concurring.
I agree with my colleagues’ resolution of this case, but I write separately to explain more explicitly why we reject the argument presented by the State.
After the State filed its felony complaint against Watt, but while Watt’s case was still in the district court (i.e., before Watt was indicted or agreed to waive indictment and be prosecuted by information), Judge Bolger notified the parties that he would be the trial judge. Both parties in this appeal agree that the underlying issue in this case is whether Judge Bolger could validly do this. More specifically, the issue is whether any judge can be assigned to the trial of a felony case during the pre-indictment stage of the case, while the proceedings are still being handled in the district court.
If Judge Bolger’s assignment as the trial judge was lawful, then Watt’s challenge to Judge Bolger was untimely. But Watt argues that, for purposes of the peremptory challenge rule, no judge can validly be assigned to a felony trial until the defendant is arraigned in the superior court.
At oral argument, both parties agreed that our resolution of this appeal is governed by the supreme court’s decision in Morgan v. State, 635 P.2d 472 (Alaska 1981). But the parties presented competing interpretations of the rule announced in Morgan.
Morgan presented circumstances that are similar to the present case. In April 1978, in Bethel, Morgan was charged by complaint with several felony offenses. Superior Court Judge Christopher Cooke, sitting as a district court judge, handled various proceedings in the district court pending Morgan’s indictment. The grand jury indicted Morgan on May 8th and, on that same date, the clerk of court sent out a notice calendaring Morgan’s superior court arraignment for May 10th. In that same calendaring notice, the parties were formally notified that Judge Cooke was to be the trial judge.1
At his arraignment on May 10th, Morgan tried to peremptorily challenge Judge Cooke, but the judge directed Morgan to file a written pleading. That pleading was not filed until May 18th — at which time, Judge Cooke denied Morgan’s challenge as untimely.2 Morgan ultimately appealed the denial of his peremptory challenge.
On appeal, the State argued that Morgan knew from the very beginning that Judge Cooke would be his trial judge — because Judge Cooke was Bethel’s sole resident judge, and all matters (both in the district court and the superior court) were routinely assigned to him.3 The supreme court rejected this argument and ruled that Judge Cooke was not formally assigned to Morgan’s case until the clerk issued the calendaring notice on May 8th.
At oral argument in Watt’s case, the State suggested that the supreme court’s decision in Morgan turned on the fact that, even though everyone in Bethel might have known that Judge Cooke would be the trial judge, the parties received no formal notice of Judge Cooke’s assignment until the clerk issued the calendaring notice. The State suggested that if Judge Cooke had done *449what Judge Bolger did in Watt’s case — te., if Judge Cooke had given the parties early written notice that he would be the trial judge, while Morgan’s case was still pending in the district court — then Morgan’s peremptory challenge would have been late, and Morgan’s case would have been decided differently.
But the wording of the Morgan opinion shows that the supreme court did not base its decision on the fact that there was no earlier formal notice of Judge Cooke’s assignment. Rather, the supreme court stated that no judge could have been assigned to be Morgan’s trial judge until Morgan was indicted:
No judge could have been assigned to the May 10 indictment [sic: the indictment was issued on May 8th] on April 22. Further, the charges of the May 10 [sic] indictment cannot be said to have been at issue upon a question of fact as of April 22, since May 10 [ie., Morgan’s superior court arraignment] was the point at which [Morgan entered] the not guilty plea to the charges in the indictment....
Morgan, 635 P.2d at 477-78. In an accompanying footnote, the court cited an Oregon case for the proposition that “[a] plea of not guilty to an indictment places the cause at issue for the purpose of statutory right of disqualification for bias or prejudice”.4
The supreme court then, somewhat surprisingly, declared “that the May 8 date triggered [Morgan’s] five-day period” for peremptorily challenging Judge Cooke under Alaska Criminal Rule 25(d). May 8th was the date that the clerk of court sent out the calendaring notice — the post-indictment notice that scheduled Morgan’s superior court arraignment for May 10th and that formally notified the parties of Judge Cooke’s assignment as trial judge. The supreme court’s choice of May 8th as the starting date for calculating the peremptory challenge deadline is somewhat surprising because, just two paragraphs earlier, the supreme court had suggested that Morgan’s felony charges “[could not] be said to have been at issue upon a question of fact” until Morgan’s superior court arraignment, when he was called upon to enter a plea to the charges. This did not happen until May 10th. The supreme court appears to have disregarded this reasoning when it declared that May 8th was the starting date for calculating Morgan’s peremptory challenge deadline.
I am not sure that I can reconcile these differing strands of legal reasoning in Morgan. But, at a minimum, Morgan stands for the proposition that no judge can be formally assigned to be the trial judge in a felony case until the superior court acquires felony jurisdiction over the defendant (either because the defendant is indicted or because the defendant waives indictment and consents to be prosecuted by information). Thus, the problem in Morgan was not that Judge Cooke failed to send an earlier formal notice of his assignment. The problem was that Judge Cooke could not have sent an earlier formal notice — because the case was not ripe for assignment of a trial judge until Morgan was indicted (or waived indictment).
For these reasons, I concur with my colleagues that Watt’s peremptory challenge of Judge Bolger was timely and should have been granted.
. Id. at 474 and n. 1.
. Id.
. Id. at 477.
. Id. at 478 n. 8, citing State v. Ring, 122 Or. 644, 259 P. 780 (1927), affirmed 276 U.S. 607, 48 S.Ct 338, 72 L.Ed. 728 (1928).