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State v. Dussault (1/7/2011) ap-2293

State v. Dussault (1/7/2011) ap-2293

                                               NOTICE 
        The text of this opinion can be corrected before the opinion is published in the 
        Pacific Reporter.   Readers are encouraged to bring typographical or other formal 
        errors to the attention of the Clerk of the Appellate Courts. 

                              303 K Street, Anchorage, Alaska      99501
 
                                        Fax:   (907) 264-0878
 
                         E-mail:   corrections @ appellate.courts.state.ak.us
 

               IN THE COURT OF APPEALS OF THE STATE OF ALASKA 

STATE OF ALASKA,                               ) 
                                               )            Court of Appeals No. A-10444 
                           Petitioner,         )          Trial Court No. 3AN-84-1190 CR 
                                               ) 
             v.                                ) 
                                               )                  O  P  I  N  I  O   N 
BRIAN DUSSAULT,                                ) 
                                               ) 
                           Respondent.         ) 
                                               )               No. 2293 - January 7, 2011 

                Appeal from the Superior Court, Third Judicial District, 
                Anchorage, Michael Spaan, Judge. 

                Appearances:        James   Fayette,   Assistant   District  Attorney, 
                Anchorage, and Daniel S. Sullivan, Attorney General, Juneau, 
                for   the   Petitioner.  Avraham   B.   Zorea,   Anchorage,   for   the 
                Respondent. 

                Before:    Coats, Chief Judge, and Mannheimer and Bolger, 
                Judges. 

                BOLGER, Judge.
 
                MANNHEIMER, Judge, concurring.
 

                Brian Dussault was acquitted of first-degree murder by reason of insanity 

and committed to the Alaska Psychiatric Institute (API) in 1984.  Superior Court Judge 

John Suddock conducted several hearings on Dussault's request for conditional release 

from this confinement. The State argues that Judge Suddock should be disqualified from 

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

further   participation,    alleging   that  he  engaged    in   a  series  of  improper    ex   parte 

communications with William Hogan, the Commissioner of the Department of Health 

and    Social    Services    (DHSS).       We   conclude      that  Judge    Suddock's      ex   parte 

communications were not authorized by law and that these communications created an 

appearance of impropriety that requires his disqualification from this case. 

        Background 

                In 1984,Brian Dussault shot and killed his wife.  Dussault was adjudicated 

not guilty of first-degree murder by reason of insanity and was placed at API in the 

custody   of   DHSS.     Dussault   was   conditionally   released   in   1995   and   1997,   but   his 

releases were revoked because he used cocaine in 1995 and absconded after the 1997 

release. 

                Judge John  Suddock was  assigned to the case in 2003.               He conducted 

annual   hearings  on  Dussault's   suitability   for   release.   On   February   1,   2008,   Judge 

Suddock conducted an evidentiary hearing on Dussault's renewed motion for conditional 
release.1  At the hearing, Judge Suddock expressed his tentative willingness to release 

Dussault   under   appropriate   conditions   of   supervision.      The   judge   told   Dussault's 

attorney: 

    1   AS 12.47.092 outlines the "[p]rocedure for conditional release": 

                (a) A defendant committed to the custody of the commissioner 
                of health and social services under AS 12.47.090(b) or (c) may 
                be   conditionally   released   from   confinement    subject   to  the 
                conditions and requirements for treatment that the court may 
                impose, and placed under the supervision of the Department of 
                Health and Social Services, a local government agency, a private 
                agency, or an adult, who agrees to assume supervision of the 
                defendant. 

                                                  2                                             2293
 

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

                 I can only decide if conditional release is appropriate in the
 
                 context of   a specific plan. ... 
 
                 ....
 
                 So I can't rule on this thing in a vacuum. ... You have to put 
 
                 a package together.   But when you do that, I am prepared to 
 
                 move on this. ... 
 
                 ....
 
                 ... [G]et your ducks in a row and come back and get him into 
 
                 [a residential program in Anchorage].  It's going to take 
 
                 something like that, you know that.
 

Judge Suddock stated that Dussault's release was contingent upon the approval of a final 

release plan.      The State opposed any release of Dussault based on Dussault's lack of 

progress at API and his flight from the state following his 1997 release.                      The medical 

staff   from   API   also   objected   to   Dussault's   release   because   they   believed   Dussault 

remained a threat to the community. 

                 After   the   February   1   hearing,   Judge   Suddock   began   to   conduct   status 

hearings to discuss potential plans and conditions for Dussault's release.  At a March 27 

hearing, Judge Suddock suggested that the Department of Corrections (DOC) might 

assume responsibility for Dussault.            The State responded that DOC was not willing to 

voluntarily assume responsibility for Dussault and that DHSS, not DOC, was the agency 

legally responsible for Dussault. 

                 At a hearing on April 28, Judge Suddock again suggested that he believed 

"the most practical solution [would be] for [DHSS] to plead on bended knee to its sister 

agency, the Department of Corrections, and to try to induce an arrangement whereby the 

probation department monitors him."  The judge also noted that he "tried informally and 

off    record    to  get   some     involvement       of  somebody       who's     willing    to   assume   ... 

                                                       3                                                  2293
 

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

responsibility [for Dussault] in a meaningful way," but the judge stated that he was not 

"able to get any traction." 

                Eventually, at a May 16 hearing, Assistant Attorney General John Bodick 

told Judge Suddock that he contacted the DOC Director of Probation and Parole, Donna 

White, and that DOC was not willing to assume responsibility for Dussault.  Judge 

Suddock continued to hold hearings, but Dussault did not make substantial progress 

toward assembling a comprehensive release plan. 

                At   a   hearing   on   September   5,   Judge   Suddock   stated  that   he   would   be 

contacting an assistant attorney general representing DHSS to find someone to participate 

on behalf of the agency.       Neither party objected to Judge Suddock's proposed contact 

with the attorney general's office. 

                The following month, Judge Suddock attended the Judicial Conference held 

in Girdwood, where the Commissioner of DHSS, William Hogan, was a speaker. Judge 

Suddock approached Commissioner Hogan, informed him of the Dussault proceeding, 

and asked him to designate a DHSS representative to monitor Dussault's status hearings. 

Judge   Suddock   also   suggested   that   DOC   might   assume   responsibility   for   Dussault 

pursuant to an interdepartmental agreement. 

                Following this ex parte contact and prior to the next hearing, there were four 

e-mail communications between Judge Suddock and Commissioner Hogan. 

                1.      November 20, 2008: Judge Suddock contacted Commissioner Hogan 

in an e-mail entitled "Judge Suddock's conundrum."                In this e-mail, Judge Suddock 

indicated that the relevant statute in Dussault's case "decrees release to a representative 

of [DHSS]."      After informing Commissioner Hogan of the date and time of the next 

hearing, Judge Suddock told the Commissioner that the court was "in general on a track 

toward release within months if it proves feasible."  Judge Suddock suggested that "[i]t 

                                                   4                                             2293
 

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

would be helpful to engage with [Commissioner Hogan's] department so [he would not 

be]  blind-sided   by   developing   events."      Alternatively,   Judge   Suddock   believed   that 

Commissioner Hogan might want an attorney from the Department of Law (DOL) to 

attend the hearings. 

                2.      November 21, 2008:   In his reply to Judge Suddock, Commissioner 

Hogan indicated that he had been counseled by an assistant attorney general  to "not get 

too involved."   Commissioner Hogan did, however, offer to testify in open court. 

                3.      November 23, 2008: Judge Suddock e-mailed Commissioner Hogan 

to outline the status of the Dussault hearings and to clarify DHSS's involvement in any 

plan for Dussault's conditional release. Judge Suddock went on to state that he preferred 

to have DOC monitor Dussault: 

                I feel I would be remiss if I did not alert you to this situation 
                and invite you to monitor it so you are not blind-sided on the 
                eve of any release. It has always seemed to me that a sensible 
                approach would be for [DHSS] to arrange by contract with 
                DOC      probation    to   monitor    Dussault,    as  they   do   many 
                mentally   ill   probationers   and   parolees   through   a   specific 
                program dedicated to case management of difficult mental 
                health cases. I am sure that there are obstacles to such an 
                approach that might require time to overcome. Or perhaps I 
                am not seeing some other reasonable solution. 

Judge Suddock did not inform Commissioner Hogan that DOC had already declared that 

they    were   not   willing   to  supervise    Dussault's   release.    Given     the  nature    of  the 

proceeding, the judge noted that it would not be "unreasonable" for a DHSS lawyer to 

attend some or all of the hearings.          However, Judge Suddock stated, "But I take no 

position   on   the   matter,   other   than   to   note   this  is   a   problem   that   the   parties   are   not 

addressing, and that will have to be resolved at some point."               He further indicated he 

would   copy   the   parties   on   the   message.    The   judge   concluded   by   welcoming   the 

                                                    5                                              2293
 

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

Commissioner's reaction to the "unique situation." 

                4.      November 24, 2008: Commissioner Hogan responded by indicating 

that Judge Suddock's November 23 e-mail again raised the issue of DOC's ability to 

monitor Dussault under contract with DHSS.  The Commissioner stated that he would 

need to consult with DHSS's attorney to obtain guidance. 

                The court held an additional hearing on November 25, 2008.  At the end of 

the hearing, Judge Suddock disclosed for the first time that he had been in contact with 

Commissioner Hogan.  The judge gave the parties printouts of the string of e-mails from 

November 20, 21, and 23. Judge Suddock did not disclose the November 24 e-mail from 

Commissioner Hogan. 

                Once the State was apprised of these ex parte contacts, the State filed a 

motion   to   disqualify   Judge   Suddock   from   further   participation   in   Dussault's   case, 

alleging   that   Judge   Suddock's   ex   parte   communications   with   Commissioner   Hogan 

created an "appearance of impropriety" that required disqualification under Canon 3E of 

the Code of Judicial Conduct. Judge Suddock denied the State's motion. Superior Court 

Judge Michael Spaan was then appointed to determine whether Judge Suddock should 
be disqualified,2 and Judge Spaan also denied the State's motion. We granted the State's 

petition for review of Judge Spaan's decision. 

        Discussion 

                There are two sets of legal rules that apply to judicial disqualification. 

Alaska   Statute   22.20.020(a)   lists   the   types   of   cases   in   which   a   judge   is   statutorily 

disqualified from acting.  Canon 3E(1) of the Alaska Code of Judicial Conduct lists the 

circumstances   when   a   judge's   disqualification   is   required   by   standards   of   ethical 

    2   See AS 22.20.020(c). 

                                                   6                                                2293 

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

conduct.3    Neither the statute nor the rule expressly states that unauthorized ex parte 

communications are a circumstance sufficient to require disqualification. But the Alaska 

courts have construed the statute to incorporate a requirement identical to the ethical rule: 

A judge "should disqualify himself or herself in a proceeding in which his impartiality 
might reasonably be questioned."4  We must decide whether the ex parte communications 

between Judge Suddock and Commissioner Hogan created an appearance of partiality 

requiring disqualification. 

                We review a trial court's decision regarding disqualification for abuse of 
discretion.5  A trial court's decision "is to be accorded great weight and will be reversed 

on appeal only when it is evident that reasonable persons could not rationally come to 
the same conclusion on the basis of known facts."6 

    3   See generally Marla N. Greenstein, Judicial Disqualification in Alaska Courts,                17 

Alaska L. Rev.   53, 71   (2000) ("Although the Alaska Code of Judicial Conduct   is only 
directly   enforceable   through   judicial   disciplinary   proceedings   conducted   by   the   Alaska 
Commission on Judicial Conduct, it provides guidance to judges in interpreting their ethical 
obligation to disqualify and has been used by the courts to enhance interpretation of the 
disqualification statute's full meaning and intent."). 

    4   See Pride v. Harris, 882 P.2d 381, 385 (Alaska 1994) (incorporating the language of 

former Canon 3C(1)(a)); Perotti v. State, 806 P.2d 325, 327 (Alaska App. 1991). 

    5   Amidon v. State, 604 P.2d 575, 577 (Alaska 1979). 

    6   Alaska Trams Corp. v. Alaska Elec. Light & Power, 743 P.2d 350, 353 (Alaska 1987); 

see also Amidon, 604 P.2d at 577 (noting that the reviewing court may not overturn the 
decision of the trial court unless "it is plain that a fair-minded person could not rationally 
come to that conclusion on the basis of the known facts"). 

                                                    7                                              2293
 

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

               Judge Suddock's contacts with Commissioner Hogan were 
                improper. 

               Alaska's Code of Judicial Conduct bans ex parte communications regarding 

pending     litigation:    "A    judge   shall  not   initiate,  permit,   or  consider    ex   parte 

communications or other communications made to the judge outside the presence of the 

parties   concerning   a   pending   or   impending   proceeding   except   as   allowed   by   this 
Section."7   Two exceptions to the prohibition on ex parte communications are relevant 

in the present case.   First, "[a] judge may initiate or consider an ex parte communication 
when expressly authorized by law to do so."8          Second, "[w]hen circumstances require, 

a judge may engage in ex parte communications for scheduling or other administrative 
purposes."9  Judge Spaan concluded that Judge Suddock's ex parte communications with 

Commissioner Hogan were authorized by these exceptions.                For the reasons explained 

here, we disagree. 

                       The     ex   parte    communications        were    not 
                       expressly authorized by law. 

                Canon 3B(7)(a) indicates that "[a]judge may initiate or consider an exparte 
communication when expressly authorized by law to do so."10  Judge Suddock ruled that 

his  ex parte communications with Commissioner Hogan were authorized by statute, 

relying on AS  12.47.092.      This statute states that a defendant under the custody of the 

DHSS Commissioner may be conditionally released and placed under the supervision of 

    7   Alaska Code Jud. Conduct Canon 3B(7). 

    8   Alaska Code Jud. Conduct Canon 3B(7)(a). 

    9   Alaska Code Jud. Conduct Canon 3B(7)(b). 

    10  Alaska Code Jud. Conduct Canon 3B(7)(a). 

                                                  8                                            2293
 

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

"[DHSS],   a   local   government   agency,   a   private  agency,   or   an   adult,   who   agrees   to 
assume supervision of the defendant."11  For individuals conditionally released under the 

statute, the Commissioner of DHSS or the Commissioner's authorized representative 

must submit quarterly reports discussing the individual's progress and other relevant 
information.12       Judge     Suddock      concluded     that   "it  necessarily    follows    that   the 

Commissioner must be informed that the court is invoking the statute in a particular case, 

by   notifying   him   that   he   must   act." Judge   Suddock   stated,   "Impliedly,   the   statute 

authorizes the court to alert the Commissioner that the time is ripe for him to [designate] 

his statutory representative." 

                To conform with Canon 3B(7)(a), a statute must expressly authorize ex 
parte communications.13  Alaska Statute 12.47.092 does not expressly state that the judge 

may initiate ex parte communications with DHSS.                 Judge Suddock acknowledged the 

lack of an express provision when he noted that he was "impliedly" authorized to alert 

the Commissioner about Dussault's status.  While the statute arguably authorizes some 

form of communication for identifying the representative who will report to the court, 

there   is   no   language   in   the   statute  indicating   that   these   communications   should   be 

conducted in private.        Judge Suddock's ex parte communications with Commissioner 

Hogan were not authorized by the exception for communications authorized by law. 

Moreover,   these   communications   went   beyond   the   simple   matter   of   informing   the 

    11  AS 12.47.092(a). 

    12  AS 12.47.092(b). 

    13  Cook v. State, 36 P.3d 710, 727 (Alaska App. 2001) (noting that because the statute 

authorizes ex parte applications for temporary restraining orders, "it would appear that Judge 
Savell did not violate Canon 3(B)(7) when he heard K.A.B.'s ex parte petition for a 20-day 
restraining order"). 

                                                    9                                               2293
 

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

Commissioner that he would be required to designate a representative for reporting purposes. 

                        The ex parte communications were not required 
                       for administrative purposes . 

                The second exception to the ban on ex parte communications applies to 

communications for administrative purposes.             "When circumstances require," a judge 

may     engage    in  ex  parte  communications        "for  scheduling     or  other  administrative 
purposes."14     For   a   communication   to   qualify   as   administrative,   the   communication 

cannot address a substantive matter or the merits of the case, the judge must reasonably 

believe "no party will gain a procedural or tactical advantage because the communication 

is ex parte," and the judge must take "reasonable steps" to notify the parties promptly of 

the   substance   of   the   communication   and   provide,   if   practicable,   an   opportunity   to 
respond.15   There are several aspects of the communications in this case that suggest that 

they do not meet the definition of this exception. 

                The  first  issue  is  whether  the  "circumstances   require[d]"   the   ex   parte 
communications between Judge Suddock and Commissioner Hogan.16                       Court decisions 

indicate that there are circumstances where the privacy of an ex parte communication is 
important or impliedly authorized.17          However, as noted above there are no apparent 

    14  Alaska Code Jud. Conduct Canon 3B(7)(b). 

    15  Alaska Code Jud. Conduct Canon 3B(7)(b) (authorizing ex parte communications for 

administrative purposes "when circumstances require"). 

    16  Alaska Code Jud. Conduct Canon 3B(7)(b). 

    17  See, e.g., United States v. Nguyen, 262 F.3d 998, 1004 (9th Cir. 2001) (suggesting that 

for an inquiry with a party regarding the substitution of counsel to be adequate, the "court 
should question the attorney or [the] defendant 'privately and in depth'" (quoting United 
States v. Moore, 159 F.3d 1154, 1160 (9th Cir. 1998))); Thompson v. State, Mem. Op. & J. 
No. 4715, 2003 WL 21279425, at *4 (Alaska App. June 4, 2003) (holding that a judge's ex 

                                                   10                                             2293
 

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

reasons    why    Judge   Suddock      was   required    to  conduct    his  communications        with 

Commissioner Hogan in private. 

                The   second  issue  is  whether      Judge    Suddock's  discussions   addressed 

substantivematters or the merits of the issues litigated. One example of a nonsubstantive 

administrative communication is where "the sole purpose of the communication is to 

provide  courtesy  notification   to   the   parties   or   to   the   court   of   a   delay   or   change   in 
scheduling."18 

                Judge Suddock went beyond the scope of the administrative exception by 

indicating his preference for DOC monitoring of Dussault. Though Judge Suddock noted 

DHSS's responsibilities and the status of the case, he also invited "reaction[s]" from 

Commissioner   Hogan   on   the   "unique   situation."         The   title   of   the   e-mail,   "Judge 

Suddock's   conundrum,"   implies   that   Judge  Suddock   was   contacting   Commissioner 

Hogan with the goal of solving a problem. 

                Judge Suddock acknowledged that his contacts with Commissioner Hogan 

were aimed at encouraging the Commissioner to offer a second opinion on whether DOC 

might assume responsibility for Dussault.  In his order, Judge Suddock noted that DOC 

Director of Probation and Parole Donna White had announced that DOC was not willing 

to   assume   responsibility   for  supervising   Dussault's   release.       But   the   judge   openly 

criticized White's decision, and he hinted that Commissioner Hogan might be able to 

convince   White's   supervisors   to   override   her   decision:     "While   [Director   White's] 

response may be astute, it may also be the type of small-bore thinking that her more 

flexible    supervisors    would    override."     Rather    than   simply   providing    a  "courtesy 

parte questioning of the defendant about a substitution of counsel issue was appropriate 
under the circumstances). 

    18  Alaska Code Jud. Conduct Canon 3B(7)(b) cmt. para. 8. 

                                                   11                                               2293 

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

notification" regarding the hearing schedule, or a similar administrative communication, 

Judge Suddock went beyond the scope of the administrative exception and solicited 

feedback on these substantive matters. 

                The third issue is whether Judge Suddock took "reasonable steps to notify 
all   other   parties   promptly   of   the   substance   of   the   ex   parte   communication."19 The 

commentary   to   Canon   3B(7)   indicates   that   the   drafters   contemplated   a   relatively 

instantaneous means of disclosure for ex parte communications:  "the most expeditious 
means of communication reasonably available to the court."20   Under this standard, the 

October communication with Commissioner Hogan was not disclosed "immediately" - 

it was disclosed after a four-week delay. 

                The final issue is whether Judge Suddock allowed the State an opportunity 

to   respond.    Judge   Suddock   indicated   at   an   April   hearing   that   he   had   been   acting 

informally to try to get other parties involved.            And at a September hearing, Judge 

Suddock       mentioned     that  he   would   try   to  contact    an  assistant   attorney    general 

representing DHSS.   But Judge Suddock's statement indicated the court would contact 

a DHSS attorney, not that the court would ask Commissioner Hogan to intervene in an 

attempt to convince DOC to monitor Dussault. Judge Suddock never told the parties that 

he intended to personally contact the commissioner of DHSS for input nor did he give 

the prosecutor an adequate opportunity to respond. 

                We conclude that Judge Suddock's communications with Commissioner 

Hogan were neither authorized by law nor allowed by the exception for administrative 

purposes. 

    19  Alaska Code Jud. Conduct Canon 3B(7)(b)(iii). 

    20  Alaska Code Jud. Conduct Canon 3B(7) cmt. para. 9. 

                                                   12                                               2293 

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

                 These ex parte  communications created an appearance of 
                 partiality. 

                 As   noted   above,   the   disqualification   statute   and   the   Code   of   Judicial 

Conduct   require   a   judge   to   be   disqualified   from   any   proceeding   when   the   judge's 

participation creates an appearance of partiality.  An appropriate test for the appearance 

of partiality is suggested by the commentary to Canon 2A:  "The test for appearance of 

impropriety is whether the conduct would create in reasonable minds a perception that 

the judge's ability to carry out judicial responsibilities with integrity, impartiality, and 
competence is impaired."21 

                 This   test   is   consistent   with   the   reported   cases   in   disqualification   and 

disciplinary matters.  In one case, a district court judge wrote to the commissioner of the 

Department of Public Safety regarding the driver's license of a defendant who had been 
convicted of driving while his license was suspended.22                   The Alaska Supreme Court 

found that there was an appearance of bias where the judge's actions "so intertwined the 
roles of advocate ... and judge" as to call his impartiality into question.23 

                 In another case, a district court judge passed a note to an Alaska State 

Trooper   regarding   his   testimony   about   the terms   of  a   domestic   violence   restraining 
order.24    The   Alaska   Supreme   Court   noted  that   the   trooper   was   a   member   of   the 

    21   Alaska Code Jud. Conduct Canon 2A cmt.; see Keller v. State, 84 P.3d 1010, 1012 

(Alaska App. 2004) (noting that this test applies to the appearance of impartiality). 

    22  In   re   Robson,   500   P.2d   657,   663-64   (Alaska   1972)   (holding   that   there   was   an 

appearance of partiality when a judge wrote a letter to the Commissioner of Public Safety on 
behalf of a motorist charged with driving with a suspended license), disapproved of on other 
grounds, In re Inquiry Concerning a Judge, 788 P.2d 716, 722 n.8 (Alaska 1990) (holding 
that the court must independently evaluate the evidence in a judicial conduct case). 

    23  Id. at 664. 

    24  In re Cummings, 211 P.3d 1136, 1138 (Alaska 2009). 

                                                      13                                                2293
 

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

prosecution      team   and    that  the  ex   parte   communication       created    an  appearance      of 
impropriety.25 

                 In   a   third   case,   a   judge's   law   clerk   leaked   a   bench   memorandum   to   a 

prosecutor   along   with   an   ex   parte   note   suggesting   that   she   was   motivated   by   her 
favoritism toward the prosecution.26           This court remanded for an investigation of the 

clerk's misconduct, noting that judicial officers are required to supervise their staff to 
avoid creating the appearance of partiality.27 

                 Additionally, the Commission on Judicial Conduct found an appearance of 

impropriety where ajudge sought legal advice about a pending matter from the head of 

the state office responsible for handling litigation on that legal issue, even though the 
judge subjectively believed the individual was a "disinterested expert."28 

                 In this case, Judge Spaan concluded that a reasonable person would view 

the proceedings at the time of the State's motion as "akin to a 'problem solving'" session 

where "the adversary element of the proceedings had given way to the universally held 

interest of constructing release conditions that protect the public while still affording 

Dussault   his   rights   and   advancing   his   treatment."       Judge   Spaan   reasoned   that   the 

communications did not address the substance of a matter still at issue before the court 

and instead only served to widen the scope of government participation in the hearings. 

                 We disagree.        At the time of the communications, Judge Suddock was 

aware that the staff of API (employees of DHSS) opposed Dussault's release and that 

    25  Id. at 1139.
 

    26   Vaska v. State, 955 P.2d 943, 944 (Alaska App. 1998).
 

    27  Id. at 945-46.
 

    28  Alaska Comm'n on Jud. Conduct, Formal Op. No. 15 (1992). 
 

                                                     14                                               2293
 

----------------------- Page 15-----------------------

Dussault had yet to propose a viable plan for his release or monitoring.  The judge was 

also aware that DOC representatives had declared that they had no legal responsibility 

to supervise Dussault's release and had declined to supervise Dussault voluntarily.  The 

judge's communications with Commissioner Hogan suggested that the judge wanted the 

commissioner   to   convince   DOC   to   supervise   Dussault   (contrary   to   the   "small   bore 

thinking" of Director White that had been presented in court).             These communications 

created a reasonable appearance of partiality.  Based on these ex parte communications 

a reasonable person would conclude that Judge Suddock had compromised his role as 

impartial   judge   of   Dussault's   proposals   for   supervised   release   and   had   become   an 

advocate for Dussault's release. 

        Conclusion 

                We conclude that Judge Spaan should have granted the State's motion for 

disqualification.      We   REVERSE   the  order   denying   the   motion   and   REMAND   for 

assignment of another judge. 

                                                  15                                             2293
 

----------------------- Page 16-----------------------

MANNHEIMER, Judge, concurring. 

                I write separately to emphasize, or perhaps encapsulate, our analysis of the 

situation presented in this appeal. 

                The     State's  challenge    to  Judge    Suddock's     continued    participation    in 

Dussault's case arose from the judge's series of ex parte contacts with the Commissioner 

of Health and Social Services.  However, as Judge Bolger points out in the lead opinion, 

the fact that a judge has engaged in improper ex parte contacts does not, standing alone, 

necessarily require the judge's disqualification.           The ultimate question is whether the 

judge's actions, assessed in light of the totality of the relevant circumstances, would 

cause   a   reasonable   person   to   question   the   judge's   ability   to   be   impartial   in   future 

proceedings in the case.   Alaska Judicial Canon 3(E)(1); Amidon v. State, 604 P.2d 575, 

578 (Alaska 1979). 

                As explained in the lead opinion, Brian Dussault was placed in the legal 

custody of the Department of Health and Social Services as a result of a jury finding that 

he was not guilty of murder by reason of insanity.  The Department committed Dussault 

to the Alaska Psychiatric Institute.        Dussault petitioned the superior court to grant him 

supervised release from this involuntary commitment.               Both the State (i.e., the Depart- 

ment of Law) and the doctors at API opposed Dussault's release, but Judge Suddock 

declared that he was tentatively in favor of granting Dussault's request - if Dussault 

could come up with a satisfactory plan for this supervised release. 

                It turned out that the devil was in the details.  For various reasons, it would 

have been problematic for the Department of Health and Social Services to supervise 

Dussault's community release.  Judge Suddock suggested that Dussault's release might 

be supervised by the Department of Corrections, an agency that presumably had better 

                                                   16                                              2293
 

----------------------- Page 17-----------------------

capacity   to   supervise   Dussault.     But   the  assistant   attorney   general   representing   the 

Department of Corrections pointed out that, under the pertinent statutes, the Department 

had no legal responsibility toward Dussault. 

                The Department of Corrections' attorney also told Judge Suddock that he 

had spoken to Donna White, the Director of Probation and Parole (i.e., the Corrections 

official   in   charge   of   supervising   offenders),   and   Director   White   had   said   that   the 

Department was not willing to voluntarily undertake the task of supervising Dussault, 

because her personnel were already overburdened. 

                Confronted with this situation, Judge Suddock initiated a series of ex parte 

approaches (both in person and by e-mail) to the head of the Department of Health and 

Social Services, Commissioner William Hogan. 

                In his initial, face-to-face conversation with Commissioner Hogan, Judge 

Suddock      suggested     that  Dussault's    release   could   be   accomplished      by  having    the 

Department of Health and Social Services enter into an inter-agency contract with the 

Department of Corrections, and the judge asked Commissioner Hogan to designate a 

representative to monitor Dussault's case.  When Commissioner Hogan did not respond 

to   this   request,   the   judge   sent   e-mails   to   the   commissioner,   reminding   him   of   their 

conversation, giving some details of the litigation, and again asking the commissioner 

to appoint a representative to monitor the proceedings. 

                When Judge Suddock broached his plan for an inter-agency agreement to 

Commissioner Hogan, the judge apparently did not inform the commissioner that the 

State (i.e., the Criminal Division of the Department of Law) was opposed to Dussault's 

release and that the Department of Corrections (through their attorney and, indirectly, 

through Director White) had likewise announced their opposition to the judge's plan. 

                                                   17                                              2293
 

----------------------- Page 18-----------------------

                Because Judge Suddock was still pursuing this plan, and because the judge 

presented his plan to Commissioner Hogan in a series of ex parte communications, the 

State contended that the judge's approaches to the commissioner gave a reasonable 

appearance that the judge was privately soliciting Commissioner Hogan's support for his 

plan - and that the judge was therefore taking on the role of advocate. 

                In   his   written   decision   denying   the   State's   motion   for   recusal,   Judge 

Suddock rejected this contention.            But the wording of the judge's decision actually 

supports the State's position - because that written decision reads like a brief in support 

of   the  judge's    plan   to  release  Dussault    to  the  supervision     of  the  Department      of 

Corrections: 

                        The      [Department        of    Corrections']       Probation 
                Department has a unit which supervises profoundly mentally 
                ill  probationers     ...  .   DOC     is  able   to  provide    weekly 
                [urinalysis services].  [The Department] works with virtually 
                all   [the]   community   resources   which   support   mentally   ill 
                probationers.     Mr. Dussault is the functional equivalent of a 
                candidate for probation.  [Because the Department of Health 
                and Social Services] may lack similar[] ... resources[, it] was 
                appropriate   [for   me]  to   alert   Commissioner   Hogan   to   this 
                potential option [for Dussault's release].  ... 

                        It   is  discouraging     that  the  prosecution     finds   this 
                suggestion, which the [C]ourt has repeatedly made on the 
                record, to imply partiality when it was conveyed [ex parte] to 
                the   Commissioner.       The   prosecutor's   [apparent   belief]   is 
                that[,]   once   Assistant   AG   [John]   Bodick   [i.e.,   the   lawyer 
                representing       the   Department       of   Corrections]     queried 
                [P]robation [D]irector White [about this plan], her opinion 
                was final. [But Director White's] response may be ... the type 

                                                   18                                              2293
 

----------------------- Page 19-----------------------

                   of   small-bore   thinking   that   her   more   flexible   supervisors 
                 would override. 

                 This passage supports the State's position that a reasonable person, aware 

of    the   history   of   this   litigation   and    the  content     of  Judge    Suddock's       private 

communications with Commissioner Hogan, would reasonably suspect that the judge was 

asking the commissioner (in so many words) to lobby the Department of Corrections to 

alter its position and agree to supervise Dussault's release from API under an inter- 

departmental   contract   with   Hogan's   agency,   the   Department   of   Health   and   Social 

Services. 

                 This    series  of  ex   parte   contacts   was    improper.     The     Department      of 

Corrections had announced its position on this matter through its lawyer and, indirectly, 

through a senior department official (Director White).                It might have been proper for 

Judge Suddock to openly ask the Department to reconsider its position.  But instead, it 

appears that Judge Suddock tried to alter the Department's stance by privately asking a 

third party - Commissioner Hogan - to lobby White's superiors in the Department of 

Corrections to reverse her decision. 

                 A reasonable person would suspect that when Judge Suddock pursued these 

actions, he assumed the role of an advocate rather than an impartial arbiter. It reasonably 

appeared that the judge was no longer waiting to evaluate whatever plan Dussault's 

lawyer might propose for Dussault's supervised release - that, instead, the judge had 

a   particular   type   of   supervised   release  in   mind,   and   he   was   privately   attempting   to 

influence state officials to agree to his plan. 

                 In   light  of  Judge    Suddock's      actions,   a   reasonable     person    who    was 

conversant with all the pertinent circumstances would question the judge's ability to 

impartially adjudicate Dussault's case. Accordingly, pursuant to Judicial Canon 3(E)(1), 

                                                     19                                               2293
 

----------------------- Page 20-----------------------

Judge   Spaan   should  have  ordered  Judge   Suddock's   disqualification  from  further 

participation in Dussault's case. 

                                           20                                       2293
 
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