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A judge whose battle for judicial free speech has received widespread attention said Thursday that New York’s restrictions impede the ability of voters to make intelligent choices. Supreme Court Justice Thomas J. Spargo, who is under investigation for violating the speech-restrictive provisions in the Code of Judicial Conduct, told an Albany Law School audience that citizens cannot be true participants in a democracy if candidates are prohibited from expressing their opinions. “You and I as voters have a right to hear what it is a judicial candidate thinks is important,” Spargo said. “The government is our government. But the fact is when it comes to the judicial branch, we as voters don’t have the right to hear what some judicial candidate wants to say about why he wants to be a judge, what he would do if he got there. So we get name rank and serial number, and maybe a photo of him with his dog.” Spargo contrasted the rules for elective judges with those for appointive federal posts. He said both major party presidential candidates have made clear that they will appoint judges of particular viewpoints. Senator Charles Schumer, D-N.Y., of the Judiciary Committee, he noted, has repeatedly said that an ideological inquiry is appropriate for candidates for lifetime bench appointments. Candidates for federal judicial positions, consequently, are expected by Schumer to reveal to the Judiciary Committee their ideological leanings, and those who will not often languish before the panel. But candidates for elective office in New York are expected to keep their beliefs to themselves, Spargo said. “Why should you be allowed to articulate to a senator an answer to a difficult question about your judicial qualifications and not be able to explain to a member of the public, who might have the same concerns?” Spargo asked. He said there is no reason why judges should not be allowed to reveal their opinions on matters of public policy — citing the Rockefeller Drug Laws as an example — so long as they do not commit themselves to ruling a particular way in certain types of cases. The judge participated in a symposium where he, Wendy Weiser of the Brennan Center for Justice at New York University School of Law and Walter Weber of the American Center for Law & Justice in Washington, D.C., addressed the limits on judicial speech. OPPOSING VIEW In contrast to Spargo, Weiser said judicial speech limitations are necessary to ensure the appearance of impartiality and to maintain trust and confidence in the judicial system. The limits were significantly broadened two years ago when the U.S. Supreme Court in Republican Party v. White (536 U.S. 765) struck down a Minnesota provision that barred judicial candidates from “announc[ing] his or her views on disputed legal or political issues.” The Court suggested, however, that a rule prohibiting judicial candidates from making pledges or promises of results in specific types of cases would satisfy constitutional scrutiny. Since then, state and federal courts have repeatedly grappled with the constitutional limits on judicial speech, Weber said. But the state of the law remains unclear, especially in jurisdictions like New York that long ago excised the so-called “announce clause” from their judicial conduct codes and replaced it with a “commit clause” or similar provision that bars judicial candidates from committing to a particular position. Last month, U.S. District Judge Danny C. Reeves of the Eastern District of Kentucky struck such a clause. Reeves said a rule that bars judges “from making promises, pledges or commitments” or that “limits the candidates ability to announce his or her views” violates the First Amendment. The case was Family Trust Foundation of Kentucky Inc. v. Wolnitzek, 6:04-473-DCR. Spargo is not accused of promising any specific result in any particular case. He is being prosecuted by the Commission on Judicial Conduct for taking part in a boisterous demonstration during the 2000 presidential recount in Florida. At the time, Spargo was a part-time town judge and full-time elections lawyer and political consultant. Spargo, a Republican and former counsel to the state Republican Committee, is also under fire for speaking at a Conservative Party function, giving doughnuts and gasoline to potential voters during his campaign and paying political delegates to be consultants and help ensure he would run unopposed. Most recently, according to court records, Spargo was accused of personally soliciting contributions to his legal defense fund from lawyers with cases pending in his court. In a suit against the commission, he is challenging the constitutionality of the speech restrictions and claiming that the commission’s procedures violate the substantive due process rights of judges. Last year, Spargo convinced U.S. District Judge David N. Hurd that the speech provisions are unconstitutional. The 2nd U.S. Circuit Court of Appeals reversed Hurd on abstention grounds and never reached the merits. Now, the issue is before the state courts and working its way to the New York Court of Appeals, which has opined in Matter of Raab v. Commission, 100 NY2d 305 (2003) that the state’s rules do not violate White. COMMISSION SPLIT Even the Commission on Judicial Conduct is split over whether the speech restrictive clauses are constitutional. Last summer, in a disciplinary matter involving a judge in western New York, three members of the commission signed on to an extraordinary dissent insisting there is no way to reconcile New York’s rules with the First Amendment, no matter what the Court of Appeals says. Thursday, Spargo implied that the courts should adopt the position of the commission dissenters in Matter of Farrell, who said that if the state does not want judges acting like politicians it should not select them through partisan elections. That echoes the position of Supreme Court Justice Sandra Day O’Connor in White. In a concurring opinion, Justice O’Connor said: “If the State has a problem with judicial impartiality, it is largely one the State brought upon itself by continuing the practice of popularly electing judges.” Spargo makes no excuses for behaving like a politician when the state essentially requires him to be one in order to become a judge. However, his remarks Thursday were less defiant than prior comments. He avoided any criticism of the Commission on Judicial Conduct. Weiser said that while it might be helpful if voters knew more about the personal views of judicial candidates, “giving that information comes at a great cost to the litigants, the public, and the judicial system as a whole. There are differences between judicial offices and legislative offices that are worth defending and that to some extent campaigns for judicial office should reflect those differences.” The symposium on Issues Facing the Judiciary was sponsored by the Albany Law Review and included sessions on three topics: judicial activism; the First Amendment rights of judges; and judicial selection. The judicial activism panel featured visiting law professor Richard Lavoie of the University of Texas and Martin Edelman, professor of political science at the State University at Albany. Norman Greene, of Schoeman, Updike & Kaufman and Steve Zeidman, a professor of Law at the City University of New York, discussed judicial selection. In opening remarks, Albany Law School Professor Vincent M. Bonventre said that judges and restrictions on their speech can conceal but not eliminate factors such as political ideology and personal values. He suggested it may be healthier if judge’s viewpoints are open and obvious rather than hidden from public view. “A judicial robe is not an ideological lobotomy,” said Bonventre, faculty advisor to the Albany Law Review. “Justice [Antonin] Scalia goes to the Federalist Society and says this right-to-die stuff is absolute nonsense. Well, let’s imagine he didn’t say that to the Federalist Society. We know he believes it anyway. So what is the difference?” Spargo added: “My failure to express a particular view in a public way on something doesn’t necessary mean that I don’t have a particular view.” He suggested the electorate would be better off knowing where he stands on issues — though not on unresolved cases — than to be left guessing, wondering and suspecting.

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