23.17. The “rule of necessity”

Although rare, situations can arise where all judges who could hear the case are disqualified or there is an emergency situation that needs immediate action.  In those situations a judge, who would otherwise have to withdraw from presiding over the matter, may continue to sit.  This is known as the “rule of necessity.”  In the situation where all judges would be disqualified, the judge may hear the entire case.  For example, where there was a challenge to judicial salaries – every judge in the system would have been disqualified – so the rule of necessity allowed a judge to sit on the case despite the judge’s financial interest in the case.  On the other hand, a judge who should be disqualified may be presented with an emergency motion that needs immediate action (such as a temporary restraining order).  In that situation the judge may act, but should disclose the conflict on the record and transfer the case to another judge as soon as possible.[1]

[1] ABA Code of Judicial Conduct, Canon 4, Rule 2.11, Comment [3].