Vexatious tactics

The ethical aspect of the problems that sovereign citizens can cause judges is illustrated by a series of opinions issued by the New York Advisory Committee on Judicial Ethics.  (According to the FBI, “sovereign citizens are anti-government extremists who believe that even though they physically reside in this country, they are separate or ‘sovereign’ from the United States.  As a result, they believe they don’t have to answer to any government authority, including courts, taxing entities, motor vehicle departments, or law enforcement.”)

One ethics inquiry arose when a pro se criminal litigant filed a multi-million dollar lien against a judge’s property based on the judge’s actions in the case.  The committee noted that, “unfortunately, this does not appear to be an entirely isolated incident but one of many instances in which individuals file numerous apparently frivolous complaints and/or incomprehensibly large liens against judges and court personnel, whether due to anarchic malice or disappointment with their litigation results.”  Thus, New York Advisory Opinion 2014-58 stated that the judge may take all lawful steps necessary to clear the title and pursue all lawful avenues to put an end to the vexatious lien filing and could use the court’s clerical and other resources in a pro se expungement proceeding.  A follow-up opinion (New York Advisory Opinion 14-119) added that the judge could use official court stationery in corresponding with the respondent, the court clerk, county clerk, and others in connection with the expungement.

Also in New York Advisory Opinion 2014-58, the committee addressed the issue whether the judge was disqualified from the underlying criminal case.  Noting the purpose of the lien “was ‘merely, to entangle the judge in the time-consuming and expensive legal process,” the committee emphasized that “such vexatious and abusive tactics must not be rewarded.”

They undermine the prompt and efficient operation of the judicial system and are inimical to the rule of law.  The Committee cannot overlook that, under the facts presented, the supposed “conflict” is entirely of the defendant’s own making.  That is, although the inquiry reveals no financial or economic relationship whatsoever between the judge and the defendant, the defendant nonetheless chose to file a lien against the judge as part of his/her litigation strategy.  If disqualification were automatically required here or if the judge were in any way constrained from taking all lawful steps necessary to clear his/her title and from pursuing all lawful avenues to put an end to a vexatious lien filing, it would only encourage and embolden imitators.

Thus, the committee concluded, “absent other factors, the determination whether a judge can be fair and impartial in a case after a party files a baseless multi-million dollar lien against the judge’s property is a matter confined solely to the conscience of the particular judge . . . .  In other words, under the facts presented, the inquiring judge may continue to preside over the criminal case, provided that the judge determines, in his/her sole discretion, that he/she can be fair and impartial.”  See also New York Advisory Opinion 2014-105 (a judge may continue to preside over the criminal case of a defendant who identifies himself as a member of the sovereign citizens group and has commenced a lawsuit against the judge and other public officials and agencies).

A subsequent opinion (New York Advisory Opinion 2014-121) advised that, even if a judge had disqualified herself from a case after a litigant who identified as a “sovereign citizen” filed a complaint about the judge, the judge may preside over new cases involving that litigant after the complaint has been dismissed as unfounded, provided the judge can be fair and impartial.

There is an article in the summer 2008 issue of the Judicial Conduct Reporter explaining that, “in general, a judge is not automatically required to recuse when a party or attorney files a complaint or lawsuit against the judge.”  All issues of the Judicial Conduct Reporter beginning from spring 1999 are available for download on the web-site of the Center for Judicial Ethics where there is also an index.

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