Opinion 09-194

October 22, 2009

Digest:         When a candidate for Supreme Court Justice formally withdraws his/her name from consideration before the judicial nominating convention takes place, his/her Window Period ends six months from the date of his/her withdrawal or six months from the date of the nominating convention, whichever is earlier.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.5(A)(1)-(2); Opinions 08-196; 07-152; 06-152; 05-97; 02-90; 97-121 (Vol. XVI); 94-97 (Vol. XII); 93-20 (Vol. X); 91-67 (Vol. VII).

Opinion: 

         A judge who declared his/her candidacy for Supreme Court Justice, but later withdrew his/her name from consideration several months before the judicial nominating convention, asks when his/her Window Period ends.

         A judge must avoid impropriety and the appearance of impropriety in all the judge’s activities (see 22 NYCRR 100.2) and must act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary (see 22 NYCRR 100.2[A]). A sitting judge is prohibited from engaging either directly or indirectly in any political activity except as otherwise authorized by the Rules Governing Judicial Conduct or by law (see 22 NYCRR 100.5[A][1]). A judge who is a candidate for public election to judicial office may participate in his/her own campaign for judicial office during the Window Period (see 22 NYCRR 100.0[Q];100.5[A][2)]). The Window Period is defined as (22 NYCRR 100.0[Q]):

. . . a period beginning nine months before a primary election, judicial nominating convention, party caucus or other party meeting for nominating candidates for the elective judicial office for which a judge or non-judge is an announced candidate, or for which a committee or other organization has publicly solicited or supported the judge’s or non-judge’s candidacy, and ending, if the judge or non-judge is a candidate in the general election for that office, six months after the general election, or if he or she is not a candidate in the general election, six months after the date of the primary election, convention, caucus or meeting

         Although the Committee previously has addressed several issues relating to calculation of the window period (see Opinions 08-196; 07-152; 06-152; 05-97; 02-90; 97-121 [Vol. XVI]; 94-97 [Vol. XII]; 93-20 [Vol. X]; 91-67 [Vol. VII]), it has not previously determined when a candidate’s Window Period ends under the circumstances the inquirer describes.

         The duration of the Window Period is determined with reference to the duration of an aspirant’s candidacy (see 22 NYCRR 100.0[Q]). One must be an announced candidate for an elective judicial office to determine the starting point of his/her Window Period (see id.). A “candidate” is defined as "a person seeking selection for or retention in public office by election" (22 NYCRR 100.0[A]). A person becomes a candidate for public office as soon as he/she publicly announces his/her candidacy or authorizes solicitation or acceptance of contributions (see id.).

         The end of an “announced candidacy” is determined by the candidate’s success or failure either in the general election or a primary, convention, caucus or meeting (see 22 NYCRR 100.0[Q]). It is the Committee's view that a candidate who withdraws his/her name from consideration for elective judicial office is essentially in the same position as the candidate who succeeds or fails either in the general election or a primary, convention, caucus or meeting. In both cases, the aspirant’s candidacy ends because he/she is no longer seeking selection for or retention in public office by election (see 22 NYCRR 100.0[A]). Therefore, the Window Period for an aspirant who formally withdraws his/her name for consideration for Supreme Court Justice ends six months from the date he/she formally withdrew or six months from the date of the judicial nominating convention, whichever is earlier (see 22 NYCRR 100.0[Q]).

         The inquirer states he/she withdrew his/her name from consideration for Supreme Court Justice before the judicial nominating convention. Thus, his/her Window Period ends six months after the withdrawal date.