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To the Legal: On Thursday, March 15, The Legal published on the front page an article by Asher Hawkins featuring the anonymous comments of several judges of the court of common pleas criticizing the decision of President Judge C. Darnell Jones to request out-of-county judges for two recent politically charged lawsuits. The first of these lawsuits involved a challenge to the efforts of Philadelphia anti-casino advocates seeking to have a referendum opposing gaming casinos placed on the ballot. The second lawsuit involved the challenge of mayoral candidates Dwight Evans and Tom Knox to the nominating petitions and supporting papers filed by fellow mayoral candidate Bob Brady. Acting under the authority given him by common pleas court judges when we elected him, Jones requested that the Pennsylvania Supreme Court appoint out-of-county judges to hear these cases. His stated rationale was that both of these cases involved significant political interests that were substantially related to the electoral process through which all of us obtain and/or retain our judgeships, and that a decision by a First Judicial District judge in either of these cases, for either side, could reasonably be perceived by the losing party or by the public as having been improperly affected by these considerations. Some of my colleagues were eager to publicly criticize Jones for his decision, although none of them had the courage to attach their names to their comments. The Legal apparently felt that this anonymous criticism warranted a front-page story in Thursday’s paper. Both the anonymous nature of the criticism and The Legal’s decision to publish it deserve condemnation. I am not allowed to publicly express my view on the merits of the president judge’s decisions since both of these cases are still in the state court system. However, it is my understanding that none of the parties in either of the cases objected to the president judge’s requests for out-of-county judges. More importantly, the quoted anonymous comments by my colleagues saying that they were “upset” or “insulted” by his decision entirely miss the point when it comes to recusal issues. The issue is not whether some judge’s ego might be bruised by the decision that none of us should preside over these cases. Rather, the issue is, given the identity of the parties, the political nature of the questions involved and the political process by which virtually all of us came to the bench (and by which all of us seek retention on the bench), whether the parties or the public might have reasonable questions about our ability to be completely impartial in either of these two cases. Like many, perhaps most, of my colleagues, I would not be on this bench were it not for the support of Rep. Robert A. Brady. I have great respect and admiration for him. Nevertheless, like most of my colleagues, in my own heart I feel that if I were called upon to decide a challenge to his running for mayor, I could do so fairly and impartially. However, that does not mean that it would be appropriate for me to preside in such a case. The issue at the core of a recusal motion is not simply impartiality, it is the appearance of impartiality to reasonable observers. If I presided over this case and ruled in favor of Brady, who could be surprised that reasonable observers in the community, as well as Brady’s opponents, would harbor some doubts as to whether I decided the case solely on the merits. This point, not some self-centered concern about our own images, is at the heart of the president judge’s decision. We judges elect our own president judge, and one of the things we charge him or her to do is to exercise judgment and discretion on our behalf. When the president judge exercises that discretion, it is cowardly to publicly snipe at him from behind the barrier of anonymity. Moreover, it is shameful to suggest, from behind that same barrier, that his exercise of discretion was governed by his campaign for a seat on our Supreme Court. Indeed, since we all know that there are many judges on this court who have much more than a spectator’s interest in this year’s appellate court and other races, perhaps if the anonymous authors of some of these comments had the courage to step out from behind that barrier, we would have a better idea of what motivates them. Judge Benjamin Lerner, Phildelphia Court of Common Pleas

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