TITLE SIX — SUPPLEMENTARY PROCEEDINGS; SPECIAL PROCEEDINGS; SUPPLEMENTARY RULES
Rule 39. Disability of Judge
Disability Defined. For the purposes of this rule, a judge is under a disability when, by reason of absence, unavailability, illness, resignation, expiration of the term of appointment, vacancy in the office, suspension from the judicial function under Const. art. V § 8, disqualification, recusal, or any other cause, the judge is unable to perform a duty which these rules or the law commit to the judge in a pending proceeding. A disability may be as to the whole proceeding or as to a single act.
Before Evidence Is Taken. Where a judge is under a disability before any evidence has been taken, the proceeding shall be reassigned. The successor judge proceeds without a certification and is not bound by any interlocutory order of the predecessor, but shall not revisit an order upon which a party has relied to that party’s prejudice without notice and an opportunity to be heard.
During Trial. If by disability a judge before whom a trial has commenced is unable to proceed with the trial, any other judge of that court or properly assigned to that court, upon certifying in writing that the judge has familiarized himself with the record of the trial, may proceed with and finish the trial.
Contents of the Certificate. The certificate shall identify the case by case number, state the date and time in Coordinated Universal Time at which the successor judge assumed the proceeding, identify the materials constituting the record of the trial which the successor judge has examined, and state that the successor judge is familiar with them.
The Record of the Trial. For the purpose of the certificate, the record of the trial comprises the docket and every filing accepted upon it, the orders and rulings entered, the exhibits received, the record of the proceeding communications for the case, and any recording or transcript of testimony taken.
Entry. The certificate shall be entered upon the docket before the successor judge takes any further action in the trial.
Objection. A party may object to the succession within twenty-four (24) hours of the entry of the certificate on the ground that the record is insufficient to permit the successor judge to proceed. The successor judge shall rule upon the objection on the record and, if the objection is sustained, shall declare a mistrial under Rule 27.
Receipt of Verdict. In jury-tried cases, any judge of a court or any judge properly assigned to that court may receive a verdict of the jury. A jury is empanelled only upon a charge of treason, as 6 R. Stat. §§ 131.111 and 131.306 provide, and this subdivision has no application to a bench trial, in which the finding is that of the presiding judge alone.
After Verdict or Finding of Guilt. If by reason of absence, unavailability, or other disability the judge before whom the defendant has been tried is unable to perform the duties to be performed by the judge after a verdict or finding of guilt, any other judge of that court or properly assigned to that court may perform those duties; but if the other judge is satisfied that he cannot perform those duties because he did not preside at the trial or for any other reason, he may, in his discretion or upon motion of the defendant, order a new trial.
Motion by the Defendant. A motion under subdivision (5) shall be filed within seventy-two (72) hours of the entry of the certificate or of the order of reassignment, whichever is later, and shall state the duties which the successor judge is asked to find that the successor cannot perform and the reasons therefor.
Sentencing by a Successor Judge. A successor judge shall not impose sentence without having read the record of the trial or of the plea colloquy, the criminal record of the defendant, and any report of a presentence investigation, and without affording the defendant the allocution required by Rules 28 and 28.1. The successor judge shall recite compliance with this subdivision on the record.
Disqualification and Recusal.
Duty to Disqualify. A judge shall not preside over a proceeding in which the judge has appeared as counsel, in which a client or former client of the judge is a party or a witness, in which the judge has a personal interest in the outcome, in which the judge is a complainant, victim, or witness, or in which the judge’s impartiality would reasonably be questioned under the judicial canons prescribed by the Judicial Conference under 3 R. Stat. § 121.107.
Disclosure. A judge who becomes aware of a ground for disqualification shall disclose it on the record in the proceeding communications and shall state whether the judge intends to recuse.
Motion. A party may move for disqualification. The motion shall be in writing, shall state the grounds with particularity, and shall be supported by an affidavit as Rule 13(a)(2) requires. The motion shall be filed promptly after the ground becomes known; a ground known and not raised before the taking of evidence is waived unless the ground could not reasonably have been known.
Determination. The judge whose disqualification is sought shall determine the motion in the first instance, on the record, stating findings. Denial of the motion is reviewable as Rule 15 and the Ridgeway Rules of the Supreme Court provide.
Effect. Recusal or disqualification is a disability within this rule, and the proceeding shall be reassigned as subdivisions (2) and (3) provide.
Waiver by Consent Prohibited. A ground of disqualification arising from the judge’s prior appearance as counsel in the same matter shall not be waived by consent of the parties.
Reassignment in the Record. A successor judge acquires the powers of the assigned judge in a proceeding, and access to the record of that proceeding in the electronic filing system, only when the reassignment is recorded in that system. The clerk shall record the reassignment upon the order of the Chief Judge of the Superior Court or upon the entry of the certificate under subdivision (3). Until the reassignment is so recorded, no act of the successor judge in the electronic filing system is possible and no such act shall be presumed.
Orders of the Predecessor. Every order, ruling, and judgment entered by the predecessor judge remains in force until vacated or modified. A successor judge may vacate or modify an interlocutory order of the predecessor upon notice and an opportunity to be heard. A successor judge shall not vacate a finding that depends upon the credibility of a witness whom the successor did not hear, except by ordering a new trial.
Time Not Enlarged. A disability, a reassignment, and a succession do not of themselves enlarge any period prescribed by these rules, including the period prescribed by Rule 46(1). An enlargement occurs only upon an order entered under Rule 46(11).