An opinion is requested on the following issue: Is it a violation of the Code of Judicial Conduct for a Superior Court Judge to appoint her own law clerk (who also happens to be a qualified Magistrate) to preside over, hear and decide cases assigned the that particular Superior Court Judge in her absence.
It is represented that in the particular judicial circuit involved, a case assignment method is used and that each Superior Court Judge has a law clerk who is responsible for providing research assistance, writing draft opinions, and acting as a sounding board in evaluating and deciding issues which arise during the course of litigation.
It is further represented that the judge to whom the case has been assigned will be absent from the bench for several weeks and has appointed her law clerk, who is also a qualified Magistrate, to preside over all matters arising during her absence, including both jury and non-jury trials, evidentiary hearings, motion hearings, and other proceedings, both interim and final.
In Opinion No. 157, this Commission concluded that it would not be inappropriate to appoint the law clerk of a Superior Court Judge to the position of part-time Assistant Magistrate in the same judicial circuit in which he/she serves as law clerk. In so doing, however, the Commission noted that such an appointment might create disqualification problems for the judge and expressly held that the judge would be disqualified to preside in the subsequent trial of a criminal defendant for whom his law clerk had sworn out the warrant.
In like fashion, and assuming arguendo that such an appointment is permitted by the law of this State (O.C.G.A. § 15-1-9.1), there would appear to be no ethical prohibition against the appointment of a qualified Magistrate to assist a Superior Court Judge by presiding in her absence. However, because of the extremely close personal and working relationship between any judge and his or her law clerk, the appointment of a magistrate who also serves as the judge’s law clerk gives rise to an impermissible appearance of impropriety in violation of Canon 1 as well as repeated disqualifications under Canon 2.11(A). Such would be particularly true should the judge and her law clerk/Magistrate subsequently confer, discuss or otherwise act upon any matter over which the law clerk/Magistrate presided during the absence of the judge. These violations could perhaps be avoided by the judge disqualifying in the further handling of all such cases, but the Commission is of the opinion that the better course of action is the appointment of some other person otherwise qualified by law in the first instance.
Thus, while the appointment of a law clerk/Magistrate as a temporary Superior Court Judge would not appear to be inappropriate per se, because such appointments will inevitably lead to the appearance of impropriety, as well as numerous disqualifications and a waste of judicial resources, they cannot be sanctioned.
Fully recognizing the tremendous workloads of our Superior Courts and the shortage of qualified judges, the potential for abuse and possible preferential treatment in the factual situation here presented nevertheless remains and demands an affirmative answer to the question posed.
[Pertinent Code of Judicial Conduct provisions: Canon 1, Rule 2.11(A) Compliance Provisions. Cross reference to other relevant opinions for review: #59, #87, #88, #91, #116, #184.]