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February 20, 2003


The opinion of the court was delivered by: Hurd, District Judge



Plaintiff Thomas J. Spargo ("Spargo") is currently a Supreme Court Justice for the Third Judicial District of the State of New York. He was an attorney in private practice specializing in election law before his foray into elective politics. In the fall of 1999 Spargo campaigned for election to the position of Town Justice for the Town of Berne, in Albany County, New York. He was elected and assumed that position on January 1, 2000. In 2001 Spargo, a Republican, campaigned for election to his current position. He was cross-endorsed by the Democratic, Independence, and Conservative Parties. His campaign was successful and he assumed his current position on January 1, 2002.

Plaintiff Jane McNally ("McNally") is a recently retired public service employee. She is a life-long Democrat and has been active in campaigns as well as party affairs for many years. McNally became acquainted with Spargo in the late 1980's in the course of his work regarding highly contested Democratic primary challenges. Spargo and McNally worked together frequently regarding political activities. In 2001, McNally worked with Spargo on his campaign for election to Supreme Court Justice. McNally was a delegate to the Democratic Party nominating convention that year, and she nominated Spargo for endorsement by her party. The nomination was successful and he was cross-endorsed.

Plaintiff Peter Kermani ("Kermani") is the chairperson of the Albany County Republican Party. He supported Spargo's candidacies. He indicates that he would like to invite Spargo or other judicial candidates or judicial officers to speak to his organization but feels constrained not to do so because it may subject them to sanctions.

Defendant Gerald Stern is the Administrator of the New York State Commission on Judicial Conduct ("Commission"). The administrator is a member of the bar who is appointed by the Commission and serves at its pleasure. N.Y. Jud. L. § 41(7) (McKinney's 2002). Defendant Henry T. Berger is the chairperson of the Commission.


Spargo, McNally, and Kermani filed the complaint in this matter pursuant to 42 U.S.C. § 1983 challenging the facial and as applied constitutionality of certain sections (as described in detail below) of the New York Code of Judicial Conduct and seeking declaratory and injunctive relief. Plaintiffs' allegations stem from a Formal Written Complaint dated January 25, 2002 ("Complaint"), and a Supplemental Formal Written Complaint dated May 13, 2002 ("Supplemental Complaint"), brought against Spargo by Stern in his capacity as Administrator and Counsel to the Commission. Essentially plaintiffs allege that certain sections of the Code of Judicial Conduct infringe upon their free speech, association, and equal protection rights as guaranteed under the First and Fourteenth Amendments to the United States Constitution.

A hearing on the charges set forth in the Complaint and the Supplemental Complaint was set to begin on October 21, 2002, and continue to October 24, 2002, as agreed by the parties. In early October Spargo sought a change of venue for the hearing from New York City to Albany. The Commission did not oppose; therefore, venue was changed to Albany. As a result, the assigned Referee withdrew. A new Referee was designated on October 8, 2002. On October 10, 2002, Spargo requested an adjournment until December 2002. The Referee denied the request, indicating that the hearing would occur as scheduled. On October 15, 2002, Spargo renewed his request for an adjournment. Plaintiffs filed this action on October 17, 2002.

On October 17, 2002, an Order to Show Cause with Temporary Restraining Order signed by Hon. Lawrence E. Kahn, United States District Judge, was filed. The Temporary Restraining Order enjoined defendants from taking any action with respect to the Complaint and Supplemental Complaint. A hearing was set down for October 23, 2002, to entertain plaintiffs' motion for a preliminary injunction. The hearing was changed to October 25, 2002, upon random assignment to the undersigned. On October 25, 2002, the Temporary Restraining Order was extended by consent of the parties. Plaintiffs' motion for a preliminary injunction was set down for a hearing on November 29, 2002. An Order was issued on November 7, 2002, advancing and consolidating trial of the action on the merits with the hearing of plaintiffs' application for a preliminary injunction pursuant to Fed.R.Civ.P. 65(a). The parties were given an opportunity to object to the advancement and consolidation; however, no objections were made.

Plaintiffs' submissions in support of their motion for a preliminary injunction were filed at the time the action was initiated. Defendants filed opposition to the motion for a preliminary injunction. Plaintiffs then filed a list of proposed witnesses and exhibits for the consolidated trial. Plaintiffs also filed a reply memorandum of law in further support of their motion, along with twelve affidavits. Defendants objected to plaintiffs' presentation of witnesses at the trial. Defendants further moved in limine to preclude consideration of the twelve reply affidavits.


A. Development of the Code of Judicial Conduct

The American Bar Association ("ABA") adopted the first Canons of Judicial Ethics in 1924. Jeffrey M. Shaman, et al., Judicial Conduct and Ethics § 1.02 (3d ed. 2000). These original Canons were meant as an "ideal guide of behavior, rather than an enforceable set of rules." Id. There was no method of enforcement unless each state adopted one. By constitutional amendment in 1947, New York created a special Court on the Judiciary to hear cases of judicial misconduct or disability, and to mete out sanctions. Id. § 1.03. The only sanction available to the Court on the Judiciary was removal. Id. The Court on the Judiciary met for the first time in 1959, twelve years after it was created. Id. While apparently creating a mechanism for enforcement of the Canons of Judicial Ethics, it was ineffective in doing so.

In 1972 the ABA promulgated the Model Code of Judicial Conduct in order to specify mandatory and enforceable rules for judicial comportment. Id. § 1.02. The New York State Bar Association adopted the ABA Model Code in 1973, with some amendments. Marjorie E. Gross, Updated Rules on Judicial Conduct, 215 N.Y. L.J. 1 (May 14, 1996). Judges' conduct was also governed by the Rules Governing Judicial Conduct of the Chief Administrator of the Courts, 22 NYCRR Part 100. Id. There was still no effective mechanism for investigating and sanctioning misconduct.

In 1977, the New York State Constitution was amended to establish a Commission on Judicial Conduct ("Commission") to receive, initiate, investigate, and hear complaints regarding the conduct, qualifications, and performance of judges within the unified court system.*fn2 N.Y. Const. Art. 6 § 22 (McKinney's 2001 & Supp. 2003). This was the first effective mechanism in New York State to investigate complaints of misconduct against judges.

In 1990 the ABA promulgated the Revised Model Code of Judicial Conduct, revising some specific details and adding new specific details. Judicial Conduct and Ethics, supra, § 1.02. New York adopted a combination of the 1972 and 1990 ABA Model Codes, id., which became effective in 1996, Gross, supra.

The current New York Code of Judicial Conduct as adopted by the New York State Bar Association, comprised of five general canons of conduct along with specific rules under each canon, is set out in an appendix to the Judiciary Law, McKinney's Book 29. It is also set forth in Part 100 of the Rules of the Chief Administrator of the Courts, found in McKinney's New York Rules of Court, and is codified in Title 22 of the Official Compilation of Codes, Rules & Regulations of the State of New York.*fn3

B. The Commission on Judicial Conduct

The Commission is made up of eleven appointed members. N.Y. Jud. L. § 41 (McKinney's 2002). The initial members were appointed to terms varying from one to four years. Id. Thereafter, the member's terms were four years. Id. A combination of members of the bar, judges, and non-members of the bar comprise the Commission. Id. The Commission is authorized and directed to adopt rules to carry out its duties.*fn4 Id. § 42. Available sanctions include admonishment, censure, and removal from office "for cause, including, but not limited to, misconduct in office, persistent failure to perform his [or her] duties, [and] habitual intemperance and conduct, on or off the bench, prejudicial to the administration of justice." Id. § 44(1). A judge may also be "retired for mental or physical disability preventing the proper performance of his judicial duties." Id. Further, a judge may be suspended from office by the Court of Appeals upon its own motion or a recommendation by the Commission. Id. § 44(8).

The Commission may initiate an investigation based upon receipt of a written and signed complaint from an external source. Id. § 44(1). However, if it is determined that the complaint lacks merit on its face, it may be dismissed. Id. The complainant is always notified of the disposition. Id. § 44(11).

The Commission may also, on its own initiative, initiate an investigation with the filing of a complaint. Id. § 44(2). In the course of its investigation and hearing of a complaint (initiated either internally or externally), the Commission may "administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation and require the production of any books, records, documents or other evidence that it may deem relevant or material to an investigation." Id. § 42. During the investigation or hearing, if the Commission finds that other action is warranted, such as referral to a district attorney's office, it must refer the complaint or allegations along with supporting evidence to the appropriate authority. Id. § 44(10).

The Commission may designate a panel of three of its members or a referee, who is a member of the bar but not a member of the Commission, to carry out its duties. Id. § 43. A panel may perform any of the functions and duties of the Commission except conduct hearings and determine disposition of the matter. Id. § 43(1). A referee is "empowered to conduct hearings, administer oaths or affirmations, subpoena witnesses, compel their attendance, examine them under oath or affirmation and require the production of any books, records, documents or other evidence that the referee may deem relevant or material to the subject of the hearing." Id. § 43(2).

The hearing is not public unless the judge makes a written demand. Id. The involved judge has a right to be represented by counsel, to cross-examine the Commission's witnesses, and to present relevant evidence and witnesses. Id. A transcript is made of the hearing and kept with the Commission records. Id.

Alternatively, a hearing may be waived upon an agreement on a statement of facts, subject to the approval of the Commission. Id. § 44(5). If the hearing is waived, then the Commission makes its determination based upon the formal written complaint, the judge's answer, and the agreed statement of facts. Id.

If a referee has conducted the investigation and hearing, the Commission considers the referee's report and recommendation and determines whether misconduct has been established. 22 NYCRR § 7000.7. The Commission provides an opportunity for the submission of briefs and oral argument regarding the report and recommended sanctions. Id.

At any time after a formal written complaint is issued the Commission determines that no further action is required, it must dismiss the complaint and notify the judge of the dismissal. N.Y. Jud. L. § 44(6).

The Commission may determine, after a hearing, that the involved judge be admonished, censured, removed, or retired. Id. § 44(7). The Commission may, in the alternative, determine that the misconduct does not warrant those sanctions and instead issue "a letter of caution containing confidential comments, suggestions and recommendations with respect to the formal written complaint." 22 NYCRR § 7000.7. The Commission must forward its written determination that a prescribed sanction is appropriate along with findings of fact, conclusions of law, and the record of the proceedings, to the Chief Judge of the Court of Appeals. N.Y. Jud. L. § 44(7). A copy must also be served upon the involved judge. Id. Upon completion of service, the determination, findings of fact, conclusions of law, and record of proceedings become public. Id. The judge may accept the determination or make a written request for review to the Chief Judge. Id. If the determination is admonishment or censure and the judge accepts it or fails to request a review then the Commission will issue the admonishment or censure. Id. If the determination is removal or retirement and the judge accepts it or fails to request a review then the Court of Appeals orders the removal or retirement. Id.

Upon acceptance of review by the Chief Judge, the Court of Appeals reviews the Commission's findings of fact and conclusions of law on the record of the Commission proceedings. Id. § 44(9). The record to be reviewed consists at a minimum of all complaints, whether formal or informal or merely initiatory, except that [the involved judge] or the Commission may apply to the court for good cause shown to exclude irrelevant initiatory material; any answer or other pleading or an agreed statement of facts; and the written determination, findings and conclusions and record of proceedings upon which the determination is based, including all record and documentary evidence or material before the Commission in the making of its determination.

22 NYCRR § 530.2. The involved judge must file a brief as well as the record for review. Id. The Commission must also file a brief, and the involved judge may file a reply brief. Id. At the conclusion of its review the Court of Appeals may accept or reject the sanction determined appropriate by the Commission, impose a different sanction, or impose no sanction. N.Y. Jud. L. § 44(9).


The Complaint and the Supplemental Complaint allege five specific charges of misconduct against Spargo. He answered denying the material allegations of violations and asserted that his conduct was protected by the United States and New York State Constitutions.

Note that whether Spargo actually engaged in the conduct alleged to violate the Rules is irrelevant for the purpose of this decision. It is also irrelevant to this decision, if Spargo did engage in the conduct, whether such conduct constituted a violation of the Rules. No opinion is offered as to whether the alleged activity of Spargo, if true, would bring disrespect to the judiciary.

A. Charge 1

Charge 1 alleges violations of sections 100.1, 100.2(A), and 100.5(A)(4)(a) of the Rules, as follows:

[Spargo] failed to observe high standards of conduct . . .; failed to avoid impropriety and the appearance of impropriety, failed to respect and comply with the law and failed to act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary . . .; and, as a candidate for judicial office, failed to maintain the dignity appropriate to judicial office and to act in a manner consistent with the integrity and independence of the judiciary. . . .

(Kunz Aff. Oct. 16, 2002, Ex. A ΒΆ 7.) These allegations of violations are based upon several events that occurred in October and November 1999 while Spargo was campaigning for ...

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