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Phillips v. State (2/17/2012) ap-2345

Phillips v. State (2/17/2012) ap-2345

                                              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 

MICHAEL D. PHILLIPS, 
                                                           Court of Appeals No. A-10385 
                               Appellant,                  Trial Court No. 3CO-06-093 Cr 

                       v. 
                                                                   O  P  I N  I  O   N 
STATE OF ALASKA, 

                               Appellee.                  No. 2345     -   February 17, 2012 

                Appeal     from   the  Superior   Court,   Third   Judicial   District, 
                Cordova, Eric A. Aarseth, Judge. 

                Appearances:      Beth Lewis Trimmer and Dan Bair, Assistant 
                Public Advocates, Appeals & Statewide Defense Section; Chad 
                Flanders, additional counsel; and Rachel Levitt and Richard K. 
                Allen,    Public   Advocates,    Anchorage,     for   the  Appellant. 
                Timothy   W.   Terrell,   Assistant   Attorney   General,   Office   of 
                Special   Prosecutions   and   Appeals,   Anchorage,   and   John   J. 
                Burns, Attorney General, Juneau, for the Appellee. 

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

                MANNHEIMER, Judge. 

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

                Michael D. Phillips appeals his convictions for first-degree sexual assault 
and first- and second-degree physical assault. 1          Phillips raises two main contentions on 

appeal.  Phillips argues that his boots were unlawfully seized following his arrest, and 

that the superior court should have suppressed all evidence of the forensic testing that 

was later   performed on the boots.            In addition,   Phillips argues that his trial judge, 

Superior Court Judge Eric A. Aarseth, should have recused himself when the judge 

realized, at the beginning of the trial, that the victim's sister lived in his neighborhood 

and was a friend of his wife. 

                Phillips's   claim   that   the   test   results   from   his   boots   should   have   been 

suppressed hinges on how one construes the facts surrounding Phillips's arrest and the 

manner in which the police handled his boots.                  As we explain in this opinion, the 

pertinent facts are somewhat ambiguous. However, viewing the record in the light most 

favorable to Judge Aarseth's ruling, we conclude that the record supports the judge's 

conclusion that the boots were validly seized as part of the search incident to Phillips's 

arrest. 

                The answer to Phillips's next argument - i.e., his claimthat Judge Aarseth 

should have recused himself - is legally more complex. 

                As soon as Judge Aarseth realized that he had a connection to the victim's 

sister, he disclosed the details of this connection - in particular, the fact that the sister 

lived in his neighborhood, that his wife was friends with her, that their children played 

together, and that the sister's older child had babysat the judge's children. Judge Aarseth 

concluded that this connection to the victim's sister would not affect his ability to be an 

impartial decision-maker in Phillips's case.            Judge Aarseth further concluded that his 

    1   AS 11.41.410(a)(1), AS 11.41.200(a)(2), and AS 11.41.210(a)(2), respectively. 

                                                  - 2 -                                               2345 

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

connection to the victim's sister was not the type of circumstance that would cause 

reasonable people to question his ability to be fair and impartial. 

                Phillips   contends   that   Judge   Aarseth   committed   error   in   reaching   this 

second conclusion -i.e., the conclusion that therewas no appearance of bias - because 

the judge misunderstood or   misapplied   the law relating to judicial disqualification. 

Phillips asks this Court to either reverse Judge Aarseth's decision or at least remand 

Phillips's case to the superior court for reconsideration of this issue. 

                Prior Alaska decisions on the issue of judicial disqualification repeatedly 

(and consistently) state that a judge's denial of a recusal motion is reviewed under the 

"abuse   of   discretion"   standard.      But   as   we   explain   in   this   opinion,   the   "abuse   of 

discretion" standard of review applies only to a judge's decision on the issue of whether 

the judge is actually capable of being fair.   On the separate issue of whether, given the 

circumstances, reasonable people would question the judge'sability to be fair, the proper 

standard of review is de novo - because "reasonable appearance of bias" is assessed 

under an objective standard.        Thus, an appellate court independently assesses whether 

the circumstances created a reasonable appearance of bias, and the appellate court does 

not defer to the decision made by the lower court. 

                Based on our review of the record, we do not believe that Judge Aarseth 

misunderstood or misapplied the law regarding judicial disqualification.   But even if he 

did, it makes no difference.   Because this Court must independently assess the question 

of reasonable appearance of bias, and because we do not defer to Judge Aarseth's 

decision, the correctness or incorrectness of his approach to this issue is moot. 

                Turning then to the ultimate question of whether reasonable people would 

question Judge Aarseth's ability to be fair, given his connection to the victim's sister, we 

reach the same conclusion as Judge Aarseth: this connection did not create a reasonable 

                                                  - 3 -                                             2345
 

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

appearance of bias or partiality.    Judge Aarseth therefore correctly denied Phillips's 

recusal motion. 

       Whether Phillips's boots were seized during a search incident to his arrest 

              On the night of October 3, 2006, after finishing work, K.M. went to a 

Cordova bar (the Alaskan) to have a beer.   Michael Phillips, whom K.M. had never met 

before, was also at this bar.   They struck up a conversation, and Phillips bought K.M. 

some drinks.    By the time the Alaskan closed, K.M. had consumed numerous drinks. 

She headed to another bar (the Moose Lodge), and Phillips followed along. They drank 

at the Moose Lodge until that bar closed, and then K.M. started walking home. 

              K.M.   had    only  vague   recollections  of  what   happened    next.   She 

remembered being "pressed down by [her] neck on the ground and feeling ... the cold 

concrete and ... the sounds of [her]self screaming."   She also remembered getting hit in 

the face, and someone swearing at her and telling her to shut up. 

              K.M.'s next memory was of waking up in the hospital.   As a result of this 

attack, K.M. required stitches above each eye, on her chin, and in her genital area. K.M. 

also suffered fractures beneath each of her eyes; repair of these fractures required the 

insertion of titanium plates. 

              The assault on K.M. came to the attention of the Cordova police almost 

immediately, because someone contacted the police department to complain about the 

noise coming from the alley behind the Prince William Sound Hotel.           Officer Danny 

Michels was dispatched to investigate this noise complaint. When Michels arrived at the 

scene, Phillips was standing with his pants down and his genitals exposed, while K.M. 

was lying disrobed on the ground, her body exposed from her ankles to above her 

breasts. 

                                           - 4 -                                       2345
 

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

                K.M. was barely conscious.          Her eyes were nearly swollen shut, and she 

had blood around both eyes.   K.M. also appeared to have a laceration on her left breast, 

and her mouth was bloody. 

                When Michels asked Phillips what was going on, Phillips responded that 

he and K.M. were having sex, and that K.M. passed out. 

                Michels saw that Phillips's hands wereinjured: his knuckles and fingernail 

tips were red and swollen.   Phillips also had injuries to his face. 

                Based on his observations at the scene, Michels called for the assistance of 

Officer   Eva   Squires,   the   Cordova   Police   Department's   sexual   assault   investigation 

officer.    When Squires interviewed Phillips, Phillips asserted that K.M. was injured 

because she had repeatedly fallen.           But when Squires went to examine the locations 

where Phillips claimed K.M. fell, she could not find any blood. 

                Officer Michels took Phillips into custodyand transported himto the police 

station (which also served as the jail) - although Michels did not inform Phillips that 

he was under arrest for sexual assault until they arrived at the station. Cordova is a small 

town, and Michels served not only as the arresting officer but the booking officer as well. 

According to the audio recording of Michels's contact with Phillips, Michels seized 

Phillips's   boots   shortly   after   their   arrival   at   the   station,   immediately   after   Michels 

informed Phillips that he was under arrest, and while Michels was collecting other items 

of Phillips's outer clothing (his jacket, hat, sweatshirt, and belt). 

                Michel placed Phillips in a cell.          Some time later, Michel had Phillips 

change from his street clothes into a jail jumpsuit. 

                The following day, another officer (John Hodges) removed Phillips from 

his cell and took him to his arraignment.           As they were leaving, Phillips saw his boots 

sitting on the ground in front of a locker.          Phillips asked Hodges if he could wear his 

boots to the arraignment (because he saw that another inmate was wearing personal 

                                                 - 5 -                                             2345
 

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

shoes), but Hodges replied that Phillips could not wear his boots because they were 

evidence. 

              Phillips's boots were later tested at the State Crime Laboratory.       Bits of 

tissue and stains that tested presumptively positive for blood were found on the boots. 

With regard to both the tissue and the blood stains, the DNA retrieved from these 

samples was consistent with K.M.'s DNA, but it was inconsistent with Phillips's. 

              In the superior court, Phillips sought suppression of these test results, based 

on the theory that the seizure of his boots was unlawful.       Phillips acknowledged that, 

given the circumstances, the police had probable cause to believe either that his boots 

were evidence in and of themselves, or that the boots would contain evidence (such as 

the tissue and blood samples later retrieved from them).         Indeed, on appeal, Phillips 

concedes that the remainder of his clothing was validly seized incident to his arrest. But 

Phillips notes that the police treated his boots differently from the rest of his clothing: 

the other articles of clothing were placed in bags in the Cordova evidence locker, while 

the boots were left near a tote, in the area where shoes were normally placed during 

inventory searches. 

              Based on this disparate treatment,Phillipsargued thathis boots wereseized 

during an inventory search incident to his being booked into jail, not a search incident 

to his arrest.   And under Alaska law, the police may not conduct a general exploratory 
search of articles seized during an inventory search. 2   Phillips therefore argued that the 

police had no authority to send his boots to the Crime Lab for forensic testing (absent a 

valid warrant). 

              Because Phillips's argument was premised on a particular inference that he 

wished to draw from the manner in which the police dealt with his boots, a proper 

    2  Reeves v. State, 599 P.2d 727, 737-38 (Alaska 1979). 

                                            - 6 -                                        2345 

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

evaluation of Phillips's argument hinged, to a certain extent, on the practices and policies 

of the Cordova police. 

                 As we have already noted, the Cordova police station and jail comprise a 

single physical facility. Moreover, Officer Michels was not only the arresting officer but 

the booking officer as well.         Thus, there was not the kind of demarcation between the 

arresting process and the booking process that one might expect in larger urban centers. 

                 Officer   Hodges   -   who   was   officially   the   evidence   custodian   of   the 

Cordova PoliceDepartment -testified about the laxness (or at least uneven application) 

of jail policies, as well as the latitude of the police practices governing collection and 

storage of evidence.        For instance, according to Cordova jail policy, inmates were not 

supposed to wear their own clothes while in jail; instead, they were to be given a jail 

jumpsuit to wear.   However, Hodges testified that this policy was rarely followed. 

                 Hodges further testified that a jail inmate's personal belongings - which 

included anything that was seized from the inmate's person, plus their street clothing, if 

they were to be dressed in a jumpsuit - would be placed in a tote and then locked in a 

cabinet.   On the other hand, items seized from an arrestee for purposes of investigation 

(whether by consent or under color of authority) might be stored in the evidence room 

or, if the evidence room was not available, stored in a locked jail cell.                  It appears that 

Phillips's   boots   were   not   treated   in   either   of   these   fashions.  Instead,   as   we   have 

explained,   the boots were sitting out in   plain   sight when Phillips was taken   to   his 

arraignment, several hours after his arrest. 

                 Judge Aarseth denied Phillips's suppression motion because he concluded 

that Phillips's boots were indeed seized during a search incident to arrest.                    The judge 

noted that the police had ample probable cause to believe that Phillips had committed a 

sexual assault, and ample reason to believe that Phillips's outer clothing might contain 

trace evidence of that assault (such items as hair, fiber, blood, and other bodily fluids). 

                                                   - 7 -                                              2345
 

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

                 As we have explained, the record shows that the police seized Phillips's 

boots at the same time they seized several other articles of his outer clothing.                    As we 

have also explained, Phillips concedes that the other articles of clothing were lawfully 

seized incident to his arrest - because those items were placed in bags and put into the 

evidence locker.   The real issue, then, is whether a reasonable judge could conclude, on 

these facts, that Phillips's boots were also seized incident to his arrest, even though the 

boots were handled differently. 

                 We conclude that Judge Aarseth could reasonably find that, despite the 

different handling of Phillips's boots, the boots were seized during the same search 

incident to arrest as the other articles of Phillips's clothing.              Accordingly, we uphold 

Judge Aarseth's denial of Phillips's suppression motion. 

         Whether   Judge   Aarseth   should   have   recused   himself   because   of   his 
        connection to K.M.'s sister 

                 Phillips's   trial   was   held   in   Anchorage   in   April   2008.    Following   the 

completion   of   jury   selection,   the   parties   assembled   in   court   on   April   14th   for   the 

administration of the oath to the jurors and the presentation of opening statements. 

                 When court convened, Judge Aarseth spotted a woman in the courtroom 

whom he recognized - a woman who lived in his neighborhood.   During a break in the 

proceedings, Judge Aarseth informed the parties that he knew this woman, that she lived 

in his neighborhood, and that her first name was "Sara" - although the judge could not 

recall her last name.   It turned out that this woman was K.M.'s sister. 

                 The   prosecutor   explained   that   Sara   was   not   going   to   be   a   witness   in 

Phillips's case; rather, she was there to offer support to her sister, K.M..   Nevertheless, 

Judge Aarseth perceived that his acquaintance with Sara might make Phillips or his 

                                                   - 8 -                                              2345
 

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

attorney uneasy, so the judge provided the parties with further details of his relationship 

with her. 

                 The details of Judge Aarseth's connection to Sara (as explained by the 

judge on the record) are not in dispute.   Sara and her husband were relatively new to the 

judge's neighborhood; they had lived there for less than a year.  Sara and her husband 

had children who were a little older than the judge's children, and the children played 

together.   Sara's oldest child had babysat the judge's children on a couple of occasions. 

                 Judge Aarseth's wife socialized with Sara, and there were times when she 

and Sara would speak to each other several times a day.   On the other hand, the judge's 

own relationshipwithSarawas substantially moreattenuated: he had attended one social 

event at Sara's house, but "other than that, [he had] had minimal contact with this lady". 

The judge characterized his relationship with Sara as an "acquaintanceship" rather than 

a "close friendship". 

                 Having explained his relationship with Sara, Judge Aarseth concluded that 

his acquaintance with Sara would not affect his ability to be fair in Phillips's case.   The 

judge therefore announced that he did   not intend to   recuse himself,   but he invited 

Phillips'sattorney to make a recusal motion if the defense attorney believed that the issue 

should be pursued further. 

                 (a) The litigation of this issue in the superior court 

                 Phillips's   attorney   did,   in   fact,   formally   ask   Judge   Aarseth   to   recuse 

himself.     The defense attorney argued that, no matter how attenuated Judge Aarseth's 

relationship   with   Sara   might   be,   the   judge   would   be   influenced   by   the   fact   that   a 

neighbor of his was the victim's sister.           The defense attorney argued in the alternative 

                                                   - 9 -                                              2345
 

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

that, even if Judge Aarseth was capable of remaining impartial, the judge's acquaintance 

with Sara created the appearance of partiality. 

                After   listening   to  the   defense   attorney's   argument     (and   hearing   the 

prosecutor's response), Judge Aarseth dismissed the jury for the day and then called a 

recess so that he consider his ruling.   When court reconvened (without the jury), Judge 

Aarseth reiterated his conclusion that his acquaintance with K.M.'s sister Sara would not 

affect his subjective ability to make impartial decisions in Phillips's case. 

                Judge Aarseth then addressed the defense attorney's alternative argument: 

the argument that the judge's connection to Sara created a reasonable appearance of bias. 

Readers should pay particular attention to the italicized third paragraph of the judge's 

remarks - where Judge Aarseth discussed a judge's duty to sit on the cases assigned to 

them - because this is the part of Judge Aarseth's analysis that Phillips attacks in this 

appeal: 

                        The   Court:     The   [defense   recusal]   motion   ...   also 
                incorporates the issue of appearance [of partiality].            ...  I 
                call[ed]Ms. Greenstein, [theexecutivedirector of]theAlaska 
                Judicial Conduct Commission, to get some advice [on this 
                point].   And, frankly, ... I discussed with her [how] judges ... 
                in small communities ... [handle this] situation. 

                       It is very common in Alaska [to have only] one local 
               judge, and ... [that judge] basically [faces this situation] in 
                probably every case that comes in front of them.   They need 
                to make [the] determination of whether they need to recuse 
                themselves [because of their acquaintance with people], and 
                [whether there is] the appearance [of partiality].   ... 

                       [I]n Alaska, there is a duty to recuse yourself ... if 
                reasonable people would feel that ... you are not going to be, 
                or would not be, fair and impartial.   But there first is a duty 

                                               -  10 -                                          2345
 

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

                 to   sit   on   the   cases   that   you   are   assigned   to[;   it]   is   the 
                presumption [of] the law that you are going to [sit] on the 
                 cases  that you   are assigned to,   and that you   only recuse 
                yourself when there is good cause. 

                         I do not find that ... good cause exists for me to recuse 
                 myself fromthis case based upon any potential appearance of 
                 partiality or bias, because I don't think that anyone could 
                 come to that conclusion, reasonably.  ...  So, therefore, I am 
                 denying the motion [for recusal]. 

                 Later, Judge Aarseth issued a written order re-affirming his oral decision. 

With   respect   to   Phillips's   argument   that   the   judge's   connection   to   Sara   created   a 

reasonable appearance of bias, Judge Aarseth wrote: 

                         I ... find that the tangential connection between my 
                 neighbor   [i.e.,   K.M.'s   sister   Sara]   and   this   case   does   not 
                 reasonably create the appearance of bias or partiality on my 
                 part.    Judges   in   small   communities   in   Alaska   face   this 
                 decision every day.   If the judge has been in the community 
                 for any length of time, they frequently will know many of the 
                 people involved in the case and yet [they] remain ... a fair and 
                 impartial judge to   preside over the trial.            I also take into 
                 account that judges have a duty to remain on the cases ... 
                 assigned to [them] and [to] only recuse themselves for good 
                 cause.   "It should be kept in mind that a judge has as great an 
                 obligation     not   to  disqualify     himself,    when    there    is  no 
                 occasion to do so, as he has to [disqualify himself] in the 
                 presence of valid reasons."  Amidon v. State, 604 P.2d 575, 
                 577 (Alaska 1979).   I do not find that good cause exists [for 
                 my disqualification]. 

(For ease of reading, we have incorporated the wording of Judge Aarseth's footnote - 

a footnote citing and quoting Amidon - into his main text.) 

                                                  -  11 -                                              2345
 

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

               Because Judge Aarseth denied Phillips's recusal motion, he was required 

by AS 22.20.020(c) to refer the matter to the presiding judge of the next higher level of 

court, so that the presiding judge could appoint another judicial officer to immediately 

review Judge Aarseth's decision.   Phillips's case was a criminal case, so the next higher 

level of court was this Court, and Judge Aarseth should have asked Chief Judge Coats 
to assign a judicial officer to review his decision. 3  Instead, Judge Aarseth referred the 

matter to Chief Justice Dana A. Fabe of the Alaska Supreme Court, and Justice Fabe 

appointed Superior Court Judge Jack W. Smith to review Judge Aarseth's decision. 

               (InAmidon, the supremecourtaddressedthis type of error -i.e., one judge 

reviewing another judge's denial of a recusal motion, in the absence of a proper order of 

appointment from the presiding judge of the next higher level of court.          The supreme 

court concluded that the error would be deemed harmless unless a party made a timely 

objection to the procedural irregularity.   604 P.2d at 577.   Neither Phillips nor the State 

objected to Judge Aarseth's decision to ask Chief Justice Fabe to appoint the reviewing 

judge.) 

               After Judge Smith reviewed the case, he agreed with Judge Aarseth that the 

judge's connection to K.M.'s sister Sara did not create a reasonable appearance of bias. 

Accordingly, Judge Smith affirmed Judge Aarseth's decision not to recuse himself. 

               In this appeal, Phillips does not question Judge Aarseth's conclusion that 

he could in fact remain impartial despite his connection to K.M.'s sister.          However, 

Phillips argues that the circumstances of this case created a reasonable appearance that 

Judge Aarseth would be biased because of his connection to K.M.'s sister, and therefore 

Judge Aarseth should have recused himself on this basis. 

    3  See Burrell v. Burrell, 696 P.2d 157, 165 (Alaska 1984). 

                                            -  12 -                                       2345 

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

                (b) The conflicting Alaska case law on the question of whether a 
               judge can be removed from a case based solely on the appearance 
                of bias 

                In researching the law pertinent to Phillips's case, this Court has carefully 

re-read the major Alaska appellate decisions dealing with judicial disqualification.   Our 

research   reveals   that   both   this   Court   and   the   Alaska   Supreme   Court   have   issued 

conflicting decisions on the question of whether a judge can be removed from a case, 

against the judge's will, based solely on the appearance of bias (as opposed to proof of 

the judge's actual bias). 

                The seminal case on this issue is our supreme court's decision in Amidon 

v. State, 604 P.2d 575 (Alaska 1979). The defendants inAmidon sought to disqualify the 

sentencingjudgeunder thestatutoryprovisionthat isnownumbered AS22.20.020(a)(9). 

This subsection of the statute provides that a judicial officer is disqualified in any court 

action in which "the judicial officer feels that, for any   reason,   a fair and impartial 

decision cannot be given". 

                (This use of the passive voice was written into the statute in 1987, in an 
apparent attempt to make the statute gender-neutral. 4         It is clear, however, from the prior 

version of the statute (the version quoted in Amidon) that the intent of this provision is 

to require judges to disqualify themselves whenever they believe that they could not 

render a fair and impartial decision.) 

                In Amidon, the supreme court recognized that a judge who is challenged 

under this provision of the statute must, in essence, conduct an assessment of their own 

attitudes and emotions, and reach a conclusion as to whether they personally feel that 

they could be fair.   If the judge concludes that they could be fair, "[this] decision should 

    4   See SLA 1987, ch. 38,  10. 

                                                -  13 -                                            2345 

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

be given substantial weight", and an appellate court should reverse the judge's decision 

"only if it amounted to an abuse of discretion".  Amidon, 604 P.2d at 577. 

                The "abuse of discretion" standard of review is appropriate in this context 

because, when a judge decides whether they are subjectively capable of being fair, the 

judge must not only assess the facts of the case but must also engage in self-examination 

to gauge the effect that these facts might have on the judge's decision-making process. 

                Under the "abuse of discretion" standard of review, a judge's conclusion 

that they could remain fair and impartial is accorded great deference; an appellate court 

should   reverse   the   judge's   decision   only   if   that   decision   "is   clearly   untenable   or 
unreasonable". 5      Or, as the supreme court expressed this concept in Amidon, "we will 

not overturn [the] judge's decision unless it is plain that a fair-minded person could not 

rationally come to that conclusion on the basis of the known facts."  Id. at 577. 

                In Amidon, the supreme court discussed the circumstances under which a 

judge's decision might be shown to be clearly unreasonable: 

                Cases can be imagined in which the refusal of the judge to 
                disqualify himself would be patently unreasonable in light of 
                the objective facts.   A showing of actual bias in the decision 
                rendered ... or the appearance of partiality might be sufficient 
                grounds for us to reverse in an appropriate case.   Where only 
                the appearance of partiality is involved, however, we will 
                require a greater showing for reversal. 

Id., 604 P.2d at 577. 

                The supreme court speaks here of "the appearance of partiality", but it is 

important to remember that the ultimate question in Amidon - the ultimate question 

    5   Gonzales v. State, 691 P.2d 285, 286 (Alaska App. 1984). 

                                                 -  14 -                                             2345 

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

posed   by   the   governing   statute   -   was   whether   Amidon's   sentencing   judge   could 

reasonably conclude that he could actually be fair. 

               Intheabove-quotedpassage, when thesupremecourtspeaksof"actualbias 

in the decision [later] rendered" or "the appearance of partiality", the supreme court is 

saying that proof of these things might be convincing circumstantial evidence that the 

challenged judge made an unreasonable assessment of their own ability to be fair when 

the judge denied the recusal motion.   But the court is not saying that the appearance of 

partiality could independently justify the removal of a judge from a case. 

               Regarding the issue of appearance of partiality, the supreme court noted 

that, under the Code of Judicial Conduct, judges are ethically required to disqualify 

themselves in any case where their impartiality "might reasonably be questioned".  Id. 

at 578, quoting former Judicial Canon 3(C)(1).           (The current corresponding canon is 

Canon 3(E)(1).)      But the supreme court also noted that the statute governing judicial 

disqualification, AS 22.20.020, contained no provision that allowed judges to recuse 

themselves based on the appearance of partiality alone.  Amidon, 604 P.2d at 578.   The 

supreme court then openly asked the Alaska Legislature to amend the statute to allow 

judicial disqualification based on the reasonable appearance of partiality.          Ibid.  (This 

request has gone unheeded for 32 years.) 

               The concluding paragraph of theAmidon opinion further demonstrates that 

the supreme court did not view "reasonable appearance of partiality" as an independent 

ground for disqualifying a judge - because, in that concluding paragraph, the supreme 

court did not mention that issue at all. Rather, the supreme court simply decided that the 

sentencing judge had not abused his discretion when he denied the recusal motion - 

because "[a] complete review of the record and the sentence imposed gives no indication 

of any actual bias or prejudice on the part of [the sentencing judge]."  Ibid. (emphasis 

added). 

                                              -  15 -                                        2345
 

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

                 From 1979 (the year thatAmidon was decided) until 1991, when this Court 

decidedPerotti v. State, 806 P.2d 325 (Alaska App. 1991), no reported Alaska appellate 

decision held (or even hinted) that a judge might be disqualified,   over the judge's 

objection,   based   solely   on   the   appearance   of   bias.     As Amidon  explains,   a   strong 

appearance       of  bias   might    be   convincing     proof    that  the   challenged     judge    acted 

unreasonably when the judge concluded that they were free of actual bias.                           But an 

appearance of bias, standing alone, is not a ground for judicial disqualification under the 

governing statute, AS 22.20.020.  See Amidon, 604 P.2d at 577. 

                 Indeed, in Feichtinger v. State, 779 P.2d 344 (Alaska App. 1989), this 

Court expressly held that Alaska law did not allow a judge to be removed from a case, 

over the judge's objection, based merely on the appearance of partiality.                     Here is the 

pertinent portion of Feichtinger, with the accompanying footnote integrated into the text 

for ease of reading: 

                         The sole legislative authority for disqualification of a 
                 trial   judge,    over    the   judge's     objection,    is   found    in 
                 AS   22.20.020.      Amidon   v.   State,   604   P.2d   575,   577-78 
                 (Alaska 1979).   Feichtinger's [argument on appeal is flawed 
                 in]   failing   to   distinguish   between   a   trial   judge's   right   to 
                 recuse    himself    or   herself,   which    may     be  based    on   [a 
                 reasonable appearance of partiality under] Canon 3 of the 
                 Code     of  Judicial    Conduct,     and    a  ...  judge's   power    to 
                 disqualify another judge pursuant to AS 22.20.020(c).                See 
                Blake   v.   Gilbert,   702   P.2d   631,   641-42   (Alaska   1985), 
                 overruled on other grounds; 770 P.2d 290 (Alaska 1989). As 
                 the supreme court has held repeatedly, one judge may only 
                 disqualify another judge as provided in AS 22.20.020. 

Feichtinger, 779 P.2d at 347 & n. 4. 

                                                  -  16 -                                             2345
 

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

                In other words, underFeichtinger, judges who are challenged for bias have 

the option of recusing themselves from a case if they are convinced that the facts give 

rise to a reasonable appearance of partiality - because, in that circumstance, the judge 

has an ethical duty (under the Alaska Code of Judicial Conduct) not to participate in the 

case. 

                But   even   though   the   Alaska   Commission   on   Judicial   Conduct   might 

discipline a judge who knowingly violates this ethical duty, Feichtinger holds that this 

ethical duty can not be enforced by another judge who is reviewing the challenged 

judge's   denial   of   a   recusal   motion   under   AS   22.20.020.     Judicial   review   of   the 

challenged judge's decision is limited to the grounds for disqualification specified in 

AS 22.20.020(a), and (as the supreme court noted in Amidon) this statute does not 

authorize disqualification of a judge based merely on the reasonable appearance of bias. 

                This Court's decision in Feichtinger seemingly resolved the question of 

whether a judge could be disqualified from a case, over their objection, based solely on 

the appearance of bias.  The answer, according to Feichtinger, is "no".  However, less 

than a year and a half later, in Perotti v. State, this Court held that a judge could be 

removed from a case, over their objection, based purely on the appearance of bias. 

                The crucial portion of the Perotti  decision turned on a quotation from 

Amidon, which the Perotti court lifted out of context. 

                In  Amidon,     604   P.2d   at  577,   the  supreme    court   declared    that  "the 

appearance of partiality might be sufficient grounds for us to reverse [a judge's refusal 

to recuse themself] in an appropriate case."          In Perotti, 806 P.2d at 327-28, this Court 

interpreted the supreme court as saying that, even when there is no showing of a judge's 

actual bias, the appearance of partiality might be sufficient, standing alone, to require the 

judge's disqualification. 

                                               -  17 -                                          2345
 

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

               As we have already explained, this was not the supreme court's holding, 

nor was it the supreme court's intention.      Rather, the supreme court was saying that a 

strong   appearance    of  bias  might   be  convincing   circumstantial   evidence   that  the 

challenged judge made an unreasonable assessment of their own subjective ability to be 

fair when they denied the recusal motion. Amidon did not hold that a strong appearance 

of bias, standing alone, was a ground for judicial disqualification.         Instead, Amidon 

explicitly held that the judicial disqualification statute, AS 22.20.020, only allowed 

disqualification for actual bias. 

              Not    only   did  the Perotti  decision   misinterpret  Amidon,     but  it  also 

completely ignored this Court's previous decision inFeichtinger, which had been issued 

less than a year and a half before.   As we have explained, Feichtinger held that a judge 

could not be removed from a case, over the judge's objection, based solely on the 

appearance of bias. ThePerotti decision contains no discussion of that previous holding. 

               (The Perotti decision does mention Feichtinger once, in passing:   there is 

a single, unexplained "see also" citation to Feichtinger, right after the misinterpreted 

quote from Amidon concerning the appearance of bias.  Perotti, 806 P.2d at 328.) 

               In sum, this Court issued contrarydecisions on the same point of law within 

a period of eighteen months. 

               (Of the three judges who decided Feichtinger, only one - Judge James 

Singleton - was a regular member of this Court. The other two judges who participated 

in Feichtinger (Judges Jay Hodges and Niesje Steinkruger) were sittingpro tempore . 

By the timePerotti was decided, Judge Singleton had left the Court. Perotti was decided 

by the remaining two regular members of the Court (Judges Bryner and Coats) plus 

another pro   tempore  judge   (Judge   Elaine   Andrews).       In   other   words,   there   was 

absolutely no overlap between the judges who participated inFeichtinger and the judges 

who participated in Perotti.) 

                                            -  18 -                                       2345
 

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

               In 1996, five years after this Court decided Perotti, the Alaska Supreme 

Court addressed this point of law in Wasserman v. Bartholomew, 923 P.2d 806 (Alaska 

 1996). In Wasserman, the supreme court citedPerotti with approval for the proposition 

that an appearance of bias is sufficient to warrant judicial disqualification.  Id. at 815. 

               The supreme court acknowledged this Court's decision in Feichtinger, 

where we distinguished the ethical duty imposed by Judicial Canon 3 from the legal duty 

of disqualification imposed by AS 22.20.020, and where we held that one judge could 

disqualify another judge only for the reasons specified in the disqualification statute, and 

not solely based on the appearance of bias.      Wasserman, 923 P.2d at 815.   But then the 

supreme court added: 

               However, we have relied upon [Judicial Canon 3] to interpret 
               the [disqualification] statute, ... finding that[,] because of the 
               canon,    AS   22.20.020(a)(9)    includes   an  "appearance    of 
               impartiality."  Perotti v. State, 806 P.2d 325, 327 (Alaska 
               App. 1991); Amidon v. State, 604 P.2d 575, 577-78 (Alaska 
               1979). 

Ibid. 

               The above-quoted statement is somewhat puzzling, because the supreme 

court asserts that ithad interpreted AS 22.20.020 to include disqualification based solely 

on the appearance of bias.  But of the two cases cited for this proposition, the first one 

is this Court's decision inPerotti (which does, in fact, stand for this proposition), and the 

second  one is the supreme court's   own   decision in Amidon  - which,   as we have 
explained, stands for the opposite proposition. 6 

    6   In the interest of complete disclosure, and in fairness to the supreme court, we note 

that the author of the present opinion has likewise cited Amidon for the proposition that "a 
judge's duty of recusal encompasses not only those cases in which the judge actually can not 
                                                                                 (continued...) 

                                            -  19 -                                        2345 

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

               Despite this tension in the law, we will assume, for purposes of deciding 

Phillips's   case,  that  Alaska   law  mandates    disqualification   of  a  judge  when   the 

circumstances give rise to a reasonable appearance of bias, even when there is no proof 

that the judge is actually biased.   We make this assumption for two reasons. 

               First, even thoughFeichtinger andPerotti reach contrary conclusions, and 

even thoughPerotti contains no mention (much less any analysis) ofthecontraryholding 

in Feichtinger, Perotti is the later decision. 

               Second, despite the questions raised by the supreme court's discussion of 

this point in Wasserman, the supreme court does appear to have endorsed the idea that 

a judge can be disqualified, over the judge's objection, based solely on the reasonable 

appearance of bias. 

               For these reasons, we proceed to the question of whether the circumstances 

here gave rise to a reasonable appearance that Judge Aarseth would be biased in his 

handling of Phillips's case. 

               (c) The applicable standard of review 

               The supreme court declared in Amidon, 604 P.2d at 577, that a judge's 

denial of a recusal motion would be reviewed under the "abuse of discretion" standard. 

But as we explained in the preceding section of this opinion, the supreme court was 

speaking about appellate review of a judge's ruling - really, a judge's self-examination 

- on the issue of whether the judge believed they would actually be biased in their 

    6  (...continued) 

be fair and unbiased, but also those cases in which the judge's participation would lead 
reasonable people to question the fairness of the proceedings."  See Keller v. State, 84 P.3d 
1010, 1011-12 (Alaska App. 2004). 

                                            - 20 -                                         2345 

----------------------- Page 21-----------------------

handling of the case.       The Amidon  decision did not deal with appellate review of a 

judge's   ruling   as   to   whether   the   circumstances   of   the   case   created   a reasonable 

appearance of bias. 

                In Perotti, 806 P.2d at 327, this Court likewise declared (citing Amidon) 

that a judge's denial of a recusal motion should be reviewed for abuse of discretion. And 

when, in Perotti, this Court reviewed the superior court judge's ruling that he could 

actually be fair and impartial, that is the test that this Court employed. According to this 

Court, that issue was not even close: 

                        In Perotti's case, Judge Hodges' belief that he could 
                actually be impartial deserves great deference, and the record 
                contains    little  countervailing    evidence    of  actual  bias  to 
                overcome [the judge's] finding. 

Perotti, 806 P.2d at 328. 

                But on the separate issue of whether the circumstances created a reasonable 

appearance of bias, this Court faced a problem in Perotti:  it was impossible to review 

the superior court's ruling for "abuse of discretion" because the superior court made no 

ruling on this issue. 

                As explained in the Perotti  decision, neither   Judge Hodges nor Judge 

Zervos - the judge who reviewed Judge Hodges's decision under AS 22.20.020(c) - 

issued any ruling on the question of whether the circumstances gave rise to a reasonable 

appearance of bias.  Instead, both judges focused solely on the issue of whether Judge 

Hodges could actually be fair.   806 P.2d at 327, 328.   Indeed, Judge Zervos "expressly 

declined to consider [the] appearance of partiality as a factor in reviewing Judge Hodges' 

decision."  Id. at 328. 

                (Given this Court's holding in Feichtinger - the holding that Alaska law 

did not allow one judge to disqualify another judge based solely on the appearance of 

                                               - 21 -                                           2345
 

----------------------- Page 22-----------------------

bias - it is hardly surprising that, once Judge Zervos concluded that Judge Hodges 

could actually be fair and unbiased, Judge Zervos would then decline to consider the 

separate issue of whether the circumstances gave rise to an appearance of bias.  Under 

Feichtinger, this latter issue was utterly moot.) 

                If the "abuse of discretion" standard of review truly governed the issue of 

appearance of bias, then - because there was no pertinent ruling by the lower court - 

one would expect this Court to remand Perotti's case to the superior court, so that either 

Judge Hodges or Judge Zervos, or both of them, could exercise their discretion by 

considering and ruling on the question of the appearance of bias. 

                But this Court pursued a different course:            "In the absence of express 

findings," thePerotti court declared, "we must base our consideration of this issue on the 

totality of the circumstances in the record."          Id.  at 328.    In other words, this Court 

proceeded   to   decide   the   issue   independently,   without   any   deference   to   how   Judge 

Hodges or Judge Zervos might have viewed the issue if they had addressed it. 

                This    Court's   action   was   inconsistent    with   the  notion   of  "abuse    of 

discretion" review. But this Court's action was imminently reasonable if (1) "reasonable 

appearance of bias" is assessed under an objective standard (which it is), and (2) there 

were no material facts in dispute (which was the case in Perotti). 

                Sometimes one must look beyond what a courtsays it is doing and, instead, 

focus on what the court actually is doing. Examining thePerotti decision in this manner, 

we construe Perotti to stand for the proposition that, under a given set of facts, it is a 

question of law whether those facts create a reasonable appearance that a judge will be 

biased.   And because this is an issue of law, an appellate court decides the issue de novo 

- that is, without deference to any ruling issued by the lower court. 

                If we were to apply the "abuse of discretion" standard of review to judges' 

rulings about the reasonable appearance of bias, we would implicitly be declaring that 

                                               - 22 -                                           2345
 

----------------------- Page 23-----------------------

appellate courts would be - and should be - willing to uphold two contradictory 

rulings by different judges under the exactly the same facts, so long as each of the 

challenged   judges   gave   some   reasonable   explanation   of   why   they   did,   or   did   not, 

believe that a reasonable person would question their ability to be fair.  This would be 

fundamentally inconsistent with the idea that "reasonable appearance of bias" is an 

objective test, and not a subjective assessment. 

                (See Erickson v. State, 950 P.2d 580, 586 (Alaska App. 1997), where we 

discussed the related problem of double jeopardy rulings at sentencing - i.e., rulings as 

to whether a defendant's separate counts should be merged, and only one conviction and 

sentence imposed. We concluded that these double jeopardy rulings should be reviewed 

de novo, and not under the "clearly mistaken" standard of review that normally governs 

sentencing decisions, because application of the "clearly mistaken" standard of review 

would lead to the affirmance of contradictory decisions based on exactly the same facts.) 

                Accordingly,       under   the  assumption      that Perotti   correctly    states   the 

governing law - i.e., under the assumption that a judge can be disqualified, over their 

objection, based solely on the appearance of bias - we hold that it is a question of law 

whether, under given facts, the circumstances create a reasonable appearance of bias. 

And, accordingly, we hold that this issue is reviewed de novo. 

                (d)Phillips'sclaimthatJudgeAarseth misunderstoodormisapplied 
                the doctrine of a judge's duty to sit 

                In Amidon, the supreme court urged its readers to "[keep] in mind that a 

judge has as great an obligation not to disqualify himself, when there is no occasion to 

do so, as he has to [disqualify himself] in the presence of valid reasons."                604 P.2d at 

                                                - 23 -                                            2345
 

----------------------- Page 24-----------------------

577. This Court discussed this doctrine - the so-called "duty to sit" - at greater length 

in Feichtinger: 

                        Judges   will   frequently   be   assigned   cases   involving 
                unpleasant issues and difficult problems.   Often litigants and 
                their attorneys will be particularly vexatious. In many cases, 
                publicity adverse to the judge is virtually certain no matter 
                what   decision   he   or   she   reaches.    In   such   cases,   judges 
                insufficiently attuned to their responsibilities might readily 
                welcome a baseless request for recusal as an escape from a 
                difficult case. To surrender to such a temptation would justly 
                expose the judiciary to public contempt based on legitimate 
                public concern about judicial integrity and courage.              While 
                we agree that judges must avoid the appearance of bias, it is 
                equally     important    to   avoid   the  appearance      of  shirking 
                responsibility. 

Feichtinger, 779 P.2d at 348. 

                In this appeal, Phillips contends that there are two ways in which a judge 

might interpret this "duty to sit" precept. 

                A judge might interpret the "duty to sit" - the duty to carry out one's 

assigned duties in the absence of a valid reason for disqualification - as simply the 

converse of the judge's duty of recusal when there is a valid reason for disqualification. 

This is how the doctrine is described in both Amidon and Feichtinger.                   Judges have a 

duty to carry out the tasks assigned to them - in particular, the duty to preside over and 

decide the cases assigned to them - unless there is good cause for the judge's recusal. 

But if there is good cause for recusal, then a judge has a duty to acknowledge the 

disqualification and remove themself from the case. 

                Phillips suggests that some judges might interpret the "duty to sit" as a 

countervailing   consideration   that   must   be   weighed   against   any   valid   ground   for 

                                                 - 24 -                                            2345
 

----------------------- Page 25-----------------------

disqualification.   In other words, Phillips suggests that a judge might employ the "duty 

to sit" doctrine as a justification for denying a recusal motion, even when the judge was 

convinced that there was a valid ground for their recusal, if the judge was also convinced 

that, under the circumstances, the judge's "duty to sit" was entitled to greater weight. 

                Based on our review of Judge Aarseth's oral ruling and his later written 

ruling, we see no reason to think that he applied the "duty to sit" doctrine in the way that 

Phillips suggests.      Instead, Judge Aarseth seems to have applied the doctrine as it is 

explained in Amidon and Feichtinger. 

                But this point is moot.   Phillips does not challenge Judge Aarseth's ruling 

that he could actually be fair - a ruling that we would review for abuse of discretion, 

pursuant to Amidon.         Rather, Phillips challenges Judge Aarseth's conclusion that the 

circumstances of this case did not give rise to a reasonable appearance of bias.   And as 

we explained in the preceding section of this opinion, because the material facts are not 

in dispute, the question of the appearance of bias is an issue of law that we, as an 

appellate court, decide independently.            We do not defer to Judge Aarseth's (or Judge 

Smith's)   ruling   on   this   issue.   This   fact   moots   any   potential   flaw   in   those   judges' 

understanding or application of the duty to sit. 

                (e) Whether Judge Aarseth's connection to K.M.'s sister gave rise 
                to a reasonable appearance of bias 

                Wenowturntotheremainingissuein this appeal: whether Judge Aarseth's 

connection to K.M.'s sister gave rise to a reasonable appearance of bias. 

                Phillips argues that the relationship between Judge Aarseth and K.M.'s 

sister   Sara   "attained   a   degree   of   intimacy"   that   would   cause   reasonable   people   to 

question the judge's ability to be fair in Phillips's case.               To support this assertion, 

                                                 - 25 -                                             2345
 

----------------------- Page 26-----------------------

Phillips relies on the fact that Sara lived in Judge Aarseth's neighborhood, that Judge 

Aarseth's wife was friends with Sara and spoke with her frequently, that the judge's 

children played with Sara's children, and that the judge and his wife had, on occasion, 

entrusted their children to the care of Sara's older daughter.   Phillips contends that this 

"multi-layered relationship" exceeded the bounds of casual acquaintance and rose to a 

level of friendship that would make reasonable people doubt Judge Aarseth's ability to 

be fair. 

                There are many levels or degrees of friendship in our society. Thus, when 

a question arises as to whether a judge's acquaintance or friendship with a particular 

person requires the judge's disqualification, the answer must ultimately turn on the 

specific facts of the case - in particular, the precise nature of the judge's relationship 

with that person, and the way in which that person is connected to the litigation. 

                The judge who is asked to recuse themself - and later, the reviewing court 

- must gauge whether someone who was apprised of the situation would reasonably 

suspect   that   the   judge's   ability   or   willingness   to   decide   the   case   fairly   would   be 

compromised by the judge's feelings about, or toward, the other person. 

                But even though each case must turn on its facts, the literature on this 

subject provides guidelines for assessing this issue.              In Richard E. Flamm's treatise, 

Judicial Disqualification: Recusal and Disqualification of Judges (2nd ed. 2007), he 

notes that judges "[are not] expected to withdraw from society", id. at 194, and he then 

states: 

                 [I]t   is   generally   agreed   that   the   mere   fact   that   a  judge 
                maintains an ordinary social relationship ... either with [one 
                or more] parties to the proceeding or with the attorneys ... 
                does not provide a valid basis for disqualifying that judge 
                from presiding over proceedings involving [these] persons. 

                                                 - 26 -                                             2345
 

----------------------- Page 27-----------------------

Id. at 195 (collecting cases). 

                This   same   guideline   applies   to   situations   where   the   judge   is   socially 

acquainted with the alleged victim in a criminal case. According to the treatise, "the fact 

that the judge may [be] acquainted with [the alleged] victim of the crime [the] defendant 

[is]   accused   of   committing   is   generally   deemed   to   be   insufficient   to   mandate   [the 

judge's] disqualification".      Id. at 206. 

                Mr. Flamm then addresses the situation presented in Phillips's case: 

                 [Because a judge's acquaintance with the victim does not 
                 ordinarily require the judge's disqualification, it necessarily 
                 follows   that   a   judge's]   mere   acquaintance   with   a   crime 
                victim's relative is not ordinarily deemed to be disqualifying. 

Id. at 207 (emphasis added). 

                Although Phillips asserts that Judge Aarseth's relationship with K.M.'s 

sister Sara exceeded mere social acquaintance or social friendship, the record does not 

support this assertion.   According to the record, Judge Aarseth had very limited contact 

with Sara.   The primary relationship here was between Sara and Judge Aarseth's wife. 

Moreover, that relationship appears to have been the kind of social friendship that one 

might expect between two women who live in the same neighborhood and who are the 

primary caretakers of children of similar ages. 

                 Several Alaska cases have upheld judges' refusals to disqualify themselves 

when the judges had social connections to participants in the litigation. 

                For instance, in Nelson v. Jones, 781 P.2d 964 (Alaska 1989), the supreme 

court upheld a judge's denial of a recusal motion that was premised on the fact that the 

judge had been observed socializing with the guardian ad litem (who was of the opposite 

sex).    Id.  at   971-72.   Nelson  was   a   pre-Perotti  case,   and   thus   the   supreme   court 

considered   only   the   question   of   the   judge's   actual     bias,   and   not   the   reasonable 

                                                 - 27 -                                             2345
 

----------------------- Page 28-----------------------

appearance of bias.   Nevertheless, the supreme court noted that there were two reasons 

why the judge's socializing with the guardian ad litem did not suggest any bias: first, the 

judge's wife was present at this same social gathering; and second, it would be difficult 

for a judge in a small community to completely avoid socializing with the attorneys and 

the guardians in the cases assigned to them.  Id. at 972. 

                (See also Keller v. State, 84 P.3d 1010, 1012 (Alaska App. 2004), where 

this Court noted that "[a]ny judge, but especially judges in smaller communities, will 

from time to time be assigned to a case which involves people whom the judge knows.") 

                In Barrett v. Barrett, Alaska Memorandum Opinion No. 1053 (November 

 14,   2001),   2001   WL   34818273,   the   question   was   whether   a   trial   judge   should   be 

disqualified because of the judge's acquaintance with a potential witness - a woman 

who worked at the eye care office where the judge was a patient.   2001 WL 34818273 

at *1.   The supreme court noted that the judge's contact with this potential witness was 

limited, and that their relationship was a professional one.  Id., 2001 WL 34818273 at 

*2. Moreover, this woman was not actually called to testify; thus, nothing in the ultimate 

decision of the case hinged on any matter within this witness's knowledge.  Ibid. 

                Similarly,inNighswongerv. State, AlaskaApp.MemorandumOpinionNo. 

2569 (December 9, 1992), 1992 WL 12153670, this Court concluded that no recusal was 

necessary in a case where the judge was a social acquaintance of the prosecutor, but not 

close friends with her.   1992 WL 12153670 at *9-10. 

                Thereareno Alaska cases where judicial disqualification has been required 

based on the kind of tangential relationship presented in Phillips's case - a judge's 

social acquaintance with a relative of the alleged victim.   We further note that there was 

no evidence (nor any allegation) that Judge Aarseth had discussed the case with Sara or 

that she had otherwise expressed her views about the case to him. 

                                                - 28 -                                            2345
 

----------------------- Page 29-----------------------

              Given this record, we conclude that the facts of Judge Aarseth's connection 

to K.M.'s sister Sara would not cause reasonable people to doubt the judge's ability and 

willingness to be fair.   Accordingly, there was no good reason for Judge Aarseth to 

remove himself from the case, and Phillips's recusal motion was properly denied. 

       Conclusion 

              The judgement of the superior court is AFFIRMED. 

                                         - 29 -                                     2345
 
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