Joint Opinion 92-114 & 92-127

November 19,1992

Digest:           Provided the judge can be impartial a full-time judge need not recuse himself or herself merely because a litigant or relative of a litigant before the judge has been saying harsh things about the judge, and should not respond by personal letter about the judge’s gun licensing standards.

Rules:            22 NYCRR § 100.2(a); 100.3 ( c)(1)(i); 100.3 (a)(6).

Opinion:

          A full-time judge inquires whether the judge should recuse himself or herself where a litigant or a relative of a litigant before the judge is a member of a statewide organization which has instituted formal proceedings against the judge regarding handgun licensing. Members of this organization have affixed anti-judge stickers to the judge’s automobile, home, and reserved parking spot. The judge also asks if the judge should respond to a letter inquiring about the judge’s gun licensing standards and procedures.

          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. This is not grounds for disqualification unless the judge doubts that he or she can be impartial.

          In the present case, however, the judge states that the judge cannot be unbiased with respect to litigants who are actual officers of the organization. The judge must, of course, disqualify himself or herself as to known officers as to whom the judge cannot be unbiased or with respect to anyone else as to whom the judge cannot be unbiased. As to any other person, relative or officer, as to whom the judge does not doubt his or her impartiality, the judge may sit.

          The judge also asks about the propriety of responding to a letter seeking clarification as to the condition under which the judge would issue or amend gun licenses. In view of the public controversy about this matter, the judge should not state his or her criteria or what action he or she will or will not take in particular circumstances by way of a letter to a particular inquirer. If the judge has criteria about which the judge wishes to inform the public, the judge should do so by a published rule or other published statement or opinion. See 22 NYCRR 100.3 (a)(6). [“This subdivision does not prohibit judges from making statements in the course of their official duties or from explaining from public information the procedures of the court.”]