Opinion 21-176

December 2, 2021

Digest:        Where the court’s chief clerk has filed a criminal complaint against a litigant for making threats against the clerk, whether the judge must recuse from the litigant’s pending matters is a discretionary decision to be guided by the judge’s conscience.

Rules:          Judiciary Law § 14; 22 NYCRR 100.2; 100.2(A); 100.3(E)(1); 100.3(E)(1)(a)(i); 100.3(E)(1)(a)-(f); Opinions 12-01; 08-170; 05-78; 99-78; People v Moreno, 70 NY2d 403, 405 (1987)..

Opinion:

         A judge is presiding in several criminal cases involving the same defendant, and expects to be assigned a summary civil proceeding involving the same individual. The court’s chief clerk recently filed a criminal complaint against the litigant for threatening the clerk. Assuming an accusatory instrument is filed with the court, the judge anticipates the chief clerk will request an order of protection. The judge asks (1) if the judge must disqualify “from any or all” of the litigant’s currently pending cases and (2) if the court may “order that the defendant stay away from the chief clerk’s place of employment (i.e., the courthouse).”

         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 in any proceeding where the judge’s impartiality “might reasonably be questioned” (22 NYCRR 100.3[E][1]), including where the judge has a personal bias or prejudice concerning a party (see 22 NYCRR 100.3[E][1][a][i]) or in other specific circumstances as required by rule or by law (see generally 22 NYCRR 100.3[E][1][a]-[f]; Judiciary Law § 14).

         In general, we have left it to a judge’s discretion whether to preside or recuse after a litigant has threatened the judge. For example, where the Federal Bureau of Investigation provided information suggesting a judge was a target of future violent acts by a defendant, we said disqualification was mandatory only if (1) the judge had a personal bias or prejudice concerning that defendant or (2) the judge concluded that the judge’s impartiality could reasonably be questioned in the matter (see Opinion 08-170). However, we said these determinations were solely in the judge’s discretion, even if the defendant moved for the judge’s recusal (see id., citing People v. Moreno, 70 NY2d 403, 405 [1987] [“[a]bsent a legal disqualification under Judiciary Law §14, a Trial Judge is the sole arbiter of recusal”]). Whether to preside in the original underlying matter was likewise left to the judge’s discretion where a defendant threatened to kill the judge (see Opinion 05-78), where the respondent in a custody case allegedly harassed the judge (see Opinion 99-78), and where the judge reported to court security personnel a potentially threatening letter toward the judiciary from a parent in a custody case (see Opinion 12-01).

         Here, there is even less reason to question the judge’s impartiality in the litigant’s currently pending cases, as the litigant’s alleged threats were made against the court clerk rather than the judge. Therefore, the judge may preside in the currently pending matters involving this litigant unless the judge determines the judge cannot be fair and impartial, a matter which rests completely within the judge’s discretion and personal conscience.

         The inquiring judge also asks, “If and when the defendant is arraigned on the criminal charge(s) stemming from the complaint of the chief clerk, and if the chief clerk requests a full stay away order of protection, can the court order that the defendant stay away from the chief clerk’s place of employment (i.e., the courthouse)?” We determine this part of the inquiry to raise primarily legal questions, and therefore decline to address it.¹

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¹Indeed, the judge notes that such an order “would seem ... inconsistent with the defendant’s right to be present at all stages of the criminal proceedings.”