Judicial Conduct · 2-8% of the exam
24.1.1Mandatory grounds for disqualification (CJC Rule 2.11)
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- CJC Rule 2.11 — Mandatory disqualification.
Why
A judgment is worth what the losing side believes about how it was reached. Where the decider has a stake, a tie, or a head start on the facts, the ruling looks less like a decision than a position. Stepping aside protects that appearance before anyone proves the judge was swayed.
Plain English
Would a reasonable person question this judge's impartiality? Six categories produce a mandatory yes. Two common traps: cousins fall outside the third degree, so a cousin as counsel doesn't require recusal; an individual holding within a mutual or common investment fund isn't an "economic interest" unless the judge participates in managing the interest or the outcome could substantially affect it.
Rule
CJC Rule 2.11 — Mandatory disqualification.
CJC Rule 2.11 — Mandatory disqualification. Recusal is required — no motion needed — whenever a proceeding places the judge in a posture where a reasonable observer could question impartiality. The mandatory grounds:
- (a) Bias or personal knowledge
- the judge harbors personal bias or prejudice concerning a party or that party's counsel, OR
- possesses personal knowledge of contested evidentiary facts.
- (b) Prior involvement
the judge previously:
- (1) represented a party in the matter;
- (2) belonged to a firm where another lawyer took substantial part in the matter during the affiliation;
- (3) worked in government with personal and substantial participation in the matter, or publicly voiced an opinion on its merits;
- (4) served as a material witness; or
- (5) sat on the same matter in a different court.
- (c) The judge's or a family member's involvement
the judge is aware that the judge, the judge's spouse or domestic partner, any person within the third degree of relationship to either of them, or the spouse or domestic partner of such a person, occupies one of these roles:
- (1) party, or officer, director, general partner, managing member, or trustee of a party;
- (2) counsel in the proceeding;
- (3) holder of more than a de minimis interest the outcome could substantially affect — de minimis meaning an insignificant interest that could not raise a reasonable question regarding the judge's impartiality; or
- (4) likely material witness.
The third degree covers parents, grandparents, great-grandparents, siblings, aunts, uncles, nieces, nephews, children, grandchildren, and great-grandchildren.
Cousins fall OUTSIDE the third degree — recusal is not triggered when a cousin appears as counsel or as a party.
- (d) Economic interest
the judge personally or as fiduciary — or a spouse, domestic partner, parent, child, or family member sharing the household — owns an economic interest (any legal or equitable stake beyond de minimis) in either the subject matter or a party. Four holdings are carved out of "economic interest" (unless the judge helps run the entity, or the outcome could substantially affect the holding):
- Comment [6]: a personal share inside a mutual or common investment fund.
- Comment [6]: securities held by a charitable, civic, educational, fraternal, or religious organization where the judge or the judge's spouse, domestic partner, parent, or child serves.
- Comment [6]: a deposit at a financial institution, or an analogous proprietary interest.
- Comment [6]: government securities the judge owns, considered as an interest in the issuer.
- (e) Campaign contributions
the judge either knows, or is informed by a timely motion, that campaign donations from a party, a party's lawyer, or that lawyer's firm exceeded the applicable jurisdictional threshold inside the designated window.
- (f) Prior public commitment
during service as a judge or as a judicial candidate, the judge — speaking somewhere other than a court proceeding, decision, or opinion — issued a public statement that committed the judge, or looked like a commitment, to a specific outcome in the matter.
Duty to keep informed: the judge must stay current on personal and fiduciary economic interests, and must take reasonable steps to stay current on the economic interests of the judge's spouse or domestic partner and any minor children living in the household.
Comment [5] — Disclosure: even when the judge concludes no disqualifying ground exists, information the parties might reasonably view as relevant to a recusal motion should be placed on the record.
Memory device. The six enumerated grounds, in this book's order rather than CJC Rule 2.11(A)'s — a floor, not a ceiling, since that paragraph reaches them "including but not limited to" — Be Prepared For Each Court Case: Bias or personal knowledge · Prior involvement · Family member within the third degree — or the judge personally · Economic interest · Campaign contributions · Commitment (prior public statement).
Example 1
Ex. 1
Judge Kim is assigned a case against Halcyon Corp., one of roughly eight hundred companies inside an S&P 500 index fund the judge holds. Plaintiff's lead attorney is the judge's first cousin. The fund holding is excluded from "economic interest" by the CJC Terminology definition, restated at CJC Rule 2.11, Comment [6] — an exclusion that lifts if the judge manages the interest or the outcome could substantially affect it, and neither is so here; the cousin falls outside the third degree. Neither fact requires recusal. Answer the fund question and the cousin question separately — neither one needs the other to come out the way it does.
Tip
Tip
Questions · 2
Q 01ch24-e01
Question 1 of 2 · Rule CJC 2.11
Judge was assigned a breach-of-contract suit in which Corporation is the named defendant. Reviewing a brokerage statement the week before the first hearing, Judge noticed that a personal account still held four hundred shares of Corporation's common stock, bought years earlier and never sold. The shares are worth several thousand dollars, and the damages sought are large enough to move the price of the stock either way. No party knows of the holding, and nobody has filed anything asking Judge to leave the case. Judge, confident of deciding on the evidence alone and unwilling to disturb a trial date, kept the assignment and said nothing. Is Judge subject to disqualification?
Keys 1 to 4 choose.