Opinion 14-58

April 24, 2014

Digest:         When a pro se criminal defendant files a multi-million dollar lien against a judge’s property and the sole basis for the lien filing is the judge’s performance of his/her official judicial duties: (1) the judge may take all lawful steps necessary to clear his/her title and may pursue all lawful avenues to put an end to the vexatious lien filing; (2) it is not unethical for the judge to use the court’s clerical and other resources to assist in preparing a pro se expungement proceeding; and (3) the judge may continue to preside in the criminal case, provided the judge determines he/she can be fair and impartial, a matter confined solely to the conscience of the particular judge.

Rules:          Judiciary Law §14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1)(a)(I); 100.3(E)(1)(a)-(e); Opinions 13-83; 12-96; 12-78; 12-01; 11-86; 09-47(B); 08-170; 05-78; 00-10 (Vol. XVIII); 99-78 (Vol. XVIII); 98-134 (Vol. XVII); 98-69 (Vol. XVII); 97-102 (Vol. XVI); 89-104 (Vol. IV); Joint Opinions 10-43/10-44; 07-78/07-121; People v Moreno, 70 NY2d 403 (1987); People v Brown, 24 NY2d 168, 172 (1969).

Opinion:

         A judge who is presiding in a criminal case states that the pro se defendant threatened on the record to place a lien against the judge’s property and subsequently did so; the judge’s property is now encumbered by a baseless multi-million dollar UCC-1 lien. The criminal case has not yet concluded and is still pending before the judge. Although it appears that the judge has been targeted for this lien filing as a result of his/her routine performance of his/her judicial functions, the judge has been advised that the Office of the Attorney General cannot represent the judge in an effort to expunge the lien. Accordingly, the judge asks whether he/she may commence an action pro se to expunge the lien filing and prepare for it on court time, using court resources and personnel. The judge also asks whether he/she may continue to preside in the criminal matter, in light of the judge’s intention to pursue all available civil remedies in connection with the defendant’s frivolous lien filing, disclose the conduct to all appropriate authorities, and also refer the matter to prosecutors. The judge notes that, if he/she prevails in civil litigation against the defendant and is awarded money damages, the judge might become the defendant’s creditor.

         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]-[e]; 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 recognized that the Rules Governing Judicial Conduct (Opinion 12-96):

do not preclude a judge from exercising the same rights as any other citizen when appearing as a litigant. For example, the Committee has advised that a judge may commence an action in a court of competent jurisdiction, whether proceeding pro se or through counsel [citations omitted]. Similarly, the Committee has advised that, when a judge is called as a witness or has been the victim of a crime, the judge generally has the same rights, duties, and obligations as other witnesses or other crime victims [citations omitted].

Likewise, the inquiring judge here may take all lawful steps necessary to clear his/her title and may pursue all lawful avenues to put an end to a vexatious lien filing (see id.).

         It appears from the inquiry that the sole “basis” for the multi-million dollar lien filing against the judge’s property is the judge’s performance of his/her official judicial duties. Accordingly, under the specific facts presented, the Committee concludes that it is not unethical for the judge to use the court’s clerical and other resources to assist in preparing a pro se expungement proceeding unless otherwise prohibited by law or court rule (see Opinion 97-102 [Vol. XVI]).

         The sole remaining question is whether the judge may continue to preside in the defendant’s criminal case where the defendant has filed a lien against the judge’s property, and the judge intends to take all steps available to him/her in response. While this may be a matter of first impression for the Committee, prior opinions provide significant guiding principles.

         First of all, the Committee has 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 on appropriate legal criteria, despite his/her awareness of facts that cannot properly be relied upon in making such determination” (Joint Opinion 07-78/07-121, relying on People v Moreno, 70 NY2d 403, 406 [1987] and People v Brown, 24 NY2d 168, 172 [1969]).

         Because the pro se defendant threatened on the record to file a baseless lien against the judge and actually carried out this threat during the pendency of his/her criminal case before the inquiring judge, the Committee concludes that the lien is part of the defendant’s litigation strategy. In general, when the judge’s opinion of a litigant is not drawn from an extrajudicial source but is instead based on the litigant’s conduct before the judge, the judge is not necessarily disqualified from continuing to preside in the matter (see Opinions 12-78 [judge who granted a criminal defendant’s post-trial motion to set aside a jury’s guilty verdict need not disqualify him/herself from presiding over the new trial, unless the judge questions his/her own ability to be impartial]; 98-134 [Vol. XVII] [judge does not have to recuse him/herself solely on the basis of the judge’s past decisions involving a party, even where the decision “was based primarily upon the judge’s assessment of the party’s credibility in that earlier action”]; 89-104 [Vol. IV] [“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”]).

         Moreover, the Committee has consistently advised that a party’s threats of physical violence against a judge do not, without more, cause the judge’s impartiality to reasonably be questioned when that party appears before the judge (see Opinions 13-83; 12-01; 11-86; 08-170; 05-78; 99-78 [Vol. XVIII]). As explained in Opinion 12-01:

The Committee has previously advised that a judge is not disqualified from presiding merely because one party threatens the judge or the judge’s family, provided the judge believes he/she can be fair and impartial [citations omitted]. Thus, absent other factors, the determination whether a judge can be fair and impartial in a case after a party threatens the judge or his/her family is a matter confined solely to the conscience of the particular judge [citations omitted].

         Here, of course, the threat was “merely” to entangle the judge in the time-consuming and expensive legal process necessary to clear his/her title of fraudulent liens. Unfortunately, this does not appear to be an entirely isolated incident but one of many instances in which individuals file numerous apparently frivolous complaints and/or incomprehensibly large liens against judges and court personnel, whether due to anarchic malice or disappointment with their litigation results (see e.g. Joint Opinion 10-43/10-44 [defendants pursued “numerous collateral applications to state and federal courts against the judges, both personally and in their judicial capacities” and “filed liens with the Secretary of State for several billion dollars” against a judge and a law clerk]; Opinions 09-47[B] [attorney sued multiple town officials, including the town judges, although the complaint reveals “no legally cognizable theory” of liability against any of them]; 00-10 [Vol. XVIII] [recusal not required where defendant made complaints “to the New York State Police and U.S. Postal investigators, and ... these agencies have told the justice that the complaints are unfounded”]; 98-69 [Vol. XVII] [litigant asserted various claims, in different forums, against the presiding judge alleging judicial, civil and criminal misconduct].

         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.

         Accordingly, the Committee concludes that neither Judiciary Law § 14 nor Section 100.3(E)(1) of the Rules Governing Judicial Conduct mandates disqualification under the circumstances the inquiring judge describes. Thus, absent other factors, the determination whether a judge can be fair and impartial in a case after a party files a baseless multi-million dollar lien against the judge’s property is a matter confined solely to the conscience of the particular judge (see Opinions 12-01; 11-86; 99-78 [Vol. XVIII]; People v Moreno, 70 NY2d 403 [1987]). In other words, under the facts presented, the inquiring judge may continue to preside over the criminal case, provided that the judge determines, in his/her sole discretion, that he/she can be fair and impartial.