Judicial Reports: The Moral Compass: Campaign Complex
Posted 10-13-06
The recent appellate affirmation of Lopez Torres v. New York State Board of Elections means that — unless the state legislature crafts a different system — New York Supreme Court Justices will be nominated by open primary in 2007. But the court system hasn't addressed how this change affects judicial campaigns (especially regarding when judicial candidates can begin campaigning). I am planning to run for re-election to the Supreme Court next year, and I am confused as to when I can begin campaigning for office, given this new primary system. When does my campaign period begin?
Under the New York State Rules Governing Judicial Conduct, judicial candidates are only allowed to participate in particular political activities, including campaigning for their own office, during a specified interval of time. The candidate's "Window Period" is loosely described in the Rules Governing Judicial Conduct, and is defined more specifically in ethics opinions issued by the Commission on Judicial Conduct and the Advisory Committee on Judicial Ethics. In theory, this restriction is supposed to protect judges from getting mired in a swamp of politics.
Until the period opens, candidates for judicial office are not allowed to attend any political functions or to raise any money for their campaigns. Raising money and beginning to campaign more aggressively will be especially important if Supreme Court Justices are required to participate in an open primary.
No official body has yet spoken as to when Supreme Court Justices will be allowed to begin campaigning for office this year, in light of Lopez. In past opinions, the State Commission on Judicial Conduct has said that a judge may not begin campaigning until nine months prior to the formal nomination or primary. If this definition holds, then judicial candidates will be allowed to begin campaigning on December 11, 2006, nine months prior to the September 11, 2007 primary.
The Advisory Committee on Judicial Ethics, however, has said that the campaign period begins nine months prior to (1) the date of formal nomination by primary, caucus, or convention, (2) the date of a party meeting where the candidates are endorsed, or (3) the date of the commencement of the petition process, whichever occurs first. If this definitions holds, then judicial candidates are within their campaign period right now, as most political parties meet sometime in April or May to endorse candidates for the November election. This would mean that the campaign window for judicial candidates began sometime in July or August.
Ironically, the Lopez decision was meant to level the playing field for judicial candidates, but the confusion resulting from a system that is slow to respond and adapt fully to changes that are taking place might put some candidates at a disadvantage. A few candidates will likely assume that their campaign windows have already opened. Other candidates will cautiously wait until December, or until a body with authority has spoken definitively on the subject. This means that some candidates will have more time to campaign than others. A couple of months can make a big difference in a political campaign, in which one fund-raiser can bring in thousands of dollars.
The short answer is that no one really knows for sure whether judicial candidates are officially allowed to campaign or not, and this confusion will remain until an official opinion, such as one from the Advisory Committee on Judicial Ethics, has been issued. The safest bet is to either wait until an opinion comes out or to seek advice from a body such as the Judicial Campaign Ethics Center, which will protect you from any ethics charges if you follow the opinion. Either way, until the mechanics of the judicial election system catch up with the new method of election, the playing field will remain uneven.
Posted by Dirk on October 13, 2006 03:55 PM to Judicial Reports