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As current head of the city’s court system, the decision to request that an out-of-county judge be brought in to oversee any case, for whatever reason, is entirely within President Judge C. Darnell Jones II’s discretion. But that doesn’t mean filing such requests will make Jones popular among his rank-and-file. In the past two weeks, Jones has submitted to the state Supreme Court out-of-county judge requests in two cases with strong political overtones – the one last week was for a hearing involving the future of the city’s casino projects; this week’s, for a challenge to the mayoral candidacy of U.S. Rep. Bob Brady, the city’s Democratic Party leader. Jones said that he has declined to file such requests on many more occasions than he has assented. The fact that there have been two in as many weeks is a coincidence, he said. “This is nothing more than two cases among thousands,” Jones said yesterday, adding later, “Just because something is asked for, does not mean it’s granted, because every case is different. . . . This does not in any way open any floodgates.” But several sitting common pleas judges, none of whom wished to be named, told The Legal yesterday that they felt personally slighted by Jones’ decisions and that they worry Jones is creating a series of precedents that could lead the court system along a slippery slope. “He’s giving a perception that Philadelphia judges are not able to follow the law, and I’m very upset by it,” one judge said of Jones’s recent out-of-county judge requests. “I’m insulted by it,” said another judge, who claimed Jones did not informally gauge the bench’s mood on the topic before filing the requests. That judge added later, “It’s not something that reflects just upon him – it reflects upon all of us.” “We wouldn’t want the public to think that any of us is ducking these issues or couldn’t hear them fairly and expeditiously,” yet another judge said. Some of the judges who spoke to The Legal wondered if Jones’ candidacy for a seat on the Pennsylvania Supreme Court may have affected his thinking on the out-of-county judge requests. “He doesn’t want any ripples with his own status as a candidate, but this isn’t the way to go about it,” one of the judges said. Another veteran of the common pleas bench said that historically, non-Philadelphia judges were only called into the city when a sitting or recently former judge was a party in a case or had an immediate family member who was. Jones should have trusted his colleagues to recuse themselves if they felt they couldn’t impartially preside over the gaming or Brady cases, those judges said. But another judge interviewed yesterday said that although a president judge’s request for an out-of-county jurist may ruffle his or her colleagues’ feathers, filing one is entirely appropriate in certain situations. Jones’ tactics may ultimately lead to negative repercussions, that judge said, but he/she trusts that Jones – who was elected head of the court system by popular vote of the city’s common pleas judges in late 2005 – had good intentions in making the requests. While Philadelphia’s judges are of differing opinions on Jones’ requests, most lawyers seem to be of the mind that a judge is a judge is a judge. Two Center City litigators who regularly handle election law matters said they think Jones made the right call in the Brady case and that they wouldn’t have a problem trying a candidacy challenge before a non-Philadelphia judge. “There may be things that you need to introduce into evidence that are more contextual that a local judge may have judicial notice of,” said George Bochetto of Bochetto & Lentz, but he stressed that the provenance of a case’s presiding judge is otherwise largely irrelevant. Gregory Harvey of Montgomery McCracken Walker & Rhoads agreed. “I think as to the case involving Brady, by reason of his personal involvement over a number of years in the selection of common pleas judges, it appears manifestly correct that an out-of-county judge should be requested to pass on that particular case,” said Harvey, a member of The Legal‘s editorial board. Harvey said he doesn’t believe Jones’ two recent decisions will create a slippery slope. Bochetto said that while there’s no evidence to suggest they will, too many out-of-county judge requests in the future could lead to a less-than-desirable situation with respect to Philadelphia-based election law cases. “The value of having an in-county judge is that they do understand the context in which these things arise,” Bochetto said. Some in the legal community believe that the fact Jones is even compelled to call in out-of-county help in politically sensitive cases underscores the need to relieve Pennsylvania’s judiciary of its historic reliance on campaign contributions. “In our mind, this situation lends further support for the idea that a selection method that provides meaningful input from the community but removes the judges from having to raise money and having to seek political endorsements would serve everyone better,” said Robert Heim of Dechert, who chairs the board of Pennsylvanians for Modern Courts. Heim said that if a Philadelphia judge did hear the Brady case and ruled in favor of the congressman, “the cynics would be all over that judge and complaining that it’s a political decision, and that’s simply not fair to our judges.” But one of the judges interviewed yesterday said Philadelphia’s jurists are used to standing by controversial rulings. “There’s going to be second-guessing,” that judge said. “The loser always second-guesses.”

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