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 defendant’s peremptory challenge of a judge, and a defendant’s challenge for cause against a judge, are both “proceedings concerning the defendant” within the meaning of Criminal Rule 4-5 (d)(D
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 judge’s recusal [affects] *1016the 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 judge’s recusal ‘concerns’ the defendant under this provision”.
No Alaska appellate decision explicitly answers the question of whether a judge’s sua sponte disqualification is a “proceeding concerning the defendant” for purposes of Rule 45(d)(1). However, the Alaska Supreme Court’s 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 defendant’s arrest triggered the running of Rule 45.)2 Peterson’s 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 Buekalew.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, Peterson’s 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 court’s discussion of Peterson’s Rule 45 claim.
There were 136 days between Peterson’s 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 Peterson’s case was whether there was a valid excuse for scheduling Peterson’s trial “136 days after Peterson’s arrest”.11 That is, the supreme court’s 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 Peterson’s series of judicial challenges tolled the running of Rule 45.
The supreme court did not specify why they concluded that Peterson’s four judicial *1017challenges (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 court’s silence on this issue is a fair indication that they believed Peterson’s 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 Peterson’s 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 defendant’s 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 ⅛5 (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 defendant’s 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 judge’s sua sponte disqualification.
There appears to be no material distinction between situations in which the defendant questions the judge’s ability to be fair and situations in which the judge raises this question sua sponte. The issue of a judge’s ability to be fair is similar to the issue of the defendant’s 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 judge’s 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 ease in Peterson), or by the prosecutor, or by the judge (as in Keller’s 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 (ie., disqualifications initiated by the judge), this *1018would 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 re-cuse 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 judge’s disqualification arises from recusal. However, under the facts of Keller’s ease, such an argument is moot — because (as explained in the Court’s main opinion) the four extra days in Keller’s case are excused under Rule 45(d)(7).
. Peterson, 562 P.2d at 1356.
. See the text of the former version of Rule 45(c)(1), quoted in Peterson, 562 P.2d at 1356.
. Peterson, 562 P.2d at 1356.
. Id. at 1355.
. Id.
. Id.
. Id.
. Id.
. Id. at 1356.
. Id.
. Id.
. 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".