Opinion 08-53

June 6, 2008

Digest:         The window period of a judicial candidate who submitted his/her name to a party screening panel but did not receive the party’s endorsement or nomination, and ultimately did not appear on the ballot for the primary election, ends six months from the last date on which the candidate could have filed an independent nominating petition.

Rules:          22 NYCRR 100.0(A), (Q); 100.5(A)(1), (2); Opinions 03-122; 01-111; 97-121 (Vol. XVI); 91-67 (Vol. VII).

Opinion:

         An appointed judge who recently sought election to ********** Court asks when his/her window period ends,¹ to determine whether he/she may attend an upcoming politically sponsored event. The judge submitted his/her name to a party screening panel in the spring, but was not “reported out” or recommended by the panel. The judge thus did not receive the party’s endorsement or nomination nor was his/her name included on the September primary election ballot.

         While judges generally are prohibited from engaging in political activity (22 NYCRR 100.5[A][1]), a judge who is a candidate for elective judicial office may engage in certain authorized political activities, including attending politically sponsored events, during his/her “window period” (22 NYCRR 100.5[A][2]). A judge who seeks election to judicial office becomes a “candidate” when he/she makes a public announcement of his/her candidacy or authorizes solicitation or acceptance of contributions on his/her behalf (see 22 NYCRR 100.0[A]) even if he/she never receives a party’s nomination or endorsement for the office and even if his/her name never appears on the ballot.

         Ordinarily, the window period for a judicial candidate who does not appear on the ballot for the general election ends “six months after the date of the primary election, convention, caucus or meeting” at which he/she unsuccessfully sought a party’s endorsement or nomination (22 NYCRR 100.0[Q]; see also Opinions 03-122; 01-111; 97-121 [Vol. XVI]). In the case of candidates for Supreme Court who are not chosen as the nominee at a judicial nominating convention, or candidates for other judicial offices who are defeated in a primary election, there is a readily identifiable date from which the six-month period will run (see 22 NYCRR 100.0[Q]). By contrast, the date that a candidate is not “reported out” from a party’s screening panel would often be difficult, if not impossible, to ascertain and thus it would not be practicable for the six-month period to run from that date. Moreover, even if a candidate does not obtain a party’s support, he/she may continue to seek support directly from the electorate and file an independent nominating petition with the Board of Elections to place his/her name on the ballot for the primary election.

         The Committee concludes, therefore, that the window period for a judicial candidate who submitted his/her name to a party screening panel but did not receive the party’s endorsement or nomination, and whose name ultimately did not appear on the ballot for the primary election, ends exactly six months from the last date on which the candidate could have filed an independent nominating petition for the judicial office sought (cf. Opinion 91-67 [Vol. VII] [recently elected judge may not attend political event held “six months and one day after the general election”]).

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            ¹ The inquiring judge did not seek election to the Supreme Court. The Window Period for a candidate for Supreme Court ends six months after the judicial nominating convention even if the judge is not chosen as the nominee at the judicial nominating convention (see Opinion 03-122).