Opinion 24-137

September 12, 2024

Digest:  A judge need not disqualify in a matter merely because a litigant has publicly accused the judge of misconduct or filed a complaint with the Commission on Judicial Conduct, so long as (i) the judge can remain fair and impartial and (ii) the Commission has not issued a formal written complaint charging the judge.

Rules:   22 NYCRR 100.2; 100.2(A); 100.3(B)(1); 100.3(E)(1); 100.3(E)(1)(a)(i); Opinions 23-54; 20-09; 18-43; 17-138; 16-129; 14-189; 14-121; 10-38; 00-10; 92-114/92-127; People v Moreno, 70 NY2d 403 (1987).

Opinion:

          A news program recently reported on allegations of judicial misconduct against the inquiring judge.  Certain litigants who have matters currently pending before the judge appeared on the program and have reportedly filed disciplinary complaints with the Commission on Judicial Conduct.  The litigants who appeared on the program subsequently moved for recusal and/or a mistrial, alleging the judge is biased against them.  The judge has not been notified by the Commission of any pending complaints or formal charges.  The judge asks if he/she must disqualify.

          A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]).  A judge must not be swayed by partisan interests, public clamor, or fear of criticism (see 22 NYCRR 100.3[B][1]).  A judge must disqualify whenever “the judge’s impartiality might reasonably be questioned” (22 NYCRR 100.3[E][1]), including when “the judge has a personal bias or prejudice concerning a party” (22 NYCRR 100.3[E][1][a][i]).  If disqualification is not mandated by specific rules or opinions, the judge remains “the sole arbiter of recusal,” the decision being discretionary “within the personal conscience of the court” (People v Moreno, 70 NY2d 403, 405 [1987]).

          We have advised that disqualification is not mandated “merely because a party has publicly criticized the judge, no matter how harshly, provided the judge can be fair and impartial” (Opinion 14-189; see also Opinion 92-114/92-127 [“There is no ethical requirement that the judge disqualify himself or herself merely by virtue of the fact that people who appear before the judge have been saying harsh things about the judge and conducting a campaign against him or her.”]).  We have, in fact, concluded the opposite: “a judge generally has a duty to sit where not disqualified, which is as strong as the duty not to sit where disqualified” (Opinion 20-09 [internal quotations omitted] [advising that fear of criticism and personal attack by Public Defender did not necessitate recusal]; see also Opinion 00-10 [“a judge has the duty not to be swayed by fear of criticism and … a party should not be able to compel recusal merely by circulating accusations against the judge”]).  Whether the criticism has been reported in the media is ethically immaterial (see Opinion 23-54).

          We have also advised that a litigant’s decision to file a complaint with the Commission on Judicial Conduct does not, by itself, require the judge’s disqualification, provided the judge concludes he/she can remain fair and impartial (see e.g. Opinions 16-129; 14-121; 10-38).  “Any other rule would allow — and perhaps encourage — individuals involved in litigation to use the disciplinary system, or collateral actions against a judge, as a means to disrupt the court process or ‘judge shop’” (Opinion 16-129).  Indeed, even if the Commission commences an investigation, we have said a judge need not disqualify unless and until the Commission issues a formal written complaint against him/her (see Opinions 16-129; 10-38)

          Here, because the judge has not heard from the Commission, the judge does not even know for certain that a complaint has in fact been filed (see Opinions 18-43 [judge not disqualified upon receipt from litigant’s lawyer of courtesy copy of complaint to Commission]; 17-138 [judge may presume litigant’s purported complaint has not been filed unless Commission contacts judge]).  Clearly, this judge has not been formally charged with misconduct based on these litigants’ complaints.

          Accordingly, proved the inquiring judge can be fair and impartial, he/she may continue to preside over matters involving the litigants unless and until the Commission issues a formal written complaint against the judge based upon their complaints.