If a New York Supreme Court candidate will not hit ten years at the bar until after January 1, can he still run and serve?

Plain-English summary

Judge Joseph M. Sise of Montgomery County wanted to run for the Supreme Court in November 1998. There was a calendar problem. The New York Constitution (Art VI, § 20(a)) requires a Supreme Court justice to have been admitted to practice law for at least ten years. Judge Sise was admitted on January 24, 1989, so he would not hit ten years until January 24, 1999. The term he would have begun on would have started January 1, 1999. Under a strict reading, he would be ineligible to begin.

The Chief Administrative Judge's counsel asked the AG to opine on whether the candidacy could go forward. The AG said yes.

The reason was a 1993 statutory cleanup. Chapter 511 of the Laws of 1993 amended Judiciary Law § 140-a to require ten years of bar admission "as of the date he or she commences the duties of office" and amended Election Law § 6-122 to permit nomination of a candidate who would meet constitutional or statutory qualifications "within thirty days of the commencement of the term." The legislative history shows the purpose was to fix a discrepancy that the post-1983 schedule of bar admissions had created. Candidates who took the July bar exam were not admitted until January of the following year, which left them just short of ten years on the term-start date. The fix gave them a 30-day grace window.

Judge Sise was therefore eligible. He could run, win, and (if he timely filed his oath under Public Officers Law § 30(1)(h)) take office between January 24, 1999 (when he hit ten years) and January 30, 1999 (the close of the 30-day oath window).

Currency note

This opinion was issued in 1998. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What problem did the 1993 amendment solve?

A timing problem. Starting in 1983, the State Bar admission cycle pushed candidates who passed the July exam to a January admission the following year. That meant such candidates would not reach their tenth anniversary until late January, but a Supreme Court term begins on January 1. Without a fix, a sizeable group of otherwise qualified candidates would have had to wait a year (effectively eleven years from bar admission) to be eligible. Chapter 511 of the Laws of 1993 closed the gap by allowing qualification within 30 days of term commencement.

Does the 30-day grace window apply to all judicial offices or only Supreme Court?

The opinion is about Supreme Court justice because of the specific statutory and constitutional admission requirement. The Election Law amendment uses the broader phrase "constitutional or statutory qualifications for the office," so the 30-day grace window applies generally to judicial offices with similar bar-admission requirements. A reader looking at a different office should still confirm by checking the specific qualifications statute for that office.

What happens to the candidate during the gap between January 1 and the date of qualification?

The Constitution requires an oath before exercising the duties of office (Art XIII, § 1), and Public Officers Law § 30(1)(h) gives an elective officer thirty days after the term commences to file the oath. A judge in the gap is not yet sworn in. Once the qualification is met and the oath is filed (within 30 days), the judge takes office. The position is in a kind of holding pattern during the gap.

Is this rule limited to bar-admission qualifications, or does it also cover age or residency requirements?

The Election Law amendment refers to "constitutional or statutory qualifications," so the 30-day grace would apply to other qualifications by its terms. But the specific concern in the legislative history was the bar-admission timing. Other qualifications (citizenship, age, residency) typically do not have the same cyclical timing issue, so they tend to be settled at the time of nomination rather than picked up in the 30-day window.

What if the candidate misses the 30-day window?

Then the qualifications are not met within the statutory grace period, and the candidate cannot take the office. The seat would be vacant and would be filled under the procedures applicable to a Supreme Court vacancy.

Background and statutory framework

Constitutional baseline. Article VI, § 20(a) of the New York Constitution sets the qualifications for justices of the Supreme Court, including ten years admitted to practice law in the State.

1993 legislative fix. Chapter 511 of the Laws of 1993 amended two statutes in tandem. Judiciary Law § 140-a now provides that no person shall serve as a Supreme Court justice unless admitted to practice for at least ten years "as of the date he or she commences the duties of office." Election Law § 6-122 was amended to permit nomination of a candidate who "will not meet . . . [qualifications] within thirty days of the commencement of the term of such office."

Oath of office. Article XIII, § 1 of the Constitution requires every public officer, including a Supreme Court justice, to take the oath of office before undertaking the duties. Public Officers Law § 30(1)(h) gives an elective officer thirty days from term commencement to file the oath.

Read together, the framework allows a candidate to be nominated, elected, and to take office in the late-January period as long as the qualification is hit and the oath is filed within the 30-day window.

Citations

• NY Const, Art VI, § 20(a) (Supreme Court justice qualifications, 10-year bar admission).
• NY Const, Art XIII, § 1 (oath of office requirement).
• Judiciary Law § 140-a (10 years admitted as of date of commencing duties).
• Election Law § 6-122 (qualification permitted within 30 days of term commencement).
• Public Officers Law § 30(1)(h) (30 days to file oath after term commencement).
• L 1993, Ch 511 (statutory amendments).

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/98-F6_pw.pdf

Original opinion text

NY CONST, ART VI, § 20(a); ART XIII, § 1; ELECTION LAW § 6-122;
JUDICIARY LAW § 140-a; PUBLIC OFFICERS LAW § 30(1)(h); L 1993,
CH 511.
A person may serve as justice of the Supreme Court if he or
she meets constitutional or statutory qualifications within 30
days of commencement of the term of office and timely files his
or her oath of office.

April 28, 1998

Hon. Jonathan Lippman
Chief Administrative Judge
Unified Court System
25 Beaver Street
New York, NY 10004

Formal Opinion
No. 98-F6

Dear Judge Lippman:
This responds to your counsel's recent opinion request
regarding eligibility requirements for the office of justice of
the Supreme Court. New York Constitution, Art VI, § 20(a)
provides that a person may not assume "the office of . . .
justice of the supreme court . . . unless he has been admitted to
practice law in this state at least ten years." Honorable Joseph
M. Sise, County Court Judge of Montgomery County, wishes to be a
candidate for Supreme Court justice in the November, 1998
election. Judge Sise was admitted to the practice of law on
January 24, 1989 and, therefore, if elected will meet the ten-year admission requirement on January 24, 1999. Your counsel has
requested our opinion whether Judge Sise legally can assume the
office of justice of the Supreme Court if he is elected and files
his oath of office between the 24th and 30th day following the
commencement of his term on January 1, 1999.
In our view, Judge Sise legally may be a candidate for the
office of justice of the Supreme Court and, if elected, legally
may assume that office. Judiciary Law § 140-a provides that no
person may serve as justice of the Supreme Court "unless he or
she has been admitted to practice law in the state of New York
for at least ten years as of the date he or she commences the
duties of office." This provision was added by Chapter 511 of
the Laws of 1993. Chapter 511 also amended section 6-122 of the
Election Law to provide that a person may not be designated or
nominated to judicial office "who will not meet . . .
[constitutional or statutory qualifications for the office]
within thirty days of the commencement of the term of such
office." The legislative history of Chapter 511 indicates that
the purpose of these amendments was to remove a discrepancy that
would have disqualified many persons seeking judicial offices.
Bill Jacket, L 1993, Ch 511, July 7, 1993 letter to the Counsel
to the Governor from Hon. Angelo Del Toro, Member of the
Assembly. Beginning in 1983, persons passing the bar examination
were not admitted until January of the following year. Id.
Specifically, in 1983 candidates passing the July, 1983 bar
examination were not admitted until January, 1984 and, therefore,
would have had to wait eleven years under prior statutory
authority to be eligible for certain judgeships, including
justice of the Supreme Court. Id. The amendments to the
Judiciary Law and Election Law were designed to overcome this
problem. These amendments are consistent with Article VI,
§ 20(a) of the Constitution.
Before public officers, including justices of the Supreme
Court, undertake the duties of their offices they must take the
required oath of office. NY Const, Art XIII, § 1. The oath for
an elective officer must be filed within thirty days of
commencement of his or her term of office. Public Officers Law
§ 30(1)(h). Therefore, if Judge Sise is elected and files his
oath of office between the 24th and 30th day of January, 1999, he
will meet all legal requirements for candidacy and to hold the
office of Supreme Court justice.
Very truly yours,

DENNIS C. VACCO
Attorney General

Prior section 6-122 of the Election Law provided that a
public officer had to meet constitutional or statutory
qualifications at the time of commencement of his or her term of
office.