Joint Opinion 18-57/17-166

March 29, 2018

Digest:         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.

Rules:          Judiciary Law 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(1); Opinions 17-176; 17-110; 16-55.

Opinion:

         In Inquiry 18-57, as clarified by discussion with the inquirer, an administrative judge requests reconsideration of Opinion 17-166, which he/she states is premised on a fundamental misunderstanding of the powers, functions and duties conferred by the legislature on judges who serve as licensing officers.

         According to the administrative judge, a judge acting as a licensing officer may (or even potentially must) in certain circumstances initiate investigations and/or proceedings concerning possible revocation or suspension of a firearm license. The statute does not necessarily provide for a law enforcement or prosecutorial agency to be notified or involved in the proceeding. Instead, it is a civil/administrative licensing proceeding, albeit one that may potentially have constitutional dimensions.

         A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A judge must “respect and comply” with the law (id.) and “be faithful to the law and maintain professional competence in it” (22 NYCRR 100.3[B][1]).

         As always, we can only comment on a judge’s ethical obligations under the Rules Governing Judicial Conduct (see Judiciary Law 212[2][l]). However, based on the inquiring administrative judge’s representations, we hereby rescind our prior Opinion 17-166 and replace it with the present Joint Opinion.

         Judges acting as licensing officers may, of course, undertake the functions, duties, and responsibilities conferred on them by law. We note that these functions, as explained by the inquiring administrative judge, are in some ways inconsistent with the traditional neutral role of a judge, particularly to the extent they may authorize or mandate the judge to investigate sua sponte the propriety of a previously granted firearm license and/or to initiate and conduct a firearm license revocation or suspension proceeding without participation of the functional equivalent of a separate quasi-prosecutorial or law enforcement agency.

         Nonetheless, we believe 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 (see generally 22 NYCRR 100.2[A]; 100.3[B][1]; cf. Opinion 16-55 [“a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically”]).

         Of course, a judge must still abide by generally applicable ethical principles, to the extent necessary and appropriate, even when acting as a licensing officer. For example, the judge (1) must “not be swayed by ... public clamor or fear of criticism” (22 NYCRR 100.3[B][1]); (2) must “respect and comply with the law,” including providing due process for licensees to the extent required by case law and/or statutes (22 NYCRR 100.2[A]);¹ and (3) must act in a manner that promotes public confidence in the judiciary’s integrity and impartiality (see id.). It would, for example, be inappropriate for a judge to use his/her powers as a licensing officer to “further the judge’s convenience or personal interests” (Opinion 17-110).

         Beyond this, we cannot meaningfully comment at this juncture, as the details of a judge’s statutory functions, powers, and duties raise primarily legal or administrative questions. Indeed, to the extent unsettled, we conclude judges should first consult their supervising and/or administrative judge about the questions presented, before seeking ethical guidance on their activities as licensing officers, so that the appropriate administrative judges can create uniform policies, procedures, and guidelines for judges acting as licensing officers (cf. Opinion 17-176).

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¹We note that what constitutes due process in the context of any particular firearm revocation or suspension proceeding is a question of law. Again, we emphasize “a judge who makes a good-faith legal determination based on the apparently controlling statutes and case law (if any) is necessarily acting ethically” (Opinion 16-55), even if he/she is reversed on appeal.