Can a sitting New York Court of Claims judge also serve on the New York Commission on Uniform State Laws?

Plain-English summary

The Chairperson of the New York State Commission on Uniform State Laws asked the AG whether a sitting Court of Claims judge could also serve as a Commissioner. The Commission, established by Executive Law § 165, examines statutes and consults with similar commissions in other states to recommend uniform legislation. Commissioners serve at the pleasure of the Governor and report to the Legislature on request. They serve without compensation but are reimbursed for expenses. Membership on the State Commission is also the gateway to membership in the National Conference of Commissioners on Uniform State Laws (NCCUSL).

The AG concluded a Court of Claims judge could not serve. Article VI § 20(b) of the state Constitution prohibits judges from holding "any other public office or trust" except court-administration offices, constitutional convention membership, or military service. The question was whether the State Commission is a "public office or trust."

The AG worked through the indicators. Washington v. Nichols (1873) defined "office" as employment on behalf of government that is "not merely transient, occasional or incidental," with tenure, duration, and authority. Cardozo's In re Richardson treated "public trust" as the broader concept, with "office" as a species. Executive Law § 165 itself uses the word "office" to describe the commissioner's position, satisfying the tenure indicator. The duty to "examine various statutes" and "consult and cooperate" amounts to "rights and powers" even though the Commission's authority is advisory.

The Commission also serves an instrumental role for the Legislature: it makes reports and recommendations, and effectively functions as an arm of the legislative branch. That implicates Article VI § 20(b)'s separation-of-powers purpose. Richardson described judges as not "adjuncts or advisers, much less investigating instrumentalities, of other agencies of government."

The court-administration exception did not save the appointment. People v. Hall had let Appellate Division justices appoint a commissioner of jurors because jury selection is "germane to the judicial function." But the Commission on Uniform State Laws works on state-law uniformity generally, which is only tangentially related to court administration. The AG concluded that the position was a "public office or trust" within the constitutional prohibition.

Currency note

This opinion was issued in 2002. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What does Article VI § 20(b) actually say?
A: It prohibits judges (Court of Appeals, Appellate Division, Supreme Court, Court of Claims, county courts, and others) from holding "any other public office or trust except an office in relation to the administration of the courts, member of a constitutional convention or member of the armed forces of the United States or of the state of New York."

Q: How did the AG decide that the Commission is a "public office or trust"?
A: By applying three indicators from Washington v. Nichols: tenure, duties, and rights/powers. The Executive Law itself describes commissioners as holding "office." The Commission has statutory duties to examine, consult, and report. It functions as an arm of the legislative branch by reporting to and making recommendations to the Legislature. All three indicators were present.

Q: Why was the court-administration exception inapplicable?
A: Because the Commission's work, promoting uniform legislation among the states, has only tangential connection to administering the courts. People v. Hall was a much closer case (jury selection) where the connection was direct. Statutory uniformity is a different domain.

Q: What is the underlying policy concern?
A: Two. The first, expressed in Richardson, is conserving judicial time and avoiding entanglements that could create the appearance of partisanship. The second, expressed in People v. Hall and Prescott v. Ferris, is preserving separation of powers. Putting a judge on a legislative-services commission risks both.

Q: Could a retired judge serve?
A: The opinion does not address retired judges. The constitutional prohibition applies to "sitting" judges of the Court of Claims; once a judge leaves the bench, the bar lifts.

Q: What about NCCUSL membership?
A: NCCUSL is the national umbrella; state commissioners are the members. Because membership in NCCUSL flows from state commission appointment, a Court of Claims judge cannot serve as a state commissioner and therefore cannot become an NCCUSL member by that route.

Background and statutory framework

Article VI § 20(b) of the New York Constitution is part of the structural separation of judicial from non-judicial functions. The provision applies to specified courts including the Court of Claims. Its three exceptions (court administration, constitutional convention, armed forces) are narrowly read.

The Court of Appeals decisions in Washington v. Nichols and In re Richardson set the analytical framework. Washington defined "office" by reference to tenure, duties, and powers. Richardson treated "office" as a subset of "public trust," with the broader term reaching positions that "lack the formality or permanence of an office" but still serve the public.

The Commission on Uniform State Laws is constituted under Executive Law § 165, with five gubernatorial appointees serving at the Governor's pleasure. Its function is advisory: examining statutes and making recommendations toward uniform legislation among the states. NCCUSL's bylaws make state commissioners the members of the national body.

In re Haller v. Carlson, cited in a footnote, defines "public office" for Public Officers Law purposes as "the right, authority, and duty created and conferred by law, by which for a given period . . . an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." That definition supports the AG's conclusion that the State Commission qualifies.

Citations and references

Constitutional provisions and statutes:

• N.Y. Const. art. VI, § 20(b) (judicial dual office prohibition)
• Executive Law § 165 (State Commission on Uniform State Laws)
• Public Officers Law § 3 (state officer definitions)

Cases:

• Washington v. Nichols, 52 N.Y. 478 (1873) (definition of office; transient duties not barred)
• In re Richardson, 247 N.Y. 401 (1928) (Cardozo; public trust as broader concept; conservation of judicial time)
• People v. Hall, 169 N.Y. 184 (1901) (court-administration exception applied to jury commissioner appointment)
• Prescott v. Ferris, 251 A.D. 113 (4th Dep't 1937) (separation of powers in § 20(b))
• In re Haller v. Carlson, 42 A.D.2d 829 (4th Dep't 1973) (Public Officers Law definition of office)

Other authorities:

• NCCUSL Const. & Bylaws §§ 1.2, 2.2 (national conference structure)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/2002-F2_pw.pdf

Original opinion text

N.Y. CONST., ART. VI, § 20(b); EXECUTIVE LAW § 165; PUBLIC OFFICERS LAW § 3.

A sitting judge on the Court of Claims may not also serve on the New York State Commission on Uniform State Laws under New York Constitution Article VI § 20(b).

October 30, 2002

Hon. Richard B. Long
Chairperson
Commission on Uniform State Laws
P.O. Box 2039
One Marine Midland Plaza
Binghamton, NY 13902-2039

Formal Opinion
No. 2002-F2

Dear Chairperson Long:

You have asked whether a sitting judge on the New York Court of Claims may, consistent with New York Constitution Article VI § 20(b), also serve as a member of the New York Commission on Uniform State Laws (the "State Commission"), and by virtue of that position, as a member of the National Conference of Commissioners on Uniform State Laws ("NCCUSL").

The relevant restriction is set forth in Article VI § 20(b) of the Constitution, which states:

A . . . judge of the court of claims . . . may not:
(1) hold any other public office or trust except an office in relation to the administration of the courts, member of a constitutional convention or member of the armed forces of the United States or of the state of New York.

We conclude that a position on the State Commission is a "public office or trust" under section 20(b) and that, therefore, a sitting judge on the Court of Claims may not hold such position.

Background

The State Commission is established pursuant to Executive Law § 165, which states:

It shall be the object of the commission to examine various statutes and fields of law and to consult and cooperate with similar commissions in other states with a view to promoting uniform legislation throughout the United States whenever practicable. The commission may recommend such legislation as may accomplish its objective. It shall consist of five members appointed by the governor. The members shall hold office and may be removed at the pleasure of the governor. The commission shall serve without compensation, but each commissioner shall be entitled to receive his actual disbursements for his expenses in performing the duties of his office. . . . The commission shall report to the legislature whenever the commission deems it necessary and shall report to the legislature upon its request. Such reports shall consist of an account of the transactions of the commission and its advice and recommendations.

NCCUSL is an organization established "to promote uniformity in the law among the several states on subjects as to which uniformity is desirable and practicable." NCCUSL Const. & Bylaws § 1.2. Under its bylaws, the members of NCCUSL "are the Commissioners on Uniform State Laws appointed by authority of the several States." Id., § 2.2. Thus, according to the bylaws, appointment to the State Commission, or a similar commission of another state, is the route by which one may become a member of NCCUSL.

Analysis

As noted above, New York State Constitution Article VI § 20(b) prohibits a sitting judge of the Court of Claims from holding "any other public office or trust." At issue here is whether the positions you identify are a "public office or trust" as defined by this provision. Before answering this question, it is helpful to explore the scope that has been accorded this restriction by the courts.

Case law provides only limited guidance on this point. The clearest statement on the meaning of the phrase "public office or trust" is set forth in Washington v. Nichols, 52 N.Y. 478 (1873), where the Court of Appeals interpreted the same Constitutional prohibition, at that time worded slightly differently, as follows: "Office has been defined to be 'an employment on behalf of the government in any station or public trust not merely transient, occasional or incidental.'" 52 N.Y. at 484-85 (citations omitted). Citing legal commentary from that time, the Court added:

[T]he idea of an office clearly embraces the idea of tenure, duration, fees or emoluments, rights and powers, as well as that of duty . . . . [T]he intrinsic meaning of the word [office] is well expressed by the old English word 'place;' and the figurative terms 'incumbent,' 'swearing in,' 'entering upon,' 'vacating,' constantly applied to offices, have the same radical idea.

52 N.Y. at 485. At issue in Washington was a statute appointing three persons, one of whom was a judge of the New York Court of Appeals, to a committee to examine and make recommendations as to the authenticity and desirability of acquiring certain relics of George Washington for the State. 52 N.Y. at 480-81. The Court found the appointment of a judge to such a transient position did not violate the State Constitution because "it is very plain that the doing of such an act, a single act like this, is not within the meaning of the constitutional prohibition against 'holding' any 'other' office or public trust." 52 N.Y. at 485.

The term "public trust" has received even less attention from the courts than "public office." However, the Court of Appeals, commenting on the Washington case, noted: "Office was thus a species of which a public trust was the genus." In re Richardson, 247 N.Y. 401, 416 (1928) (Cardozo, J.). In other words, it appears that "public trust" has a broader connotation than "public office," encompassing positions that may lack the formality or permanence of an "office," but still serve the public and discharge governmental duties.

Although there are few cases elucidating the meaning of the terms "public office or trust," the courts have clearly identified the policy interest underlying section 20(b)'s restriction barring a court of claims judge from holding any other such position. The prohibition against judges holding other "public office or trust" is intended "to conserve the time of the judges for the performance of their work as judges, and to save them from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties." Richardson, 247 N.Y. at 420. More specifically, by restricting judges in this way, the prohibition preserves the separation of powers between the State's executive, legislative, and judicial branches. This principle has been most often expressed in cases under section 20(b) invalidating attempts by the Legislature to impose non-judicial duties on sitting judges. See Richardson, 247 N.Y. at 410 ("From the beginnings of our history, the principle has been enforced that there is no inherent power in Executive or Legislature to charge the judiciary with the administrative functions except when reasonably incidental to the fulfilment of judicial duties") (citations omitted); People v. Hall, 169 N.Y. 184, 195 (1901) (considering § 20(b): "Unless, therefore, it has some reasonable connection with a judicial purpose, it is not part of a judicial office and cannot be imposed upon a justice of the Supreme Court") (citations omitted); Prescott v. Ferris, 251 A.D. 113, 119 (4th Dep't 1937) ("The express purpose of the Constitution to keep separate the different departments of government must be considered in determining the significance to be given to the words 'public trust' as used in the [Constitution Article VI, § 20]").

With these principles in mind, we turn to the question of whether the State Commission is a "public office or trust" as defined in section 20(b). Our analysis begins with the language of Executive Law § 165, which establishes the State Commission. It describes the Commission as an "office," stating that its "members shall hold office and may be removed at the pleasure of the governor." Id. (emphasis added). This characteristic satisfies one of the key indicia of a "public office" set forth in Washington: a position that "embraces the idea of tenure, duration, fees or emoluments." 52 N.Y. at 485. Washington also describes a "public office" as including the idea of "rights and powers, as well as that of duty." Id. To be sure, the "rights and powers" of the Commission are largely advisory, as it does not exercise the traditional authority or decision-making powers of many other offices of State government; in this respect, the Commission appears similar to the committee deemed not to be a public office in Washington. However, the State Commission is charged with a statutory duty to "examine various statutes" and "to consult and cooperate with similar commissions in other states with a view to promoting uniform legislation throughout the United States whenever practicable." Exec. Law § 165. This duty to examine and consult regarding state laws appears to partake of the governmental function of planning, reviewing, and making recommendations. Thus, the State Commission is best viewed as exercising "rights and powers", even though the Commission lacks the authority to enact or enforce the laws it recommends.

From a structural standpoint, the State Commission may also be considered a "public office or trust" because it effectively serves as an arm or instrument of other "public offices" in the legislative branch of government. The State Commission is charged with promoting and recommending uniform legislation among the states. It is to make reports to the Legislature upon the Legislature's request, and its reports are to include not just an account of the Commission's transactions but also its advice and recommendations regarding uniform legislation. Exec. Law § 165. The State Commission thus can be viewed as an instrument of the Legislature. By so serving the legislative branch, the State Commissioner plays a role in the administration of State government, supporting the conclusion that it is a "public office or trust." Cf. N.Y. Pub. Off. Law § 3.

Furthermore, the State Commission's accountability to the legislative branch of government implicates the rationales behind section 20(b)'s restriction: to conserve the time of judges for the performance of their work and to preserve the separation of powers. See Richardson, 247 N.Y. at 411 ("The function of the judges 'is to determine controversies between litigants.' They are not adjuncts or advisers, much less investigating instrumentalities, of other agencies of government.") (citations omitted), 420 ("conserve the time of judges . . . [and] save them from . . . entanglements").

Finally, the State Commission does not fall within the relevant exception to Article VI § 20(b), permitting a sitting judge to hold a public office "in relation to the administration of the courts." Id. In People v. Hall, for instance, the Court of Appeals found that this exception permitted justices of the Appellate Division to appoint a special commissioner of jurors, finding an obvious relation between the "public trust" of appointing a commissioner of jurors and the judicial function. 169 N.Y. at 194-96. The Court noted: "What, however, is more germane to the judicial function than the selection of proper jurors to aid in the administration of justice?" 169 N.Y. at 195. There is no basis in this case, however, to argue that a judge's involvement in an advisory commission designed to promote uniformity of law among the states is incidental to the judicial function. A judge's involvement with issues of state law uniformity may assist a judge in discharging his or her duties, but the State Commission has only tangential relation to the administration of the courts.

Accordingly, we conclude a sitting judge on the Court of Claims may not also sit on the State Commission under New York Constitution Article VI § 20(b).

Very truly yours,

ELIOT SPITZER
Attorney General

Footnotes:

1. The prohibition in question was worded as a bar on judges holding any other "office or public trust." Washington, 52 N.Y. at 484.
2. In reaching the conclusion that the State Commission is a "public office or trust" and that sitting judges may, therefore, not hold positions on it, we have also considered the definition of "State Officer" as set forth in the New York Public Officers Law and as interpreted by the State courts. In applying that statute, the courts have described "public office" as "the right, authority, and duty created and conferred by law, by which for a given period, either fixed by law or enduring at the pleasure of the creating power, an individual is invested with some portion of the sovereign functions of the government, to be exercised by him for the benefit of the public." In re Haller v. Carlson, 42 A.D.2d 829, 829 (4th Dep't 1973) (citations omitted).