Commercial Fisheries Entry Commission v. Polushkin , 628 P.2d 6 ( 1981 )

OPINION

Before RABINOWITZ, C. J., and CON-NOR, BURKE and MATTHEWS, JJ.

BURKE, Justice.

The issue in each of these consolidated cases is whether the right to peremptorily challenge a judge exists in an appeal to the superior court from a final administrative determination of the Alaska Commercial Fisheries Entry Commission. Petitioners, all of whom are parties to such appeals, attempted to peremptorily challenge the judge assigned to their particular cases. Although the challenges were timely, they were denied as being unavailable in such proceedings.¹

Final administrative determinations of the Commercial Fisheries Entry Commission “are subject to judicial review as provided in AS 44.62.560-44.62.570.”² AS 16.-43.120(a). See also Rules 601-07, Alaska R.App.P. Such appeals are “heard by the superior court sitting without a jury.” AS 44.62.570(a). In exercising its review function, the superior court may inquire as to “(1) whether the [Commission] has proceeded without, or in excess of jurisdiction; (2) whether there was a fair hearing; and (3) whether there was a prejudicial abuse of discretion.” AS 44.62.570(b). Elsewhere, AS 44.62.570 provides:

(c) The court may exercise its independent judgment on the evidence. If it is claimed that the findings are not supported by the evidence, abuse of discretion is established if the court determines that the findings are not supported by (1) the weight of the evidence, or (2) substantial evidence in the light of the whole record.

(d) The court may augment the agency record in whole or in part, or hold a hearing de novo. If the court finds that there is relevant evidence which, in the exercise of reasonable diligence, could not have been produced or which was improperly excluded at the hearing, the court may (1) enter judgment as provided in (e) of this section and remand the case to be reconsidered in the light of that evidence; or (2) admit the evidence at the appellate hearing without remanding the case.

(e) The court shall enter judgment setting aside, modifying, remanding, or affirming the order or decision, without limiting or controlling in any way the discretion legally vested in the agency.

Given the nature of such proceedings and the broad authority given to the superior court, we are satisfied that the substantive right contained in AS 22.20.022 was intended to apply in the cases now before us.³ This conclusion is buttressed by our holding in In re G. K., 497 P.2d 914 (Alaska 1972). See also Gieffels v. State, 552 P.2d 661 (Alaska 1976); McKinnon v. State, 526 P.2d 18, 25 (Alaska 1974). Thus, we conclude that the superior court erred in refusing to recognize petitioners’ right to a peremptory challenge.⁴

REVERSED and REMANDED for further proceedings in conformity with this opinion.

BOOCHEVER, J., not participating.

1 . The substantive right to peremptorily challenge a judge came into being with the enactment of AS 22.20.022, the validity of which we upheld in Channel Flying, Inc. v. Bernhardt, 451 P.2d 570 (Alaska 1969). That section provides in part:

(a) If a party or his attorney in a district court action or a superior court action, civil or criminal, files an affidavit alleging under oath that he believes that he cannot obtain a fair and impartial trial, the presiding district court or superior court judge, respectively, shall at once, and without requiring proof, assign the action to another judge of the appropriate court in that district, or if there is none, the chief justice of the supreme court shall assign a judge for the hearing or trial of the action. The affidavit shall contain a statement that it is made in good faith and not for the purpose of delay.

AS 22.20.022(a).

Subsequent to the enactment of AS 22.20.022 this court promulgated Civil Rule 42(c), which established the procedure to be followed in implementing the substantive right created by the statute. See Gieffels v. State, 552 P.2d 661 (Alaska 1976). Civil Rule 42(c) provides in part:

(1) Nature of Proceeding. In an action pending in the Superior or District Courts, each side is entitled as a matter of right to a change of one judge and of one master. Two or more parties aligned on the same side of an action, whether or not consolidated, shall be treated as one side for purposes of the right to a change of judge, but the presiding judge may allow an additional change of judge to a party whose interests in the action are hostile or adverse to the interests of another party on the same side. A party wishing to exercise his right to a change of judge shall file a pleading entitled “Notice of Change of Judge.” The notice may be signed by an attorney, it shall state the name of the judge to be changed, and it shall neither specify grounds nor be accompanied by an affidavit. A judge may honor an informal request for change of judge. When he does so, he shall enter upon the record the date of the request and the name of the party or parties requesting change of judge. Such action shall constitute an exercise of the requesting party’s right to change of judge.

Rule 42(c)(1), Alaska R.Civ.P.

2 . AS 44.62.560-.570 are part of the Administrative Procedure Act. However, “[t]he [other] administrative adjudication procedures of the ... Act (AS 44.62) do not apply to adjudicatory proceeding of the Commission ... . ” AS 16.-43.120(a).

3 . Such proceedings, we believe, are substantially different from the sort of “appeal” that was before us in Halligan v. State, 624 P.2d 281 (Alaska, 1981). In that case we considered the availability of a peremptory challenge to one petitioning the superior court for review of an order of the district court suppressing part of the state’s evidence in a district court criminal prosecution. We held that AS 22.20.022 does not apply to such cases, when the only action contemplated is review by the superior court of the subordinate court’s ruling, on the record of the proceedings in the district court. As noted in the text of our present opinion, supra, in an appeal from an administrative determination by the Commercial Fisheries Entry Commission, the superior court “may exercise its independent judgment on the evidence.” AS 44.-62.570(c). Moreover, short of hearing the matter de novo, “[t]he court may augment the agency record in whole or in part,” admit evidence that it believes “was improperly excluded,” and “enter judgment.” AS 44.62.570(d)-(e). Thus, Halligan does not control the result in the case at bar.

4 . As noted, each of the challenges was timely. We are satisfied that they were otherwise adequate as well.