Opinion 06-152

October 19, 2006

Digest:         (1) The Window Period for judges and non-judge candidates running in district-wide elections for Supreme Court justice in 2007 may commence nine months before the earliest of the following: (a) the date of formal nomination by primary or caucus; or (b) the date of the commencement of the petition process; or (c) the date of a party-sponsored meeting at which the candidate would be endorsed, even if that designation is subject to being contested at a subsequent primary. (2) There is no geographic limitation on permissible campaign activities during a candidate’s Window Period.

Rules:          Lopez Torres v. New York State Board of Elections, 462 F.3d 161 (2d Cir. 2006); 22 NYCRR 100.0(Q); 100.5(A)(2); Opinions 05-97; 02-90; 94-97 (Vol. XII).

Opinion:

         Several judges have asked when the Window Period commences for candidates for New York State Supreme Court in the 2007 elections, in light of Lopez Torres v. New York State Board of Elections, 462 F.3d 161 (2d Cir. 2006). That is, since, as a result of that decision, the convention date can no longer be presumed to be the selection date for one’s candidacy, how are candidates to determine when they may commence permissible political activities in support of their candidacies?

         This Committee, in applying section 100.0(Q) of the Rules Governing Judicial Conduct, has previously opined that the Window Period for judges running in county-wide or municipality-wide elections commences nine months prior to the earliest of the following dates: (1) the date of formal nomination by primary, caucus, or convention; or (2) the date of the commencement of the petition process; or (3) the date of a party meeting at which the judicial candidate would be endorsed, even if that designation is subject to being contested in a subsequent primary. If no date for such a meeting had yet been set, the candidate was allowed to presume that the previous year’s official date would be used again for the upcoming party meeting, and then count back nine months from that date. 22 NYCRR 100.0(Q); 100.5(A)(2); Opinions 05-97; 02-90; 94-97 (Vol. XII).

          Prior to the mandates of Lopez Torres v. New York State Board of Elections, elections to Supreme Court judgeships were not subject to primaries, but, rather, as indicated, to a judicial nominating convention process. As a result, district-wide, party-sponsored endorsement meetings, similar to those addressed in the above-mentioned opinions, which only addressed county-wide or municipality-wide judicial elections, may not have existed or taken place on a judicial district-wide basis.

         In light, therefore, of the demise of the convention system as previously operative with respect to Supreme Court nominations, we are of the opinion that the Window Period for judges and candidates running in district-wide elections for Supreme Court justice in 2007 should be regarded as commencing nine months prior to the earliest of the following dates: (1) the date of the primary election or party caucus; or (2) the date of the commencement of the petition process; or (3) the date of a party-sponsored meeting at which the candidate would be endorsed, even if that designation is subject to being contested in a subsequent primary.

         If a district-wide endorsement meeting has not been scheduled for the next election year cycle, a Supreme Court candidate may count back nine months from any scheduled county-wide endorsement meeting in his or her multi-county judicial district. If no district-wide or county-wide meetings are scheduled at this time, the candidate may assume that the previous year’s dates will be used again in each county, and the candidate may then count back nine months from the earliest presumed date in any county in the judicial district.

         The candidate may participate in campaign activities as permitted within the Window Period, without geographic limitation, even if the earliest date of the commencement of the Window Period, as specified herein, results from counting back nine months from a meeting - scheduled or presumed - for a single county within a multi-county judicial district.

         We are aware that this opinion is being rendered in the absence of any legislation having been enacted providing for the replacement of the convention system. Should such legislation be enacted and should that legislation, or any change in the Rule provision establishing the Window Period, be adopted as to elections for Supreme Court justice, then it might be necessary to revisit the issue presented. Until that occurs, however, the within opinion is to be regarded as operative with respect to the Window Period for Supreme Court candidates.