Joint Opinion 14-92/14-94

June 12, 2014

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:         For purposes of calculating the start of the applicable Window Period, a candidate for elective judicial office may count back nine months from the date of the earliest official party meeting at which a candidate will be informally designated or endorsed for the position.

Rules:          22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.5; 100.5(A)(1); 100.5(A)(2); Opinions 08-196; 08-40; 07-152; 05-97.

Opinion:

         The inquiring judges state that they are interested in seeking election or re-election to a judicial office which will become vacant as a matter of law on December 31, 2015.¹ Because dates for the official political party meetings at which judicial candidates will be designated and endorsed in 2015 have not yet been set in the judges’ locality, the judges inquired about the 2014 dates. The judges learned that a political party whose endorsement they seek scheduled its official 2014 meeting unusually early in the first quarter of 2014. If the judges count back nine months from that same date in 2015 to determine the start of their applicable window period, then they are already within their window period.

         However, the inquiring judges state they have learned the political party has now scheduled a second official designating meeting, which will take place later in 2014, because a previously designated 2014 candidate has very recently withdrawn from his/her race. If the judges were to assume that the political party’s 2015 meeting will occur on the same date as its second meeting in 2014, then the judges’ window period for the 2015 election has not yet commenced.

         In Inquiry 14-94, the judge asks which of the two dates should be used in calculating the applicable window period. In Inquiry 14-92, the judge states that, in reliance on the originally scheduled party meeting date, he/she had previously counted back nine months from that same date in 2015 to determine the start of his/her applicable window period, and commenced political activity for the known judicial vacancy. Accordingly, the judge asks whether he/she may continue to use the date of the party’s original 2014 official designating meeting, which has already taken place, in calculating his/her window period for the 2015 election. If the judge may no longer use this date, the judge then also seeks guidance about his/her ethical obligations, if any, with respect to political activity the judge has already engaged in, based on his/her original calculations using the original date.

         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 judiciary’s integrity and impartiality (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]). However, a judge or non-judge who is seeking public election to judicial office may participate in his/her own campaign for judicial office during the applicable Window Period (see 22 NYCRR 100.0[A]; 100.5[A][2]). The “Window Period” is defined as:

         . . . 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

(22 NYCRR 100.0[Q]).

         The Committee has previously summarized the rules on calculating the start of the Window Period as follows:

[T]he 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.

(Opinion 07-152 [emphasis supplied; citations omitted]).

         The present inquiries raise a question of first impression for the Committee, concerning how to determine the “date of a party meeting at which the judicial candidate would be endorsed” for the purposes of calculating the start of the applicable Window Period, when the party has unexpectedly scheduled a second meeting due to the withdrawal or ineligibility of a candidate.²

         Although the question is novel, it is not difficult to resolve. The Committee’s intention is to allow judicial candidates to count back nine months from the date when “the nomination process ... functionally starts” (Opinion 08-196). Accordingly, a judicial candidate may count back nine months from the date of the earliest official party meeting at which a candidate will be informally designated or endorsed for the position. It is irrelevant that, under some circumstances, the political party may also need to hold additional meetings due to a previously designated candidate’s withdrawal or ineligibility, or perhaps due to a vacancy that has unexpectedly been created, or other unforeseen circumstances.

         The Committee also notes that judicial candidates must already meet very stringent ethical requirements in their campaigns (see generally 22 NYCRR 100.5; Opinion 08-40 [noting that candidates for non-judicial office are “not subject to the same exacting standards” as candidates for judicial office]). Where a judicial candidate has calculated commencement of the applicable window period in good faith based on a political party’s announced meeting schedule, the Committee can see no public interest to be served by calling that determination into question merely because the party has decided to hold additional meetings beyond the one initially announced. Judicial candidates must be able to calculate the start of their window period for a known judicial vacancy and then move forward with their campaigns.

         Accordingly, under the circumstances presented, and given the official party meeting date has not yet been set for 2015, the inquiring judges may assume the month and day of the first official party designating meeting date in 2014 will be used again in 2015 and may then count back nine months from that presumed date (see Opinion 05-97).

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     ¹ The Committee notes that some judicial vacancies are known far in advance because they are created by operation of law, whether due to the natural expiration of the incumbent judge’s term of office or due to the incumbent judge’s age.

     ² The Committee notes that the party meeting dates described in the present inquiries are far earlier than the other alternative dates that may be used to calculate the start of the window period (i.e., the date of formal nomination and the date of commencement of the petition process).