Spargo Loses On Judicial Speech Issue
by Johjn Caher
New York Law Journal
12-13-2004

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ALBANY - A judge in Westchester County on Friday upheld the constitutionality of New York's restrictions on judicial speech, clearing the way for the Commission on Judicial Conduct to resume its pursuit of Albany Supreme Court Justice Thomas J. Spargo.

Supreme Court Justice Nicholas Colabella said he was bound by a decision by the state Court of Appeals that said the Code of Judicial Conduct does not violate the U.S. Constitution, rather than the opinion of a federal district judge that it does. The case is Spargo v. New York State Commission on Judicial Conduct, 5336-04.

The decision will be published Thursday.

The effect of his ruling is that the Commission on Judicial Conduct is now free, pending an appeal, to pursue Justice Spargo on multiple charges of misconduct, many of them involving political activity.

Justice Spargo is accused of:

• Doling out doughnuts, bar drinks, coupons for gasoline, pizzas and cider to potential voters while campaigning for Berne Town Justice in 1999.

• Accepting as a client Albany County District Attorney-elect Paul A. Clyne while as a part-time Berne justice and full-time elections lawyer he was presiding over criminal cases prosecuted by Mr. Clyne's office. It is alleged that Justice Spargo did not disclose to the defense his relationship with Mr. Clyne.

• Taking part in a political demonstration during the 2000 Florida presidential vote dispute. At the time, Justice Spargo was both a part-time town justice, an elections lawyer and consultant working for the Bush/Cheney campaign.

• Giving a speech to the Monroe County Conservative Party in 2001 and seemingly endorsing the organization.

• Paying two delegates to the 2001 judicial nominating convention $5,000 each for helping him secure a cross endorsement to run for Supreme Court. Justice Spargo was elected without opposition.

• Soliciting donations from attorneys appearing in his court to cover legal expenses in his battle with the Commission on Judicial Conduct.

Justice Spargo generally admits most of the allegations. However, he insists that his relationship with then District Attorney-elect Clyne was properly disclosed and fervently denies that, in effect, he shook down lawyers who had matters pending in his court. He also contends that the delegates whom he paid $5,000 each were appropriately compensated campaign consultants.

The Albany judge has been challenging the speech-restrictive provisions of the code for about two years, relying heavily on the U.S. Supreme Court's 2002 decision in Republican Party of Minnesota v. White, 536 US 765. That divided opinion invalidated a Minnesota Code of Judicial Conduct rule barring candidates from announcing their views on disputed political or legal issues, the so-called "announce clause."

Since White was decided, states have been wrestling with its implications.

No Interference

Last year, Northern District Judge David N. Hurd found that New York's code was unconstitutionally vague and violated judicial candidates' free speech rights.

The U.S. Court of Appeals for the Second Circuit, without ever reaching the merits, cited the Younger doctrine, which sharply limits the power of federal courts to interfere in state court proceedings. Younger v. Harris, 401 U.S. 37, (1971). Judge Hurd should have abstained from exercising jurisdiction, the Second Circuit said.

The state Court of Appeals addressed the issue last year in Matter of Raab,100 NY2d 305.

The Court decided that New York's judicial conduct rules do not violate White since they do not contain an "announce clause" analogous to Minnesota's and that the restrictions on political activity further a legitimate governmental aim - fostering an impartial judiciary.

Justice Colabella became involved in the debate when Justice Spargo sought a writ of prohibition to enjoin the Commission on Judicial Conduct. from proceeding against him.

Justice Spargo alleged in state court, as he did in federal court, that the rules are unconstitutionally vague and that they violate his right of free speech. He claimed that the conduct commission is constitutionally suspect and that its policies and procedures trample the due process and equal protection rights of judges whom it targets.

All of those claims were rejected by Justice Colabella.

The White Plains judge said he is bound by Raab and the Court of Appeals' ruling that the code does not run afoul of White. He rejected Justice Spargo's claim that the rules, which bar "inappropriate political activity" and "partisan political activity," are so general and vague that no one can know for sure what conduct is permitted or prohibited.

"Although [the relevant portions of the Code of Judicial Conduct] do not specify in detail every possible ground of misconduct to which they could apply, nevertheless the language challenged . . . has a common understanding, particularly in light of the generally known high standards of conduct expected of the judiciary," Justice Colabella wrote.

Restriction Held to Be Clear

Justice Colabella said the speech-restricting clause "is not so vague that it could not be understood by a person of ordinary intelligence or could be arbitrarily enforced." He said a judge seeking guidance can easily obtain an opinion from the Committee on Judicial Ethics.

Justice Spargo's challenge to the existence of the Commission on Judicial Conduct also failed. The claim was based largely on the fact that the commission functions as both an investigatory and adjudicatory agency.

"[T]he mere fact that the referee is appointed by the Commission does not result in a denial of due process," Justice Colabella held.

Finally, Justice Colabella declined to rule on a substitution of counsel issue.

Several months go, Justice Spargo retained attorney E. Stewart Jones Jr. of Troy. The commission is seeking to bar Mr. Jones on the grounds that he is a witness to one of the pending charges - that Justice Spargo solicited funds from attorneys to pay for his defense.

The commission argues that Mr. Jones has an obvious conflict of interest and accuses Justice Spargo of bringing him into the case solely to interfere with and delay proceedings. Mr. Jones, who contributed to Justice Spargo's defense, maintains that his testimony is purely exculpatory and supports the defense of his client.

Justice Colabella said that since the application for substitution of counsel is pending, the matter was not properly before the court.

State Official Predicts Appeal

Robert H. Tembeckjian, administrator and counsel to the Commission on Judicial Conduct, said he anticipates an appeal. He will oppose any effort by Justice Spargo to stay Justice Colabella's decision pending appeal and further delay this matter, he said.

"In state court as well as in federal court, the commission has prevailed in legal proceedings initiated by Judge Spargo," Mr. Tembeckjian said. "There are now no injunctions or other legal impediments to our going forward with a disciplinary hearing."

Justice Spargo said he had not yet seen the decision and declined comment.

His attorney, Mr. Jones, also had not seen the determination as of Friday evening. However, Mr. Jones said he was initially inclined to defend the matter before a commission referee rather than pursue an appeal to the Third Department.

'Take Them Head-On'

"I obviously have to talk to Judge Spargo, but I am not persuaded there is anything on the merits that justifies removal of Judge Spargo or any other judge," Mr. Jones said. "My view is, let's take them head-on and meet them in the arena and get the hearing done. If we get a fair, balanced outcome before an impartial referee, Tom Spargo should be fine."

The commission was represented by assistant solicitors general Edward Lindner and Robert H. Easton.

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