Ousted judge under federal probe
Spargo faces possible charges as D.C.-based Justice unit handles case
By BRENDAN J. LYONS, Senior writer, timesunion.com, Wednesday, December 10, 2008

ALBANY Thomas Spargo, a former state Supreme Court justice who was removed from the bench, is the target of a federal criminal investigation being overseen by the Justice Department's Public Integrity Section in Washington, D.C., the Times Union has learned.
Two people familiar with the matter said criminal charges may be imminent and that the investigation was spearheaded by the FBI's Albany field office.

It's unclear what allegations are being investigated by federal authorities or why the case is being handled by the Public Integrity Section at the U.S. Department of Justice rather than federal prosecutors with New York's Northern District.

"I represent Tom Spargo. I have no comment for your story,' said E. Stewart Jones, an attorney from Troy. Jones also represented Spargo during a tumultuous misconduct investigation of the former judge by a state panel several years ago.

A spokesman for the FBI could not be reached for comment late Tuesday.

In March 2006, the state Commission on Judicial Conduct ruled Spargo of East Berne should be removed from his judge's position for doling out coupons for gas and coffee, and buying drinks for voters, during his successful campaign for Berne town justice in 1999.

Yet the most startling public allegations that surfaced against Spargo, a Republican, were that he allegedly pressured attorneys in Ulster County, and who had cases before him, to contribute $10,000 to his defense fund at a time when he was under investigation by the judicial panel.

Those allegations surfaced during a years-long battle in which Spargo, who specializes in election law, fought efforts to remove him from the bench. The judicial probe centered on whether Spargo violated the state judicial code of conduct while on the bench and during campaigns in 1999 and 2001.

The state Commission on Judicial Conduct held a two-week hearing in August 2005 to examine six claims it lodged against the outspoken jurist, according to a Times Union report at the time.

Spargo challenged assertions that he should not have participated in a controversial 2000 presidential recount rally in Miami-Dade County. He also claimed that his own right to free speech was violated, and that the commission and the code itself were unconstitutional. At first his case won an unprecedented victory in federal court, but the decision was later overturned on appeal.

In May 2006, Spargo was finally removed from the bench under a one-page decision issued by the state Court of Appeals.

Spargo is in private practice. In April 2006, he was hired as a deputy corporation counsel for the city of Troy.

Brendan J. Lyons can be reached at 454-5547 or by e-mail at blyons@timesunion.com.

Karma Comes For Bush 2000 Rioter Thomas Spargo
Published December 10, 2008 in George W. Bush, Republican Culture Of Corruption and Republicans.
LINK

So sad.

A former Supreme Court Justice of the Third Judicial Circuit of the State of New York was charged today with attempted extortion and federal program bribery, Acting Assistant Attorney General Matthew Friedrich of the Criminal Division announced. Thomas J. Spargo, 65 was charged in an indictment returned today by a federal grand jury in the Northern District of New York.

According to the indictment, while Spargo was a state Supreme Court Justice in 2003, he allegedly solicited $10,000 from an Ulster County, N.Y., attorney who had cases pending before the judge. The indictment further charges that Spargo solicited the money by causing the attorney to fear that Spargo would use his official acts and influence to harm the attorney if he was not paid and, conversely, to help the attorney if he was paid.

Who is Spargo?

Spargo, who came to the bench after a high-profile career as an elections lawyer and Republican Party advocate, also was criticized for engaging in a range of prohibited political conduct. But the most serious charges, and the ones the commission said warranted his removal from the bench, centered on an allegedly escalating pattern of misconduct after he came under the watchdog agency’s scrutiny for political misconduct.

Spargo first appeared on the commission’s radar at a time when he was a part-time town justice and full-time elections lawyer and political consultant with deep ties to the GOP. In his role as advisor to the 2000 presidential campaign of George W. Bush, Spargo was shown on national television partaking in a boisterous demonstration during the infamous Florida recount.

In addition, while sitting in town court, he presided over cases presented by the Albany County District Attorney’s Office without disclosing on the record that the district attorney had been his client in a political matter and still owed him $10,000 in legal fees.

Then, while campaigning for Supreme Court in 2001, Spargo courted voters by giving out doughnuts and jugs of cider, buying rounds of drinks for all the patrons of a bar and handing out to potential voters $5 coupons to a convenience store.

In other words, your standard issue conservative Republican.

N.Y. Judge Formally Removed from Bench
By John Caher, New York Law Journal
New York Lawyer, May 10, 2006
LINK

The Court of Appeals has issued a formal order removing Albany Supreme Court Justice Thomas J. Spargo from the bench and barring him from ever again holding judicial office in New York.

After the Commission on Judicial Conduct recently found that he had solicited funds from lawyers appearing in his court — money to be used to cover legal costs incurred while challenging other misconduct charges — the Albany-based judge declined to appeal and vacated his office on April 14.

The Court of Appeals' order, received by counsel yesterday, formally brings to an end a matter that had been tied up in various courts for years.

"After more than four years of intense state, federal and agency litigation, it almost seems anticlimactic for this case to have ended in pro forma fashion, with Judge Spargo opting out of a final argument before the Court of Appeals," Commission Administrator and Counsel Robert H. Tembeckjian said yesterday. "But I am enormously gratified that the Commission persevered and that justice was done."

Troy Mayor Hires Ousted Judge Spargo


The North Country Gazette
April 23, 2006

TROY---The city of Troy is fortifying its legal staff with ousted judges.
Former Albany Supreme Court Judge Thomas J. Spargo, removed from the bench last month by the state Commission on Judicial Conduct for multiple counts of misconduct, will assume his new position as deputy corporation counsel for Troy on Monday.

NY Judge Removed From Bench
for Alleged Shakedown of Lawyers

By John Caher
New York Lawyer
New York Law Journal
April 3, 2006

ALBANY — The Commission on Judicial Conduct on Friday unanimously called for the removal of Albany Supreme Court Justice Thomas J. Spargo on charges that he shook down lawyers for contributions to his defense fund after he was accused of other misconduct.

Although Justice Spargo's attorney blasted the watchdog agency's evidence as "woefully weak," he said that there would be no appeal, meaning his client's judicial career is over.

The commission said Justice Spargo, aware that one attorney had just settled a case for $3 million, attempted to pressure the attorney into contributing $10,000 to defray expenses he was incurring by fighting other allegations lodged against him by the judicial ethics agency.

The commission also found that after that attorney — who had cases pending before Justice Spargo — declined to contribute, the judge implicitly threatened the lawyer. It said that Justice Spargo mockingly emphasized that a close friend of his, another judge, would be taking over a caseload that included the attorney's own divorce action and implied there would be retribution.

Justice Spargo, who came to the bench after a high-profile career as an elections lawyer and Republican Party advocate, also was criticized for engaging in a range of prohibited political conduct. But the most serious charges, and the ones the commission said warranted his removal from the bench, centered on an allegedly escalating pattern of misconduct after he came under the watchdog agency's scrutiny for political misconduct.

Justice Spargo first appeared on the commission's radar at a time when he was a part-time town justice and full-time elections lawyer and political consultant with deep ties to the GOP. In his role as advisor to the 2000 presidential campaign of George W. Bush, Justice Spargo was shown on national television partaking in a boisterous demonstration during the infamous Florida recount.

In addition, while sitting in town court, he presided over cases presented by the Albany County District Attorney's Office without disclosing on the record that the district attorney had been his client in a political matter and still owed him $10,000 in legal fees.

Then, while campaigning for Supreme Court in 2001, Justice Spargo courted voters by giving out doughnuts and jugs of cider, buying rounds of drinks for all the patrons of a bar and handing out to potential voters $5 coupons to a convenience store.

Additionally, while campaigning for the Supreme Court nomination, he gave the keynote speech at a Conservative Party fund-raiser in Monroe County, which is more than 150 miles from the district in which he was running for office. He also was accused of buying or giving the perception of buying a cross endorsement, which would guarantee an uncontested election, by paying off delegates. That charge, however, was rejected by a referee at a disciplinary hearing last year and was not pursued by the commission.

When the commission began an investigation of Justice Spargo in early 2002, the feisty and combative jurist struck back with a constitutional attack against the commission. He won a stunning victory when Northern District U.S. Judge David N. Hurd shot down as unconstitutional the speech-restrictive provisions in the Code of Judicial Conduct. Judge Hurd was later reversed on abstention grounds.

Expensive Legal Battle

Justice Spargo's legal battle with the commission proved expensive, and the record shows that by fall 2003 his legal expenses had reached about $140,000, more than one year's salary. A defense fund was established for his benefit, and the misconduct case ultimately leading to his removal centered on the judge's role in soliciting contributions for that fund.

According to the commission, the alleged shakedown occurred as follows:

• In mid November 2003, Justice Spargo was assigned to a term in Ulster County. While there, he allegedly called Kingston attorney Bruce Blatchly into chambers, asked a court clerk to leave, and told the lawyer that he wanted $30,000 from members of the local bar. Mr. Blatchly, who is also a part-time justice in the town of Gardiner, had several cases pending before Justice Spargo. In fact, Justice Spargo had just approved a $3 million settlement in a Blatchly case and knew, according the panel, that the attorney had just come upon a $1 million contingency fee.

• Shortly thereafter, Justice Spargo called Mr. Blatchly and invited him and other local attorneys to a luncheon at La Canard Restaurant in Kingston. Several attorneys, including Mr. Blatchly and other lawyers with cases pending before Justice Spargo, attended. So too did Justice Spargo, and his friend, Albany Surrogate Cathryn M. Doyle.

• While leaving La Canard, Mr. Blatchly was approached by Albany attorney Sanford "Sandy" Rosenblum. Mr. Rosenblum, a partner at Rosenblum, Ronan, Kessler & Sarachan, is a regular and active fund-raiser for judicial campaigns upstate and for charitable causes.

• Mr. Blatchly claims that after he was asked for money, he advised Mr. Rosenblum that he was a town justice and that it would be inappropriate to contribute. Mr. Rosenblum insists that when Mr. Blatchly informed him of his judicial status, it was he who refused to further discuss the issue of a donation and insisted that the town justice obtain ethics advice before proceeding. In any case, Mr. Blatchly did not contribute.

• A week after the La Canard luncheon, Justice Spargo called Mr. Blatchly. The judge allegedly told Mr. Blatchly that Surrogate Doyle was about to take over several cases, presumably ones that affected Mr. Blatchly both personally and professionally, and that as a result. "It looks like a good Christmas to me."

A Credibility Issue

The case against Justice Spargo seemingly came down to a question of his credibility versus that of Mr. Blatchly.

Justice Spargo adamantly denied asking Mr. Blatchly, or anyone else, for money. No one besides Mr. Blatchly offered any evidence that Justice Spargo was directly involved in the solicitation of funds.

Commission records also show the attorney general's office made an effort to sting Mr. Rosenblum after the alleged Blatchly shakedown was referred to the Department of Law by Robert H. Tembeckjian, the commission's administrator and counsel.

An imposter, former Senior State Police Investigator James Horton, called Mr. Rosenblum in an apparent attempt to lure him into soliciting money, records show.

Mr. Rosenblum testified at a commission hearing that he told the caller he thought was Mr. Blatchly exactly what he had told the real Mr. Blatchly after the La Canard luncheon — that since Mr. Blatchly was a part-time town justice, he would not even entertain the possibility of accepting a contribution to the Spargo defense fund until and unless the donation was cleared with an ethics agency. Mr. Rosenblum's version of his conversation with the imposter went unchallenged.

The sting attempt troubled and offended many lawyers in the Capital District, who for several months have privately questioned whether it was an appropriate maneuver by the attorney general.

Mr. Rosenblum yesterday declined to discuss the matter, but it did come up at Justice Spargo's closed-door disciplinary hearing, a transcript of which was made available by the commission on Friday.

At a hearing last summer, this exchange occurred between Mr. Tembeckjian and Mr. Rosenblum, who apparently blames the commission counsel for instigating the sting:

Mr. Tembeckjian: "Mr. Rosenblum, as you sit here now, do you have any hostility toward me?"

Mr. Rosenblum: "Yes."

Mr. Tembeckjian: "And what is the basis of that hostility?"

Mr. Rosenblum: "Because I think you have been disingenuous, and I think you have been dishonest and I think you are not a credit to your job."
With that, Mr. Tembeckjian was permitted to treat Mr Rosenblum as a hostile witness.

Controversial Sting

Although Mr. Rosenblum on Friday refused to discuss the matter, Justice Spargo's attorney — E. Stewart Jones Jr. of Troy — was sharply critical of the sting.

"It was deplorable," Mr. Jones said. "That sting showed them, which they chose to ignore of course, that there was no conspiracy, that Judge Spargo had no idea what [Mr. Rosenblum] was doing and that Sandy was doing nothing improper. They hid that from us for a long time. The conversation was completely exculpatory, both for Sandy and for Judge Spargo."

Mr. Tembeckjian said on Friday that while he regrets the attempted sting occurred, the maneuver was carried out strictly by the attorney general's office with neither his knowledge nor encouragement. The commission counsel said it was he who alerted Mr. Jones of the sting and the existence of a partially audible tape, although he was under no obligation to do so.

"I wish the AG hadn't done it," Mr. Tembeckjian said. "But I couldn't in good conscience keep my mouth shut."

Mr. Tembeckjian also disputed Mr. Jones' contention that the tape was "exculpatory."

He said it is neither exculpatory nor inculpatory since Justice Spargo was not part of the conversation. Essentially, Mr. Tembeckjian said, the sting was of no evidentiary or probative value to either side.

The referee, Mr. Ellis, agreed.

Removable Misconduct

In its determination Friday, the commission said Justice Spargo was guilty of removable misconduct for the alleged Blatchly shakedown, and it was also improper for the judge to convey the impression of vote-buying by giving away the convenience store coupons and in spending $2,000 buying drinks while identifying himself as a candidate for judicial office, to accept the district attorney-elect as a law client in a political matter, and to speak at the Conservative Party fund-raiser.

The commission rejected the charges based on the alleged or perceived pay off for a cross endorsement, and it also threw out the counts stemming from Justice Spargo's participation in the Bush-Gore recount controversy.

Both the hearing referee, Robert L. Ellis of Scarsdale, and Mr. Tembeckjian had maintained that it was misconduct for Justice Spargo to take part in the Florida demonstration.

The commission, however, disagreed.
Additionally, the commission warned judges that any judicial defense fund is inherently troublesome, if not outright banned.

"Whether a legal expense fund for a judge is appropriate clearly depends on the circumstances and must be considered on a case-by-case basis," it said. "Before consenting to the establishment of such a fund, it would be prudent for a judge to seek an opinion from the Advisory Committee," the panel said.

Commissioner Richard D. Emery, a partner at Emery Celli Brinckerhoff & Abady in Manhattan, concurred in result but wrote a partial dissent that was joined by Stephen R. Coffey, a partner at Albany's O'Connell & Aronowitz.

Mr. Emery called the Spargo case "a paradigm for what is wrong with our adversarial elective system for selecting judges." He portrayed Justice Spargo as an overzealous player in a "typical political game" that is a by-product of the elective system of judicial selection.

"We allow our judicial elective system to metastasize the appearance of judgeships for sale and judgeships under party control by obliviously punishing penny ante partisan and financial campaign activities — nipping around the edges of the real problem — while at the same time, like the proverbial ostrich, we permit judicial candidates to engage in financial and partisan activities which stain the majesty of their function," Mr. Emery said.

He also expressed doubt that some of the allegations involving political speech would ever survive a close First Amendment scrutiny.

No Appeal Planned

Justice Spargo was not available for comment Friday. However, he told the commission — and Mr. Jones confirmed — that there will be no appeal.

"Judge Spargo has no confidence that the Court of Appeals would do anything other [than] rubber stamp the commission," Mr. Jones said.

Mr. Jones said "the commission had its marching orders" — declining to elaborate — as evidenced by what he said was its reliance on the "woefully weak" testimony of Mr. Blatchly.

Mr. Tembeckjian denied the commission had "marching orders" from anyone.

Mr. Blatchly, in response to Mr. Jones' characterization of his testimony as "woefully weak," said: "That wouldn't seem to be borne out by the decision."

The matter was prosecuted by Mr. Tembeckjian, Cathleen S. Cenci and Kathryn J. Blake.

Court documents filed more than a year ago revealed that the commission was also investigating Surrogate Doyle. The outcome of that probe was unclear Friday as Mr. Tembeckjian refused to discuss the surrogate.

Mr. Blatchly, a partner at Blatchly & Simonson, said he is concerned the public will conclude from this case that judicial shakedowns are routine.

"I have been practicing for 28 years and I have never before been asked to buy so much as a beer for a judge," he said. "This is entirely aberrational. Hopefully, people will realize from this that when something like this happens, there are ways to ways to deal with it. It was a bizarre situation and the commission dealt with it appropriately. It is time now for everyone to move on."

State Panel Recommends Ouster of Judge in Albany

By Lisa W. Foderaro
The New York Times
April 1, 2006

A state commission has recommended that a State Supreme Court judge from Albany be removed for soliciting tens of thousands of dollars in contributions from lawyers to help pay legal bills.

According to the panel, the New York State Commission on Judicial Conduct, the judge, Thomas J. Spargo, had sought to stop the commission's investigation into a number of complaints by filing lawsuits in both federal and state courts. In the process, he incurred $140,000 in legal expenses and turned to lawyers with cases before him for donations.

"A judge cannot exploit the power and prestige of judicial office for personal gain, and you can't divorce yourself from the fact that you're a judge," said Robert H. Tembeckjian, the commission's administrator and counsel. "The black robes of judicial office follow you wherever you go."

Mr. Tembeckjian added that "ironically, the misconduct" arising from Justice Spargo's efforts to halt the investigation "was far more serious than the original complaints."

It was the sixth time the commission has acted to remove a Supreme Court judge since it began investigating misconduct in 1978. Removal is the panel's harshest penalty.

Last fall, the commission recommended the removal of a Supreme Court judge in Queens who helped a robbery suspect elude a detective by allowing him to leave through a back door. The judge, Laura D. Blackburne, is appealing that decision.

Justice Spargo, formerly a prominent election lawyer and town justice in Berne, N.Y., was served with the decision in his chambers at the Albany County Courthouse yesterday morning. He has 30 days to accept the decision or challenge it. Justice Spargo's lawyer, E. Stewart Jones, said yesterday that the judge was "unlikely" to challenge the finding. But he asserted the judge's innocence, saying that he had not pressured any lawyers for donations.

"It's a sad day for our profession and the civil justice system and the judiciary," Mr. Jones said.

"This is not a fair decision. It's not supported by the credible evidence. Judge Spargo was a tremendous judge. He was considerate and fair and respectful."

The commission also determined that Justice Spargo committed wrongdoing as a town justice — the subject of the initial investigation that Justice Spargo was fighting.

According to the commission, Justice Spargo distributed $5 coupons and free alcoholic drinks as a candidate for the post in 1999. In addition, the commission said, Justice Spargo accepted the district attorney-elect as a client of his law practice in 2000 even though, as a town justice, he presided over cases brought by the district attorney's office.

In 2000, Justice Spargo made news when, as a town justice, he took part in a nationally televised rally in Florida on behalf of George W. Bush during the presidential recount. Mr. Tembeckjian had urged that Justice Spargo be disciplined for the Florida activity, but the commission dismissed a charge relating to it.

But the commission found that Justice Spargo, who was assigned to Ulster County Supreme Court in 2003, had solicited a $10,000 contribution from Bruce Blatchly, a lawyer who frequently appeared before him.

It also found that Justice Spargo arranged a lunch at a restaurant in Kingston in late 2003 with several lawyers who all had cases before him. When Justice Spargo was away from the table, a friend of the judge's asked the lawyers for similar contributions. None of the lawyers donated money, the commission said.

Mr. Blatchly, who also attended the lunch, said in a phone interview yesterday that he was shocked by the judge's request for money.

"That's just not how things work, at least up here," said Mr. Blatchly, a divorce lawyer in New Paltz who had about 20 cases pending before Justice Spargo at the time. "It's just something that's bizarre. You don't buy a beer for a judge, let alone give him $10,000 when you're appearing in front of him."

But Mr. Jones said that Justice Spargo was unaware that his friend, identified as Sanford Rosenblum, had solicited money from the lawyers and denied having a conversation with Mr. Blatchly about a donation. Mr. Jones also criticized the commission for being overzealous.

"The commission is intimidating and controlling and sapping the independence and vitality of the bench," Mr. Jones said. "Too many judges are looking over their shoulders at the commission. They've always had the long knives out for Judge Spargo."

Mr. Tembeckjian dismissed Mr. Jones's criticism, saying that Justice Spargo was disciplined for his "undeniably egregious misconduct" and "not because of any agenda the commission has." He added that the "vast majority of honorable and independent judges has nothing to fear from this commission."

The numerous other papers that reported the story:

"State Supreme Court Justice Spargo won't appeal removal from bench" -
Washington Business Journal, DC
"Politically Active Judge Thrown Off Bench" - New York Sun
"Panel Calls for Removing N.Y. Judge" - Washington Post
"State wants judge's removal for seeking donations" - Court TV
"Spargo removed from bench, Panel suggests removal of controversial state
Supreme Court justice for exploiting office for personal gain" - Albany
Times Union
"Panel boots judge, cites Ulster misconduct" - Times Herald-Record
"Update 1: Panel Calls for Removing N.Y. Judge" - FORBES

The full CJC decision is attached in Adobe .pdf format.
www.scjc.state.ny.us/Determinations/S/spargodetermination.full.March2006.
pdf

NY Judge's Bid to Upset Conduct Rules Rejected

By John Caher
New York Lawyer
New York Law Journal
November 14, 2005

An Albany appellate panel last week cleared the way for the Commission on Judicial Conduct to continue pursuing Supreme Court Justice Thomas J. Spargo.

In a unanimous vote, the Appellate Division, Third Department, rejected Justice Spargo's free speech challenges to the conduct rules, noting that they have already been reviewed and validated by the Court of Appeals.

The judge faces numerous misconduct charges, including allegations he took part in prohibited political activities, paid off political operatives to obtain endorsements and directly or indirectly pressured lawyers appearing in his court to contribute to his legal defense fund.

Hearings were held this summer. It is unclear when the commission will render its determination.


State Takes Look at Judge

Claims Against Albany County Surrogate Cathryn Doyle
Appear to Stem from Case of
State Supreme Court Justice Accused of Shaking down Lawyers

By Michele Morgan Bolton
Times Union
August 12, 2005

ALBANY -- The state Commission on Judicial Conduct is investigating Albany County Surrogate's Court Judge Cathryn Doyle, according to a lawyer who has been subpoenaed to testify in the secret probe.

Although specifics of the allegations against Doyle are unclear, the charges apparently arose from an ongoing proceeding the commission is conducting against state Supreme Court Justice Thomas Spargo.

Spargo, the former Berne town justice, is accused of shaking down a number of Ulster County attorneys with cases pending before him to contribute $10,000 each to his defense fund. The commission has been looking into five other claims that accuse Spargo, an outspoken Republican jurist, of violating the state judicial code of conduct both on the bench and while campaigning for it in 1999 and 2001.

Doyle, a Democrat, was named in previous court papers as having attended at least one luncheon in 2003 where Spargo is accused of trying to hit the lawyers up for money. Court papers have described Doyle as a "close, personal friend" of Spargo.

Doyle, who is president-elect of the Albany County Bar Association, was elected to the bench that handles adoptions, wills and probate in 2001, after serving for two decades as chief clerk to former Albany County Surrogate Raymond A. Marinelli.

She is paid $119,800 annually.

Doyle's lawyer, William Cade, declined to comment about whether she is under investigation by the state watchdog panel.

Robert Tembeckjian, who is chief counsel for the state commission, had no comment on the proceedings, which are confidential.

E. Stewart Jones, who now represents Spargo -- didn't return a call for comment.

Jones willingly contributed $10,000 to Spargo's fund during the time he was represented by Albany lawyer David Kunz.

Spargo has denied knowing that the defense fund had been set up for him.

New Paltz attorney Bruce Blatchly confirmed Wednesday he testified in the Spargo matter last week as the commission presented its case. He declined to discuss what he told the commission, which can admonish, censure or even remove Spargo from the bench if it determines his actions were unethical.

Blatchly, a Republican who also is a town justice in Gardiner, said he received a subpoena to appear this Monday in the case involving Doyle. He declined further comment.

Previously, Blatchly contended in court papers that Spargo personally pressured him for cash in three separate incidents in late fall 2003.

Blatchly said that during one of those incidents, on Dec. 19, he was meeting with Spargo when the judge dropped an offhand comment about how Doyle had been reassigned to handle his pending divorce case.

Blatchly later described the comment as a not-so-subtle incentive to cut a large check.

Court papers filed by the judicial commission allege that Spargo hit up lawyers in his Ulster County chambers or at La Canard, a Kingston restaurant, during two months of strong-arm fund raising in 2003.

On at least one occasion, Spargo was accompanied by Doyle, who also allegedly recommended attorney George A. Cushing as one of two trustees for the defense fund.

The other is Brian P. Sanvidge, court papers said, who is inspector general of the state Labor Department and a friend of Spargo's.

Blatchly indicated in court papers that he'd settled a $3 million personal injury case before Spargo a few months before and the judge knew he had the funds available.

He said he took the push to be "a message" that he had better fork over the money. But he didn't.

Spargo was elected to a 14-year term in 2001 with a salary of $136,700.

Other allegations he faces include paying off political operatives to cross-endorse him in the 2001 race for the state Supreme Court, and trying to bribe voters with food, gasoline and coupons in a campaign for Berne town justice.

He also was a prominent force behind a raucous Republican demonstration in the 2000 Florida presidential election recount, in which he also participated.

Spargo claims the allegations against him violate his constitutional rights, including free speech, and he has denied any knowledge of the defense fund or its operation.

He took his case all the way to the U.S. Supreme Court, culminating a three-year battle in both state and federal courts, but the high court refused to hear it.

Spargo says he shouldn't be treated differently than anyone who runs for elected office in other branches of government.

NY Judge Wins Round in Disciplinary Fight
Can Keep His Lawyer

By John Caher
New York Law Journal
New York Lawyer
June 6, 2005

ALBANY - A judge in Westchester County has overruled the Commission on Judicial Conduct and held that embattled Supreme Court Justice Thomas J. Spargo's preferred attorney is not conflicted and may represent him at a disciplinary hearing.

Supreme Court Justice Nicholas Colabella, in an order signed Friday, said the commission has not proven that attorney E. Stewart Jones' testimony would be adverse to Justice Spargo and, therefore, the referee's decision disqualifying Mr. Jones was "arbitrary and capricious."

The commission had sought to disqualify Mr. Jones —— referred to in Justice Colabella's decision as "one of the Capital area's most outstanding attorneys" —— because the lawyer has already given testimony in the matter. But Justice Colabella said Mr. Jones' testimony was not necessarily contrary to Justice Spargo's interests.

Justice Spargo is accused of numerous misconduct charges. Several relate to his political activities at the time he was a part-time town justice, full-time elections lawyer and Supreme Court candidate. Others relate to a legal defense fund that was set up to help defray his expenses in fighting the initial charges. The commission contends that Justice Spargo solicited contributions from attorneys with matters pending in his court.

The dispute addressed Friday by Justice Colabella stemmed from Mr. Jones' testimony and that of another well-known Albany-area lawyer, Sanford Rosenblum of Rosenblum, Ronan, Kessler & Sarachan.

Mr. Rosenblum, according to court records, told the commission last year that he had asked attorneys to donate to a defense fund for Justice Spargo. Mr. Rosenblum told the watchdog agency that his solicitations were made without Justice Spargo's knowledge or request, and that he did not know whether a defense fund had been established or how to go about making a contribution.

Mr. Jones, who testified before he was retained by Justice Spargo, told the commission that he was approached by Mr. Rosenblum, asked to contribute and advised on how to make out the check and where to send it. Mr. Jones, who did not have cases pending before Justice Spargo, contributed $10,000.

The commission claimed in its disqualification motion that Mr. Jones' testimony "completely undermines Rosenblum's credibility" and, as such, is adverse to Justice Spargo.

Commission referee Robert L. Ellis said Mr. Jones' conflict was obvious and that "it would be highly inappropriate for Mr. Jones to act as both an attorney in the case and a witness for the commission."

Justice Colabella disagreed.

"Whether Jones's testimony, if accepted by the trier of fact, would support the charge that Rosenblum solicited contributions on behalf of Spargo and would therefore be prejudicial to his client is speculative," Justice Colabella wrote in Jones v. Commission, 2447-2005.

Mr. Jones said yesterday he is "delighted" with the decision.

"I felt very strongly that Judge Spargo had a right to the counsel of his choice and Judge Colabella's decision affirms that," Mr. Jones said.

Commission Administrator and Counsel Robert H. Tembeckjian said he did not expect to appeal and looks forward to a prompt hearing date.

Meanwhile, Justice Spargo is challenging the constitutionality of the speech-restrictive provisions in the Code of Judicial Conduct.

In an earlier opinion, Justice Colabella upheld the code. That decision is on appeal to the Appellate Division, Third Department.

Secrecy to Cloak Judge's Hearing
Disciplinary Action Against Justice Thomas J. Spargo
to Follow State Rules Denying Public Access

By Michele Morgan Bolton
Times Union
May 9, 2005

ALBANY -- Testimony could be riveting when a two-week disciplinary hearing for controversial state Supreme Court Justice Thomas J. Spargo gets under way in about three weeks.

Except you won't get to hear any of it, because the process is totally secret.

New York still lags behind 38 states that have opened judicial disciplinary procedures to the public. But not for lack of trying.

The Commission on Judicial Conduct, which has spent the past two years investigating Spargo, has been pushing since the panel's 1974 founding to open such hearings.

Spargo, an elections law expert, one-time seminarian and Army paratrooper, is accused of having violated the state Code of Judicial Conduct both on and off the bench since 1999. His hearing is slated to start June 1.

Potential sanctions include admonishment, censure or even removal from the bench if it's determined his actions were improper.

"The public has a right to know," said Robert Tembeckjian, who is the commission's chief counsel. "Judges are public officials. And the commission itself ought to be open to public scrutiny all along."

Chief Judge Judith Kaye, of the state Court of Appeals, asked the Legislature to open up the process in 2003.

A bill containing her suggested changes passed the state Senate, but died in the Assembly. At the time, Judiciary Committee Chairwoman Helene Weinstein, a Brooklyn Democrat, said she saw no reason for open access, since other state-regulated professionals are disciplined in private.

Instead, Weinstein suggested beefing up judicial training opportunities.

"Judges aren't just licensed by the state," said Cynthia Gray, who is director of the American Judicature Society's Center for Judicial Ethics. "They are state officials. Elected. That is completely different than a doctor, dentist or a masseuse."

"Most states are open now, and it's spreading across the country," Gray said. "Once hearings are opened? No one ever goes back."

Among Spargo's alleged missteps was his participation, while a sitting town justice, in a Florida demonstration at the Miami-Dade County Board of Elections during the Bush-Gore 2000 presidential vote recount.

He is accused of paying out $5,000 each in 2001 to a Democratic and an Independence Party judicial nominating convention delegate to get a cross-endorsement and trying to bribe voters with food, gasoline and coupons.

Spargo is said to have pressured lawyers in 2003 -- including some who appeared before him -- to contribute $10,000 each to his defense fund.

He has not denied the charges in most cases, except in the latter example, but instead claims that state ethics rules compromise the constitutional rights of judicial candidates and impose restrictions that don't apply to others running for elected office.

Spargo has the option to waive confidentiality during the hearings, but his lawyer is recommending he does not.

"I would certainly advise him not to," attorney E. Stewart Jones said last week. "This is not a fair process. (The commission) gets enormous satisfaction in bringing down judges. The entire process is leveraged against them."

Legal observers say Troy City Court Judge Henry Bauer erred fatally when he waived confidentiality in 2003 and was later removed from the bench for ignoring the constitutional rights of defendants.

Yet high-court judges said in the decision to remove him last year that Bauer's judicial career ended not because he had something to say publicly, but because of what he didn't express -- which was any remorse.

The battle of wills with the Commission on Judicial Conduct isn't Spargo's first showdown with a government watchdog.

The big-time Republican frustrated the Commission on Government Integrity from 1985 through 1989 as panelists explored whether he'd helped shuttle hundreds of thousands of dollars in campaign contributions from a developer to candidates seeking Poughkeepsie Town Board seats.

After filing 16 lawsuits and taking the Fifth Amendment 19 times in testimony, Spargo eventually gave up his political posts for private practice and the investigation went away, according to reports.

These days, Spargo stays busy at the Albany County Courthouse as the weeks roll closer to June.

But the pressure has taken its toll, Jones acknowledged: "I'm sure in the quiet of the dark night, he's worried. Because the commission won't rest until they have his body on a slab."

http://timesunion.com/AspStories/story.asp?storyID=358605
&category=REGION&BCCode=HOME&newsdate=5/9/2005


NY Attorney Allowed to Quit Working for Judge

By John Caher
New York Lawyer
New York Law Journal
March 14, 2005

The Commission on Judicial Conduct and a lawyer formerly representing Supreme Court Justice Thomas J. Spargo of Albany have agreed to a stipulation that will let the attorney out of the case.

The dispute involves attorney David F. Kunz, who had represented Justice Spargo in earlier proceedings. The judge is under investigation for various allegations of misconduct, mostly dealing with political speech.

When Mr. Kunz, of DeGraff, Foy, Kunz & Devine in Albany, attempted to get out of the case because Justice Spargo retained another lawyer, the commission objected.

Last week, a stipulation was filed in which Justice Spargo unequivocally declared he had discharged Mr. Kunz. Consequently, the commission will stop trying to force Mr. Kunz to represent the judge.

It is unclear now who is representing Justice Spargo. His new attorney, E. Stewart Jones Jr. of Troy, was disqualified by a commission referee on Jan. 20. Mr. Jones has been a witness in a commission proceeding against Justice Spargo. Although Mr. Jones' testimony was exculpatory, the commission maintains that he cannot represent the judge since he is a witness.

NY Judicial Panel Can't Choose Judge's Lawyer

By John Caher
New York Lawyer
New York Law Journal
February 16, 2005

ALBANY —— A federal judge held yesterday that the state Commission on Judicial Conduct cannot force Albany Supreme Court Justice Thomas J. Spargo's former counsel to continue to represent him in proceedings before the disciplinary agency.

Northern District Judge Lawrence E. Kahn yesterday enjoined the commission from attempting to exert jurisdiction over David F. Kunz of DeGraff, Foy, Kunz & Devine in Albany.

The commission had taken the position that even though Justice Spargo executed a change-of-

attorney form, Mr. Kunz could not get out of the case without its consent. Judge Kahn strongly disagreed.

Meanwhile, Justice Spargo's disciplinary hearing is slated to begin June 1. He is accused of violating the Code of Judicial Conduct by partaking in prohibited political activities. Justice Spargo is also accused of soliciting legal defense contributions from lawyers with matters pending in his court.

Last summer, on the eve of a scheduled disciplinary hearing, Justice Spargo replaced Mr. Kunz with attorney E. Stewart Jones Jr. of Troy. The commission objected to the last-minute entry of Mr. Jones, whom it viewed as ineligible, and sought to force Mr. Kunz to remain on the case.

Mr. Jones had contributed to Justice Spargo's legal defense fund and testified about that contribution before the commission. Consequently, the commission maintains, Mr. Jones cannot represent Justice Spargo. It formally disqualified Mr. Jones on Jan. 20.

Judge Kahn said the disqualification of Mr. Jones does not reactivate Justice Spargo's relationship with Mr. Kunz.

George J. Szary of DeGraff Foy appeared for Mr. Kunz. Assistant Attorney General James B. McGowan represented the commission.

NY Lawyer Allowed to Drop Judge as Client

By John Caher
New York Lawyer
New York Law Journal
January 21, 2005

A federal judge has blocked the New York judiciary and the state Commission on Judicial Conduct from forcing an Albany attorney to continue his representation of embattled Supreme Court Justice Thomas J. Spargo.

Northern District Judge Lawrence E. Kahn said in a temporary restraining order Wednesday that David F. Kunz "is in immediate risk of being forced" to appear on Justice Spargo's behalf before a substitution of counsel request is properly litigated. Justice Spargo is facing numerous misconduct allegations, ranging from inappropriate political activity to shaking down lawyers.

Mr. Kunz brought the action on his own behalf after Supreme Court Justice Nicholas Colabella of Westchester County ordered the attorney to appear before the commission. Mr. Kunz contends he was replaced as counsel for Justice Spargo, that he is no longer involved in the matter and that the commission has no authority over him.

Commission Administrator Robert H. Tembeckjian would not comment on the matter.

Spitzer: NY Judge Pressured Lawyers for Defense Money

By John Caher
New York Lawyer
New York Law Journal
September 20, 2004

ALBANY Two Albany judges including embattled Supreme Court Justice Thomas J. Spargo have been implicated in a scheme to pressure attorneys appearing before them to contribute to a legal defense fund, documents filed by the Attorney General late Friday show.

Papers filed in connection with Justice Spargo's battle against the Commission on Judicial Conduct display publicly for the first time the extent of the allegations against the controversial judge. The Attorney General's Office represents the commission in the dispute.

Those documents allege that Justice Spargo directly and indirectly solicited contributions of as much as $10,000 each from lawyers with matters pending in his court.

They also reveal that the commission questioned Albany Surrogate Judge Cathryn M. Doyle, identified in court records as "a close personal friend" of Justice Spargo, about her role in soliciting legal defense funds.

Neither Justice Spargo nor Judge Doyle was available for comment Friday. Justice Spargo, in his various filings, denies all of the allegations. Judge Doyle's response was not included in the documents filed Friday. Any disciplinary case against her would be confidential.

Justice Spargo was under investigation by the commission for approximately two years, for engaging in prohibited political activities, when he allegedly approached attorneys and sought financial contributions, according to the documents filed Friday. Prior to taking the bench full time, Justice Spargo was an elections lawyer and political consultant. He continued to work in those capacities at a time when he was a part-time town justice.

Judicial Campaigning Lands at Supreme Court Doorstep

Beth Hanson
Legal Times
06-03-2004

Two years ago, the U.S. Supreme Court launched a national debate over what candidates for judicial office should be able to say on the campaign trail.

Today, the high court will consider a petition from a controversial New York judge who wants to continue and expand the debate, but has been thwarted by procedural obstacles in courts below. This case, Spargo v. New York State Commission on Judicial Conduct, 03-1273, is one of dozens the court will review at its closed conference to determine whether they should be added to the docket for the fall term.

In Republican Party of Minnesota v. White, the Supreme Court in 2002 struck down a Minnesota canon of judicial conduct that prohibited judges and judicial candidates from announcing their opinions on political and legal issues. For the majority, Justice Antonin Scalia wrote that the code section "burdens a category of speech that is 'at the core of our First Amendment freedoms' -- speech about the qualifications of candidates for public office."

Albany, N.Y., Supreme Court Justice Thomas Spargo hopes to use this decision to his advantage in his fight against state disciplinary charges filed against him in 2002 by the Commission on Judicial Conduct.

According to opinions from the lower courts, Spargo was charged under New York's judicial conduct rules regarding judicial independence, impartiality and unauthorized political activity for actions both on the campaign trail and while in office. During his 1999 campaign for town justice in Berne, N.Y., Spargo allegedly solicited potential voters by offering gasoline coupons and food. Additional charges involved Spargo's subsequent tenure as town justice, when he attended a demonstration against the 2000 presidential election vote recount in Florida and a Conservative Party fundraiser in New York.

The final charge involved payments made by Spargo to campaign workers and consultants who would allegedly help to ensure that he would run unopposed for the state Supreme Court in 2001. Two of these payments went to the co-petitioners in the case before the Supreme Court -- Jane McNally, a Democratic supporter, and Peter Kermani, chairman of the Albany County Republican Party.

In response to these charges, Spargo alleged that the code violated his free speech and association rights by its direct impact on him as a candidate and as a judge. McNally and Kermani took Republican Party v. White a step further, however, and alleged that the code prevented them as citizens from publicly supporting a justice or a candidate for fear that the justice or candidate would be sanctioned because of their support.

Spargo and his fellow petitioners succeeded in persuading a federal district judge in the Northern District of New York that sections of the Code of Judicial Conduct were unconstitutionally vague.

But the 2nd U.S. Circuit Court of Appeals refused to hear the case on its merits. In a decision written by Judge Chester Straub, the appeals panel reversed on the basis of the 1971 case Younger v. Harris. That decision held that a federal court cannot hear a case when the plaintiff is involved in a pending state proceeding that involves an important state interest.

Spargo challenges the "Younger abstention" ruling, in part because it leaves McNally and Kermani -- who were not directly involved in the state proceedings against Spargo -- without a forum to make their First Amendment claims.

In a petition written by his lawyer David Kunz of the Albany, N.Y., firm DeGraff, Foy, Kunz & Devine, Spargo also asserts that the Younger issue should not be allowed to delay consideration of the "flagrant and patent unconstitutionality" of the New York judicial code provisions in light of the ruling in White.

In reply, New York Solicitor General Caitlin Halligan argues that the panel's ruling on the Younger issue is valid because the claims made by McNally and Kermani are "'inseparable' and 'derivative' of Spargo's." She also defends the New York rules at issue as "fully constitutional" and distinguishable from those at issue in White.


NY Judge Allegedly Solicited Funds
From Lawyers in His Court

By John Caher
New York Lawyer
January 8, 2004

ALBANY —— Albany Supreme Court Justice Thomas J. Spargo, whose battle over disciplinary charges last year made national news, is now under investigation by the Commission on Judicial Conduct for allegedly soliciting donations from attorneys appearing in his court to cover the cost of his legal defense.

Sources close to the investigation confirmed that at least three attorneys in Ulster County have given statements to the commission and that the judge has disqualified himself from cases involving those lawyers and others who attended an event last month hosted or organized by Justice Spargo.

The commission itself declined comment through its administrator and counsel, Robert H. Tembeckjian.

Last year, Justice Spargo pursued a highly publicized battle where he challenged the free speech and political activity restrictions imposed on judges and judicial candidates.

A former Republican political consultant and elections lawyer who continued to serve in those roles while simultaneously holding down a part-time job as a town judge, Justice Spargo convinced a federal district judge that bedrock portions of the Code of Judicial Conduct are unconstitutional. In December, however, the U.S. Court of Appeals for the Second Circuit said the federal court wrongly intruded on what should be a state court action.

The latest investigation involves Justice Spargo's activity during his ongoing battle with the commission.

It is alleged that Justice Spargo solicited contributions from personal injury and matrimonial lawyers who appear in Supreme Court in the Third Judicial District, where he sits, to pay his attorney, David F. Kunz of DeGraff, Foy, Kunz & Devine in Albany. Justice Spargo yesterday declined comment. Mr. Kunz was not available.

A Federal Appeals Court Rejects
a Challenge to New York's Judicial Code

Times Union
December 14, 2003

It's an issue that may one day wind up in the U.S. Supreme Court, but for now a lower federal court has ruled correctly by reaffirming New York state's code of judicial conduct. That code has been challenged by state Supreme Court Justice Thomas Spargo, who claims that it infringes on his right of free speech by prohibiting partisan political activity.

Regrettably, Justice Spargo's claim was upheld by U.S. Magistrate David Hurd in February 2002. But in a ruling released last week, a federal appeals court in Manhattan overturned that decision and said the case should be resolved in state courts. Justice Spargo's attorney notes the appeals panel did not address the question of whether a state commission lacks the jurisdiction to address constitutional issues. That could open the way for going to the U.S. Supreme Court.

But in truth, the constitutional issue is beside the point. The state code is not about trampling on constitutional rights. It is intended to preserve the integrity of the bench, and its impartiality. To do so, it demands a higher standard of conduct from judges.

That's not to say there is no legitimate reason to question some aspects of the code. To the contrary, some critics -- this page included -- have long complained that judicial candidates are unfairly restrained in what questions they can answer, and what issues they can address, during an election campaign. That deprives the voters of a free exchange of viewpoints, and makes it all the more difficult for voters to decide which candidates warrant support.

But as we have noted previously, there is a huge difference between discussing issues and actively engaging in partisan politics. The commission's case against Justice Spargo is based on the latter activities. The panel accuses the judge, who was then a town justice in Berne, of participating in the pro-Bush rally in Florida to disrupt the presidential recount process. It also accuses him of buying drinks, coffee and doughnuts for voters during his 1999 campaign for the Berne post. While a candidate for state Supreme Court, the commission says, Justice Spargo was keynote speaker at a Conservative Party dinner in Monroe County and made $5,000 consulting fee payments to two supporters who nominated him for political cross-endorsements.

The state's highest tribunal, the Court of Appeals, has upheld the judicial code of conduct on the grounds that it is necessary to prevent not only corruption, but also the appearance of corruption, "including political bias or favoritism." That's the issue, not a judge's right to free speech and association.

Fed Court Rejects Political Ban Case

The Associated Press

December 9, 2003,



ALBANY, N.Y. -- A federal appeals court ruled Tuesday that a case

challenging a ban on overtly political activities by New York's state judges

belonged in state court.



Though a trial-level federal judge had earlier ruled against the state

Commission on Judicial Conduct's efforts to punish state Supreme Court

Justice Thomas Spargo, the U.S. Court of Appeals said the matter is not

one for federal courts.



"It is to the state Commission on Judicial Conduct and the New York Court

of Appeals that plaintiffs must make their arguments, and to which other

interested parties must look, for further guidance and development of the law

in the context of this controversy," the federal appeals court, based in

Manhattan, ruled.



The judges took pains to stress they were not passing judgment on the merits

of Spargo's case, and acknowledged that an ultimate ruling in the case "may

have widespread influence and impact" both in New York and beyond the

state's borders.



Spargo has been trying to fend off efforts by the state commission to punish him

for a range of activities that he contends are protected by the federal and state

constitutions.



Among Spargo disputed actions are his leading noisy pro-George Bush

demonstrations during the vote recount in Florida in the wake of the 2000

presidential election.



Two Spargo supporters joined him in the suit against the judicial conduct panel.

U.S. District Judge David Hurd ruled in February that New York's rules

against judicial politicking, policed by the state Commission on

Judicial

Bar Groups File Briefs in 'Spargo' Case
Associations Say Federal Judge Erred
In Striking State's Judicial Conduct Code

By John Caher
New York Law Journal
June 20, 2003

Joining the chorus of critics eager to see Northern District U.S. Judge David N. Hurd reversed in his ruling on the judicial conduct code, the New York State Bar Association, along with the Suffolk County and Asian American Bar Associations, last week submitted briefs as amici curiae to the federal appellate court.

The bar groups contend Judge Hurd erred severely in February when he struck as unconstitutionally vague some speech-restrictive sections of the Code of Judicial Conduct. They, along with Attorney General Eliot Spitzer, are urging the 2nd U.S. Circuit Court of Appeals to reject Judge Hurd's reasoning and uphold the constitutional integrity of New York's conduct code.

Judge Hurd, in Spargo v. Commission, 244 F.Supp 2d 72, struck two provisions in the Code of Judicial Conduct that generally relate to off-the-bench conduct of judges. The ruling led to a plethora of litigation in both state and federal courts where the very core of the conduct code, and the ability of the state to regulate the political activities of judges and judicial candidates, was called into question.

Just this month, the New York Court of Appeals, in Matter of Watson, 78, and Matter of Raab, 91, upheld the code and, without directly referring to Spargo, strongly insinuated that the federal trial judge was far off base. That question, however, is before the 2nd Circuit.

Last week, former State Bar Association President Steven C. Krane of Proskauer Rose in Manhattan filed a 5,000 word brief for the amici curiae. Signing on were current current State Bar President A. Thomas Levin, Douglas J. LeRose of the Suffolk County Bar Association and Christopher W. Chan of the Asian American Bar Association of New York.

Mr. Krane's central argument is that the code serves a compelling public interest — namely, assuring that judges refrain from activities that may reveal bias or perceived bias — and that it is sufficiently specific to withstand any vagueness challenge.

"[T]o ensure that respect for the judiciary is maintained, it is essential that judges be held to higher standards of conduct than members of the general public," Mr. Krane argues. "Thus, not only must actual bias and prejudice in the system be avoided, but also efforts must be made to dispel the perception of partiality."

The provisions stricken by Judge Hurd required judges to maintain high standards of conduct, to act in a manner that promotes rather than detracts from public confidence, and to refrain from most political activity. His ruling was rooted in Republican Party of Minnesota v. White, 122 S.Ct. 2528, where the U.S. Supreme Court last year upheld the right of judicial candidates to "announce [their] views on disputed legal or political issues." The parameters of that ruling, however, remain unclear and are being tested in Spargo and other cases.

Patterned After ABA's Code

Mr. Krane notes that New York's "prophylactic rules designed to preserve due process of law, in both appearance and actuality," are patterned after the American Bar Association's Model Code and mirror statutes in several states. He said that to the extent the rules do not directly address a particular ethical question, New York's Advisory Committee on Judicial Ethics provides guidance and annually publishes scores of opinions.

"Thus, not only is there a government-sanctioned entity available to answer judges' questions as to the propriety of their conduct, but the [Advisory Committee] has created a substantial and growing body of precedents . . . to which New York judges can refer," Mr. Krane said.

It is unclear whether the 2nd Circuit will even reach the merits. Judge Hurd denied an abstention motion only after concluding that it was not clear that a judge disciplined by the Commission on Judicial Conduct had a right to review by New York's highest court. However, in its ruling earlier this month the state Court of Appeals made abundantly clear that a judge has an appeal as of right.

New York High Court Declares It Is Not Bound by 'Spargo'
Brooklyn Supreme Court justice
removed from bench despite federal ruling

By John Caher
New York Law Journal
May 2, 2003

If there was any question whether the New York Court of Appeals considered itself bound by a federal district court ruling striking down some provisions in the Code of Judicial Conduct, that issue was quashed Thursday when the judges in Albany, N.Y., answered with a resounding "no."

In a per curiam opinion, the court unanimously rejected arguments that it is tied by U.S. District Judge David N. Hurd's decision in Spargo v. Commission, 244 F Supp 2d 72, and removed Brooklyn Supreme Court Justice Reynold N. Mason from the judiciary.

Judge Spargo Chides
[NY] Conduct Commission for 'Arrogance'

By John Caher
New York Law Journal
April 14, 2003

Even with his Roman Catholic roots and previous life as a seminarian, Supreme Court Justice Thomas J. Spargo has never been keen on turning the other cheek.

So when the Commission on Judicial Conduct questioned Justice Spargo's off-the-bench political conduct, the former Army paratrooper took the commission to federal court, securing an extraordinary opinion in February that the speech-limiting provisions in the Code of Judicial Conduct are facially unconstitutional.

In the latest round, the commission's executive director, Gerald Stern, filed an affidavit with U.S. District Judge David N. Hurd, advising the court that its Feb. 20 ruling in Spargo v. State Commission was legally flawed and that the permanent injunction should be lifted so the agency can go about its task of rooting out judicial misconduct. Late last week, Justice Spargo responded in bare-knuckled form with an affidavit comparing Stern's watchdog agency to an Orwellian nightmare and "the enforcement troops of a petty tyrant."

The issue of the moment in the tit-for-tat is whether Judge Hurd will stay his own decision or leave the matter for the 2nd U.S. Circuit Court of Appeals.

The commission targeted Justice Spargo, formerly a prominent Republican elections lawyer, for activities during his campaign for Supreme Court and when he was a part-time town justice in a rural community near Albany. During that period, he appeared on national television advocating for the Bush-Cheney ticket (by which he was employed) during the Florida recount, gave coupons for gasoline to potential voters and engaged in other activities that offended the commission and perhaps violated the general restrictions in the Code of Judicial Conduct. On Feb. 20, Judge Hurd said the ethics code provisions that require judges to maintain high standards and to refrain from political conduct are simply too vague to survive constitutional scrutiny.

In his affidavit two weeks ago, Stern said Judge Hurd's ruling and the permanent injunction barring enforcement of the stricken provisions has had an enormously negative impact on the commission.

Stern said numerous investigations have been stopped in their tracks by Judge Hurd's ruling, and that public confidence in the judiciary can only be undermined if judges are allowed to engage in unbridled political activity. He expressed concern that as a result of the ruling "[j]udges may be pressured by political parties to become involved in partisan political activity, including campaigns for non-judicial office, endorsing other candidates and making political speeches on behalf of political organizations."

Sharp Criticism

Last week, Justice Spargo, represented by David F. Kunz of DeGraff Foy Holt-Harris Kunz & Devine in Albany, responded forcefully with an attack not only on Stern's legal position, but on what they view as the holier-than-thou "remarkable arrogance" of the commission.

"Reduced to their most fundamental aspect, the arguments advanced by the defendants may be summed up as follows: We are the Commission and therefore we are correct," Justice Spargo said in an affidavit.

Justice Spargo reacted sarcastically to Stern's assertion that judges will engage in unseemly political conduct if they are not under the thumb of the commission and its interpretation and application of the ethics rules.

"Apparently, without the unrestrained oversight of the Commission and the enforcement of rules this court found to be unconstitutional, it's a foregone conclusion that judges will slip into a cesspool of political corruption," Justice Spargo said. "That such an argument could be made in legal briefs presented to this court is an insult to judges throughout the state."

Both Justice Spargo and Kunz contended that the difficulties Judge Hurd's decision imposed on the commission are of no relevance, and both compared this case to major civil rights decisions of the past. The commission, in its submissions, has detailed the agency's history over its 25-year life span and boasted of the fact that its determinations are nearly always upheld by the Court of Appeals.

"One need not be reminded that there was a long statutory and judicially enforced history of segregation in this nation until valiant judges, many sitting on the bench in federal district courts, bravely declared the constitutional invalidity of the practice and struck it down," Justice Spargo said. "The existence of that long-standing, albeit unconstitutional history, did not render the practice constitutional or any less offensive. This matter is no different."

Kunz does not deny that the state has the authority to regulate the speech of judges, and actually suggests that it does so -- in a manner where the offending speech is clearly defined and the statute does not amount to an unconstitutional prior restraint on First Amendment rights.

"[J]udges are certainly mature enough, and of sufficient integrity and discretion, that they will not succumb to the political thuggery insinuated in the Commission's brief," Kunz said. "If there is some political activity which may be constitutionally limited, New York state clearly has the power and resources to draft a constitutionally valid provision prohibiting the improper activity."

In addition to its motion to Judge Hurd, the commission has also filed notice of appeal to the 2nd Circuit.

Assistant Attorney General Patrick F. MacRae is defending the agency.