Posted on 03/24/2003 9:25:25 AM PST by Behind Liberal Lines
ALBANY — Wounded and limping after last month's jarring Spargo decision, the Commission on Judicial Conduct is now in the cross-hairs of a Capital Region attorney who accuses the disciplinary agency of promoting a left-wing political agenda and carrying water for the American Civil Liberties Union.
The unusual broadside comes in the case of Troy City Court Judge Henry R. Bauer, who the agency contends trampled the rights of criminal defendants in 50 cases. Judge Bauer is charged with entering convictions against defendants who were not before him and who had not pleaded guilty, failing to advise citizens of their right to counsel, setting bail at unreasonably high amounts, coercing guilty pleas, imposing sentences beyond the statutory maximum and conducting arraignments while looking at the accused through the cell lockups.
But the attorney representing Judge Bauer, Robert P. Roche of Roche, Corrigan, McCoy & Bush in Albany, says Gerald Stern's disciplinary agency is grotesquely misrepresenting the facts in a matter that graphically illustrates how the commission "is sloppy, is inaccurate and is so hell-bent for conviction that it loses site of the obvious."
Mr. Roche goes on to complain that Mr. Stern, the commission's administrator, has unwittingly allowed the powerful entity to become a "tool" for special interests and an organization more focused on social engineering than fulfilling its legal and legitimate function. He suggests the commission has come to view itself not only as the clarion for liberal politics, but as an ultra-superior court with the authority to scrutinize and criticize decisions that are more properly matters for appellate review.
"[I]t is not uncommon to see charges filed against judges that have absolutely no rational basis and fact," Mr. Roche said in court papers. "They are conceived in ignorance of the effective functioning of the criminal justice system and executed in the arrogance of power."
The Bauer matter, which was the subject of a hearing in Albany Supreme Court on Friday, involves two very different but prominent figures in the legal community, both of whom made headlines in recent weeks for asserting what they claim are their free speech rights: Supreme Court Justice Thomas J. Spargo and Stephen F. Downs, the chief attorney in the commission's Albany office.
It was Justice Spargo, a former Army paratrooper, Catholic seminarian and nationally known Republican elections lawyer, who took on the commission and obtained an extraordinary ruling last month in which U.S. District Judge David N. Hurd struck as unconstitutionally vague some speech-restricting provisions of the Code of Judicial Conduct. Those provisions generally require judges to uphold the integrity of the judiciary and avoid the appearance of impropriety.
And it was Mr. Downs, a 1960s Peace Corps volunteer,who had investigated Justice Spargo and initiated charges stemming from the jurist's political conduct and speech. Mr. Downs recently drew international attention when he was arrested after refusing to either leave a private shopping mall or take off a shirt with peace slogans.
Both Justice Spargo and Mr. Downs figure in Mr. Roche's assault on the commission.
Judge Hurd's decision in Spargo, reported nationally, crippled the commission in numerous cases because the stricken provisions are the matrix of virtually every complaint the commission files. Mr. Roche, who has defended many judges in actions initiated by the Commission on Judicial Conduct, said Friday that he has been contacted by more than two dozen jurists since the Spargo decision was released last month.
Mr. Roche used the Spargo decision to stop the commission's action against Judge Bauer in its tracks, at least temporarily. And he is using Mr. Down's brush with fame to bolster his claim that the commission has been hijacked by "social activists." In fact, he wants to compel Mr. Downs and investigator Rosalind Becton to testify "on their relationships with the American Civil Liberties Union and the New York Civil Liberties Union whose agenda they have taken over and whose policies they seek to impose upon the judiciary of the State of New York."
The Spargo element arises from an order signed Feb. 24 by Albany Supreme Court Justice Louis C. Benza. Justice Benza restrained the commission from proceeding against Judge Bauer in any form or fashion, not just on the charges based on provisions that Judge Hurd found unconstitutionally vague. Only two of the five provisions cited against Judge Bauer invoke the stricken provisions.
On Friday, Mr. Roche and Assistant Solicitor General Edward Lindner appeared before Albany Supreme Court Justice Joseph R. Cannizzaro. Mr. Roche is seeking a writ of prohibition to permanently bar the commission from going forward against Judge Bauer. Mr. Lindner wants Judge Benza's order vacated. The attorneys engaged in a sometimes spirited debate over procedural issues as well as the merits of the complaint.
Mr. Lindner argued that the commission should be allowed to proceed against Judge Bauer immediately on charges that do not involve the stricken provisions, and later on the other charges if Judge Hurd reconsiders or is reversed. He said Judge Hurd's ruling essentially dealt with off-the-bench free speech issues, which play no role in the matter involving Judge Bauer.
Mr. Roche said the stricken and remaining provisions are so inter-connected that they cannot be separated, and he speculated that the alleged violations the commission seeks to pursue against Judge Bauer are every bit as vague as those thrown out by Judge Hurd. The Albany lawyer also objected to the commission's position that it can "have its cake and eat it too" by proceeding on some charges now and more later if Judge Hurd's ruling is overturned.
Mr. Roche acknowledged that Judge Bauer did not take his gripe to the commission, which Mr. Lindner said would have been the appropriate course, and instead brought the matter to court. He suggested it would have been both foolish and pointless to ask an "out of whack" agency to rule itself out-of-order.
"We also did not retain a fox to guard the hen house," Mr. Roche remarked sarcastically in court Friday.
Merits Addressed
On the merits, which were addressed briefly in court and extensively in Mr. Roche's papers, the issue distills to whether the commission has usurped the role of an appellate court to foist its criminal justice attitudes on the judiciary.
The charges against Judge Bauer stem largely from decisions he made regarding bail and the standard he employs before appointing assigned counsel.
Mr. Lindner alleges that Judge Bauer has persistently violated the rights of criminal defendants through a "gross abuse of discretion." The complaint accuses Judge Bauer of routinely ignoring the law and constitutional safeguards to deny defendants counsel and reasonable bail. Mr. Lindner said that when a judge exhibits such a pervasive pattern of abuse it is incumbent on the commission to step forward. He said further that what the commission did and is trying to continue to do in this case is perfectly appropriate and legal.
Mr. Roche noted that not one of the allegedly improper bail decisions was appealed, and he said Judge Bauer has never been reversed for any of the supposedly improper decisions cited by the commission. He admitted that Judge Bauer requires defendants to establish that they cannot afford counsel before he appoints one at taxpayer expense.
"This Commission has picked up the agenda of the American Civil Liberties Union in the prosecution of Judge Bauer because it doesn't like the judge's policy on bail setting or the judge's policy in requiring that persons should satisfy some criteria that they need free legal counsel before they are given one," Mr. Roche said in his submission.
"The fact that he did not go to the public defender and demand that they willy-nilly appear for everyone (regardless of their financial need or requirements) is something that offends the ACLU and apparently the Commission on Judicial Conduct."
In court, Mr. Lindner labeled Mr. Roche's allegations "astonishing," "unsubstantiated" and "outrageous," and said it is beyond the pale to suggest that the commission, an "11-member panel of distinguished lawyers and judges," would abuse its power to do the political bidding of the ACLU. He said Mr. Downs' political views and the T-shirt incident at the shopping mall are irrelevant and not even before court.
Justice Cannizzaro reserved decision.
Say it aint so ;-)
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