Opinion 21-128

September 9, 2021

Digest:       (1) The window period for an individual seeking election to Supreme Court commences nine months before the earlier of (a) the date of formal nomination by convention; or (b) 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 nominations of delegates to the judicial nominating convention, even if a resulting designation or endorsement would be subject to a subsequent contest.

(2) 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.

Rules:        22 NYCRR 100.0(A); 100.0(Q); 100.5(A)(1); 100.5(A)(1)(c)-(e); 100.5(A)(2); Opinions 20-83; 18-105; 17-60; 10-101/11-01; 08-196; 08-157.

Opinion:

         The inquiring Supreme Court Justice presides in a multi-county judicial district. The judge plans to seek re-election in 2022, and asks for guidance on calculating the start of the applicable window period for political activity.

         While a sitting judge is prohibited from engaging either “directly or indirectly in any political activity” except as expressly authorized (22 NYCRR 100.5[A][1]), a judge who is seeking election or re-election to judicial office may participate in their own campaign during the applicable window period (see 22 NYCRR 100.0[A] [“A person becomes a candidate for public office as soon as he or she makes a public announcement of candidacy , or authorizes solicitation or acceptance of contributions.”]; 100.5[A][2]). However, a candidate may not publicly endorse another candidate for public office (see 22 NYCRR 100.5[A][1][e]) and may not participate in any political campaign or any partisan political activity on behalf of other candidates (see 22 NYCRR 100.5[A][1][c],[d]). The window period for permissible political activity begins (22 NYCRR 100.0[Q]):

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....

         Over a decade ago, we advised that 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 (see Opinion 08-196). This was based, in part, on the inquiring judge’s representation that, in their judicial district, “each county-level political party informally endorses candidates for Supreme Court at a meeting held in the spring” (id.). We felt 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” (id.).

         For present purposes, there are two significant developments since Opinion 08-196 was decided. First, “given the special challenges of the Supreme Court nomination process,” we have “recognized one narrow exception to the rule against publicly endorsing other candidates” (Opinion 18-105). Specifically, we have advised that a candidate for Supreme Court may engage in certain limited political activity in support of judicial convention delegates who support the candidate’s nomination (see e.g. Opinions 20-83; 18-105; 10-101/11-01; 08-157).¹ This is a narrow - but absolutely essential - exception to the general prohibition on participating in other candidates’ campaigns (compare 22 NYCRR 100.5[A][1][c]-[e] with Opinion 20-83 [Supreme Court candidate may ask voters to vote in a primary election for the judicial convention delegate who will support the candidate’s nomination, “but must make clear that his/her endorsement of the delegate is for the purpose of furthering his/her own candidacy”]).

         Second, we understand the state legislature has provided for earlier petition and primary dates. As a result, endorsement meetings are also typically held much earlier, so that there is an even greater divergence between counting back from the date of the judicial nominating convention and from the date of a party meeting.

         Bearing these two developments in mind, we note that, even where a political party does not directly discuss or consider potential candidates for Supreme Court at these endorsement meetings, they are likely to endorse or designate the delegates to the judicial nominating convention who will vote for the Supreme Court candidates. Thus, we continue to believe 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 endorsement meeting.

         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.

         Accordingly, the window period for the inquiring judge commences nine months before the earlier of (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 nominations of judicial delegates, even if a resulting designation or endorsement would be subject to a subsequent contest.

         For completeness, we note that “[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 again for the upcoming party meeting and then count back nine months from that presumed date” (Opinion 08-196; see also Opinion 17-60 [noting that we 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”]).

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¹ Opinion 08-157 was decided approximately 8 months after Opinion 08-196.