Opinion 14-121

September 4, 2014

Digest:         A judge who chose to recuse him/herself in one case after a litigant filed a complaint about the judge may nonetheless preside over other cases in which that litigant appears, provided the judge 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)(I); 100.3(E)(1)(a)-(f); Opinions 14-58; 13-41; 11-86; 10-38; 09-71; 00-10 (Vol. XVIII); 99-163 (Vol. XVIII); 99-78 (Vol. XVIII); 98-69 (Vol. XVII); 96-114 (Vol. XV); 94-94 (Vol. XII); 91-51 (Vol. VII); 88-54 (Vol. II); People v Moreno, 70 NY2d 403 (1987).

Opinion:

         The inquiring judge states he/she recently disqualified him/herself from a case in which one of the litigants, who identifies him/herself as a “sovereign citizen,” filed a complaint with a governmental agency against the judge, the court, and court personnel while the case was pending.¹ The judge advises the agency later dismissed the complaint as unfounded. The judge asks if he/she may preside in new matters involving the same litigant.

         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]). Thus, a judge must disqualify him/herself in any proceeding in which the judge's impartiality might reasonably be questioned or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14), including if the judge has a “personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][1][a][I]).

         The Committee has previously addressed whether disqualification is required following complaints made against a judge in various contexts. The Committee has advised that disqualification is not mandated merely because one of the parties appearing before the judge has filed a complaint with the Commission on Judicial Conduct (see Opinion 96-114 [Vol. XV]);² has filed an action against the judge in federal court seeking damages for alleged denial of civil rights in connection with a state court matter (see Opinion 88-54 [Vol. II]); has sued the judge in federal court regarding a state action (see Opinion 13-41); or has filed complaints against the judge with the New York State Police and U.S. Postal Investigators (see Opinion 00-10 [Vol. XVIII]). In each of these circumstances, the judge could continue to preside, provided the judge could be fair and impartial.

         The Committee likewise advised that, where a judge can be fair and impartial, neither Judiciary Law § 14 nor the Rules Governing Judicial Conduct mandates disqualification after a party filed a baseless lien against the judge’s property (see Opinion 14-58). Instead, it is a matter confined solely to the judge’s conscience (see Opinions 14-58; 11-86; 99-78 [Vol. XVIII]; People v Moreno, 70 NY2d 403 [1987]).

         Opinion 14-58 involved a defendant in a pending criminal matter in which the defendant threatened to and actually did place a baseless lien against a judge’s property. The Committee advised the judge may continue to preside, observing that:

Such vexatious and abusive tactics must not be rewarded. They undermine the prompt and efficient operation of the judicial system and are inimical to the rule of law. The Committee cannot overlook that, under the facts presented, the supposed “conflict” is entirely of the defendant’s own making. That is, although the inquiry reveals no financial or economic relationship whatsoever between the judge and the defendant, the defendant nonetheless chose to file a lien against the judge as part of his/her litigation strategy. If disqualification were automatically required here or if the judge were in any way constrained from taking all lawful steps necessary to clear his/her title and from pursuing all lawful avenues to put an end to a vexatious lien filing, it would only encourage and embolden imitators.

Clearly, any rule requiring disqualification automatically whenever a litigant chooses to file a lawsuit, disciplinary complaint, or lien against a judge could enable disgruntled litigants to engage in “judge shopping” (see e.g. Opinions 98-69 [Vol. XVII]; 94-94 [Vol. XII]). The risk is perhaps greatest where, as here, it appears the litigant’s only meaningful interactions with the judge have occurred within the scope of the judge’s judicial duties. The Committee notes that such litigation tactics, if rewarded, could be extraordinarily disruptive in smaller communities with limited access to judicial resources, where merely making baseless complaints against judges could result in changes of venue, due to the limited number of judges in some jurisdictions.

         In any event, the crux of the issue is whether, under the circumstances presented, the inquiring judge can be fair and impartial, and whether the judge’s impartiality might reasonably be questioned (see 22 NYCRR 1003[E][1]). Here, the inquiring judge advises the Committee he/she can be fair and impartial. Further, the Committee is of the opinion that under these circumstances, the judge’s impartiality cannot reasonably be questioned as a result of the litigant filing a baseless complaint against the judge and court employees with another agency (see Opinions 14-58; 13-41; 00-10 [Vol. XVIII]; 96-114 [Vol. XV]; 88-54 [Vol. II]).

         The fact that the inquiring judge previously exercised recusal when a particular individual appeared does not necessarily require the judge to disqualify him/herself from all matters involving that individual in perpetuity (see e.g. Opinions 99-163 [Vol. XVIII]; 91-51 [Vol. VII]). Where, as here, it appears the initial recusal was not mandated by prior rules or opinions, but was entirely prophylactic in nature, the Committee can see no reason to require disqualification in other cases in which that litigant appears, provided the judge can be fair and impartial.³

________________________________

         ¹ The Federal Bureau of Investigation and major media outlets, including the New York Times, have reported on the sovereign citizen movement, and courts around the nation have had occasion to comment on the theories and tactics typical of its adherents (see e.g. US v Brown, 669 F.3d 10 [1st Cir 2012], cert denied 132 Sct 2448 [2012]; US v Ulloa, 511 Fed Appx 105 [2d Cir 2013]; Coppedge v Deutsche Bank Natl. Trust, 511 Fed Appx 130 [3d Cir 2013]; US v Chapman, 157 Fed Appx 758 [5th Cir 2005]; El v AmeriCredit Fin. Servs., Inc., 710 F3d 748 [7th Cir 2013]; US v George, 127 F3d 1107 [9th Cir 1997]; Rollins v Ingersoll-Rand Co., 240 Fed Appx 800 [10th Cir 2007]; US v Sterling, 738 F3d 228 [11th Cir 2013], cert denied 134 SCT 2682 [2014]).

         ² A judge need not disqualify him/herself from a case solely because an attorney or a party appearing before the judge files a complaint against the judge with the Commission on Judicial Conduct, provided “the judge believes that he/she can be impartial, and the Commission has not formally charged the judge with misconduct” (Opinion 10-38). Issuance of a formal written complaint is a significant benchmark for a judge, in that it reflects the Commission’s determination that it cannot simply dismiss the claims of misconduct after preliminary inquiry or investigation. It appears the Commission issued formal written complaints in fewer than 3% of the cases it considered last year (see 2014 Ann Rep of NY Commn on Jud Conduct at 3, 236).

         ³ The Committee has previously advised that “whether or not a judge has the authority to change his/her mind” regarding the judge’s previous decision to disqualify him/herself in a specific case “is a legal question outside of the authority of this Committee to address” (Opinion 09-71).