A judge should never to be a witness if it can be avoided.

I am a judge and I have received a subpoena to testify in a pending civil suit. Can I testify or should I move to quash the subpoena?

Samuel C. Stretton.

There is no requirement to quash any subpoena or seek permission from the Pennsylvania Supreme Court for a judge who is testifying as a fact witness in a civil or criminal case. Judges are like everyone else and if they have factual information, they can be subpoenaed in to testify in a civil or criminal trial.

But, if the judge is being called in as a character witness, that is a different story. There used to be a rule in the Code of Judicial Conduct that prohibited a judge from testifying as a character witness without Supreme Court approval. Under Rule 3.3 of the Code of Judicial Conduct, that rule has been reserved. In Pennsylvania Rules of Judicial Administration Rule 1701, the rule clearly states that a judge may not appear as a character witness voluntarily. Further, the rule states there can be no subpoena to compel a judge to testify as a character witness without specific approval by the Pennsylvania Supreme Court. Under Rule of Judicial Administration 1701(c), there has to be a petition filed with the Pennsylvania Supreme Court, Prothonotary's Office in the Eastern District. That petition has to set forth the name of the witness and underlying case, the name of the judicial officer, the facts requiring the character testimony, and whether the character testimony would be cumulative. Also, it has to state how the person seeking the judge's character testimony would be unduly prejudice if the court prohibited such testimony. A copy of the proposed subpoena has to be attached to the petition.

Rule of Judicial Administration 1701(e) clearly states that no judge or Magisterial District Judge shall testify voluntarily as a character witness. That subsection notes that this rule has the force of the Canons of Ethics for the purpose of Section 17 of the Pennsylvania Constitution.

Therefore, the basic rule for a judge is not to testify as a character witness or act as a character witness in any proceeding without seeking permission from the Pennsylvania Supreme Court. To this writer's knowledge, the Pennsylvania Supreme Court has rarely, if ever, in modern times approved a judge for character testimony. There is one exception. If a judge is subpoenaed for character testimony in federal court then, of course, a federal subpoena would allow the judge to testify in federal court. The best practice would be to notify the Supreme Court that the judge is going to testify as a character witness in federal court. It might be a wise practice for the judge to still file a motion to quash with the federal judge. There is rarely, if ever, a need for judicial character testimony since usually there are ample other witnesses available, and the judicial testimony would be commutive. Clearly, no one wants the judicial office to be tarnished by judicial character testimony, particularly since some of the public may view the testimony negatively if it was given in a criminal case.

Some judges believe that any time they are subpoenaed, they have to petition the Pennsylvania Supreme Court. That is not the case. As noted above, judges are like everyone else. They have to testify as fact witnesses if they have important evidence. The petition for court appeals is only for character testimony in an underlying criminal or civil case. Although there is no rule that this writer knows about with regard to the judge appearing as a noncharacter witness, there are certain general rules that are applicable to judicial testimony. One, of course, is Rule 1.3, avoiding any damage or abuse to the prestige of the judicial office. A judge cannot abuse the prestige of that office to advance the personal economic interest of a judge or others, or allow them to do so also. Depending on the type of testimony, that rule might be an issue. It is important to note, under Code of Judicial Conduct Rule 1.3, under Comment 2, a judge is allowed to provide a reference or recommendation for an individual based on the judge's personal knowledge. The judge may even use official letterhead if the judge indicates the reference is personal and there is no likelihood that the use of the letterhead would be perceived as an attempt to apply pressure.

Obviously, the best practice is for a judge never to be a witness if it can be avoided. The judicial office has to always be protected.

A judge is allowed to respond to character qualification questions of a lawyer seeking a judicial office.

I am a judge and I have been called about the qualifications of a lawyer seeking judicial office. The lawyer is being investigated by one of the Bar Association Rating Committees. Can I respond to the inquiry, particularly as to the nature and character of the individual?

Obviously, when someone is being considered for judicial office either by appointment or in an election, it is important that the qualifications and background and character of the potential judicial officer be investigated, reviewed and examined. There are unfortunately examples of persons who become judicial officers who may be intelligent, but are lacking in basic character or integrity, resulting later in problems on the bench.

The question often becomes, can a judge provide information, particularly if they believe the judicial candidate does not have the integrity or proper character, to the Judicial Evaluation Committee since judges normally aren't allowed to provide character type of reference. Clearly, a judge, as noted earlier, can never provide character testimony in court without the Pennsylvania Supreme Court's permission and approval.

The Rules of Judicial Conduct do allow a judge to fully cooperate with any screening committees and judicial appointing authorities. The reason is that the judicial officer is often in the best position to provide background and confidential information about the competence, integrity and character of someone seeking judicial office. A judge can learn that either because they are a colleague with that person, or because they have seen that person practice law in front of them, or knows them. For a judicial officer to not provide that information to a screening committee or appointing party would do a real disservice ultimately to the Bench and Bar since judges are often in the best position to make the observations as to whether or not someone is qualified to serve or be given the privilege of serving as a Judicial Officer.

Under Rule 1.3 of the Code of Judicial Conduct, Comment 3 to that rule clearly makes the exception and allows a judge to participate with a screening committee. The rule does not allow the judge to use the prestige of the judicial office to advance personal economic interests of a judge or allow others to do so, but Comment 3 states as follows:

"Judges may participate in the process of judicial selection by cooperating with appointing authorities and screening committees, and by responding to inquiries from such entities concerning the professional qualifications of a person being considered for Judicial Office."

Therefore, the above comment clearly allows a judge to fully cooperate as is absolutely necessary to ensure that persons who are seeking judicial office have not only intelligence and experience, but the integrity and competence necessary to hold such a high and important office.

Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 47 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 103 S. High St. P.O. Box 3231, West Chester, Pennsylvania, 19381.