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,