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If there was any question whether the New York Court of Appeals considered itself bound by a federal district court ruling striking down some provisions in the Code of Judicial Conduct, that issue was quashed Thursday when the judges in Albany, N.Y., answered with a resounding “no.” In a per curiam opinion, the court unanimously rejected arguments that it is tied by U.S. District Judge David N. Hurd’s decision in Spargo v. Commission, 244 F Supp 2d 72, and removed Brooklyn Supreme Court Justice Reynold N. Mason from the judiciary. Although it did not specifically deem constitutional the provisions that Hurd said are unconstitutional, the court upheld charges against Mason that were based on those sections of the code. Thursday’s decision in Matter of Mason is particularly timely since next week the court will hear two other appeals — Matter of Raab and Matter of Watson — where disciplined judges cite Hurd’s opinion striking as unconstitutionally vague some provisions restricting speech. Now, it seems apparent that the Court of Appeals is not going to follow the federal district court. Also Thursday, the court removed Yonkers City Court Judge Edmund G. Fitzgerald Jr. from the bench and established precedent that a lawyer-judge who is disbarred is automatically unfit for judicial office. Additionally, the court accepted amicus briefs from five judicial advocacy organizations, all urging it to uphold the sanctions in the Raab and Watson matters. Justice Mason, the first Caribbean-born attorney ever elected to supreme court in New York state, was targeted by the Commission on Judicial Conduct for improperly subletting a rent-controlled apartment and misusing his attorney escrow account. The charges focused on Mason’s conduct as a practicing attorney, but after he was sitting as a New York City Civil Court judge. Some of those charges involved the provisions stricken by Judge Hurd. Those provisions generally require judges to maintain high standards and behave in a manner consistent with judicial office and the appearance of integrity. In its decision Thursday, the court noted that Mason did not raise a constitutional challenge to the Code of Judicial Conduct before the commission or in his brief to the Court of Appeals. “In any event,” the court said Thursday, “we are not bound by the federal district court’s decision.” On the merits, the court observed that abuse of an attorney escrow account is a disbarable offense. It said Mason’s commingling of funds and repeated use of the escrow account to pay personal expenses continued after he took office in 1995. “This misconduct was significantly compounded by petitioner’s persistent failure to cooperate with the Commission investigation and his marked lack of candor as evidenced by the inconsistent and evasive explanations he offered at differing points in the proceeding,” the court said. The court went out of its way to declare its independence of the commission, a response perhaps to the allegations of critics and insinuations of Judge Hurd that it is ill-equipped to review constitutional challenges by the agency. While the court acknowledged that it is limited to reviewing the record as it was developed before the commission, “we note that this Court does not merely echo the Commission’s analysis but conducts its own plenary review of the facts and law.” ALLEGED LEAK That remark came in the context of a late claim by Justice Mason that the commission process was compromised and possibly corrupted by an alleged leak. After the commission issued its determination, Mason moved to reopen the proceeding based on information he possessed at the time of the hearing but chose not to bring forth. The information, contained in an affidavit submitted by Mason’s attorney, indicated that prior to the determination, a Brooklyn Democratic political leader was tipped off that the judge would be removed from office and that the party should begin looking for a replacement. According to the affidavit submitted by Paul T. Gentile of Gentile & Dickler in Manhattan, while the disciplinary matter was pending, someone alerted Jeffrey C. Feldman, executive director of the Brooklyn Democratic organization, advising him that Justice Mason “is out of here” and suggesting that he “start finding a replacement.” Gentile claimed that Feldman had inside information, which he then relayed to Brooklyn Supreme Court Justice Richard D. Huttner, who warned Mason. He suggested Justice Mason’s removal was pre-ordained, and therefore the result of a biased process. The Court of Appeals dismissed Gentile’s allegations as “triple hearsay.” The allegations, even if credible, are beyond review, the court said, since it is clear that Mason knew of the supposed leak prior to appearing before the commission and opted not to raise the issue. Gerald Stern, executive director and counsel to the commission, said Thursday that based on Gentile’s allegations he recently undertook his own investigation. Stern said he requested affidavits from both Huttner and Feldman — although he lacked subpoena power to compel affidavits — in order to determine if the commission had been compromised. Justice Huttner, in his affidavit, admitted he had a conversation with Feldman where the political leader said he was “told to look for another judge,” and that he relayed that information to Mason. He said he did not know how Feldman had learned that Mason’s judicial career was in jeopardy. Feldman, in his affidavit, said his comments to Huttner were based on courthouse scuttlebutt and news reports. “At no time did I, or anyone on my behalf, ever communicate with a member or employee of the commission on Judicial Conduct regarding Justice Mason or any investigation of him,” Feldman said. AUTOMATIC REMOVAL Matter of Fitzgerald centered on whether disbarment automatically warrants removal. Judge Fitzgerald took office in 2000, the same year he was disbarred by the Appellate Division, 2nd Department, for mismanaging his escrow account. “We decline to accept petitioner’s position, which would allow one qualified for judicial office when elected to continue serving absent the very qualification deemed a constitutional prerequisite to taking the bench,” the court said in a per curiam opinion. Robert H. Tembeckjian of Manhattan appeared for the commission, and Hal R. Lieberman of Manhattan argued for Judge Fitzgerald. ORAL ARGUMENT The Watson and Raab cases, both scheduled for oral argument on Wednesday, have attracted considerable outside interest in light of Judge Hurd’s finding in Spargo, and the U.S. Supreme Court’s decision last year in Republican Party of Minnesota v. White, 122 S.Ct. 2528. In White, the Supreme Court said that judicial candidates have a free speech right to “announce [their] views on disputed legal or political issues.” The scope of that decision is unclear, and states, judges and disciplinary agencies across the country are uncertain whether or how jurists and judicial candidates can be restrained from making political comments. With Watson and Raab, the Court of Appeals becomes one of the first courts of last resort to consider the implications of the White ruling. Watson involves Lockport City Court Judge William Watson, who is targeted for removal for making blatantly pro-prosecution remarks during his campaign for office. The commission alleges that Watson created the impression that he would use his position to advance a tough-on-crime political agenda and that he would not be impartial. Raab involves Nassau County Supreme Court Justice Ira J. Raab, who was censured for making threatening remarks to an attorney, attending political gatherings, actively campaigning for a candidate by working at a phone bank and contributing $10,000 to the Nassau County Democratic organization. Thursday, the Court of Appeals granted amici curiae status to the Brennan Center for Justice at New York University School of Law and the Ad Hoc Committee Dedicated to an Independent Judiciary. Signing on to the Brennan Center’s brief are three other organizations: the Fund for Modern Courts, Democracy South, and Campaign for People. The amici urge the court to uphold the commission, citing the unique role of the judiciary and arguing that the speech restrictions in the Code of Judicial Conduct are narrowly tailored and do not violate White. “A failure to uphold the Commission’s decisions will transform the judiciary very simply into another legislature, where judges can be partisan, actively campaigning via result-oriented platforms and donating money to political parties,” according to the brief filed by the Ad Hoc Committee, a Houston organization chaired by former Appellate Division, 1st Department, Justice Bentley Kassal, now of counsel at Skadden, Arps, Slate, Meagher & Flom in Manhattan.

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