Opinion 18-25

March 29, 2018

Digest:        (1) A judge does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority. (2) The Committee cannot address legal questions such as whether or how a judge, in his/her capacity as a firearm licensing officer, may consider an applicant’s request to lift the suspension of a firearm license or which persons must be notified and given an opportunity to participate.

Rules:         22 NYCRR 100.2(A); 100.3(B)(6); 100.3(B)(6)(e); 100.3(B)(12); Opinions 18-57/17-166; 17-185; 09-137.

Opinion:

         A judge who serves as a firearm licensing officer routinely receives letters from unrepresented individuals who had their pistol permit suspended in the past. The letters ask the judge to lift the suspension and often provide factual details and/or arguments in support of the request. The judge asks if he/she may initiate a proceeding to consider the request to lift the suspension in response to such a letter. If so, the judge further asks if he/she must provide the prosecutor with notice and an opportunity to participate or respond.

         A judge must respect and comply with the law and must always act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law (see 22 NYCRR 100.3[B][6]). Accordingly, a judge “shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties or their lawyers concerning a pending or impending proceeding” unless an exception applies (id.). A judge may, however, “initiate or consider any ex parte communications when authorized by law to do so” (22 NYCRR 100.3[B][6][e]). The Rules also state that it is not an ethical violation for a judge to “make reasonable efforts to facilitate the ability of unrepresented litigants to have their matter fairly heard” (22 NYCRR 100.3[B][12]).

         In Opinion 18-57/17-166, we advised that a judge:

does not violate the Rules Governing Judicial Conduct by fulfilling his/her statutory powers, functions, and duties as a licensing officer in good-faith reliance on statutory authority and administrative guidance on how to exercise that authority.” However, the judge must still abide by generally applicable ethical principles, to the extent necessary and appropriate, even when acting as a licensing officer, and thus the judge (1) must not be swayed by public clamor or fear of criticism; (2) must respect and comply with the law, including any due process requirements for such proceedings; and (3) must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality.

         Whether or not the judge, in his/her capacity as a firearm licensing officer, may consider the apparently ex parte communications from individuals whose licenses have been suspended and thereafter initiate proceedings to consider the request to lift the suspension raises primarily legal questions beyond our authority to address (see generally Opinion 18-57/17-166; 22 NYCRR 100.3[B][6][e]). Similarly, we cannot answer legal questions about whether a prosecutor or other agency must be provided with notice and an opportunity to participate or respond in firearm license proceedings (see generally Opinion 18-57/17-166; Opinion 17-185 [“We cannot comment on legal questions, such as who is an ‘interested person,’ ‘interested party,’ or ‘party’ in a particular proceeding…”]).

         Of course, a judge who makes a good-faith legal determination concerning these issues necessarily acts ethically, even if another court later concludes the judge’s determination was erroneous (see Opinions 18-57/17-166; 09-137).