Opinion 91-48

April 25, 1991

Digest:         A judge may continue to preside over a case and render a decision in that case where a party has sued the judge in a related matter which merely alleged judicial error.

Rules:          22 NYCRR S100.3(c)(1); Code of Judicial Conduct, Canon (c)(1).

Opinion:

         A full-time judge seeks an opinion as to whether the judge should recuse himself or herself from further participation in an action which has reached the stage where a decision is about to be rendered, in view of the fact that the claimant had filed a claim seeking damages for an alleged denial of the claimant's civil rights by the judge in the original action and other proceedings.

         The judge was assigned to hear and dispose of a series of claims brought by an inmate at a state correctional facility, and four of them were scheduled to be heard on a specific date. The trial of the first claim consumed the entire day, and when the other three claims were adjourned to a later date, the inmate filed a claim for damages based on the judge's failure to promptly hear and dispose of the remaining claims. That claim was referred to another judge of the same court, who dismissed it and imposed sanctions for the imposition of a frivolous claim.

         The judge denies feeling prejudiced or biased against the inmate, and requests an opinion as to whether the judge is required to disqualify himself or herself from deciding the action still pending, or from the other claims still awaiting trial.

         Section 100.3(c)(1) of the Rules of the Chief Administrator of the Courts provides in pertinent part:

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 had ... personal knowledge of disputed evidentiary facts concerning the proceeding;

(ii) ... the judge ... has been a material witness concerning it (the matter).

         In Opinion 88-54, Vol. II, this Committee concluded that a full-time judge, who has been sued by a litigant in federal court based on the judge's alleged deprivation of the litigant's civil rights in the course of the state litigation, was not ethically obligated to recuse himself or herself from deciding the state litigation. We stated that the judge is the "sole arbiter of his or her disqualification" and if the judge felt that he or she could decide the pending matter fairly and impartially, then the judge need not disqualify himself or herself.

         In a subsequent opinion, 91-25, Vol. VII, this Committee concluded that a judge was not required to disqualify himself or herself from participation in an action solely because the judge has been called as a witness in a separate but related perjury proceeding against one of the litigants.

         The circumstances of the present inquiry are substantially similar, and therefore, the inquirer is not required to disqualify himself or herself if the judge is convinced that he or she can continue to act impartially in the pending litigation particularly as the other litigation claimed merely judicial error.