Opinion 15-53

March 19, 2015

Digest:         A judge need not disqualify him/herself from a civil action after testifying in a separate criminal proceeding, pursuant to a subpoena, about the orders and directives he/she issued in the civil action, even though the judge’s testimony is adverse to one of the litigants in the civil action, unless the judge believes that he/she cannot be impartial.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e); Opinions 14-168; 06-169; 91-25 (Vol. VII); Joint Opinions 09-172/10-31; 07-78/07-121; People v Moreno, 70 NY2d 403 (1987)

Opinion:

         The inquiring judge is presiding in a contentious civil action, where the judge has been able to resolve some, but not all, outstanding issues after a lengthy trial. The judge states that one of the litigants was arrested after a court employee allegedly witnessed the litigant committing a crime in the courtroom in the judge’s absence. The prosecutor has now subpoenaed both the court employee and the judge to testify in the litigant’s criminal trial. The judge, who did not witness the alleged crime, will be asked “to testify as to the orders and directives I issued” in the civil case. Under these circumstances, the judge asks if he/she may continue to preside in the civil action.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Where, as here, disqualification is not mandated under a specific provision of the Rules Governing Judicial Conduct (see 22 NYCRR 100.3[E][1][a]-[f]) or Judiciary Law § 14, the key question is whether the judge’s impartiality might nonetheless “reasonably be questioned” (22 NYCRR 100.3[E][1]). If disqualification is not mandated under this objective test, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).

         The Committee has advised that a judge is not ethically required to disqualify him/herself from presiding in a matter after testifying pursuant to subpoena as a fact witness in an unrelated matter, even though the testimony is adverse to an individual who is a litigant in both cases (see Opinion 14-168 [prosecutor subpoenaed judge to testify in a criminal case to confirm that judge presided in custody proceeding and to identify the parent/defendant’s voice on an audio recording of the custody proceeding]; see also Joint Opinion 09-172/10-31; Opinion 91-25 [Vol. VII]).

         Disqualification would be required, of course, if the inquiring judge were to obtain extra-judicial knowledge of disputed evidentiary facts in the case pending before him/her (see 22 NYCRR 100.3[E][1][a][ii]; Opinion 06-169) or if the judge were likely to be a material witness in that case (see 22 NYCRR 100.3[E][1][e]; Joint Opinion 07-78/07-121). For example, where a particular post-nuptial agreement was “the subject of the current divorce proceeding” before the judge, the Committee has advised that the judge must disqualify him/herself after he/she was asked to cooperate in a criminal investigation involving the legality of that very agreement which was before the judge (see Opinion 06-169). Here, by contrast, while the inquiring judge’s testimony about “orders and directives” the judge issued in the civil action may include testimony about an order the litigant allegedly violated in the judge’s courtroom in the judge’s absence, neither the validity of the judge’s order nor the facts concerning the litigant’s purported disregard of the order and/or other criminal conduct are disputed evidentiary facts in the civil action. It is difficult to imagine what relevant extra-judicial knowledge the judge could gain from testifying in a separate criminal case about his/her own previously issued orders and decisions; indeed, the issues relevant to the criminal case appear to be largely tangential, at best, to the issues in the case before the judge.

         Where, as here, the judge’s impartiality cannot “reasonably be questioned,” the trial judge “is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]). Accordingly, the inquiring judge need not disqualify him/herself in the civil action based on his/her testimony in the criminal case unless the judge believes that he/she cannot be impartial, a matter left solely to the judge’s own discretion.