Title 207—JUDICIAL CONDUCT
PART II. CONDUCT STANDARDS
[ 207 PA. CODE CH. 51]
Proposed Rescission of Rule 13 and Amendment of Rule 14
[43 Pa.B. 2269]
[Saturday, April 27, 2013]
The Minor Court Rules Committee is planning to recommend that the Supreme Court of Pennsylvania rescind Rule 13 and amend Rule 14 of the Rules of Conduct for Magisterial District Judges. The Committee has not yet submitted this proposal for review by the Supreme Court of Pennsylvania.
The following explanatory Report highlights the Committee's considerations in formulating this proposal. The Committee's Report should not be confused with the Committee's Official Notes to the rules. The Supreme Court does not adopt the Committee's Official Notes or the contents of the explanatory reports.
The text of the proposed changes precedes the Report. Additions are shown in bold; deletions are shown in bold and brackets.
We request that interested persons submit written suggestions, comments, or objections concerning this proposal to the Committee through counsel,
Pamela S. Walker, Counsel
Supreme Court of Pennsylvania
Minor Court Rules Committee
Pennsylvania Judicial Center
PO Box 62635
Harrisburg, PA 17106-2635
or email to: firstname.lastname@example.org
no later than June 28, 2013.
By the Minor Court Rules Committee
MARY P. MURRAY,
TITLE 207. JUDICIAL CONDUCT
PART II. CONDUCT STANDARDS
CHAPTER 51. STANDARDS OF CONDUCT OF MAGISTERIAL DISTRICT JUDGES
PENNSYLVANIA RULES FOR MAGISTERIAL DISTRICT JUDGES
Rule 13. [Incompatible Practices] (Reserved).
[Magisterial district judges and all employees assigned to or appointed by magisterial district judges shall not engage, directly or indirectly, in any activity or act incompatible with the expeditious, proper and impartial discharge of their duties, including, but not limited to, (1) in any activity prohibited by law; (2) in the collection business; or (3) in the acceptance of any premium or fee for any judicial bond. Magisterial district judges shall not exploit their judicial position for financial gain or for any business or professional advantage. Magisterial district judges shall not receive any fee or emolument for performing the duties of an arbitrator.
Official Note: The next to the last sentence of this rule is derived in part from Canon 5C(1) of the American Bar Association and Pennsylvania Supreme Court Code of Judicial Conduct.
Pursuant to the authority granted by Article V, Section 10 of the Pennsylvania Constitution, the Supreme Court adopted the Rules Governing Standards of Conduct of Magisterial District Judges as the exclusive means of regulating the conduct of magisterial district judges under the supervision of the Supreme Court. Disqualification from proceedings is the most appropriate means of ensuring judicial integrity and impartiality in proceedings, including, but not limited to, those arising from the Pennsylvania Race Horse Development and Gaming Act (4 Pa.C.S.A. § 1101 et seq.).
No magisterial district judge shall have a financial interest, as defined by Section 1512(B) of the Pennsylvania Race Horse Development and Gaming Act (4 Pa.C.S.A. § 1101 et seq.), in or be employed, directly or indirectly, by any licensed racing entity or licensed gaming entity, or any holding, affiliate, intermediary or subsidiary company thereof or any such applicant, or engage in the active ownership or participate in the management of any such entities and related companies.
Rule 8(A) of the Rules Governing Standards of Conduct of Magisterial District Judges continues to govern the disqualification of magisterial district judges where the interest in or relationship with a licensed racing or licensed gaming entity or related company thereto, or any such applicant therefor, of the magisterial district judge or a family member is at issue.]
Official Note: The provisions of former Rule 13 were added to Rule 14 to reflect limitations on outside activities applicable to all magisterial district judges.
Rule 14. [Prohibited Practice of Attorney Magisterial District Judges] Limitations Relating to Outside Activities.
[A. Attorneys who are magisterial district judges shall not practice before any magisterial district judge in the Commonwealth, nor shall they act as a lawyer in a proceeding in which they have served as a magisterial district judge or in any other proceeding related thereto. Nor shall they practice criminal law in the county within which their magisterial district is located. An employer, employe, partner of office associate of such magisterial district judges shall not appear or practice before them.
B. Attorneys who are magisterial district judges shall not practice before, or act as an attorney or solicitor for, any county or local municipal, governmental or quasi governmental agency, board, authority or commission operating within the Commonwealth.
Official Note: Subdivision A of this rule is derived from former Rule 3A and Compliance Exception A(2), American Bar Association Code of Judicial Conduct. Subdivision B is derived from former Rule 3B. This rule contains all the prohibitions upon the practice of law by attorney magisterial district judges that were thought necessary.]
A. Magisterial district judges shall not engage, directly or indirectly, in any activity or act incompatible with the expeditious, proper and impartial discharge of their duties, including, but not limited to, any of the following: (1) any activity prohibited by law; (2) any activity related to the collection of a claim or judgment for money; or (3) any activity related to judicial bonds.
B. Magisterial district judges shall not exploit their judicial position for financial gain or for any business or professional advantage.
C. Magisterial district judges shall not perform the duties of an arbitrator or mediator in any of the following situations in which they receive a fee or emolument: (1) in any proceeding in which venue would have been proper in the magisterial district in which they serve pursuant to Rule 302 and (2) in any proceedings in which venue would have been proper in the county within which their magisterial district is located unless serving as a neutral arbitrator, or in a non-binding arbitration or mediation proceeding.
D. Magisterial district judges who are attorneys shall not practice law (1) before any magisterial district judge in the Commonwealth; (2) in any proceeding in which they have served as a magisterial district judge; (3) in any proceeding related to a proceeding in which they served as a magisterial district judge; and (4) in any criminal proceeding in the county within which their magisterial district is located. Magisterial district judges who are attorneys shall neither practice before nor act as an attorney or solicitor for any county or local municipal, governmental or quasi-governmental agency, board, authority or commission operating within the Commonwealth.
E. Magisterial district judges who are attorneys shall not permit their employers, employees, partners or legal associates to appear or practice before them.
Official Note: Subdivisions A, B and C of this rule apply to all magisterial district judges, including magisterial district judges who are attorneys.
Magisterial district judges are permitted to supplement their income as long as it does not interfere with their judicial responsibilities. Rule 14C permits magisterial district judges to receive fees and emoluments for serving as an arbitrator or mediator in certain circumstances. There is no prohibition against any active judge serving as an arbitrator or mediator without compensation so long as the judge follows the guidelines of Canon 3B of the Code of Judicial Conduct and that such an arbitration or mediation does not interfere with the prompt and efficient management of that judge's own court docket. Subdivision C of this rule applies to all types of alternative dispute resolution, including but not limited to, arbitration and mediation.
In Subdivision C, mediation was added to this rule in recognition of the growth of alternative dispute resolution after the rule was originally promulgated, and the fact that there should not be a distinction between a magisterial district judge serving as an arbitrator or mediator.
Subdivision D of this rule is derived from former Rule 13A and Compliance Exception A(2), American bar Association Code of Judicial Conduct.
Subdivision E of this Rule is derived from former Rule 13B.
Proposed Rescission of Rule 13 and Amendment
of Rule 14 of the Rules of Conduct for
Magisterial District Judges
Clarification Regarding Limitations
on Outside Activities
The Minor Court Rules Committee (the ''Committee'') is proposing the rescission of Rule 13 and the amendment of Rule 14 of the Rules of Conduct for Magisterial District Judges. These rules currently address activities prohibited to all magisterial district judges (Rule 13), as well as practices prohibited by attorney magisterial district judges only (Rule 14). The goal of this change is to combine these rules into one rule encompassing all limitations on magisterial district judges, as well as to modify the existing prohibition on magisterial district judges serving as paid arbitrators.
The issue of limitations on outside activities by magisterial district judges has been under review by the Committee since at least 2002. The issue initially arose as questions to the Committee asking whether or not an attorney magisterial district judge could also serve as an arbitrator, particularly in arbitration cases where the arbitrators' fees are paid by the parties. There appeared to be conflicting interpretations as to whether the prohibition on ''receiving any fee or emolument for performing the duties of an arbitrator'', set forth in Rule 13, applied to attorney magisterial district judges, who were also subject to the additional prohibited practices set forth in Rule 14. After consideration of the inquiry, and review of the relevant rules, statutes, and other authorities, the Committee agreed that amendments to the rules were advisable to clarify that no magisterial district judge, including a judge who was also an attorney, may act as an arbitrator for a fee.
The Committee published its initial proposal in 2003, at 33 Pa.B. 745 (February 8, 2003). After receiving comments from various sources, the Committee reworked the proposal, and subsequently tabled it while other groups attempted to achieve a legislative solution to the question. In the absence of a legislative solution, the Commit-tee republished the proposal at 37 Pa.B. 6902 (December 29, 2007), and received additional valuable input. The Committee submitted a recommendation to the Pennsylvania Supreme Court (''Court''), but was instructed to engage in further review. The resulting proposal that follows is the product of the Committee's ongoing review of the questions initially posed in 2002.
As reflected in the versions of the rules previously published, the Committee's past approach was an absolute prohibition on magisterial district judges receiving fees or emoluments for performing the duties of an arbitrators. However, upon further reflection, the Committee agreed that there could be less restrictive means of modifying the current rule, restricting paid activity only to cases within certain parameters. Additionally, the Committee decided to propose limitations on activities as a paid mediator in the same situations as paid arbitrators.
III. Proposed Rule Changes
A. Rule 13
The current version of Rule 13, titled ''Incompatible Practices'', sets forth certain prohibitions applicable to all magisterial district judges. The Committee agreed that rescinding Rule 13 and incorporating its provisions into Rule 14 was the simplest way to ensure that all magisterial district judges, both attorneys and non-attorneys, were following the same guidelines for incompatible practices and prohibitions. The substantive material of Rule 13, with modification, is found in Rule 14. A note was added to Rule 13, directing readers to Rule 14.
B. Rule 14
The current version of Rule 14, titled, ''Prohibited Practice of Attorney Magisterial District Judges'', sets forth those limitations applicable only to attorney magisterial district judges. As explained above, the Committee's goal in redrafting Rules 13 and 14 was to clarify the limitations on all judges, remove the artificial distinction between attorney and non-attorney judges on the arbitration issue, and lessen restrictions on arbitration practices. Proposed subdivisions A and B are taken from the first two sentences of current Rule 13. Proposed subdivision D is based on current Rule 14A and 14B, while proposed subdivision E is based on the last sentence to current Rule 14A.
Proposed subdivision C is the revised provision addressing magisterial district judges serving as arbitrators or mediators. Specifically, magisterial district judges are not to serve as arbitrators or mediators for a fee or emolument in situations where venue would be proper in the judge's district, or in proceedings in which venue would be proper in the county where the judge's district is located, unless the judge is serving as a neutral arbitrator or in a non-binding arbitration or mediation proceeding. By modifying the existing prohibition on serving as a paid arbitrator, magisterial district judges will be able to participate in this arena in a manner that will not potentially overlap with parties, attorneys and matters with cases heard in the judge's court or local area.
[Pa.B. Doc. No. 13-760. Filed for public inspection April 26, 2013, 9:00 a.m.]
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