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Judge Squeals When Caught

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    J.A.I.L. News Journal ________________________________________________________________ Los Angeles, California October 19, 2002
    Message 1 of 1 , Oct 20, 2002
      J.A.I.L. News Journal
      Los Angeles, California                October 19, 2002

      HotSeat4Judges/M-Th/5pmPT  TheJAILerMakers   What?MeWarden?
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       Judge Squeals When Caught
      Isn't it strange how "Constitutional rights" is remembered when it affects the judges themselves, but they don't seem to be concerned about it when they trample the rights of others.

      "This has the potential to be a very big case," Bonventre said. "The case could affect the standards set for judges," he said.

      Our thanks to Ron Loeber, valortoo@..., JAILer-In-Chief, New York J.A.I.L. for sending us both articles below. He prefaces the first article with the following:
      Your gonna love this one folks... especially if you remember "Judicial Ethics - an Oxymoron (em#74)".  Tom Spargo, the lawyer/crook who was elected last November to the office of NYS Supreme Court Judge in Albany County (after a "cross endorsement" back room political deal) is now under investigation by the NYS Commission on Judicial Conduct.  And here is where it gets cute.  Judge/lawyer/crook Spargo, in a counter-move, is suing the Commission in Federal Court.  To read about it, go to
      http://www.nyjail4judges.org/inside/arch-email02.htm and see message link at bottom, titled "Justice Spargo Faces Inquiry."
      Justice Spargo Faces Inquiry
      By John Caher
      New York Law Journal ~ October 18, 2002

      When election law expert and longtime Republican activist Thomas J. Spargo was caught on film participating in a noisy political demonstration, nobody close to politics was particularly surprised. Spargo is a seasoned regular in the political game, and that he would show up in Florida at the Miami-Dade County Board of Elections during the Bush-Gore electoral debacle of November 2000 was almost predictable.

      But there was one thing troubling about that image.

      At the same time he was stumping for George W. Bush and chanting with other Republican supporters at what amounted to a boisterous sit-in, Spargo was serving as a part-time judge in the rural Albany County town of Berne. Judges are not supposed to get involved in politics.

      Now, Spargo is a state Supreme Court justice, and the Commission on Judicial Conduct is hot on the tail of the onetime feisty election law litigator and political firebrand. The commission has accused Justice Spargo of multiple ethical breaches for his political conduct. It alleges he violated ethics rules by:

      • Buying drinks, donuts, pizzas, coffee and gasoline for potential voters while campaigning for Berne town justice.

      • Appearing as election counsel for Albany County District Attorney-elect Paul A. Clyne in fall 2000, and then failing to disclose in his capacity as town justice that he had a relationship with the prosecutor.

      • Participating in a "loud and obstructive demonstration" during the Florida recount "with the aim of disrupting the recount process."

      • Delivering the keynote speech at a Monroe County Conservative Party fund-raiser on May 18, 2001, at a time when he was simultaneously a practicing political lawyer, a sitting town justice and an announced candidate for state Supreme Court.

      • Authorizing his state Supreme Court campaign committee to pay a $5,000 political consulting fee to a Democratic and an Independence Party judicial nominating convention delegate. Ultimately, Justice Spargo won the uncontested election with cross endorsements.

      Commission Administrator Gerald Stern has not indicated whether the panel will seek to have Justice Spargo removed or impose a lesser sanction, such as admonishment or censure. The recommended sanction depends on the outcome of a hearing. Justice Spargo is attempting to ensure that it never gets to that point and is taking on the commission in federal court.

      Restraining Order

      On Wednesday night, Northern District U.S. District Judge Lawrence E. Kahn of Albany issued a temporary restraining order halting a hearing that was slated for Oct. 21. The matter is returnable Oct. 23 before U.S. District Judge David N. Hurd of Utica.

      Justice Spargo is asking Judge Hurd to declare that the Code of Judicial Conduct violates his free speech, equal protection, and association rights under both the state and U.S. Constitutions.

      "Out of concern that additional charges will be levied against me, and the concomitant threat of sanctions, I have refrained from exercising my free speech and associational rights and will continue to do so until a court declares the Code [of Judicial Conduct] and its interpretation to be unconstitutional or the Code is modified to eliminate the unduly restrictive provisions," Justice Spargo said in an affidavit. He declined Thursday to comment.

      The matter raises both legal and pragmatic questions, and hinges at least partially on the U.S. Supreme Court's recent decision in Republican Party of Minnesota v. White, 122 S. Ct. 2528 (2002). In that case, the Court ruled unconstitutional a provision in the Minnesota code of judicial conduct barring judicial candidates from revealing their views on "disputed legal or political issues."

      Here, Justice Spargo's attorney, David F. Kunz, a partner with DeGraff, Foy, Holt-Harris, Kunz & Devine in Albany, cites the U.S. Supreme Court case. He insists that the ethics rules as applied by the Commission on Judicial Conduct impermissibly burden the constitutional rights of candidates for judicial office and subject those candidates to restrictions that do not apply to people seeking other elective office.

      Stern said Thursday that he intends to argue in support of the rules and the commission's interpretation.

      "Obviously, we will oppose [Justice Spargo's] interpretation of the rules and his position," Stern said. "But that will be decided by Judge Hurd."

      Colorful Character

      Justice Spargo is a colorful and well-known character in New York and national political circles, with a carefully nurtured reputation as a master manipulator of the state's mind-bending election laws.

      Serving as counsel to the State Senate Election Committee, Spargo helped craft byzantine statutes, which he then used to clients' advantage when moonlighting as chief counsel to the State Republican Committee. Even bitter opponents describe Spargo as an honest adversary and a happy warrior of sorts who always seemed to get a kick out of twisting election laws ever so close to the breaking point, without losing either his temper or sense of humor. While appearing in myriad hypertechnical elections cases, Spargo often wore a bemused grin, as if he were the only one present who got the joke.

      The former seminarian and onetime Army paratrooper worked for the GOP for 15 years, but that era came to an end in the wake of a lengthy and at times entertaining state investigation. From 1985 through 1989, the Commission on Government Integrity attempted to determine whether Spargo helped funnel hundreds of thousands of dollars in campaign funds from a shopping center developer to Poughkeepsie town board candidates. It never really got its answer.

      Investigators Frustrated

      Spargo frustrated the investigators at every juncture, and seemed to delight in doing so. He filed a series of 16 lawsuits, and finally agreed to testify only after a judge ordered him arrested for contempt. He then invoked the Fifth Amendment 19 times. The investigation eventually petered out after Spargo, who consistently denied any wrongdoing, resigned his party and state posts, and reverted to private practice in the public forum of electoral politics.

      In recent years, Spargo, as an elections lawyer, represented politicians of all stripes, and even a few stars.

      He counseled Ross Perot, Steve Forbes and Jerry Brown in presidential politics. He aided Karen Burstein, the Democrat who ultimately lost the 1994 New York attorney general race to Republican Dennis C. Vacco. Four years later, he advocated for Vacco when the incumbent attempted to salvage a victory from his close battle with current Attorney General Eliot Spitzer. Spargo has represented Gov. George E. Pataki as well as billionaire Thomas Golisano, who is now running an aggressive Independence Party campaign against the governor.

      But by the time Spargo was hired to aid now-President Bush, he was a sitting judge, and therein lies the problem.

      Justice Spargo was among the roughly 2,200 part-time judges in New York who are paid a relatively paltry sum for serving in the judiciary and earn their living through private practice. However, for Justice Spargo earning a living meant practicing election law, and practicing election law meant involvement in politics. How, or whether, he could switch hats from partisan hired gun to objective jurist is at the eye of this storm.

      More and more, attorneys are wrestling with the ethical implications of advocacy in the court of public opinion, a professional tactic that the U.S. Supreme Court has suggested is not only legitimate but perhaps obligatory in the age of mass communications.

      In Gentile v. State Bar of Nevada, 501 U.S. 1030, (1991), Justice Anthony Kennedy observed that "an attorney's duties do not begin inside the courtroom door," and that those duties may include "an attempt to demonstrate in the court of public opinion that the client does not deserve to be tried."

      Justice Spargo's many roles -- part-time judge, full-time advocate, candidate for judicial office -- add another element to the quandary of just what lawyers could or should do to advance the interests of their clients outside the courtroom.

      Although there is no allegation that Justice Spargo did anything in Florida that would violate his oath as an attorney, and every indication that he was acting as a vigorous advocate for his client's interests, the commission maintains that a part-time judge cannot cavalierly separate his judicial role from his advocate's role and switch hats on a whim.

      By participating in a campaign that was not his own, even though that was the nature of his private practice, Justice Spargo violated the Rules Governing Judicial Conduct, according to the commission.

      The other charges are similar in that they center on behavior that is constitutionally protected when performed by an attorney or any other citizen, but forbidden if the individual happens to be a judge. In his affidavit, Justice Spargo suggests that when he donned robes he agreed to leave his biases, but not his constitutional rights, at the courthouse door.

      "The distinguishing feature latched upon by the Commission is the fact that I chose to exercise my constitutional rights while seeking to be elected a town judge or a Supreme Court judge," Justice Spargo said in the affidavit.


      Ethics probe targets judge

      Albany -- Thomas Spargo challenges a state inquiry into his political actions while serving as a jurist

      By ANDREW TILGHMAN, Staff writer
      First published: Saturday, October 19, 2002

      The state Commission on Judicial Conduct has charged state Supreme Court Justice Thomas Spargo with a series of ethical violations accusing him of aggressive political activity that threatens his appearance as a fair and impartial judge.

      The commission plans to hold a hearing to determine whether to recommend removal of Spargo, 59, an attorney and election law expert long allied with the Republican Party and a part-time Berne town justice until he was elected to the state Supreme Court last year.

      Spargo is challenging the commission on constitutional grounds and does not deny most of the allegations, which include:

      Buying food and drinks and handing out $5 vouchers for gasoline to potential voters during his race for Berne town justice.

      Allowing his Supreme Court justice campaign committee to pay a $5,000 "consulting fee" to Democratic and Independence Party judicial nominating convention delegates who help ensure his cross-endorsement and uncontested bid for judge last year.

      Joining in a "loud and obstructive" demonstration in support of George W. Bush during the electoral recount in Florida in November 2000, despite rules prohibiting judges' involvement in political activity.

      Delivering a keynote speech to the Monroe County Conservative Party in May 2001, when he was a town judge and a candidate for state Supreme Court.

      Allowing Albany County District Attorney Paul Clyne to hire him as an election attorney in the fall of 2000, even though the district attorney's office regularly appeared before him in Berne Town Court.

      The commission had set a hearing on Oct. 21 to decide whether to recommend the admonishment, censure or even a removal for Spargo.

      Judicial inquiries at this stage are usually confidential, and the investigation of Spargo came to light only after the judge took the rare step of filing a complaint in federal court on Wednesday to block the commission's hearing.

      Spargo said the commission's Code of Judicial Conduct, as it is currently written and applied, violates his constitutional right to free speech. He is seeking to block the hearing because it could result in his removal from office, which he said would irreparably harm his reputation, according to his complaint. Supreme Court justices are elected to 14-year terms and are paid $136,700 a year.

      Spargo declined comment on Friday and referred questions to his attorney David Kunz of Albany. Kunz said Spargo is not denying the bulk of the facts in the case, only the commission's interpretation of them.

      "The major items there are not in dispute. The real issues is whether they constitute improper conduct or not," Kunz said.

      U.S. District Judge Lawrence Kahn on Wednesday granted Spargo's request for a temporary restraining order, suspending the hearing and giving Spargo an opportunity to make his case before U.S. District Judge David Hurd on Oct. 25 in Albany.

      The Commission on Judicial Conduct's administrator, Gerald Stern, said he plans to contest Spargo's interpretation of the Code of Conduct in court, but Stern declined further comment on Friday.

      Spargo is a well-known election law attorney who worked for Albany Republicans for more than 15 years and more recently for Democrats, too.

      In 1990, Spargo appeared before the Commission on Government Integrity, which accused him of engineering a plan for a shopping-mall developer to secretly funnel more than $750,000 into a 1985 Poughkeepsie Town Board race. Also, in 1990, Spargo invoked his Fifth Amendment right not to answer questions that might incriminate him in the Poughkeepsie case. He publicly denied any wrongdoing, the investigation was later closed and the commission took no action.

      For decades, state judicial codes of conduct have held judges to a higher ethical standard than other elected officials, barring them from expressing political views and forcing voters to consider them only on their qualifications, legal experts said.

      But Albany Law School professor Vincent Bonventre said Friday that Spargo's case in federal court comes at a time when courts are loosening restrictions on judges' political activity.

      "This has the potential to be a very big case," Bonventre said. The case could affect the standards set for judges, he said.

      He cited a recent U.S. Supreme Court case that struck down Minnesota state judicial codes prohibiting judges from expressing certain political views that the court could use to bar the panel from disciplining Spargo for joining the Florida Bush rally.

      Not all the allegations against Spargo are so easily defended, such as the charge that Spargo's campaign allegedly cut checks for $5,000 to judicial nomination delegates, Bonventre said.

      Spargo's campaign paid $5,000 to Jane McNally, a delegate to the Democratic Judicial Nomination Convention, after she voted to endorse Spargo, a longtime Republican. Spargo's campaign also paid $5,000 to a consulting firm owned by Thomas Connolly, of the Rensselaer County Independence Party, for his help in securing Spargo's nomination on the Independence line, the commission said.

      "There you are getting down to the nitty-gritty political stuff that lay people think is generally seedy, and I think its perfectly fine for state to restrict that," Bonventre said. "I think he has a much stronger argument with regard to whose elements of pure political expression."

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