(Republican) Justice Spargo Faces Inquiry

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.

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.

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."

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.

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.

So a Judge/Lawyer from New York may not aid a client in Florida without violating the ethics laws in New York? That sounds pretty Byzantine to me.

Also the line about the lawsuit and investigation against him that just "petered out." I am sorry, I don't recognise that verdict as being any part of juris prudence that I'm familiar with. I guess it was too galling to admit that he was never found guilty.

That leaves him with a charge of buying hamburgers for voters? Sounds pretty shifty to me, if it were election day and he was handing them out to the homeless in return for votes...no wait, that's Democritters and cigarettes. A different matter entirely. (sarcasm off)

You want to talk Byzantine: the New York State Commission on Judicial Conduct is Judge, jury and executioner and the "rules" governing judicial conduct are whatever a majority say they are at any given point. There is no "rule" that says you can't buy pizza for potential voters or represent clients where there is no conflict of interest with your judicial position. The commission staff merely takes these acts, on their own considers them to be unjudicial, and the board rubber stamps them. Members of the commission never even hear the sworn "evidence" in the case. In New York, every citizen's rights are protected, except judges. The liberals for years have been trying to keep judges from expressing their opinions and philosophies precisely so that they can prevent conservatives from being elected. The commission aids their dirty work. I happen to know Tom Spargo from way back and he is straight as an arrow and as an attorney an appropriately vigorous advocate for his clients. I have also had some experience with the State Commission on Judicial Conduct and it is run as a dictatorship. JUdges dare not challenge them or they will be hounded for the rest of their careers and lawyers appearing before them who don't "play ball" are blackballed and any future clients will get the full treatment. I knew one staff member who was told her brother could not hire a certain lawyer for a traffic ticket because he was one of the "bad" lawyers who represent judges. WHat the boss didn't know, because of different last names, was that the lawyer was her father! SHe was also routinely ordered to open records which had been sealed by law. Rules of evidence, procedure and justice simply do not apply to the commission, and sadly the Court of Appeals has chosen to rubber stamp even their most outrageous actions and decisions.

The rats do this stuff all of the time. They can't refute what you say, so they attack you personally. I have had the pleasure of meeting Tom in a campaign a few years back and; I can tell you that he is one of the best we have. Let's watch this story and keep the spot light on it or they will do Tom in, behind our backs.
If you are reading this Tom, I'll be praying for you
Good luck
Coach

According to today's NY Law Journal:

Albany Supreme Court Justice Thomas J. Spargo's challenge to rules limiting the political activities of judicial candidates has been postponed until Nov. 29. In a matter pending before Northern District U.S. Judge David N. Hurd of Utica, Justice Spargo alleges that New York's rules run afoul of the U.S. Constitution by infringing on his free speech and associational rights. The judge has been charged by the Commission on Judicial Conduct with several violations for his political conduct. Before his election last year to a full-time Supreme Court judgeship, Justice Spargo was a part-time town justice and full-time elections lawyer. The charges involve his conduct when he was either campaigning for judicial office for the first time or serving dual roles as a part-time judge and private practitioner concentrating on electoral politics. Last week, U.S. District Judge Lawrence E. Kahn stayed commission proceedings pending the outcome of the case.

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