Opinion 26-31

March 26, 2026

Digest:  (1) Whether a judicial association may use court-provided funds to reimburse a member for legal fees and/or litigation expenses incurred in a lawsuit against the court system is a legal question beyond our jurisdiction.

(2) A judicial association may not submit an amicus curiae brief.

Rules:   Judiciary Law § 212(2)(l); 22 NYCRR 100.2; 100.2(A); 100.3(B)(8); 101.1; Opinions 22-37; 19-159; 16-178; 11-124.

Opinion:

          A judge who is an officer of a judicial association asks if the association may use funds provided by the Office of Court Administration (OCA) to reimburse an association member for legal fees incurred in a lawsuit against OCA.  The judge also asks if the association may file an amicus curiae brief in an appellate court taking a position on one part of a lower court’s decision, specifically on the constitutionality of the statutory age limit for judges, without taking a position on any of the litigant’s personal or individualized claims for relief.

          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 may not make “any public comment” about a pending or impending proceeding in any court within the United States or its territories, unless an exception applies (see 22 NYCRR 100.3[B][8]).  On reviewing these exceptions, we have noted “none of them authorizes participation in litigation as an amicus curiae” (Opinion 19-159 fn 1, citing 22 NYCRR 100.3[B][8]).

Use of Funds Provided by OCA

          Whether funds provided by OCA to a judicial association may be used to fund litigation against OCA is a legal question beyond our jurisdiction (see 22 NYCRR 101.1; Judiciary Law § 212[2][l]).  We must therefore decline to comment.

Filing of an Amicus Brief

We have emphasized that it is “critically important to protect and preserve both the fact and the appearance of the independence of every judge” (Opinion 11-124).  Thus, we have advised that a judicial association may not submit an amicus curiae brief in any matters before the court (see e.g. Opinions 19-159 [trial court]; 16-178 [appellate court]; see also Opinion 22-37 [administrative judge may not authorize a court-sponsored committee or commission to file an amicus curiae brief]).

          As we explained, it would be difficult, if not impossible, for the judge and judicial association “to avoid the appearance that their proposed amicus brief is ‘advancing arguments on behalf of a party to the proceeding whose interests were adversely affected by the appellate ruling’ and thereby impermissibly adopting ‘the role of an advocate’” (Opinion 16-178 [citation omitted]).  In addition, we noted that an amicus curiae brief “could be deemed public comment about a pending proceeding” (Opinion 19-159).

          Thus, we conclude here that the judicial association may not submit an amicus curiae brief taking a position on a trial court’s determination about the constitutionality of the statutory age limit for judges.