¶1concurring.
¶2Although I join in the rationale of the majority and the conclusion, I must write separately to express my complete dissatisfaction with the reliance of the majority on the standard of “appearance of impropriety” as compelling the grant of new proceedings to the Appellants.
¶3As the majority points out, Cunningham was engaged in a blatant potential conflict of interest in conducting criminal proceedings while she was acting covertly on behalf of prosecutors to obtain incriminating information against her colleagues on the bench.
¶4I do not see an “appearance of impropriety” on the part of a judge who is acting covertly. The public is not aware of the conduct at the time of its commission, therefore, there cannot be an “appearance” of anything. Rather, I view the conduct of Cunningham as abhorrent and a complete denial of a fair trial to those brought before her while she sat as a judge in the criminal court. I view this as actual misconduct at the time of its commission and not as an appearance of impropriety long after the commission of the misconduct.
¶5Every judge must know that you can’t play both sides of the fence without bringing into focus the question of impartiality. Under such circumstances, every judge must know that recusal is in order. Cunningham’s refusal to recuse and ask for assignment to another division of the court amounts to misconduct in my view. The possibility that such a reassignment *39may have brought to light her clandestine operations must be weighed lightly in comparison with the heavy adherence to which we ascribe the principles of a fair and impartial judge presiding over the fate of those brought before the bar of the criminal courts. Their rights cannot be sacrificed for the sake of possibly bringing to justice other miscreants.