Appeal from the Superior Court, Third Judicial District, Anchorage, Michael Spaan, Judge. Court of Appeals No. A-10444 Trial Court No. 3AN-84-1190 CR
The opinion of the court was delivered by: Bolger, Judge.
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 at appellate.courts.state.ak.us
Before: Coats, Chief Judge, and Mannheimer and Bolger, Judges.
MANNHEIMER, Judge, concurring.
Brian Dussault was acquitted of first-degree murder by reason of insanity and committed to the Alaska Psychiatric Institute (API) in 1984. Superior Court Judge John Suddock conducted several hearings on Dussault's request for conditional release from this confinement. The State argues that Judge Suddock should be disqualified from further participation, alleging that he engaged in a series of improper ex parte communications with William Hogan, the Commissioner of the Department of Health and Social Services (DHSS). We conclude that Judge Suddock's ex parte communications were not authorized by law and that these communications created an appearance of impropriety that requires his disqualification from this case.
In 1984, Brian Dussault shot and killed his wife. Dussault was adjudicated not guilty of first-degree murder by reason of insanity and was placed at API in the custody of DHSS. Dussault was conditionally released in 1995 and 1997, but his releases were revoked because he used cocaine in 1995 and absconded after the 1997 release.
Judge John Suddock was assigned to the case in 2003. He conducted annual hearings on Dussault's suitability for release. On February 1, 2008, Judge Suddock conducted an evidentiary hearing on Dussault's renewed motion for conditional release.*fn1 At the hearing, Judge Suddock expressed his tentative willingness to release Dussault under appropriate conditions of supervision. The judge told Dussault's attorney:
I can only decide if conditional release is appropriate in the context of a specific plan. ..
So I can't rule on this thing in a vacuum. ... You have to put a package together. But when you do that, I am prepared to move on this. ..
... [G]et your ducks in a row and come back and get him into [a residential program in Anchorage]. It's going to take something like that, you know that.
Judge Suddock stated that Dussault's release was contingent upon the approval of a final release plan. The State opposed any release of Dussault based on Dussault's lack of progress at API and his flight from the state following his 1997 release. The medical staff from API also objected to Dussault's release because they believed Dussault remained a threat to the community.
After the February 1 hearing, Judge Suddock began to conduct status hearings to discuss potential plans and conditions for Dussault's release. At a March 27 hearing, Judge Suddock suggested that the Department of Corrections (DOC) might assume responsibility for Dussault. The State responded that DOC was not willing to voluntarily assume responsibility for Dussault and that DHSS, not DOC, was the agency legally responsible for Dussault.
At a hearing on April 28, Judge Suddock again suggested that he believed "the most practical solution [would be] for [DHSS] to plead on bended knee to its sister agency, the Department of Corrections, and to try to induce an arrangement whereby the probation department monitors him." The judge also noted that he "tried informally and off record to get some involvement of somebody who's willing to assume responsibility [for Dussault] in a meaningful way," but the judge stated that he was not "able to get any traction."
Eventually, at a May 16 hearing, Assistant Attorney General John Bodick told Judge Suddock that he contacted the DOC Director of Probation and Parole, Donna White, and that DOC was not willing to assume responsibility for Dussault. Judge Suddock continued to hold hearings, but Dussault did not make substantial progress toward assembling a comprehensive release plan.
At a hearing on September 5, Judge Suddock stated that he would be contacting an assistant attorney general representing DHSS to find someone to participate on behalf of the agency. Neither party objected to Judge Suddock's proposed contact with the attorney general's office.
The following month, Judge Suddock attended the Judicial Conference held in Girdwood, where the Commissioner of DHSS, William Hogan, was a speaker. Judge Suddock approached Commissioner Hogan, informed him of the Dussault proceeding, and asked him to designate a DHSS representative to monitor Dussault's status hearings. Judge Suddock also suggested that DOC might assume responsibility for Dussault pursuant to an interdepartmental agreement.
Following this ex parte contact and prior to the next hearing, there were four e-mail communications between Judge Suddock and Commissioner Hogan. 1. November 20, 2008: Judge Suddock contacted Commissioner Hogan in an e-mail entitled "Judge Suddock's conundrum." In this e-mail, Judge Suddock indicated that the relevant statute in Dussault's case "decrees release to a representative of [DHSS]." After informing Commissioner Hogan of the date and time of the next hearing, Judge Suddock told the Commissioner that the court was "in general on a track toward release within months if it proves feasible." Judge Suddock suggested that "[i]t would be helpful to engage with [Commissioner Hogan's] department so [he would ...