Opinion 08-196

October 23, 2008

PLEASE NOTE: Opinion 21-128 states: “Therefore, while Opinion 08-196 remains in effect, we also reaffirm the advice on different grounds. We conclude a candidate for election to Supreme Court may calculate the start of their window period from either the date of the judicial nominating convention or the date of an earlier party meeting for nominating judicial delegates to be held within the applicable judicial district, whichever is earliest.” 

Digest:         The window period for Supreme Court candidates commences nine months prior to the earlier of the following dates: (1) the date of formal nomination by convention; or (2) the date of a recognized party-sponsored caucus or committee meeting within the candidate’s judicial district held for the purpose of discussing or considering judicial nominations, even if a resulting designation or endorsement would be subject to a subsequent contest.

Rules:          22 NYCRR 100.0(Q); Opinions 07-152; 06-152; 05-97; 03-122a; 02-90; 97-121 (Vol. XVI); 94-97 (Vol. XII); 91-37 (Vol. VII); 90-160 (Vol. VI).

Opinion:

         A judge who plans to seek election to Supreme Court in a multi-county judicial district inquires when his/her window period will begin. The judge states that in his/her judicial district, each county-level political party informally endorses candidates for Supreme Court at a meeting held in the spring. The judge inquires whether he/she may commence political activities nine months prior to the date of such meeting.

         Under current New York law, candidates are formally nominated for Supreme Court at judicial nominating conventions held in late September. There is no formal petitioning process or primary for Supreme Court candidates that would clearly necessitate party support prior to the judicial nominating convention. Accordingly, this Committee has previously held that the window period for Supreme Court candidates begins nine months before the judicial nominating convention (see Opinions 03-122a; 91-37 [Vol. VII]; see also 22 NYCRR 100.0[Q]).

         In 2006 and 2007, however, in light of certain court orders that left it unclear whether New York’s political parties would continue holding judicial nominating conventions, this Committee advised that Supreme Court candidates in the 2007 and 2008 election cycles could calculate their window periods in the same way that the Committee had approved for judges running in county-wide or municipality-wide elections (see Opinions 07-152; 06-152). Since then, the informal support of county-level political parties at a meeting held prior to the nominating conventions has become increasingly critical to Supreme Court candidates in multi-county judicial districts.

         Accordingly, this Committee now recognizes that the nomination process for Supreme Court candidates in a multi-county judicial district functionally starts at the individual county party caucus or other official party meeting for endorsing judicial candidates (cf. Opinion 02-90 [“the party meeting almost always, as a practical matter, is the crucial and decisive event”]). The Committee concludes that in applying section 100.0(Q) of the Rules Governing Judicial Conduct, the window period for Supreme Court candidates commences nine months prior to the earlier of the following dates: (1) the date of formal nomination by convention; or (2) the date of a recognized party-sponsored caucus or committee meeting within the candidate’s judicial district held for the purposes of discussing or considering judicial nominations, i.e., a meeting at which the candidate could be informally designated or endorsed for Supreme Court, even if a resulting designation or endorsement would be subject to subsequent contest (cf. Opinions 07-152; 06-152; 05-97; 02-90; 94-97 [Vol. XII]). If no date for such a meeting has yet been set, the candidate may assume that the previous year’s official date will be used again for the upcoming party meeting and then count back nine months from that presumed date (see Opinions 05-97; 02-90).

         To the extent that Opinions 03-122a, 97-121 (Vol. XVI), 91-37 (Vol. VII) or 90-160 (Vol. VI) are inconsistent with this opinion, they are hereby amended.