Judicial Conduct · 2-8% of the exam
24.1.2Remittal, disclosure, and the Rule of Necessity (CJC Rule 2.11)
On this page
- CJC Rule 2.11(C) — Remittal of disqualification.
Why
Some grounds for stepping aside protect interests the parties themselves hold, and parties who know the facts may be content to go ahead. A waiver procedure lets them say so with the judge out of the room. The Rule of Necessity answers the opposite problem: a case with nobody left to hear it.
Plain English
CJC Rule 2.11(C) excludes one ground from remittal — bias or prejudice under paragraph (A)(1). For all other grounds: the judge discloses on the record; parties and lawyers confer outside the judge's presence and court personnel; they return and place their agreement on the record. An in-court exchange with the judge seated fails.
Rule of Necessity: necessity may override disqualification — the judge who is the only one available for immediate action may hear it, disclose the basis on the record, and make reasonable efforts to transfer the matter.
Rule
CJC Rule 2.11(C) — Remittal of disqualification.
CJC Rule 2.11(C) — Remittal of disqualification. A judge disqualified under this Rule, other than for bias or prejudice under paragraph (A)(1), may disclose the basis on the record and may ask the parties and their lawyers to consider remittal, outside the judge's presence and that of court personnel.
The carve-out names bias or prejudice and nothing else, so every other ground may be remitted. Note that paragraph (A)(1) also contains personal knowledge of facts in dispute, which (C) does not name — so on the text that ground is open to remittal.
How remittal is done:
- On the record, the judge explains the potential disqualifying basis.
- Parties and counsel then discuss the question with the judge and court staff absent from the room.
- They return with unanimous agreement — every party and every lawyer — that the judge may sit; that agreement is entered on the record.
Relative at counsel's firm: a lawyer's mere affiliation with a firm that employs one of the judge's relatives does not, standing alone, disqualify the judge. Recusal still follows if a reasonable person could question impartiality, or if the relative's stake in the firm could be substantially affected by the outcome.
Rule of Necessity. The rule of necessity may override the rule of disqualification (Comment [3]) — for example, a judge required to take part in judicial review of a judicial salary statute, or a judge who is the only one available in a matter requiring immediate judicial action, such as a probable-cause hearing or a temporary restraining order. In a matter that requires immediate action, the judge must disclose on the record the basis for possible disqualification and make reasonable efforts to transfer the matter to another judge as soon as practicable.
The exam will tell you that consent waives personal bias. It does not: bias or prejudice under paragraph (A)(1) is the one ground CJC Rule 2.11(C) excludes from remittal.
The exam will hand you an in-room agreement as a completed remittal. Parties and counsel must confer separately, away from the judge.
Questions · 1
Q 01ch24-e03
Question 1 of 1 · Rule CJC 2.11(C)
Judge disclosed on the record that the law firm representing Defendant had given her election campaign more than the amount the state allows before a judge's continued service comes into question. Both sides said they were content to go ahead anyway. With Judge seated on the bench and the courtroom staff at their stations, counsel for each side spoke with their clients across the room and then stated for the record that every party and every lawyer wanted Judge to keep the case. Judge entered that agreement in the record and set a trial date. Nobody has suggested that Judge favors either side. Was it proper for Judge to continue presiding?
Keys 1 to 4 choose.