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Joining the chorus of critics eager to see Northern District U.S. Judge David N. Hurd reversed in his ruling on the judicial conduct code, the New York State Bar Association, along with the Suffolk County and Asian American Bar Associations, last week submitted briefs as amici curiae to the federal appellate court. The bar groups contend Hurd erred severely in February when he struck as unconstitutionally vague some speech-restrictive sections of the Code of Judicial Conduct. They, along with Attorney General Eliot Spitzer, are urging the 2nd U.S. Circuit Court of Appeals to reject Judge Hurd’s reasoning and uphold the constitutional integrity of New York’s conduct code. Judge Hurd, in Spargo v. Commission, 244 F.Supp 2d 72, struck two provisions in the Code of Judicial Conduct that generally relate to off-the-bench conduct of judges. The ruling led to a plethora of litigation in both state and federal courts where the very core of the conduct code, and the ability of the state to regulate the political activities of judges and judicial candidates, was called into question. Just this month, the New York Court of Appeals, in Matter of Watson, 78, and Matter of Raab, 91, upheld the code and, without directly referring to Spargo, strongly insinuated that the federal trial judge was far off base. That question, however, is before the 2nd Circuit. Last week, former State Bar Association President Steven C. Krane of Proskauer Rose in Manhattan filed a 5,000 word brief for the amici curiae. Signing on were current State Bar President A. Thomas Levin, Douglas J. LeRose of the Suffolk County Bar Association and Christopher W. Chan of the Asian American Bar Association of New York. Krane’s central argument is that the code serves a compelling public interest — namely, assuring that judges refrain from activities that may reveal bias or perceived bias — and that it is sufficiently specific to withstand any vagueness challenge. “[T]o ensure that respect for the judiciary is maintained, it is essential that judges be held to higher standards of conduct than members of the general public,” Krane argues. “Thus, not only must actual bias and prejudice in the system be avoided, but also efforts must be made to dispel the perception of partiality.” The provisions stricken by Judge Hurd required judges to maintain high standards of conduct, to act in a manner that promotes rather than detracts from public confidence, and to refrain from most political activity. His ruling was rooted in Republican Party of Minnesota v. White, 122 S.Ct. 2528, where the U.S. Supreme Court last year upheld the right of judicial candidates to “announce [their] views on disputed legal or political issues.” The parameters of that ruling, however, remain unclear and are being tested in Spargo and other cases. PATTERNED AFTER ABA’S CODE Krane notes that New York’s “prophylactic rules designed to preserve due process of law, in both appearance and actuality,” are patterned after the American Bar Association’s Model Code and mirror statutes in several states. He said that to the extent the rules do not directly address a particular ethical question, New York’s Advisory Committee on Judicial Ethics provides guidance and annually publishes scores of opinions. “Thus, not only is there a government-sanctioned entity available to answer judges’ questions as to the propriety of their conduct, but the [Advisory Committee] has created a substantial and growing body of precedents … to which New York judges can refer,” Krane said. It is unclear whether the 2nd Circuit will even reach the merits. Judge Hurd denied an abstention motion only after concluding that it was not clear that a judge disciplined by the Commission on Judicial Conduct had a right to review by New York’s highest court. However, in its ruling earlier this month the state Court of Appeals made abundantly clear that a judge has an appeal as of right.

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