Opinion 07-152

September 6, 2007

Digest:         The Window Period for New York State Supreme Court candidates running in district-wide elections during the 2008 election year cycle commences nine months before the earliest of the following: (a) the date of the judicial nominating convention; (b) the date of formal nomination by primary or caucus; (c) the date the petition process commences; or (d) the date of a party-sponsored meeting at which the candidate will be endorsed, even if that designation is subject to a subsequent primary contest.  

Rules:          Lopez Torres v. New York State Bd. of Elections, 411 F.Supp.2d 212 (E.D.N.Y. 2006), aff'd, 462 F.3d 161 (2nd Cir. 2006), cert. granted, 127 S. Ct. 1325 (U.S. 2007); 22 NYCRR 100.0(Q); 100.5(A)(2); Opinions 06-152; 05-97; 02-90; 94-97 (Vol. XII).

Opinion:

         A judge inquires regarding the commencement of the Window Period for candidates seeking election to New York State Supreme Court judgeships during the 2008 election year cycle, in light of Lopez Torres v. New York State Bd. of Elections, 411 F.Supp.2d 212 (E.D.N.Y. 2006), aff'd, 462 F.3d 161 (2nd Cir. 2006), cert. granted, 127 S. Ct. 1325 (U.S. 2007). Specifically, the judge asks how such candidates may determine the start date of their Window Periods for engaging in permissible political activities, given

that a stay is currently in effect.

         Before the Lopez Torres decision, political parties held judicial nominating conventions to select candidates for election to New York State Supreme Court judgeships. As a result, in many or all districts, political parties either did not sponsor endorsement meetings or sponsored endorsement meetings that applied only to county-wide or municipality-wide judicial elections.

         This Committee previously has concluded 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 a subsequent primary contest. Under this line of decisions, if no date for such a meeting has yet been set for the applicable election cycle, a candidate may assume that the date of the meeting will be the same during the current year as it was during the prior year, for the purpose of calculating the commencement of his/her Window Period. 22 NYCRR 100.0(Q); 100.5(A)(2); Opinions 05-97; 02-90; 94-97 (Vol. XII).

         In Opinion 06-152, in light of Lopez Torres v. New York State Board of Elections, 462 F.3d 161 (2d Cir. 2006), this Committee approved the same method for determining the start of the window period for candidates running for election to New York State Supreme Court judgeships during the 2007 election year cycle. Opinion 06-152.

         Because a stay is presently in effect, the convention system currently remains the method for nominating candidates for election to the New York State Supreme Court. Nevertheless, given the uncertainty about how New York State Supreme Court Justices will be nominated in 2008, and to avoid confusion, it is this Committee’s view that the Window Period for judicial and non-judicial candidates running in 2008 district-wide elections for New York State Supreme Court judgeships should remain consistent with our previous determination with respect to the 2007 election year cycle. Opinion 06-152.

         The Window Period for 2008 candidates for New York State Supreme Court judgeships, therefore, commences nine months prior to the earliest of the following dates: (1) the date of the judicial nominating convention; (2) the date of the primary election or party caucus;(3) the date the petition process commences; or (4) the date of a party-sponsored meeting at which the candidate would be endorsed, even if that endorsement is subject to subsequent contest. If a district-wide endorsement meeting has not been scheduled for the 2008 election year cycle, a candidate for a New York State Supreme Court judgeship may count back nine months from any scheduled county-wide endorsement meeting in his/her multi-county judicial district. If no such district-wide or county-wide meeting has been scheduled, a candidate may assume that such a meeting will be held on the same date during the 2008 election year cycle as the earliest date during the 2007 election year cycle that such a meeting was held in the candidate’s single or multi-county district.

         The candidate may engage in campaign activities as permitted during the Window Period, without geographic limitation, even if the earliest date to commence the Window Period is determined as specified herein by counting back nine months from a meeting date - either scheduled or presumed - for a single county within a multi-county judicial district.

         This opinion applies to candidates for nomination to New York State Supreme Court judgeships during the 2008 election year cycle, subject, however, to any future legislation or court decision that affects the procedure for nominating such candidates. Should such legislation be enacted or such court decision issued, this Committee may, upon request, issue a new opinion.