Opinion 05-97

September 8, 2005

Digest:         The Window Period may commence either nine months prior to (1) the date of formal nomination by primary, caucus or convention or (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 of the commencement of the petition process, whichever is earlier.

Rules:          22 NYCRR 100.0(Q). Opinions 02-90; 94-97 (Vol.XII); 97-121 (Vol. XVI).

Opinion:

         A part-time judge who is anticipating declaring candidacy for re-election asks for clarification concerning the appropriate date that the judge may properly commence permitted political activity with respect to the anticipated candidacy. That is, when does the Window Period begin? Specifically, the judge asks if it is appropriate to commence such activity nine months before the first date on which political parties’ designating petitions may be circulated.

         The Window Period is the period of time specified during which a candidate for a judicial office may engage in permissible political activity in connection with his or her candidacy. It denotes 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 a candidate, 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/she is not a candidate in the general election, six months after the date of the primary election, convention or meeting. 22 NYCRR 100.0(Q). Opinion 02-90; 97-121 (Vol. XVI).

         The inquiring judge points out that the petition process for the upcoming election would commence about June. The political party would generally hold an endorsement meeting approximately two weeks earlier, in May.

         This Committee has previously stated that, for purposes of determining the date of the commencement of the applicable Window Period, a judicial candidate may count back nine months either from the date of the formal nomination, i.e., the scheduled primary, convention or party caucus; or nine months from the date of an official party meeting at which a candidate for the judicial office will be designated and endorsed, whichever date is earlier. Opinions 02-90; 94-97 (Vol. XII). 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.

         We note that the choice made at a “party meeting” may be subject to challenge at a subsequent primary. Nonetheless, the rule implicitly recognizes that the party meeting, as a practical matter, is the crucial and decisive event. Accordingly, a judge may declare his/her candidacy at a date that would commence the Window Period nine months before the first date on which political parties’ designating petitions may be circulated, if not even earlier based upon an official party meeting at which a candidate for the judicial office will be designated and endorsed, based upon the presumed or specific date of the anticipated meeting.