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KUNZ v. NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT

February 15, 2005.

DAVID F. KUNZ, Plaintiff,
v.
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

I. Background

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 Page 2 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.

  II. Facts

  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 Page 3 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. Page 4

  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 Page 5 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, 2005. Id.

  III. Discussion

  A. Younger ...


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