May a disqualified judge grant urgent relief when no other judge can act?

Plain-English summary

The Commission had already held the judge disqualified when a party was represented by the judge’s spouse’s adoptive father’s brother, who was also the judge’s former law partner. The new request asked about emergencies requiring protection of life or property.

The Commission applies the Rule of Necessity. The judge may act when immediate relief is needed to protect life, property, or the existing situation and no other judge is available to provide it. Once the need for immediate action ends, the judge should recuse from further proceedings.

Currency note

This opinion was issued in 1995, after the Alabama Supreme Court's 1975 adoption of the Alabama Canons of Judicial Ethics. Subsequent amendments or later opinions may have changed the analysis. Treat this page as historical context and verify the current Canons and linked opinion before relying on its conclusions.

Common questions

Q: Does the preexisting disqualification disappear in an emergency?

A: No. The opinion permits immediate action under the Rule of Necessity despite the disqualification, then calls for recusal after the urgent need passes.

Q: What if another judge can grant the urgent relief?

A: The stated permission depends on no other judge being available to act immediately.

Background and rules framework

The opinion applies the Rule of Necessity to urgent judicial action despite an established disqualification. It cites an earlier Commission opinion for the relationship-based conflict and quotes Judicial Conduct and Ethics § 5.03 on the necessity exception.

Citations and references

Other opinions cited:

• Alabama JIC Opinion 89-356, preexisting disqualification involving the lawyer-relative.

See also

• AL Judicial Ethics Op. 95-581: Salary Class
• AL Judicial Ethics Op. 95-550: Own Case on Appeal

Source

• Landing page: Alabama JIC advisory opinions
• Original PDF: Advisory Opinion 95-542
• Canon history: Alabama JIC, Canons of Judicial Ethics

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

95-542
Judicial Inquiry Commission
800 SOUTH MCDONOUGH STREET
SUITE 201
MONTGOMERY, ALABAMA 36104
February 10, 1995
This is in response to your request for an advisory opinion from the Judicial Inquiry Commission. In Advisory Opinion 89-356, this Commission held that a judge is disqualified from sitting in any proceeding in which a party was represented by either the judge’s wife’s adoptive father or that father’s brother. Your question is whether you may preside over cases “in an emergency situation to protect life or property” where one of the parties is represented by your wife’s adoptive father’s brother, who is also your former law partner. It is the opinion of this Commission that, despite the existence of your disqualification, you may preside in those situations where immediate action is necessary to protect life or property or to preserve the status quo of the situation and there is no other judge available who can render such immediate relief. This is but an application of the Rule of Necessity. However, once the need for immediate action no longer exists, you should recuse yourself from any further proceedings in that matter. “The presence of judicial partiality that ordinarily would require recusal will nevertheless be tolerated and recusal avoided if necessity so requires. If no judge can be found who possesses the requisite degree of impartiality in regard to a particular case, the rule of necessity dictates that the original judge assigned to the case need not be disqualified despite his or her partiality. The rule of necessity thus operates as an exception to the requirement of impartiality, prescribed by the demands of reality. * * * According to the rule, a non-impartial judge may hear and decide a case if his or her failure to do so would result in an injustice.” J. Shaman, S. Lubet, J. Alfini, Judicial Conduct and Ethics, § 5.03 at 103-04 (1990). This opinion has been approved by and is the opinion of the entire Commission.