Opinion 19-81

July 16, 2019

Dear :

         This responds to your inquiry (19-81) asking whether you may continue to preside over a criminal action where the defendant, a self-identified sovereign citizen, is attempting to file a fraudulent lien against you and has threatened to accuse you of treason if you do not protect what the defendant perceives as his/her rights. In addition, you ask whether you may use Chambers resources to defend yourself against any wrongful accusations and to vacate any fraudulent liens filed by the defendant.

The Committee has previously advised that a judge is not necessarily disqualified from presiding in matters merely because a litigant threatens the judge, provided the judge believes he/she can be fair and impartial. The determination of whether a judge believes he/she can be fair and impartial is a matter confined solely to the judge’s conscience.

On multiple occasions, we have noted that, unfortunately, this type of retaliatory conduct is not singular. Rather, there are “many instances in which individuals file numerous apparently frivolous complaints and/or incomprehensibly large liens against judges …, whether due to anarchic malice or disappointment with their litigation results” (Opinion 14-58). The Committee has consistently refused to reward such “vexatious and abusive tactics” (id.). We adhere to “the fundamental view that a judge has the duty not to be swayed by fear of criticism and that a party should not be able to compel [disqualification] merely by circulating accusations against the judge” (Opinion 00-10). Indeed, automatic disqualification would only “encourage and embolden imitators” (Opinion 14-58). Accordingly, in these situations, a judge should exercise recusal only if the judge doubts his/her ability to be fair and impartial.

As to your second question, we have previously opined that if a complaint is made concerning the performance of a judge’s official duties or if frivolous or fraudulent conduct is taken in retaliation against the performance of a judge’s official duties, it is ethically permissible for the judge to use certain judicial resources to respond. However, the Committee takes no position “as to whether the use of court staff and/or court resources for this purpose is a violation of law or other Unified Court System rules or policy” (Opinion 97-102).¹

Enclosed, for your convenience, are Opinions 14-119; 14-58; 12-01; 00-10 and 97-102 which address these issues.

                                      Very truly yours,

George D. Marlow, Assoc. Justice (Ret.)

Appellate Div., First Dep’t

                                       Committee Co-Chair

                                       Hon. Margaret T. Walsh

                                       Supreme Court Justice

                                       Committee Co-Chair

Encls.

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¹ Judges may, of course, reach out to court administrators to learn about any applicable resources, policies, or guidelines in dealing with self-identified sovereign citizens. For example, Counsel’s Office has outlined certain rules and procedures to address false UCC filings against judges and court staff (see Chapter 490 of the Laws of 2013; UCC 9-518; 22 NYCRR 202.9-a), and the Department of Public Safety maintains Judicial Threat Reporting Numbers for use throughout the state. In addition, judges may review the course offerings of the Judicial Institute and the Office of Justice Court Support for training programs and materials concerning the Sovereign Citizen Movement and its impact on our courts.