Opinion 16-126

    October 7, 2016

Dear :

         This responds to your inquiry (16-126) asking if you may continue presiding in a criminal trial after the defendant commenced a lawsuit naming you in your “official and individual capacity” for a claimed “violation of [his/her] civil rights.” The defendant also sent these legal filings to a high-ranking prosecutor.

         Neither Judiciary Law §14 nor Section 100.3(E)(1) of the Rules Governing Judicial Conduct mandates disqualification on these facts. Accordingly, the Committee has consistently advised that a judge need not exercise recusal where a litigants in a matter before the judge has commenced an action against the judge based on the judge’s alleged judicial conduct. Surely, any rule requiring automatic recusal on such facts could enable unsuccessful or disgruntled litigants to judge shop. Thus, if you believe you can be fair and impartial, you may continue to preside over the matter.

         Enclosed, for your convenience, are Opinions 14-105; 13-41; and 88-54 which address this issue.

                                       Very truly yours,

George D. Marlow, Assoc. Justice

Appellate Division, First Dept. (Ret.)

Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Family Court Judge

                                       Acting Justice of the Supreme Court

                                       Committee Co-Chair

Encls.