Opinion 88-54

May 9, 1988

Topic:          Recusal of Supreme Court Justice in matter in which plaintiff has also filed an action in Federal Court seeking damages from the Justice for alleged denial of his civil rights in connection with the State Court action.

Digest:         Absent a showing of prejudice, the Justice may continue to preside over a case and to issue a decision in the case where the plaintiff subsequently has sued the Justice in Federal Court in a related matter.

Rules:          Rules of the Chief Administrator of the Courts, section 100.3(c)(1); Code of Judicial Conduct, Canon 3(c)(1)

Opinion:

         A Supreme Court justice seeks an opinion as to whether or not the justice should recuse himself from further participation in an action, which has reached the stage where the justice is about to render a decision, in view of the fact that the plaintiff has commenced an action in Federal Court seeking damages from the judge for an alleged denial of plaintiff's civil rights in connection with the plaintiff's state court action.

         Rule 100.3(c)(1) of the Chief Administrator of the Courts and Canon 3(c)(1) of the Code of Judicial Conduct state the following:

A judge shall disqualify himself or herself in a proceeding in which his or her impartiality might reasonably be questioned, including, but not limited to circumstances where:

(i) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding.

         The rules enumerated above clearly do not mandate that the judge recuse himself in circumstances where the judge has not been prejudiced or biased. Absent a showing of prejudice or bias and where the judge's impartiality is not reasonably in question, the judge is free to preside over the case.

         Since the Committee does not have knowledge of the events which transpired in court, the judge must determine the issue of his bias and prejudice. The judge at this stage is the “sole arbiter of his disqualification.” (People v. Moreno, 70 NY2d 403). If the judge feels no need to recuse himself in light of the expressed statutory provisions, then he should not disqualify himself. To require a judge as a matter of ethics to recuse himself in this situation, when the plaintiff sues the judge in Federal Court, after all the evidence has been presented, would establish a precedent under which a judge would be required, in the midst of a case, to relinquish his responsibility of presiding over the case and would invite other litigants in similar situations to commence collateral actions after all evidence has been presented in an action to prevent a judge from rendering a decision that the litigants believe may be unfavorable to them. In essence, this would be tantamount to permitting judge-shopping, which this Committee strongly opposes.

         The response of the Committee on this matter is limited solely to the requirements of judicial ethics. It is important to note that plaintiff here has an adequate remedy at law although it is not yet ripe. The plaintiff can appeal the judge's decision if it turns out to be an unfavorable one, and the issue of bias or prejudice or lack of impartiality can be reviewed at that time.

         This opinion is advisory only and is not binding upon the Commission on Judicial Conduct or the Office of Court Administration.