January 29, 2015
Digest: An incumbent judge’s public announcement that he/she will retire from the bench on a specific date, when coupled with an additional significant and reliable affirmative step to effectuate his/her retirement, is sufficient to create a known judicial vacancy for the purpose of determining when the window period opens and individuals may publicly announce their interest in seeking election to the position.
Rules: N.Y. Const. art. VI, § 21(a); 22 NYCRR 100.0(A); 100.0(Q); 100.2; 100.2(A); 100.5(A)(1); 100.5(A)(2); 100.6(A); 22 NYCRR 1200, Rule 8.2(b); Opinions 14-178; 09-40; 08-189; 07-187; 06-162; 99-14 (Vol. XVII); 97-45 (Vol. XV).
A judge who wishes to seek election to a different judicial office asks whether that office is vacant for purposes of initiating his/her election campaign where the incumbent has (1) publicly announced he/she will retire on a specific date and (2) timely filed papers with the New York State Retirement System indicating the same effective retirement date.
A judge must always avoid even the appearance of impropriety (see 22 NYCRR 100.2) and must always act to promote public confidence in the judiciary’s integrity and impartiality (see 22 NYCRR 100.2[A]). A sitting judge may not engage, directly or indirectly, in any political activity except as authorized by the Rules Governing Judicial Conduct (Rules) or by law (see 22 NYCRR 100.5[A]). A judge or non-judge may engage in political activity for election to judicial office only during the applicable Window Period (see 22 NYCRR 100.0[Q]; 100.5[A]) and only as permitted by applicable sections of the Rules (see 22 NYCRR 100.5[A]).1
The Committee has advised that a known vacancy in the prospective judicial office is a necessary prerequisite to a judge or non-judge’s announcement of his/her candidacy and commencement of campaign activities (see Opinion 09-40, citing Opinions 08-189; 99-14 [Vol. XVII]; 97-45 [Vol. XV]).
In Opinion 99-14 (Vol. XVII), the Committee advised that a vacancy had not yet occurred in a county court seat although the incumbent judge had publicly stated he/she was considering retiring from the bench. Therefore, another judge could not announce his/her candidacy for the seat (see id.). Also, the Committee advised that a judge who anticipated receiving an interim appointment to County Court, “when and if” the incumbent’s appointment to the Supreme Court became effective, could not directly or indirectly engage in political campaign activities for the position, as under the circumstances, no known vacancy existed in County Court at that time (see Opinion 97-45 [Vol. XV]).2
In contrast, once the results of a sitting judge’s election to higher judicial office are certified, and the window period for the position is open, the Committee advised that judge and non-judge candidates could declare their candidacy, establish campaign committees, and otherwise publicly campaign for the lower court seat (see Opinion 14-178). In the Committee’s view, although the sitting judge could theoretically decide to retain his/her lower court position and decline to accept the higher judicial office, such an outcome is unlikely (see id.). Therefore, judge and non-judge candidates could consider the lower court seat vacant and pursue their respective campaigns for election to that seat as otherwise permitted by the Rules (see id.). In Opinion 14-178, the Committee also expressly noted that:
it has no need to reconsider Opinion 99-14 (Vol. XVII) at this time. A sitting judge who publicly announces his/her plans for early retirement is acting unilaterally, in the sense that he/she does not need to raise funds or line up public or political support. From that perspective, a judge can announce his/her prospective retirement with relatively little personal investment as compared with a judge who is seeking election or re-election to judicial office. Moreover, a judge’s decision to retire early may also depend on securing favorable post-judicial employment; if the negotiations fall through, it is not uncommon for a judge to change his/her mind about retiring from the bench early.
The current inquiry, however, presents an additional fact which the Committee did not have the opportunity to consider in Opinion 99-14 (Vol. XVII) or Opinion 14-178, which results in the virtual certainty of a vacancy in the judicial office to which the inquiring judge wishes to seek election. Critically, not only has the incumbent judge publicly announced his/her plan to retire on a specific date, which is already more concrete than a statement that the judge “is considering retiring from the bench” (Opinion 99-14 [Vol. XVII]), but he/she has also taken a significant and reliable additional affirmative step to effectuate his/her retirement, by timely filing papers with the New York State Retirement System indicating the same effective retirement date. The existence of an additional affirmative step undertaken by the incumbent judge to effectuate his/her retirement is critical to the outcome here, as it significantly increases the incumbent judge’s personal investment in the decision to retire early (cf. Opinion 14-178) and dramatically increases the reliability of the announced retirement date.
Therefore, as was the case in Opinion 14-178, the inquiring judge here may immediately treat the anticipated vacancy as a “known judicial vacancy” for the purpose of determining when the applicable window period will open and thereafter becoming an announced candidate and otherwise engaging in campaign activities.
While the Committee believes the circumstances presented make it virtually certain there will be a judicial vacancy, and thus an election to fill it, the Committee notes it is nonetheless conceivable that the vacancy will not ultimately be created. If the retiring judge publicly rescinds his/her announced retirement or otherwise changes his/her mind and fails to retire on the announced retirement date, all declared candidates for that position should immediately consider the window period closed and make every reasonable effort to close their campaign accounts and dispose of any campaign funds promptly in accordance with the Committee’s prior opinions (see e.g. Opinions 07-187; 06-162).
1 A non-judge who is seeking elective judicial office becomes subject to applicable sections of the Rules Governing Judicial Conduct “as soon as he or she makes a public announcement of candidacy, or authorizes solicitation or acceptance of contributions” (22 NYCRR 100.0[A]; 100.6[A]; cf. 22 NYCRR 1200, Rule 8.2[b]).
2 When an interim appointment to fill a vacancy on the Supreme Court must be made “by and with the advice and consent of the senate” (see N.Y. Const. art. VI, § 21[a]), the appointment is “necessarily subject to the vagaries of the political process” (Opinion 14-178).