TITLE SEVEN — JUDGMENT
Rule 45. Disability of a Judge
Disability Defined. For the purposes of this rule, a judge is under a disability by reason of resignation, removal, suspension from the judicial function under Const. art. V § 8, expiration of term, recusal, disqualification, death, absence, unavailability, or any other inability to perform the duties required of the court by these rules.
During Trial or Hearing. If a judge before whom a trial or hearing has commenced is unable to proceed, any other judge regularly sitting in or assigned to the court may proceed with and complete the trial or hearing upon:
certifying in the record familiarity with the record of the proceedings, including the record of the proceeding communications of the case and any recording made under Rule 23; and
determining that the proceeding may be completed without prejudice to the parties.
Recall of Witnesses. In a hearing or a trial to the court, the successor judge shall, at a party’s request, recall any witness whose testimony is material and disputed and who is available to testify again without undue burden. The successor judge may recall any other witness upon the request of a party or upon the judge’s own initiative. Where a witness cannot be recalled, the successor judge shall determine what weight the prior testimony bears and shall state that determination in the record.
After Verdict or Findings. If by reason of disability the judge before whom an action has been tried is unable to perform the duties to be performed by the court under these rules after a verdict is returned or findings of fact and conclusions of law are filed, any other judge regularly sitting in or assigned to the court in which the action was tried may perform those duties. If that judge is satisfied that those duties cannot be performed because that judge did not preside at the trial, or for any other reason, that judge may in the exercise of discretion grant a new trial.
Assignment. Assignment under this rule is made by the Chief Judge of the Superior Court, or, in the case of the disability of the Chief Judge, by the senior judge present and qualified to act. Where the disabled judicial officer is a single justice of the Supreme Court, assignment is made by the Chief Justice; where the office of the Chief Justice is vacant or the Chief Justice is unable to act, the powers of that office devolve upon the Associate Justice next in precedence who is able to act, as provided by 3 R. Stat. § 121.005. A judge or justice in senior status may be assigned to preside in the Superior Court by the Chief Judge of the Superior Court sitting in the county in which that judge or justice resides, as provided by 3 R. Stat. § 122.104.
Magistrate Judges. Where a magistrate judge assigned under 3 R. Stat. § 131.203 is unable to proceed, the referring superior court judge may withdraw the reference and proceed, or may refer the matter to another magistrate judge. Where the referring superior court judge is unable to proceed, the successor superior court judge may adopt, modify, or reject a report and recommendation already issued, upon certifying familiarity with the record; a report and recommendation has no effect until so acted upon.
Record of Reassignment. The clerk shall record the disability and the reassignment upon the docket. Upon that record the successor judge becomes the assigned judge for all purposes of access to the case and of service by the electronic filing system. Until the reassignment is recorded, the electronic filing system continues to direct service to the judge previously assigned; a filing so served is not thereby defective, and Rule 43(5) applies.
Effect upon Time. The disability of a judge does not of itself enlarge or suspend any period fixed by these rules or by statute. A party affected by a delay attributable to a disability may move for an enlargement under Rule 6(2), and the court shall grant it where the delay was not the fault of the moving party.
Continued Application. Nothing in this rule limits the authority of the Supreme Court over the administrative control of the courts of the State under Const. art. V § 3.