[Fwd: judges' free speech]

[Stephen L. Wasby]

-------- Original Message --------
Subject: judges' free speech
Date: Sun, 20 Oct 2002 12:58:27 -0400
From: "Stephen L. Wasby" <wasb at cnsunix.albany.edu>
To: conlawprof at listserve.ucla.edu



An interesting case is developing here in Albany. The state's Commission
on Judicial Conduct has charged a judge, Thomas Spargo, with several
violations stemming from his political activity. That activity took
place while he was a (part-time) Town Justice, before he became a
Supreme Court Justice (Supreme Court, for those of you not familiar with
New York's quirky terminology, is the general jurisdiction trial court).
     The case is interesting for several reasons:
      - One usually doesn't learn about these matters until discipline
is meted out, if it is. However, the judge has filed a federal court
action against the Commission, claiming action against him would be
unconstitutional, and that made the whole matter public.
      -  The incidents that are the subject of the Commission's
complaint are not contested, although their meaning appears to be at
issue, and certainly whether the Commission may discipline for them is.
      - At issue: Buying food and drinks and giving $5 gasoline vouchers
while running for town justice in the Town of Berne (one of the
hilltowns near Albany).
             :: Allowing his campaign committee (when he was campaigning
for Supreme Court) to pay $5,000 "consulting feee" to nominating
convention delegates for Democratic Party and Independence Party, in
order to get their cross-endorsements. (It is not unusual for parties to
nominate each others' candidates, leaving the voters without a choice,
in what is nominally selection by partisan election.)
            :: During same campaign, giving keynote speech to Monroe
County Conservative Party (May 2001).
            :: Joining in a demonstration in support of  "W" in Florida
in November 2000. The judge is a Republican and elections law expert who
often litigated on behalf of the Republicans, and may have been there
not just to make noise but to provide legal expertise. (The last clause
is my interpolation.)
             :: Allowing the Albany County D.A. to hire him as election
attorney in Fall 2000 even though D.A.'s office regularly appeared
before him in Berne Town Court.

The Commission's charges are basically that this aggressive political
activity raised questions about his being a fair and impartial judge
(certainly raising the "appearance of . . " issue).

Thus far, U.S. District Judge Lawrence Kahn issued a TRO last Wednesday
suspending the Commission's planned hearing; Spargo's lawyer will argue
his case to Judge Kahn this Wednesday, with the Commission's
administrator to appear to contest Spargo's interpretation of the Code
of Conduct.

Spargo's position is apparently an extension of  Republican Party of
Minnesota v. White from last Term.

If you wish to read the article reporting this for yourself, it was in
Saturday's (10/19/02) Albany Times-Union (www.timesunion.com), and there
is a commentary today (10/20/02) by Fred LeBrun in the same paper,
although it mentions only the Florida incident.

Steve Wasby