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A U.S. judge in Albany, N.Y., on Thursday delivered a body blow to the New York State Judicial Conduct Commission’s power to regulate the political activities of judges. Judge David N. Hurd, ruling in a challenge brought by Albany Supreme Court Justice Thomas J. Spargo, struck all specific prohibitions on judicial activity contained in the New York Code of Judicial Conduct as a prior restraint on protected First Amendment activities. Perhaps even more significantly, Hurd found unconstitutionally vague broad provisions of the code lodged against Spargo for failing to maintain “high standards of conduct,” and requiring the judge to promote “public confidence in the integrity and impartiality of the judiciary.” Robert H. Tembeckjian, the deputy administrator of the conduct commission, said the decision will be appealed. He added that the commission is in the process of determining how many cases are directly affected by the invalidation of rules proscribing political activities by judges and candidates for judicial office. Tembeckjian added that virtually every case brought by the commission raises claims under the broad rubrics of “high standards” and “public confidence,” which were also struck by Judge Hurd. But, aside from political activity cases, Tembeckjian said, most of those cases can proceed based on other code sections, which are usually alleged in tandem with the broader provisions. Justice Spargo’s lawyer, David F. Kunz, hailed the decision as freeing judges “to publicly express opinions on legal and political issues” so that “no longer will voters simply select candidates by party affiliation.” Spargo, who was a well-known election lawyer before being elected a part-time town justice in 2000, was accused by the commission of engaging in a wide range of proscribed political activities — such as handing out free cider and doughnuts at a campaign event — in connection with both his 2000 Town Justice campaign and his successful campaign the next year for Albany Supreme Court. Last October, Spargo sued to block the commission from starting a hearing into the charges, which had been scheduled for Oct. 21. Thursday, Judge Hurd permanently enjoined the commission from moving forward with the hearing in all respects except for one that did not implicate any of the code provisions he found unconstitutional. Pending Hurd’s ruling, the commission had been temporarily barred from proceeding with the hearing. The one charge that the ruling permits to proceed accuses Justice Spargo of presiding over criminal cases while he was Berne Town justice without disclosing to the defense that he had handled election-related legal work for the Albany County district attorney-elect and was owed $10,000. While Hurd struck allegations relating to the broad provision contained in code sections 100.1 and 100.2, he allowed the failure-to-disclose charge to proceed based upon other provisions that Spargo did not challenge as unconstitutional. Hurd’s ruling, however, bars the commission from moving to sanction Spargo for a wide range of alleged improper activities including: � Participating in what the commission described as a “loud and obstructive demonstration” in Florida “with the aim of disrupting the recount” during the tense days while the outcome of the Bush-Gore 2000 presidential contest hung in the balance. � Buying drinks, doughnuts, pizzas, coffee and gasoline for potential voters while campaigning for Berne Town justice. � Authorizing his supreme court campaign committee to pay $5,000 in political consulting fees each to a judicial nominating convention delegate from Democratic and Independence parties. (Spargo won the uncontested election with cross-endorsements.) The code provisions regulating political activities that were struck by Hurd bar judges from participating in campaigns other than their own, attending political gatherings, endorsing or opposing other candidates, and attending political gatherings (Code � 100.5). NO COMPELLING INTEREST Judge Hurd struck those provisions after finding that the state had failed to articulate a compelling reason to uphold a prior restraint on speech. Essentially, Hurd reasoned that once the state required judges to enter the political process to win their seats on the bench, it could not turn around and bar them from other types of political activities. While preserving the “independence of the judiciary” is no doubt a compelling state interest, he wrote in Spargo v. New York State Commission on Judicial Conduct, 1:02-1320, that end is not furthered by barring judges from association “with a larger entity such as a political party.” “Independence,” he wrote, “means being outside the control or influence of another.” But, he reasoned, if involvement in political activity compromises a judge’s independence, then running for office once would not impede “the making of independent judgments any less than current participation in political activity might.” Participation in political activity, he analogized, is really no different from being friendly with a neighbor who ends up involved in litigation that is assigned to the judge. In both instances, Hurd reasoned, the judges should recuse themselves if their independence would be questioned. Justice Spargo was represented by Kunz and George J. Szary of DeGraff, Foy, Holt-Harris & Kunz. The conduct commission was represented by Assistant Attorneys General Patrick MaCrae and Senta Suida.

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