concurring and dissenting.
Some important points of disagreement with my esteemed colleagues in the majority compel me to write separately. I concur in most of the majority’s result (i.e. the determination that Respondent is subject to discipline on various bases charged by the Board), but dissent in part.1
The majority opinion decides a number of legal questions. The opinion does so in a manner which is precedential, in that the opinion will serve as binding authority in future cases before this court and perhaps as persuasive authority in other tribunals or jurisdictions.
However, we have not received briefs or oral argument on any of these legal questions. Instead, all we have before us is a stipulation in which the Board and Respondent agree to the facts and Respondent concedes that she is subject to discipline under each of the counts in the Board’s complaint. The majority, on its own, has performed the legal research, analyzed the facts and the law, applied the law to the facts and made its own legal conclusions without hearing from the parties.
As an unabashed fan of our common law tradition2, I cannot agree with the majori-*663t/s creating precedent by such a process. We should not render precedential opinions except where we have had the benefit of advocacy on both sides of the questions by litigants possessing a true adversity and interest in the outcome. That was one of the bases for my dissenting opinion in In re Michael Smith, 712 A.2d 849, 855 (Pa.Ct.Jud.Disc.1998) (Byer, J., dissenting)3, and is the basis for how I would approach this case.
There is an important role for opposing parties and their lawyers in the creation of precedent.4 We err when we usurp that role and create precedent in the absence of legal arguments by adverse parties.
The majority’s error in creating precedent without an adversary proceeding is apparent from the majority’s conclusion that Respondent’s conduct does not constitute “neglect or failure to perform the duties of office” under Pennsylvania Constitution Article V, § 18(d)(1). The majority reaches this conclusion even though Respondent has conceded that she is subject to discipline on this basis and without providing the Board with the opportunity to present argument in support of its charge.
Just as I cannot subscribe to the procedure, I must dissent from the conclusion. By any reasonable construction of the language of the Constitution,5 Respondent’s failure to make a prompt deposit into the required depository of public funds which came into her possession as a judicial officer was a neglect or failure to perform the duties of judicial office. If the majority is holding that the making of prompt, proper disposition of public funds is not a duty of judicial office, or that the failure to make prompt, proper disposition of public funds is not a failure to perform a duty of judicial office, then I fear the precedent we are creating not only is erroneous but dangerous.
I would not decide this question, nor any of the other questions addressed in the majority opinion, in a precedential manner. Instead, I would simply enter an order determining that based upon the stipulated facts and Respondent’s concession, Respondent is subject to discipline under the Board’s complaint, and leave the creation of precedent on the interpretation of Constitutional and ethical requirements to future cases in which the parties truly are adverse and have the opportunity to present us with their informed and persuasive positions.
ORDER
PER CURIAM.AND NOW, this 10th day of March, 1999, the Findings of Fact and Conclusions of Law set forth in this Court’s Opinion dated December 29, 1998 having become final pursuant to C.J.D.R.P. No. 508, and after the hearing held by the full Court on March 1, 1999 on the issue of sanctions, IT IS HEREBY ORDERED that:
*664Respondent, Gloria M. Strock, is hereby removed from office and shall be ineligible to hold judicial office in the future.
BYER, J., concurs in the result,
RUSSO, J., did not participate in the consideration or disposition of this case.. I cannot join the majority’s expression of the basis for our continuing jurisdiction over this Respondent. The majority’s statement (Maj. Op. 654-655, n. 1), ”[t]hough Respondent is no longer a judicial officer, this Court's jurisdiction over these disciplinary proceedings continues" is overbroad. The only reason we continue to have jurisdiction over this Respondent, notwithstanding her resignation from office, is that we still have to decide whether to impose a sanction precluding Respondent from holding judicial office in the future, in accordance with Article V, § 18(d)(3) of the Pennsylvania Constitution. Therefore, Respondent's resignation fróm office does not render the case moot, because we still have the power to impose a further sanction. See In re Larsen, 717 A.2d 39, 49-50 (Pa.Ct.Jud.Disc.1998) (Byer, J., concurring).
. See generally, Ruggero J. Aldisert, The Judicial Process, 180-186 (2d ed.1996).
. In my dissenting opinion in In re Michael Smith, I wrote that by permitting a respondent to defend an action in our court by making a collateral attack on the substantive validity of a pending criminal charge, "we unfairly place the Board in the position of having to argue the substantive issue of criminal law even though the Board does not represent the Commonwealth in the criminal case. Moreover, by deciding the substantive criminal law issue in the absence of counsel for the Commonwealth in the criminal case, we deprive ourselves of the ability to decide the issue ... in the context of the arguments made by the Commonwealth_” 712 A.2d at 856.
. Judge and Professor Robert E. Keeton pertinently wrote, "I write not lightly or in jest but quite seriously when I say that I would prefer not to try to answer these debatable issues about interpretation of the words [of a statute] without first having the benefit of adversary arguments by professional advocates representing the parties in a live case or controversy_" Robert E. Keeton, Judging, 163 (1990). This goes to the heart of the common law tradition. As Judge Aldisert teaches, "[a]nother important characteristic of the common law tradition is that it is law fashioned by lawyers and judges from actual events that have raised issues for decision. It is law that emerges as a bi-product of the major function of the courts — dispute settling, the adjustment of a specific conflict among the parties”. Aldisert, The Judicial Process, supra n. 2 at 185.
.See In re Jeffrey A. Smith, 687 A.2d 1229 (Pa.Ct.Jud.Disc.1996).