June 26, 2020
This responds to your inquiry (20-61) asking whether you may continue to preside over a criminal matter after the defendant filed a federal lawsuit against you, the arresting police officer, and others. In addition, you ask whether you may preside over other matters in which the police officer appears.
Neither Judiciary Law § 14 nor the Rules Governing Judicial Conduct (22 NYCRR 100.3[E]) mandates disqualification under these circumstances. Accordingly, the Committee has previously advised that a judge need not exercise recusal solely because a litigant in a pending action has commenced an action against the judge. Indeed, “automatic recusal … could enable unsuccessful or disgruntled litigants to engage in judge shopping” (Opinion 14-105). Therefore, as long as you believe you can be fair and impartial, you may continue to preside over the criminal matter. Similarly, you may preside over other matters in which the arresting officer (the co-defendant in the federal action) appears.
Enclosed, for your convenience, are Opinions 14-105; 13-41; and 88-54 which address this issue.
Very truly yours,
George D. Marlow, Assoc. Justice (Ret.)
Appellate Div., First Dep’t
Margaret T. Walsh
Supreme Court Justice