author: FABE, Justice.

text:
    Stuart Aaron HALLAM, Appellant, v. ALASKA AIRLINES, INC., Appellee.
    No. S-10198.
    Supreme Court of Alaska.
    May 21, 2004.
    Rehearing Denied Aug. 10, 2004.

      Stuart Aaron Hallam, pro se.
    James N. Leik and Helena L. Hall, Perkins Coie LLP, Anchorage, and Douglas S. Parker, Preston Gates & Ellis, Anchorage, for Appellee.
    Before: BRYNER, Chief Justice, MATTHEWS, and FABE, Justices.
   OPINION

FABE, Justice.

I. INTRODUCTION

This appeal is the culmination of a series of customer service disputes between Stuart Hallam and Alaska Airlines. Hallam sued the airline, alleging that by failing to honor various terms of his plane tickets, it breached a series of contracts. He also alleged, on behalf of a class of passengers, that the airline’s standard ticket terms and policies violate Alaska’s Unfair Trade Practices Act and state antitrust law. After a bench trial, the superior court ruled in favor of Alaska Airlines on all counts, and Hallam appeals. Most of his arguments on appeal challenge the superior court’s factual findings, which we conclude were not clearly erroneous. We therefore affirm the superior court.

II. FACTS AND PROCEEDINGS

A. Factual History

Hallam’s claims are based on several transactions he had with Alaska Airlines. The bulk of his appeal is devoted to challenging the factual findings supporting the superior court’s judgment on these claims. We outline the incidents here and describe them in greater detail as we examine each in Parts III.B-F below.

First, Hallam claims that he purchased from Alaska Airlines’s website a ticket labeled “unrestricted” that turned out to be restricted. Believing that he could change the ticket without incurring a fee, he attempted to change his travel dates, but was told that he would be charged. The fee was later waived, but Hallam chose not to use the ticket. In the second incident, Hallam bought a ticket to fly to Puerto Yallarta. Two charges, for differing amounts, appeared on his credit card bills. The greater of the two charges was credited back to him. Later, Hallam was informed that the charge was being reinstated, but that he could continue to contest it. In the third incident, Hallam attempted to use a Permanent Fund Dividend (PFD) voucher to purchase a ticket to fly from Seattle to Juneau. At the Seattle airport, Hallam was informed that his voucher had expired and that he would have to purchase his ticket some other way. Fourth, Hallam claimed below that he was denied a first class seat for which he had a reserved ticket. He therefore chose not to take the flight; he claimed that the denial of the first class seat was a breach. Finally, Hallam purchased a pair of tickets from the airline’s website. He claims that he was charged an amount much greater than what appeared on the screen, and called the airline to complain. The airline refunded all but nine dollars of the alleged overcharge.

B. Procedural History

Hallam’s Second Amended Complaint was filed January 18, 2000. He brought a series of contract and conversion claims based on the incidents described above and defamation claims arising from one of his more energetic encounters with Alaska Airlines personnel, along with both class and individual claims under the Alaska Unfair Trade Practices Act and state antitrust law. On March 7, 2000, the superior court dismissed the unfair trade practices and antitrust claims on the ground that Hallam, as a pro se litigant, could not represent the class. The complex procedural history of these claims is laid out in Part F below. In short, Hallam moved for reconsideration of the dismissal of his individual claims. When reconsideration was denied, he moved to amend his complaint to reinstate his individual unfair trade practices and antitrust claims. The superior court eventually denied this motion in November 2000, citing federal preemption under the Airline Deregulation Act as grounds for rejecting the amendment.

Meanwhile, discovery closed on May 1, 2000 and in June and July the parties filed cross-motions for summary judgment. Upon receiving Alaska Airlines’s summary judgment memorandum, Hallam moved on August 22 to reopen discovery and for a continuance under Alaska Rule of Civil Procedure 56(f), arguing that the airline’s motion evidenced “both document tampering and perjury.” After the superior court gave Hallam a chance to explain what he was looking for, it denied the motion. The superior court then granted Alaska Airlines summary judgment on some of the defamation claims, based on statute of limitations and privilege grounds, and on Hallam’s failure to present evidence that one of the allegedly defamatory statements was published. On all other claims, the superior court declined to enter summary judgment. The case was tried to the bench before Judge Patricia A. Collins, who had handled the case throughout. In late November, and in March 2001 the superior court entered findings of fact and conclusions of law, finding for Alaska Airlines on all claims. Hallam moved for reconsideration, and the motion was denied. Final judgment was entered in April 2001, at which time the superior court awarded fees and costs to Alaska Airlines. Hallam made several further motions for reconsideration or relief from the judgment, including one asking Judge Collins to recuse herself “if the court cannot be unbiased and impartial.” All were denied.

Hallam appeals to this court challenging: the superior court’s factual findings on claims concerning the incidents described above; the superior court’s dismissal of his individual Unfair Trade Practices Act and antitrust claims and its denial of his motion to amend his complaint to add those claims after they were dismissed; the superior court’s refusal to reopen discovery; Judge Collins’s failure to recuse herself; and the superior court’s award of costs and fees to Alaska Airlines.

III. DISCUSSION

A. Standards of Review

This court “review[s] the trial court’s factual findings ... under a ‘clearly erroneous’ standard. A finding is clearly erroneous if it leaves this court with a definite and firm conviction on the entire record that a mistake has been made.” A motion to dismiss is reviewed de novo. The denial of a motion for leave to amend a complaint is reviewed for abuse of discretion. A motion to reopen discovery is also reviewed for abuse of discretion, as is the denial of a Rule 56(f) motion. “The refusal by a judge to be recused from a case is reviewed for an abuse of discretion.” In each of these instances, the court “will find an abuse of discretion when we are left with a definite and firm conviction after reviewing the whole record that the trial court erred in its ruling.” Finally, “[a]n award of attorney’s fees will be overturned only upon a showing of abuse of discretion or a showing that the award is manifestly unreasonable'.”

B. The Superior Court Properly Entered Judgment in Favor of Alaska Airlines on Hallam’s Claim Relating to “Unrestricted Tickets.”

Hallam claims that he purchased a ticket labeled “unrestricted” or “U,” which Alaska Airlines held out as requiring no fee to change the dates of travel. The airline, he alleges, breached a contract with him when it refused to change the dates without a fee. The superior court found for the airline because Hallam “ha[d] not been denied unrestricted travel to date and, in fact, has changed the tickets without charge.” He therefore could not show any breach.

Alaska Airlines argues that Hallam has not shown that the “U” designation actually means that the ticket may be changed without a fee, a claim Hallam goes to great lengths to dispute. The superior court’s finding on breach, however, is dispositive — if Hallam cannot show a breach of the terms as he describes them, his claim must fail. And the court’s finding that there was no breach of those’ terms is fully supported by the evidence. The record contains a Post Departure Information' report (PDI), showing all of the activity concerning the ticket in question. The PDI shows that the change fee to which Hallam objects was waived at least once. Although Hallam testified at trial that his attempts to change the ticket or get a refund were met by demands that he pay a fee, the superior court found that his testimony was not credible. Because “it is the function of the trial court, not of this court, to judge witnesses’ credibility,” this court must give “due regard” to the superior court’s credibility judgments. Hallam offers no documentation of any failed attempts to change the ticket without a fee, nor any other reason to believe that any contract term was breached. The superior court’s finding that there was no breach of contract was not clearly erroneous and we affirm its judgment in favor of Alaska Airlines on this claim.

C. The Superior Court Properly Entered Judgment in Favor of Alaska Airlines on Hallam’s Claim Relating to His Ticket to Puerto Vallarta.

Hallam claims that he was charged more than once for a single ticket to Puerto Vallarta that he purchased in August 1998. The cause of the double charge remains unexplained, but that is immaterial. The superior court found that “Hallam suffered no damages as a result” of the incident. The court therefore concluded that “no award of damages for this claim is appropriate.” These findings are well supported by the evidence.

Hallam’s credit card was billed $160.25 for the ticket on September 22. It was charged again, for $190.32, on February 20. The PDI for the ticket indicates that these charges are for the same ticket, as the ticket numbers associated with the two transactions on the credit card statements both appear on the PDI. On October 5, 1998, Hallam wrote to the credit card company to dispute the $190 charge. His credit card was credited for that amount on October 20. An August 1999 letter from the credit card company says that Alaska Airlines asked to reinstate the $190 charge. The letter gives Hallam an opportunity to continue disputing the charge, but there is no evidence of how he responded. By Hallam’s own admission, there is similarly no evidence showing that the charge ever actually reappeared on a bill. At trial, Hallam was unable to say whether the charge ever reappeared on his credit card bill and if so, whether he paid it or continued to contest it. He therefore did not prove that the contract was ever breached. We affirm the superior court’s dismissal of this claim.

D. The Superior Court Properly Entered Judgment in Favor of Alaska Airlines on Hallam’s Claim Relating to His Attempt To Use a PFD Ticket in Seattle.

Hallam claims that Alaska Airlines breached another contract with him in March 1999 when it refused to honor a ticket from Seattle to San Francisco that he purchased with a Permanent Fund Dividend voucher. The airline acknowledges that it prevented Hallam from boarding the flight, but defends its action by claiming that the ticket had been purchased with a 1998 voucher and was good only for travel through December 15, 1998. The superior court found that the ticket had expired, and that there was therefore no breach of contract.

Hallam makes much of the fact that an Alaska Airlines employee said in an affidavit that he attempted to board the flight on March 9 while strong evidence argues that it happened on March 8. The exact date of the incident is immaterial. If the ticket’s expiration date was December 15, 1998, there was no breach. The superior court’s finding that the ticket had expired is well supported by the evidence.

Hallam points to a notation on the PDI for the disputed ticket, which states that it is good for travel through December 15, 1999. The airline explains this through the testimony of employee Jeanne Hightower, who described how that notation would have been generated. She explained that it was placed in the ticket’s record because he made a change to the ticket in 1999, and the “res[er-vation] agent has no idea what tickets he was actually using.” Once he got to the airport, the ticket agent would have tried to confirm that it was a current ticket, and found that it had expired.

Faced with the conflicting testimony, the trial court disbelieved Hallam’s assertion that he thought the ticket was still good in March 1999. The court held that he “failed to prove that it was more likely than not that he purchased a valid ticket for the travel on the date in question.” “In a bench trial, the judge is the trier of fact, determining the credibility of witnesses and deciding how to weigh the evidence presented.” Hallam gives us no reason to overturn the trial court’s weighing of the evidence. We therefore affirm the superior court’s judgment for Alaska Airlines on this claim.

E. The Superior Court Properly Entered Judgment in Favor of Alaska Airlines on the “Bumping” Claim.

Hallam claimed below that a contract was breached when the airline refused on November 29, 1997 to seat him in first class, despite his reservation. He does not challenge any of the findings underlying the superior court’s conclusion that he “failed to prove it is more likely than not he was ever promised a First Class seat on the flight he alleges.” These findings are primarily credibility determinations — the court found that he “was not credible in his claim of being denied First Class passage on the flight of his choosing. Rather, it is more likely that Hallam voluntarily changed his travel plans....” We find no clear error in this determination and affirm the superior court’s judgment in favor of Alaska Airlines on this claim.

F. The Superior Court Properly Entered Judgment in Favor of Alaska Airlines on Hallam’s Claim Relating to the Purported Overcharge for Tickets He Bought from the Airline’s Website.

Hallam claims that he was overcharged for tickets he purchased through the Alaska Airlines website in June 1997. He claims that the website advertised a total ticket price of $180 but his credit card was charged $697 for it. Alaska Airlines refunded all but nine dollars of the difference. He has sued for the nine dollars.

The superior court held that Hallam had not proved that the charge on his credit card was a breach because he “failed to prove he was promised a fare at the [lower] rate he asserts.” The court based this conclusion on several factual findings, most of which Hal-lam challenges. Most importantly, the court did not believe Hallam’s testimony. “Hal-lam,” the court found, “was not particularly credible in his claim that he actually reserved or purchased a ticket for the price he claimed.” The superior court also relied in part on the testimony of an Alaska Airlines customer service employee who testified that her internal investigation found no evidence “confirming that ... he reserved at [the lower] fare or that Alaska Airlines even offered this fare.” The employee also testified that Hallam’s was the only complaint of this sort that she heard. Finally, the court noted that while federal law requires the publication of airline prices, the official publication had no record of the price Hallam claimed.

In evaluating Hallam’s testimony, the court relied on his failure “to present documentation of any ticket(s) or ticket confirmation- of any travel reserved or purchased at the alleged fare.” The court found that the documentation Hallam did produce was “a letter that he drafted that purported to duplicate a web fare advertisement for travel at the lower rate.” Hallam asserts that the document in the record is in fact a printout of the web page itself; Alaska Airlines makes no claim as to whether the document is authentic or not. The authenticity of the document, however, is immaterial. Even if it is authentic, it does not establish Hallam’s claim. The document states: “To proceed in holding a reservation or purchasing Instant Travel, click ‘Continue.’” This shows only that Hallam saw the lower price. It does not establish decisively that he purchased a ticket at the lower price.

Hallam points out that the customer service employee was at the top of a long chain and that all complaints would not necessarily be communicated to her. The employee did, however, testify that she “would be surprised if [she] didn’t hear about” a problem like his. The superior court was entitled to credit the witness.

Hallam attacks the superior court’s reliance on the fact that the official publication for airline fares had no record of the fare Hallam claimed to have purchased. He compares the prices offered on the website on a given day with those published in the official publication for airline fares on the same day and shows that the official publication does not always match the website fares. This casts some doubt on the weight the superior court should have given this evidence, but is insufficient to undermine the superior court’s conclusion that Hallam did not purchase this fare.

Finally, Hallam points to the PDI for this ticket, which appears to say that he received a refund due to an incorrect Internet fare. This may suggest that someone at the airline at one time thought that Hallam had been overcharged. The superior court apparently found that other evidence outweighed it, and decided that Hallam had not shown that he bought the ticket at the lower fare. “We ordinarily will not disturb findings of fact made upon conflicting evidence.” In view of all the evidence and the superior court’s findings, we are not left “with a definite and firm conviction on the entire record that a mistake has been made.” The superior court’s findings are not clearly erroneous and we therefore affirm its judgment in favor of Alaska Airlines on this claim.

G. The Superior Court Properly Denied Hallam’s Motion for Further Time Under Rule 56(f).

After Alaska Airlines filed its motion for summary judgment, Hallam moved to “reopen” discovery. The court denied his motion. Hallam now appeals that denial. He treats the superior court’s action as the denial of a motion under Alaska Rule of Civil Procedure 56(f), claiming that he had the right to conduct discovery to oppose summary judgment. The rule “allows a party opposing summary judgment to seek additional time to gather and submit evidence to justify the party’s opposition.” Specifically, when .the party opposing summary judgment demonstrates to the court’s satisfaction that the party “cannot for reasons stated present by affidavit facts essential to justify the party’s opposition,” the court may choose one of two remedies — it may decline to grant summary judgment or it may grant a continuance. Although the superior court denied Hallam’s Rule 56(f) motion, it did not enter summary judgment against him on any of the ticketing claims for which he claims he needed further discovery. He therefore was not harmed by the denial of his Rule 56(f) motion.

Hallam further claims that discovery should have been reopened because Alaska Airlines failed to produce documents that they were required to produce in the initial discovery period. Deciding whether or not to reopen discovery is within the trial court’s discretion, and is subject to harmless error review. Hallam only identifies two of the “missing documents,” neither of which makes a case for reopening discovery.

The first concerns the Puerto Vallarta ticket. In its summary judgment motion, the airline suggested that one of the charges was for a ticket issued to Hallam himself; at a deposition, an Alaska Airlines attorney suggested the extra charge was for a ticket issued to one Anna Salyer. Hallam wants the airline to produce documentation for these theories. As described above, however, the question of how the extra charges came to be on Hallam’s credit card is immaterial because Hallam never proved he paid them. Any error associated with this failure is harmless.

The other example of missing documents Hallam provides is the documentation surrounding the expired PFD ticket: if the airline claims he exchanged a 1998 voucher for the original ticket, he argues, it should have produced the voucher. Hallam knew that the voucher would be subject to proof long before Alaska Airlines filed its summary judgment motion. The voucher was, in fact, part of his theory of the case. He could have specifically requested the documentation or made a motion to compel during discovery. The superior court was entirely justified in determining that Hallam’s requests following the summary judgment motion “involve[d] discovery that could have (and should have) been made long ago.” The court’s refusal to reopen discovery at that time was not an abuse of discretion.

H. The Superior Court Properly Dismissed Hallam’s Individual Claims Brought Under the Alaska Unfair Trade Practices Act and Alaska Antitrust Law and Properly Denied Hallam Leave To Amend His Complaint To Include Them.

Hallam’s complaint includes both individual and class claims based on alleged violations of state antitrust law and the Unfair Trade Practices Act. The superior court dismissed these claims on the ground that Hal-lam, as a pro se litigant, could not represent the class; it held that the question whether the unfair trade practices claims are preempted by federal law was mooted by its class-representation decision. Hallam moved for reconsideration in order to reinstate the individual aspect of these claims. The court denied his motion without explanation. The court then noted that “[njeither Mr. Hallam’s motion to amend nor the proposed amended complaint make clear how the actions [Hal-lam alleged] violate the cited [statutory] provisions.” This order gave Hallam five days to submit a statement explaining how the conduct alleged in his contract and conversion claims violated the cited statutes. His response, although it contains some language suggesting he may have abandoned his motion to amend, detailed the actions he alleged violated the statutes. The superior court denied the motion for leave to amend “for the reasons set forth in [its initial ruling], the opposition memorandum by Alaska Airlines and the summary judgment order entered on this date as it relates to preemption of state statutory consumer protection claims related to airline services.” Hallam appeals both the dismissal of the individual claims and the superior court’s denial of leave to amend the complaint to add them.

“Even when the court concludes that no portion of the action is maintainable as a class action, the individual plaintiff[] may continúe it on an individual basis....” Hallam claims that he should have been allowed to amend his complaint to reinstate the individual claims after they were dismissed along with the class claims. The superior court correctly denied his motion for leave to amend because amendment would be futile as the claims were clearly preempted by the federal Airline Deregulation Act. “[I]f the proposed change clearly is'frivolous or advances a claim or defense that is legally insufficient on its facé, the court may deny leave to amend.”'

The federal statute’s preemption provision provides that “a State ... may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of an air carrier.” The provision is “broadly preemptive,” reaching any state laws or enforcement actions “having a connection ■with or reference to airline rates, routes, or services.” In American Airlines v. Wolens, the United States Supreme Court held that the Airline Deregulation Act preempted a claim under the Illinois analog to the Unfair Trade Practices Act challenging an airline’s changes to its frequent-flier program. Wolens requires an analysis of the particular claims in question. Here, Hallam’s claims plainly relate to a price, route, or service of an air carrier. He challenges the airline’s policy of classifying tickets as refundable or non-refundable; he challenges the airline’s policy of overbooking flights; and he challenges the terms included in all tickets, relating to timetables, routes, departure and arrival times, and fares. His Unfair Trade Practices Act claims are preempted and the superior court properly denied him leave to add them.

Hallam’s antitrust claims are similarly preempted. He argues under AS 45.50.562 and AS 45.50.564 that Alaska Airlines “has attempted to contract, conspire, and combine” with other airlines “to monopolize air travel in this region” and “restraint ] free trade.” He does not describe how this restraint of trade and monopoly manifest themselves, despite the superior court’s order requiring him to state the facts underlay-ing the claims. It is hard to imagine that they do not relate to airline rates, routes, or services. We assume that these claims resemble those in the rest of his complaint, all of which involve the airline’s ticketing, ticket pricing, or boarding procedures and would be preempted if made the subject of an antitrust charge. Hallam waived his opportunity to convince the superior court otherwise when he failed to take the opportunity for clarification offered to him by the court. The superi- or court properly held his antitrust claims were preempted and refused to grant him leave to amend his complaint.

I. The Superior Court Properly Refused Recusal.

Hallam asserts that Judge Collins should have recused herself because “[t]he evidence on record is overwhelming in showing a bias” on her part. He also refers, without documentation, to “statements” Judge Collins made “at the pretrial conference regarding her failure to administratively transfer this case when she dismissed the class claims, as a result of the dollar value involved.” He finally refers to an incident involving another, unrelated case before Judge Collins, Hallam v. Alaska Travel Adventures, in which, he alleges, “Judge Collins went out of her way to interfere with production of the electronic record in th[at] case.”

“Recusal was never intended to enable a discontented litigant to oust a judge because of adverse rulings made.” Judge Collins gave Hallam many chances to clarify motions and prove his case. The fact that he did not prove it does not show bias on her part. His claim is “little more than an expression of [his] dissatisfaction with the superior court’s ruling[s].” There was no abuse of discretion in Judge Collins’s decision to remain on the case.

J. The Superior Court Did Not Abuse Its Discretion in Awarding Fees and Costs to Alaska Airlines.

Hallam makes a cursory argument that Alaska Airlines should not have been awarded fees and costs because “they failed to respond honestly to requests for admissions.” He identifies no specific failures or dishonesty. Even giving this argument the liberal reading due pro se plaintiffs, we find no abuse of discretion.

IV. CONCLUSION

For the foregoing reasons, the judgment of the superior court is AFFIRMED in its entirety.

EASTAUGH and CARPENETI, Justices, not participating.

      . AS 45.50.471.

      . AS 45.50.562, 564.

      . 49 U.S.C. § 41713.

      . City of Hydaburg v. Hydaburg Co-op. Ass’n, 858 P.2d 1131, 1135 (Alaska 1993) (quotation marks omitted).

      . McElroy v. Kennedy, 74 P.3d 903, 906 (Alaska 2003).

      . Taylor v. Johnston, 985 P.2d 460, 463 (Alaska 1999).

      . Id.

        .Gamble v. Northstore Partnership, 907 P.2d 477, 485 (Alaska 1995).

      . Jourdan v. Nationsbanc Mortgage Corp., 42 P.3d 1072, 1082 (Alaska 2002); see also AS 22.20.020.

      . Taylor, 985 P.2d at 463 (quotation marks omitted).

      . Feichtinger v. Conant, 893 P.2d 1266, 1268 (Alaska 1995).

      . Hallam pled several of his claims as both contract and conversion claims, but only discusses them before this court in contract terms.

      . Parker v. Northern Mixing Co., 756 P.2d 881, 892 (Alaska 1988).

      . Barios v. Brooks Range Supply, Inc., 26 P.3d 1082, 1085 (Alaska 2001).

      . Nor is there any indication that any breach is forthcoming.

      . The evidence of this credit is what appears to be a letter from the credit card company or an intermediary to Alaska Airlines. There is no credit card bill showing the credit, but Hallam does not on appeal dispute that the amount was credited.

      . Wasserman v. Bartholomew, 38 P.3d 1162, 1166-67 (Alaska 2002).

      . See id.

      . In re Friedman, 23 P.3d 620, 625 (Alaska 2001).

      . City of Hydaburg, 858 P.2d at 1135 (quotation marks omitted).

      . Gamble v. Northstore Partnership, 907 P.2d 477, 484-85 (Alaska 1995).

      . Hallam also raises the airline’s failure to produce certain documents as a distinct point on appeal. He did not, however, make any motion before the superior court to compel production of these "missing” documents. Without a motion to compel, there is no decision for this court to review. We therefore consider this argument only in the context of his motion to reopen discovery.

      . Taylor v. Johnston, 985 P.2d 460, 466 (Alaska 1999).

      . See Walden v. Dep't of Transp., State, 27 P.3d 297, 307-08 (Alaska 2001).

      . 7B Wright, Miller & Kane, Federal Practice & Procedure § 1785, at 117; see also Mead v. Parker, 464 F.2d 1108, 1112 (9th Cir.1972) ("Nothing in Rule 23, F.R.Civ.P. contemplates that an action shall be dismissed if the court determines that it cannot be maintained as a class action. In all actions, whether determined to be class actions or not, there are individuals who bring the action asserting claims for relief in their own behalf.”).

      . 49 U.S.C. § 41713.

      . Taylor, 985 P.2d at 464 (quoting 6 Wright, Miller & Kane, Federal Practice & Procedure § 1487 (2d ed.1990)).

      . 49 U.S.C. § 41713(b)(1).

      . American Airlines, Inc. v. Wolens, 513 U.S. 219, 225, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995); see also Morales v. Trans World Airlines, Inc., 504 U.S. 374, 383-84, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992) (analogizing Airline Deregulation Act preemption to "broad scope” and "expansive sweep” of preemption under ERISA, 29 U.S.C. § 1144(a)).

      . Morales, 504 U.S. at 384, 112 S.Ct. 2031 (citation omitted).

      . 513 U.S. at 226-28, 115 S.Ct. 817.

      . Wasserman v. Bartholomew, 38 P.3d 1162, 1171 (Alaska 2002) (citation omitted).

      . Lacher v. Lacher, 993 P.2d 413, 421 (Alaska 1999).


source: Caselaw Access Project

author: STEWART, Judge.

license: Public Domain

text:
    Sonja ALVAREZ, Appellant, v. KETCHIKAN GATEWAY BOROUGH, Appellee.
    No. A-8603.
    Court of Appeals of Alaska.
    April 30, 2004.
    Rehearing Denied June 18, 2004.

      Sonja Alvarez, pro se, for Appellant.
    Scott A. Brandb-Erichsen, Borough Attorney, Ketchikan Gateway Borough, Ketchikan, for Appellee.
    Before: COATS, Chief Judge, and MANNHEIMER and STEWART, Judges.
   OPINION

STEWART, Judge.

Sonja Alvarez was convicted of violating two Ketchikan Gateway Borough ordinances for permitting her dog to run loose and bite a pedestrian, Larry Johnson. She was also convicted of failing to report this dog bite to the Borough Animal Protection Department.

After a bench trial, Superior Court Judge Michael A. Thompson, sitting in the district court, found that Alvarez had not been negligent in connection with her dog running loose and biting Johnson. Nevertheless, Judge Thompson convicted Alvarez of violating the two Borough ordinances, ruling that they were strict liability offenses and that no proof of negligence was required.

Alvarez argues that the court erred in ruling that these violations were strict liability offenses. We agree, and therefore reverse these two convictions based on Judge Thompson’s finding that Alvarez was not negligent.

Alvarez also argues that her rights to a speedy trial and equal protection of the laws were violated. We find no merit to these claims. We therefore affirm Alvarez’s conviction for failing to report the dog bite promptly to the Animal Protection Department.

Facts and 'proceedings

On August 29, 2001, at about 8 p.m., Johnson was walking home along Nadeau Street in Ketchikan when Alvarez’s German Shepherd, Carmen, growled at Johnson as he passed by Alvarez’s house. Carmen lunged at Johnson, causing Johnson to jump from the sidewalk to the street, where Carmen bit him on the leg, tearing his pants.

A neighbor, Leonard Ward, yelled at Carmen, hit the dog with his baseball cap, and chased it off. Alvarez subsequently came out of her house, called the dog, and put it in the house.

Alvarez apologized to Johnson and offered to pay for his medical bills and replace his torn sweat pants. Johnson went to the hospital emergency room for treatment. The staff at the hospital cleaned and dressed the wound and gave Johnson a shot. The wound did not require stitches.

Alvarez was unaware at the time of this incident that her dog was loose in the yard. However, she knew she was required to contact the Animal Protection Department to report the dog bite, but did not do so. She apparently assumed, correctly, that the hospital would notify Animal Protection.

At the hospital, an Animal Protection officer examined and photographed Johnson’s wound and took his statement. The officer then tried unsuccessfully for two days to contact Alvarez to ensure that her dog was quarantined. Once the officer reached Alvarez, she cooperated with the quarantine.

The Borough ultimately charged Alvarez with three minor offenses: failure to report a dog bite, failure to properly restrain an animal, and allowing an animal to molest (in this case, bite) a person. Alvarez was convicted of these offenses at a bench trial before Judge Thompson and fined $250, with $150 suspended, for a total fine of $100. She was also ordered to pay $88.21 in restitution to Johnson for his medical expenses.

Alvarez appeals her convictions.

Did the district court err by convicting Alvarez even though the court found that she was not negligent ?

Alvarez argues that Judge Thompson erred in concluding that count II (the leash law violation) and count III (the dog bite violation) were strict liability offenses. She argues that Judge Thompson should have acquitted her of these offenses after he found that the violations were not due to her negligence.

Judge Thompson found that Alvarez had not negligently allowed her dog to escape the house and bite Johnson. That is, he found that Carmen was, as far as Alvarez knew, properly restrained and unable to escape from the curtilage of Alvarez’s home. Nevertheless, the court convicted Alvarez of these violations after ruling that they were strict liability -offenses.

The Ketchikan Gateway Borough leash law, KGB § 20.70.005, provides that a person who owns or is responsible for a dog “shall not permit [the] dog to be at large” in certain specified areas. The anti-molestation ordinance, KGB § 20.80.010, provides that a person who owns or is responsible for an animal “shall [not] permit or allow such animal ... [t]o molest a person.” The Borough argues that these are strict liability offenses because they do not specify a culpable mental state. Alvarez argues that the verbs “permit” and “allow” imply a culpable mental state of at least negligence.

We agree with Alvarez. The verbs “permit” and “allow” are commonly understood to imply some volition on the part of the actor. And other jurisdictions having similar laws— laws providing that the owner of an animal shall not “permit,” “allow” or “suffer” the animal to run at large — require proof of at least negligence.

The Borough has offered no persuasive legal authority or legislative history that convinces us that the drafters of the Ketchikan ordinances intended to depart from this well-settled rule. We therefore reverse Alvarez’s convictions on count II and count III based on Judge Thompson’s finding that the violations were not caused by Alvarez’s negligence.

Was Alvarez’s right to a speedy trial violated?

Alvarez next argues that her statutory and constitutional rights to a speedy trial were violated. We first address Alvarez’s statutory speedy trial claim.

Alaska Criminal Rule 45(b) requires a defendant to be brought to trial within 120 days. The critical dispute in Alvarez’s case is when that 120-day period commenced. Alvarez argues, relying on Alaska Criminal Rule 45(c)(6), that the period began to run on October 3, 2001, when she demanded a jury trial. The Ketchikan Gateway Borough argues, relying on Criminal Rule 45(c)(2), that the clock started to run on February 25, 2002, when the Borough’s second complaint was served on Alvarez (as explained below, the Borough’s first complaint was dismissed on Alvarez’s motion).

The relevant procedural history

On September 5, 2001, the Borough filed a civil complaint against Alvarez, seeking civil penalties for her violations of the three Borough ordinances. Alvarez moved to dismiss the case, arguing that these violations were criminal and should be charged as “minor offenses.” The Borough did not object to reclassifying the case as criminal. On October 17, 2001, District Court Judge Kevin G. Miller dismissed the civil case and ordered that the case be reopened as charging the violation of minor offenses.

Between October 24, 2001, and December 14, 2001, Alvarez filed three motions to dismiss, alleging: (1) that the Ketchikan Borough had no power to enact the animal control ordinances she was charged with violating; (2) that the Borough’s complaint violated Alaska Criminal Rule 3(a) because it was not signed by a judge or magistrate; and (3) that she had been denied her right to equal protection of the laws because her prosecution was racially motivated. On January 4, 2002, Superior Court Judge Trevor N. Stephens, sitting in the district court, denied Alvarez’s motion alleging that the Borough had no power to enact the animal control ordinances at issue. However, several days later, on January 10, 2002, he granted Alvarez’s motion alleging that the complaint did not comply with Criminal Rule 3(a) and dismissed the ease without prejudice. Judge Stephens invited Alvarez to resurrect her motions to dismiss if the Borough re-filed its complaint. Twenty days later, on January 30, 2002, the Borough did re-file its complaint, but Alvarez was not served with a summons on that complaint until February 25, 2002.

On March 12, 2002, Alvarez filed three motions renewing her claims that the Borough had acted outside its authority in enacting the ordinances she was charged with violating. She also re-filed her still undecided motion to dismiss based on a violation of her right to equal protection. On that date, Alvarez also moved for a protective order to bar the Borough from admitting evidence of other reports in her Animal Protection Department file, demanded a jury trial, and requested a change of judge. The case was eventually assigned to Judge Thompson, who denied all Alvarez’s pending motions on June 7, 2002.

On July 26, 2002, Alvarez filed a motion to dismiss for .violation of Rule 45. She argued that the Rule 45 clock had started on October 3, 2001, when she pleaded not guilty to the initial civil complaint and demanded a jury trial. Alternatively, she argued that the 120-day period began to run on November 13, 2001, when she entered her not guilty plea at arraignment. Alvarez argued that in either case, after subtracting the various periods excluded under Rule 45(d), the Borough had failed to bring her to trial within the required 120 days.

Judge Thompson agreed and dismissed Alvarez’s case. Because it was unclear when Alvarez was initially cited, Judge Thompson ruled that the 120-day period had started to run on October 3, 2001, when Alvarez demanded trial.

The Borough moved for reconsideration of Judge Thompson’s order, but Judge Thompson reaffirmed his dismissal. He reasoned that even if the speedy trial clock re-started when Judge Stephens dismissed the case on January 10, 2002, and even allowing the Borough a reasonable period to re-institute its case, Alvarez had not been brought to trial within the required 120-day period.

The Borough appealed this decision to the superior court. Superior Court Judge Larry R. Weeks reversed the district court’s decision and remanded the case. Judge Weeks ruled that under Rule 45(c) the speedy trial clock started on February 25, 2002, the day Alvarez was served with the Borough’s second complaint, which followed Judge Stephens’s dismissal of the case on Alvarez’s motion.

Why we agree mth Judge Weeks’s decision

Rule 45(b) requires a defendant charged with a felony, misdemeanor, or violation to be tried “within 120 days from the time set forth in paragraph (c) of this rule.” Subsection (c) provides in relevant part:

(1) Generally. Except as provided in subparagraphs (2) through (5), the time for trial shall begin running, without demand by the defendant, from the date the charging document is served upon the defendant.
(2) Refiling of Original Charge. If a charge is dismissed by the prosecution, the refiling of the charge shall not extend the time. If the charge is dismissed upon motion of the defendant, the time for trial shall begin running from the date of service of the second charge.[ ]
(6) Minor Offenses. In eases involving minor offenses under District Court Criminal Rule 8, the defendant must be tried within 120 days from the date the defendant’s request for trial is received by the court or the municipality, whichever occurs first,

Alvarez argues that her case is governed by Rule 45(c)(6), and that none of the other subsections of Rule 45(c) applies to minor offenses. Therefore, she argues, the speedy trial clock started on October 3, 2001, the date she demanded trial, and did not restart after the case was dismissed on her motion, re-filed, and re-served, as would be the ease with all non-minor misdemeanor and felony offenses under Rule 45(c)(2). She contends that this special treatment for violations makes sense because it prevents minor offenses from “linger[ing] in the court system.”

While this-may be a reasonable construction of Criminal Rule 45(c)(6), it was not the supreme court’s intent in enacting that provision. Before 2001, when the supreme court adopted subsection (c)(6) and its parallel provision, District Court Criminal Rule 8(p), minor offenses were treated the same as all other offenses for speedy trial purposes— that is, the time for trial began to run from the daté the charging document was served on the defendant. However, in cases involving minor offenses, the government had difficulty meeting this deadline because defendants often did not request a trial until well into the 120-day period. To address this problem, the supreme court amended the rule to establish a later start date for the speedy trial period in cases involving minor offenses — the date the defendant demanded trial.

There is nothing in the rule language or history to suggest that the supreme court, in remedying this specific problem, also intended to broadly exempt minor offenses from the provisions of Rule 45(c)(2)-(5). Indeed, the unqualified language in District Court Criminal Rule 8(p) — “The right to speedy trial on minor offenses is governed by Criminal Rule 45” — suggests that the court did not intend such a sea change. We therefore reject Alvarez’s claim that minor offenses are exempt from Rule 45(c)(2).

Rule 45(c)(2) unambiguously provides that if a charge is dismissed on the defendant’s motion, “the time for trial shall begin running from the date of service of the second charge.” Applying this rule in Alvarez’s case, the speedy trial period began on February 25, 2002, the date she was served with the Borough’s second complaint, which followed the dismissal of the first complaint on Alvarez’s motion. Therefore, even assuming Alvarez’s other challenge to Judge Weeks’s speedy trial calculation has merit, only 101 days had elapsed at the time Judge Weeks reinstated Alvarez’s case. We therefore agree with Judge Weeks’s decision to reverse the ruling of the district court.

Why we agree with Judge Thompson’s decision on remand

Judge Weeks remanded Alvarez’s case to the district court on December 20, 2002, and Alvarez went to trial on March 17, 2003. At trial, Alvarez again moved to dismiss her case on Rule 45 grounds because of the additional time, disregarding exclusions, that had elapsed between Judge Weeks’s remand and her trial date — by her calculations, an additional 51 days. Judge Thompson ruled that Rule 45 had not been violated.

Under Criminal Rule 45(c)(4), the speedy trial clock restarts when a case is remanded for trial following an appeal. Alvarez’s case was remanded to the district court on December 20, 2002, and went to trial three months later, on March 17, 2003. Alvarez was therefore brought to trial well within the 120-day speedy trial period.

Why we also reject Alvarez’s constitutional speedy trial claim

Alvarez also argues that her state constitutional right to a speedy trial was violated because her trial did not take place until eighteen months after the Borough filed its original civil complaint. Judge Thompson also rejected this claim.

Even if a defendant is brought to trial within the limits established by Rule 45, in rare cases the delay in trial might still have prejudiced the defendant to such an extent that the defendant’s constitutional speedy trial right was violated. The supreme court has ruled that an unexplained delay of fourteen months or more is presumptively prejudicial, and that, without an affirmative showing of prejudice, a delay of eight months or less is presumptively nonprejudicial. Any periods of delay caused by the defendant are excluded from this calculation. Only after a defendant has established either actual prejudice or a presumption of prejudice do Aaska courts consider if the delay amounted to a constitutional violation. This is done by balancing the four factors enunciated in Barker v. Wingo. (1) the length of the delay, (2) the reasons for the delay, (3) the defendant’s assertion of his or her right, and (4) the prejudice to the defendant.

Avarez’s constitutional right to a speedy trial attached at the earliest on September 5, 2001, when the Borough filed its first complaint. That was more than eighteen months before Avarez’s trial date. However, close to five months of the delay between October 3, 2001, and July 26, 2002, when Avarez filed her speedy trial motion, were attributable to Avarez’s numerous motions to dismiss. Nearly five.more months passed between Judge Thompson’s dismissal — which resulted from Avarez’s motion — and Judge Weeks’s reversal of that dismissal. Then, after the case was remanded, there was a delay of more than two months while Ava-rez’s fifth motion to dismiss was pending. A1 told, Avarez caused more than twelve of the eighteen months of delay. When these delays are subtracted from the total, only about six months of delay can be attributed to the government. As we noted earlier, a delay of eight months or less is presumptively non-prejudicial, absent actual prejudice.

Avarez argues that she was prejudiced because she could not locate a neutral witness, Leonard Ward, who she claimed lived across the street from her for many months after the dog bite incident but then moved to an unknown address. Avarez made no offer of proof in district court about how Ward’s testimony would have benefited her defense; nor did she specify what efforts, if any, she made to locate Ward or preserve his testimony. Moreover, from our review of the record, it appears that Ward’s testimony would have related only to the dog bite, not to Avarez’s failure to report that bite. If this is the case, then Avarez’s claim of prejudice is moot, because we have reversed her convictions for violating the leash and dog bite ordinances.

Avarez additionally claims that she was prejudiced because the delay in trial caused her stress and disrupted her life. Again, even assuming this is true, Avarez has' not shown how this disruption in her life prejudiced her defense. And, as Avarez concedes, she never asked the court to set an earlier trial date. Given these circumstances, we find no merit to Avarez’s constitutional speedy trial claim.

Was Alvarez’s right to equal protection violated?

Avarez also argues that her constitutional right to equal protection of the laws was violated. Before trial, she filed a motion to dismiss on this ground, arguing that Eugene Martin, the director of the Animal Protection Department in Ketchikan, had singled her out for prosecution based on her Mexican-American ancestry. To support this claim, she asserted that her dog had, on two occasions, been denied space at the Borough kennel. She also asserted that there had been some fifty dog bites per year in Ketchi-kan in 1999, 2000, and 2001, and that she was the only person who had ever been proseeut-ed. She additionally asserted that she had been discriminated against because an ordinance enacted after the dog bite incident was not applied in her case.

Judge Thompson denied Alvarez’s motion, ruling that her assertions were unsupported, and that even if they were supported, they would fail to establish a prima facie case of discrimination. We agree with this ruling. A person cannot establish a prima facie case of racial discrimination without showing some nexus between the discriminatory treatment and race. In this case, Alvarez asserted in her pleadings that she had been treated differently than other owners of biting dogs, but she offered no evidence to support an inference that this treatment was motivated by her racial heritage.

In any event, even if Judge Thompson had erred in ruling that Alvarez had failed to establish a prima facie case of racial discrimination, that error would be harmless because Alvarez was allowed to fully litigate her claim. After hearing Alvarez’s evidence on this issue, and the Borough’s response— which included evidence that it had issued numerous other dog bite citations — Judge Thompson concluded that Alvarez had not been discriminated against. Alvarez has not challenged that ruling on appeal.

Conclusion

We REVERSE Alvarez’s convictions on count II and count III. In all other respects, we AFFIRM the decisions of the district court.

      . The municipal ordinances Alvarez was convicted of violating are "minor offenses” under District Court Criminal Rule 8(b) because they are classified as violations and cannot result in incarceration, loss of a valuable license, or a fine of greater than $500.

      . Ketchikan Gateway Borough Code (KGB) § 20.50.020.

      . KGB § 20.70.005.

      . KGB § 20.80.010(a).

      . KGB § 20.70.005(a).

      . The Borough relies by analogy on AS 11.81.600(b), which provides that violations that specify no culpable mental state or otherwise demonstrate a legislative intent to dispense with the requirement of a culpable mental state, are strict liability offenses. Alaska Statute 11.81.600 only applies to Title 11 offenses. See AS 11.81.640.

      . See Annotation, Owner's liability under legisla-on forbidding domestic animals to run at large on highways, as dependent on negligence, 34 A.L.R.2d 1285 § 4, at 1289-91 (1954) and Later Case Service § 4, at 669-73 (2001).

      . Emphasis added.

      . See former Alaska R.Crim. P. 45(c)(1) (2000); Supreme Court Order No. 1422 (effective April 15, 2001).

        .See October 22, 1999, memorandum proposing a revision of the 120-day rule for minor offenses, submitted to Court Rules Attorney Christine Johnson by Clerk of Court Charlene Dolphin; see also February 2, 2001, proposal to amend District Court Criminal Rule 8(p), submitted to the Supreme Court by Rules Attorney Barbara Hood.

      . District Court Criminal Rule 8(p) provides:
      Speedy Trial' — When Time Commences to Run. The right to speedy trial on minor offenses is governed by Criminal Rule 45. A defendant charged with a minor offense must be tried within 120 days from the date the defendant’s request for trial is received by the court or the municipality, whichever occurs first.

      . Emphasis added.

      . Alvarez argues that Judge Weeks erred in excluding the 14 days from May 10, 2002, to May 23, 2002, because she had requested a postponement of the May 10 pre-trial conference. Alvarez claims that she was unaware that her postponement request would constitute a continuance, and that Judge Weeks should not have excluded this period because of Criminal Rule 45(d)(2). Criminal Rule 45(d)(2) provides that "[a] defendant without counsel shall not be deemed to have consented to a continuance unless the defendant has been advised by the court of the right to a speedy trial 'under this rule and of the effect of consent.” We find it unnecessary to address this claim; even if Judge Weeks had erred in excluding these 14 days, only 101 days out of the 120-day Rule 45 period would have elapsed on the date of his decision.

      . Alaska Const. art. I, § 11.

      . Deacon v. State, 575 P.2d 1225, 1229 (Alaska 1978).

      . Rutherford v. State, 486 P.2d 946, 951-52 (Alaska 1971); Glasgow v. State, 469 P.2d 682, 688-89 (Alaska 1970).

      . Nickerson v. State, 492 P.2d 118, 120 (Alaska 1971); Tarnef v. State, 492 P.2d 109, 112-13 (Alaska 1971).

      . Rutherford, 486 P.2d at 952 n. 15; Springer v. State, 666 P.2d 431, 435 (Alaska App.1983).

      . State v. Mouser, 806 P.2d 330, 340 (Alaska App.1991).

      . 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

      . Mouser, 806 P.2d at 340.

      . See id. at 339.

      . See Johnson v. State, 607 P.2d 944, 947 (Alaska 1980); cf. Rollins v. Alcoholic Beverage Control Board, 991 P.2d 202, 210 (Alaska 1999); Gates v. City of Tenakee Springs, 822 P.2d 455, 461 (Alaska 1991); Barber v. Anchorage, 776 P.2d 1035, 1040 (Alaska 1989); State v. Reefer King Co., Inc., 559 P.2d 56, 65 (Alaska 1976); Belgarde v. State, 543 P.2d 206, 208 (Alaska 1975); Nelson v. State, 387 P.2d 933, 935 (Alaska 1964).