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In its first thorough constitutional examination of New York’s judicial conduct rules in the wake of the White and Spargo cases, the state Court of Appeals Tuesday held that the speech-restrictive sections strike an appropriate balance between the First Amendment interests of judicial candidates and the due process rights of litigants. The court decided two closely watched Commission on Judicial Conduct cases – Matter of Watson, 78, and Matter of Raab, 91 – and scrutinized the Code of Judicial Conduct in the light of recent federal court rulings. Although the court did reduce the sanction in Watson from removal to censure while upholding the censure in Raab, its overall support for the Code of Judicial Conduct is far more significant than the result in any particular matter, observers agreed. It decided that New York’s rules do not violate the U.S. Supreme Court’s decision in Republican Party of Minnesota v. White, 536 U.S. 765 (2002), because they are narrowly drawn to meet a legitimate state interest, namely assurance that judges are free of political bias or the perception of it. Also, without direct reference to Northern District U.S. Judge David N. Hurd’s ruling in Spargo v. Commission, 244 F.Supp 2d 72 (2003), the court strongly suggested the code is sufficiently specific to survive a vagueness challenge. The judges also left no doubt that a sanctioned judge has an appeal as of right to the court of appeals. That is an important declaration, since Hurd’s uncertainty about appeal rights was the sole basis for refusing abstention and allowing the Spargo matter to remain in federal court. However, while the view from Albany is now clear, it remains uncertain what influence Tuesday’s rulings will have on the 2nd U.S. Circuit Court of Appeals, which will hear the Spargo appeal later this year. A ruling on the merits would set the stage for the Supreme Court to revisit White, but that opportunity will not come if the 2nd Circuit rules against Spargo on the abstention doctrine. “We certainly are going to have more open judicial campaigning than in the past, but we all expected that as a result of White,” said Gerald Stern, administrator and counsel to the Commission on Judicial Conduct. “The impact [of Tuesday's rulings] is to remind judges that they cannot take their positions to the point where they become pledges or promises. . . . It upholds the most important part of the rules governing campaign speech.” Tuesday’s decisions involved Lockport City Judge William Watson and Nassau County Supreme Court Justice Ira J. Raab, both of whom were sanctioned for violating the rules against political conduct. The court salvaged the career of Watson, a young judge in his early 30s, and virtually ensured that Raab, who is 68 and nearing retirement, will leave the bench with a tarnished record. However, while both judges remain in robes, the court warned that the conduct they engaged in came perilously close to grounds for removal, and effectively warned others to tread cautiously in the era of more open judicial electioneering. Political Activity Watson’s matter came before the commission when, shortly before a primary, a political opponent filed a complaint. At the time, Watson was an assistant district attorney in Niagara county who had taken a leave to seek a city court judgeship in Lockport. He challenged two incumbents in a primary. During the campaign, Watson repeatedly made remarks evincing a pro-prosecution bias. He wrote to law enforcement, urging them to “put a real prosecutor on the bench,” and said the city needed a judge who would “assist” authorities in their effort to combat crime. He wrote letters to the Lockport Union-Sun & Journal, a daily newspaper, implicitly blaming the local judiciary for an alleged increase in drug crime and promising to make Lockport an unappealing venue for out-of-town dealers to ply their trade. Watson also published advertisements making similar remarks. While Watson was pending before the commission, the Supreme Court decided White. In that decision, the justices found unconstitutional a clause in the Minnesota judicial conduct code that barred candidates from announcing their views on disputed legal or political issues. The following month, the Court of Appeals said in Matter of Shanley, 98 NY2d 310 (2002), that it was not misconduct for a judicial aspirant to refer to herself as a “law and order candidate.” In the Watson case, a divided Commission on Judicial Conduct said the Lockport judge should be removed from office and barred from the judiciary. The case was before the Court of Appeals when Hurd held in Spargo that the speech-restrictive provisions in the Code of Judicial Conduct were too vague to survive constitutional inspection. Raab’s case also involved political activity and code provisions that were constitutionally suspect in light of White and Spargo. The Long Island judge was cited for giving $10,000 to the Nassau County Democratic Committee to cover expenses related to his unsuccessful 1995 campaign for Supreme Court, an allegedly improper political contribution, since there were no records or receipts. Raab also was found guilty of misconduct for helping at a Working Families Party phone bank when he was a district court judge and was seeking the party’s support for a Supreme Court race, for making calls on behalf of a county legislative candidate, and for taking part in a political party candidate screening session. Additionally, Raab was accused of threatening an attorney who had gotten one of his decisions overturned on appeal, remarking that he had a “long memory” and implying he would exact revenge if given the opportunity. Tuesday, the Court of Appeals issued separate per curiam decisions in Watson and Raab. In Watson, attorney Terrence M. Connors of Connors & Vilardo in Buffalo focused on the severity of the sanction rather than the constitutionality of the code. “Our primary focus was to preserve his judgeship, and I am pleased we were able to do that,” Connors said. “For us, the issue of the constitutionality of the rules was really secondary.” If Connors had relied on the constitutional argument, he clearly would have lost. As it did in Raab, the Court of Appeals said New York’s code simply does not fit within the strictures of White. “New York’s [rules] do not include a provision analogous to Minnesota’s ‘announce clause,’” the unanimous court said. “The pledges or promises clause in this case is significantly different from the announce clause in that it does not prohibit judicial candidates from articulating their views on legal issues.” However, the court left no doubt Watson’s behavior constituted misconduct. And the court made plain that although it has never before removed a judge for campaign misconduct, “our decision in this case should not be interpreted to suggest that violation of campaign rules can never rise to a level warranting removal.” While the end result was a career-salvaging victory for Watson, Stern and the commission also garnered a substantial win with the court’s conclusion that New York’s restrictions on political pledges and promises – “essential to maintaining impartiality and the appearance of impartiality in the state judiciary” – is “sufficiently circumscribed to withstand exacting scrutiny under the First Amendment.” In Raab, attorney John R. Cuti of Emery Cuti Brinckerhoff & Abady in Manhattan relied heavily on White and the constitutional claim. The court rejected that argument, drew a clear distinction between the New York conduct rules and those stricken in White, and addressed at length the need to balance the free speech rights of judicial candidates with the due process rights of litigants. “Not only must the state respect the First Amendment rights of judicial candidates and voters but it must simultaneously ensure that the judicial system is fair and impartial for all litigants, free of the taint of political bias or corruption, or even the appearance of such bias or corruption,” the court said. “In our view, the rules at issue, when viewed in their totality, are narrowly drawn to achieve these goals.” Deep in the decision, the court comments on Raab’s $10,000 reimbursement or contribution to the Democratic Party, with a remark that indirectly addresses an issue in the Spargo matter. Among the charges the commission brought against Albany Supreme Court Justice Thomas J. Spargo were allegations that he had hired as political “consultants” people who were in a position to help him garner a ballot line. “Needless to say,” the court said, “the state’s interest in ensuring that judgeships are not – and do not appear to be – ‘for sale’ is beyond compelling. The public would justifiably lose confidence in the court system were it otherwise and, without public confidence, the judicial branch could not function.” Cuti said Raab will seek leave to the Supreme Court. “It is unconstitutional to require a judge to run for office and then strip them of the First Amendment rights that other office seekers enjoy,” Cuti said. “The rules that the Court of Appeals has upheld permit judges to accept campaign contributions from lawyers and to attend overtly political fund-raisers . . . but at the same time forbid judges from engaging in the most basic forms of political expression, such as supporting other candidates for office.” Robert H. Tembeckjian argued for the commission in the Raab case. Solicitor General Caitlin J. Halligan appeared as amicus curiae in both cases to support the ethics code. This article originally appeared in the New York Law Journal , a publication of American Lawyer Media.

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