Opinion 19-49


May 2, 2019



Digest:         A judge who previously “so ordered” the parties’ settlement stipulation may thereafter preside in an application to enforce the stipulation and at an evidentiary hearing to resolve possible contractual ambiguities, where the judge has no extra-judicial knowledge of the parties’ intentions and believes he/she can be fair and 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 18-104; 07-78/07-121; 89-104; United States v Grinnell Corp., 384 US 563 (1966); People v Glynn, 21 NY3d 614 (2013); People v Moreno, 70 NY2d 403 (1987).




         The inquiring judge previously “so ordered” the parties’ negotiated stipulation. He/she had no involvement in the negotiating or drafting process. Now, in an application to enforce the stipulation, the parties disagree on its interpretation, and the judge has ordered an evidentiary hearing to resolve possible ambiguities. One side claims the judge has “personal knowledge of disputed evidentiary facts concerning the proceeding and/or may be a material witness” and therefore must disqualify him/herself. The judge has no extrajudicial knowledge of the matter and is confident he/she “can and will remain impartial in presiding over [it].” Accordingly, the judge asks if he/she may ethically preside.


         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]). A judge must disqualify him/herself in matters where the judge’s impartiality might “reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge “has personal knowledge of disputed evidentiary facts concerning the proceeding” (22 NYCRR 100.3[E][1][a][ii]) or “is likely to be a material witness in the proceeding” (22 NYCRR 100.3[E][1][e]). But if disqualification is not mandated under objective standards, the judge “is the sole arbiter of recusal” (People v Moreno, 70 NY2d 403, 405 [1987]).


         Clearly, as described, the judge has no impermissible interest in the case. As we have advised, “[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; see also e.g. United States v Grinnell Corp., 384 US 563, 583 [1966] [for any “alleged bias and prejudice to be disqualifying [it] must stem from an extrajudicial source and result in an opinion on the merits on some basis other than what the judge learned from his participation in the case”]; accord People v Glynn, 21 NY3d 614, 618 [2013]). 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 18-104; quoting Opinion 07-78/07-121; see also e.g. Opinions 18-104 [judge observed a fight in the courtroom but recusal was not required in the trial]; 89-104 [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”]).


         Nothing in the inquiry suggests this judge has any independent or contemporaneous knowledge of the parties’ intentions in negotiating, drafting, or executing the stipulation they asked him/her to so-order, let alone any extra-judicial knowledge concerning it. Accordingly, the judge may preside in the matter, assuming the judge concludes he/she can be fair and impartial.