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Two years ago, the U.S. Supreme Court launched a national debate over what candidates for judicial office should be able to say on the campaign trail. Today, the high court will consider a petition from a controversial New York judge who wants to continue and expand the debate, but has been thwarted by procedural obstacles in courts below. This case, Spargo v. New York State Commission on Judicial Conduct, 03-1273, is one of dozens the court will review at its closed conference to determine whether they should be added to the docket for the fall term. In Republican Party of Minnesota v. White, the Supreme Court in 2002 struck down a Minnesota canon of judicial conduct that prohibited judges and judicial candidates from announcing their opinions on political and legal issues. For the majority, Justice Antonin Scalia wrote that the code section “burdens a category of speech that is ‘at the core of our First Amendment freedoms’ — speech about the qualifications of candidates for public office.” Albany, N.Y., Supreme Court Justice Thomas Spargo hopes to use this decision to his advantage in his fight against state disciplinary charges filed against him in 2002 by the Commission on Judicial Conduct. According to opinions from the lower courts, Spargo was charged under New York’s judicial conduct rules regarding judicial independence, impartiality and unauthorized political activity for actions both on the campaign trail and while in office. During his 1999 campaign for town justice in Berne, N.Y., Spargo allegedly solicited potential voters by offering gasoline coupons and food. Additional charges involved Spargo’s subsequent tenure as town justice, when he attended a demonstration against the 2000 presidential election vote recount in Florida and a Conservative Party fundraiser in New York. The final charge involved payments made by Spargo to campaign workers and consultants who would allegedly help to ensure that he would run unopposed for the state Supreme Court in 2001. Two of these payments went to the co-petitioners in the case before the Supreme Court — Jane McNally, a Democratic supporter, and Peter Kermani, chairman of the Albany County Republican Party. In response to these charges, Spargo alleged that the code violated his free speech and association rights by its direct impact on him as a candidate and as a judge. McNally and Kermani took Republican Party v. White a step further, however, and alleged that the code prevented them as citizens from publicly supporting a justice or a candidate for fear that the justice or candidate would be sanctioned because of their support. Spargo and his fellow petitioners succeeded in persuading a federal district judge in the Northern District of New York that sections of the Code of Judicial Conduct were unconstitutionally vague. But the 2nd U.S. Circuit Court of Appeals refused to hear the case on its merits. In a decision written by Judge Chester Straub, the appeals panel reversed on the basis of the 1971 case Younger v. Harris. That decision held that a federal court cannot hear a case when the plaintiff is involved in a pending state proceeding that involves an important state interest. Spargo challenges the “ Younger abstention” ruling, in part because it leaves McNally and Kermani — who were not directly involved in the state proceedings against Spargo — without a forum to make their First Amendment claims. In a petition written by his lawyer David Kunz of the Albany, N.Y., firm DeGraff, Foy, Kunz & Devine, Spargo also asserts that the Younger issue should not be allowed to delay consideration of the “flagrant and patent unconstitutionality” of the New York judicial code provisions in light of the ruling in White. In reply, New York Solicitor General Caitlin Halligan argues that the panel’s ruling on the Younger issue is valid because the claims made by McNally and Kermani are “‘inseparable’ and ‘derivative’ of Spargo’s.” She also defends the New York rules at issue as “fully constitutional” and distinguishable from those at issue in White. OTHER CASES UP FOR REVIEWAmerican Trucking Associations Inc. v. Michigan Public Service Commission, 03-1230. Whether a flat tax on trucks in Michigan, regardless of whether a truck travels interstate or solely intrastate, is valid under the commerce clause. � Huffman v. Frazier, 03-1382. Where there is a charge of ineffective assistance of counsel, may a federal court in a habeas proceeding impose rules of conduct governing the trial counsel’s strategic choices beyond those set forth in Strickland v. Washington. � Rousey v. Jacoway, 03-1407. Whether and to what extent Individual Retirement Accounts are exempt from bankruptcy estates. This column seeks to identify cases on the Supreme Court’s conference agenda that are leading candidates for Supreme Court review or that raise significant national issues. Thomas Goldstein of Washington, D.C.’s Goldstein & Howe selects these cases from the many petitions filed based on several factors, including whether lower courts have split on the issues presented. He does not otherwise participate in the preparation of this column. Goldstein represents the petitioner in Rousey v. Jacoway.

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