Opinion 25-106
September 10, 2025
Digest: A judge may not serve on the advisory board of an organization that promotes a constitutional amendment to limit political contributions and spending in public elections and ballot measures throughout the nation.
Rules: 22 NYCRR 100.0(M); 100.2; 100.2(A); 100.2(C); 100.3(B)(8); 100.4(A)(1)-(3); 100.5(A)(1)(iii); Opinions 20-105; 19-30; 16-60; 15-188.
Opinion:
A full-time judge asks if he/she may serve on the advisory board for a self-described “vigorously non-partisan” not-for-profit organization which seeks to pass an amendment to the U.S. Constitution to “empower the states and Congress to tackle the out-of-control money in our campaigns and elections.” The organization does not endorse candidates. It consists of a 501(c)3 tax-deductible education fund, which supports civic education, programming and operations, and a 501(c)4 entity, which strives to “help[] empower citizens on the ground to take action in their communities.”[1] On its website, the organization comments on several pending cases, including a recent U.S. Supreme Court decision to grant certiorari in a case challenging limits on spending by political parties in coordination with individual candidate campaigns, ongoing legal challenges to campaign finance reforms, and indictments of candidates for local, state, or federal office for alleged offenses such as soliciting or accepting illegal contributions.
The advisory board has no governance or decision-making authority, no time commitments and no fund-raising or lobbying role, but members are asked to “publicly lend their name to [the] organization and the amendment effort” through a variety of means. Indeed, the organization’s letterhead already lists numerous high-profile former public officials, a retired admiral and colonel, and well-known authors and historians. The judge’s invitation letter states that advisory board members are afforded “ample opportunity to help shape the organization’s legislative strategy, fundraising, communications and brand identity.”
A judge must always avoid any appearance of impropriety (see 22 NYCRR 100.2), must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]) and must not publicly comment on a pending or impending case in the United States or its territories (see 22 NYCRR 100.3[B][8]). A judge may engage in extra-judicial activities if they are compatible with judicial office and do not (1) cast reasonable doubt on the judge’s capacity to act impartially as a judge; (2) detract from the dignity of judicial office; or (3) interfere with the proper performance of judicial duties (see 22 NYCRR 100.4[A][1]-[3]). Judges may engage in very limited political activity “on behalf of measures to improve the law, the legal system or the administration of justice” (see 22 NYCRR 100.5[A][1][iii]). Finally, a judge must not lend the prestige of judicial office to advance any private interests (see 22 NYCRR 100.2[C]).
The present inquiry requires us to once again consider a judge’s proposed involvement with an organization which has a substantial public purpose, but which comments on pending litigation and promotes initiatives that may invite substantial public controversy. As we explained in Opinion 19-30 (citations omitted):
if a not-for-profit entity “engages in some activities clearly permissible for judges as well as some potentially controversial lobbying, advocacy and litigation activities,” we have said a judge “must not become involved in the organization’s litigations, publicly associate him/herself with organizational positions on matters of public controversy, or assume a leadership role in the organization.” In essence, “taking a leadership role in such organizations may publicly associate the judge with organizational positions on matters of public controversy, in a way that simple membership does not.”
In this instance, the judge’s participation as an advisory board member is problematic for three interrelated reasons.
First, we have advised that judges must avoid extra-judicial activities that will unnecessarily insert them into matters of substantial public controversy, especially in matters unrelated to the law, the legal system and the administration of justice. For example, we said a judge must resign as officer or director if a not-for-profit land trust becomes involved in a controversial contested proceeding, in order to avoid the judge “publicly associat[ing] him/herself with the land trust’s positions on matters of public controversy” (Opinion 19-30). We have advised that a judge may not participate in a bar association subcommittee tasked with addressing issues concerning upcoming elections, where “the issues to be addressed by this subcommittee, while seemingly innocuous as described, are almost certain to devolve into highly controversial political topics” (Opinion 20-105). Nor may a judge join an informal discussion group “with politically connected people” to develop detailed proposals for redistricting reform, comprehensive election and voting reforms, restructuring the legislature, changes in school funding, “and other highly controversial or political matters largely unrelated to the law, the legal system, and the administration of justice” (Opinion 16-60). We noted that the group “plans to delve into wide-ranging matters of deep political significance and great controversy, affecting the structure and function of other branches of government” and it was “almost certain that the group would be the subject of intense public controversy” (id.).
Here, the entity wishes to amend the U.S. Constitution to empower new restrictions on campaign financing and election spending at the state and federal level, and to educate the public about the need for such restrictions. Like legislative redistricting, the topic is one of great political controversy affecting other branches of government, and inclusion of the judge’s name on the group’s list of advisory board members in a movement to change the campaign finance laws throughout the nation is likely to raise reasonable questions about the judge’s ability to be fair and impartial (see Opinions 16-60; 15-188 [noting that “the way legislative districts are drawn affects the balance of power between partisan political parties”]). We conclude the judge’s proposed participation is impermissible on this ground.
A second point, closely intertwined with the first, involves the rule against lending the prestige of judicial office to advance private interests. In this regard, it is significant that the entity is inviting prominent individuals to be listed as supporters on its letterhead. In Opinion 16-60, a judge was invited to join a group of “highly visible, well known individuals in New York State government,” as part of a plan to “publicize the group’s work and leverage its members’ reputations.” Here, too, adding a New York judge’s name -- and prestige -- to the entity’s advisory board appears to be designed for the same effect on this national issue. In our view, there is a strong appearance that the judge has been invited to join the entity’s advisory board primarily to lend the prestige of his/her office. This is impermissible for a sitting judge (see 22 NYCRR 100.2[C]).
Third, on the facts presented, we conclude the judge’s participation on the advisory board would also run afoul of the public comment rule. The organization has on its website commented on pending cases before the federal judiciary and will, presumably, continue to comment on federal and state decisions impacting campaign financing. Serving on the advisory board here would prominently associate the judge with organizational positions on pending or impending litigation, creating an appearance of condoning or ratifying such comments, which is impermissible (see 22 NYCRR 100.3[B][8]).
Accordingly, the judge must decline the invitation to participate on the advisory board.
[1] An entity that is “vigorously non-partisan” and does not endorse candidates for political office is presumably not a “political organization” under the rules (see 22 NYCRR 100.0[M]), but that is not determinative here.