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UTICA, N.Y. — U.S. District Judge David N. Hurd yesterday refused to stay his February ruling that shot down key provisions of the state Code of Judicial Conduct and cast a skeptical eye on the ability and willingness of both the disciplinary agency and the New York Court of Appeals to resolve constitutional challenges to the ethics code. Judge Hurd made plain that he is not backing off his earlier ruling, and that the federal courts remain the most appropriate forum for Spargo v. Commission on Judicial Conduct, 1:02-CV-1320. State officials have complained that Judge Hurd’s ruling had effectively hamstrung the Commission on Judicial Conduct since the stricken provisions, which relate generally to off-the-bench conduct, are routinely cited by the commission. In reaction to the decision, the commission and the attorney general pleaded with Judge Hurd to stay his own ruling or make it applicable only to the lead plaintiff, Albany Supreme Court Justice Thomas J. Spargo. Earlier this month, Assistant Attorneys General Patrick F. MacRae and Senta Suida advised Judge Hurd that his ruling would irreparably hinder the commission. They included in their motion an affidavit in which Gerald Stern, executive director and counsel to the commission, said the decision has handicapped the agency. Mr. Stern contends that Judge Hurd was wrong on the law and the facts, and that the matter should rightly be diverted to the state courts. Yesterday, Judge Hurd rejected all of the arguments urging him to suspend the ruling or limit its scope to Justice Spargo. Judge Hurd said he had previously made clear that the commission could proceed against Justice Spargo, and any other judge, on charges based on provisions that he did not strike down. “[T]he public interest will not be served by permitting pursuit of misconduct charges, in New York, based upon unconstitutional Code provisions,” Judge Hurd said. “Rather, the public interest of New Yorkers will be served by prohibiting the Commission from bringing misconduct proceedings that impinge upon constitutional rights, demonstrating that constitutional rights are of the highest import in New York.” The judge said he “rejected out of hand” the commission’s suggestion that it be allowed to invoke the stricken provisions against anyone other than Justice Spargo. “In other words, remove the risk of harm as to Spargo — at the same time subjecting countless others to the same harm,” he wrote. Judge Hurd said that if the state is concerned that his ruling will ultimately pressure judges to succumb to partisan political activity, it should draft conduct rules that are “narrowly tailored to serve the interest in maintaining the integrity of the judiciary (in other words, rules that do not unduly impinge upon First Amendment rights).” Justice Spargo’s case arose after the commission accused him of violating several provisions of the conduct code at a time when he was sitting as a part-time town justice, working as a full-time elections lawyer and/or running for his current office. The commission cited Justice Spargo for doling out doughnuts, pizzas and coupons for gasoline, taking part in a heated demonstration during the 2000 Florida recount (he was then a paid consultant to the Bush-Cheney campaign), giving the appearance that he bought third-party support by hiring delegates as campaign consultants, and other activities related to political activity. Justice Spargo, rather than taking the usual route of waiting for the commission to pronounce his guilt and sanction him, and then appealing to the state’s highest court — where judges challenging disciplinary determinations are almost never successful — took the agency to federal court. From the outset, there was a question of whether the matter was properly before the federal court. However, Judge Hurd rejected the abstention argument the first time around, and did so again yesterday. In his latest decision, Judge Hurd suggested that Justice Spargo has no other viable route to constitutionally challenge the code. He again said it is not certain that a judge has a right to state Court of Appeals review, even though the New York Court has never rejected a judge’s challenge to a commission determination. Judge Hurd said further in a footnote that a constitutional challenge such as Justice Spargo’s may well be outside the authority of the commission, and therefore beyond the scope of the Court of Appeals. He said that while a prosecuted judge could raise a constitutional issue at the outset, there is no incentive to pursue the claim if the referee does not recommend a sanction. “Even if the referee does recommend a sanction, a constitutional challenge would not be raised before the Commission, for history tells judges that to pursue such a challenge is fruitless because it will not even be considered, let alone addressed, by the Commission,” Judge Hurd said. Judge Hurd said that the defendants for the first time attempted to distinguish Spargo from Republican Party of Minnesota v. White, 122 S.Ct. 2528, where the U.S. Supreme Court last year said judicial candidates have a free speech right to “announce [their] views on disputed legal or political issues.” He found no significant distinction. “[I]n both cases political speech was at issue,” Judge Hurd wrote. Appearing on the motion for the plaintiffs, which include Justice Spargo and two political consultants, were David F. Kunz of DeGraff, Foy, Kunz & Devine in Albany, and former federal prosecutors Donald T. Kinsella and Daniel J. French of Green & Seifter in Albany. The commission is pursuing an appeal to the U.S. Court of Appeals for the Second Circuit. Meanwhile, next week Judge Hurd will hear the case of another Albany area judge, Supreme Court Justice John G. Connor, who is challenging the constitutionality of conduct provisions that were not addressed in the Spargo decision.

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