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A Feb. 20 federal court decision striking key speech-limiting provisions of the Code of Judicial Conduct is having major repercussions statewide, leaving in its wake considerable confusion over what judges can and cannot say or do while jeopardizing several pending investigations by the Commission on Judicial Conduct. Since Northern District of New York Judge David N. Hurd struck as facially unconstitutional restrictions on the political activity of judges and judicial candidates, a judge in Troy, N.Y., has obtained an order stopping a commission probe in its tracks. Two judges — one upstate and one downstate — who were cited by the commission for their political activities are aggressively pursuing challenges. Meanwhile, several investigations are in legal limbo as the stricken provisions are part of virtually every complaint filed by the commission. “Judge Hurd’s decision affects so many of our cases that we are asking ourselves if we can even investigate a judge for off-the-bench conduct,” Gerald Stern, the commission’s administrator and counsel, said Thursday. Last month, Hurd shocked the commission by striking down several sections of the Code of Judicial Conduct. His ruling came in the case of Albany Supreme Court Justice Thomas Spargo, a former elections lawyer who continued to practice as an attorney and Republican political consultant while sitting as a part-time village justice and while seeking the supreme court position. When the commission came after Spargo, the well-known and feisty judge took on the commission and scored an unprecedented victory. Hurd relied largely on the U.S. Supreme Court’s controversial ruling last year in Republican Party of Minnesota v. White, 122 S.Ct. 2528, where a deeply divided Court said judicial candidates have a right to “announce [their] views on disputed legal or political issues.” The scope of that decision remains unclear, and observers say Judge Hurd took it to its logical — or, depending on their viewpoint, illogical — extreme. Among the provisions stricken by Hurd for vagueness were �� 100.1 and 100.2(A) of the Code of Judicial Conduct. Those provisions, which generally require judges to uphold the integrity of the judiciary and avoid the appearance of impropriety, are cited in nearly every complaint lodged by the Commission on Judicial Conduct. They are almost identical to ethics code provisions in several other states, as well as the Code of Conduct for United States Judges, which, of course, governs the conduct of Hurd. The decision, in the span of only a few days, sent shockwaves through the system. On Monday, New York Supreme Court Justice Louis C. Benza in Albany signed an order to show cause that bars the commission from proceeding with an action against Troy City Court Judge Henry R. Bauer. Benza observed that the commission cited, as it almost always does, the provisions struck down in federal court, and that if the agency is allowed to proceed, Judge Bauer would suffer “irreparable harm and injury.” Additionally, Benza ruled, apparently for the first time, that the commission is not exempt under CPLR 6313 from a restraining order. The ruling effectively brings to a screeching halt the investigation into Judge Bauer, pending a hearing March 21 on a permanent injunction and writ of prohibition. An appeal to the Appellate Division, 3rd Department, is in the works. At least two other commission matters are suddenly complicated by Hurd’s decision as well. One involves Lockport City Judge William J. Watson, who is targeted for removal; the other centers on Nassau County Supreme Court Justice Ira Raab, who was censured. Both were cited for their political activity under provisions that Hurd found unconstitutional, and both are now appealing to the New York Court of Appeals. Watson’s case is calendared for May 7. Raab’s has yet to be scheduled. In both appeals, the federal decision is likely to play a role, but how much of a role remains to be seen. “We believe the Spargo case evidences the clear trend in the law, especially since the landmark White decision last summer, toward open political activity and open speech in judicial campaigns,” said Timothy P. Murphy, co-counsel with the Buffalo, N.Y., law firm Connors & Vilardo in representing Judge Watson. Last month’s ruling has already had a major impact on the workings of the Commission on Judicial Conduct, according to Stern. “Right now, everything in this office is defensive,” Stern said. “We are going through all of our cases and we have to determine how broad Judge Hurd’s order is, because I just don’t know.” Stern said he has been besieged with inquiries over the last few days from attorneys seeking advice or asking the commission to back off on an investigation in light of Hurd’s decision. “I am getting calls from lawyers on behalf of political clubs and parties asking if judges are now free to say whatever they want,” Stern said. “I can’t even field all the calls; there are so many. The ramifications here are extraordinary and unprecedented. I don’t think any other state [judicial disciplinary] commission … has ever been stopped like us.” The state plans to appeal Hurd’s ruling to the 2nd U.S. Circuit Court of Appeals. In addition, Justice Spargo is considering a cross-appeal to argue that judicial candidates have an equal protection right to partake in the same activities as other politicians. Hurd rejected the equal protection argument, implying that reasonable and carefully structured limits to judicial speech may pass constitutional muster. “We are going to preserve our rights to raise the equal protection argument if the matter is appealed to the 2nd Circuit,” Justice Spargo’s attorney, David F. Kunz of DeGraff, Foy, Holt-Harris & Kunz in Albany, said Thursday. “What I think [Hurd] has done is clearly indicated that judges have a much greater right to speak out on legal and political issues. It is my opinion that this will require the commission to review and revise their rules within the ambit of what the court has said.” INCREASING TENSION Hurd’s opinion comes at a time of increasing tension over judicial campaign conduct and a raging nationwide debate over judicial selection. Even before the White decision, leaders in several states were bemoaning the intrusion of modern politics — massive fund raising, attack and issue ads, endorsements by pressure groups — into previously well-mannered judicial contests, and expressing concern that the impartiality and image of the judiciary was at stake. Observers have commented on the apparent absurdity of electing judges, and therefore making them politicians by definition, while requiring that they not behave like politicians. In New York, the Office of Court Administration (OCA) has worked with bar groups to establish conduct advisory committees at the local level. The Brennan Center for Justice at New York University School of Law recently reported on an increase in advertising in supreme court races. An OCA advisory committee is reviewing the White decision and will examine Judge Hurd’s. Additionally, Chief Judge Judith S. Kaye announced this year the establishment of a new commission to study ways of ensuring more dignified judicial campaigns. The chairman of the commission, former Fordham University School of Law Dean John Feerick, said Thursday that the group will begin its work shortly. Feerick’s commission, which was announced before the Spargo decision, expects to examine a range of issues, including public financing of judicial campaigns. He said it is too early to say what impact Hurd’s ruling would have on the work of the commission. “Obviously, we will be looking at the whole topic of judicial ethics,” Feerick said. “I would not rule out an interim report.” Justice Spargo’s alleged transgressions all involve conduct before he was a full-time judge and while he was a full-time elections lawyer and political adviser. One of the charges stems from his participation, as a paid consultant to the Bush-Cheney presidential campaign, in a boisterous demonstration for the GOP during the 2000 Florida recount. At the time, Spargo was a sitting justice in the village of Berne, N.Y. For the most part, Spargo does not deny the allegations lodged by the conduct commission. Rather, he has displayed a playful “if it walks like a duck” attitude suggesting that if the state places judicial candidates in a political orbit, it should not be surprised, nor should it object, when those candidates function as politicians. While the U.S. Supreme Court’s White ruling generated a level of attention commensurate with an opinion from the nation’s highest court, the Spargo matter has attracted considerable interest for a trial court decision. Over the past week, it has resulted in a flurry of editorial comment from publications that are usually unqualified supporters of “free speech” rights, but in this case advocate government-imposed restraint. The New York Daily News last month declared “Open Season for Courtroom Politics,” and fretted that judicial races could “become the dirtiest of mud fights.” The Poughkeepsie Journal warned last month of “Willie Horton-style ads” in judicial contests. On Feb. 24, Newsday said Hurd’s opinion shows why judges should be appointed rather than elected. On Tuesday, the Pittsburgh Post-Gazette published an editorial declaring that Hurd’s ruling “cries out for reversal,” and criticized him for expanding the “misguided decision” of the U.S. Supreme Court. And on Wednesday, The New York Times editorialized on the opinion, claiming it was “wrong on the law” and that it “threatens the integrity of the courts.” The Times found it “shocking” that Spargo, whom it described as “extremely partisan,” is on the bench at all. Even Justice Spargo’s hometown newspaper, the Albany Times Union, chimed in with a critical editorial. “Judge Hurd’s decision fails to distinguish between a judge’s right of free speech and his or her responsibility to maintain judicial decorum. … Allowing judges to roll in the political mud would be a strange way to uphold the dignity of the courts,” the Albany paper said in its Sunday editions. Spargo responded to the criticism with a characteristic chuckle. “It has to gall them that I am the standard bearer for civil liberties,” the conservative Republican said. “They just can’t take it.”

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