole record
17
Alaska R. Civ. P. 37(b)(3); see also Cartee, 239 P.3d at 721 (quoting
Alaska R. Civ. P. 37(b)(3)); Sowinski v. Walker, 198 P.3d 11 34, 1158 (Alaska 2008) (“In
fashioning . . . remedies [for discovery order violations], Rule 37 commands courts to
consider the nature and severity of the violation, the prejudice to the opposing party, and
any other factors it deems appropriate.”).
18
Cartee, 239 P.3d at 721 (quoting Alaska R. Civ. P. 37(b)(3)).
19
Alaska R. Civ. P. 37(b)(3)(D).
20
Cf. Lewis v. Lewis, 785 P.2d 550, 557 (Alaska 1990) (upholding the
exclusion of testimony as a sanction for an untimely filed witness list where the trial court
first provided an opportunity to depose the witness); Bertram v. Harris, 423 P.2d 909,
915-17 (Alaska 1967) (same).
21
Barton v. N. Slope Borough Sch. Dist., 268 P.3d 346, 353 (Alaska 2012).
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the error would have had a substantial influence on the [trier of fact].”22 Here it is
somewhat difficult to discern the likely content of Klannot’s testimony, as Kinnan did
not describe the subject of Klannot’s testimony in his late-filed witness list or at the
pretrial conference, and merely characterizes Klannot as an “eye witness” in his briefing
to this court. At trial Kinnan claimed that Klannot would “affirm that [they] were
threatened,” though he did not specify by whom or on what occasion.
McGuire’s testimony, however, suggests Klannot was initially present for
the incident on September 10, 2012, which formed part of the basis for Kinnan’s assault
claim. Specifically McGuire testified that Klannot was sitting on the couch with Kinnan
when McGuire arrived at the residence to verify that Kinnan had vacated the premises.
But according to McGuire, Klannot “got up and left because he knew that [McGuire and
another individual] were there to ask [Kinnan] to leave.” Kinnan did not refute this
testimony, and it is therefore unclear how much of the September 10 incident Klannot
actually witnessed. Nor is there is anything in the record to suggest Klannot was present
for Kinnan’s interaction with Skousen on September 14, 2012, which formed the basis
for Kinnan’s battery claim.
Moreover, Kinnan offered no information as to how Klannot’s testimony
would have differed from McGuire’s own recounting of events. In particular McGuire
admitted to making a variant of the comment that Kinnan described as threatening.
According to Kinnan’s testimony at trial, McGuire told Kinnan “that he was quitting his
job [with Sitka Counseling] but if he ever saw [Kinnan] on the street, it would be mano
a mano.” According to McGuire, he said to Kinnan, “You know . . . , there was a time
when we could settle this man to man.” But McGuire also testified that he was 69 years
22
Id. (quoting Noffke v. Perez, 178 P.3d 1141, 1147 (Alaska 2008)) (internal
quotation marks omitted).
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old, not “in fighting shape,” and recovering from a heart bypass. In the absence of any
explanation on appeal of how Klannot’s testimony would have differed from this
account, we cannot conclude that Klannot’s testimony would have had a “substantial
influence” on the court’s decision.23
C. The Superior Court Did Not Abuse Its Discretion By Excluding
Affidavits From Myron Fribush And Michael Boyd As Hearsay.
At trial Kinnan sought to introduce two affidavits into evidence, both of
which the superior court excluded as inadmissible hearsay. The first affidavit was from
Dr. Myron A. Fribush, who claimed to be Kinnan’s primary physician. In relevant part,
Dr. Fribush attested that forcing Kinnan to vacate the residence had “rendered [Kinnan]
homeless and deprived [Kinnan] of services under the Community Support Program.”
Dr. Fribush also observed that “Kinnan has a well established mental health history.”
The second affidavit was from Michael J. Boyd, “past director” of Sitka
Counseling. Boyd claimed that Sitka Counseling obtained the residence through a grant
from the Alaska Mental Health Trust Authority requiring that the property “be used
solely for supportive housing for the chronically mentally [ill]” and not for “general
agency purposes.”
Based on Sitka Counseling’s objections, the superior court excluded both
affidavits as inadmissible hearsay. As Sitka Counseling correctly argues, affidavits are
“quintessentially hearsay and suspect evidence.”24 Neither witness was available for
23
See Barton, 268 P.3d at 353 (citation and internal quotation marks omitted).
24
See Greenway v. Heathcott, 294 P.3d 1056, 1064-65 (Alaska 2013)
(upholding a superior court’s exclusion of affidavits as hearsay “even absent an
objection” by the opposing party).
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cross-examination.25 Kinnan presents no legal theory as to why the affidavits would
have fallen under an exception to the hearsay rule, arguing only that the judge’s
characterization of the affidavits as hearsay was “false.” Accordingly, it was not an
abuse of discretion to exclude the Fribush and Boyd affidavits as hearsay.
D. It Was Not Plain Error To Allow And Facilitate Cross-Examination
Regarding Kinnan’s Mental Disability.
Kinnan appears to argue that the superior court should have prohibited
Sitka Counseling’s attorney from cross-examining him about the details of his mental
disability. Kinnan similarly takes issue with questions the judge asked during cross-
examination.
In his complaint Kinnan stated that he had “been diagnosed with a mental
disability.” At trial Kinnan also described himself as “100 percent mentally disabled
[due to a] . . . traumatic [brain] injury.” During cross-examination Sitka Counseling’s
attorney, Brian Hanson, asked Kinnan to state his specific diagnosis, but after sharing
information about who made the diagnosis, Kinnan responded, “It’s 100 percent
disability. Other than that, it’s none of your businesses.” At Hanson’s request the judge
intervened and asked Kinnan to explain his diagnosis, which Kinnan did without
objection.
Hanson then resumed questioning, asking Kinnan whether his mental
disability created delusions or impaired his memory, which Kinnan denied. Hanson
asked what effect the mental disability had, and Kinnan responded that he “refuse[d] to
answer.” The judge again intervened, inquiring about the potential impacts of Kinnan’s
mental disability, without objection.
25
Dr. Fribush appeared later in the trial, but only as an impeachment witness.
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“We review a superior court’s evidentiary rulings for abuse of discretion.”26
But “[w]e will not consider issues on appeal that were not raised below absent plain
error, which exists ‘where an obvious mistake has been made which creates a high
likelihood that injustice has resulted.’ ”27 Aside from his initial refusal to answer
Hanson’s questions, Kinnan raised no objection to the inquiries regarding his mental
disability, nor did Kinnan argue that the effects of his mental disability were irrelevant.
Accordingly, we review this issue only for plain error, and none is apparent from this
record.
Notably, Kinnan himself referenced his mental disability both in his
complaint and again at trial. In particular Kinnan raised the issue of his mental disability
in seeking a continuance, contending that he does not “think as fast as other people.”
Given Kinnan’s own invocation of the issue, there is not a “a high likelihood that
injustice . . . resulted”28 when the superior court required Kinnan to clarify his diagnosis
and answer questions regarding the effects of his disability.
Nor was the probative value of testimony regarding Kinnan’s mental
disability “outweighed by the danger of unfair prejudice.”29 As the superior court noted,
inquiries into Kinnan’s mental disability were aimed at assessing his “ability to perceive,
recall, recollect, and relate.” Both McGuire and Skousen contradicted Kinnan’s
testimony regarding his claims of assault, battery, and intentional infliction of emotional
26
Janes v. Alaska Railbelt Marine, LLC, 309 P.3d 867, 875 (Alaska 2013).
27
David S. v. State, Dep’t of Health & Soc. Servs., Office of Children’s Servs.,
270 P.3d 767, 774 (Alaska 2012) (quoting D.J. v. P.C., 36 P.3d 663, 667-68 (Alaska
2001)).
28
See id.
29
See Alaska R. Evid. 403.
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distress. Accordingly, evidence regarding Kinnan’s memory and perception was highly
probative, and it was not plain error to allow and even facilitate cross-examination on the
topic of Kinnan’s mental disability.
E. Neither The Superior Court Judge’s Rulings Nor His Conduct Created
An Appearance Of Bias.
As we noted in Greenway v. Heathcott, “[a] judge must recuse himself or
herself if there is bias. If the appearance of bias is involved, we have held that the judge
should give weight to preserving the appearance of impartiality.”30 But we have also
held “that even incorrect rulings against a party do not show bias in and of themselves.”31
Kinnan appears to argue that the superior court judge’s rulings created an
appearance of impropriety or bias. In particular he asserts that the judge’s bias was
“exposed” through the denial of Kinnan’s request for a continuance and the exclusion
of the Fribush and Boyd affidavits as inadmissible hearsay. We rejected a similar
argument in Greenway, holding that neither the denial of a continuance nor the exclusion
of affidavits as hearsay demonstrated an appearance of bias.32 As we have previously
reminded pro se litigants, “judicial bias should not be inferred merely from adverse
rulings.”33 And as in Greenway, nothing in the judge’s demeanor or tone in denying the
30
294 P.3d 1056, 1063 (Alaska 2013) (footnote omitted).
31
Id.
32
Id. at 1064-68.
33
Khalsa v. Chose, 261 P.3d 367, 376 (Alaska 2011) (citation and internal
quotation marks omitted).
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continuance or excluding the affidavits “objectively permit[s] a conclusion that the court
was biased, or appeared to be biased.”34
Kinnan similarly contends that the judge viewed the defendants as “above
reproach” and appears to argue that the judge exhibited bias by crediting the defendants’
testimony regarding Kinnan’s assault and battery claim.35 But the judge’s determinations
regarding witness credibility similarly fail to support a claim of bias.36
Kinnan also argues that the denial of his requested continuance forced him
to appear pro se and that the judge’s attempts to explain the trial process were
insufficient. But Kinnan had no right to counsel,37 and the record shows that the judge
met his obligation to “inform a pro se litigant of the proper procedure for the action he
34
294 P.3d at 1064.
35
In this portion of his opening brief, Kinnan also makes a number of
allegations that could be interpreted as an argument that the superior court erred in
making certain factual findings. But Kinnan does not expressly make this argument, and
his factual allegations are without citation to the record. Accordingly, Kinnan waived
any argument regarding the superior court’s factual findings through inadequate briefing.
See A.H. v. W.P., 896 P.2d 240, 243 (Alaska 1995) (noting in the context of a pro se
appellant that “superficial briefing and the lack of citations to any authority constitutes
abandonment of the point on appeal”).
36
See Khalsa, 261 P.3d at 376; see also Wasserman v. Bartholomew, 38 P.3d
1162, 1170-71 (Alaska 2002) (“Mere evidence that a judge has exercised his judicial
discretion in a particular way is not sufficient to require disqualification.” (alteration,
citation, and internal quotation marks omitted)).
37
See Azimi v. Johns, 254 P.3d 1054, 1061 & n.19 (Alaska 2011) (“There is
no general right to counsel in civil cases” . . . , and “[t]he provision of publicly-funded
counsel in some child custody, parental termination, and involuntary commitment cases
is a notable exception to this rule.”).
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or she is obviously attempting to accomplish.”38 For instance, the judge provided an
overview of the relevant trial procedures and explained the basis for his evidentiary
rulings. The judge also assisted Kinnan with the presentation of his case by inquiring
about each cause of action listed in Kinnan’s complaint, and prompting Kinnan to offer
any testimony he had on each claim.
Kinnan also argues that the judge’s conduct at trial created an appearance
of bias. In particular Kinnan contends that the judge “openly mocked plaintiff’s
ignorance and inability.” But this claim is without citation to the record, and is
contradicted by both the judge’s respectful tone and his attempts to explain the relevant
procedures.
Similarly Kinnan argues that the judge assumed the role of Sitka
Counseling’s attorney by questioning Kinnan about his mental disability. But the
superior court “may examine any witness” under Alaska Evidence Rule 614(b), and there
was nothing in the judge’s tone or demeanor during this exchange that exhibited bias
against Kinnan. Kinnan further argues that the judge had a duty to intervene when
Kinnan was “badgered, belittled, and deliberately confused” by Sitka Counseling’s
attorney, but a review of the record reveals no conduct that would have necessitated the
judge’s intervention.39
Finally Kinnan argues that the judge “confessed to pre-judgment” by noting
that “he already made a ruling on . . . the ownership of the [residence].” But there is no
38
See Wagner v. Wagner, 299 P.3d 170, 174 (Alaska 2013) (citation and
internal quotation marks omitted).
39
Under the Alaska Code of Judicial Conduct, “[a] judge shall be patient,
dignified, and courteous to litigants” and “shall take reasonable steps to maintain and
ensure similar conduct from lawyers . . . .” Alaska Code of Jud. Conduct 3(B)(4).
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evidence that the superior court “pre-judge[d]” this issue.40 To the contrary, in
responding to one of Sitka Counseling’s evidentiary objections earlier in the trial, the
judge expressly noted that evidence regarding the ownership of the residence could be
relevant to Kinnan’s claims. For the reasons above, neither the judge’s rulings nor his
conduct created an appearance of impropriety or bias.
V. CONCLUSION
We therefore AFFIRM the superior court’s judgment.
40
In the comments Kinnan cites, the judge merely noted that he had
previously issued an order upholding Sitka Counseling’s “possession of the property.”
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