A Chief Magistrate, who frequently sits by designation in State or Superior Courts, seeks an opinion on the following issues:

1. May a Chief Magistrate sitting by designation in another court hear a case involving an associate magistrate whom he or she appointed after orally offering recusal after disclosure to all parties?
2. If not, may the chief magistrate hear the case after written waiver of disqualification by both sides?
3. If a written waiver is required, may the prosecutor file one written waiver effective until withdrawn?
4. Would there be any per se disqualification for an associate magistrate, sitting in another court, hearing a case where an associate magistrate (of the same county) was an attorney, and if so, would the rules on waiver of disqualification be the same as for the chief magistrate?

The issues posed by this request are controlled by Canon 3E(1) which provides:

(1) Judges shall disqualify themselves in any proceeding in which their impartiality might reasonably be questioned, ....

As noted in the Commentary to this Canon:

Under this rule, judges are subject to disqualification whenever their impartiality might reasonable be questioned, regardless of whether any of the specific rules in Section 3E(1) apply.

In addition, Canon 2 requires Judges to avoid impropriety and the appearance of impropriety in both professional and personal conduct. The test for appearance of impropriety, as set forth in the Commentary, is "whether the conduct would create in reasonable minds a perception that the judge's ability to carry our judicial responsibilities with integrity, impartiality and competence is impaired."

Measured by these standards, the conduct described in the foregoing request would appear to be prohibited. Furthermore, the established practice of the judge of orally offering recusal after disclosure to all parties is not in accord with the remittal procedures outlined in Canon 3F, which should be followed if the 3E disqualification is to be waived.

This 30th day of September, 1994.
JUDICIAL QUALIFICATIONS COMMISSION
By: John E. James, Chair