Opinion 18-104

June 21, 2018

Digest:         A judge may preside in a custody case and a neglect proceeding involving one family, even where the neglect petition alleges one parent made a false report about the other parent’s conduct in open court before the inquiring judge, if the judge concludes he/she can be fair and impartial in each case.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)-(f); 100.3(E)(1)(a)(ii); 100.3(E)(1)(e); Opinions 15-211; 07-78/07-121; 89-104; People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge is presiding in a custody case and has received a neglect petition involving the same family. As an illustration of “undiagnosed mental illness” and “bizarre behavior,” the neglect petition alleges one parent falsely reported to Child Protective Services that (1) the other parent, in open court, physically attacked the child during an appearance before the inquiring judge and (2) the judge told him/her not to take the child to the hospital. The judge has personal knowledge no such incident occurred, as do numerous “lawyers, clerks, court officers, and the court reporter.” May the judge continue presiding in the custody case, and also preside in the neglect case?

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). Thus, a judge must disqualify him/herself where required by rule or law (see 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14) and in any other proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]). For example, a judge is disqualified if he/she “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]) or knows he/she “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). Where objective standards do not mandate disqualification, however, a trial judge is the sole arbiter of recusal (see People v Moreno, 70 NY2d 403 [1987]; Opinion 15-211).

         Here, the judge has no impermissible personal knowledge of the pertinent allegation in the neglect matter, i.e. whether one parent made the alleged report to Child Protective Services. As for the falsity of the alleged report, we presume a judge may, in legally appropriate circumstances, judicially notice matters of public record such as whether a child was physically attacked in open court during a proceeding before him/her. But, in any event, we do not believe the judge “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]) on the facts described.

           Further, “[t]here is no per se requirement for disqualification of a judge based on the judge’s having learned facts about a matter in a judicial capacity” (Opinion 89-104). We have “recognized that a judge, due to specialized learning, experience and judicial discipline, is uniquely capable of distinguishing the issues and of making an objective determination based upon appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making the decision” (Opinion 07-78/07-121 [citations and internal quotation marks omitted]). Thus, for example, a judge who presided in a child abuse or neglect case in Family Court may subsequently preside in “a criminal prosecution on basically the same facts” in County Court, “provided the judge is convinced that he or she will be impartial in the second proceeding, including in addressing facts previously learned in the first proceeding” (Opinion 89-104).

         Here, too, we conclude the judge’s impartiality cannot “reasonably be questioned” in either the custody or the neglect case on these facts (22 NYCRR 100.3[E][1]). We therefore conclude the judge may preside in both cases, provided he/she can be fair and impartial in each, a matter left to the judge’s sole discretion (see People v Moreno, 70 NY2d 403 [1987]; Opinion 15-211).