Opinion: 99-78

April 29, 1999

Digest: Whether the judge, who is presiding over a custody case, must now disqualify him/herself where the respondent, during the pendency of the case, has allegedly criminally harassed the judge and the judge has filed a criminal complaint against the respondent, is a discretionary decision that rests with the conscience of the judge.

Rule:  Jud. Law §14; 22 NYCRR 100.3(E)(1)(a)(i);
          People v. Moreno, 70 N.Y.2d 403 (1987);
          Corradino v. Corradino, 48 N.Y.2d 894 (1979).


            A Family Court judge who is presiding over a custody case, informs the Committee of the following:

During its pendency, the following incidents have occurred. Several months ago, one of the litigants, the respondent, located the home of my sister and her family . . . where my mother also lives. The respondent appeared there twice to leave "important documents" for me. She additionally telephoned my mother several times. This naturally upset my mother and my sister and her family. Court security personnel had to admonish the respondent to cease and desist such attempted ex parte communication with the judge handling her case, and to stop alarming my family members.
At the commencement of the case, the respondent indicated a desire to proceed pro se, and declined my attempt to assign her counsel. After further inquiry, I determined it best to assign her a "legal advisor" from the . . . 18B panel. Last month, the respondent left a recorded message on her legal advisor's telephone answering machine wherein she threatened to "blow [the inquiring judge] off the bench." Since her legal advisor's office is in ______ County, the ______ District Attorney's Office has filed criminal charges against her, charging her with aggravated harassment. I am the complaining witness in that pending matter, and the presiding Judge . . . has issued a temporary order of protection on my behalf, directing, in essence, that the respondent stay away from me in all respects, including my sister's address, and have no contact with me, except when her case is being heard.

My question is as follows: given the history, may I continue to preside over this case or must I recuse myself?

            Based upon the information provided, it does not appear that there is a showing of grounds for mandatory disqualification under section 14 of the Judiciary Law. Nor does the judge indicate that as a result of the foregoing, "the judge has a personal bias or prejudice concerning a party" 22 NYCRR 100.3(E)(1)(a)(i). Under such circumstances, as stated by the Court of Appeals in People v. Moreno, 70 N.Y.2d 402 (1987), the trial judge "is the sole arbiter of recusal. This discretionary decision is within the personal conscience of the court . . . " 70 N.Y.2d at 405. But this does not mean that a judge, in the particular situation presented, need not consider whether it might be "the better practice for the court to [disqualify] itself and thus to maintain the appearance of impartiality." Corradino v. Corradino, 44 N.Y.2d 894, 895 (1979). However, we also note that among the circumstances to be considered by the judge is whether recusal might be deemed an encouragement for litigants to engage in extreme actions in order to secure the removal of a judge from a case. The Committee expresses no opinion in this regard but merely notes some of the factors to be considered by the judge in exercising discretion.