Rule 2.11 Disqualification or Recusal

COMMENT:

[1]Under Rule 2.11(a), a judge is disqualified or recused whenever the judge’s impartiality might reasonably be questioned, regardless of whether any of the specific provisions of Rules 2.11(a)(1) through (6) apply.

[2]A judge’s obligation to disqualify or recuse himself or herself under these Rules applies regardless of whether a motion to disqualify or recuse is filed.

[3]As provided for in Rule 2.11(a), the rule of necessity may override the rule of disqualification or recusal. For example, a judge might be required to participate in judicial review of a judicial salary statute, or might be the only judge available in a matter requiring immediate judicial action, such as a hearing on probable cause or a temporary restraining order. In matters that require immediate action, the judge must disclose on the record the basis for possible disqualification or recusal and make reasonable efforts to transfer the matter to another judge as soon as practicable.

[4]The fact that a lawyer in a proceeding is affiliated with a law firm with which a relative of the judge is affiliated does not itself disqualify the judge. If, however, the judge’s impartiality might reasonably be questioned under Rule 2.11(a), or the relative is known by the judge to have an interest in the law firm that could be substantially affected by the proceeding under Rule 2.11(a)(2)(C), the judge’s disqualification or recusal is required.

[5]Rule 2.11(d) was adopted to address the practical implications of Rule 5(Section 3)(B) of the Judicial Selection Commission Rules that requires recusal of a Commissioner if that Commissioner has a substantive matter pending before a judge who has a petition for retention pending before the Commission. Paragraph (d) provides the judge with discretion to determine the appropriateness of the judge’s continued participation in a proceeding when the judge has a petition for retention or an application for judicial office pending and a Commissioner is involved in the proceeding. Recusal under this paragraph does not require a judge to find that the relevant circumstances give rise to an appearance of impropriety or that the judge’s impartiality might reasonably be questioned.

[6]The fact that a judge has a petition for retention or application for judicial office pending does not impose an affirmative obligation upon the judge to review the record to determine whether a Commissioner is involved in the proceeding. Discretionary recusal under Rule 2.11(d) applies only upon a judge’s actual knowledge of the Commissioner’s involvement in a proceeding (See definition of “knows” in Terminology of these Rules). A judge’s decision to recuse himself or herself may be informed by a variety of factors, including the nature of the judge’s calendar, whether the Commissioner has already recused himself or herself, the timing of expected judicial action in the case in relation to the date when the Judicial Selection Commission is expected to decide the judge’s petition or application, the effect of a recusal upon the timely disposition of the proceeding, the ease of substitution of another judge, the position of the parties with respect to recusal, and the anticipated extent of the involvement of the judge and the Commissioner in the proceeding.

[7]Rule 2.11(d) is intended to ensure that a judge may exercise his or her informed discretion without consideration of a potential challenge to the recusal decision at a later point in the proceeding. Thus, there is no per se impropriety or appearance of impropriety where a Commissioner on the Judicial Selection Commission appears before a judge as a witness, party, or counsel for a party in a proceeding.