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A committee of the Association of the Bar of the City of New York is urging the judiciary and policy makers to narrowly construe a U.S. Supreme Court decision that seemingly expanded the free speech rights of judicial candidates. The new report by the Government Ethics Committee argues that there are valid and constitutionally sound reasons for limiting the political activity of judicial candidates. However, it also called for much clearer language in the Code of Judicial Conduct to define more specifically the type of speech that is banned or discouraged. The report, “First Amendment Considerations for Judicial Campaigns,” was drafted in response to the U.S. Supreme Court’s 2002 ruling in Republican Party of Minnesota v. White, 536 U.S. 765, and its repercussions in New York. In White, a closely divided Court held that a Minnesota statute barring judicial candidates from “announcing his or her views on disputed legal or political issues” violates the First Amendment right to free speech. Following that ruling, courts nationwide have struggled to determine what restrictions can be imposed on candidates for judicial office. White led to a flurry of activity and confusion in New York last year. In February 2003, U.S. District Judge David N. Hurd declared part of the New York judicial conduct code unconstitutional in a case involving Albany Supreme Court Justice Thomas J. Spargo (see Spargo v. State Commission on Judicial Conduct, 244 F.Supp. 2d 72). But the U.S. Court of Appeals for the Second Circuit reversed solely on the abstention doctrine, and Justice Spargo recently petitioned the U.S. Supreme Court for certiorari. While Spargo was pending before the Second Circuit, the New York Court of Appeals handed down a pair of judicial conduct rulings ( In re Watson, 100 NY2d 290, and Raab v. State Commission on Judicial Conduct, 100 NY2d 305) that touched on some of the issues in Spargo and White. In Watson and Raab, the New York Court upheld the constitutionality of a pledge or promise clause � which is similar to the “announce” clause addressed in White � in the Code of Judicial Conduct. It also said New York can indeed enforce some of the political activity provisions Judge Hurd struck in Spargo. Additionally, a special commission appointed by Chief Judge Judith S. Kaye and chaired by former Fordham Dean John Feerick released an interim report Dec. 3 recommending a handful of revisions to the code. For instance, the Commission to Promote Public Confidence in Judicial Elections would make the code more specific, eliminate ambiguous language and make clear that restrictions on the speech of judicial candidates is “limited to pledges or promises that are inconsistent with the impartial performance of the adjudicative duties of the office.” It would no longer attempt to restrict speech that merely “appears” to commit a candidate to a particular position, and would instead focus on “those statements that actually commit a judge or candidate with respect to cases, controversies or issues that are likely to come before the court.” The report notes that White leaves many questions unanswered � such as whether judicial races are different from legislative races, whether the First Amendment permits greater regulation of judicial campaigns than other electoral contests, and whether a “commit” clause like the one advocated by the Feerick Commission is as constitutionally objectionable as the “announce” clause stricken by the U.S. Supreme Court. Cautious Approach Until those issues are resolved in Washington, the City Bar committee is urging a cautious approach. It suggested that the Feerick Commission report, which generally follows proposed revisions to the Model Code of Judicial Conduct adopted by the American Bar Association, “strikes an appropriate balance between free political speech and appropriate judicial conduct.” “We find that the Feerick and ABA approaches represent a positive way for those considering changes to the Code of Judicial Conduct to approach any attempts to strengthen the Code in light of the recent explosion of case law,” the City Bar committee said in its report. The committee added that while the New York Court of Appeals “has understood the delicate balance,” recent federal decisions � including Judge Hurd’s in Spargo � “have demonstrated the threat to regulations of political activity posed by an unduly expansive interpretation of White.” “We strongly urge courts at the state and federal levels to read White as applying narrowly to the announce clause, rather than as heralding the beginning of the end for valid � and invaluable � limitations on political activity by judicial candidates,” the report said. “So long as New York continues to have judicial elections, the state must have an effective way of limiting judicial campaigning and political activity so as to ensure the impartiality of the bench and the integrity of the judicial system.” Committee chair Joan R. Salzman of Manhattan said the much broader issue, which is not addressed in any detail in the report, involves judicial selection. The City Bar favors “merit” selection. However, since the state Legislature is unlikely to completely revamp the manner in which judges are selected, the association’s Special Task Force on Judicial Selection is calling for a number of reforms, such as independent screening panels. The Feerick Commission, in its final report, is expected to tackle such issues as campaign finance reform and nonpartisan elections.

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