Judges and the Rule of Necessity: Ignacio and the Ninth Circuit's Judges

Abstract

ules of judicial ethics compel a judge’s recusal when judicial impartiality is called into question. Federal law provides that a federal judge disqualify himself or herself for various reasons, such as having personal knowledge of the facts or a pecuniary interest in the case, or if the judge may be a material witness in the case. In particular, 28 U.S.C. §455(b)(5)(1) provides that a federal judge “shall . . . disqualify himself [if] . . . a party to the proceeding.” State courts have analogous rules for their judges. The reasons for such rules of recusal are obvious. Yet there are specific circumstances where it is impractical for a judge to withdraw from a particular case— including the unavailability of any other judge to hear the case. This results in an exception to this norm of recusal, which is known as the “rule of necessity.” Long recognized at common law, the rule of necessity was applied as early as 1430, enabling the chancellor of Oxford to continue to preside in a case in which he was a party. “The rule, simply stated, means that a judge is not disqualified to try a case because of his personal interest in the matter at issue if there is no other judge available to hear and decide the case.” Atkins v. United States, 214 Ct. Cl. 186 (1977). The Atkins case described in some detail the legal history of the rule of necessity and was cited affirmatively in United States v. Will, 449 U.S. 200 (1980), where the Supreme Court held that the rule of necessity is essential to the administration of justice. In Will, several federal district court judges brought suit in federal court on behalf of Article III judges, claiming that various congressional statutes limiting judicial pay increases violated the Constitution’s compensation clause. For the Court, Chief Justice Burger said that when it enacted the rule on recusal, Congress had not intended “to alter the time-honored Rule of Necessity. And we would not casually infer that the Legislative and Executive Branches sought . . . to foreclose federal courts from exercising ‘the province and duty of the judicial department to say what the law is.’” 449 U.S. at 217, quoting Marbury v. Madison, 1 Cranch 137 (1803). Both federal and state courts utilize the rule of necessity, and it was recently, and appropriately, applied in Ignacio v. Judges of U.S. Court of Appeals for Ninth Circuit, 453 F.3d 1160 (9th Cir. 2006). The Ignacio case began meandering through the legal system in 1999, when a judge in a California Superior Court issued an order in a divorce proceeding suspending Ignacio’s access to his son because of the father’s mental disorders. The court also designated Ignacio a “vexatious litigant” under state law, thus placing limits upon his pursuit of lawsuits within the California court system. Ignacio subsequently filed a case in federal district court in California, naming as defendants the superior court judge who issued the order, his ex-wife, opposing