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Malloy v. State5/19/2000
e prosecutor, J.M.'s guardian ad litem, and J.M. himself. J.M.'s social worker and a youth counselor from McLaughlin were also present. Judge Andrews stated that she wished to hear from these parties to see if there were any confidential matters that needed to be discussed before she notified Malloy and her attorney of the issuance of the material witness warrant and J.M.'s subsequent arrest.
Both the prosecutor and the guardian ad litem expressed concern that Malloy would attempt to influence J.M. if she knew that he was having emotional difficulties and that his placement was not secure. Judge Andrews found that there were legitimate reasons for keeping the proceedings ex parte for a little longer. She stated that she expected J.M.'s placement at McLaughlin to be temporary, that J.M. would soon be placed in another foster home, and that, because Malloy had been ordered to have no contact with J.M., she believed it was important that Malloy not know how to contact J.M.. Judge Andrews then addressed J.M. personally. She encouraged J.M. not to run away from his next placement, and she promised that if J.M. cooperated with his social worker and his guardian ad litem, she would "do what [she could] to move [J.M.] out of [McLaughlin] ASAP."
Three weeks later, Judge Andrews issued a written order informing Malloy of these ex parte proceedings. The judge told Malloy that the record of the ex parte proceedings (the application for the warrant on June 18th, and the hearing on June 20th) had been sealed and would be preserved.
Upon learning of the ex parte proceedings, Malloy filed a motion to disqualify Judge Andrews. Malloy asserted that the judge, by holding these proceedings ex parte, had violated Malloy's constitutional rights to due process and confrontation of witnesses. Malloy further asserted that the judge's actions either demonstrated actual bias against Malloy or at least created an appearance of impropriety.
Recognizing that Malloy was disadvantaged in not knowing the contents of the ex parte proceedings, Judge Andrews announced that she intended to apprise Malloy of what had occurred ex parte, but she wanted to give J.M.'s guardian an opportunity to object to the disclosure of any confidential information. For that reason, Judge Andrews announced that she intended to hear from the guardian ex parte to see what her objections might be.
On July 29th, Judge Andrews heard from J.M.'s guardian ex parte. The guardian asked Judge Andrews not to reveal a small portion of the June 20th hearing - the portion in which the guardian discussed the opinions and diagnosis of J.M.'s mental health therapist. Judge Andrews granted this request, and then ordered disclosure of all other parts of the ex parte proceedings.
With the contents of the ex parte proceedings no longer secret, Judge Andrews renewed her consideration of Malloy's motion to disqualify her. The judge found that, because the circumstances justified the ex parte proceedings, there was no impropriety, either actual or apparent. Judge Andrews's ruling was subsequently affirmed by Superior Court Judge Larry Card.
On appeal, Malloy contends that the three ex parte proceedings - the June 18th application for the material witness warrant, the June 20th hearing regarding J.M.'s custody at McLaughlin Youth Center, and the July 29th ex parte objections by J.M.'s guardian ad litem - violated her constitutional right to be present at all stages of the proceedings against her. Malloy also contends that Judge Andrews's decision to hold these three proceedings ex parte created an appearance of impropriety that required Judge Andrews's disqualification under Alaska Judicial Conduct Canon 3E
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