Opinion 89-104

September 12, 1989

Digest:         A judge who sits in both family court and county court in the same county need not recuse himself or herself merely because a proceeding comes before the judge in one court which involves basically the same persons and most of the same issues involved in a prior proceeding before the judge in the other court, so long as the judge feels that he or she will be impartial in the second proceeding.

Rules :         22 NYCRR 100.3(c); Canon 3C

Opinion:

         A county-level judge, who serves both as county court judge and family court judge in a rural county, asks the Committee whether recusal, or the offer of recusal, on the part of the judge is necessary in a situation where a proceeding comes before the judge in one court involving most of the same persons and most of the same issues that were present in a prior proceeding before the same judge in another court. The judge particularly points to child abuse and neglect cases that come into family court and that may be followed by a criminal prosecution on basically the same facts in county court, and asks whether a disqualification is required, especially if requested by the defendant, and more especially if the judge has determined the first proceeding unfavorably to the defendant, and where, in the first proceeding, the judge has learned many facts about the case.

         The Committee is of the opinion that in such a situation there is no ethical requirement that the judge disqualify himself or herself, provided that 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. There is no per se requirement for disqualification of a judge based upon the judge’s having learned facts about a matter in a judicial capacity. If, on the other hand, the judge harbors doubts as to his or her ability to remain impartial in the second proceeding, the judge should recuse himself or herself.