Commissioners Attack Rules on Judicial Electioneering
By John Caher
New York Law Journal
July 14, 2004

ALBANY - Three members of the state Commission on Judicial Conduct said yesterday that New York's rules governing judicial candidates are so restrictive that they violate the First Amendment.

The commissioners' position, expressed in a case about a town justice, puts them at odds with both the panel on which they serve and the state's highest court, which reviews their work.

The commissioners said that New York's rules cannot rationally survive constitutional scrutiny - regardless of a Court of Appeals decision to the contrary - and that the state should either scrap judicial elections or permit candidates for judgeships to behave like the politicians they are.
"[W]e have chosen to throw most of our judges headfirst into the political process by requiring them to run in partisan judicial elections," wrote Commissioner Richard D. Emery, a partner at Emery Celli Cuti Brinckerhoff & Abady in Manhattan. "If the State were genuinely concerned about insulating its judges from politics, then the State could, and would, abolish judicial elections altogether."

Mr. Emery was joined by Commissioners Stephen R. Coffey and Colleen C. DiPirro. Although they strongly disagreed with the rule they were enforcing, the three concurred with the outcome of a case involving Amherst Town Justice Mark G. Farrell, a public admonishment. The vote was 10-0.

Justice Farrell, while seeking party support to run for a higher judicial office in 1999, made political calls on behalf of and at the behest of a Democratic Party leader. His campaign committee also contributed to the political organization.

That violated a prohibition on "partisan political activity" by judicial candidates in §100.5 of the Rules Governing Judicial Conduct, which restricts the activities of candidates for the bench.

Accused of misconduct, Justice Farrell acknowledged that he had violated the code and agreed to the rebuke. He did not challenge the provisions on which the charges were based.

The three members of the commission, led by Mr. Emery, volunteered that the code they are bound to enforce is constitutionally crippled and that New York's top court was wrong when it unanimously upheld the speech-limiting rule in Matter of Raab v. Commission, 100 NY2d 305 (2003).

The tension evident in the opinion is rooted in the U.S. Supreme Court's 2002 decision in Republican Party of Minnesota v. White, 536 US 765. The Court, 5 to 4, struck down an "announce clause" that prohibited judicial candidates in Minnesota from announcing their position on matters of political debate.

New York, like most states, deleted the "announce clause" from its judicial conduct code years ago and replaced it with a provision that prohibits judges from making specific promises.

The U.S. Supreme Court explicitly declined to address codes like New York's, leaving it unclear whether they suffer the same constitutional infirmity as did Minnesota's code.

After White, several judges - most notably Albany Supreme Court Justice Thomas J. Spargo - challenged the New York rules.

Last year, the Court of Appeals resolved the matter, at least for now, in the Raab decision. The Court held that New York's rules do not violate White because they are narrowly drawn to meet the legitimate state interest of ensuring an unbiased judiciary. All 10 commissioners agreed yesterday in Farrell that the town justice had violated §100.5 and that Raab, which was decided after Justice Farrell engaged in the conduct resulting in his admonition, controls.

But Mr. Emery and his two colleagues weighed in with their 12-page concurrence, twice the length of the main opinion, to argue that Rule 100.5 is fatally flawed and that the Court of Appeals' ruling in Raab "simply cannot be reconciled with White."

Attack on the System

Mr. Emery was not a stranger to the Raab case. His law firm defended then-Justice Ira J. Raab of Nassau Supreme Court before the commission and the Court of Appeals, making essentially the same argument advanced by Mr. Emery in yesterday's opinion.

The three commissioners said that given New York's "closed judicial nominating conventions, and the domination of those conventions by party leaders," it is "no wonder Justice Farrell felt compelled" to come to the aid of the Democratic Committee chairman and contribute financially to the party.

"Judge Farrell may not have acted in a manner that is conducive to a healthy judiciary, but he did precisely what our system of judicial selection effectively requires of judicial candidates," Mr. Emery wrote.

He took particular exception to the Court of Appeals' conclusion that the rules are "narrowly tailored" to advance important state interests.

"[T]he Rules permit Judge Farrell to solicit and accept (through an appropriate campaign committee) non-anonymous campaign contributions from the very party leader the Commission is now admonishing him for assisting," Mr. Emery wrote. "How is it even rational, let alone narrowly tailored to the goal of safeguarding judicial impartiality, for the Rules to forbid Judge Farrell from making phone calls on behalf of the party leader, but to allow the judge to solicit and accept non-anonymous campaign contributions from that very party leader?"

Mr. Emery said "there cannot possibly be any principled basis" for permitting judges to raise campaign money for themselves but not others, or prohibiting them from making political contributions while allowing them to purchase two $500-per-plate tickets (but not three $50-per-plate tickets) to a political dinner.

"It is difficult to imagine how the State could even begin to contend that this Rule is 'narrowly tailored' under the strict scrutiny test that applies here," Mr. Emery wrote.

Mr. Emery said that if the state is serious about ensuring judicial integrity, it should bar candidates from accepting campaign donations from attorneys and litigants who appear before them. But, he observed, it does not.

The commission's administrator and counsel, Robert H. Tembeckjian, noted that the entire panel agreed that Raab governs and that the rules remain intact.

"Whatever philosophical differences there may be within the commission on this issue, the essential message here is that the commission members are unanimous on the obligation to enforce the mandate [of the] Court of Appeals," Mr. Tembeckjian said.

"The Court has upheld the constitutionality of the New York rules limiting judicial campaigns. The Commission will continue to enforce those rules. And judicial candidates would be wise to adhere to them."

Charles G. Geyh, a professor at Indiana University School of Law in Bloomington and a reporter to the American Bar Association (ABA) Joint Commission to Review the Model Code of Judicial Conduct, said very few state judicial codes contain an "announce clause" analogous to the one stricken in White. Consequently, it remains something of a mystery whether White affects states like New York.

"No one knows where this is going," Mr. Geyh said. "We've got a 5-4 decision" in White. "Most institutions that are comfortable with their rule structure are digging in, and that is what I think New York is doing."

In any case, Mr. Geyh said, White and its backlash have created an environment where most states would be well advised to review their restrictions on judicial conduct. Barbara E. Reed, a Washington-based consultant on judicial independence and former director of the courts project with the Constitution Project, said she was struck by the unusual ardor of the concurring opinion.

"I was shocked by the vehemence of Emery's opinion," she said. "I guess this is just another indication of how contentious this issue will be until the Supreme Court has ruled on every singe conceivable aspect of political or elective activity by judges."

Luke Bierman of the ABA judicial division in Chicago said it is rare for members of a watchdog panel to criticize court precedent that binds them.

"Standard operating procedure in New York is to be very collegial, so for Emery to write in that [tone] is out of character," he said.

Mr. Bierman said the critical issues at stake - free speech versus judicial integrity - inevitably raise passions.

"This gulf represents a divide over how the judiciary is viewed in our country," he said. "On the one hand are those who see judges as different and think they should be treated different from the political branches. On the other hand is a view that if we are going to select judges in a political process, judges must be part of that process."

Mr. Emery, reached by telephone yesterday, declined to comment. "I think the opinion speaks for itself," he said.

Yesterday's concurrence was Mr. Emery's first written opinion since joining the commission on April 1. He was appointed by Senate Minority Leader David Paterson, D-Manhattan.

Ms. DiPirro was appointed this year by Governor George E. Pataki. She is president of the Chamber of Commerce in Amherst, where Justice Farrell presides.

Mr. Coffey, a partner at O'Connell and Aronowitz in Albany, was appointed in 1995 by Senate Majority Leader Joseph L. Bruno, R-Rensselaer County. Unlike the other two, Mr. Coffey was on the commission when it decided Raab, a determination he did not question at the time but now says was wrong.

- John Caher can be reached at jcaher@amlaw.com.