concurring.
I write separately to emphasize, or perhaps encapsulate, our analysis of the situation presented in this appeal.
The State's challenge to Judge Suddock's continued participation in Dussault's case arose from the judge's series of ex parte contacts with the Commissioner of Health and Social Services. However, as Judge Bol-ger points out in the lead opinion, the fact that a judge has engaged in improper ex parte contacts does not, standing alone, necessarily require the judge's disqualification. The ultimate question is whether the judge's actions, assessed in light of the totality of the relevant circumstances, would cause a reasonable person to question the judge's ability to be impartial in future proceedings in the case. Alaska Judicial Canon 3(E)(1); Amidon v. State, 604 P.2d 575, 578 (Alaska 1979).
As explained in the lead opinion, Brian Dussault was placed in the legal custody of the Department of Health and Social Services as a result of a jury finding that he was not guilty of murder by reason of insanity. The Department committed Dussault to the Alaska Psychiatric Institute. Dussault petitioned the superior court to grant him supervised release from this involuntary commitment. Both the State (ie., the Department of Law) and the doctors at API opposed Dussault's release, but Judge Suddock declared that he was tentatively in favor of granting Dussault's request-if Dussault could come up with a satisfactory plan for this supervised release.
It turned out that the devil was in the details. For various reasons, it would have been problematic for the Department of Health and Social Services to supervise Dus-sault's community release. Judge Suddock suggested that Dussault's release might be supervised by the Department of Corree-tions, an agency that presumably had better capacity to supervise Dussault. But the assistant attorney general representing the Department of Corrections pointed out that, under the pertinent statutes, the Department had no legal responsibility toward Dussault.
The Department of Corrections' attorney also told Judge Suddock that he had spoken to Donna White, the Director of Probation and Parole (ie., the Corrections official in charge of supervising offenders), and Director White had said that the Department was not willing to voluntarily undertake the task of supervising Dussault, because her personnel were already overburdened.
Confronted with this situation, Judge Sud-dock initiated a series of ex parte approaches (both in person and by e-mail) to the head of the Department of Health and Social Services, Commissioner William Hogan.
*444In his initial, face-to-face conversation with Commissioner Hogan, Judge Suddock suggested that Dussault's release could be accomplished by having the Department of Health and Social Services enter into an inter-agency contract with the Department of Corrections, and the judge asked Commissioner Hogan to designate a representative to monitor Dussault's case. When Commissioner Hogan did not respond to this request, the judge sent e-mails to the commissioner, reminding him of their conversation, giving some details of the litigation, and again asking the commissioner to appoint a representative to monitor the proceedings.
When Judge Suddock broached his plan for an inter-agency agreement to Commissioner Hogan, the judge apparently did not inform the commissioner that the State (i.e., the Criminal Division of the Department of Law) was opposed to Dussault's release and that the Department of Corrections (through their attorney and, indirectly, through Director White) had likewise announced their opposition to the judge's plan.
Because Judge Suddock was still pursuing this plan, and because the judge presented his plan to Commissioner Hogan in a series of ex parte communications, the State contended that the judge's approaches to the commissioner gave a reasonable appearance that the judge was privately soliciting Commissioner Hogan's support for his plan-and that the judge was therefore taking on the role of advocate.
In his written decision denying the State's motion for recusal, Judge Suddock rejected this contention. But the wording of the judge's decision actually supports the State's position-because that written decision reads like a brief in support of the judge's plan to release Dussault to the supervision of the Department of Corrections:
The [Department of Corrections'] Probation Department has a unit which supervises profoundly mentally ill probationers. ... DOC is able to provide weekly [urinalysis services]. [The Department] works with virtually all [the] community resources which support mentally ill probationers. Mr. Dussault is the functional equivalent of a candidate for probation. [Because the Department of Health and Social Services] may lack similar{ ] ... resources(, it] was appropriate [for me] to alert Commissioner Hogan to this potential option [for Dus-sault's release)....
It is discouraging that the prosecution finds this suggestion, which the [Clourt has repeatedly made on the record, to imply partiality when it was conveyed [ew parte ] to the Commissioner. The prosecutor's [apparent belief] is that{,] onee Assistant AG [John] Bodick [ie, the lawyer representing the Department of Corree-tions] queried [Probation [Dlirecetor White [about this plan], her opinion was final. [But Director White's] response may be . the type of small-bore thinking that her more flexible supervisors would override.
This passage supports the State's position that a reasonable person, aware of the history of this litigation and the content of Judge Suddock's private communications with Commissioner Hogan, would reasonably suspect that the judge was asking the commissioner (in so many words) to lobby the Department of Corrections to alter its position and agree to supervise Dussault's release from API under an inter-departmental contract with Hogan's agency, the Department of Health and Social Services.
This series of ex parte contacts was improper. The Department of Corrections had announced its position on this matter through its lawyer and, indirectly, through a senior department official (Director White). It might have been proper for Judge Sud-dock to openly ask the Department to reconsider its position. But instead, it appears that Judge Suddock tried to alter the Department's stance by privately asking a third party-Commissioner Hogan-to lobby White's superiors in the Department of Corrections to reverse her decision.
A reasonable person would suspect that when Judge Suddock pursued these actions, he assumed the role of an advocate rather than an impartial arbiter. It reasonably appeared that the judge was no longer waiting to evaluate whatever plan Dussault's lawyer might propose for Dussault's supervised re*445lease-that, instead, the judge had a particular type of supervised release in mind, and he was privately attempting to influence state officials to agree to his plan.
In light of Judge Suddock's actions, a reasonable person who was conversant with all the pertinent cireumstances would question the judge's ability to impartially adjudicate Dussault's case. Accordingly, pursuant to Judicial Canon 3(E)(1), Judge Spaan should have ordered Judge Suddock's disqualification from further participation in Dussault's case.