Opinion 98-69

June 19, 1998

Digest:         The fact that a litigant has (1) complained about the judge to the State Commission on Judicial Conduct (2) commenced a federal civil rights lawsuit against the judge and (3) filed a criminal complaint against the judge with the District Attorney's office, does not require recusal, as long as the judge believes he or she can be impartial.

Rules:          22 NYCRR 100.3(E)(1); Opinions 94-94 (Vol. XII); 94-46 (Vol. XII); 92-114/92-127 (Vol. X); 92-130 (Vol. X); 91-130 (Vol. VIII); 91-48 (Vol. VII); 90-107 (Vol VI); 88-54 (Vol. II).

Opinion:

         A full-time judge inquires whether it is permissible for the judge to preside in a certain proceeding concerning child support, and related matters, where a party has accused the judge of being prejudiced against men and fathers and of having a personal bias against the party; has filed complaints against the judge with the State Commission on Judicial Conduct; has commenced a civil rights law suit against the judge in federal court; and has filed a criminal complaint against the judge with the District Attorney's office.

         The Rules Governing Judicial Conduct state that "[a] judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned . . . ." 22 NYCRR 100.3(E)(1).

         Thus, the question is whether the making of a variety of allegations of misconduct against a judge in and of itself suffices to constitute a basis for concluding that the proceeding over which the judge is presiding is one "in which the judge's impartiality might reasonably be questioned." 22 NYCRR 100.3(E)(1).

         The Committee has previously stated that a judge need not disqualify himself or herself where one of the litigants in a proceeding pending before the judge has commenced an action against the judge. Opinions 91-130 (Vol. VIII); 91-48 (Vol. VII); 90-107 (Vol VI); 88-54 (Vol. II). Nor is recusal required where an attorney had previously filed a complaint with the State Commission on Judicial Conduct. Opinions 94-96 (Vol. XII); 94-44 (Vol. XII); 92-130 (Vol. X). Indeed, any rule requiring automatic recusal under such circumstances could enable disgruntled litigants to engage in "judge shopping." See Opinion 94-94 (Vol. XII).

         Such opinions illustrate the basic principle expressed in Joint Opinion 92-114/92-127 (Vol. X), where the Committee stated:

There is no ethical requirement that the judge disqualify himself or herself merely by virtue of the fact that the people who appear before the judge have been saying harsh things about the judge and conducting a campaign against him or her. This is not grounds for disqualification unless the judge doubts that he or she can be impartial.

         In short, in the Committee's view, the fact that a litigant has asserted various claims, in different forums, against the presiding judge alleging judicial, civil and criminal misconduct, does not provide an adequate basis by itself for requiring disqualification in the proceeding. Accordingly, the Committee concludes that the inquiring judge, on the facts presented, should recuse himself or herself only if the judge doubts his or her ability to be impartial.