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Michael Joseph Johnson v. Municipality of Anchorag (10/2/2020) ap-2680

Michael Joseph Johnson v. Municipality of Anchorag (10/2/2020) ap-2680

                                                                           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 @ akcourts.us  



                           IN THE COURT OF APPEALS OF THE STATE OF ALASKA                                          



MICHAEL  JOSEPH  JOHNSON,  

                                                                                                 Court  of  Appeals  No.  A-12245  

                                                   Appellant,                              Trial  Court Nos.  3AN-06-01018  CR,  

                                                                                        3AN-06-01459  CR,  3AN-12-09692  CR,   

                                      v.                                               3AN-14-09140  CR,  &  3AN-14-09843  CR  



                                                                                                                                      

MUNICIPALITY  OF ANCHORAGE,                                                                                     O P I N I O N  



                                                                                                                                              

                                                   Appellee.                                      No. 2680 - October 2, 2020  



                                                                                                          

                         Appeal          from        the      District         Court,         Third   Judicial               District,  

                                                                           

                         Anchorage, Jo-Ann Chung, Judge.  



                                                                                                                          

                         Appearances:                   Matthew             A.     Michalski,            Attorney   at             Law,  

                                                                                                                           

                         Anchorage,  for  the  Appellant.                               Sarah  E.   Stanley,  Assistant  

                                                                                                                       

                         Municipal   Prosecutor,   and   William   D.   Falsey,   Municipal  

                                                                                               

                         Attorney, Anchorage, for the Appellee.  



                                                                                                                          

                         Before:           Allard,  Chief  Judge,  and  Wollenberg  and  Harbison,  

                                        

                         Judges.  



                                     

                         Judge WOLLENBERG.  



                                                                                                                                               

                                                                                 

                         The present  appeal requires us to address whether a judge is disqualified  



                                                                                                                                                          

from  participating in a  case  if, before  the  judge's  appointment to  the  bench, the  judge  



                                                                                                                                                                  

appeared as a lawyer at a hearing in an earlier stage of the same case.  As we explain in  



                                                                                                                                                           

this opinion, we conclude that Alaska's judicial disqualification statute precludes a judge  



                                                                                                                                                                 

from  participating  in  a  case  under  these  circumstances  and  that,  when  this  issue  is  


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

brought to the judge's attention, the judge is required to recuse herself unless the parties                                                                                      



                                                                                                 1  

 otherwise waive the judge's disqualification.                                                       



                                                                                                                                                        

                              For this reason, we partially reverse the judgment of the district court.  



                                          

                Underlying facts  



                                                                                                                                                                                    

                              In 2014, Michael Joseph Johnson was charged with several offenses under  



                                                                                                                                                                                           

the Anchorage Municipal Code:   assault, family violence (arising from his assault on his  



                                                                                                                                                                                            

 girlfriend  in  the  presence  of  a  child),  and  driving  while  his  license  was  suspended  or  



                   2  

revoked.                                                                                                                                                                     

                         Johnson represented himself at a  jury  trial on these  charges.                                                                         This  trial was  



                                                                                                                                                                                           

held  before  District  Court  Judge  Jo-Ann  Chung.                                                               The  jury  found  Johnson  guilty  as  



                     

 charged.  



                                                                                                                                                                                  

                              In a separate 2014 case, Johnson pleaded no contest to thirty-seven counts  



                                                                                                                         

 of unlawful contact with the same complaining witness.  



                                                                                                                                                                          

                              Based  on  Johnson's   convictions  in  these  two  2014  cases,  Johnson's  



                                                                                                                                                                                         

probation was revoked in three prior municipal assault cases - one case from 2012 and  



                                   

two cases from 2006.  



                                                                                                                                                                                              

                              At  a  combined  sentencing  hearing,  Judge  Chung sentenced  Johnson  to  a  



                                                                                                                              

 composite term of 4 years and 11 months' imprisonment.  



        1      Because this case involves a situation                                            in   which the judge's prior involvement as an                                             



 attorney in the matter was brought to her attention, we express no opinion on the scope of a                                                                                                 

judge's duty to ascertain their prior involvement                                                     sua sponte            , particularly when the judge was                            

not the attorney of record in the case.                                       



        2  

                                                                                                                                                                                        

               Anchorage  Municipal   Code  (AMC)   08.10.010(B)(1),   AMC   08.10.050(B),   and  

                                                                                                                                                                               

AMC 09.28.019(B)(1), respectively.   The Municipality also  charged Johnson with criminal  

                                                                                                                                                            

mischief under AMC 08.20.010(A)(1), but the Municipality later dismissed that charge.  



                                                                                           - 2 -                                                                                       2680
  


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

           Johnson's arguments that the judge should have recused herself from his  

                                                                                                                             

           cases  



                      Prior  to  his  jury  trial,  Johnson  asserted  that  Judge  Chung  should  recuse  

                                                                                                                                 



herself  from  presiding  over  all  of  his  cases.                            Johnson  argued  that  the  judge  was  

                                                                                                                                     



disqualified  for  two  reasons:                  (1)  prior  to  her  appointment  to  the  bench  in  2011,  and  

                                                                                                                                      



during the Municipality of Anchorage's prosecution of Johnson's 2006 cases, the judge  

                                                                                                                                   



was the supervising prosecutor in the Municipality's domestic violence unit, and (2) the  

                                                                                                                                       



judge  represented  the  Municipality  at  a  hearing  in  the  2006  cases  when the  assigned  

                                                                                                                              



municipal prosecutor was not present.  

                                                              



                      In response to these contentions, Judge Chung acknowledged  that she had  

                                                                                                                                      



been  the  supervisor  of  the  Municipality's  domestic  violence  unit  in  2006,  but  she  

                                                                                                                               



declared that she harbored no bias  against Johnson - that, indeed, she had no memory  

                                                                                                                               



of Johnson or his 2006 cases.  The judge further concluded that, even if she did represent  

                                                                                                                              



the  Municipality  at a  single  hearing in 2006, this  alone  did  not provide  a  basis  for her  

                                                                                                                                       



disqualification.  

                            



                      But the judge invited Johnson to file any paperwork documenting her prior  

                                                                                                                                    



involvement in his  cases.                  If it turned out that she did "substantive" work in one of the  

                                                                                                                                       



2006 cases, the judge said that she would reconsider her decision.  

                                                                                          



                      Johnson eventually presented  Judge Chung with documents from his 2006  

                                                                                                                                    



cases.       After reviewing the  log notes, the  judge  discovered  a  hearing in 2006  in which  

                                                                                                                                   



she represented the Municipality on a motion to dismiss under Alaska Criminal Rule 45.  

                                                                                                                                             



The judge nonetheless stood by her decision not to recuse herself, finding that the "Rule  

                                                                                                                                   



45  arguments  were  not substantive"  and  that she  did  not remember anything about  the  

                                                                                                                                       



cases.       (The  judge  recognized  that  Johnson  had  a  right  to  appear  before  the  original  

                                                                                                                                



                                                                  -  3 -                                                            2680
  


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

 sentencing judges for disposition on the petitions to revoke probation, but noted that the                                                   

original sentencing judges were retired and no longer available.                                             3)  



                                                                                                                                              

                        On appeal, Johnson asserts that Judge Chung should have recused  herself  



                                                                                                                                                 

from  all  five  of  his  cases  (i.e.,  Johnson's  two  current  criminal  cases  and  his  three  



                                                                                                                                               

probation revocation proceedings).   Johnson contends that he is entitled to a new trial in  



                                                                                                                                  

the 2014 assault and family violence case, and to resentencing in his other cases.  



                                                                                                                                            

                        Our  analysis  of  these  issues  requires  us  to  draw  a  distinction  between  



                                                                                                                                          

Johnson's three most recent cases (the two  criminal cases from 2014 and the probation  



                                                                                                                                         

revocation  in  his  2012  assault  case)  and  Johnson's  two  oldest  cases  (the  probation  



                                                                                                                                             

revocations in Johnson's two assault  cases from 2006).   As we explain in this opinion,  



                                                                                                                                                      

we   conclude   that,   while   Judge   Chung  was   not   disqualified   from  participating  in  



                                                                                                                                                    

Johnson's   three  most  recent  cases,  she  was   disqualified  from  participating  in  the  



                                                                                            

probation revocation proceedings in Johnson's 2006 cases.  



                                                                                                                                          

            A preliminary issue:  did Johnson waive his right to appellate review of his  

                                                                                                                                     

            disqualification motion by failing to request an independent review, under  

                                                                       

            AS 22.20.020(c), of the denial of that motion?  



                                                                                                                                  

                        We  must  first  address  a  preliminary  issue  raised  by  the  Municipality:  



                                                                                                                                                      

whether Johnson forfeited his right to appellate review of his disqualification motion by  



                                                                                                                                                 

failing to pursue, under AS 22.20.020(c), an independent review of Judge Chung's ruling  



                                                   

by another trial court judge.  



                                                                                                                                               

                        Alaska  Statute  22.20.020(c)  provides  that  "[i]f  a  judicial  officer  denies  



                                                                                                                                            

disqualification[,] the question shall be heard and determined by another judge assigned  



      3     See Trenton v. State, 789 P.2d 178, 178-79 (Alaska App. 1990) (holding that the judge  

                                                                                                                                                  

who imposed the defendant's original sentence should ordinarily be assigned to preside over  

                                                                                                                                                   

any future probation revocation proceedings, unless there is a good cause to assign a different  

                                                                                                                                             

judge).  



                                                                         - 4 -                                                                    2680
  


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

for the purpose by the presiding judge of the next higher level of courts[.]"                                                                                     In this case,     



Judge Chung denied Johnson's motion for disqualification on the record.                                                                                      But no further     



review occurred.                      That is, no other judge reviewed Judge Chung's decision.                                               

                             Relying on the Alaska Supreme Court's 1978 decision in                                                                      Coffey v. State                 ,4  



                                                                                                                                                                                     

the  Municipality  argues   that  Johnson  waived  his  right  to  appeal  the  denial  of  his  



                                                                                                                                                                      

disqualification motion to this Court because he failed to avail himself of the procedure  



                                                                                                                                                                                    

set out in AS 22.20.020(c).  But Coffey stands for a much more limited proposition, one  



                                                                                                                                                                  

narrowly tailored to the asserted deficiency - that by failing to request an independent  



                                                                                                                                                                                     

review under AS 22.20.020(c), a defendant waives the right to challenge on appeal  the  



                                         

failure to hold this independent review.  



                                                                                                                                                                                     

                             In  Coffey,  the  defendant  raised  two  claims  related  to  the  denial  of  his  



                                                                                                                                                                                      

motion to disqualify the trial judge:   (1) he argued that the judge improperly denied his  



                                                                                                                                                                             

motion to disqualify, and (2) he argued that the judge erred in failing to refer his motion  



                                                                                                                                          5  

                                                                                                                                             

to disqualify for review by another judge under AS 22.20.020(c). 



                                                                                                                                                                                    

                             As  to  the  second  issue, the  supreme  court ruled  that Coffey  waived  any  



                                                                                                                                                                      

challenge to the trial court's failure to refer his disqualification motion for an immediate  



                                                                                                                                                                     

review under AS 22.20.020(c) because he had not requested such a review.   According  



                                                                                                                                                                                      

to  the  supreme  court,  "it  was  incumbent  on  Coffey  to  request  the  chief  justice,  as  



                                                                                                                                                                                    

presiding  judge  of  the  next  higher  court,  to  appoint  another  judge  to  determine  the  



                                                                                                                                                         6  

                                                                                                                                                             

question," and his failure to do so waived the issue for appellate review. 



                                                                                                                                                                             

                             But as to the first issue - the challenge to the denial  of Coffey's motion  



       4       Coffey v. State              , 585 P.2d 514 (Alaska 1978).
                                



       5  

                      

              Id. at 525.
  



       6      Id.
  



                                                                                         -  5 -                                                                                   2680
  


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

                                                                                                         7  

                                                                                                                           

to   disqualify - the court addressed this issue on the merits.                                             That is, notwithstanding  



                                                                                                                                   

Coffey's  failure  to  pursue  immediate  review  under  AS  22.20.020(c)  as  a  procedural  



                                                                                                                                                  

matter, the supreme court still afforded full appellate review to the underlying merits of  



                                                          

Coffey's disqualification motion.  



                                                                                                                                     

                       This view is consistent with appellate procedure.   If a judge  is  appointed  



                                                                                                                                                

under AS 22.20.020(c) to  review a  trial  judge's  decision denying disqualification, the  



                                                                                                                                               

decision of this  reviewing judge  is  not an appellate  decision;  rather,  it is  another trial  



                         8  

                                                                                                                                                  

court decision.             It therefore follows that the absence of this review does not preclude an  



                                                                                                                           

appellate  court from later reviewing the  merits  of the  assigned  judge's  initial denial of  



                                                                                                                                               

the motion for disqualification.                        This  is  particularly true when - as here - there was  



                                                                                                                                               

no discussion of AS 22.20.020(c) in the trial court and no indication that Johnson, a pro  



                                                                                                                                           

se defendant, was aware of AS 22.20.020(c) and affirmatively declined to pursue further  



             9  

review.   



                                                                                                                                 

                       We  acknowledge  that  in  two  later  decisions  -  Kingery  v.  Barrett  and  



                                                                                                                                       

Kurka  v.  Kurka  -  the  supreme  court  appears  to  have  construed  its  earlier  decision  



                                                                                                              10  

                                                                                        

in Coffey in the same manner now advanced by the Municipality.                                                                  

                                                                                                                  But the Municipality  



                                                                                                                                                

does  not  cite  to  either  case  -  instead  relying  solely  on  Coffey  -  and  we  are  not  



                                                                                                                         

convinced that we should rely on Kurka  or Kingery  over Coffey itself.  



      7    Id.  



      8     See   Beshaw   v.   State,   2017   WL   5998765,   at   *7   (Alaska   App.   Nov.   29,   2017)  



(unpublished) (Mannheimer, J., concurring).        



      9  

                                                                                                                                

            See Kurka v. Kurka, 2007 WL 1723468, at *6 (Alaska June 13, 2007) (unpublished)  

                                                                                                                                          

("As a pro se litigant, Walter arguably should have been informed that he needed to request  

                                                                             

review by another judge in order to preserve the issue.").  



      10  

                                                                                                                                       

           Kingery v. Barrett, 249 P.3d 275, 286 n.44 (Alaska 2011); Kurka , 2007 WL 1723468,  

     

at *5.  



                                                                       -  6 -                                                                2680
  


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

                           First, unlike            Coffey,  Kurka   is not a published decision.                                          Second, although   



Kingery  is published, its discussion of                                    Coffey  - contained in a footnote and not essential                      

to the decision in the case -                               appears to be dictum.                     11    Indeed, a review of the briefs by  

                                                                                                                                                                        



the parties in Kingery  shows that Kingery  disclaimed any challenge to the denial of his  

                                                                                                                                                                       



                                                                                                                                                  12  

disqualification motion, and that neither party cited to or discussed Coffey.                                                                         

                                                                                                                                    



                                                                                                                                                                 

                           But even if we are bound by the discussion of  Coffey in these later cases,  



                                                                                                                                                                    

both cases are distinguishable on their facts:   in each case, the appellant had either been  



                                                                                                                                                                       

aware of, or later received, the opportunity to litigate the judge's disqualification in the  



                                                                         13  

                                                                                                                                                                 

trial  court  before  a  reviewing  judge.                                      Here,  Johnson,  a pro  se  defendant,  was  never  



                                                                                                                                         14  

                                                                                                       

informed of his right to an independent review under AS 22.20.020(c). 



                                                                                                                                                               

                           For all these reasons, we conclude that Johnson has not waived his right to  



                                                                                                                                                                       

challenge  the  denial  of  his  disqualification  motion  on  the  merits.                                                              (Johnson  does  not  



                                                                                                                                                           

challenge the absence of an independent review under AS 22.20.020(c).)   We therefore  



                                                                                                                    15  

                                                                                                        

proceed to decide Johnson's judicial disqualification claim. 



       11    See Scheele v. City of Anchorage                              , 385 P.2d 582, 583 (Alaska 1963) (describing obiter                                    



dictum as a statement that "was not necessary to the decision in the case").                                                



       12    See Mallott v. Stand for Salmon, 431 P.3d 159, 167-68 (Alaska 2018) (noting that, in  

                                                                                                                                                                          

the absence of an actual dispute between the parties about an issue in a prior case, discussion  

                                                                                                                                                          

of that issue was dictum); see also VECO, Inc. v. Rosebrock ,  970  P.2d 906, 922 (Alaska  

                                                                                                                                                               

 1999) ("Dicta is defined as '[o]pinions of a judge which do  not  embody the resolution or  

                                                                                                                                                                         

determination of the specific case before the court.'" (alteration in original) (quoting Dicta ,  

                                                                                                                                                                  

Black's Law Dictionary 454 (6th ed. 1990))).  

                                                                     



       13  

                                                                                                                             

             Kingery, 249 P.3d at 286 n.44; Kurka , 2007 WL 1723468, at *6.  



       14  

                                                                          

             See Kurka, 2007 WL 1723468, at *6.  



       15  

                                                                                                                                                             

              The Municipality also argues that Johnson waived his right to challenge the denial of  

                                                                                                                                                                   

his disqualification motion because he did not file the motion in writing.  (Before trial, Judge  

                                                                                                                                                                         

Chung apparently instructed Johnson to submit his motion in writing and Johnson failed to  

                                                                                                                                                   (continued...)  



                                                                                  -  7 -                                                                            2680
  


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

             Although  the  judge  was  not disqualified  from  participating in                                                  Johnson's  

             three most recent cases, the judge was disqualified in the 2006                                                         cases   in  

             which she personally appeared as a lawyer                                         



                         Whether a judge is disqualified from presiding over a case is governed by                                                            



two   sources   of   law   -   AS   22.20.020   and   Canon   3E   of   the   Alaska   Code   of   Judicial  

                 16   The statute sets forth a judge's legal duties and is enforceable in the course  

 Conduct.                                                                                                                                             

of the legal proceeding.17  

                                                                                                                                                               

                                                 The Code, in contrast, governs a judge's ethical duties and is  



                                                                                                   18  

                                                                            

 enforced in separate judicial disciplinary proceedings. 



                                                                                                                                                             

                         Two pertinent provisions of the judicial disqualification statute involve the  



                                                                                                                                                                

judge's  prior work as an attorney.   Alaska Statute 22.20.020(a)(6) generally requires a  



                                                                                                                                                               

judge to disqualify herself if the  judge  previously served as an attorney  against  one of  



                                                                                                                                                             

the  parties  to  the  case.                        But  subsection  (a)(6)   expressly  states   that  the  rule  of  



                                                                                                                                                            

disqualification does not apply if the  judge's service as an attorney was more than two  



                        19  

                              

years earlier. 



       15    (...continued)  



                                                                                                                                                 

do  so.)   But Johnson was appearing pro  se , and the judge ultimately  ruled  on  Johnson's  

                                                                                                                                                  

challenge,  notwithstanding  his  failure  to  file  a  written  motion.                                                This  issue  is  therefore  

                                                                                                                                                          

preserved for our review.   See Mahan v. State, 51 P.3d 962, 966 (Alaska App. 2002) ("To  

                                                                                                                

preserve an issue for appeal, an appellant must obtain an adverse ruling.").  



       16  

                                                                                                                                                        

             Wasserman v. Bartholomew, 923 P.2d 806, 815-16 (Alaska 1996); Phillips v. State,  

                                                                                                                                                  

271 P.3d 457, 465-66 (Alaska App. 2012); see also Gamechuk v. State, 2015 WL 4064659,  

                                                          

 at *3 (Alaska App. July 1, 2015) (unpublished).  



       17  

                                              

             Phillips, 271 P.3d at 465.  



       18    Id.  



       19  

                                                                                                                                              

             See  Mustafoski  v.  State,  867  P.2d  824,  835-36  (Alaska  App.  1994)  (construing  

                                                                                                                                                              

AS 22.20.020(a)(6)  as  requiring  disqualification of  a  judge  who  represented  the  State  of  

                                                                                                                               

Alaska against a party within the previous two years, even in an unrelated matter).  



                                                                             -  8 -                                                                       2680
  


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

                                                          And AS 22.20.020(a)(5) requires a judge to recuse herself if she previously                                                                                                                                                                                                        



 served   as   a   lawyer  for   one   of the                                                                                                        parties   to   the   case.    But subsection (a)(5) expressly                                                                                                                              



declares   that this   rule   of disqualification does                                                                                                                                                      not apply   to   situations   where   the   party  



represented by the judge was the State or                                                                                                                                            a   municipality - and it similarly contains a                                                                                                                                                 



two-year look-back period.                                                                                            



                                                           Johnson   acknowledges   that   no   provision   of   the   disqualification   statute  



expressly   mandated   Judge   Chung's   recusal in his                                                                                                                                                                  most recent cases                                                               (his   2014   criminal  



cases and the probation revocation proceeding in his 2012 case).                                                                                                                                                                                                                       Judge Chung's service                                               



as a municipal prosecutor ended in 2011, when she was appointed to the bench, and she                                                                                                                                                                                                                                                                                      



was not assigned as a judge to any of Johnson's cases until 2015, four years later.                                                                                                                                                                                                                                                                             



                                                           Instead,   Johnson argues                                                                                  that the   judge's   prior position as                                                                                                            the   supervising  



prosecutor   in   the   Municipality   of   Anchorage's   domestic   violence   unit  prior   to   her  



appointment to the district court in 2011 created an                                                                                                                                                                       appearance  of bias that would cause                                                                                                  



reasonable people to question whether she could fairly judge his cases.                                                                                                                                                                                                                                            



                                                           But   the    prevailing    view    among    jurisdictions    is    that    a    judge    is    not  



disqualified from participating in a case based solely on the fact that the judge previously                                                                                                                                                                                                                                                 



 served as a prosecutor for the same agency now appearing before her as                                                                                                                                                                                                                                                   counsel in the   



                      20  

case.                                                                                                                                                                                                                                                                                                                                                                    

                                  The Alaska Supreme Court endorsed this principle in Keel v. State :  "[T]he fact  



               20            Richard E. Flamm,                                                           Judicial Disqualification: Recusal and Disqualification of Judges                                                                                                                                                                         



  38.4, at 583 (3d ed. 2017);                                                                                       see, e.g.                          ,  People v. Julien                                                    , 47 P.3d 1194, 1197-98 (Colo. 2002)                                                                                              

(en banc);                               State v. Connelly                                                         , 930 So.2d 951, 954-55 (La. 2006);                                                                                                                      State v. Whittey                                                   , 821 A.2d             

 1086, 1090-91 (N.H. 2003);                                                                                           see also Laird v. Tatum                                                                              , 409 U.S. 824, 830 (1972) (Rehnquist,                                                                          

J., memorandum) (stating that the Justice's own previous employment at the Department of                                                                                                                                                                                                                                      

Justice                             when                         the                 case                     was                    pending                                 was                    not,                   by               itself,                        grounds                                 for                 discretionary  

disqualification);  Matson   v.   Bd.   of  Educ.,   631   F.3d   57,   78   (2d   Cir.   2011)   (Straub,   J.,  

dissenting in part, concurring in part) ("A judge's prior governmental service, even with the                                                                                                                                                                                                                                                                                

 same entity appearing                                                                        before the judge as a party, does not automatically require recusal.                                                                                                                                                                                                                             

                                                                                                                                                                                                                                                                                                                                   (continued...)  



                                                                                                                                                                                   -  9 -                                                                                                                                                                               2680
  


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

that   a   judge   formerly   served   the   public   in   a   prosecutorial  function   is   not,   by   itself,  



sufficient cause to disqualify [the judge] from criminal prosecutions initiated by the State                                                   

subsequent to [the judge's] appointment to the bench."                                       21  

                                                                                                 



      20    (...continued)  



                                                                                                                                                     

Rather, prior governmental service disqualifies a judge from presiding over a matter only if  

                                                                                                                                          

the  judge  directly  participated  in  the  matter  in  some  capacity  or  expressed  an  opinion  

                                                                                                                                                 

concerning the merits of the particular case."); United States v. Ruzzano, 247 F.3d 688, 694  

                                                                                                                                        

(7th Cir. 2001) (noting that "the fact that a judge was an [Assistant United States Attorney]  

                                                                                                                                              

during  the  prosecution,  standing  alone,  does  not  require  recusal"),  overruled  on  other  

                                                                                                                                                 

grounds by Fowler v. Butts, 829 F.3d 788 (7th Cir. 2016); United States v. Di Pasquale, 864  

                                                                                                                                      

F.2d  271, 279 (3d Cir. 1988) ("[A]bsent a specific  showing that [a] judge was previously  

                                                                                                                                                    

involved with a case while in the U.S. Attorney's office that he or she is later assigned  to  

                                                                                                                                         

preside  over  as  a  judge,  [the  federal  disqualification statute]  does  not  mandate  recusal."  

                                                                                                                                             

(emphasis  in  original));  United  States v. Gipson, 835  F.2d 1323, 1326  (10th Cir. 1988)  

                                                                                                                                   

("[B]efore the presumption arises that a judge is in fact partial because of  his past conduct  

                                                                                                                                    

as an attorney, a party seeking disqualification must show that the judge actually participated  

                                                                                                                                                  

as counsel.  Mandatory disqualification then is restricted to those cases in which a judge had  

                                                                                                                                                      

previously taken a part, albeit small, in the investigation, preparation, or prosecution of a  

                                                                                                                        

case."); Payne v. State, 265 So.2d 185, 191 (Ala. 1972) ("The holding of prosecutorial office  

                                                                                                                                                   

as distinguished from working on a concrete piece of litigation is not alone disqualifying for  

                                                                                                                                              

one who later becomes a judge."); Beckum v. State, 917 So.2d 808, 816 (Miss. App. 2005)  

                                                                                                                                              

(holding that  proof that the judge "once worked as a member of a district attorney's office  

                                                                                                                    

that prosecuted Beckum [does not alone] overcome the presumption of impartiality").  



      21  

                                                                                                                                 

            Keel v. State, 552 P.2d 155, 157 (Alaska 1976); see also Wasserman v. Bartholomew,  

                                                                                                                                                     

923  P.2d  806,  815  (Alaska  1996)  ("Prior  representation  by  a  judge  of  the  state  or  a  

                                                                                                                                                  

municipality  is  not  enumerated  among  grounds  for  disqualification  in  the  statute  or  the  

                  

canon.").  

                                                                                                                                              

            This rule is consistent with the commentary to Judicial Canon 3E(1)(b), which states:  

                                                                                                                                           

"A lawyer in a government agency does not ordinarily have an association with other lawyers  

                                                                                                                                         

employed  by  that  agency  within  the  meaning  of   [Canon]   3E(1)(b);  a  judge  formerly  

                                                                                                                                                     

employed  by  a  government  agency,  however,  should  disqualify  himself  or  herself  in  a  

                                                                                                                                              

proceeding  if  the  judge's  impartiality  might  reasonably  be  questioned  because  of  [that]  

                                                                                                                                             

association."   See also  Court of Appeals Standing  Order No. 14  (adopted Jan. 16, 2018)  

                                                                                                                   

(construing the phrase "law firm" in AS 22.20.020(a)(8) as excluding governmental agencies  

                                                                                                                                 (continued...)  



                                                                      -  10 -                                                                  2680
  


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

                       In   accordance   with   this   authority,   we   conclude   that   Judge   Chung's   prior  



 service   as   a   municipal prosecutor -                      which ended            four years        before   her assignment to   



Johnson's   cases   -   did   not  require   the   judge's   disqualification   from   Johnson's   two  



                                                                                                                            22  

current criminal cases and the probation revocation in Johnson's 2012 case.                                                     



                                                                                                                                                

                       We reach a different conclusion with respect to the probation violations in  



                                                                                                                                             

Johnson's 2006 cases.  As we recognized in Mustafoski v. State , "[v]irtually all states and  



                                                                                                                                                 

the federal government . . . require a judge's disqualification if he or she has acted as a  



                                                                             23  

                                                                                                                                    

lawyer  in  the  same  lawsuit  or  controversy."                                   A  leading  commentator  on  judicial  



      21    (...continued)  



                                                                                  

like the prosecutor's office and the Public Defender Agency).  



      22    Johnson also suggests in his briefing that the judge failed to make an adequate record  

                                                                                                                                         

that she could be fair and unbiased in his 2014  cases.   See  AS 22.20.020(a)(9) (requiring  

                                                                                                                                   

disqualification if a judge "feels that, for any reason, a fair and impartial decision cannot be  

                                                                                                                                   

given"); Alaska Code Jud. Conduct Canon 3E(1)(a) (requiring disqualification if "the judge  

                                                                                                                                          

has a personal bias or prejudice concerning a party or a party's lawyer").   We disagree.  The  

                                                                                                                                             

judge  stated  that  she  could  not  remember  Johnson's  cases  and  believed  she  could  be  

                                                                                                                                              

impartial.         To  the  extent  Johnson  is  challenging  the  judge's  conclusion  that  she  was  not  

                                                                                                                                             

personally biased against Johnson and could be fair and impartial in his cases, we  find no  

                                                                                                                                              

abuse of discretion.  See Phillips, 271 P.3d at 464.  

                                                                     



      23  

                                                                                                                                         

           Mustafoski , 867 P.2d at 832 (emphasis in original) (citations omitted); see, e.g., Julien ,  

                                                                                                                                                

47 P.3d  at  1198 (holding that "a judge must disqualify himself or herself sua sponte or in  

                                                                                                                                               

response to a disqualification motion, if facts exist tying the judge to personal knowledge of  

                                                                                                                                             

disputed  evidentiary  facts  concerning  the  proceeding,  some  supervisory  role  over  the  

                                                                                                                                               

attorneys who are prosecuting the case, or some role in the investigation and prosecution of  

                                                                                                                                         

the case during the judge's former employment" as a prosecutor); Gude v. State, 709 S.E.2d  

                                                                                                                                            

206, 208 (Ga. 2011) ("Under both statutory and ethical standards, a trial judge presiding over  

                                                                                                                                        

a criminal matter must recuse himself or herself if that judge previously served as a lawyer  

                                                                                                                                              

or counsel in the controversy at issue" - i.e., if the judge had any actual involvement in any  

                                                                                                                                            

aspect of the prosecution (citation omitted)); Calvert v. State, 498 N.E.2d 105, 107 (Ind. App.  

                                                                                                                                               

 1986) (concluding "that a trial judge must disqualify himself from a proceeding in which he  

                                                                                                                                               

has actively served as an attorney for one of the parties regardless of whether actual bias or  

                                                                                                                             (continued...)  



                                                                    -  11 -                                                                2680
  


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

disqualification,   Richard   E.   Flamm,   has   recognized   that  this   rule   applies   equally   to  



former prosecutors:                    "It has generally been agreed . . . that in a situation where the judge                                            



formerly performed the role of prosecuting attorney in conjunction with the very matter                                                                 



that subsequently comes before her in her judicial capacity . . . it is improper for her to                                                                      



sit."24  



                                                                                                                                                       

                         This rule is reflected in the Alaska Judicial Code - in particular, Alaska  



                                                                                                                                                

Canon 3E(1)(b).  Under this canon, a judge's impartiality may reasonably be questioned  



                                                                                                                                                        

-  and a judge is required to disqualify herself  -  when the judge "served as a lawyer  



                                                        

in the matter in controversy."  



                                                                                                                                                              

                         We  acknowledge  that  the  judicial  disqualification  statute  itself  does  not  



                                                                                                                                                

expressly  preclude  a  judge  from  presiding over  a  case  in which the  judge  previously  



                                                                                                                                                       

served as a lawyer, if that prior service occurred more than two years before the judge's  



                                                                                                                                                      

assignment to  the  case.                      As  we  noted  earlier, the  two provisions  that  govern a  judge's  



                                                                                                                                                             

recusal  in  matters  in  which  the  judge  previously  served  as  an  attorney  (both  for  and  



                                                                                                                      25  

                                                                                                          

against a given party) each contain a two-year look-back period. 



      23     (...continued)  



                                                                                                                                                              

prejudice exists" and reversing convictions where trial judge previously appeared twice, and  

                                                                                                                                                             

filed a motion, on behalf of the State in the same prosecution); Sharp v. Howard Cty., 607  

                                                                                                                                                               

A.2d 545, 551 (Md. 1992) ("When a judge has appeared as counsel in an earlier stage of the  

                                                                                                                                                       

same adversarial proceeding, there is no  question that the judge has advocated the client's  

                                                                                                                                                 

cause,  and  recusal  is  automatic  because  of  the  danger  of  an  appearance  of  partiality."  

                                                                                                                                              

(citation omitted)); In re Estate of Risovi , 429 N.W.2d 404, 406 (N.D. 1988) ("Generally,  

                                                                                                                              

prior legal advice to a party disqualifies a judge from acting in the same controversy.").  



      24  

                                                                                                                                                                  

             Flamm, Judicial Disqualifications: Recusal and Disqualification of Judges  40.4, at  

611.  



      25  

                                                             

             See AS 22.20.020(a)(5) & (a)(6).  



                                                                            -  12 -                                                                         2680
  


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

                              But  we   may   rely   on   the   judicial  canons   to   interpret   the   disqualification  



                 26  

 statute.                                                                                                                                                                    

                             As         we        noted,           Alaska             Judicial             Canon   3E(1)(b)                         requires             a      judge's  



                                                                                                                                                                         

 disqualification if the judge "served as a lawyer in the matter in controversy."  



                                                                                                                                                                                         

                              Moreover, in Keel, the  Alaska  Supreme  Court suggested  that, despite  the  



                                                                                                                                                                                

two-year time limitation codified in AS 22.20.020(a)(5), a judge is nevertheless  always  



                                                                                                                                                                              

 disqualified under  this  subsection of the statute if the judge participated as an attorney  



                                                                                27  

                                                                     

 in an earlier stage of the same case.                                               



                                                                                                                                                                                       

                              In Keel,  the  trial  judge  was  a  former  assistant  district  attorney  who  was  



                                                                                                                                                              28  

                                                                                                                                                                              

 appointed to the bench three months before Keel was criminally charged.                                                                                            The question  



                                                                                                                                                                                      

before  the  court was  whether the  judge  was  disqualified  from participating in the  case  



                                                                                        

by virtue of his former employment as a prosecutor.  



                                                                                                                                                                                

                              As the supreme court explained, in the years before 1967, Alaska's judicial  



                                                                                                                                                                                         

 disqualification  statute  required  a  judge's  disqualification  in  all  instances  where  the  



                                                                                                                                                                                         

judge,  prior  to  the  judge's  appointment,  served  as  an  attorney  for  either  party  "in  the  



                                                                           29  

                                                                                                                                                                        

 action or proceeding in question."                                               However, this  predecessor statute  did  not require  



                                                                                                                                                                                 

 a  judge's disqualification where the judge had served as a lawyer for one of the parties  



                                                    

 in an unrelated matter.  



        26      Wasserman,   923   P.2d   at  815   ("[W]e   have   relied   upon   the   canon to                                                                    interpret  the  



 [judicial disqualification] statute.");                                   see also            Minutes and Audio of Senate Finance Comm.,                                      

House Bill 139, statement of Rep. Max Gruenberg, Jr., legislative sponsor, Tape SFC-87, #                                                                                                    

46, Side 2 (May 11, 1987) (stating that the 1987 revisions to AS 22.20.020 were intended to                                                                                                 

modernize and update Alaska's disqualification statute to bring it "into conform[ity] with the                                                                                            

 canons of judicial ethics").     



        27  

                                                                                                            

               Keel v. State, 552 P.2d 155, 157 n.5 (Alaska 1976).  



        28  

                       

               Id. at 155-56.  



        29  

                                                                                                 

               Id. at 156 n.2 (quoting ACLA  54-2-1 (1949)).  



                                                                                          -  13 -                                                                                     2680
  


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

                          In 1967, the Alaska legislature re-wrote the judicial disqualification statute,                                                  



                                                                    30  

 creating what is now AS 22.20.020.                                                                                                                         

                                                                         Under subsection (a)(5) of the new statute, judges  



                                                                                                                                                            

were (for the first time) disqualified from participating in a case if they formerly served  



                                                                                                                                                                

 as   a  lawyer  for  one  of  the  parties,  even  in  an  unrelated  matter  -  although  this  



                                                                                                                                                        

 disqualification  was   limited  to  instances  where  the  judge's  service  as  an  attorney  



                                                                               

 occurred within the preceding two years.  



                                                                                                                                                    

                          As the supreme court explained in Keel, and as this Court later recognized  



                                                                                                                                                          

in Mustafoski , the rationale of this new, broader rule of disqualification was to prohibit  



                                                                                                                                                              

judges from participating in cases because they might have residual loyalty to the party  



                                         31  

                                             

they had represented. 



                                                                                                                                           

                          The issue raised  in Keel  was whether this presumption of residual loyalty  



                                                                                                                                                               

 applied even when the judge previously represented  a governmental entity - the State  



                                                                                                                                                       

 or a municipality.  The supreme court ruled that the rule of disqualification did not apply  



                            32  

                                                                                                                                                   

in  such  cases.                  (In  1987,  the  legislature  amended  AS  22.20.020(a)(5)  to  reflect  this  



                              33 

                     

holding in Keel .  ) 



                                                                                                                                                                  

                          But  in  a  footnote  of  the  Keel  opinion,  the  supreme  court  declared:                                                            "A  



                                                                                                                                                  

judge, of course, would be disqualified from any case  in which he actually participated  



       30     SLA 1967, ch. 48,  1.                     



       31    Keel, 552 P.2d at 156; Mustafoski v. State, 867 P.2d 824, 835 (Alaska App. 1994).  

                                                                                                                                                                          

The legislature later enacted AS 22.20.020(a)(6), which is based on the related concern that  

                                                                                                                                                                  

 a judge might have residential antipathy to a party they previously opposed.  SLA 1987, ch.  

                                                                                                                                                                   

 38,  10; Mustafoski , 867 P.2d at 835-36.  

                                                          



       32  

                                                                                                                                                      

             Keel, 552 P.2d at 157 (concluding that, in enacting AS 22.20.020(a)(5), the legislature  

                                                                                                                                                               

 did  not  intend  "to  disqualify  a  judge  because  of  his   prior   employment  by  the  state  

                                                                                                                                                             

government from all cases in which the State appears as a party during the prohibited period  

      

 of time").  



       33  

                                                          

             See SLA 1987, ch. 38,  10.  



                                                                              -  14 -                                                                          2680
  


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

                                                                                        34  

                                                                                                                                          

as   a   District  Attorney   by   counseling   or   otherwise."                              In  doing  so,  the  supreme  court  



                                                                                                                                           

implicitly recognized a significant problem with the wording of subsection (a)(5).   This  



                                                                                                                                   

subsection  was  meant  to  expand  the  rule  of  disqualification codified  in  the  pre-1967  



                                                                                                                                            

statute  -  i.e.,  the  rule  that  a  judge  should  not  participate  in  a  case  if  the  judge  had  



                                                                                                                                    

previously served as a lawyer in an earlier stage of the same case - to include unrelated  



                                                                                                                                              

matters  within a  two-year look-back  period.                               But  the  language  of subsection (a)(5) no  



                                                                                                                                        

longer expressly addressed a judge's prior participation as a lawyer in the  same matter  



                                          

occurring outside of two years.  



                                                                                                                                           

                       The reasonable inference from the supreme court's pronouncement in Keel  



                                                                                                                                               

is  that  the  court  construed  AS  22.20.020(a)(5)  as  continuing  to  embody  the  rule  of  



                                                                                                                                                

disqualification that had been codified in the  pre-1967  statute:   the rule that a judge is  



                                                                                                                                          

disqualified  if the  judge  previously  served  as  a  lawyer in an earlier stage  of the  same  



                                                                                                                                            

case,  no  matter  how  much  time  has  passed  and  regardless  of  whether  the  judge  was  



                                                                   

serving as a prosecutor on behalf of the government.  



                                                                                                                                                

                       In Mustafoski , we mentioned this aspect  of  the Keel  decision, but only in  



                                                                                                                      35  

                                                                                                       

passing because it was not directly relevant to our decision in that case.                                                                   

                                                                                                                           However, this  



                                                                                                                                     

aspect of Keel  aligns with the majority rule  and is the same policy that is now codified  



                                                                                                                                             

in Canon 3E(1)(b) of the Alaska Code of Judicial Conduct - the canon that declares that  



                                                                                                                                        

"a judge shall disqualify himself or herself" if "the judge served as a lawyer in the matter  



                            

in controversy."  



                                                                                                                                                

                       In  Johnson's  case,  the  record  shows  that  Judge  Chung  participated  as  a  



                                                                                                                                              

lawyer  in  Johnson's  2006  cases  when  she  represented  the  Municipality  in  a  Rule  45  



                                                                                                                                              

hearing in lieu of the prosecutor assigned to the cases.  At the time, Judge Chung was the  



      34   Keel, 559 P.2d at 157 n.5.
           



      35   Mustafoski , 867 P.2d at 834.
  

                                               



                                                                    -  15 -                                                                2680
  


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

supervisor of the Municipality of Anchorage's domestic violence unit.                                                                                             The record also            



shows   that  Johnson   specifically   brought   Judge   Chung's   prior    representation   to   her  



attention and sought disqualification on this basis, before later providing                                                                                           the   judge with   



                                                          36  

the   2006   files   to   review.                                                                                                                                                   

                                                                 Regardless  of  whether  Judge  Chung  remembered  Johnson  



                                                                                                                                                                                   

from her brief involvement in the 2006 cases, or her ability to render a fair and impartial  



                                                                                                                                                                                 

decision, the judge was required to disqualify herself from presiding over the probation  



                                                                                                                                                                                      

revocation  proceedings  in  the  2006  cases  once  her  direct  participation in the  motion  



                                                                                                                37  

                                                                                                    

hearing on behalf of the prosecution became clear. 



        36     We express no                     opinion on whether a party would be entitled to                                                             relief   if the judge,      



despite reasonable care, was unaware of their prior involvement as an attorney and the issue                                                                                                

was not brought to the judge's attention.                                                 See, e.g.           ,   Commonwealth v. Carter                                , 701         S.W.2d  

409, 411 (Ky. 1985) (holding that when a party relies upon a judge's past legal representation                                                      

in the same matter as a basis for disqualification, "it must appear from the record, either by                                                                                                    

motion   or   otherwise,   that  [the   judge]   was   apprised of                                                         his   connection with                         the   matter   in  

controversy").  



        37  

                                                                                                                                                                                                    

               See People v. Vasquez, 718 N.E.2d 356, 359 (Ill. App. 1999)  (holding, based on a  

                                                                                                                                                                                         

court rule precluding a judge from participating if the judge "served as a lawyer in the matter  

                                                                                                                                                                                           

in  controversy,"  that  a  judge  was  disqualified  from  participating  in  post-conviction  relief  

                                                                                                                                                                                

matter if  he  previously appeared on behalf of the State at a status hearing in the underlying  

                                                                                                                                                                                           

criminal case); People v. Austin , 451 N.E.2d 593, 596-98 (Ill. App. 1983) (recognizing, based  

                                                                                                                                                                                            

on court rule precluding a judge's participation in any case in which he has "previously acted  

                                                                                                                                                                                        

as counsel," that prior representation of a defendant, "although brief, is sufficient to require  

                                                                                                                                                                                                

a  judge's  recusal"  and  reversing  a  probation  revocation  where  the  judge  appeared  on  the  

                                                                                                                                                                                              

defendant's behalf at a preliminary hearing on the underlying charge);  Calvert v. State, 498  

                                                                                                                                                                                          

N.E.2d 105, 107  (Ind. App. 1986) (holding that, based on a court rule precluding a judge  

                                                                                                                                                                                              

from participating if the judge "served as a lawyer in the matter in controversy," a judge was  

                                                                                                                                                                                                 

disqualified  from  a  proceeding  when  he  was  "actively  involved  in  the  prosecution  by  

                                                                                                                                                                                      

appearing twice on behalf of the state and by filing a motion"); Ex parte Miller, 696 S.W.2d  

                                                                                                                                                                                                    

908,  909-10  (Tex.  Crim.  App.  1985)  (holding that,  because  a  probation  revocation  is  a  

                                                                                                                                                                                

continuation of the underlying criminal case, the judge presiding  over probation revocation  

                                                                                                                                                                           

was disqualified  when he represented the State and had an "actual and active participation  

                                                                                                                                                                         (continued...)  



                                                                                             -  16 -                                                                                        2680
  


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

                     (Under   AS  22.20.020(b)   and   under   Judicial  Canon   3F,   this   ground   of  



                                                                             38  

disqualification   may   be   waived   by   the   parties.                                                                    

                                                                                   But  in  the  present  case,  Johnson  



                                                                                        

expressly sought Judge Chung's disqualification on this ground.)  



           Conclusion  



                                                                                                                                 

                     For the  reasons  explained  in this  opinion,  we  conclude  that Judge  Chung  



                                                                                                                                     

could  properly  participate  in  Johnson's   two  criminal  cases  from  2014  and  in  the  



                                                                                                                                 

probation revocation in Johnson's 2012 case.   However, we conclude that Judge Chung  



                                                                                                                            

was disqualified from participating in the probation revocation proceedings in Johnson's  



                                   

two cases from 2006.  



                                                                                                                 

                     We  therefore  vacate  the  portion  of  the  district  court's  judgment  which  



                                                                                                                              

revokes Johnson's probation and imposes a portion of his previously suspended sentence  



                                                                                                                                     

in  those  two  2006  cases.                    If  the  Municipality   wishes   to  pursue  this   matter,  the  



                                                                                     

proceedings must take place before a different judge.  



                                                                                                                                        

                     Because we have vacated Johnson's probation revocation and sentence in  



                                                                                                                             

the two 2006 cases, we do not reach Johnson's claim that his current composite sentence  



                                                                                                                            

is excessive.  That matter will have to wait until Johnson's two 2006 cases are settled.  



                                                                                                                              

                     The trial court shall conduct the resentencing within 90 days of the issuance  



                                                                                                                                 

of this opinion, although the court may seek an extension of this deadline for good cause.  



     37    (...continued)  



                                                                                                                                     

in the applicant's conviction"),  overruled  on  other grounds by Ex parte Richardson, 201  

                                             

S.W.3d 712 (Tex. Crim. App. 2006).  



     38    Cf. Mustafoski, 867  P.2d  at 836 n.4 (noting that the parties may waive the judge's  

                                                                                                                                

disqualification under AS 22.20.020(a)(6) for prior service as a lawyer against a party in an  

                                                                                                                                        

unrelated case within the two-year look-back period).  

                                                                    



                                                                -  17 -                                                            2680
  


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

                                                                                   We retain jurisdiction.                                                                                                                     Johnson shall notify this Court at the conclusion of                                                                                                                                                                                                                                                             



any further proceedings whether he wishes to pursue his excessive sentence claim.                                                                                                                                                                                                                                                                                                                                                                                              



                                                                                                                                                                                                                                                            -  18 -                                                                                                                                                                                                                                                              2680
  

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