Opinion 91-40

March 14, 1991

Digest:         A Supreme Court Justice may not serve on a statutory committee which advises the state commissioner of health on matters relating to organ transplant procurements.

Rules:          22 NYCRR §100.5(g): Article 6, §2O(b)(1) of the New York State Constitution.

Opinion:

         A justice of the Supreme Court inquires whether the judge should accept an appointment to a council with the state department of health, which would advise the health commissioner on matters relating to organ procurement, storage, distribution and transplant. The council would review federal regulations regarding organ procurement and would make recommendations to the health commissioner regarding new state regulations on these issues. The members of the council receive no compensation for their services, just expenses. The Council is created by Public Health Law §4361.

         Section1OO.5(g) of the Rules of the Chief Administrator states:

No judge shall accept an appointment to a governmental committee, commission, or other position that is concerned with issues of fact or policy on matters other than the improvement of the law, the legal system or the administration of justice. A judge, however, may represent his or her country, state or locality on ceremonial occasions or in connection with historical, educational and cultural activities.

         In addition, Article 6, section 20(b)(1) of the New York State Constitution provides that judges of certain enumerated courts including the Supreme Court “may not ... hold any other public office or trust except an office in relation to the administration of the courts” (and certain other exceptions not relevant here).

         The judge should not accept the appointment to the health department council in view of section 100.5(g) of the Rules, as the activities of the committee members are not sufficiently closely related to the law or the administration of justice to be permissible for a full-time judge. See also, Matter of Robertson, 247 N.Y. 401 (1928) [interpreting the constitutional provision concerning the holding of other public offices by judges of certain courts].