CJEO Oral Advice Summary No. 2014-008 — Application of the Rule Of Necessity

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CALIFORNIA SUPREME COURT
COMMITTEE ON JUDICIAL ETHICS OPINIONS
350 McAllister Street, Room 1144A
San Francisco, CA 94102
(855) 854-5366
www.JudicialEthicsOpinions.ca.gov
CJEO Oral Advice Summary No. 2014-008
[Posted July 1, 2014]
APPLICATION OF THE RULE OF NECESSITY
I. Question:
Does the rule of necessity permit a sitting appellate justice to author an opinion
deciding an issue on appeal that would disqualify all sitting and retired appellate justices?
The question was asked by an appellate justice assigned to author an opinion
involving the issue of whether article Vl, section 17, of the California Constitution
prohibits judges and justices from accepting any form of public employment during the
remainder of their term of office.1
1 Limited identifying information is included in this oral advice summary because
confidentiality has been waived by the appellate justice’s reliance on, and reference to,
this advice in a published appellate opinion (Cal. Rules of Court, rule 9.80(h)(3); CJEO
rules, rule 5(e); Gilbert v. Chiang (2014) 227 Cal.App.4th 537).

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II. Oral Advice Provided:
Under the ‘rule of necessity,’ a judge is not precluded from adjudicating a cause
because of a disqualifying financial interest if there is no judge or court available to hear
and resolve the cause. (Olson v. Cory (1980) 27 Cal.3d 532, 537; People v. Superior
Court (Mudge) (1997) 54 Cal.App.4th 407, 410.) The California Code of Judicial Ethics
recognizes the rule of necessity in the Advisory Committee commentary to canon 3E
(Cal. Code Jud. Ethics, Advisory Com. commentary foll. canon 3E). In view of the fact
that all sitting and retired California appellate justices have an interest in Gilbert v.
Controller of the State of California, which involves the issue of whether article Vl,
section 17, of the California Constitution prohibits judges and justices from accepting any
form of public employment during the remainder of their term of office, the rule of
necessity applies and the requesting justice is qualified to determine the issues before the
justice’s appellate panel and author an opinion in the matter.
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This oral advice summary is advisory only (Cal. Rules of Court, rules 9.80(a), (e);
Cal. Com. Jud. Ethics Opns., Internal Operating Rules & Proc. (CJEO) rules 1(a),
(b)). It is based on facts and issues, or topics of interest, presented to the California
Supreme Court Committee on Judicial Ethics Opinions in a request for an opinion (Cal.
Rules of Court, rule 9.80(i)(3); CJEO rules 2(f), 6(c)), or on subjects deemed appropriate
by the committee (Cal. Rules of Court, rule 9.80(i)(1); CJEO rule 6(a)).