Judges should be very careful about handling any matter when the judge would normally be disqualified.

If a judge would normally be disqualified from a case, but all parties agree for the judge to—in an administrative matter—accept a waiver or a waiver of a preliminary hearing or a negotiated guilty plea, can the judge do that?

The answer is no most of the time with the exception of the Code of Judicial Conduct Rule 2.11(c). If a judge would have to be disqualified from a case because of campaign contributions by a lawyer, because a lawyer represented him or her, because of personal matters, or whatever reason, the judge cannot hear the case. Even if all parties agree that the case still can be resolved by the judge in terms of a guilty plea where it's negotiated or waiver of a preliminary hearing or waiver of other pretrial rights and then the case be sent to someone else, that still might not be acceptable.

In years past, judges who were subject to disqualification would ask if anyone had any objection for the judge to handle a nondiscretionary matter and then the judge was just accepting what the parties agreed upon. For instance, are they entering into a settlement? But, in several recent cases that were resolved informally by the Judicial Conduct Board, there has been criticism of judges who did that when normally should have recused and disqualified themselves. In one case, the judge had in the past dated someone who had then appeared in his court. The judge wasn't dating the person at that point in time, but accepted a waiver of preliminary hearing, which was agreed to by all parties. Although the matter was resolved, the Judicial Conduct Board's position was that the judge should not have handled the case at all, even with the agreement of the parties.

This makes it difficult sometimes, particularly in smaller counties. It could also keep someone in jail longer. For instance, if there was an agreement that bail was to be reduced but the judge would normally disqualify him or herself, which would result in another judge having to come in and it could be several days or several weeks before that occurred, the failure of the judge to be able to handle the case could create a hardship for the defendant. But, despite those issues, it is absolutely important to preserve the integrity of the judiciary. Under Code of Judicial Conduct, Canon 1.2, titled “Promoting Confidence in the Judiciary,” the following is noted: “A Judge shall act at all times in a manner that promotes public confidence in the independence, integrity and impartiality of the judiciary and shall avoid impropriety and the appearance of impropriety.”

Comment 1 notes: “Public confidence in the judiciary has eroded by improper conduct and conduct that creates the appearance of impropriety.”

Comment 3 notes as follows: “Conduct and compromises or appears to compromise the independence, integrity, and impartiality of a judge undermines public confidence in the judiciary.”

In Comment 5, the following is stated: “The test for appearance of impropriety is whether the conduct would create in reasonable minds a perception that the judge violated this code or engaged in other conduct that reflects adversely on the judge's honesty, impartiality, temperament, or fitness to serve as a judge.”

The problem with the appearance of impropriety is that someone might know the judge had dated this person and then see the judge handle a proceeding for the person. The person may not know that everyone agreed. But, clearly the appearance of impropriety would be there and the judicial institution could suffer.

Therefore, the old way of being pragmatic in resolving a case when there is no dispute even though the judge had a conflict really no longer exists. If the judge is disqualified then they are disqualified from doing anything on the case, even if it's just a perfunctory or agreed-upon resolution. Code of Judicial Conduct Rule 2.11, despite the above, does appear to allow certain times for a judge who should be disqualified to participate, but there has to be a procedure utilized. Under 2.11(c), a judge who is subject to disqualification, other than for bias or prejudice, can stay on the case if the parties and the lawyers, outside the presence of the judge and court personnel, agree to waive the disqualification. If in filing that disclosure, the parties and lawyers agree, without the participation of the judge and court personnel, then the judge should not be disqualified and the judge can participate in the proceedings. But, that agreement has to be fully incorporated into the record of the proceeding.

Therefore, there is a procedure but it has to be done very carefully and outside the presence of the judge. The better practice is to not ask the judge to make an exception—except in extreme circumstances.

In conclusion, judges should be very careful about handling any matter even if it's agreed by the parties when the judge normally would be disqualified. The disqualification would be for bias or prejudice and there is no waiver allowed under any circumstances.

But, if it's going to occur, then the waiver has to be discussed outside the presence of the court, agreed outside the presence of the court, and has to be incorporated into the record by writing.

Judicial officers should be careful when considering campaign contributors for appointments.

Can a judicial officer appoint a campaign contributor to a position, such as a civil rules committees or as a master, etc.?

The answer is perhaps. The Code of Judicial Conduct, Rule 2.13 notes in making administrative appointments and hiring decisions, obviously, the judge is supposed to do so with impartially on the basis of merit and with no nepotism. Under Rule 2.13(b), a judge shall not appoint a lawyer to a position when the judge knows that the lawyer or lawyer's spouse has contributed as a major donor within the prior two years to the judge's election campaign. What is a major donor remains to be seen and, of course, would depend on how much money was raised. For a Supreme or Appellate Court race, if $5 million or $10 million were raised, a $30,000 or $40,000 contribution may not be considered a major donor, though that could be challenged. But, certainly, in a Common Pleas race or district judge race, a $20,000 or $30,000 or even a $10,000 contribution would probably be considered a major contribution.

There are exceptions to this rule. The judge can still appoint a major contributor if the position is substantially uncompensated. For instance, an appointment to the Disciplinary Board where there is no compensation would be allowed. Also, if the appointment would be from a list of qualified and available lawyers complied without any regard or reference to the campaign contributions that would be OK. If the judge finds no other lawyers want the position or no one is competent that will accept the position, then the appointment can be made.

Therefore, a judicial officer in making appointments to attorneys who have substantially contributed to his campaigns in the prior two years should consider this rule carefully. It may be better not to appoint such a person, at least until the two-year time period has passed. The bottom line is a judicial officer must always protect the integrity of the institution he serves.  There is nothing more frustrating to a member of the bar if positions of interest are filled by nepotism or by campaign contributors. It creates and raises questions as to the integrity and fairness of those institutions.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.