Disqualification/Recusal Under The New Code of Judicial Conduct

In general the new Code of Judicial Conduct denotes standards for the ethical behavior of Judges and Judicial Candidates. However, it is not an all encompassing model of appropriate conduct but is rather a component of general ethical standards and other rules governing the judicial and judicial personnel conduct.

The new Code adopts the traditional rule that the use of the terms “may” or “should” are permissible and should not result in disciplinary action if the act or inaction is within the bounds of judicial discretion. The use of the word “shall” means the provision is mandatory. The Code provides that disciplinary action is only appropriate depending upon the seriousness of the violation, the intent of the judicial officer, whether there is a pattern of improper activity and the effect of the improper activity on others or the judicial system. The Code is not to be used to form a basis for civil or criminal liability and establishes that the Ethics Committee of the Pennsylvania Conference of State Judges is the approved body to render advisory opinions concerning the ethical concerns of Judges, Judicial Officers and Judicial Candidates. However, the opinions of that committee are not binding upon the Judicial Conduct Board, the Court of Judicial Discipline or the Supreme Court of Pennsylvania but reliance upon such opinions is a factor to be taken into account in determining whether discipline should be recommended or imposed.

The Code applies to all Justices, Judges and Senior Judges (active or eligible for recall with certain exceptions). Attention should be paid to footnote 1 in the Application Section of the Code because that Section clarifies those employees within the Unified Judicial System that are not subject to the Code. That footnote clearly states that the Code does not apply to non-employees (independent contractors), special masters, commissioners and judges pro-temp. It is my thought that the word “special master” includes hearing officers and special auditors. Custody Conciliation Officers meet that test although that is not specifically stated. Canon 4 of the Code (dealing with judicial and political campaigns) applies to all judicial candidates whether judges or not. The Code does not apply to Magisterial District Judges or Judges of the Philadelphia Municipal Court, Traffic Division.

As drafted, the Code defines impropriety as including conduct which violates the law, Court Rules, the provisions of the Code and conduct that underlines the Judge’s independence, integrity, or impartiality. This helps in ascertaining what conduct may be an appearance of impropriety but the standards are now stated in the Code.

The provisions of the Code designating what actions result in the mandatory disqualification of the Judge are set forth in Rule 2.11 (A) (1) of Article II of the Code. In this regard, the Code assumes that disqualification and recusal have the same meaning. However, it is an interpretation of that concept that disqualification relates to mandatory actions which result in the disqualification of a Judge, whereas recusal relates to those situations where a Judge exercises the Judge’s discretion for reasons, other than those set forth in Rule 2.11, to disqualify himself or herself in the proceeding.

Attorney Chester C. Corse, Jr. is a Senior Partner at Williamson, Friedberg & Jones, LLC primarily practicing in civil matters including trials for personal injury and property damage, divorce, custody and support, municipal representation and zoning. He regularly works out of the firm’s Pottsville Office.

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