Opinion 14-178
December 11, 2014
Digest: When a sitting judge is elected to higher judicial office, prospective candidates may presume the judge-elect’s current position will be filled at the next general election, as soon as the election results are certified. Thereafter, once the window period for the position is open, they may declare their candidacy, establish campaign committees, and otherwise publicly campaign for the position to the extent legally and ethically permitted.
Rules: N.Y. Const., Art. VI, § 21; 22 NYCRR 100.0(A); 100.0(Q); 100.5(A)(2); Joint Opinion 14-92/14-94; Opinions 09-40; 99-14 (Vol. XVII); 97-45 (Vol. XV); Matter of Fauci v Lee, 38 Misc.2d 564 (Sup. Ct. Broome Co.), aff'd, 19 A.D.2d 777 (3d Dep’t 1963).
Opinion:
The inquirer is a non-judge who intends to seek election to a particular judicial office. The incumbent in that office was elected to a higher judicial office at the general election in November, and the inquirer asks whether he/she may establish a campaign committee and commence publicly campaigning for the “soon to be vacated” position at this time. The inquirer notes that the term for the incumbent’s new judicial office will begin on January 1, 2015, and has advised that the incumbent’s ceremonial robing ceremony for the new position is scheduled toward the end of January 2015.
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.
(Joint Opinion 14-92/14-94, quoting Opinion 07-152 [emphasis supplied; citations omitted]). Typically, the earliest of these three dates is the date of an official party meeting at which the candidate would be informally endorsed or designated for the position (see generally Joint Opinion 14-92/14-94).
The Committee has previously advised that “a judge cannot announce his/her candidacy for judicial office if there is not yet a vacancy in such office” (Opinion 09-40, citing Opinions 08-189, 99-14 [Vol. XVII], and 97-45 [Vol. XV]). When a judicial vacancy arises at the end of a judge’s full term of office, or when a judge’s term otherwise ends early by operation of law due to the judge’s age, calculation of the window period is relatively straightforward according to the principles outlined above. In such circumstances, there is no doubt a judicial vacancy will occur as of a certain date. Similarly, if a judge has resigned or died, or has been removed from office, there is no doubt a judicial vacancy currently exists. In any of these circumstances, if the judicial office is an elective one, it is certain that an election must be held in a particular year to fill the vacancy (see N.Y. Const., Art. VI, § 21).
In other circumstances, however, there is some uncertainty about whether a vacancy will arise in a particular election year. In Opinion 97-45 (Vol. XV), the Committee considered an inquiry from a town justice who wished to run for County Court, in light of the incumbent County Court judge’s appointment to Supreme Court. The Committee noted the appointment was not yet effective, and therefore advised the prospective candidate that a:
candidacy can come into existence only if there is to be an election for that office. In the instant matter, there is, at present, no vacancy in the office of County Court Judge, nor is it known that, in fact, a vacancy will occur. Accordingly, at present, it cannot be said that there will be an election, since it is not yet known that a vacancy will exist which will require an election.
(Opinion 97-45 [Vol. XV] [emphasis in original]). The Committee reasoned that, because “a candidate for judicial office is a person ‘seeking selection [for judicial office] by election,’ (22 NYCRR 100.0[A]), and it is not presently known that there is to be an election, the inquirer cannot yet be deemed a candidate for the elective position of County Court Judge” and therefore cannot engage “in fund-raising or other political activity that would otherwise be permissible in the course of a campaign for election to judicial office” (Opinion 97-45 [Vol. XV]).
The Committee has also considered a circumstance where “the sitting County Judge has publicly stated that [he/she] is considering retiring from the bench” (Opinion 99-14 [Vol. XVII]). Following the same reasoning applied in Opinion 97-45 (Vol. XV), the Committee advised “there is at present no vacancy in the office of County Court Judge, and it is not presently known that there will be an election for that judicial office. Under such circumstances, it follows that you cannot yet be deemed a candidate for the elective position of County Judge” (Opinion 99-14 [Vol. XVII]).
Here, too, there is at present no vacancy in the judicial office at issue; indeed, the Committee is aware of case law suggesting a vacancy is deemed to be created as a matter of law when a holder of public office accepts and qualifies for a second, legally incompatible office, and the required “acceptance” may be shown either by beginning to perform the duties of the second office or by taking the oath of office.1 Strictly speaking, in the present circumstance, it is not known as a matter of law that there will be an election in November 2015 to fill the judge-elect’s current position; that is, it is theoretically possible the judge-elect will decide to retain his/her current position and decline to accept the higher judicial office to which he/she won election.
The Committee believes, however, that this possibility is extraordinarily remote. A sitting judge who seeks election to higher judicial office typically invests substantial time and energy - and often substantial personal funds - in the effort. And, he/she must do so on his/her own time, while handling his/her full regular caseload each work day. It is rare indeed for a sitting judge to change his/her mind about assuming a higher judicial office to which he/she has successfully won election. As there is nothing in the circumstances presented to suggest the judge-elect is likely to decline or be disqualified from assuming his/her new office, the Committee believes it is virtually certain there will be a vacancy in the judge-elect’s current office to be filled in the 2015 general election. Accordingly, the inquirer may calculate his/her window period according to the principles set forth in Joint Opinion 14-92/14-94 and other relevant opinions interpreting 22 NYCRR 100.0(Q). Once the window period for the position is open, the inquirer may declare his/her candidacy, establish a campaign committee, and otherwise publicly campaign for the position to the extent legally and ethically permitted.
Although the inquirer did not indicate the date of the relevant party meeting at which candidates for the position would be informally designated or endorsed, the Committee notes that such meetings frequently take place in the spring or early summer. If such is the case here, then the inquirer’s window period for the position has already begun, and he/she may immediately establish a campaign committee and commence publicly campaigning for the position (see generally 22 NYCRR 100.0[A]; 100.0[Q]).2
The Committee notes 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.
Similarly, the Committee sees no need to reconsider 97-45 (Vol. XV) at this time. Where a judge’s appointment to another judicial office depends on confirmation by the legislature, it is necessarily subject to the vagaries of the political process. This introduces a level of unpredictability which simply is not present for a judge-elect. That is, once the election results are certified and the will of the voters is formally known, the judge-elect will ordinarily be able to take and file his/her oath of office without the need to seek approval from a legislative body.
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1 In Matter of Fauci v Lee, 38 Misc.2d 564 (Sup. Ct. Broome Co.), aff'd, 19 A.D.2d 777 (3d Dep’t 1963), a village justice was elected to Family Court in November. The judge-elect held a robing ceremony/celebration with his friends and family on December 26. Although his Family Court term legally started at midnight on January 1, the judge-elect presided over proceedings in the Village Court that morning. He did not take and file his oath of office for Family Court until 2:15 PM on January 1. The court held there was no judicial vacancy (and therefore no valid judicial appointment) at 11 AM on January 1, when the village board, in the final hour of its term, purported to appoint petitioner Fauci to the village justice position.
2 Indeed, even if the party meeting to nominate candidates for a known judicial vacancy in the November 2015 elections were scheduled for as late as September 11, 2015 (a very unlikely scenario), an individual could still declare his/her candidacy for such position on the date of this Opinion (i.e., December 11, 2014).