Opinion 25-65

March 27, 2025

Digest:  A judge against whom a complaint of misconduct has been made may continue to preside in a matter and determine motions made therein as permitted by law.

Rules:   CPLR 2221(a)(2); Judiciary Law § 45(1); 22 NYCRR 101.1; Opinions 24-156; 19-81; 17-05; 16-129; 15-218; 14-128; 14-58; 09-136; 00-10; 96-114; 98-69.

Opinion:

          The inquiring judge is presiding in a civil matter where one of the parties appears to be a disgruntled or vexatious litigant, in that he/she is quick to commence collateral proceedings or file complaints against individuals who are involved in the litigation process solely in their professional capacities.  The litigant recently filed a disciplinary complaint against the judge and uploaded a copy to the New York State Courts Electronic Filing system (“NYSCEF”) as if it were a proper filing in the matter pending before the judge, notwithstanding that “all complaints” and proceedings of the Commission on Judicial Conduct “shall be confidential and shall not be made available to any person” except as expressly provided by law (Judiciary Law § 45[1]).  An administrative judge then issued an order sealing the document.  The litigant has now moved to vacate the sealing order and unseal the document, and for other relief, including a motion for the judge to recuse.  The administrative judge has advised the inquiring judge he/she may decide these motions, and the inquiring judge now asks whether it is ethically permissible to do so.

          As a matter of ethics, we have consistently advised that judges may preside in cases where a litigant or lawyer has made a formal complaint against the judge to the Commission on Judicial Conduct (see e.g. Opinions 24-156; 16-129; 09-136; 96-114; cf Opinions 15-218; 00-10).  Indeed, we routinely leave it to judges’ discretion to search their own individual consciences about their ability to be fair and impartial in the face of a wide range of tactics deployed by disgruntled litigants, because “any rule requiring automatic recusal under such circumstances could enable unsuccessful or disgruntled litigants to engage in judge shopping” (Opinion 14-128; see also e.g. Opinions 19-81; 17-05; 14-58; 98-69).  The same principles apply here.

          Whether this judge is permitted by law to determine particular motions made in the matter presents a legal question we cannot answer (see generally 22 NYCRR 101.1; see also e.g. CPLR 2221[a][2] [providing where order made without notice, motion to vacate order “may be made, without notice, to the judge who signed it, or, on notice, to any other judge of the court”]).

          Accordingly, we conclude this judge may continue to preside in the matter and determine motions made therein as permitted by law.