Opinion 17-60

May 4, 2017

Amended June 15, 2017

Digest:         An announcement by the outgoing political party chair that next year’s party meeting will be held “in May 2018” is not sufficiently definite and reliable for judicial candidates to calculate the start of their window period. They may therefore assume that this year’s official date will be used again in 2018 and count back nine months from that presumed date.

Rules:          22 NYCRR 100.0(Q); 100.5(A)(1); Opinions 14-92/14-94; 05-97.

Opinion:

         The inquiring judge plans to run for another judicial office in November 2018, and has asked how to calculate the applicable window period. Although the judge’s local political party selected its candidates this year on February 28, 2017, the outgoing party committee chair, whose term will expire in a few months, announced that next year’s meeting will be held “in May 2018.”

         A sitting judge may not engage directly or indirectly in any political activity, except as authorized by the Rules Governing Judicial Conduct during the applicable window period (see 22 NYCRR 100.5[A][1]; 100.0[Q]). The window period for a judge or non-judge seeking elective judicial office begins “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” (22 NYCRR 100.0[Q]).

         To calculate the window period, a candidate for judicial office may count back nine months from the earliest of three dates: (1) the date of formal nomination by primary, convention or party caucus; (2) “the date of a party meeting at which a candidate will be endorsed, even if that designation is subject to being contested at a subsequent primary”; or (3) the date on which the petition process commences (Opinion 05-97). The earliest of these dates is typically the date of the official party meeting. However, because this meeting date may not always be set and publicly announced nine months in advance, the Committee has advised “[i]f no date for such a meeting has yet been set, the candidate may assume that the previous year’s official date will be used for the upcoming party meeting and then count back nine months from that presumed date” (Opinion 05-97). In other words, the Committee’s opinions interpreting this principle strive to provide a degree of certainty and predictability for individuals who wish to plan their campaign for elective judicial office amidst the vagaries of a political party’s scheduling mechanisms (see e.g. Opinion 14-92/14-94 [“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 count back nine months from that presumed date”]).

         Here, the announcement by the outgoing party chair that next year’s party meeting will be held “in May 2018" is not sufficiently definite and reliable for this judge or any others interested in this seat to calculate the start of their window period. As it appears no official, reliable meeting date has been set for the party’s 2018 meeting, the judge may assume this year’s official date (i.e., February 28, 2017) will be used again in 2018 and count back nine months from that presumed date. Accordingly, on these facts, the judge’s window period begins May 28, 2017.

Addendum: The Committee notes that the May 28^th start date, although necessarily rendered on the information available to the Committee on May 4, applies to all individuals in that county who wish to seek elective judicial office in 2018.  The Committee declines to create an uneven playing field in this race by requiring different candidates to use different dates to calculate their 2018 window period.