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Keller v. State (02/06/2004) ap-1916
Keller v. State (02/06/2004) ap-1916
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:
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IN THE COURT OF APPEALS OF THE STATE OF ALASKA
ALEXANDER JOSEPH KELLER, )
) Court of Appeals No.
A-8544
Appellant, )
Trial Court No. 4BE-02-831 Cr
)
v. )
) O P I N
I O N
STATE OF ALASKA, )
)
Appellee. )
[No. 1916 February 6, 2004]
)
Appeal from the District Court, Fourth Judi
cial District, Bethel, Raymond M. Funk,
Judge.
Appearances: Michele Power, Angstman Law
Office, Bethel, for the Appellant. Jean E.
Seaton, Assistant District Attorney, Gregg
Olson, District Attorney, Bethel, and Gregg
D. Renkes, Attorney General, Juneau, for the
Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
MANNHEIMER, Judge.
MANNHEIMER, Judge, concurring.
Alexander Joseph Keller was charged in the Bethel
district court with the offense of driving while intoxicated.
Kellers father was a bailiff for the Bethel court. Bethel
Magistrate Craig R. McMahon and the two resident judges in
Bethel, Superior Court Judges Dale O. Curda and Leonard R.
Devaney, all recused themselves because of their association with
Kellers father. Kellers case was ultimately assigned to a
Fairbanks judge, District Court Judge Raymond M. Funk. The
question presented in this appeal is whether these judicial
recusals and reassignments affected the calculation of the time
limit for bringing Keller to trial under Alaskas speedy trial
rule, Criminal Rule 45.
Criminal Rule 45 states that a defendant must be
brought to trial within 120 days, not counting the various
excluded periods defined in subsection (d) of the rule. In the
present case, the Rule 45 clock was triggered on July 5, 2002,
when the criminal charge was served on Keller.1 Thus, July 6th
was Day 1 for Rule 45 purposes.2
Keller and the State agree that, for purposes of
deciding this case, the Rule 45 clock stopped on November 6, 2002
the day on which Keller filed his motion to dismiss the criminal
charge because of the asserted violation of Criminal Rule 45.
November 6th was Day 124.
Both parties further agree that, aside from the
recusals of the three judges and the ensuing judicial
reassignments, no events tolled the running of Rule 45 between
July 6th and November 6th. Thus, the question is whether these
judicial recusals tolled the running of Rule 45 for four or more
days. If so, then Keller was brought to trial within the 120
days specified in the rule. If not, then the charge against
Keller must be dismissed with prejudice, pursuant to Rule 45(g).
The State offers two alternative rationales for tolling
Rule 45 on account of the three judicial recusals. First, the
State argues that the time attributable to these recusals is an
excluded period under Rule 45(d)(1), the portion of the rule that
excludes any period of delay resulting from other proceedings
concerning the defendant. Second, the State argues that the time
attributable to the three recusals can be excluded under Rule
45(d)(7), the residual clause that allows a court to exclude a
period of time for good cause, even when that period of time is
not excluded under any other provision of Rule 45(d).
We do not reach the States first argument (that the
time attributable to the judicial recusals should be excluded
under Rule 45(d)(1)). Rather, we decide Kellers case on an
alternate ground. We conclude that when (as in Kellers case) all
of the judges who reside in the place of venue specified by
Criminal Rule 18 are disqualified, thus requiring the assignment
of a judge from another community, this situation constitutes
good cause for a delay of a criminal trial under Rule 45(d)(7).
We further conclude that, in Kellers case, at least four days of
delay can properly be attributed to the fact that his case had to
be reassigned to a judge from outside Bethel. This means that
Keller was brought to trial within the time limits of Rule 45.
A judges duty of recusal under AS 22.20.020 and Canons
2 and 3 of the Alaska Code of Judicial Conduct:
instances of actual partiality, and instances which
create a reasonable appearance of partiality
One of the foundations of our criminal
justice system is the requirement that fair and
unbiased judges preside over litigation. This
requirement is codified in AS 22.20.020(a)(9), which
declares that a judge [shall] not act in a [legal]
matter if the judge concludes for any reason that they
can not render a fair and impartial decision in that
matter.
Although this precept is sometimes referred
to as the right to an impartial tribunal,3 the
requirement of a fair and unbiased judge is more than
simply a right enjoyed by the parties. When judges
conclude that it is impossible for them to be fair and
impartial in a particular case, they have a duty to
recuse themselves from that case even when no party to
the litigation has raised the issue. See AS
22.20.020(c), which envisions judicial disqualification
on the [judicial] officers own motion. Moreover, this
duty of recusal binds the judge even when the parties
announce that they are willing to ignore the judges
inability to be fair and impartial. Canon 3F(1) of the
Alaska Code of Judicial Conduct declares:
A judge shall not seek or accept a
waiver of disqualification when the judge has
a personal bias or prejudice concerning a
party or a lawyer [involved in the case, or]
when, for any other reason, the judge
believes that he or she cannot be fair and
impartial ... .
In addition, a judges duty of
recusal encompasses not only those cases in
which the judge actually can not be fair and
unbiased, but also those cases in which the
judges participation would lead reasonable
people to question the fairness of the
proceedings. See Amidon v. State, 605 P.2d
575, 578 (Alaska 1979), which holds that
judges must disqualify themselves in [any]
proceeding in which [their] impartiality
might reasonably be questioned.
The Amidon decision was based on
former Alaska Judicial Canon 3(C)(1).
However, this same precept disqualification
or recusal based on a reasonable appearance
of partiality is codified in Canons 2A and
3E of Alaskas current Code of Judicial
Conduct. Judicial Canon 2A states that a
judge shall avoid impropriety and the
appearance of impropriety. The Commentary to
Canon 2A states that the test for gauging an
appearance of impropriety is whether the
[judges] conduct would create in reasonable
minds a perception that the judges ability to
carry out judicial responsibilities with
integrity, impartiality, and competence is
impaired. Judicial Canon 3E(1) echoes this
rule: Unless all grounds for
disqualification are waived as permitted by
[Canon] 3F, a judge shall disqualify himself
or herself in [any] proceeding in which the
judges impartiality might reasonably be
questioned.
The counter-balance: a judges duty to carry out their
judicial function if there is no valid ground for
disqualification
Although the law requires judges to recuse
themselves (or to grant a partys request for
disqualification) when they conclude that they can
not be fair and impartial, the law at the same
time requires judges to remain assigned to the
case, and to carry out their normal judicial
functions, when there is no valid ground for
disqualification. As the supreme court stated in
Amidon, [A] judge has as great an obligation not
to disqualify himself, when there is no occasion
to do so, as he has [an obligation to disqualify
himself] in the presence of valid reasons. 604
P.2d at 577. This Court explained this counter-
balancing duty in Feichtinger v. State:
Judges will frequently be assigned cases
involving unpleasant issues and difficult
problems. Often litigants and their
attorneys will be particularly vexatious. In
many cases, publicity adverse to the judge is
virtually certain no matter what decision he
or she reaches. In such cases, judges
insufficiently attuned to their
responsibilities might readily welcome a
baseless request for recusal as an escape
from a difficult case. To surrender to such
a temptation would justly expose the
judiciary to public contempt based on
legitimate public concern about judicial
integrity and courage. While we agree that
judges must avoid the appearance of bias, it
is equally important to avoid the appearance
of shirking responsibility.
779 P.2d 344, 348 (Alaska App. 1989).
Why we conclude that the four-day delay in bringing
Keller to trial is excused under Rule 45(d)(7)
As we have already explained, Kellers case
was assigned to three different Bethel judges.
One after another, each judge recused himself
because of his professional relationship with
Kellers father. Ultimately, Kellers case had to
be assigned to a judge from outside the Bethel
community (i.e., a judge from Fairbanks).
For purposes of calculating a defendants
speedy trial deadline, the normal excluded periods
are codified in Criminal Rule 45(d)(1)-(6). None
of these six provisions expressly includes the
time attributable to a judicial disqualification.
As explained in the concurring opinion, there
is reason to believe that a judicial recusal
qualifies as a proceeding concerning the defendant
under Rule 45(d)(1). However, rather than decide
that point of law, we conclude instead that the
series of judicial recusals in Kellers case
constitutes good cause for delay of Kellers trial
under Rule 45s residual clause, (d)(7).
Any judge, but especially judges in smaller
communities, will from time to time be assigned to
a case which involves people whom the judge knows.
In these situations, a judge must not only gauge
their personal feelings about the people involved
in the litigation, but must also gauge how the
community would likely perceive the judges
decision to remain on the case.
This can be a delicate matter. For instance,
in Kellers case, the underlying problem was that
Kellers father worked as a bailiff for the court. The
first three judges assigned to Kellers case (the three
judges who subsequently recused themselves) had to
assess not only whether they personally believed that
they could be fair, but also such imponderables as
whether rulings favorable to Keller would be perceived
as favoritism, or whether rulings unfavorable to Keller
would be perceived as the judges effort to placate the
State, bending over backwards not to demonstrate
favoritism.
When a judge is assigned to a case long in
advance of trial, the judge may consider these issues
and initially conclude that it is proper for them to
participate in the case, only to change their mind as
the approaching trial date forces a sharper
consideration of the potential appearance of
partiality. And obviously, when a judge is assigned to
a criminal case following the recusal or
disqualification of a prior judge, that second judge
would have no occasion to consider the issue of recusal
until the judge knew that they were assigned to the
case.
Here, three judges recused themselves, one by
one, until it was necessary to assign a Fairbanks judge
to Kellers case. This Fairbanks judge (District Court
Judge Raymond M. Funk) assumedly already had his own
trial calendar. The addition of Kellers case meant
that, unexpectedly, Judge Funks calendar had to be
adjusted to accommodate a criminal trial that had to be
conducted in another city.
In analogous circumstances, we have held that
the Rule 45 calculation should presumptively be
extended by 30 days. In Sundberg v. State, 667 P.2d
1268 (Alaska App. 1983), we held that 30 days should be
added to a defendants Rule 45 calculation when the
defendants case is returned to the jurisdiction of the
trial court following an interlocutory appeal:
Common sense leads us to conclude that a
trial court cannot immediately plug a case
into its trial calendar after a remand. Some
time is needed to ensure that the remanded
case is worked into the trial calendar; the
calendar may already contain a number of
criminal cases equally entitled to
consideration under Criminal Rule 45. In
addition, the prosecution will need a
reasonable time to [marshal] its witnesses,
whether local or out of state, and adjust the
remanded case to its own calendar of criminal
cases, some of which may have Criminal Rule
45 claims. ... [A] reasonable time should be
allowed the court and prosecution to get the
case back on the calendar before Criminal
Rule 45 begins to run again after remand from
the appellate court.
Id. at 1270. We held that, under these
circumstances, 30 days should presumptively
be added to the Rule 45 calculation (i.e.,
even in the absence of specific proof that a
30-day delay was required). Id.
Similarly, in Petersen v. State,
838 P.2d 812 (Alaska App. 1992), we held that
30 days should presumptively be added to the
Rule 45 calculation when a defendant entered
a no contest plea but then, several months
later, withdrew the plea and demanded a
trial. We concluded that this situation was
like the one presented in Sundberg, because
it would be unreasonable to expect the trial
court, upon reinstatement of active
prosecution, to be capable of immediately
reinstating [the defendants] case on the
trial calendar. Id. at 815.
Of course, Sundberg and Petersen
involved delays that were attributable to
the defendants actions. Thus, even when
events unexpectedly place a criminal trial on
a judges calendar, one could argue that the
policy of Sundberg and Petersen should not
apply when those events are not set in motion
by the defendant.
Keller, in fact, makes this very
argument. He asserts that Rule 45(d)(7)
should not be construed to exclude periods of
time that are out of [a defendants] control.
We interpret Keller to be arguing that Rule
45(d)(7) should not exclude a period of time
unless that period of time is attributable to
the defendants act or request.
But several provisions of Rule
45(d) exclude periods of time that are not
attributable to events that the defendant has
set in motion. For instance, Rule 45(d)(1)
expressly excludes the time attributable to
examinations and hearings on competency as
well as the period during which the defendant
is incompetent to stand trial. It is true
that examinations and hearings on competency
are sometimes initiated by the defendant, but
they can also be instituted by the State
and, more importantly for present purposes,
they can be instituted by the court acting
sua sponte.4 In Burks v. State, 748 P.2d
1178, 1180 (Alaska App. 1988), this Court
held that [regardless of whether] the issue
of [the defendants] competency was raised by
his court-appointed counsel [or] by the
[trial] court sua sponte, ... the time
necessary to determine [the defendants]
competency was properly excluded from the
Rule 45 calculation.
Rule 45(d)(1) likewise excludes the
delay attributable to trial of other charges
i.e., other criminal proceedings brought by
the State (or, potentially, by another
government). Here again, Rule 45(d)(1)
exempts time that is not attributable to
actions or proceedings initiated by the
defendant.
See also Rule 45(d)(3), which
allows the prosecution to seek additional
time to bring the defendant to trial when
material evidence is unavailable despite the
States diligent efforts, or when the States
case is of exceptional complexity. And see
Rule 45(d)(6), which excludes the time
attributable to the defendants detention in
another jurisdiction, provided the State has
made diligent efforts to secure the
defendants timely return to Alaska.
We therefore conclude that even
though Keller did not initiate the three
judges recusals (i.e., even though the three
judges recused themselves sua sponte rather
than in response to defense motions
challenging the judges ability to be fair),
this fact does not bar those judicial
recusals from constituting good cause under
Rule 45(d)(7) for the delay in bringing
Keller to trial.
Keller also argues that, if we
construed Rule 45(d)(7) to excuse the delay
in bringing him to trial, we would
effectively extend[] the meaning of good
cause to [include] periods of delay resulting
from scheduling errors on the part of the
court. But it is no scheduling error when
judicial officers conclude that they must
recuse themselves because they are actually
biased, or because their participation in the
case would create a reasonable perception of
bias.
Finally, Keller argues that the
good cause provision of Rule 45(d)(7) should
not apply to his case because the court
system should be prepared for judicial
recusals and should have procedures in place
to ensure prompt re-assignment of a
defendants case in such circumstances, so
that the trial can still take place within
the normal time limits of Rule 45.
Keller points out that in Peterkin
v. State, 543 P.2d 418 (Alaska 1975), and
again in DeMille v. State, 581 P.2d 675
(Alaska 1978), the supreme court ruled that
trial courts are under a duty to [establish]
safeguards to guarantee that pre-trial
procedures will be carefully monitored and
that failsafe techniques [will be instituted
that] will bring to light [any] cases which
approach the 120-day limit.5 Keller further
notes that, in DeMille, the supreme court
apparently rejected the notion that delays in
holding criminal trials could be justified by
court system errors in scheduling cases.6
Based on Peterkin and DeMille,
Keller argues that a court can no longer rely
on judicial mistakes to justify the delay in
bringing a defendant to trial. In
particular, Keller contends that he should
not bear the burden of the [recusing] judges
mistakes in his case.
We again must disagree with Kellers
characterization of what went on here.
Judges decisions to recuse themselves are not
mistakes. Moreover, as we have already
noted, a judge has no occasion to decide
whether they can ethically preside over a
particular case until that case is assigned
to them. Thus, the second and third judges
assigned to Kellers case did not need to
think about the question of recusal until a
large portion of the time allowed by Rule 45
had already elapsed.
If we construed Rule 45(d) as
Keller suggests, so that the speedy trial
clock continued to run during the time
attributable to a judges recusal, this would
pressure judges to ignore good reasons for
their recusal. In Kellers case, for
instance, the second and third judges
assigned to his case might reasonably have
feared that their decision to recuse
themselves would ultimately result in a
violation of Rule 45 meaning that the
charges against Keller would be dismissed
with prejudice.
It is often difficult enough for
judges to decide whether they should recuse
themselves. We must not construe Rule 45 in
a way that makes dismissal of criminal
charges the consequence of a judges decision
to fulfill their ethical duty.
It may be true that the court
system should have procedures in place to
assure prompt re-assignment of criminal cases
when judges recuse themselves. Further, in
multi-judge court locations, if a judges
recusal were announced early enough in the
litigation, the recusal might occasion no
more than one days delay the time needed to
issue the recusal decision and then to assign
a new judge, one who had plenty of time to
work the new case into their calendar.
But Kellers case is considerably
different. Here, three separate local judges
recused themselves, making it necessary to
summon a judge from Fairbanks to preside over
Kellers case. Leaving aside the issue of
whether Rule 45 should be tolled for all
judicial recusals, we are confident that
whenever, as here, judicial recusals make it
necessary to assign a defendants case to a
judge from another location, the resulting
delay constitutes good cause under Rule
45(d)(7).
In Sundberg and in Petersen, we
held that an additional 30 days should
presumptively be added to the Rule 45
calculation when a criminal case is
unexpectedly inserted into a judges trial
calendar following the resolution of an
interlocutory appeal or following the
defendants decision to withdraw a previous
guilty plea. We need not decide whether to
follow the same 30-day rule in situations
like the one presented in Kellers case
because Kellers case involves a delay of only
four days, and because there was a manifest
need for at least a four-day delay after the
three Bethel judges recused themselves and a
Fairbanks judge had to be assigned to Kellers
case.
Conclusion
We hold that the four-day delay in bringing
Keller to trial is excused under Rule 45(d)(7).
Accordingly, the judgement of the district court
is AFFIRMED.
MANNHEIMER, Judge, concurring.
I write separately to point out that the
Alaska Supreme Court has already held that defense
motions for judicial disqualification are excluded from
the speedy trial calculation under Rule 45(d)(1). I
also wish to explain why there is reason to believe
that the time attributable to a judicial recusal i.e.,
a judicial disqualification that is imposed sua sponte
rather than in response to a request from a party may
also be excluded from the speedy trial calculation
under Criminal Rule 45(d)(1).
The Alaska Supreme Court has already held that a
defendants peremptory challenge of a judge, and a
defendants challenge for cause against a judge, are
both proceedings concerning the defendant within the
meaning of Criminal Rule 45(d)(1)
Before addressing the question of whether a
judicial recusal constitutes a proceeding concerning
the defendant for purposes of Rule 45(d)(1), I turn
first to a related question: Does a defense challenge
to a judicial officer (either a challenge for cause or
a peremptory challenge) constitute a proceeding
concerning the defendant for purposes of Rule 45(d)(1)?
Criminal Rule 45(d)(1) states that the Rule
45 clock is tolled during [t]he period of delay
resulting from other proceedings concerning the
defendant. In his brief to this Court, Keller argues
that the potential bias or partiality of the trial
judge does not concern the defendant, at least within
the meaning of that phrase in Rule 45(d)(1). Keller
argues that a judges recusal [affects] the defendant
[only] to the same extent that it [affects] the state,
and that [i]t would strain the meaning of [Rule
45(d)(1)] to argue that a judges recusal concerns the
defendant under this provision.
No Alaska appellate decision explicitly
answers the question of whether a judges sua sponte
disqualification is a proceeding concerning the
defendant for purposes of Rule 45(d)(1). However, the
Alaska Supreme Courts decision in Peterson v. State,
562 P.2d 1350 (Alaska 1977), implicitly rests on the
proposition that a defense challenge to a judicial
officer is a proceeding concerning the defendant under
Rule 45(d)(1).
The defendant in Peterson was arrested for
murder on December 23, 1974.1 (At that time, a
defendants arrest triggered the running of Rule 45.)2
Petersons trial was scheduled for May 8, 1975.3
However, on May 8th, Peterson initiated a series of
challenges (both challenges for cause and peremptory
challenges) to the judges assigned to his case.
First, Peterson challenged Superior Court
Judge Eben Lewis for cause. Judge Lewis denied that
challenge, and his decision was then reviewed and
affirmed by Superior Court Judge Peter Kalamarides.4
After Peterson lost his challenge for cause, he filed a
peremptory challenge of Judge Lewis. Judge Lewis
granted this peremptory challenge, and the case was re-
assigned to Superior Court Judge Ralph Moody.5 But as
soon as Judge Moody took over the case, Peterson
challenged Judge Moody for cause. Judge Moody denied
that challenge, and his decision was then reviewed and
affirmed by Superior Court Judge Seaborn Buckalew.6
Again, after losing the challenge for cause, Peterson
filed a peremptory challenge of Judge Moody. But Judge
Moody denied that challenge because Peterson had
previously exercised a peremptory challenge against
Judge Lewis. (Under Alaska Criminal Rule 25(d), a
defendant is entitled to but one peremptory
challenge).7
Following this string of judicial challenges,
Peterson filed a motion to dismiss the charges against
him for violation of his right to a speedy trial under
Rule 45.8 When this motion was denied, Peterson filed
motions to dismiss his indictment because of various
alleged improprieties at the grand jury proceedings,
and because of pre-indictment delay.9 On June 25,
1975, when the superior court ruled against Peterson on
all these motions, Peterson entered no contest pleas to
the charges against him, preserving his right to raise
all of these issues on appeal and, in particular, his
Rule 45 claim.10
In other words, Petersons trial was scheduled
for May 8, 1975, but the trial was delayed first by a
series of judicial challenges and, later, by a series
of motions seeking dismissal of the charges. The
importance of this procedural history becomes apparent
when one examines the supreme courts discussion of
Petersons Rule 45 claim.
There were 136 days between Petersons arrest
on December 23, 1974, and the scheduled trial date of
May 8, 1975. The supreme court declared that the issue
to be decided in Petersons case was whether there was a
valid excuse for scheduling Petersons trial 136 days
after Petersons arrest.11 That is, the supreme courts
Rule 45 calculation is premised on the conclusion that
the Rule 45 clock stopped running on May 8th. And this
would be true only if Petersons series of judicial
challenges tolled the running of Rule 45.
The supreme court did not specify why they
concluded that Petersons four judicial challenges (two
for cause, and two peremptory) tolled the running of
the rule, but there are only two possibilities: either
the court considered these challenges to be proceedings
concerning the defendant under Rule 45(d)(1), or the
court believed that these challenges constituted other
... good cause under Rule 45(d)(7).
I believe that the supreme courts silence on
this issue is a fair indication that they believed
Petersons challenges were covered by (d)(1). The
supreme court has been cautious when interpreting
(d)(7)s residual clause, out of concern that an
overbroad construction of (d)(7) would defeat the
policy of the speedy trial rule.12 If the supreme
court had believed that it was necessary to invoke
subsection (d)(7) to make May 8th the stopping date in
Petersons case, one would expect the court to have
discussed this issue explicitly. Instead, the court
adopted the May 8th date with essentially no
discussion.
From all of this, I conclude that the supreme
court implicitly held in Peterson that a defendants
challenges to a judicial officer (whether challenges
for cause or peremptory challenges) constitute
proceedings concerning the defendant for purposes of
Rule 45(d)(1) and that the delay attributable to these
challenges is excluded from the Rule 45 calculation.
Why judicial recusals that is, judicial
disqualifications that are imposed sua sponte may
likewise constitute proceedings concerning the
defendant within the meaning of Criminal Rule 45(d)(1)
The next question is whether Rule 45(d)(1)
applies to situations in which the challenge to the
judicial officer is self-generated that is, situations
in which a judicial officer, unprompted by either of
the parties, concludes that he or she should be
disqualified from participation in the proceeding.
Keller argues that Rule 45(d) should not be
construed to exclude periods of time that are out of a
defendants control. He contends that time should not
be exempted under Rule 45(d)(1) unless the triggering
action or event was initiated by the defendant and,
thus, that the rule should not cover judicial
disqualifications that are initiated sua sponte. But,
as the majority opinion explains, Rule 45(d)(1)
expressly encompasses some periods of delay that are
not attributable to actions or events instigated by the
defendant for example, delay attributable to
competency proceedings and the trial of other criminal
charges. Accordingly, the sua sponte nature of the
judicial disqualification is not an impediment to
categorizing it within Rule 45(d)(1).
The remaining question is whether there is
some other reason to believe that Rule 45(d)(1)
includes a defense motion to disqualify a judge but
does not include a judges sua sponte disqualification.
There appears to be no material distinction
between situations in which the defendant questions the
judges ability to be fair and situations in which the
judge raises this question sua sponte. The issue of a
judges ability to be fair is similar to the issue of
the defendants competency, in that both are essential
to the criminal proceeding. If the judge can not be
fair, or if the defendant is incompetent to stand
trial, the trial can not go forward. This is true even
if the defendant wishes to proceed to trial despite
these flaws. Thus, the law allows any participant in
the litigation (the defendant, the state, or the judge)
to raise either of these issues.
Under Rule 45(d)(1), the time attributable to
competency examinations and hearings is expressly
excluded from the speedy trial calculation, even when
the defendant opposes the litigation of the competency
issue. This same policy suggests that the time
attributable to an assessment of the judges ability to
be fair should also be excluded from the Rule 45
calculation, regardless of whether the inquiry is
initiated by the defendant (as was the case in
Peterson), or by the prosecutor, or by the judge (as in
Kellers case).
Moreover, if Rule 45(d)(1) were construed so
that it covered judicial disqualifications initiated by
the defendant (as in Peterson) but did not cover
judicial recusals (i.e., disqualifications initiated by
the judge), this would discourage judges from complying
with their duties under Judicial Conduct Canon 3E and
AS 22.20.020. As the majority opinion explains, judges
may have a difficult time assessing whether they should
recuse themselves in a particular case. Rule 45(d)
should not be interpreted in a way that makes judges
decisions substantially more difficult by confronting
judges with the dilemma that adherence to their ethical
duty might result in violation of the speedy trial
rule, thus barring the government from prosecuting the
defendant.
For these reasons, a good argument could be
made that the holding in Peterson the holding that a
defense-initiated challenge to the trial judge is a
proceeding concerning the defendant under Rule 45(d)(1)
should be extended to instances in which the judges
disqualification arises from recusal. However, under
the facts of Kellers case, such an argument is moot
because (as explained in the Courts main opinion) the
four extra days in Kellers case are excused under Rule
45(d)(7).
_______________________________
1 See Criminal Rule 45(c)(1).
2 See Criminal Rule 40(a): Except as otherwise specifically
provided ... , in computing any period of time, the day of the
act or event from which the designated period of time begins to
run is not to be included.
3 See, e.g., Amidon v. State, 604 P.2d 575, 577 (Alaska
1979).
4 See AS 12.47.100(b), which recognizes that competency
proceedings can be initiated by the court upon its own
motion.
5 Peterkin, 543 P.2d at 424.
6 See DeMille, 581 P.2d at 677-78.
1 Peterson, 562 P.2d at 1356.
2 See the text of the former version of Rule 45(c)(1),
quoted in Peterson, 562 P.2d at 1356.
3 Peterson, 562 P.2d at 1356.
4 Id. at 1355.
5 Id.
6 Id.
7 Id.
8 Id.
9 Id. at 1356.
10 Id.
11 Id.
12 See, e.g., Peterkin v. State, 543 P.2d 418, 423 (Alaska
1975), suggesting that Rule 45(d)(7) was included in Rule 45
to handle situations that were unique [or] unforeseen.
