text:
    CHUGACH ELECTRIC ASSOCIATION., INC., Appellant, v. REGULATORY COMMISSION OF ALASKA and Municipality of Anchorage d/b/a Municipal Light & Power, Appellees.
    No. S-9692.
    Supreme Court of Alaska.
    June 21, 2002.

      Andrew F. Behrend, Heller Ehrman White & McAuliffe, Anchorage; Michael C. Dotten,; Heller Ehrman White & MeAuliffe, Portland; and Donald W. Edwards, Chugach Electric Association, Anchorage, for Appellant.
    Ron Zobel, Assistant Attorney General, Clyde E. Sniffen, Jr., Assistant Attorney General, Anchorage, and Bruce M. Botelho, Attorney General, Juneau, for Appellee Regulatory Commission of Alaska.
    Paul J. Jones, Assistant Municipal Attorney, and William A. Greene, Municipal Attorney, Anchorage, for Appellee Municipality of Anchorage d/b/a Municipal Light & Power.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, . Justices.
   OPINION

CARPENETI, Justice.

I. INTRODUCTION

This case requires us to determine whether an electric utility that supplies electric service within a specific geographic area pursuant to a certificate of public convenience and necessity must obtain regulatory commission approval before selling power outside its assigned geographic area. Because AS 42.05.221(a) requires a utility to obtain an additional certificate for each type of utility service it provides and because the appellant in this case did not obtain such a certificate, we affirm the decision of the Regulatory Commission of Alaska.

II FACTS AND PROCEEDINGS

Chugach Electric Association, Inc. (Chu-gach) is an electric utility that has received a certificate of public convenience and necessity from the Regulatory Commission of Alaska (commission) to supply electric service to consumers within a specific geographic area. Anchorage Municipal Light and Power (ML&P) is also a public utility authorized to provide electric service to consumers under a certificate of public convenience and necessity.

In the fall of 1997, Chugach offered to sell electricity directly to two commercial customers who were requesting it from Chugach. Because these customers were located in the service area designated for ML&P, Chugach offered to compensate ML&P for distributing the electricity as well as metering and related services at a rate to be determined by the commission.

ML&P responded to Chugach's offer by filing a complaint with the commission alleging that Chugach was violating Alaska law by attempting to serve customers outside its geographic area. ML&P asked the commission to enjoin Chugach from providing electricity outside that area. Chugach, allowed to intervene, maintained that although ML&P had a lawful monopoly over distribution services in the area, it did not have a monopoly over the electricity itself as a commodity and therefore could not prevent consumers from purchasing electric power as a commodity from other suppliers, Chugach additionally claimed that ML&P violated federal antitrust law by preventing Chugach from selling electricity over ML&P's lines. Chugach then asked the commission for a declaratory judgment that ML&P was not entitled to "monopolize sales of electric power to customers who receive transmission and distribution services from ML&P." Chu-gach also asked the commission for a ruling compelling ML&P to deliver, under appropriate tariffs to be approved by the commission, Chugach's electricity to willing buyers in ML&P's distribution area.

Both parties moved for summary judgment. The commission held that "[the Legislature's charge in AS 42.05.221(d) to the Commission to eliminate competition that the Commission finds is not in the public interest impliedly authorizes the Commission to grant monopolies when competition is not in the public interest." The commission also held that the provision of electric power constituted a service and therefore was subject to AS 42.05.22l1(a). It further held that AS 42.05.221(d) does not restrict the commission's authority to regulate competition between electric facilities to only those areas where duplication of facilities and competition already exists. Finally, the commission ruled that federal antitrust principles did not apply, but that if they did apply, ML&P would be immune under the state action doe-trine. Accordingly, the commission ruled in ML&P's favor.

. On appeal, Superior Court Judge Sen K. Tan affirmed the commission's order and final judgment. In his decision, Judge Tan ruled that AS 42.05.221(a) requires Chugach to obtain prior approval from the commission before selling electricity outside of its allotted geographical area. The superior court also concluded that the commission's interpretation of state law did not implicate any federal antitrust legal doctrines or principles, and that the state action immunity doctrine applied and was satisfied.

Chugach now appeals to this court.

III. STANDARD OF REVIEW

In an administrative appeal where the superior court acts as an intermediate appellate court, we directly review the agency action in question.

Chugach and the commission agree that the issues before this court are not matters "that fall within [the commission's] unique expertise" as this issue presents a matter of strict statutory construction. Because no agency expertise is involved, we review the commission's statutory construction under an independent judgment standard. "As we substitute our judgment, it is our duty 'to adopt the rule of law that is most persuasive in light of precedent, reason, and policy " '

We review the commission's findings of fact for clear error and reverse only if there is not substantial evidence to support the findings. "However, even under the independent judgment standard [we have] noted that the court should give weight to what the ageney has done, especially where the agency interpretation is longstanding."

IV. DISCUSSION

Chugach Must First Obtain a Certificate of Public Convenience and Necessity Before Attempting To Sell Its Electricity.

Chugach maintains that the commission does not have the authority to restrain competition between electric utilities by prohibiting Chugach from selling electricity without first obtaining a second certificate of public convenience and necessity to serve power in a particular geographic location. Instead, Chugach argues, the commission may only limit competition for a commodity such as the sale of electricity once it has determined the utilities are already competing and that such competition is not in the public interest. ML&P and the commission argue that the statutory language is clear that an additional certificate is needed for each new use and that only in instances where a certificate has been previously obtained does AS 42.05.221(d) apply.

Alaska Statute 42.05.221(a) provides:

A public utility may not operate and receive compensation for providing a commodity or service without first having obtained from the commission under this chapter a certificate declaring that public convenience and necessity require or will require the service. Where a public utility provides more than one type of utility service, a separate certificate of convenience and necessity is required for each type. A certificate must describe the nature and extent of authority granted in it, including, as appropriate for the services involved, a description of the authorized area and seope of operations of the public utility.

Alaska Statute 42.05.221(d) provides:

In an area where the commission determines that two or more public utilities are competing to furnish identical utility. service and that this competition is not in the public interest, the commission shall take appropriate action to eliminate the competition and any undesirable duplication of facilities. This appropriate action may include, but is not limited to, ordering the competing utilities to enter into a contract that, among other things, would:
(1) delineate the service area boundaries of each in those areas of competition;
(2) eliminate existing duplication and paralleling to the fullest reasonable extent;
(8) preclude future duplication and paralleling;
(4) provide for the exchange of customers and facilities for the purposes of providing better public service and of eliminating duplication and paralleling; and
(5) provide such other mutually equitable arrangements as would be in the public interest.

Chugach argues that by not making findings under AS 42.05.221(d), the commission placed a prior restraint on the competition for utilities authorized to provide a particular type of service. It argues that the correct interpretation of the two provisions of AS 42.05.221 is that a public injury and a finding of competition must first be made before the commission can restrict competition between electric utilities that already have certificates to provide electric service to the public. It claims that any other interpretation would render AS 42.05.221(d) meaningless.

1. Whether Chugach has the right to provide electric service within ML&P's area is not precluded by collateral estoppel.

ML&P argues that the commission has already applied AS 42.05.221(d) to eliminate competition between Chugach 'and ML&P. Therefore, it argues that consideration of this issue is barred by the doctrine of collateral estoppel.

Collateral estoppel bars the relit-igation by parties of an issue when:

(1) the party against whom the preclusion is employed was a party to or in privity with a party to the first action; (2) the issue precluded from relitigation is identical to the issue decided in the first action; (8) the issue was resolved by final judgment on the merits; and (4) the determination of the issue was essential to the final judgment.

Chugach and ML&P have long been parties in litigation against each other resulting in an AS 42.05.221(d) determination establishing specific geographical areas in which each utility could provide its service. In that earlier case, the commission recognized situations might arise where it would become necessary for one of the utilities to engage in work within the other's service area. Thus, the commission established certain procedures to address this concern, including a waiver by the incumbent utility or commission approval.

The commission also noted that there may be times when the utilities might need to run transmission or intertie lines through the other's service area. The commission chose not to limit these activities, provided that "service is not extended to new customers within that certified service area" unless allowed under another provision. We upheld the service areas established by the commission, although we vacated those portions of the order dealing with the transferring of facilities between the two parties.

After remand, Chugach, ML&P, and the commission resolved the issue regarding the transferring of the facilities But the issue at hand is distinct from the previous litigation. Here, instead of arguing that it has a territorial right to proceed, Chugach raises a matter of statutory interpretation. It questions how AS 42.05.221(a) and (d) should be applied. ML&P contends that the commission's prior order precluded Chugach from retaining or acquiring customers within ML&P's area. But this is separate from the issue of whether a determination must be made under subsection (a) or under subsection (d) before allowing Chugach to procure customers. Chugach also distinguishes this claim in that the previous order was specific to distribution only, making no determination about providing the commodity of electricity itself outside of Chugaeh's service area. Finally, all of the commission's decisions are predicated on the public interest. But the public interest might have changed since the commission's previous orders. Because the issues previously resolved and the one now before the court are not identical, Chugach is not estopped from litigating the present case.

In short, although Chugach and ML&P have a long history of court battles and many previous orders have been entered regarding their allocated areas, the instant action is distinct from these cases and therefore not precluded by previous decisions.

2. The commission may use its "general powers" as a means to limit competition.

The commission has implied pow-erg.5 An organization like the commission. is an administrative agency that has whatever powers are expressly granted to it by the legislature or conferred upon it by implication as necessarily incident to the exercise of powers expressly granted."

Chugach reads the commission's order to say the commission's power to limit competition is solely a result of some general inference. Chugach argues that because the commission lacked specific authority, the commission and the superior court were forced to infer that the commission had general powers to control competition within the framework of AS 42.05.221 instead of properly utilizing AS 42.05.221(d) for this purpose. This, however, is not what the commission held. Instead, it stated that its power to control competition derived from three places: AS 42.05.141, AS 42.05.221(a), and AS 42.05.221(d). No one contests Chugaeh's proposition that the statutory scheme allows for some competition. Chugach simply fails to acknowledge that that competition results only from the commission's issuance of certificates and can be curtailed only by the commission under AS 42.05.221(d) after it makes the requisite findings. Moreover, Chugach's reading of the statute contravenes the well-established interpretation of AS 42.05.221(a) to require public utilities to obtain approval from the commission prior to offering a competitive service in a particular market.

3. The commission's and superior court's interpretation of AS 42.05.221(a) and (d) does not render subsection (d) meaningless.

In Alaska, a certificate of public convenience and necessity does not confer a grant of monopoly power. Thus, Chugach claims that any previously certified utility is allowed to begin competing for consumers without additional advance notice or approval from the commission. The only check on this competition, according to Chugach, is AS 42.05.221(d), which allows competition to be limited only after the commission determines that competition between two or more utilities is taking place and that such competition is not in the public interest. Chugach thus asks: If ML&P does not have a monopoly by virtue of its certificate, how can it deny its customers the ability to buy electricity from a competing seller? Ohugach's argument is unpersuasive. As ML&P correctly notes, monopolies exist "not because [they are] inherent in the issuance of [al] certificate, but because the Commission has not authorized any other utility to prov1de competmg services within the area. ,

The plain language of AS 42.05.221(a) requires an additional certificate prior to any utility providing an additional type of service. Chugach presents no legislative history to contest this plain meaning, nor does it present any case law to support its interpretation. Chugach argues that because AS 42.05.221(d) is the only subsection to mention competition, it is therefore the only part of the statute that regulates competition. But the commission has other statutes it may utilize to limit competition. Alaska Statute 42.05.221(a) is one of these. Under AS 42.05.241, "a certificate may not be issued unless the commission finds that the applicant is fit, willing, and able to provide the utility services applied for and that the services are required for the convenience and necessity of the public." The commission can grant the certificate in whole or in part and may add conditions that it deems necessary to protect and promote the public interest, including ordering the applicant to serve an area not applied for. The commission may also deny any applicant for good cause. Under AS 42.05.271, these certificates can be revoked or suspended by the commission on complaint or on its own motion after good cause is shown. A necessary consequence of these provisions regarding certificates is that a utility is usually prohibited from providing service outside of the area granted in the certificate until the utility applies for a new certificate. This is not in conflict with AS 42.05.221(d). Alaska Statute 42.05.221(a) allows the commission to prevent utilities from duplicating service until the commission finds it is in the public interest and AS 42.05.221(d) authorizes the commission to eliminate or limit any existing competition if it is found to be harmful to the public interest.

The proper application of AS 42.05.221(a) in no way conflicts with the application of AS 42.05.221(d). One situation involving the proper use of subsection (d) arose when municipally-owned utilities came within the purview of AS 42.05.221. These utilities were not previously required to obtain a certifi-caté. When the municipally-owned utilities came under this statute, both Chugach and ML&P were operating within the same district. The commission then utilized AS 42.05.221(d) to separate the two operations and provide them with distinct territories.

Alaska Statute 42.05.221(a) requires a separate certificate where a utility provides more than one type of service. Chugach's interpretation of AS 42.05.221 would render subsection (a) meaningless. The:commission would have no authority to require a utility to acquire a new or modified certificate before it began to provide services outside of its designated area as AS 42.05.221(a) does not distinguish between services, commodities, uses, or facilities.

Despite Chugach's claims, the commission's interpretation of AS 42.05.221(a) does not render subsection (d) of that provision meaningless. In addition, interpreting the statute as Chugach suggests would have precisely that effect.

4, Chugach incorrectly construes other statutes to show the State of Alaska's preference for competition.

Chugach argues that other relevant statutes show the State of Alaska's preference for competition over state regulation. Chu-gach relies on AS 42.05.311, which states that a public utility having any type of distribution or transmission facilities "shall, for a reasonable compensation, permit another public utility to use them when the public convenience and necessity require this use and the use will not result in substantial injury to the owner, or in substantial detriment to the service to the customers of the owners." According to Chugach, an electric utility cannot use the facilities of a second utility for any purpose other than competition, evidencing the preference for competitive over anticompetitive conduct.

Chugach fails to note the conditional language of the statute, which warrants shared use only when the "public convenience and necessity" require it. Joint use is not required by statute. Instead, if utilities fail to agree on whether joint use is appropriate, a party may apply to the commission for an order mandating it. Thus, even if the legislature intended AS 42.05.3811 to engender competition, the commission may do so only after it finds that such competition is in fact appropriate.

5. There is no distinction between services and commodities under Alaska's public utilities law.

In the proceedings before the commission and the superior court, Chugach attempted to avoid the effect of AS 42.05.221(a) by arguing that the sale of electricity by itself was the sale of a commodity rather than the provision of a service. Chugach argued that its certificate establishes a description of the authorized area for services only, not for commodities. Chugach thus contended that the service area description in its certificate applied only to services and not to the retail sale of the commodity of electricity itself. Both the commission and Judge Tan correctly rejected this argument based on the broad statutory definition of the word "service," which includes commodities.

v. CONCLUSION

The commission correctly held that AS 42.05.221(a) required Chugach to obtain an additional certificate of public convenience and necessity prior to engaging in contact with consumers regarding electricity sales outside its allotted area. This interpretation of the statute does not render AS 42.05.221(d) meaningless and is in accordance with other similar provisions. Accordingly, we' AFFIRM the decision of the superior court that affirmed the commission's decision.

      . In 1999 the name of the Alaska Public Utilities Commission was changed to the Regulatory Commission of Alaska in accordance with ch. 25, § 30(a), SLA 1999.

      . ML&P had already established its right to provide distribution service in the geographic area involved in this case. Alaska Pub. Utils. Comm'n v. Chugach Elec. Ass'n, 580 P.2d 687 (Alaska 1978), rev'd on other grounds by City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979). Thus, Chugach in this case sought to provide only the commodity of electricity over ML&P's lines to customers requesting electricity from Chugach.

      . " '[Dlistribution services' ... refers to delivery or distribution unbundled from the sale of the commodity-in this case the sale of electric power." Harvey L. Reiter, Competition Between Public and Private Distributors In a Restructured Power Industry, 19 Eneroy LJ., 333, 334 n. 3 (1998). Chugach thus attempted to engage in "retail wheeling" with ML&P, the process by "which utilities deliver electric power sold by a third party directly to retail customers" allowing an individual retail customer "to choose his or her electricity supplier, but still receive delivery using the power lines of the local utility." Scott B. Finlinson, The Pains Of Extinction: Stranded Costs In The Deregulation Of The Utah Electric Industry, 1998 Urag L.Rev. 173, 187 n. 109.

      . See N. Alaska Envtl. Ctr. v. State, Dep't of Natural Res., 2 P.3d 629, 633 (Alaska 2000).

      . Tlingit-Haida Reg'l Elec. Auth. v. State, 15 P.3d 754, 761 (Alaska 2001).

      . Nat'l Bank of Alaska v. State, Dep't of Revenue, 642 P.2d 811, 815 (Alaska 1982).

      . Id.

      . Cook Inlet Pipe Line Co. v. Alaska Pub. Utils. Comm'n, 836 P.2d 343, 348 (Alaska 1992) (citing Guin v. Ha, 591 P.2d 1281, 1284 n. 6 (Alaska 1979)).

      . Tlingit-Haida Reg'l Elec. Auth., 15 P.3d at 761.

      . Nat'l Bank of Alaska, 642 P.2d at 815 (citing State, Dep't of Revenue v. Debenham Elec. Supply Co., 612 P.2d 1001, 1003 n. 6 (Alaska 1980)).

      . AS 42.05.221(d).

      12. Alaska Contracting & Consulting, Inc. v. State, Dep't of Labor, 8 P.3d 340, 344-45 (Alaska 2000) (quoting Renwick v. State, Bd. of Marine Pilots, 971 P.2d 631, 634 (Alaska 1999)).

      . Alaska Pub. Utils. Comm'n v. Chugach Elec. Ass'n, 580 P.2d 687 (Alaska 1978), rev'd on other grounds by City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

      . Id. at 696.

      . Alaska Pub. Utils. Comm'n v. Municipality of Anchorage, 902 P.2d 783, 788 (Alaska 1995) (citing Far N. Sanitation, Inc. v. Alaska Pub. Utils. Comm'n, 825 P.2d 867 (Alaska 1992)).

      . Id. (quoting Glacier State Tel. Co. v. Alaska Pub. Utils. Comm'n, 724 P.2d 1187, 1190 (Alaska 1986)).

      . AS 42.05.141 provides in part:
      (a) The Regulatory Commission of Alaska may do all things necessary or proper to carry out the purposes and exercise the powers expressly granted or reasonably implied in this chapter....

      . Chugach suggests that federal antitrust law provides an "overlay to state law" that bars the commission from exercising its general powers and precludes its longstanding interpretation of AS 42.05.221. But we disagree. In the Sherman Act, "Congress, exercising the full extent of its constitutional power, sought to establish a regime of competition as the fundamental principle governing commerce in this country." City of Lafayette v. Louisiana Power & Light Co., 435 U.S. 389, 398, 98 S.Ct. 1123, 55 LEd.2d 364 (1978) (internal citations omitted).
      In California Retail Liquor Dealers Ass'n v. Midcal Aluminum, Inc., 445 U.S. 97, 105, 100 S.Ct. 937, 63 LEd.2d 233 (1980), the Court found two standards for antitrust immunity stemming from the Court's earlier décision in Parker v. Brown, 317 U.S. 341, 63 S.Ct. 307, 87 L.Ed. 315 (1943): "First, the challenged restraint must be one clearly articulated and affirmatively expressed as state policy; [and] second, the policy must be actively supervised by the State itself." Id. at 105, 100 S.Ct. 937 {internal quotation marks and citations omitted). Alaska's policy of anticompetitive conduct for utilities ihat have a certificate of public convenience and necessity is not only permitted but compelled. AS 45.50.572(d) immunizes public utilities that have been issued a certificate of public convenience and necessity from state antitrust law. AS 42.05.221(a) requires certificates of public convenience before a utility can operate AS 42.05.221(d) then allows the commission to take appropriate action to control competition if it finds that competition not in the public interest. These statutes, read separately or together, evidence a stronger case for meeting the first prong of Midcal than was seen in S. Motor Carriers Rate Conference, Inc. v. United States, 471 U.S. 48, 64, 105 S.Ct. 1721, 85 LEd.2d 36 (1985). In that case, the Court upheld a practice allowing a rate bureau to submit a joint rate proposal for rates on behalf of its members to the applicable state agency in each state for consideration regardless of the fact none of these states had legislation compelling collective ratemaking, noting that, "Kf more detail than a clear intent to displace competition were required of the legislature, States would find it difficult to implement through regulatory agencies their anticompetitive policies." Id. at 64, 105 S.Ct. 1721. The purpose of the agency is to deal with problems outside the realm of the legislature's knowledge. Id. Thus, to require "express authorization for every action that an agency might find necessary to effectuate state policy would diminish, if not destroy, its usefulness." Id. Chugach does not argue whether the State of Alaska's policy to regulate public utilities is actively supervised by the state in its brief, relying instead on its arguments regarding the first prong of the Mideal test. Despite the fact Chugach did not argue against it, it seems relatively clear that the issuance of certificates of public convenience as well as other policies relating to public utilities are actively supervised by the state. Unlike the situation in Snake River Valley Elec. Ass'n v. PacifiCorp, 238 F.3d 1189 (9th Cir.2001), where the utility with the distribution facilities had the power to withhold its consent from other utilities wishing to serve its customers, ML&P has no such power. Therefore, the second prong of Mideal is easily met.

      . Chugach Elec. Ass'n, Inc. v. City of Anchorage, 426 P.2d 1001, 1003 (Alaska 1967).

      . ''We apply a sliding scale approach in matters of statutory interpretation, and have rejected a mechanical application of the plain meaning rule." Moody-Herrera v. State, Dep't of Natural Res., 967 P.2d 79, 84 (Alaska 1998). Thus, the plainer the language of the statute is, the more convincing the evidence contrary to that language must be. Anchorage Sch. Dist. v. Hale, 857 P.2d 1186, 1189 (Alaska 1993). "Basic principles of statutory construction 'militate against interpreting a statute in a manner that renders other provisions meaningless.' Contradictions should be harmonized." Rollins v. State, Dep't of Revenue, Alcoholic Beverage Control Bd., 991 P.2d 202, 208 (Alaska 1999) (quoting M.R.S. v. State, 897 P.2d 63, 66 (Alaska 1995)); Homer Elec. Ass'n v. Towsley, 841 P.2d 1042, 1045 (Alaska 1992) (stating "[als a general rule, a statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant." (internal quotation marks omitted)). .

      . See Homer Elec. Ass'n, 841 P.2d at 1043-44 (noting the most reliable guide to a statute's meaning is the statute's words in conjunction with their common usage. Legislative history and context are still considered; however, they must "present a compelling case that the literal meaning of the language of the statute is not what the legislature intended.").

      . See, eg., Alaska Fed'n for Cmty. Self-Reliance v. Alaska Pub. Utils. Comm'n, 879 P.2d 1015, 1020 (Alaska 1994).

      . Alaska Pub. Utils. Comm'n v. Chugach Elec. Ass'n, Inc., 580 P.2d 687, 696 (Alaska 1978), rev'd on other grounds by City & Borough of Juneau v. Thibodeau, 595 P.2d 626 (Alaska 1979).

      . AS 42.05.321(a).

      . Chugach has now apparently abandoned the argument.

      . AS 42.05.990(6) provides: " 'service' means, unless the context indicates otherwise, every commodity, product, use, facility, convenfence, or other form of service that is offered for and provided by a public utility for the convenience and necessity of the public."


source: Caselaw Access Project

author: MATTHEWS, Justice.

license: Public Domain

text:
    In the matter of the proceedings pursuant to AS 22.30.011(b) in relation to Dale O. CURDA, Judge of the Superior Court, Fourth Judicial District, at Bethel, Alaska, Petitioner.
    No. S-9907.
    Supreme Court of Alaska.
    June 21, 2002.
    Jonathon A. Katcher, Pope & Katcher, Anchorage, Brennan P. Cain, Middleton & Tim-me, Anchorage, f_or Petitioner.
    Matthew D. Jamin, Jamin, Ebell, Schmitt & Mason, Kodiak, Special Counsel to the Alaska Judicial Conduct Commission.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

MATTHEWS, Justice.

IW., subpoenaed to testify in Wilfred Raphael's criminal trial in Bethel, arrived in court intoxicated on the day she was scheduled to give testimony. In an ex parte meeting, Assistant District Attorney Joe Wrona expressed concern to Superior Court Judge Dale Curda that LW. would either fail to appear a second time to- testify or would not be able to stay sober. After holding a brief hearing with Wrona and LW., Judge Curda imprisoned LW. for contempt. The Judicial Conduct Commission has recommended to this court that Judge Curda be reprimanded for ethical misconduct based on legal errors committed in that contempt proceeding.

Judge Curda committed legal errors that violated some of I.W.'s and Raphael's rights. But because Judge Curda's legal errors were neither willful nor part of a pattern of misconduct, we conclude that they did not constitute ethical misconduct and therefore that he should not receive any sanction.

I. FACTS AND PROCEEDINGS

ILW. was subpoenaed and scheduled to testify in Bethel on Tuesday, September 5, 1995, at the trial of Wilfred Raphael-her former domestic companion who had been indicted for a series of serious attacks upon her. Assistant District Attorney Joe Wrona arranged for .W. to be flown in from Mountain Village on Monday and to stay in Pacifica House, a placement that did not allow alcohol on the premises. IW.'s two children accompanied her to Bethel. Wrona instructed LW. to remain sober, telling her that she would "get in trouble" if she did not.

On Tuesday morning, Raphael's lawyer, James Gould, notified the court by telephone from Anchorage that he was too sick to travel to Bethel that day. Judge Curda, who was presiding over Raphael's trial, continued the trial until the next day.

Wrona then learned that IIW. had been evicted from Pacifica House for drinking and "partying" in her room. Wrona's supervisor instructed him to tell Judge Curda about his witness problem. When Wrong arrived at the court, he encountered I.W., still intoxicated, pulling up in a taxi with her children. After talking briefly with LW., Wrona went into the courtroom to meet with Judge Cur-da; LW. remained behind in the foyer.

After Judge Curda directed that the proceedings be put on the record, Wrona explained his problem to Judge Curda, stating that he felt he could not "control" LW. Wro-na presented Judge Curda with three potential options: (1) confining I.W. for contempt; (2) sending .W. home and bringing her back when trial resumed; or (8) keeping LW. in Bethel if the court could shape some other sort of remedy.

As Wrona had told him that LW. was a recalcitrant witness and that she had threatened not to testify if her testimony was not taken that day, Judge Curda decided that they could not send LW. home. Judge Cur-da also found that LW. could not safely remain in Bethel outside of custody, because her children lacked an appropriate placement there. He thus concluded that .W. would likely have to be confined, and her children taken into custody by the Division of Family and Youth Services (DFYS). Although he stated "I've never found that ... me talking to someone, especially when they're under the influence is going to make any difference whatsoever," Judge Curda called IW. into the courtroom to question her.

Judge Curda asked IW. if she had been subpoenaed to testify; if she had been evicted from Pacifica House; if she had been drinking; and if she was currently under the influence. ILW. responded that she was under subpoena; that she had left-not been evicted from-Pacifica House; that she had "perhaps" been drinking; but that she was not currently intoxicated. IW. then admitted, however, that she had been intoxicated earlier. Meanwhile, Judge Curda concluded that IW. was too intoxicated to drive or to testify in a criminal trial. He asked IW. if it was too hard for her to stay sober while in Bethel and what the court could do to help her remain sober. IW. responded that she could stay sober. Judge Curda responded: "It's not ... just about you being sober for this case, I mean, you need to be sober for your kids to keep your kids safe whatever happens with the case and also to keep yourself safe." LW. in turn stated that she had a room at the Kusko Inn; however, Judge Curda responded that that would not work as it was "just not a good place." When IW. then proposed staying at the Women's Shelter, Wrona reminded her that she would have to remain sober there and that "if there's one little problem, you're going to get thrown in jail and your kids will get taken away from you." When Wrona continued, "We're here today trying to think of ways to not do that to you," ILW. responded that Wrona had lied to her by telling her that they would be able to get her testimony in the trial over with that day.

Following a confused series of exchanges, Judge Curda told IW. that as she hadn't been able to remain sober in town, even with her children accompanying her, he was holding her in contempt and "remanding" her. This, he said, was the only viable sotution for securing her protection, her children's protection, and her testimony. At the conclusion of these proceedings, Judge Curda stated that when LW. gave her testimony, "then we'll revisit the case and presumably let her, she'll be able to be released." Judge Curda then arranged for a social worker from DFYS to be called to take custody of the children.

Because of Raphael's defense attorney's illness, the trial ultimately did not resume until Thursday. ILW. testified on Friday morning, but because Wrona indicated that he might need her as a rebuttal witness, she was not released until Friday afternoon.

Raphael was ultimately convicted, and his conviction was upheld by the court of appeals despite a concurrence by Judge Mannheimer that was strongly critical of Judge Curda's treatment of LW. This court, in a divided opinion, reversed the judgment of the court of appeals, concluding that Raphael's right to be present at every stage of the trial and his due process rights had been violated.

The Judicial Conduct Commission subsequently investigated Judge Curda's actions and held a formal disciplinary hearing. Five members of the Commission concluded that Judge Curda had violated provisions of the Judicial Code during the I.W. contempt hearing; three members concluded that he had not. Only three of the Commissioners, however, felt that a public reprimand was appropriate. Two felt a private reprimand was appropriate, and three felt that if Judge Cur-da's actions were found to violate the Code, the appropriate level of discipline would be, at most, a private reprimand. The Commission filed a recommendation for a private reprimand before this court, a recommendation which Judge Curda opposes in his petition.

II. DISCUSSION

A. Standard of Review

Both Judge Curda and the Special Counsel for the Commission agree that this court should conduct a de novo review of the alleged judicial misconduct and the recommended sanction .In doing so, we recognize that judicial misconduct must be established by clear and convincing evidence.

B. Judge Curda Committed Legal Errors in the Contempt Proceedings at Issue.

Judge Curda argues that he should not be disciplined for this single incident in which he made unintentional legal errors. Special Counsel, by contrast, contends that Judge Curda's legal errors were sanctionable because they denied I.W. and Raphael funda- . mental procedural rights. Such errors, argues Special Counsel, constituted a violation of Judge Curda's ethical duties even if they were unintentional.

We conclude that Judge Curda did violate I.W.'s right to notice and a meaningful hearing, as well as Raphael's due process rights and right to be present at every stage of his trial,

The Alaska rules governing contempt proceedings require that ILW. be given a meaningful hearing regarding her alleged contempt and what was to be done about it. Unstated, but necessary, procedures governing the detention of a material witness also require a meaningful hearing. Judge Curda gave I.W. a hearing of sorts before holding her in contempt and ordering her remanded; however, Judge Curda gave LW. no advance notice that she stood accused of contempt, and his questioning of LW. in her intoxicated state did not allow her a meaningful opportunity to be heard. During his questioning, Judge Curda determined that IW. was too intoxicated to testify. If she was too intoxicated to testify, it follows that she was also too intoxicated to participate meaningfully in a hearing concerning the sanction for her contempt. While this does not mean that Judge Curda had to immediately release LW., it does mean that he should have given her notice of the purpose of the proceeding and brought her back before the court as soon as she was sober, so that, at least, she could have been heard on the question of the continuing need for her confinement.

As to Raphael, this court has previously held that the ex parte hearing in this case violated Raphael's right to be present at © every stage of his trial-a right guaranteed by Criminal Rule 38(a). In addition, we held that it was a violation of Raphael's due process rights for Judge Curda to allow the impression that I.W.'s freedom and continued custody of her children was contingent upon the nature of her testimony. We continue to adhere to these views.

C. Judge Curda's Legal Errors Were Not Ethical Violations.

In order to help us determine the relationship between legal error and ethical violation, we look to the decisions of other state courts. The California Supreme Court has decided, in the interests of safeguarding the independence of the judiciary, that "mere legal error" is insufficient to support a finding of ethical misconduct. However, that court went on to hold that legal error may constitute ethical misconduct when it clearly and convincingly reflects bad faith, bias, abuse of authority, disregard for fundamental rights, intentional disregard of the law, or any purpose other than the faithful discharge of judicial duty. Commentators have expressed similar views, concluding that legal error may amount to judicial misconduct if it is repeated, motivated by bad faith, accompanied by intemperate or abusive conduct, or irremediable by appeal. Our review of case law from other jurisdictions indicates that courts most often find judicial misconduct where judges have repeatedly or willfully denied individuals their rights. Indeed, commentators have stated that most cases of judicial misconduct of this type involve both repeated and knowing violations of rights, thus "evidencing a pattern of misconduct.

In Matter of Scott, the Massachusetts Supreme Court noted the "difficulty in distinguishing between mere errors ... on the one side, which would not call for discipline, and, on the other side, what we have called patterns of disregard or indifference, which do warrant discipline." The court further stated that it was willing to consider disciplining a judge where "it [had been] established by credible evidence that [the] judge, over a protracted period of time, [had] followed a course of judicial conduct which [was] in utter disregard of the law and of established rules of practice in continued violation of orders pertaining thereto...." The court there decided to discipline Judge Seott for her "pattern of disregard of, or indifference to, fact or law, largely in erimi-nal and juvenile cases," but in doing so warned that "[tlo invoke the disciplinary power of this court against a judge as a substitute for appellate review would establish a practice dangerous to the independence of the judiciary and equally dangerous to the public's constitutional right to an independent judiciary."

Several other cases support distinguishing between mere legal error and patterns of repeated error. In Matter of Reeves, the New York Court of Appeals upheld the decision of the State Commission on Judicial Conduct to discipline Judge Reeves for his "repeated pattern of failing to advise litigants of their constitutional and statutory rights." That court noted that the purpose of judicial sanction was not to punish the judge, but instead to safeguard the bench. The court held that "the errors [committed by Judge Reeves] were fundamental and the pattern of repeating them, coupled with an unwillingness to recognize their impropriety, indicate[d] that [Judge Reeves] pose[d] a threat to the proper administration of justice." Similarly, in In re Inguiry Concerning Perry, the Florida Supreme Court publicly reprimanded a judge for repetitively abusing his contempt power. There, Judge Perry had intemperately incarcerated six defendants for indirect contempt without following appropriate procedures for such proceedings, and had set unreasonably high bail for two defendants to punish their refusal to enter immediate guilty pleas.

The Supreme Court of Maine used a slightly different standard to determine judicial misconduct in Matter of Benoit. While consistent with the above cases in its recognition that "[elvery trial judge will from time to time commit legal errors," and that "judicial discipline would be in order in almost none of those cases," the Maine Supreme Court held that "judicial conduct constitutes a violation of [Judicial eanons] if a reasonably prudent and competent judge would consider that conduct obviously and seriously wrong in all the circumstances." In that case the court censured and suspended Judge Benoit for a pattern of "obviously and seriously wrong" practices. These practices included unlawfully imposing bail on an indigent defendant, where such imposition resulted in the defendant's imprisonment for over a month for a civil traffic infraction; unlawfully imprisoning a second defendant for failing to pay a civil fine; and detaining a juvenile defendant for six weeks without taking any evidence and without affording the juvenile his right to counsel.

Judge Curda's legal errors here were not comparable to those in the above cases. While the judges in the above matters were disciplined for patterns of repeated misconduct, Judge Curda is charged with legal errors arising out of a single instance. In addition, Judge Curda showed none of the willfulness present in other cases in which judges were found to have committed ethical violations.

In one case of willful misconduct-Matter of Yengo-the New Jersey Supreme Court removed Judge Yengo for his repeated failure to advise defendants of their constitutional rights, for imprisoning defendants either without a proper hearing or based upon inadmissible evidence, for using bail as an arbitrary weapon to harass defendants, and for disregarding and mocking controlling legal precedent with which he disagreed. Indeed, the court found that Judge Yengo "seemed to relish his judicial power to imprison. others than defendants," and that he "seem[ed] unable to understand the relationship between justice and the defendant." Similarly, in Matter of Ross, the Supreme Court of Maine suspended Judge Ross for willfully disregarding the law in intemperately sentencing a defendant to jail for a civil violation and for imprisoning another party without conducting a hearing.

In contrast to the examples above, Judge Curda's commission of legal errors was not willful. Indeed, of the cases reviewed by this court, the one that most closely resembles Judge Curda's is Matter of Thomson, decided by the: New Jersey Supreme Court. In Matter of Thomson, a municipal court judge jailed a defendant on charges of shoplifting and possession of stolen property without individually advising the defendant of his right to counsel, placing either the defendant or the testifying police officer under oath, or explaining to the defendant the reasons for his sentence as required by New Jersey law. As explanation for his legal errors, the judge stated that he had never faced such a situation before. The judge claimed that the defendant had been "virtually uncontrollable," blurting out the charge against him, admitting his guilt, and then relaying the details of the incident. The judge explained that he believed the defendant would not return to court when instructed to do so, and that he would represent a danger to himself and others if not taken into custody. Within hours of sentencing the defendant, the judge took steps to alert the probation department to the defendant's apparent problems; however, by that time the defendant had already hanged himself.

The New Jersey Supreme Court concluded that the judge exercised "poor judicial judgment" and committed a "serious" transgression. The court emphasized that "[dlespite the best of motives a judge cannot try to decide what is best for a defendant, as distinct from what he knows is constitutionally required. To do so is to depart from his or her role as a judge." The court went on, however, to note that the judge's incorrect rulings had been appealable, and that incorrect rulings-even with respect to a defendant's constitutional rights-normally should not subject a judge to charges of judicial misconduct. The court also stated that "(there were, and still are, no guidelines in existence for the type of situation [involving an apparently unstable defendant] in which [the judge] found himself," and unanimously concluded-in light of the "unique cireum-stances present in this case, the difficult position in which {the judge] found himself, the time pressure under which [the judge] was required to act, and [the fact] that this matter represented] a single unfortunate instance in [the judge's] long and otherwise unblemished professional record"-that the judge had not committed ethical miscon-duet.

Here, with regard to his treatment of LW., Judge Curda-like Judge Thomson-committed a single deprivation of an individual's constitutional rights, motivated by good faith concerns for orderly trial proceedings and the affected individual's well-being, in the face of a unique situation for which there was no available legal template. As Judge Curda argued, this court is aware of "no contested American case the disciplining of a judge for a single incident of good faith legal error when the Judge acted without animus." '

As the cases discussed above recognize, all judges make legal errors. Sometimes this is because the applicable legal principles fre unclear. Other times the principles are clear, but whether they apply to a particular situation may not be. Whether a judge has made a legal error is frequently a question on which disinterested, legally trained people can reasonably disagree. And whether legal error has been committed is always a question that is determined after the fact, free from the exigencies present when the particular decision in question was made.

Further, judges must be able to rule in accordance with the law which they believe applies to the case before them, free from extraneous considerations of punishment or reward. This is the central value of judicial independence. That value is threatened when a judge confronted with a choice of how to rule-and judges are confronted with scores of such choices every day-must ask not "which is the best choice under the law as I understand it," but "which is the choice least likely to result in judicial discipline?"

For these reasons, we agree with those authorities discussed above that hold that legal error that is neither willful nor part of a repeated pattern of misconduct is not an appropriate subject for discipline.

In light of this standard we conclude that Judge Curda's treatment of IW. is not properly subject to ethical sanction because the errors he made were neither repeated nor willful. The same conclusion applies to Judge Curda's denial of Raphael's procedural rights. We note that prior to this court's decision in Raphael II, the court of appeals unanimously concluded that the ex parte proceedings did not violate Raphael's right to be present. The fact that reasonable judges could and did differ over whether the ex parte proceedings violated Raphael's rights underscores the difficulty and uncertainty of the situation with which Judge Curda was presented. ©

III. CONCLUSION

Because Judge Curda's legal errors as to IW. and Raphael were not willful nor part of a pattern of judicial misconduct, we conclude that they were not ethical violations of the Code of Judicial Conduct. Therefore, Judge Curda should not be reprimanded.

      . Raphael v. State (Raphael I), 1998 WL 191159 (Alaska App.1998), reversed by Raphael v. State (Raphael II ), 994 P.2d 1004 (Alaska 2000).

      . Raphael v. State (Raphael II), 994 P.2d 1004 (Alaska 2000).

      . In re Johnstone, 2 P.3d 1226, 1234 (Alaska 2000); In re Inquiry Concerning A Judge (Judge I), 762 P.2d 1292, 1296 n. 4 (Alaska 1988).

      . Johnstone, 2 P.3d at 1234; In re Hanson, 532 P.2d 303, 308 (Alaska 1975).

      . Special Counsel's case is based primarily on Canon 3(A)(4) of the Code of Judicial Conduct, which bars ex parte proceedings "except as authorized by law," and requires a judge to give each person legally interested in a proceeding a full right to be heard "according to law." In addition, Judge Curda is charged with violating Canons 3(A)(1), 2(A), and 1. Canon 3(A)(1) requires a judge to be "faithful to the law and maintain professional competence in it [as well as to bel ... unswayed by partisan interests, public clamor, or fear of criticism;" Canon 2(A) requires a judge to "respect and comply with the law and /.. conduct himself at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary;" and Canon 1 requires a judge to uphold the integrity and independence of the judiciary.

      . The proceedings that resulted in LW.'s incarceration could be characterized as direct contempt proceedings governed by Civil Rule 90(a), indirect contempt proceedings governed by Civil Rule 90(b), or material witness detention proceedings effecting the express and implied principles and requirements of AS 12.30.050. The proceeding that is least protective of an individual's rights is that for direct contempt. See Raphael II, 994 P.2d at 1013, n. 39. But even in direct contempt proceedings a contemnor is entitled to a meaningful opportunity to be heard concerning the need for the sanction. 'In the other two cases-indirect contempt and material witness detention-the individual must be given notice of the character of the proceedings and the specific reasons why they are being brought, in addition to a meaningful opportunity to be heard.

      . Raphael II, 994 P.2d at 1012-13.

      . Id. at 1010.

      . Oberholzer v. Comm'n on Judicial Performance, 20 Cal.4th 371, 84 Cal.Rptr.2d 466, 975 P.2d 663, 680 (1999).

      . Id.

      . Jerrrey M. Smaman Et aL, Jupictat Conpuct anp (3d ed.2000) § 2.02, at 37-38.

      . Id. at § 2.10, at 55.

      . 377 Mass. 364, 386 N.E.2d 218, 220 (1979).

      . Id. at 220-21.

      . Id. at 220.

      . Id.

      . 63 N.Y.2d 105, 480 N.Y.S.2d 463, 469 N.E.2d 1321, 1323 (1984).

      . Id.

      . Id.

      . 641 So.2d 366 (Fla.1994).

      . Id. at 367-68.

      . 487 A.2d 1158 (Me.1985).

      . Id. at 1162.

      . Id. at 1163.

      . Id. at 1164.

      . Id. at 1164-69.

      . 72 N.J. 425, 371 A.2d 41, 49-51 (1977).

      . Id. at 53.

      . Id. at 56.

      . 428 A.2d 858, 862-63 (Me.1981).

      . 100 N.J. 108, 494 A.2d 1022 (1985).

      . The judge read out a general statement of defendants' rights at the beginning of court, as was apparently general practice in many municipal courts; perhaps because the judge's regular court clerk was not present, the judge was unaware that the defendant was not present when the statement of rights was read. Id. at 1023-24, 1025 n. 2, 1026 n. 3.

      . Id. at 1025-26.

      . Id. at 1026-27.

      . Id. at 1025.

      . Id. at 1027.

      . Id.

      . Id. at 1027-28.

      . Judge Curda testified that LW. was the first person he had ever incarcerated for contempt.

      . Judge Richard Savell, one of Alaska's most experienced superior court judges, testified that the law involving the treatment of intoxicated witnesses was "murky." Our research confirms this, for there are no Alaska cases on the subject, there is little authority elsewhere, and that which we have found is not consistent. Commonwealth v. Clark, 13 Pa. Commw. 439 (1893) (quoted in Commonwealth ex rel. Falwell v. Di Giacinto, 324 Pa.Super. 200, 471 A.2d 533 (1984)), indicates that a drunken withess is guilty of contempt. But in Cameron v. State, 102 Md.App. 600, 650 A.2d 1376 (Md.1994), the court stated: "We have found no cases, nor are any cited by the parties, in which the court has found a defendant, who is admittedly an alcoholic, in contempt of court merely for appearing in court in an intoxicated condition." Id. at 1380. See also Joan Teshima, Intoxication of Witness or Attorney as Contempt of Court, 46 A.L.R.4lth 238 (1986), for discussion of the various holdings that exist on this issue.

      . See Raphael I, 1998 WL 191159 at *5.


author: PER CURIAM. CARPENETI, Justice, BRYNER, Justice, FABE, Chief Justice,

text:
    Kim Michael COOK, Appellant, v. Hallie A. ROWLAND, Personal Representative of the Estate of James A. Rowland, Appellee.
    No. S-9410.
    Supreme Court of Alaska.
    June 21, 2002.

      Kim Michael Cook, pro se, and Susan Or-lansky, Feldman & Orlansky, Anchorage, for Appellant.
    Eric Jensen, Jensen & Jensen, Wasilla, and Kenneth J. Goldman, Law Office of Kenneth J. Goldman, Palmer, for Appellee.
    Before: FABE, Chief Justice, MATTHEWS, EASTAUGH, BRYNER, and CARPENETI, Justices.
   OPINION

PER CURIAM.

I. INTRODUCTION

Following the entry of a default judgment against him in excess of $7,000,000, Kim Michael Cook filed a peremptory challenge of the assigned judge and a motion to set aside the default judgment. The superior court rejected the peremptory challenge as untimely and refused to set aside the default judgment. Because three members of the court-Chief Justice Fabe, Justices Matthews and Bryner-have concluded that Cook has shown both excusable neglect and a potentially meritorious defense as to damages, we set aside the default judgment and remand for a redetermination of damages. Because three members of the court-Justices Eastaugh, Bryner, and Carpeneti-have concluded that Cook's peremptory challenge should be given effect, proceedings concerning the determination of damages on remand should be conducted before a different judge.

II. FACTS AND PROCEEDINGS

In the early morning hours of May 15, 1999, Palmer Police Officer James Rowland approached a parked car in which Kim Michael Cook was sleeping. In the series of events that followed, which are not the immediate concern of this case, both men fired gunshots and both were hit. Officer Rowland died as a result of his injuries.

Cook was arrested and charged with first-degree murder in connection with Rowland's death. As a result of his own injuries, Cook was hospitalized and underwent two surgeries before being transferred to a maximum security cell at Cook Inlet Pretrial Facility.

On May 27, 1999, Hallie Rowland, Officer Rowland's widow and the personal representative of his estate, filed suit against Cook for wrongful death. The complaint sought compensatory and punitive damages. Cook was served with the complaint when he appeared at a criminal arraignment on May 28, but he failed to answer the complaint within twenty days as required by law. As a result, Hallie Rowland applied to the clerk for entry of Cook's default on June 18.

Three days after the default was entered, Rowland requested a hearing to establish damages for the default judgment. She later withdrew that request and proposed that the court enter a default judgment without a hearing. She provided the court with affidavits supporting her claims for damages. One affidavit, from an economist, calculated Rowland's lost lifetime earnings at $1,8583,975.00. The other affidavit, from Rowland, claimed the estate's entitlement to $400,000 for non-economic damages, the maximum allowable award. Rowland calculated her total compensatory damages at $1,758,975, and proposed an award of punitive damages of three times that amount, or $5,261,025.

Superior Court Judge Beverly W. Cutler entered the default judgment against Cook on June 28, 1999, accepting in full Rowland's calculation of damages for a total judgment of $7,015,900.

On July 21 Cook responded to the civil suit for the first time, by moving to set aside the entry of default and the default judgment. He also then filed a peremptory challenge to the assigned judge pursuant to Civil Rule 42(c).

Judge Cutler denied Cook's peremptory challenge as untimely, and scheduled a hearing for two weeks later on Cook's motion to set aside the default judgment in order to determine "whether there is an evidentiary basis for defendant's claims." Cook sent a handwritten response to the court and Rowland's attorney stating that he would not be able to arrange for transportation from his maximum security cell in the prison to attend the hearing; both the court and Rowland's attorney received this response the day before the scheduled hearing. Although Cook did not appear at the hearing, his motion to set aside the default judgment was denied by the superior court at that time.

Cook filed this appeal challenging two decisions of the superior court. First, Cook argues that the court improperly denied his peremptory challenge. Second, Cook argues that the court erred by not setting aside the default judgment against him.

Subsequent to the entry of all briefs in this case, Cook was found guilty of first-degree murder in connection with Rowlands death.

III. STANDARD OF REVIEW

We review an order refusing to set aside a default judgment for abuse of discretion. "We will not find an abuse of discretion unless we are left with a definite and firm conviction on the whole record that a mistake has been made." The interpretation and application of the right to disqualify a judge under Alaska Civil Rule 42(c) is a question of law that we consider de novo.

IV. DISCUSSION

A. The Superior Court Abused Its Discretion in Refusing To Set Aside the Default Judgment against Cook.

Cook argues that the superior court erred when it refused to set aside the default judgment against him because his failure to respond was excusable neglect. The superior court denied Cook's motion at a hearing on September 15 because it found "no evidence to support Mr. Cook's claims."

The rules of civil procedure "provide relief from judgments which, for one reason or another, are unjust." Civil Rule 55(e) provides that an entry of default may be set aside "[fJor good cause shown," and that a default judgment may be set aside "in accordance with Rule 60(b)." We have consistently held that disposition of a case on the merits is strongly preferred to judgment by default.

1. Cook presented sufficient evidence of excusable neglect.

Civil Rule 60(b) sets forth a number of grounds that justify relief from a final judgment. Cook looks to apply the provisions of Rule 60(b)(1) which provide that a final judgment can be challenged "within a reasonable time ... not more than one year" for "mistake, inadvertence, surprise or exeusable neglect."

Specifically, Cook claims that his actions showed excusable neglect. In an affidavit filed July 21 Cook described the circumstances that made it difficult for him to respond to the May 28 summons. These circumstances included: injuries suffered as a result of gunshot wounds that led to two surgeries, the administration of pain medication, and limited use of his right hand; confinement in a maximum security unit at Cook Inlet Correctional Facility where he did not have use of a phone until June 22; lack of familiarity with court rules; and preoccupation with his criminal defense. As a result of these circumstances, Cook claims that he was not able to respond to the summons before the twenty-day period had expired on June 18.

In response to Cook's claims, Rowland alleges that those claims are "incredible," that Cook shows a level of sophistication that would have allowed him to understand the significance of the complaint, and that Cook acted in bad faith, choosing to ignore the action on the belief that his assets were beyond the reach of the court.

We have found excusable neglect in circumstances of disability which resemble in some respects those presented by Cook. In Gregor v. Hodges, we held that the superior court abused its discretion in refusing to set aside a default judgment on excusable neglect grounds where the defendant had a broken ankle and pneumonia and was bedridden and under the influence of pain medication. In addition, the defendant had difficulty in obtaining counsel until after the default judgment had been entered.

We have also held that setting aside a default judgment may be warranted: where "a pro se litigant's default results from lack of familiarity with the rules, rather than gross neglect or lack of good faith, and where the litigant is unversed in the rules of civil procedure. Although Cook was later able to obtain legal assistance to respond, he was initially unable to contact an attorney during the time relevant to the default.

Based upon the circumstances presented by Cook, we find that his failure to respond to the complaint in a timely fashion is exeusa-ble. Cook was served with this lawsuit within two weeks of suffering multiple serious gunshot wounds. As a result, his claims that he underwent extensive medical treatment and was heavily medicated appear legitimate. In addition to his physical incapacitation, Cook was being held in a confined setting which allowed him minimal contact with the outside world. He was engaged in and likely preoe-cupied with defense of the extremely serious criminal charges filed against him. Based upon these circumstances, his neglect in responding before the superior court entered a default and awarded default judgment in his case was excusable. Rowland suggests that Cook acted in bad faith, but provides no reason to believe that Cook could profit by purposefully allowing a default to be taken against him. The suggestion of bad faith appears to be speculation and is not supported by any evidence.

2. Cook presented sufficient evidence to find "good cause" to set aside the default judgment.

We have directed that in determining whether "good cause" exists to set aside a default under Civil Rule 55(e), a court should consider: "whether the defendant has established the required meritorious defense, prejudice to plaintiffs, the culpability of defendant's conduct, the length of the period of default, the size of any potential award to plaintiffs, and alternative sanctions against the defendant." An evaluation of these factors weighs in favor of setting aside the default judgment against Cook.

a. Cook has established a potential meritorious defense to the amount of damages.

In addition to the specific showing of excusable neglect to satisfy Rule 60(b), the rules governing setting aside a default judgment generally require that the movant have a meritorious defense." It is not necessary that the defendant show that, if relief is granted, the ultimate outcome will be different, but the defendant must demonstrate that the outcome might be different if a trial were held.

Showing a meritorious defense demands "more than a perfunctory statement that a meritorious defense exists." The defaulting party "may be required to show that there is a factual or legal basis for the tendered defense." Cook contends that this requirement only means that a defendant must say more than the conclusory statement "I have a defense." But the exact standard is not so easily defined, because the amount of proof required will change based on the persuasiveness of the other equitable factors considered under Rule 55(e)'s requirement of good cause.

Rowland argues that a meritorious defense requires both a claim of defense and a factual representation supporting that claim. Rowland relies upon our finding in Wright v. Shorten that a meritorious defense existed where the defendant pleaded a defense and presented evidence to support the claim. However, in several other cases we have not required evidence but have found a meritorious defense when facts supporting a claim of defense are merely alleged. Again, the existence and quality of evidence establishing a meritorious defense is a factor to be weighed in determining whether good cause exists to set aside the default judgment.

Cook has presented two different theories to attempt to meet the meritorious defense requirement. First, Cook contends that he was acting in self defense when he shot Officer Rowland. Cook states that he was fearful because he believed Officer Rowland "was going to kill or severely injure me." But Cook was found guilty of first-degree murder for the killing of Officer Rowland. Cook's conviction precludes him from presenting a merits defense to liability in the civil action.

But Cook also claims that he has a meritorious defense against the amount of damages requested by Rowland and awarded by the superior court. To be meritorious a defense need not provide a complete defense to the action. Rather, a defense is meritorious if it will "reduce a plaintiff's award, and thereby alter the outcome of the suit." Cook claims that if he were allowed to present his story of the events leading to Officer Rowland's death punitive damages might be assessed differently, or not at all, and that in any case testimony about his assets could support a reduced punitive damage award. In addition, he points out that in certain respects Rowlands award for past and future ecoriomic damages are not supported by underlying data and caleulations, and thus may be vulnerable to challenge.

We agree that Cook has established a potentially meritorious defense insofar as he has shown that the amount of damages awarded against him might be lower if he were allowed to participate in a damages hearing. Therefore we conclude that although Cook may not deny liability for Officer Rowland's death, he has shown a meritorious defense with respect to damages.

b. The award in this case is substantial.

We have held that the magnitude of a default judgment is a factor in considering whether it should be set aside. In Herts, the plaintiffs were awarded $463,319.43, which led us to comment that "[uJnless there are intervening equities, a controversy concerning damages of this magnitude should be resolved on its merits whenever possible." In the present case this factor is certainly present.

c. Cook's conduct related to entry of the default was not significantly culpable.

We emphasize that the conduct relevant to this factor is not the conduct underlying the initial claim, in this case Cook's shooting of Officer Rowland (which was highly culpable), but the conduct related to entry of the default. Our finding that Cook's default was the result of "excusable neglect" sufficiently establishes that his failure to answer in a timely manner was not significantly culpable.

d. The duration of the default was minimal; setting aside the default judgment does not prejudice the plaintiff.

Default judgments are more likely to be set aside when the length of time the defendant is in default is minimal and setting aside will not result in prejudice to the plaintiff.

In this case, Cook filed his motion to set aside the judgment on July 21, only twenty-three days after the default judgment had been entered. The default judgment itself followed quickly upon the events giving rise to the cause of action. Rowland has not presented this court with any argument that she will be prejudiced if the default judgment against Cook is set aside. This court has previously held that "[the mere fact that the nondefaulting party will be required to prove his case without the inhibiting effect of the default upon the defaulting party does not constitute prejudice which should prevent a reopening."

Further, on remand, the only relevant issue will be the amount of damages. Potential prejudice to the plaintiff can be reduced by not requiring the return of any seized property unless the final judgment turns out to be less than the value of the property seized. Civil Rule 60(b) directs that a motion to set aside a default should be granted "upon such terms as are just." We believe that retention of seized property under these conditions is a just term within the meaning of this rule.

B. Cook's Peremptory Challenge Must Be Given Effect on Remand.

Because the default judgment as to damages has been vacated by this opinion, on remand the superior court must determine damages in accordance with the provisions of Civil Rule 55(c). As explained in the separate opinions of Justice Carpeneti, in which Justice Eastaugh joins, and Justice Bryner, three members of the court have concluded that the peremptory challenge exercised by Cook must be given effect. Accordingly, on remand this case must be reassigned to a new judge in accordance with Civil Rule 42(c)(5).

v. CONCLUSION

For the reasons stated:

1. The default judgment as to damages is VACATED under the conditions expressed herein.

2. This case is REMANDED for a determination of damages.

8. Proceedings on remand shall be conducted before a new judge.

CARPENETI, Justice, with whom EASTAUGH, Justice, joins, concurring and dissenting.

BRYNER, Justice, concurring.

FABE, Chief Justice, with whom MATTHEWS, Justice, joins, concurring in part and dissenting in part.

CARPENETI, Justice,

concurring and dissenting, with whom EASTAUGH, Justice, joins.

I agree with the opinion of the court that this case should be remanded for further proceedings before another judge. But I disagree as to how this result is reached. I write separately to set out (1) why Cook's peremptory challenge must be given effect and (2) why a new judge on remand-not this court-should decide all matters remaining in this case, including the fate of the motion to set aside the default.

1. The Superior Court Erroneously Denied Cook's Peremptory Challenge as Untimely.

Cook argues that the superior court erred when it dismissed his peremptory challenge as untimely. Litigants have a statutory right to peremptory disqualification of a judge under AS 22.20.022, and Alaska Civil Rule 42(c) controls the procedure and scope of such disqualification in civil cases. Because Cook filed his peremptory challenge in accord with the provisions of that rule, his challenge was proper.

Rule 42(c) provides: "[iJn an action pending in the Superior or District Courts, each side is entitled as a matter of right to a change of one judge and of one master." The timeliness provisions for a peremptory challenge are contained in subsection (8):

Timeliness. Failure to file a timely notice precludes change of judge as a matter of right. Notice of change of judge is timely if filed before the commencement of trial and within five days after notice that the case has been assigned to a specific judge. Where a party has been served or enters an action after the case has been assigned to a specific judge, a notice of change of judge shall also be timely if filed by the party before the commencement of trial and within five days after a party appears or files a pleading in the action.

Cook's challenge falls under the second part of the rule, because he was "served ... after the case hald] been assigned to a specific judge." Cook was initially served on May 28, after Judge Cutler had been assigned to the case on May 27. As a result, Rule 42(c)(3) required Cook to file his challenge before trial and within five days of an appearance or filing in the action.

The superior court ruled that Cook's motion was not timely because the normal time limits of Rule 42(c)(8) were not available when a party had not entered a timely response to the complaint. The superior court's interpretation reads Rule 42(c)@B)'s five-day window after an appearance or pleading as applying only to a timely appearance or pleading. The court said, "a party must timely enter an action in order to peremptorily challenge the judge within 5 days of that entry." The superior court did not cite to the rules or case law to support its interpretation of the rule, but relied upon the argument that bad policy would result from allowing peremptory challenges after a default judgment: "[I]t would encourage other litigants to default, await a ruling on the merits, and then challenge the judge and move to vacate the default."

Cook's peremptory challenge falls within the plain language of Rule 42(c)(8), because his challenge was filed before any trial was held in the case and on the same day as his first filing or appearance in the case. Moreover, allowing Cook to raise a peremptory challenge after entry of default does not promote bad policy. While the superior court was concerned that allowing a peremptory challenge after a default would encourage litigants to default, neither the superior court nor Rowland identified any possible advantage that might be gained by a party in allowing default to be taken against itself, and I can think of none.

Cook points to our decision in Staso v. State, Department of Transportation to support his position that allowing his peremptory challenge will not lead to abuse. In that case, we held that a party has the right to peremptorily challenge the judge in a new case filed after an identical case is dismissed, even if the party had exercised its peremptory challenge in the earlier, dismissed case. Despite the argument by the state that allowing such challenges would encourage judge shopping by parties who simply allowed their cases to be dismissed, we observed that other civil rules provided adequate sanctions against bad faith dismissal and refiling of cases. Specifically, we noted that the threat of sanctions as provided in the Civil Rules against a party who refiles a dismissed case "afford[s] courts. the tools necessary to deter litigants from judge shopping.

Similar controls exist in the rules to protect against any theoretical abuse considered here. There are at least two ways in which the current rules would dissuade parties who might attempt, as the superior court feared, to sit by and allow a default, and then disqualify the judge.

First, parties who invite a default face the additional burden of successfully moving to set aside a default judgment before earning a trial on the merits with a different judge. A peremptory challenge entered after a default judgment would not automatically nullify that judgment. Instead, a defendant would have to proceed before a new judge with a motion to set aside a default judgment under the requirements contained in Civil Rule 60(b)). Setting aside a default judgment requires a defendant to show good cause, including a meritorious defense, as well as some form of mistake, fraud, new evidence, or excusable neglect. I can perceive no reason a defendant would purposefully allow a default to be taken against himself or herself when there is no advantage and the defendant would be required to make a positive showing to set aside the default.

Second, if for any reason a party were to invite a default in order to subsequently exercise a peremptory challenge, that party would be guilty of bad faith and would risk losing the motion to set aside the default for that reason. A plaintiff who can establish that a defendant has intentionally defaulted as a way to engage in judge shopping can argue that the default judgment should not be set aside because the defaulting party has acted in bad faith. In Melendrez v. Bode, we affirmed the denial of a motion to set aside because the defendant had acted in bad faith by attempting to avoid service and then failing to respond to the summons "claiming, incredibly, that he was unaware there was a suit pending against him." We denied the motion to set aside primarily because of Me-lendrez's culpable behavior.

In fact, in this case, Rowland has alleged that Cook acted in bad faith Rowland claims that Cook's failure to respond to the complaint in a timely fashion was the result of bad faith. Allowing. Cook to maintain his peremptory challenge would not defeat Rowland's right to claim that the- default should stand because Cook acted in bad faith.

In sum, Cook's peremptory challenge satisfied the language of Civil Rule 42(c)(8) because it was filed before any trial was held and at the same time that he appeared and filed a pleading in the case. Recognizing his peremptory challenge does not promote bad policy. Our case law provides sufficient deterrent against judge shopping.

2. The New Judge Should Decide All Remaining Matters, Including - Cook's Motion To Set Aside the Default Judgment.

Since the superior court erroneously denied Cook's peremptory challenge, decisions made by that court subsequent to the denial are void. The valid exercise of a peremptory challenge divests the challenged judge of authority to act in the case. As we stated in Channel Flying, Inc. v. Bernhardt,

The only meaning that can be given to the requirement [in AS 22.20.022(a) ] that the matter be assigned "at once and without requiring proof" to another judge, is that when a timely and proper affidavit is filed the judge concerned is at once disqualified from acting as a judge in the particular action or proceeding. When [she is disqualified [slhe no longer possesses the qualities ... of power, capacity, fitness or competency to proceed further. In short, when a proper affidavit has been timely filed, the judge involved is without power or jurisdiction to take any further action in the proceeding.

We have consistently followed this rule. No reason appears in this case to depart from it. Therefore, Cook's motion to set aside the default judgment should be remanded to the superior court for assignment to a new judge. That new judge should decide all matters arising after the peremptory challenge was made.

The decision that the challenge was timely does not invalidate the default judgment itself, which was entered by the superior court before Cook filed his peremptory challenge. Since the superior court was without jurisdiction to rule on the motion to set aside the default judgment, Cook's appeal of that decision is moot. There is, therefore, no reason for this court to rule on any issue-including the pending motion to set aside the default-that is not properly before it. For this reason, I dissent from today's per curiam opinion to the extent it reaches the question of setting aside the default judgment. Instead, that matter should be resolved by the superi- or court on remand.

BRYNER, Justice,

concurring.

I join the per curiam opinion in holding that Cook's default judgment must be set aside and the case remanded for a determination of damages. I also join Justices Eas-taugh and Carpeneti in concluding that Cook's peremptory challenge must be treated as timely on remand; but I set out my reasons separately, because they differ from those adopted in Justice Carpeneti's concurring opinion.

Civil Rule 42(c)(8) allows a party who "enters an action after the case has been assigned to a specific judge" to file a peremptory challenge at any time "before the commencement of trial and within five days after a party appears." I would apply the literal terms of this rule to Cook's situation.

Cook's motion to set aside the judgment under Rule 60(b) did not commence a new action for purposes of the peremptory challenge rule; rather, it sought to reopen the earlier action, which already had been closed by final judgment. And since Cook had never appeared in that action before it was closed, he had no right to enter it merely by filing a motion. Instead, his Rule 60(b) motion essentially sought leave to reopen and enter the action. Because Cook was not yet entitled to enter the action, his notice of peremptory challenge was not effective when it was filed and did not bar Judge Cutler from presiding over his motion. In short, unlike Justices Eastaugh and Carpeneti, I would not read Rule 42 as having given Cook the right to demand that a new judge hear his Rule 60(b) motion for relief from the default judgment.

But now that satisfactory grounds have been found for relief under Rule 60(b), Cook is entitled to reopen and enter the original action. And because the original judgment has been set aside, he now unquestionably qualifies as a party entering the action "before the commencement of trial." Accordingly, I would read Rule 42 to require that Cook's peremptory challenge be honored as timely on remand. I favor this reading of the rule over those advanced in this court's two other separate opinions because I think that it is textually more faithful to the rule and, unlike the dissenting opinion's reading, avoids conflict with our'recent decision in Mundt v. Northwest Explorations, Inc.

_I thus would set aside the default judgment, would remand for further proceedings as directed in the per curiam opinion, and would require the case to, be reassigned to another judge on remand.

FABE, Chief Justice,

with whom MATTHEWS, Justice, joins, concurring in part, and dissenting in part.

Although I agree that the default judgment must be set aside and the case remanded for a determination of damages, I disagree with the majority's holding today that Cook's peremptory challenge of Judge Cutler was timely. In my view, this case should be remanded for a trial on damages before Judge Cutler, the originally assigned trial judge.

Rule 42(c)(8) prevents a party from exercising a peremptory challenge against the assigned trial judge after a default judgment has been entered. That rule provides that a notice of change of judge is timely "if filed by the party before the commencement of trial." I believe that the term "trial" must be interpreted to encompass the concept of final resolution of the case, including a default judgment.

Moreover, in many default cases, the judge holds a damages hearing prior to entry of a default judgment, a proceeding that is tantamount to a "trial" on the issue of damages. And if either party has requested a jury trial prior to entry of default, the issue of damages must be tried to a jury, despite one party's absence at trial. If Judge Cutler had held a damages hearing, listening to the same witness who prepared the damages affidavit in this case, Cook's peremptory challenge would not have been timely filed as it would have occurred after "trial." The right to file a peremptory challenge after a default judgment should not depend on whether the trial court has determined the amount of damages based on the testimony in an affidavit or that of a live witness.

As a result of the court's decision today, careful practitioners will request a damages hearing or "trial" in every future default case, to avoid the possibility that a defendant, unhappy with the result of the case, will enter an appearance, preempt the judge, and move to set aside the default judgment. This will result in time-consuming and unnecessary hearings in cases where the amount of damages is easily ascertainable from documentary evidence.

For these reasons, I respectfully disagree with the majority's view that Cook's peremptory challenge was timely and should be given effect. I would remand for a damages trial before Judge Cutler.

      . See State v. Cook, 3PA-99-832 Cr. (Alaska Super., October 27, 2000).

      . See Wright v. Shorten, 964 P.2d 441, 443 (Alaska 1998).

      . Id. (quoting Johnson v. Doris, 933 P.2d 1139, 1142 (Alaska 1997)).

      . See Barber v. Barber, 915 P.2d 1204, 1208 n. 8 (Alaska 1996); Staso v. State, Dep't of Transp., 895 P.2d 988, 990 (Alaska 1995).

      . Wright, 964 P.2d at 443.

      . See Melendrez v. Bode, 941 P.2d 1254, 1258 (Alaska 1997); Hertz v. Berzanske, 704 P.2d 767, 771 (Alaska 1985); see also Wright, 964 P.2d at 444.

      . 612 P.2d 1008, 1010 (Alaska 1980).

      . Id.

      . Wright, 964 P.2d at 444 (citations and quotation marks omitted); see also Rodriguez v. Rodriguez, 908 P.2d 1007, 1010 (Alaska 1995) (affirming that default should be set aside when pro se litigant filed answer on same day default was entered).

      . Hertz, 704 P.2d at 771; Melendrez, 941 P.2d at 1258 (applying factors to default judgment).

      . Wright, 964 P.2d at 445; Melendrez, 941 P.2d at 1258.

      . Melendrez, 941 P.2d at 1258.

      . Hertz, 704 P.2d at 772.

      . Id.

      . 964 P.2d at 445 (finding meritorious defense in a child support case where defendant claimed that he was not the real father and presented evidence of blood type)}.

      . See Melendrez, 941 P.2d at 1258 (finding that in an action to quiet title, claim that plaintiff had no right to the property and that defendant was owed more than the default judgment provided was sufficient even though presented in briefing which left "much to be desired"); Gregor, 612 P.2d at 1010 (finding that in response to a claim of fraudulent possession of land, it was sufficient that the defendant's answer alleged that she had paid $10,000 for the property); Sanuita v. Hedberg, 404 P.2d 647, 651 (Alaska 1965) (finding meritorious defense where defendant denied plaintiff's assertions and asserted defenses of qualified privilege and truth to claim of libel).

      . See State v. Cook, 3PA-99-832 Cr. (Alaska Super., October 27, 2000).

      . See Howarth v. State, Public Defender Agency, 925 P.2d 1330, 1334-35 (Alaska 1996) ("[A] defendant convicted of a felony ... should not be allowed to claim in court in subsequent litigation that the elements essential to his conviction did not.exist.").

      . Hertz, 704 P.2d at 772; see also Melendrez, 941 P.2d at 1258.

      . 704 P.2d at 773.

      . See Melendrez, 941 P.2d at 1258 (finding defendant culpable for default because he attempted to avoid service).

      . See id.; Hertz, 704 P.2d at 773.

      . Hertz, 704 P.2d at 773 (citation and quotations marks omitted).

      . AS 22.20.022(a) provides:
      If a party or a party's attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath the belief that a fair and impartial trial cannot be obtained, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge....

      . See Staso v. State, Dep't of Transp., 895 P.2d 988, 990 (Alaska 1995).

      . Alaska R. Civ. P. 42(c)(1).

      . Alaska R. Civ. P. 42(c)(3) (emphasis added).

      . The superior court's own ruling implies that the second part of the rule applies. The superior court notes that Cook's challenge would be timely if filed within five days "of appearing or filing a pleading in the action."

      . See Karen L. v. Dep't of Health & Soc. Servs., Div. of Family & Youth Servs., 953 P.2d 871, 879-80 (Alaska 1998) (permitting peremptory challenge filed by state along with its initial appearance almost three weeks after it had been served with summons, because second part of Rule 42(c)(3) applied as state had been served after judge had been assigned).

      . There are no Alaska cases on point with regard to whether a peremptory challenge can be raised after a default, and cases from other jurisdictions are only minimally instructive. See State ex rel. Frohnmayer v. Low, 105 Or.App. 357, 804 P.2d 1217, 1218-19 (1991) (holding that challenge to judge after entry of default was not timely under Oregon rules which required affidavit be filed prior to final determination of cause or prior to ruling on petition or motion); Olsten Staffing Servs., Inc. v. D.A. Stinger Servs., Inc., 921 P.2d 596, 600-01 (Wyo.1996) (holding that challenge to judge is permissible after entry of default, but might not extend to default judgment)}.

      . 895 P.2d 988 (Alaska 1995).

      . Id. at 992.

      . Id.

      . See generally Mundt v. Northwest Explorations, Inc., 963 P.2d 265, 270 (Alaska 1998) ("[Northwest's] recourse is to show the new judge that [the challenged judge] has already decided any issues that Mundt tries to reopen. The court can readily dismiss any attempt to relitigate issues as barred by the law of the case. ...").

      . It is also possible that a defendant could move under Civil Rule 77(k) to have the new judge reconsider the previous judge's decision to grant the default judgment. However, such a maneuver would not easily provide a favorable result for the defendant. It is likely that the judge assigned following a peremptory disqualification would be reluctant to reconsider the decision to grant a default judgment by another judge, especially when there are specific provisions under which such a judgment can be set aside in Rule 60(b).

      . Alaska R. Civ. P. 55(e); Wright v. Shorten, 964 P.2d 441, 445 (Alaska 1998).

      ." Alaska R. Civ. P. 60(b).

      . Hertz v. Berzanske, 704 P.2d 767, 771 (Alaska 1985) (directing a court to consider the culpability of defendant's conduct), superceded by statute on other grounds as noted in McConkey v. Hart, 930 P.2d 402, 407 n. 4 (Alaska 1996).

      . 941 P.2d 1254 (Alaska 1997).

      . Id. at 1258.

      . Id.

      . See Channel Flying, Inc. v. Bernhardt, 451 P.2d 570, 574 (Alaska 1969) ("In short, when a proper affidavit has been timely filed, the judge involved is without power or jurisdiction to take any further action in the proceeding."); see also McCracken v. State, 521 P.2d 499, 510 (Alaska 1974); Pope v. State, 478 P.2d 801, 804 (Alaska 1970).

      . 451 P.2d 570 (Alaska 1969).

      21. Id. at 574.

      . For example, in Hartford Accident & Indem. Co. v. State for Use and Benefit of Consol. Constr. Co., 498 P.2d 274 (Alaska 1972), we stated that "[ulnder AS 22.20.022 the filing of a timely affidavit in compliance with the statute operates to bar the judge from proceeding any further in the matter other than transferring the case to another judge." Id. at 275. We concluded that "if petitioners' affidavit was timely filed, the judge involved is without power or jurisdiction to proceed further with the action." Id. In Dean v. Firor, 681 P.2d 321 (Alaska 1984), we stated that [tlhe effect of a peremptory disqualification of a master is that the master loses the capacity to proceed further." Id. at 325. See also Morgan v. State, 635 P.2d 472, 478-79 (Alaska 1981); Pope, 478 P.2d at 804.

      . Cf. Gardner v. State, 702 P.2d 250, 251 n. 4 (Alaska App.1985) (observing that a literal interpretation of the criminal rule providing for peremptory challenges is "in keeping with the general principle that disfavors interpretations resulting in findings of waiver").

      . Even if Cook's peremptory challenge were untimely, I would be inclined to hold that Rule 42 should be relaxed, and the untimeliness excused, upon a finding of grounds for relief under Rule 60(b). Cf. Riley v. State, 608 P.2d 27, 29 (Alaska 1980) (holding, in the criminal context, that [tlhe right to peremptorily challenge a judge is sufficiently important so that it should not be lost by inaction before there is an opportunity to confer with an attorney").

      . 963 P.2d 265, 268 (Alaska 1998) (holding that nothing in AS 22.20.022 or Rule 42(c) prevents an intervenor who enters a case after an initial judgment and appeal from exercising the right to peremptorily change judges").

      . Alaska Civil Rule 42(c)(3) states:
      Timeliness. Failure to file a timely notice precludes change of judge as a matter of right. Notice of change of judge is timely if filed before the commencement of trial and within five days after notice that the case has been assigned to a specific judge. Where a party has been served or enters an action after the case has been assigned to a specific judge, a notice of change of judge shall also be timely if filed by the party before the commencement of trial and within five days after a party appears or files a pleading in the action.

      . A default judgment is a final judgment that terminates litigation and decides a dispute. Hertz v. Berzanske, 704 P.2d 767, 770 (Alaska 1985). See also Calhoun v. Greening, 636 P.2d 69, 72 (Alaska 1981) (holding that a default judgment and subsequent motion to set aside constitute a final judgment for purposes of res judica-ta).

      . Alaska Civil Rule 55(c)(1) provides in part:
      If, in order to enable the court to enter a judgment or to carry it into effect, it is necessary to take an account or to determine the amount of damages or to establish the truth of any averment by evidence or to make an investigation of any other matter, the court may conduct such hearings or order such references as it deems necessary and proper.

      . Hall v. Morozewych, 686 P.2d 708, 711-12 Alaska 1984).