concurring in part, dissenting in part.
I think that the rule as to peremptory challenges to judges in the superior court sitting as an appeals court must be a uniform one for administrative appeals and for petitions for review from the district court. These are the two situations presented in this case and in Halligan v. State, 624 P.2d 281 (Alaska, 1981).
The majority finds the two situations distinguishable for the reasons noted in footnote 3 of the majority opinion. I do not find these reasons persuasive.
In both situations, the superior court has the option of hearing the case de novo in whole or in part.1 Thus, this factor does not distinguish the two cases for me.
The other distinguishing factor relied upon by the majority is the fact that AS 44.62.570(c), governing administrative appeals, provides that the court may exercise its “independent judgment” on the evidence. I do not read the statute as contradicting the general rule, consistently applied in our ease law, that the standard of review depends upon the question reviewed. I think the use of the term “independent judgment” in the statute is intended to set the standard for review of questions of law in which agency expertise is not a consideration. Our cases have indicated that, in that situation, the court is to substitute its own independent judgment in administrative appeals.2 This same standard applies *9to review of lower court rulings of law,3 and thus cannot be a distinguishing factor. I do not think the statute overrules those cases in which we have held that, in reviewing agency findings of fact, the superior court, as well as the supreme court, is to apply the “substantial evidence” test.4 The standard for reviewing findings of fact made by a judge in the court below is the “clearly erroneous” standard.5 This standard may allow the reviewing court more discretion to overrule a lower court judge’s findings of fact than it has to overrule an agency’s findings of fact.6 As such, the opportunity for the danger against which the peremptory challenge is supposed to protect litigants is presented more by appeals from lower courts than by appeals from agencies, at least as to findings of fact; thus the peremptory challenge protection, if different at all, should be greater in the context of a superior court reviewing the fact findings of a lower court.
I do not think that a different rule should be established for these two situations. I would apply one uniform rule, i. e., where any party has requested permission to submit additional evidence to the superior court on appeal, or where the superior court judge has decided sua sponte to review any aspect of the case de novo,7 then any party to the appeal has a right to a peremptory challenge (unless, of course, they have previously exercised that right and have thus exhausted it for this proceeding).8
Where the appeal is to be decided entirely on the basis of the record, then no peremptory challenge right attaches.
Here, the facts we have do not show that any party requested permission to submit additional evidence, or that the judge sua sponte ordered de novo review of any aspect of the case. As such, I do not think the parties had a peremptory challenge right on the facts as they are presented to us. However, I would remand the case, and, if the parties have requested or do request permission to submit additional evidence, I would allow them to exercise a peremptory challenge in that situation.
. The majority points out that, with respect to administrative appeals, AS 44.62.570 provides that the court may augment the agency record in whole or in part; admit evidence unavailable at the time of, or wrongfully excluded from, the agency hearing; or hold a hearing de novo. The superior court, however, has the same discretion on petitions for review from the district court. Alaska Dist. Ct.R.Civ.P. 31(g) provides that review “shall be on the record unless the superior court, in its discretion, shall direct that the matter be heard wholly or partly on oral testimony or depositions or that other evidence be submitted.” Similarly, Alaska Dist. Ct.R. Crim.P. 3 provides that hearings on petitions for review are to be based upon the record generated in the district court unless otherwise ordered by the court.
. In Commercial Fisheries Entry Comm’n v. Templeton, 598 P.2d 77 (Alaska 1979), the court noted that the same standard applied both to the superior court’s review of the agency’s decision and to the supreme court’s review of the superior court’s decision:
[Superior Court] Judge Stewart was free to substitute his own judgment as to the proper interpretation of the Act .... Judge Stewart *9was in just as good a position to make that judgment as the Commission. Similarly, since a question of statutory interpretation is involved, this court will independently evaluate the trial court’s interpretation.
Id. at 80-81 (citations and footnotes omitted).
. Id. See also Guin v. Ha, 591 P.2d 1281, 1284 n.6 (Alaska 1979).
. Interior Paint Co. v. Rodgers, 522 P.2d 164, 170 (Alaska 1974).
. Alaska R.Civ.P. 52(a).
. [Tjhe scope of review of jury verdicts and of administrative findings is the same .... The scope of review of findings of a judge without a jury, however, is different from the scope of review of administrative findings and of jury verdicts, for findings of a judge may be upset if they are ‘clearly erroneous.’ Because findings may be clearly erroneous without being unreasonable so as to be upset under the substantial-evidence rule, the scope of review of administrative findings is narrower than the scope of review of a judge’s findings.
4 K. Davis, Administrative Law § 29.02, at 120-21 (1958).
. Implicit in this reasoning is a rule that, when the superior court judge decides that a case should be reviewed on facts dehors the record, he should so advise the parties and give them a reasonable opportunity to exercise their right.
. I realize that it may seem premature to allow a peremptory challenge solely on the basis of a request for the submission of additional evidence, rather than gearing it to the judge’s actual decision as to whether or not to hear such evidence. However, a party concerned about the judge’s bias is likely to suspect that any decision not to accept additional evidence was colored by that judge’s bias and by the judge’s knowledge that acceptance of the evidence would afford the party a peremptory challenge. In the interests of avoiding even the appearance of judicial impropriety, I would find that the peremptory challenge right attaches at the point of the request rather than the actual decision.