The Arizona Court of Appeals recently published an opinion finding the “appearance of impropriety” in an attorney’s frequent status as a particular judge’s pro tem (fill-in) at the same time as that attorney had a case pending before that judge. Kay S. v. Mark S. Download KaySMarkS.pdf was published on September 7, 2006. (The case name remained anonymous due to alleged child abuse charges which are referenced in the opinion.)
The Court specifically found no instances of actual bias by this trial judge toward the attorney in question.
The specifics of this case involved a pro tem acting for this judge for approximately nine half or full days in the year prior to the case, including several pro tem sessions while the instant case was being litigated. The Court of Appeals found this attorney’s service to be neither “sporadic” nor “repeatedly on a continuing scheduled basis”. In addition, this attorney had been identified by this Judge’s staff as their “favorite pro tem”. On one occasion in the instant litigation, opposing counsel in the case had received a telephone call from the Court and the other attorney (the pro tem) who were calling from the Judge’s chambers to discuss the case.
The Court’s ultimate decision, that the underlying Decree of Dissolution be vacated and remanded due to the appearance of impropriety, was based on Arizona Rules of Judicial Conduct, Arizona Supreme Court Rule 81.
The circumstances of this case arose before a Maricopa County Administrative Order was released in May, 2004, which provided that court divisions do not choose their own pro tems, and all pro tems would be assigned by a court administrative office.
You can also view any Court of Appeals decision at http://www.cofad1.state.az.us/opinionfiles/opidx.htm (Divison One)
or http://www.apltwo.ct.state.az.us/ODSPlus/RecentDecisions.cfm (Divison Two)