Opinion  CJE Letter Opinion No. 2023-03

Date: 12/20/2023
Organization: Massachusetts Supreme Judicial Court

Letter Opinion of the Committee on Judicial Ethics

Table of Contents

Disqualification: Litigant Has Filed a Complaint or Lawsuit Against Judge

You seek guidance from the Committee on Judicial Ethics (CJE or Committee) regarding whether the Code of Judicial Conduct (Code) requires you to disqualify yourself from a pending matter because one of the litigants has filed suit against you in another court of the Commonwealth in an attempt to obtain judicial review of your actions and rulings in the pending matter. As explained below, the Code leaves the question of disqualification to a judge’s sound discretion so long as the judge has satisfied both a subjective and an objective analysis. Here, where you have conducted this subjective analysis and determined that you can remain impartial, an objective analysis does not require that you disqualify yourself from a matter because a party thereto has filed suit against you collaterally challenging your judicial actions and rulings but making no credible allegations of bias or prejudice. 

1. Background.[1] You are presiding over a matter in which one party is self-represented and another party is represented by counsel.  In the course of litigation, you have ruled on various motions filed by each party. After you denied a motion filed by the self-represented litigant, she filed a lawsuit against you in another court of the Commonwealth, challenging your judicial rulings and alleging that you did not comply with a procedural order entered by a judge who previously presided over the matter.[2]

While the lawsuit against you was pending, the parties to the matter before you appeared for a hearing. At the outset of the hearing, you informed the parties about the lawsuit, acknowledging the self-represented litigant’s right to file a complaint and stating that you took no umbrage. You then inquired whether any party had concerns about your ability to continue presiding over their matter impartially. The represented party, through counsel, expressed no concern. The self-represented litigant expressed general concern about the judicial actions that were the subject of her lawsuit but stated that she was “uncertain” whether she questioned your impartiality. You gave her additional time to consider the question, but she again stated that she was “uncertain.” No party formally or affirmatively has sought your disqualification from the matter. 

Since that hearing, the lawsuit filed against you was dismissed because, among other reasons, the court determined that it lacked subject matter jurisdiction to review challenges to your judicial rulings or the proceedings before you. The self-represented litigant has filed a notice of appeal from that dismissal.   

You represent that you have conducted an internal examination and concluded that you do not harbor bias or prejudice against any party, including the self-represented litigant, and believe that you can continue to preside over the matter before you impartially. However, you have asked the Committee whether an objective analysis of the circumstances nonetheless requires you to disqualify yourself from the pending matter.    

2. The Code. “An independent, fair, and impartial judiciary is indispensable to our system of justice.” Code, Preamble. See also Rule 1.2 (“A judge shall act at all times in a manner that promotes public confidence in the independence, integrity, and impartiality of the judiciary, and shall avoid impropriety and the appearance of impropriety.”); Rule 2.4(C) (a judge “shall not convey or permit others to convey the impression that any person or organization is in a position to influence the judge”). Therefore, Rule 2.11 requires that "[a] judge shall disqualify himself or herself in any proceeding in which the judge cannot be impartial or the judge's impartiality might be reasonably questioned.” Rule 2.11(A). The test for disqualification requires that the judge satisfy both a subjective and an objective standard.  “The subjective standard requires disqualification if the judge concludes that he or she cannot be impartial. The objective standard requires disqualification whenever the judge’s impartiality might reasonably be questioned by a fully-informed disinterested observer, regardless of whether any of the specific provisions of Paragraphs (A)(1) through (5) apply.” Rule 2.11, Comment [1]. Rule 2.11(A)(1)-(5) provide examples of circumstances in which disqualification is required, including when “[t]he judge has a personal bias or prejudice concerning a party or a party’s lawyer, or personal knowledge of facts that are in dispute in the proceeding.”[3] Rule 2.11(A)(1).

If a judge does not believe that there is a basis for disqualification under either the subjective or objective standard, the judge nonetheless must disclose on the record information that the judge believes the parties or their lawyers may reasonably consider relevant to a possible motion for disqualification. Rule 2.11, Comment [5]. That said, “[a] judge’s obligation not to hear or decide matters in which disqualification is required applies regardless of whether a motion to disqualify is filed.” Rule 2.11, Comment [2].               

3. Discussion. A judge is not automatically disqualified from a proceeding because a litigant or attorney has filed a complaint against the judge. See Rule 2.11, Comment [6] (“The filing of a judicial discipline complaint during the pendency of a matter does not necessarily require disqualification of the judge presiding over the matter. The judge’s decision to disqualify in such circumstances must be resolved on a case-by-case basis.”). If this was not the case, parties or their counsel would be permitted or even encouraged to file complaints against judges in order to disrupt or manipulate the judicial process, which would be inherently unfair to other litigants and undermine public confidence in the judiciary. While it may initially appear that the safest course of action would be to disqualify from a matter when a litigant or attorney has filed a complaint, such an approach may not serve the judicial system if disqualification would not otherwise be required. Instead, when faced with a complaint filed during the pendency of a matter, a judge should conduct the two-part analysis required by the Code to determine whether, in those particular circumstances, the subjective or objective standards counsel in favor of disqualification. 

Here, the Committee advises that disqualification from the matter before you is likely not required. First, you represent that you have satisfied the subjective standard. Though no party has affirmatively sought your disqualification, you represent that you have consulted your conscience and emotions and determined that you can continue to preside impartially, free from personal bias and prejudice, notwithstanding one party’s filing of a civil complaint against you. 

Second, turning to the objective standard, the Committee is generally persuaded that a fully informed disinterested observer would not reasonably question a judge’s impartiality merely because a dissatisfied litigant has filed a complaint against the judge in an attempt to obtain collateral review of judicial rulings or proceedings. See, e.g., Commonwealth v. Leventhal, 364 Mass. 718, 722 (1974) (“Nor is a judge disqualified because he is made a formal party as a method of seeking review of his rulings”). Judges are accustomed to litigants seeking review of their judicial rulings. That a litigant has done so, without more, is unlikely to cause a reasonable observer to question whether a judge is or has become biased or prejudiced against the litigant. Were it otherwise, courts of appeal would not, as they routinely do, remand cases for further action by the judges who initially decided them.     

We also must consider the substance of the complaint to determine whether the litigant has credibly alleged that you suffer from bias or prejudice that would call your impartiality into question. While you should conduct an independent review of the complaint and any subsequent filings, it does not appear to the Committee that the complaint filed against you alleges bias or prejudice sufficient to give the reasonable objective observer pause. The fact that the litigant appears to believe that your judicial rulings are unfavorable to her and favorable to her opponent does not alter this conclusion. Afterall, it is the nature of our adversarial system that a judge will often be called upon to make decisions that leave one party dissatisfied. A judge’s execution of this duty is insufficient to suggest bias.

Finally, as an additional safeguard, you have disclosed the filing of the lawsuit to the parties on the record and provided them an opportunity to state their concerns or affirmatively move for your disqualification. To the best of the Committee’s knowledge, no party has alleged that the filing of the lawsuit against you demonstrates that you are or has caused you to become biased or prejudiced or filed a motion seeking your disqualification. Cf. Demoulas v. Demoulas Super Markets, Inc., 428 Mass. 543, 549 (1998) (“one seeking the disqualification of the judge must do so at the earliest moment after knowledge of the facts demonstrating the basis for such disqualification” [citation omitted]).  Even if the self-represented litigant’s stated uncertainty could be interpreted as a challenge to your impartiality, the Committee’s conclusion that disqualification is not required in the present circumstances would rest undisturbed. Disqualification is not required merely because a litigant or a party’s lawyer questions a judge’s ability to remain impartial. Instead, the proper inquiry is whether an objective observer would reasonably question the judge’s impartiality. As we have explained, it does not appear that an objective observer would have cause to do so here. 

4. Conclusion.  Neither the subjective nor the objective standards appear to require you to disqualify yourself  from the matter before you. You have searched your conscience and determined that you can remain impartial notwithstanding the filing of a complaint against you. While you should independently verify the Committee’s understanding, it does not appear that the complaint or subsequent filings contain any credible allegations of bias or prejudice sufficient to cause a reasonable, fully informed disinterested observer to question your impartiality. Moreover, you have disclosed on the record information regarding the litigant’s lawsuit and no party has sought your disqualification. In these circumstances, the fact that a litigant in a proceeding before you has filed suit against you in another court of the Commonwealth in an attempt to obtain collateral review of your judicial rulings does not compel your disqualification from the proceeding. Of course, circumstances may change. Therefore, you should be mindful that Rule 2.11 imposes a continuing obligation to evaluate whether disqualification has become necessary under either the subjective or objective standards.

[1] This opinion relies on facts you have provided. We have not undertaken an independent investigation of this information. If material facts have been omitted or misrepresented, this opinion is without force or effect.

[2] You are not the first judge who has presided over this matter. Before you, another judge entered a procedural order requiring the parties to obtain judicial permission before certain filings would be accepted by the court. In her complaint against you, in addition to challenging certain of your rulings, the self-represented litigant alleges that you unfairly permitted an opposing party to file an answer to the complaint without first complying with the procedural order entered by the prior judge. 

[3] Where disqualification is required for reasons other than prejudice or bias, Rule 2.11(C) permits a judge to disclose on the record the basis of the disqualification to give the parties an opportunity to waive disqualification. However, judges are cautioned against over-reliance on this waiver provision. See CJE Opinion No. 2018-04

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