United States District Court, N.D. New York
February 15, 2005.
DAVID F. KUNZ, Plaintiff,
NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT, ROBERT TEMBECKJIAN, Individually and as Administrator and Counsel of the New York State Commission on Judicial Conduct, NEW YORK STATE OFFICE OF COURT ADMINISTRATION, and HON. JAN H. PLUMADORE, Individually and as Deputy Chief Administrator of the New York State Office of Court Administration, Defendants.
The opinion of the court was delivered by: LAWRENCE KAHN, District Judge
MEMORANDUM-DECISION AND ORDER*fn1
Plaintiff David F. Kunz ("Kunz") filed this action on January 18, 2005
against Defendant New York State Commission on Judicial Conduct
("Commission"), Robert Tembeckjian ("Tembeckjian"), New York State Office
of Court Administration ("OCA") and the Honorable Jan H. Plumadore
("Justice Plumadore") (collectively, "Defendants"), pursuant to
42 U.S.C. § 1983, alleging violations of his constitutional rights to due
process, equal protection, and free association. Currently before the
Court is Kunz's motion for a preliminary injunction to enjoin the
Commission and Tembeckjian from exercising or attempting to exercise
jurisdiction over Kunz in the matter
involving the Honorable Thomas J. Spargo ("Justice Spargo") and to enjoin
the OCA and Justice Plumadore from enforcing the January 4, 2005
Administrative Order ("January 4 Order") as against Kunz.
Kunz is an attorney licensed to practice in the State of New York. Kunz
Aff. (Dkt. No. 3) at ¶ 3. In August 2001, Kunz was retained by Justice
Spargo to represent him in connection with administrative proceedings
before the Commission. Kunz Memo. (Dkt. No. 9) at 3. During the course of
this representation, in late 2003 and early 2004, Tembeckjian
investigated additional allegations against Justice Spargo, and a second
supplemental complaint was served. Def. Memo (Dkt. No. 7) at 3. Attorney
E. Stewart Jones ("Jones") provided testimony in connection with this
investigation. Id. Jones was advised by Tembeckjian in April 2004 that he
would be subpeonaed to testify at the hearing, and the Commission sent
him a subpeona on August 17, 2004. Id. at 3-4. He also advised Kunz of
this information. Id. at 3.
In late August 2004,*fn2 a "Consent to Change Attorneys" form was
executed by Justice Spargo and Kunz, substituting Jones for Kunz as
Justice Spargo's attorney. Kunz Memo. (Dkt. No. 9) at 4. This form was
filed with the Commission. Id. The Commission was notified of the
substitution by letters from Jones on August 20, 2004 and from Kunz on
August 25, 2004. Id. at 5. Following this was a series of letters between
the Commission and Kunz, with the Commission insisting that Kunz is
Justice Spargo's counsel until they give permission otherwise due to the
potential conflict of Jones, and Kunz insisting that he had no further
involvement with the proceedings. Id. at 5-6. A
hearing was scheduled on this matter for September 2, 2004, but Kunz
indicated that he had no intention of appearing. Def. Memo. (Dkt. No. 7)
at 4. Kunz transferred the file to Jones, and met with him to advise him
of the status of the matter. Kunz Memo (Dkt. No. 9) at 4. Kunz has had no
further role in the representation of Justice Spargo. Id. at 7.
On September 1, 2004, Jones commenced an Article 78 proceeding on
Justice Spargo's behalf in the New York State Supreme Court, Albany
County, challenging the constitutionality of certain provisions of the
Code. Kunz Memo. (Dkt. No. 9) at 6. The state court ordered a stay of
Commission proceedings, postponing the September 8, 2004 hearing on the
charges against Justice Spargo. Id. Because Justice Spargo sits in the
Third Judicial District, of which Albany County is a part, District
Administrative Judge George B. Ceresia, Jr. ("Justice Ceresia") informed
Justice Plumadore that it would be "inappropriate" for Justice Spargo's
Article 78 proceeding to be heard in Albany County. Def. Memo. (Dkt. No.
7) at 5. Justice Plumadore agreed, and assigned the Article 78 proceeding
to Justice Nicholas Colabella ("Justice Colabella") in the neighboring
Ninth Judicial District (Westchester County). Id. During the course of
this proceeding, neither the Commission nor Tembeckjian sought to
disqualify Jones as Justice Spargo's representative. Kunz Memo. (Dkt.
No. 9) at 7. Justice Collabella dismissed the proceeding on December 9,
2004. Def. Memo. (Dkt. No. 7) at 5.
On December 21, 2004, Tembeckjian moved for an order disallowing the
substitution of Jones for Kunz, disqualifying Jones, and declaring Kunz
to be Justice Spargo's attorney. Id. A hearing was set before the referee
on January 6, 2004. Id. Kunz advised the Commission that he believed that
it lacked personal jurisdiction to compel him to appear. Kunz Memo.
(Dkt. No. 9) at 9-10.
Kunz attempted to commence an Article 78 proceeding in the Supreme
Court, Albany County, on January 3, 2005, to contest the Commission's
exercise of jurisdiction over him. Id. at 10. After three justices
recused themselves before the Article 78 proceeding was filed, Justice
Ceresia contacted Justice Plumadore regarding the proposed proceeding.
Id. at 11. Justice Plumadore, by an administrative order dated January
4, 2005, assigned any such proceeding by Kunz to Justice Colabella. Id.
After contacting Justice Colabella's chambers, Kunz sought and received
an adjournment of the January 6, 2005 proceeding until January 20, 2005.
Id. at 12. Counsel for Kunz later spoke with Justice Colabella's law
clerk, who informed him that Justice Colabella said that he did not
believe that the petition was proper for him to consider based upon the
authority granted to the Commission to approve withdrawal of counsel.
Id. After a conference call with Justice Colabella's chambers, Kunz was
told that the earlier statements were advice offered only as a courtesy,
and that Kunz could present his papers to Justice Colabella. Id. Kunz has
not attempted to commence an Article 78 proceeding in that court. Def.
Memo (Dkt. No. 7) at 6.
Instead, on January 18, 2005, Kunz initiated the instant lawsuit.
Complaint (Dkt. No. 1). This Court issued a temporary restraining order
("TRO") enjoining the Commission and Tembeckjian from asserting
jurisdiction over Kunz and enjoining the OCA and Justice Plumadore from
enforcing the January 4, 2005 Order. TRO (Dkt. No. 3). The return date
for the motion for a preliminary injunction was adjourned (and the TRO
remained in place) until February 9, 2005. Def. Memo. (Dkt. No. 7) at 7.
On January 20, 2005, the Commission, after obtaining confirmation from
the Court that such a proceeding was not enjoined by the TRO, conducted a
hearing on Tembeckjian's motion
concerning Jones' representation of Justice Spargo. Id. The referee ruled
that Jones was disqualified from representing him. Id. The hearing
regarding the charges against Justice Spargo was scheduled for June 1,
A. Younger Abstention
The Supreme Court's ruling in Younger v. Harris, 401 U.S. 37 (1971),
established that a federal court, although it properly has jurisdiction,
in the interest of comity, should abstain from hearing a case that would
interfere with an on-going state criminal proceeding. "[D]ismissal or a
stay of claims is mandatory when the requirements for Younger abstention
are satisfied. . . ." Spargo v. N.Y. Comm'n on Judicial Conduct,
351 F.3d 65, 74 (2d Cir. 2003) (noting also that "Younger is not a
jurisdictional bar based on Article III requirements, but instead a
prudential limitation on the court's exercise of jurisdiction grounded in
equitable considerations of comity") (citing to Diamond "D" Constr.
Corp. v. McGowan, 282 F.3d 191, 197 (2d Cir. 2002)). "Younger generally
prohibits courts from `taking jurisdiction over federal constitutional
claims that involve or call into question ongoing state proceedings' so
as to avoid unnecessary friction." Id. at 75 (citing to Diamond,
282 F.3d at 198); see also Cullen v. Fliegner, 18 F.3d 96, 103 (2d Cir.
1994) (Younger "is based on the premise that ordinarily a state
proceeding provides an adequate forum for the vindication of federal
constitutional rights. . . ."). Although Younger abstention was developed
to prohibit a federal court's interference with an ongoing state criminal
proceeding, it has since been extended to civil cases. Huffman v. Pursue,
420 U.S. 592, 604 (1975); see also Trainor v. Hernandez, 431 U.S. 434
Abstention under Younger and its progeny follows a prescribed formula.
A federal court must refrain from hearing a federal constitutional claim
when (1) there is a pending state proceeding, (2) that implicates an
important state interest, and (3) the state proceeding affords the
federal plaintiff an adequate opportunity for federal judicial review of
his federal constitutional claims. Spargo, 351 F.3d at 75. The Second
Circuit, relying on the statements of the Supreme Court, has instructed
"[U]nless state law clearly bars the interposition of
the constitutional [or federal] claims," and "so long
as there is no showing of bad faith, harassment, or
some other extraordinary circumstance that would make
abstention inappropriate, the federal courts should
abstain." Middlesex County Ethics Comm. v. Garden
State Bar Ass'n., 457 U.S. 423, 432, 435 (1982).
Younger itself explained that exceptions to abstention
should be made only on a "showing of bad faith,
harassment, or . . . other unusual circumstance."
Younger, 410 U.S. at 54.
Kirshner v. Klemons, 225 F.3d 227
, 233-34 (2d Cir. 2000). Additionally,
if a court finds that abstention is proper, it may dismiss the case, or
otherwise, stay the proceedings pending a resolution of the state court
2. Commission and Tembeckjian
Defendants claim the Court should abstain from hearing the action
against the Commission and Tembeckjian because of the ongoing proceeding
involving Justice Spargo before the Commission, citing Spargo,
351 F.3d at 75. Def. Memo. (Dkt. No. 7) at 11. However, just because
Younger was applicable in Spargo does not mean that it will similarly
apply to the case at hand. See, e.g. Doran v. Salem Inn, Inc., 422 U.S. 922,
928-29 (1975) (concluding that each federal plaintiff must be considered
separately, and cannot be "automatically thrown into the same hopper for
Younger purposes," even though some factual and legal considerations may
be the same for all
Plaintiff claims that Younger abstention should not apply because Kunz
is not party to any pending state court proceeding. Kunz Memo. (Dkt. No.
9) at 28. That Kunz is not a party to the proceeding before the
Commission is relevant, but not dispositive. Younger abstention has been
applied to plaintiffs who are not directly involved in any ongoing state
court proceeding. See, e.g. Spargo, 351 F.3d at 82. Merely seeking the
same relief, though, is insufficient in the absence of "factors
indicating that the plaintiffs' interests are legally interwoven or
interconnected." Id. at 83. For example, in Spargo, the claim of the
third-party plaintiffs to which Younger was applied involved derivative
First Amendment rights. Id. Those plaintiffs claimed that their
constitutionally protected interest was in receiving political speech
from judges. Because the First Amendment rights of a listener are derived
from the speaker, the Second Circuit applied Younger to bar their claims
in light of Justice Spargo's proceeding before the Commission. Id. at
The circumstances of this case do not warrant a similar conclusion.
Kunz is seeking vindication of constitutional rights that are completely
independent of the rights of Justice Spargo. Kunz contends that it is a
violation of his due process rights to be subject to the jurisdiction of
the Commission, and a violation of his right to free association to be
forced to represent Justice Spargo. Complaint (Dkt. No. 1) at ¶ 2. These
interests are entirely different from and independent of any Sixth
Amendment right of Justice Spargo. Even though the claims arise from the
same factual circumstances and seek the same relief, Kunz's legal
interests cannot be said to be intertwined with Justice Spargo's Sixth
Amendment interests, making Younger inapplicable to the proceeding before
Moreover, an injunction in this case does not interfere with the
Although they are not permitted to exercise jurisdiction over Kunz, that
is not necessary to their moving forward with the proceedings against
Justice Spargo. The Commission conceded at the hearing that Justice
Spargo is permitted to proceed pro se. In fact, the contention made by the
Commission at the hearing before this Court that an injunction would halt
Commission proceedings is contradicted by the fact that the proceedings
have continued as evidenced by the January 20, 2005 hearing.
3. OCA and Justice Plumadore
Defendants also contend that Younger abstention bars this Court from
enjoining enforcement of the January 4 Order.
Although there is not currently an ongoing state proceeding related to
the January 4 Order, that does not end the matter. A Court may abstain
under the principles of comity and federalism when, even though the
Younger requirement that there be an ongoing state proceeding is not
met, "the equitable relief sought would inappropriately require the
federal court to supervise institutions central to the state's
sovereignty." Miller v. Silbermann, 951 F. Supp. 485, 491-91
(S.D.N.Y. 1997) (citing O'Shea v. Littleton, 414 U.S. 488, 500-502
(1974)). "A federal court should not intervene to establish the basis for
future intervention that is so intrusive and unworkable." O'Shea,
414 U.S. at 500.
The January 4 Order assigned Kunz's proposed Article 78 proceeding, as
well as "any other proceeding arising out of or relating to the
[proceeding]" to Justice Colabella. Def. Memo. (Dkt. No. 7) at 6. A
preliminary injunction enjoining the January 4 Order would interfere with
any future state proceeding arising out of the proceedings against
Justice Spargo or Kunz. Such an injunction would require the Court to
supervise the OCA and Justice Plumadore in the process of judicial
assignments for future proceedings before the New York State courts, an
inappropriate role for this Court. The direct involvement in the
administration of state courts by a federal court that this injunction
would demand is precisely the kind of interference that "Younger v.
Harris, supra, and related cases sought to prevent." O'Shea,
414 U.S. at 500. Thus, under the principles of Younger as developed in
O'Shea, the Court will abstain from deciding this claim, leaving only the
claims against the Commission and Tembeckjian.
B. Preliminary Injunction
The Court may grant preliminary injunctive relief when the moving party
has demonstrated: "(a) irreparable harm and (b) either (1) likelihood of
success on the merits or (2) sufficiently serious questions going to the
merits to make them fair ground for litigation and a balance of hardships
tipping decidedly toward the party requesting the preliminary relief."
Int'l Dairy Foods Ass'n v. Amestoy, 92 F.3d 67, 70 (2d Cir. 1996)
(citations omitted); see Genesee Brewing Co. v. Stroh Brewing Co.,
124 F.3d 137, 142 (2d Cir. 1997). However, when a party seeks to enjoin
government action, that party must satisfy the more rigorous standard of
likelihood of success on the merits. No Spray Coalition v. City of New
York, 252 F.3d 148, 150 (2d Cir. 2001).
2. Irreparable Harm
An irreparable harm is a harm for which "a monetary award cannot be
adequate." Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72
(2d Cir. 1979) (citing Studebaker Corp. v. Gittlin, 360 F.2d 692, 698 (2d
Cir. 1966); Foundry Servs., Inc. v. Beneflux Corp., 206 F.2d 214, 216 (2d
Cir. 1948)). The Second Circuit has noted that "when an alleged
deprivation of a constitutional right is involved, . . . no further
showing of irreparable injury is necessary." Mitchell
v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984). Each of Kunz's allegations
concerns the infringement of a constitutional right. Kunz claims that the
Commission and Tembeckjian are violating his Fifth and Fourteenth
Amendment rights to due process by asserting jurisdiction over him when
they have no authority to do so, and his First Amendment rights to free
association by forcing him to represent Justice Spargo until such time
that they allow him to cease representation.*fn3 Complaint (Dkt. No. 1)
at ¶¶ 61, 64. Because the "alleged violation of a constitutional right
triggers a finding of irreparable injury," Kunz satisfies this first
element for each of his claims. Conn. Dep't of Envtl. Prot. v. OSHA,
356 F.3d 226, 231 (2d Cir. 2004).*fn4
3. Likelihood of Success on the Merits
In order to compel Kunz to appear before it, the Commission must have
personal jurisdiction over him. See, e.g., Ins. Corp. of Ireland v.
Compagnie des Bauxites de Guinee, 456 U.S. 694, 703 (1982). Kunz claims
that the Commission lacks jurisdiction over him because he is not
currently representing Justice Spargo before the Commission, as he was
substituted for in August 2004. Kunz Memo. (Dkt. No. 9) at 16-17.
Defendants claim that Kunz attempted to withdraw, and such a withdrawal
is not effective until approved by the Commission. Def. Memo.
(Dkt. No. 7) at 18-19.*fn5
The Commission is an administrative body of limited jurisdiction. See
N.Y. JUD. LAW §§ 41-48. It has the authority to investigate and hold
hearings regarding any judge or judicial candidate. Id. at § 44. It also
has authority to supervise the attorneys who practice before it. See,
e.g., 22 N.Y.C.R.R. § 7000.6(n). Because Kunz is neither a judge nor a
judicial candidate, the Commission only has jurisdiction over Kunz if he
is an attorney currently practicing before it. Kunz claims that his
representation of Justice Spargo ended at the moment that the "Consent to
Change Attorneys" was filed with the clerk. The Commission contends that
Kunz is still Justice Spargo's attorney, and will continue to be until
the Commission allows him to withdraw.
Withdrawal of an attorney appearing before the Commission is governed
by 22 N.Y.C.R.R. § 7000.6(n), which states that "[f]ollowing the
appearance of counsel representing a judge in any matter before the
commission, at any stage of the proceeding, such counsel may not withdraw
as counsel in the matter without the permission of the commission." The
N.Y.C.R.R. is silent as to the procedure regarding substitution. The
procedure governing substitution provided for in § 321(b)(1) of the
C.P.L.R., which states that ". . . an attorney of record may be changed
by filing with the clerk a consent to the change signed by the retiring
attorney and signed and acknowledged by the party." N.Y.C.P.L.R. §
321(b)(1) ("§ 321(b)(1)"). In the absence of a rule regarding
substitution for the
Commission, this provision of the CPLR should apply, and at no point have
Defendants disputed that this rule on substitution is applicable to the
Defendants instead assert that, because Justice Spargo, Kunz, and Jones
all knew that Jones had a conflict that would have precluded him from
representing Justice Spargo before the Commission,*fn6 the attempted
substitution was really a functional withdrawal. Further, they claim
authority to approve the change in attorneys because it was done only
days before a hearing was set to commence.*fn7
Justice Spargo and Kunz clearly followed the procedure set forth for
substitution, and there is no exception for attorneys of questionable
eligibility or untimely substitutions. The form, entitled "Consent to
Change Attorneys" and signed by Justice Spargo and Kunz, states that "It
is hereby consented that [Jones] be substituted as attorneys [sic] of
record for the undersigned party in the above-entitled action in place
and stead of the undersigned attorneys as of the date hereof." Consent
(Dkt. No. 9) at 1. The Commission does not contend that the filing of
this form with the clerk was not in accordance with the dictates of §
321(b)(1). Substitution under the CPLR does not require approval from the
judicial body before which the attorneys appear. At the moment the
consent is filed in compliance with § 321(b)(1), the substitution takes
effect. There is no indication in the case law or the statute that a
possible conflict with the new attorney or the timing of the substitution
changes this procedure.
Furthermore, following the filing of the "Consent to Change Attorneys"
form, Jones actually proceeded to represent Justice Spargo in the Article
78 proceeding. As a party in the proceeding, the Commission and
Tembeckjian had the opportunity to object to Jones' representation of
Justice Spargo, but did not do so. They allowed Jones to act as Justice
Spargo's counsel completely unopposed for several months, and only now
seek to reach back and force Kunz to resume representation that had
ceased in August 2004. The disqualification of a new attorney, though,
does not reactivate the attorney-client relationship with a previous
attorney. Justice Spargo is permitted to proceed pro se or to hire
another attorney, but the Commission is not entitled to choose his
attorney for him.
Finally, the position taken by the Defendants would frustrate the
purposes of the New York State Legislature in the fashioning of these
rules. The policy reason for § 321(b) was to ensure certainty regarding
the precise point in time that a change or withdrawal takes effect when
it occurs during the course of an action, to ensure procedural regularity
and fairness to all parties. In re Seventh Judicial Dist. Asbestos Lit.,
764 N.Y.S.2d 168, 173 (N.Y. Sup. Ct. 2003). A Commission-made exception
requiring some substitutions with consent to occur at the moment the
consent form is filed, while leaving others subject to court approval, is
clearly at odds with legislative intent.
Because Justice Spargo and Kunz executed a substitution of attorneys in
accordance with the dictates of § 320(b)(1), Kunz should no longer be
considered Justice Spargo's legal representative. Moreover, the
Commission and Tembeckjian recognized Jones (not Kunz) as Justice
Spargo's attorney during the Article 78 proceeding without objection. If
Kunz is not Justice Spargo's attorney, the Commission should not have
authority to exercise personal jurisdiction over him, and an attempt to
exercise such jurisdiction would be in violation of Kunz's due process
e.g., Ins. Corp. of Ireland, 456 U.S. at 703. Therefore, Kunz has shown
the likelihood of success on the merits.
C. Spargo is not a Necessary Party
Defendants argue that Justice Spargo is a necessary and indispensable
party pursuant to Federal Rules of Civil Procedure 19(a) or 19(b).
Rule 19(a) governs the joinder of necessary parties:
A person . . . whose joinder will not deprive the
court of jurisdiction over the subject matter of the
action shall be joined as a party in the action if
. . . the person claims an interest relating to the
subject of the action and is so situated that the
disposition of the action in the person's absence may
(i) as a practical matter impair or impede the
person's ability to protect that interest. . . .
FED. R. CIV. P. 19(b).
Defendants claim that Justice Spargo has an interest in this action
because the disposition may determine whether Kunz or some other attorney
will represent him before the Commission. Even if Justice Spargo does
have an interest in this litigation, his interests are adequately
represented by Kunz. Justice Spargo has proceeded with Jones as his legal
representative, and has not indicated any desire to reemploy Kunz, even
after the disqualification of Jones. In this action, Kunz claims to no
longer represent Justice Spargo. Justice Spargo would likely make the
similar legal argument that the substitution was effective upon
compliance with § 320(b)(1). Because his interests are adequately
represented, it cannot be said that his ability to protect his interest
will be impaired or impeded by his absence. See, e.g., Nat'l Union Fire
Ins. Co. v. Mason, Perrin, & Kanovsky, 709 F. Supp. 411, 414
Because Justice Spargo is not a necessary party under Rule 19(a), he
cannot be an
indispensable party under Rule 19(b). Jonesfilm v. Lions Gate Int'l,
299 F.3d 134, 142 (2d Cir. 2002).
Based on the foregoing discussion, it is hereby
ORDERED, that Kunz's request for a preliminary injunction enjoining the
Commission and Tembeckjian from exercising or attempting to exercise
jurisdiction over Kunz in the pending matter before the Commission
involving Justice Spargo is GRANTED; and it is further
ORDERED, that Kunz's request for a preliminary injunction enjoining
Justice Plumadore and the OCA from enforcing the January 4, 2005 Order is
DENIED; and it is further
ORDERED, that the Clerk serve a copy of this order on all parties.