Petition for Writ of Certiorari — Spargo v. New York Commission on Judicial Conduct

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03127 3MAR 5 ~ 2004

No.

In The

Supreme Court of the Gnited States

THOMAS J. SPARGO, JANE MCNALLY,

and PETER KERMANI,

Petitioners,

NEW YORK STATE COMMISSION

ON JUDICIAL CONDUCT, GERALD STERN,

Individually and as Administrator of the

State Commission on Judicial Conduct and

HENRY T. BERGER, Individually and as Chairperson

of the New York State Commission on Judicial Conduct,

Respondents.

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The Second Circuit

PETITION FOR WRIT OF CERTIORARI

DAVID F. KUNZ

Counsel of Record

GEORGE J. SZARY

Attorneys for Petitioners

DEGRAFF, Foy, KUNZ &

DEVINE, LLP

90 State Street

Albany, New York 12207

(518) 462-5300

COCKLE LAW BRIEF PRINTING CO. (800) 225-6964

OR CALL COLLECT (402) 342-2831

QUESTIONS PRESENTED

The United States District Court for the Northern

District of New York in a comprehensive and well-

reasoned decision held that Sections 100.1, 100.2(A),

100.5(A)(1)(c), (d), (e), (f), (g), and 100.5(A)(4)(a) of the New

York State Rules of Judicial Conduct (App., pp. 102, 117-

19) were, on their face, unconstitutional infringements of

core First Amendment freedoms. On review, the Second

Circuit, ignoring well established precedent of the United

States Supreme Court and numerous Federal Circuits,

and deciding a question this Court expressly left open in

Middlesex County Ethics Commission v. Garden State Bar

Association, 457 U.S. 423 (1982), invoked the doctrine of

Younger abstention. It did so despite the fact that two of

the three litigants were not, nor could be party to the

pending state proceeding and were thus without an

opportunity to have their constitutional claims heard.

The questions presented for review are:

1. Should Younger abstention apply to a First

Amendment challenge to a state judicial discipli-

nary code where individuals challenging that

code are not and may not be parties to the pend-

ing state administrative proceeding and are thus

deprived an opportunity to have their federal

claims timely decided?

2._ Should Younger abstention apply to a First

Amendment challenge to a state judicial discipli-

nary code which is flagrantly and patently un-

constitutional and in conflict with this Court’s

recent decision in Republican Party of Minnesota

v. White, 536 U.S. 765 (2002)?

PARTIES TO THE PROCEEDINGS

Petitioners are Thomas J. Spargo, Justice of the

Supreme Court for the Third Judicial District of the State

of New York, Jane McNally, and Peter Kermani. Respon-

dents are the New York State Commission for Judicial

Conduct, Gerald Stern, individually and in his capacity as

Administrator of the State Commission on Judicial Con-

duct, and Henry T. Berger, individually and as Chairper-

son of the New York Siate Commission on Judicial

Conduct.

lil

TABLE OF CONTENTS

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ee Nea cncdainceniga bacdsasecoronivsianss

Constitutional And Statutory Provisions Involved...

Procedural History and District Court Decision...

a SE ee 2

The Court of Appeals Decision.....................ccc000ee. 5

Reasons For Granting The Petition.................000000..

I. McNally and Kermani Are Without A Fair Or

Sufficient Opportunity To Have Their Con-

stitutional Claims Decided By A Competent

Tribunal And Younger Abstention Is There-

BN NINE oon sccnnvcpasssssevesneasicoveescseose 7

II. Abstention Was Improper As The Challenged

Provisions Were Flagrantly And Patently

Violative Of Express Constitutional Prohibi-

tions Under Republican Party of Minnesota

ao ecaxtuseveieeseves 21

EEE SEE PON 30

Appendix Index

Spargo v. N.Y. State Comm’n on Judicial Conduct,

351 F.3d 65 (2d Cir. 2003).............. cc eeeeceeee ieee App. 1

Spargo v. N.Y. State Comm’n on Judicial Conduct,

2003 U.S. Dist. LEXIS 7073 (N.D.N.Y., Apr. 29,

estat ice echinnnsnicsasnusovsnxavevnesnrcousvanes App. 42

TABLE OF CONTENTS - Continued

Page

Spargo v. N.Y. State Comm’n on Judicial Conduct,

244 & Supp. 2d 72 (N.D.N.Y., Feb. 20, 2003)....... App. 56

22 NYCRR §100 et seq. (Rules of the Chief Admin-

istrator of the Courts Governing Judicial Con-

I apckicsccascnnscdiewnnsghocersensadenatesa asanncsieaa ian App. 97

TABLE OF AUTHORITIES

FEDERAL CASES

ACLU of Fla. v. The Fla. Bar, 744 F. Supp. 1094

Cae. Ei. as RAE siccitsasaictrasannacicaiecacsadanruevcaameneel 25

Ackerson v. Kentucky Judicial Retirement and

Removal Commission, 776 F. Supp. 309 (W. D.

Ta SIMON? eisnciccasmsbcdannaneisaaeee 23

Ankenbrandt v. Richards, 504 U.S. 689 (1992) ............cc 8

Beal v. Stern, 184 F.3d 117 (2d Cir. 1999)... cece eee. 26

Benavidez v. Eu, 34 F.3d 825 (9th Cir. 1994)..............0000. 20

Beshear v. Butt, 863 F. Supp. 913 (E. D. Ark. 1994)......... 25

Broadrick v. Oklahoma, 413 U.S. 601 (1973) ......cccccccc0000- 16

Buckley v. Illinois Judicial Inquiry Bd., 997 F.2d

SE FEE CAE. BNP oixitndpnomeguaie ee ee 25

Casa Marie v. Superior Court of Puerto Rico, 988 -

Fe Pe OO Be SR vis etincasiencinietastensictlmuaulan 14

Cedar Rapids Cellular Telephone v. Miller, 280 F.3d

SF Se Ge SR iiivesisssciecivieninciomaseetanniaesenuataloel 12

Central Arizona Water Conservation District. v.

United States EPA, 990 F.2d 1531 (9th Cir. 1993)........ 17

Citizens for a Better Environment, Inc. v. Nassau

County, 488 F.2d 1353 (2d Cir. 1973)... ceceeeeeeeees 13

City of Houston v. Hill, 482 U.S. 451 (1987).......0...cccceeeee 22

City of Lakewood v. Plain Dealer Publishing Com-

POT, TE We. Fir Ge aaiisnncs ntticnackonraceerteitcacemasin 26

Colorado v. River Water Conservation District v.

United States, 424 U.S. 800 (1976) ...... cece eeeeceeeees 8,15

Deakins v. Monaghan, 484 U.S. 193 (1988)...........ccccceeeee 15

TABLE OF AUTHORITIES — Continued

Page

Dombrowski v. Pfister, 380 U.S. 479 (1965)................ 16, 22

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975)....... passim

Dow Jones and Company, Inc. v. Simon, 842 F.2d

EE WL SUMII iscssiidiccicsinavainionencentdapersasecmemaensouacis 17

Ealy v. Littlejohn, 569 F.2d 219 (5th Cir. 1978)................ 13

Fantasy Book Shop, Inc. v. City of Boston, 652 F.2d

BREA Te, Sa cisisetitncsnscaxncticcicawaanne 26, 29

Gentile v. State Bar of Nevada, 501 U.S. 1030

CE situs cassiniees iAUsinhinae tapes ene aed 27

Gibson v. Berryhill, 411 U.S. 564 (1973)........... eee 9, 20

Grayned v. City of Rockford, 408 U.S. 104 (1972).... 26, 27, 29

Green v. City of Tucson, 255 F.3d 1086 (9th Cir.

ES ininitsnstencaisanitavlerddaesiaaeaeaaaana 14, 15

Hague v. Committee for Indus. Org., 307 U.S. 496

EN NE Mere TN RI Ue torn Miia hierar Renn enter 29

Hawaiian Housing Authority v. Midkiff, 467 U.S.

RE ROD itias vosavnestnaccanictceuectpemesaate daeaneane 15

Hicks v. Miranda, 422 U.S. 332 (1975) ......cceeeeeeeeees 10, 11

Hirschkop v. Snead, 594 F.2d 356 (4th Cir. 1979) ............ 16

Illinois v. Telemktg. Associates Inc., 538 U.S. 600

FRO iivcniscssuinsnissnisiritetibesiain ein ane 26

Suidice v. Veil, 400 UB. SEF CGFA) esssisnisscsxcrsassivsssnntvaveienes 9

Kolender v. Lawson, 461 U.S. 352 (1983) ............. 27, 28

Kugler v. Helfant, 421 U.S. 17 (1979)... .ecesesesesseeesesees 20

Lamont v. Postmaster General, 381 U.S. 301 (1965)........ 17

TABLE OF AUTHORITIES — Continued

Page

Lovell v. Griffin, 303 U.S. 444 (1938)......... eee ceeeeeees 29

Meredith v. Oregon, 321 F.3d 807 (9th Cir. 2002)............. 15

Middlesex County Ethics Commission v. Garden

State Bar Ass’n, 457 U.S. 423 (1982) .......... passim

Morial v. Judiciary Commission, 565 F.2d 295 (5th

Ey BE ke icasndincestssacssunedartimssapvadaensadcadninddconis vanbiaiecsian 13

NAACP v. Button, 371 U.S. 415 (19638).................e 16, 25

New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church v. New Jersey State Board

of Higher Education, 654 F.2d 868 (3d Cir. 1981)......... 14

New Orleans Public Service, Inc. v. Council of the

City of New Orleans, 491 U.S. 350 (1989).......00000... 15, 22

New York Mag. v. Metro. Transp. Auth., 136 F.3d

BE Re I iid stews siecctsnnd oleres ecainctinedtabbakigeansaues 26

Procunier v. Martinez, 416 U.S. 396 (1974) ....... eee 17

Public Utilities Commission of Ohio v. United Fuel

Gas Company, 317 U.S. 456 (19438)... eee 22

Quackenbush v. Allstate Insurance Company, 517

ee Se EET iccsrdenodances dacs nsdeabuininbacgusertisseansttvencaisniiee 15

Renne v. Geary, 501 U.S. 312 (1991)... eeseeeeees 25

Republican Party of Connecticut v. Tashijian, 770

F.2d 265 (2d Cir. 1985), aff'd, 479 U.S. 208 (1986)....... 23

Republican Party of Minnesota v. White, 536 U.S.

ipa ncea vel ickncsd ch semanas nicntbeedcksdes eiasateasaeodigeite passim

Republican Party of Minnesota v. White, 247 F.3d

ee IS INN III vss area ds ducdernassecnanisavnemuaiaussanecissesuedaues 18

Richards v. Jefferson County, 517 U.S. 793

eM raniia cacioctubsiscaheaseemnlesvatincieomeuvedeiawdsvesiils 3, 7, 8, 11, 12

Vill

TABLE OF AUTHORITIES - Continued

Page

Robinson v. Stovall, 646 F.2d 1087 (5th Cir. 1981)..... 12, 13

Roe v. Wade, 410 U.S. 113 (IS7S) ....ccccccccsccccccscsensccorses id, 17

Saia v. New York, 334 U.S. 558 (1948)..................cccccseeeees 29

Schneider v. State, 308 U.S. 147 (1939)..............cceeesceeecees 29

Septum, Inc. v. Keller, 614 F.2d 456 (5th Cir. 1980)......... 13

Shuttlesworth v. Birmingham, 394 U.S. 147 (1969)......... 29

Smith v. Goguen, 415 U.S. 566 (1974) .0.. eee 28

South Central Bell Telephone Company v. Alabama,

Aes Se CEE stesirresstnindnnmeiunccanienn 11

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

Ne BEE occa tidnn tease secuasidqusitakdendideawisentcaeaneiateles 26

Spargo v. N.Y. State Comm’n on Judicial Conduct,

351 F.3d 65 (2d Cir. 2008)............00csessseesese 1, 7, 14, 18, 21

Staub v. City of Baxley, 355 U.S. 313 (1958) ....... 29

Steffel v. Thompson, 415 U.S. 452 (1974) ...... 13, 20

The Pitt News v. Fisher, 215 F.3d 354 (3d Cir. 2000)........ 17

Thornhill v. Alabama, 310 U.S. 88 (1940)... 26

United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669 (19738) ...........c eee 17

Warth v. Seldin, 422 U.S. 490 (1975) 0... eee cecceeeee eee es 17

Wooley v. Maynard, 430 U.S. 705 (1977)... 13, 14

Younger v. Harris, 401 U.S. 37 (1971)... eee passim

Zwickler v. Koota, 389 U.S. 241 (1967) ........ eee eeeeseeeeeeees 22

TABLE OF AUTHORITIES — Continued

Page

FEDERAL STATUTES

sess penisrkscitecke tasted dla ele 1

Ae ee I shad ded adsense neice? 1

STATE STATUTES

ek EO Re BO OE OOD, veiscccsvsnvinsccnsteienctons Wecacnation passim

MISCELLANEOUS

Brennan, State Constitutions and the Protection of

Individual Rights, 90 Harv. L. Rev. 489 (1977) ............ 21

PETITION FOR WRIT OF CERTIORARI

The Petitioners, Thomas J. Spargo, Jane McNally, and

Peter Kermani, respectfully petition for a writ of certiorari

to review the judgment of the United States Court of

Appeals for the Second Circuit entered in this proceeding

on December 9, 2003.

OPINIONS BELOW

The opinion of the Court of Appeals (App., pp. 1-41) is

reported at 351 F.3d 65 (2d Cir. 2003). The opinion of the

District Court granting petitioners’ motion for declaratory

and injunctive relief pursuant to 42 U.S.C. §1983 (App.,

pp. 56-96) is reported at 244 F Supp. 2d 72 (N.D.N-Y.

2003). The opinion of the District Court denying the

respondents’ motion for a stay pending appeal (App., pp.

42-55) is unreported.

JURISDICTION

The judgment of the Second Circuit Court of Appeals

was entered on December 9, 2003. The jurisdiction of this

Court is invoked pursuant to 28 U.S.C. §1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The First Amendment to the United States Constitu-

tion provides in relevant part that “Congress shall make no

law ... abridging the freedom of speech ... or the right of

the people peaceably to assemble.... ” The Fifth Amend-

ment to the United States Constitution provides in relevant

part that “No person shall . . . be deprived of life, liberty, or

property, without due process of law.... ” The pertinent

provisions of the New York State Rules of Judicial Conduct

codified in Title 22 of the Official Compilation of Codes,

Rules & Regulations of the State of New York are reprinted

in an appendix to this petition (App., pp. 97-133).

STATEMENT

This case raises critically important issues of federal-

ism and due process, as they relate to the doctrine of

abstention established in the seminal case of Younger uv.

Harris, 401 U.S. 37 (1971). The Second Circuit Court of

Appeals, invoking the Younger abstention doctrine, re-

versed the United States District Court’s determination

that specific provisions of the New York State Code of

Judicial Conduct were unconstitutional on their face, and

directed dismissal of the petitioner’s federal Complaint. In

so doing the Second Circuit erroneously adopted a position

in clear conflict with long-standing jurisprudence of this

Court on abstention and due process, as well as that of the

First Circuit, Third Circuit, Fifth Circuit, Eighth Circuit,

and Ninth Circuit Courts of Appeal and decided an issue

expressly left open by this Court in Middlesex County

Ethics Commission v. Garden State Bar Ass’n, 457 U.S.

423 (1982). The Second Circuit invoked the doctrine of

abstention despite the fact that two of the petitioners,

Jane McNally and Peter Kermani were not, and could

never be, party to the state administrative proceeding

conducted by the respondents concerning petitioner

Spargo. McNally and Kermani were thus without oppor-

tunity for their federal claims to be heard absent access to

a federal forum.

The Second Circuit also failed, in determining the

applicability of Younger, to consider the flagrant and

patent unconstitutionality of the challenged provisions in

light of this Court’s recent decision in Republican Party of

Minnesota v. White, 536 U.S. 765 (2002), which also

militated against abstention.

This holding, if permitted to stand, would expand the

Younger doctrine beyond any reasonable boundaries

necessary to preserve notions of equity, comity, and feder-

alism and stand in stark contrast to precedent from this

Court and other Circuits. It would, instead, turn Younger

abstention into a mechanism for abrogating the due

process rights of those with constitutional claims recog-

nized by this Court in Richards v. Jefferson County, 517

U.S. 793 (1996), and its progeny. |

The Second Circuit’s holding also undermines this

Court’s recent opinion in Republican Party of Minnesota v.

White, 536 U.S. 765 (2002), by deferring to a state admin-

istrative proceeding determination of the constitutionality

of provisions of the sort which this Court has already

determined to be violative of core First Amendment

freedoms.

This writ should be granted to reconcile this clear

conflict raised by the Second Circuit’s decision expanding

the reach of the Younger abstention doctrine, and to

preserve the integrity of the decision in Republican Party

of Minnesota v. White, 536 U.S. 765 (2002).

Procedural History and District Court Decision

The petitioners commenced a federal action in the

United States District Court for the Northern District of

New York on October 17, 2002 seeking declaratory and

injunctive relief to invalidate Sections 100.1, 100.2(A),

100.5(A)(1)(c)-(g), and 100.5(A)(4)(a) of the New York State

Code of Judicial Conduct (hereinafter the “Code”) (App.,

pp. 102, 117-19) as unconstitutional violations of their

rights under the First and Fourteenth Amendments to the

United States Constitution. (App., pp. 3, 58). At the time of

the commencement of this action, Justice Spargo was the

subject of an administrative proceeding before the respon-

dent New York State Commission on Judicial Conduct

(“Commission”) brought pursuant to the challenged code

sections for, among other things, his participation in the

Florida recount as an observer for the Bush/Cheney

campaign, speaking at a Conservative Party dinner in

Monroe County, New York, distribution of token items

such as donuts and coffee while campaigning for a Town

Judgeship, and for alleged improper payment to several

campaign workers during his election campaign for New

York State Supreme Court Justice. (App., pp. 67-72).

Although Justice Spargo was a sitting Supreme Court

Justice and therefore subject to the administrative proc-

esses of the Commission, petitioners McNally and Ker-

mani were private citizens. Jane McNally was a retired

public service employee who had been active in democratic

party politics throughout her life. (App., p. 57). Peter

Kermani, was the chairperson of the Albany County

Republican Party. (App., pp. 57-58). Justice Spargo’s

federal Complaint challenged as constitutionally infirm in

light of White, Code provisions the Commission invoked

related to his campaign and judicial activities.

McNally and Kermani asserted independent individ-

ual claims arising from the chilling effect on their rights of

free speech and political association, created by the Code.

Their claims, while in part precipitated by their inability

to engage in First Amendment protected activities with

Justice Spargo, reached well beyond that as the challenged

Code provisions impacted their other independent political

activities and contacts. (App., pp. 75-76). They had re-

frained from associating with and supporting judges and

judicial candidates other than Justice Spargo because of

the pending disciplinary charges against him (App., pp. 9-

10).

The District Court, rejecting the Commission’s request

to abstain, reached the merits and found the challenged

Code provisions facially invalid as unconstitutionally

vague prior restraints on speech violative of fundamental

First Amendment freedoms. In doing so, the District

Court expressly held abstention inappropriate as to

McNally and Kermani as they are “not judges or judicial

candidates and therefore are not subject to the Commis-

sion’s authority [and] their constitutional claims cannot

be determined in the Commission proceeding ... ” (App.,

p. 75). The District Court recognized that McNally and

Kermani each articulated individual constitutional claims,

independent from those of Justice Spargo, that the chal-

lenged Code provisions “chill their individual speech and

association and are therefore unconstitutional.” (App., p.

75).

The District Court’s analysis then turned to the

constitutional validity of the challenged Code provisions

and it found that Sections 100.5(A)(1)(c)-(g) and

100.5(A)(4)(a) constituted, on their face, a prior restraint

on protected speech, noting, inter alia, this Court’s recent

decision in Republican Party of Minnesota v. White, 536

U.S. 765 (2002). (App., p. 82).

As for Sections 100.1 and 100.2(A), which set “direc-

tives” to preserve an honorable, independent, and impar-

tial judiciary, the District Court found these provisions

to be void on their face for vagueness. (App., pp. 91-94).

In light of these findings the District Court granted the

petitioners a permanent injunction restraining the re-

spondents from enforcing Sections 100.1, 100.2(A),

100.5(A)(1)(c)-(g), and 100.5(A)(4)(a) of the Code of Judicial

Conduct appended to the New York Judiciary Law as set

forth in the rules of the Chief Administrator of the Courts

in Title 22 of the Official Compilation of Codes, Rules and

Regulations of the State of New York. (App., pp. 94-95).

The District Court reiterated its holding in a decision

of April 29, 2003 denying the respondents’ motion for a

stay of the permanent injunction pending resolution of the

appeal filed with the United States Court of Appeals for

the Second Circuit on March 7, 2003. (App., pp. 42-55).

The Court of Appeals Decision

The United States Court of Appeals for the Second

Circuit reversed the District Court but not on the merits of

the First Amendment claims raised by the petitioners.

Instead it instructed the District Court to abstain from

exercising jurisdiction based on the doctrine articulated in

Younger v. Harris, 401 U.S. 37 (1971). Significantly, the

Court expressly stated its decision “should not be read as

revealing any view on the merits of plaintiffs’ claims.”

(App., p. 41).

Despite acknowledging that neither McNally nor

Kermani were party to nor could have been party to the

state administrative proceeding, and therefore were

without opportunity in that forum to have their federal

claims heard, the Court of Appeals erroneously determined

that their legal claims were “largely the mirror image” of

Spargo’s First Amendment challenge, “unavoidably inter-

twined and inseparable.” (App., p. 38). Significantly, the

Court of Appeals, albeit in a footnote, acknowledged that

invoking the Younger abstention doctrine as against

McNally and Kermani flew in the face of established

precedent. Nevertheless, without legal reasoning or

explanation, the Court of Appeals disregarded that prece-

dent saying simply that “we believe in the particular

circumstances before us, that Younger need not be read so

restrictively.” (App., p. 40 n.21). However, in failing to read

Younger “so restrictively”, it expanded the Younger doc-

trine beyond anything defensible in abstention jurispru-

dence, abrogated the due process rights of McNally and

Kermani, and decided an issue expressly left open by this

Court in Middlesex County Ethics Commission v. Garden

State Bar Ass’n, 457 U.S. 423 (1982). (App., pp. 40-41).

REASONS FOR GRANTING THE PETITION

This Petition must be granted to reconcile the obvious

conflict between the Second Circuit Court of Appeals and

this Court as well as other Circuits with respect to the

applicability of Younger abstention to parties who are not

and may not be party to the subject state proceeding and

determine for the Circuits the question left open in Mid-

dlesex County. In directing the District Court to abstain,

the Second Circuit also ignored and, in the process, un-

dermined the holding of this Court in Republican Party of

Minnesota v. White. The express dictates of the White

holding demonstrate the challenged Code provisions are

flagrantly and patently unconstitutional.

Thus, the Court must entertain this writ to prevent

an unwarranted expansion of the Younger abstention

doctrine, resolve the conflict among the Circuits, and to

preserve the integrity of its own decision in White.

I. McNALLY AND KERMANI ARE WITHOUT A

FAIR OR SUFFICIENT OPPORTUNITY TO

HAVE THEIR CONSTITUTIONAL CLAIMS DE-

CIDED BY A COMPETENT TRIBUNAL AND

YOUNGER ABSTENTION IS THEREFORE IN-

APPROPRIATE

The decision of the Second Circuit Court of Appeals in

Spargo v. New York State Commission on Judicial Con-

duct, 351 F.3d 65 (2d Cir. 2003) (App., pp. 1-41), is dra-

matic and extraordinary in its scope. Put in its simplest

terms, the Second Circuit has held that Younger absten-

tion applies in circumstances where a litigant is not party

to a state proceeding and does not even have the ability to

intervene or participate in that proceeding. Such an

extension of the Younger doctrine is a radical departure

from this Court’s jurisprudence on the subject, as well as

holdings of various other Circuit Courts of Appeal. Its

effect would expand Younger impermissibly into a basis for

suspending due process rights of federal litigants. See,

Richards v. Jefferson County, 517 U.S. 793 (1996).

To hold that a litigant seeking to press his or her

constitutional rights in a federal court may not because of

a pending state proceeding to which they neither are nor

may be a party abrogates the recognized due process

rights of a party to have his or her own day in court. This

is true even when unrelated parties shared “essentially

identical” interests. Richards, 517 U.S. at 796.

As this Court held in Ankenbrandt v. Richards, 504

U.S. 689 (1992),

[I]t is axiomatic ... that ‘abstention from the ex-

ercise of federal jurisdiction is the exception, not

the rule.’ Colorado v. River Water Conservation

District v. United States, 424 U.S. 800, 813

(1976). Abstention rarely should be invoked be-

cause the Federal Courts have a ‘virtually un-

flagging obligation . . . to exercise the jurisdiction

given them.’ /d. at 817.

Ankenbrandt, 504 U.S. at 705. Nowhere could this princi-

ple be more apt than in the setting where a litigant seek-

ing redress of fundamental First Amendment rights in a

federal court is not a party to, nor able to intervene in a

pending state court action. To do so would be to turn

notions of federal state comity, nat to mention notions of

due process of law, inside out.

The Second Circuit flagrantly disregards precedent

when it, in offhanded conclusory fashion, finds the claims

of all three petitioners “interrelated” to justify abstention.

(App., p. 5). While it is true the claims of all three arise

from First Amendment challenges to the Code, and are in

that way related, they are not interrelated in the fashion

which the other Courts of Appeals or this Court have

recognized as meriting abstention. In fact, precedent is to

the contrary, as no case law exists where it has been

determined that legally distinct parties, unrelated by some

type of privity, unable to intervene in the pending state

proceeding, are so “intertwined” that Younger abstention is

merited as to non-parties.

A review of the opinion reveals that the Second Circuit

failed to provide any reasonable explanation for how

McNally and Kermani would have their federal claims

heard given the undisputed fact that “neither was a party

to the pending disciplinary proceeding against Spargo, or

”

otherwise subject to the Commission’s authority ...

(App., pp. 10-11). Seeking to ignore rather than provide a

sound legal basis, the Second Circuit opinion appears to

hold that the required “opportunity to fairly pursue their

constitutional claims in the ongoing state proceedings,” id.

citing Juidice v. Vail, 430 U.S. 326, 387 (1977); Gibson v.

Berryhill, 411 U.S. 564, 577 (1973), need not be applied “in

a mechanical fashion” (App., p. 33) and in any event, at

least as to McNally “she was subpoenaed to testify before

the Commission...” (App., p. 39 n.20). This, according to

the Second Circuit in a footnote, was apparently sufficient

“opportunity” for McNally. They lack even this weak

argument as to Kermani’s opportunity to be heard.

In particular, the Second Circuit’s determination flies

in the face of this Court’s decision in Doran v. Salem Inn,

Inc., 422 U.S. 922 (1975) where the Court expressly held

that when a federal plaintiff is not a party to the state

proceeding, a mere commonality of interest with a party to

the state proceeding is not sufficient to justify abstention.

Id. at 930-31.

In Doran, three bar owners sought federal court

intervention to enjoin a local ordinance prohibiting topless

dancing. Although two of the bars had complied with the

ordinance, and were not subject to a state proceeding, the

third owner had not and was being prosecuted in state

court for an alleged violation. Doran, 422 U.S. at 924-25.

The Supreme Court nevertheless held that Younger did not

bar federal action by the two plaintiffs who could face

prosecution despite that the plaintiffs shared virtually

identical interests:

We do not agree ... that all three plaintiffs

should automatically be thrown into the same

hopper for Younger purposes[.] ... We cannot ac-

cept that view, any more than we can accept peti-

tioner’s equally Procrustean view that because

[the plaintiff subject to prosecution] would have

been barred from injunctive relief had it been the

sole plaintiff [the other two plaintiffs] should

likewise be barred not only from injunctive relief

but from declaratory relief as well. While there

plainly may be some circumstances in which le-

gally distinct parties are so closely related that

they should all be subject to the Younger consid-

erations which govern any one of them, this is

not such a case; — while respondents are repre-

sented by common counsel, and have similar

business activities and problems, they are appar-

ently unrelated in terms of ownership, control,

and management. We thus think that each of the

respondents should be placed in the position re-

quired by our cases as if that respondent stood

alone.

Id. at 928-29 (emphasis supplied).

The case of Hicks v. Miranda, 422 U.S. 332 (1975),

relied upon by the Second Circuit in its decision, does not

alter this analysis. In fact, the Second Circuit’s analysis

and application of that case are flawed. In Hicks, the

Court held the interests of those parties before the state

court were intertwined with others who were not a party.

However, it did so based on proof that the named indi-

viduals were employed by the non-parties. The non-parties

were also owners of copies of the alleged pornographic film

which had been seized by the local authority and had

recourse to seek return of the seized films in the pending

state proceeding. See Hicks, 422 U.S. at 348-49.

Thus, while the Court found an intertwining of inter-

ests, it did so in a vastly different setting than here. The

non-parties were in a relationship of privity with those

party to the pending state proceeding, and had recourse

themselves to become involved in the state court proceed-

ing to seek return of their property. This clearly distin-

guishes Hicks from the matter before the Court,

demonstrating its holding is not a basis for abstention.

—————————

McNally and Kermani are individuals not in privity

with Justice Spargo, and are totally powerless to intervene

in the state proceeding. To find the Hicks holding counsel’s

abstention is to overlook these significant differences.

To suggest that McNally and Kermani should be

barred from the federal court because of the administra-

tive proceeding, also flies in the face of fundamental

principles articulated by this Court that absent extraordi-

nary circumstances, each party is entitled to their own day

in court. The mere existence of litigation brought by other

parties with similar interests does not bar a plaintiff from

pursuing his or her own claims. Long recognized due

process rights are to the contrary.

Establishing exactly this point in Richards v. Jeffer-

son County, 517 U.S. 793 (1996), the Court held that

although three plaintiffs challenging a state tax repre-

sented “essentially identical” interests to distinct indi-

viduals who brought a subsequent challenge to the tax,

(id. at 796), the latter group of plaintiffs was denied due

process when it was barred from asserting its claims due

to the earlier litigation. Id. at 802. Because the plaintiffs

in the suit before the Court were “best described as mere

‘strangers’ to one another,” the court was “unable to

conclude that the [earlier] plaintiffs provided representa-

tion sufficient to make up for the fact that petitioners

neither participated in, nor had the opportunity to partici-

pate in, the [earlier] action.” Jd. at 802.

Subsequent Supreme Court jurisprudence has rein-

forced the proposition that suits brought by parties with

similar interests do not preclude subsequent plaintiffs

from instituting their own litigation, even though they are

aware of prior cases and share a lawyer with earlier

plaintiffs. South Central Bell Telephone Company v.

Alabama, 526 U.S. 160 (1999). Unless there was “privity

or some other special relationship between the two sets

of plaintiffs,” the latter group could not be bound by the

earlier judgment. Jd. at 168. Therefore, this Court rejects

any notion that the mere fact that a litigant in another case

represented “essentially identical” interests poses a bar to a

separate plaintiff pursuing his or her own cause of action.

Neither does due process condone preclusion of a

plaintiff’s claim, even if he or she could have intervened in

a state proceeding. As the Richards court explained, “the

general rule is that the law does not impose upon any

person absolutely entitled to hearing the burden of volun-

tary intervention in a suit to which he is a stranger.”

Richards, 517 U.S. at 800, n.5.

The various Circuits have followed this reasoning in

determining that even where a party may intervene in a

pending State court proceeding, Younger abstention does

not apply where individuals with their own claims are not

party to the state proceeding.

For example, in Cedar Rapids Cellular Telephone v.

Miller, 280 F.3d 847 (8th Cir. 2002), the Eighth Circuit

Court of Appeals, citing to Doran, found that while

Younger abstention applied to Cedar Rapids Cellular and

Davenport Cellular, two of three parties seeking federal

court intervention, it could not preclude access to the

federal courthouse of an independent company, WWC.

Although WWC’s interests were generally aligned with

those of Cedar Rapids Cellular and Davenport Cellular,

the latter two shared common corporate ownership. WWC

had no such relationship with them. Jd. at 882.

In Robinson v. Stovall, 646 F.2d 1087 (5th Cir. 1981),

the Fifth Circuit, in another decision at right angles to the

Second Circuit’s holding, found that the District Court

erred in concluding that Younger abstention applied to

plaintiffs subject to but who had not yet been arrested,

pursuant to a local ordinance. In that matter, a group of

individuals, some which had been arrested and some

which had not, brought a federal action to challenge the

constitutionality of a town ordinance requiring permits

and proscribing the manner in which public protests could

be conducted. In finding that the non-arrested plaintiffs

had a right to federal court review notwithstanding

Younger abstention, the Fifth Circuit held:

A person threatened with, but not yet the subject

of, an alleged illegal arrest, and prosecution or

other violations of his Federal rights may seek

appropriate injunctive and declaratory relief

without any obstacles from the Younger doctrine.

[Citing] Steffel |v. Thompson], 415 U.S. [452,]

461-62 [(1974)]; Doran v. Salem Inn, Inc., 422

U.S. 922, 930-31 [(1975)]; Wooley v. Maynard,

430 U.S. 705, 709-11 [(1977)]; Roe v. Wade, 410

U.S. 113 [(1973)]; Septum, Inc. v. Keller, 614 F.2d

456, 460-61 [(5th Cir. 1980)], cert. denied, [449

U.S. 992 (1980)]; Ealy v. Littlejohn, 569 F.2d 219

((5th Cir. 1978)]; Citizens For A Better Environ-

ment, Inc. v. Nassau County, 488 F.2d 1353, 1361

(2d Cir. 1973).

Robinson, 646 F.2d at 1090. Acknowledging that adjudica-

tion of the non-arrested plaintiffs’ claims could result in a

declaratory judgment that the ordinance did not pass

constitutional muster with obvious collateral estoppel

effect on pending state prosecutions, the Court neverthe-

less found that Younger abstention was not appropriate as

to the non-parties. “Younger principles are not invoked by

the mere fact that federal relief has an impact upon state

governmental machinery.” Id. at 1091 (quoting Morial v.

Judiciary Commission, 565 F.2d 295, 299 (5th Cir. 1977)).

“(Nleither a common interest in the outcome of federal

litigation or a common effort in pressing it requires ab-

stention as to all plaintiffs.” Robinson, 646 F.2d at 1091.

The Second Circuit Court of Appeals all but acknow!l-

edged that it was departing from generally accepted

principles adopted by other Circuits in finding abstention

appropriate as to McNally and Kermani, noting that the

First Circuit as well as the Third Circuit have held that

“Younger can only be applied to third-party plaintiffs

whose interests are closely aligned with the state court

litigant if the third-party plaintiffs can intervene in the

state court proceeding to protect their interests . . . ” (App.,

—-- —_———_ —_”-».-

p. 40 n.21). The cases referenced are that of Casa Marie v.

Superior Court of Puerto Rico, 988 F.2d 252 (1st Cir. 1993)

and New Jersey-Philadelphia Presbytery of the Bible

Presbyterian Church v. New Jersey State Board of Higher

Education, 654 F.2d 868 (8rd Cir. 1981).

In Casa Marie, the First Circuit noted:

[T]he Supreme Court has intimated that Younger

abstention might not apply in some instances to

a federal plaintiff who was not a party, or not

‘closely related’ to a party, in the pending state

court proceeding.

Casa Marie, 988 F.2d at 266. Similarly, the Third Circuit

in New Jersey-Philadelphia Presbytery, referencing this

Court’s decision in Wooley v. Maynard, 430 U.S. 705, 710

(1977), acknowledged “that a federal forum is available to

litigants threatened with violations of federally protected

rights and not presently parties to a state court proceed-

ing.” New Jersey-Philadelphia Presbytery, 654 F.2d at 882.

The Ninth Circuit in contrast to the Second Circuit

holding in Spargo, also recognizes that Younger abstention

is simply inappropriate where federal plaintiffs are not a

party to the pending state court litigation. In Green v. City

of Tucson, 255 F.3d 1086 (9th Cir. 2001), a District Court

judgment of abstention was reversed and remanded where

plaintiffs were not a party to pending state court litiga-

tion. This was so despite their right to intervene in the

state court litigation.

In Green, plaintiffs sought a declaration that an

Arizona statute requiring consent of a neighboring town

for incorporation was unconstitutional. The District Court

dismissed the case on Younger abstention grounds because

the federal plaintiffs could have but did not intervene in

pending state court proceedings. Jd. at 1090-92. In revers-

ing, the Ninth Circuit held that Supreme Court jurispru-

dence on abstention has,

informed us that, although there are limited

circumstances in which such abstention by

federal courts is appropriate, those circumstances

are ‘carefully defined’ and ‘remain the exception,

not the rule,’ [citing] New Orleans Public Service,

Inc. v. Counsel of the City of New Orleans, 491

USS. [350, 359 (1989)] (quoting Hawaiian Housing

Authority v. Midkiff, 467 U.S. 229, 236 [(1984)]),

and that as a general matter, ‘the Federal court’s

obligation to adjudicate claims within their

jurisdiction [is] virtually unflagging’ Id. (quoting

Deakins v. Monaghan, 484 U.S. 193I, 203] (1988));

see also, Quackenbush v. Allstate Insurance

Company, 517 U.S. 706, 716 [1996]; Colorado

River Water Conservation District v. United

States, 424 U.S. 800, 821 (1976).

Green, 255 F.3d at 1089. The Ninth Circuit held that even

though there were plaintiffs who shared interests with

those pressing a pending state court action, the plaintiffs’

interests were not intertwined and did not “come within

the Younger exception to the general rule that non-parties

to a state court action are entitled to litigate their own

claims in federal as in state court.” Green, 255 F.3d at

1104. The Court went on to hold that:

Younger abstention, as the Supreme Court has so

often repeated, is a circumscribed exception to

the overarching rule that the federal courts must

exercise the jurisdiction granted to them by Con-

gress under the Constitution. Our decision today

restores our circuit’s Younger jurisprudence to

the careful boundaries delineated by the Su-

preme Court.

Id. See also, Meredith v. Oregon, 321 F.3d 807, 818 (9th

Cir. 2003).

It is submitted that this writ must be granted so that

the Second Circuit’s Younger jurisprudence can be re-

turned to the careful boundaries delineated by the Su-

preme Court.

The Second Circuit, in an apparent attempt to mini-

mize the rights of McNally and Kermani, and justify the

outcome, states in conclusory fashion that McNally and

Kermani “do not assert independent First Amendment

rights” (App., pp. 3-6), and questioned, without deciding,

their standing to bring the claims. (App., p. 37 n.19). This

rationalization ignores the fact supported by sworn state-

ments from McNally and Kermani that “each assert

individual claims that the challenged sections of the Rules

chill their individual speech and association and are

therefore unconstitutional.” (App., p. 75). Their legal

rights are not simply derivative of the rights of Justice

Spargo or other judges to speak and act, but arise from the

impact of the unconstitutional code provisions on their

independent speech, associational, and political freedoms.

The record is clear that each “refrained from associating

with and supporting other judges and judicial candidates

...” (App., p. 37 n.19). Consequently, it is not possible to

assert they lack independent First Amendment rights.

Moreover, the law demonstrates that each has stand-

ing to bring this federal challenge. “The Supreme Court

has consistently relaxed normal standing requirements in

[FJirst [A]}mendment cases.” Hirschkop v. Snead, 594 F.2d

356, 363 (4th Cir. 1979). In Broadrick v. Oklahoma, 413

U.S. 601 (1973), the Supreme Court held:

Litigants, therefore, are permitted to challenge a

statute not because their own rights of free ex-

pression are violated, but because of a judicial

prediction or assumption that the statutes in ex-

istence may cause others not before the court to

refrain from constitutionally protected speech or

expression.

Id. at 615. See also, Dombrowski v. Pfister, 380 U.S. 479,

486-87 (1965); NAACP v. Button, 37 U.S. 415, 432-33

(1963). Regardless of the Second Circuit’s dicta contained

in a footnote, the law is well settled and McNally and

Kermani have standing and should have been permitted

access to federal court. “When a governmental prohibition

or restraint imposed on one party causes specific harm to a

LES BDA rt OE ee oe ee

third party, harm that a constitutional provision or statute

was intended to prevent, the indirectness of the injury

does not necessarily deprive the person harmed of stand-

ing to vindicate his rights.” Warth v. Seldin, 422 U.S. 490,

505 (1975), citing Roe v. Wade, 410 U.S. 113, 124 (1973);

see, e.g., United States v. Students Challenging Regulatory

Agency Procedures, 412 U.S. 669, 684-690 (1973) (student

group challenged regulations applicable to railroads

because the regulations resulted in adverse environmental

impacts on the natural resources and negatively impacted

the group); The Pitt News v. Fisher, 215 F.3d 354, 360-61

(3rd Cir. 2000) (the college newspaper challenged restric-

tions placed on business regarding the content of adver-

tisement because prohibition on advertisements was a

cause of a decrease in paper’s advertising revenue), Cen-

tral Arizona Water Conservation District v. United States

EPA, 990 F.2d 1531, 1537-39 (9th Cir. 1993) (water dis-

tricts challenged the EPA final rule regulating emissions

where water districts were obligated to pay a portion of

the cost of the generating stations emissions control costs).

Thus, the mere fact that McNally and Kermani are not

directly regulated by the Code is of no moment in analyz-

ing their standing.

Moreover, numerous examples of the right of recipi-

ents to receive speech are reflected in our jurisprudence.

See, Procunier v. Martinez, 416 U.S. 396 (1974) (censorship

of prison inmates mail infringes the rights of the recipi-

ents to receive mail); Lamont v. Postmaster General, 381

U.S. 301 (1965) (citizens have a right to receive communist

political publications). “Throughout all these cases the

First Amendment unwaiveringly protects the right to

receive information and ideas.” Dow Jones and Company,

Inc. v. Simon, 842 F.2d 603, 607 (2nd Cir. 1988).

It is submitted Repubiican Party of Minnesota v.

White, 536 U.S. 765 (2002), is controlling on this point. As

in the instant matter, plaintiffs included not only a judicial

candidate, but also his supporters, individual voters, as

well as various political parties. In reversing, the Supreme

Court declined to address the standing issue. The only

inference to be drawn-is that the Court agreed that the

non-candidate plaintiffs had established standing.

Notably, when White was before the United States

Court of Appeals for the Eighth Circuit, the Court rejected

the defendant’s argument that the non-candidate plaintiffs

lacked standing, arguments identical to those suggested in

the Second Circuit’s footnote. See, Republican Party of

Minnesota v. White, 247 F.3d 854, 861 n.6 (8th Cir. 2002).

The Eighth Circuit held that

the plaintiffs have alleged more than the subjec-

tive ‘chilling’ of their free speech rights. ... [the

judicial candidate] and the other plaintiffs have

stated they were unable to associate with each

other at political party gatherings and alleged

they would have done so absent the ethical re-

strictions. Deprivation of the right to associate

with others politically is a cognizable ‘injury in

fact’... . Because the plaintiffs’ associational in-

_ juries are fairly traceable to Cannon 5 and the

injunctive relief they request will redress them,

the plaintiffs have standing to assert their

claims.

Id.

In light of the foregoing it is clear McNally and Ker-

mani have standing.

The Second Circuit with its Spargo decision has also,

in conclusory fashion and without analysis, answered a

question left open by this Court in Middlesex County

Ethics Committee v. Garden State Bar Ass’n, 457 U.S. 423

(1982), a case heavily relied upon in justifying their

decision. The resolution, however, is one which limits

access to federal courts in a manner not supported by

Younger or its progeny, and stands in contradiction of

Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).

a ae

A review of the Middlesex decision reveals that it does

not support abstention in this case in any event. In fact,

the question of standing as to the parties like Kermani

and McNally was not even before the Supreme Court. In

that case, rather than respond to charges leveled in

accordance with New Jersey Bar disciplinary procedures,

the individual against whom the charge was issued and

three bar organizations filed a federal action charging that

the disciplinary rules were facially vague and overbroad.

Middlesex, 457 U.S. 429. Although the District Court

abstained, a divided Third Circuit reversed finding that

the State Bar disciplinary proceedings did not provide a

meaningful opportunity to adjudicate the constitutional

claims. Id. at 429. The Supreme Court thereafter accepted

the case for review and articulated a three factor test to

determine if Younger abstention applied:’

[Flirst, do the state bar disciplinary hearings

within the constitutionally prescribed jurisdic-

tion of the State Supreme Court constitute an

ongoing state judicial proceeding; second, do the

proceedings implicate important state interests;

and third, was there an adequate opportunity in

the state proceeding to raise constitutional chal-

lenges. :

Id. at 432. The Court answered each question in the

affirmative on the facts of the case presented.

Of critical importance, however, is that abstention was

ordered as to the individual party to the state proceeding,

1 It is critical to note that the New Jersey Supreme Court had

heard oral argument on the attorney’s constitutional challenges and

adopted rules allowing interlocutory appeals of constitutional chal-

lenges during the administrative process while the case was pending in

the United States Supreme Court. Those are also critical factors in

distinguishing the instant matter. See Middlesex County Ethics

Commission v. Garden State Bar Ass’n, 457 U.S. 423, 436 n.15 (1982).

with the Court noting that the question of his opportunity

to have his constitutional claims heard was put to rest by

a subsequent action of the New Jersey Supreme Court in

entertaining his constitutional claims. The Court ex-

pressly stated that it was making no determination as to

the propriety of abstention as to the “respondent organiza-

tions who are not parties to the state disciplinary proceed-

ings,” a question which was not before it. Jd. at 437 n.17.

Middlesex thus left open the question of abstention as to

non-parties such as Kermani and McNally. Thus, it is \

virtually without relevance to the question of abstention

as to McNally and Kermani. However, the Second Circuit,

erroneously, has chosen to answer that question in a

manner which closes the door to federal court. In doing so

it has contradicted Doran which is in point and control-

ling.

Dismissal of a federal suit on abstention grounds

“naturally pre-supposes the opportunity to raise and have

timely decided by a competent state tribunal the federal

issues involved.” Gibson v. Berryhill, 411 U.S. 564, 577

(1973); see, also Kugler v. Helfant, 421 U.S. 117, 124 (1975)

(“the policy of equitable restraint ... is founded on the

premise that ordinarily a pending state prosecution

provides the accused a fair and sufficient opportunity for

vindication of federal constitutional rights.”); Steffel v.

Thompson, 415 U.S. 452 (1974) (holding that the plaintiff,

who was not himself subject to prosecution, could seek to

enjoin enforcement of a criminal trespass ordinance even

though his companion was being prosecuted); Benavidez v.

Eu, 34 F.3d 825, 832 (9th Cir. 1994) (holding that

“Younger’s scope is closely circumscribed to parties actu-

ally involved in state litigation,” and, therefore, Younger

did not bar the suit of a plaintiff whose lawyer was in-

volved as amicus in a state proceeding concerning similar

claims). The respondents are unable to point to a single

case from this or any other Circuit where abstention was

invoked where a party to the federal proceeding was not

SS SSSSSFSFSCOfMFSéS~S~;3CC

2 ali tet R OD SIMO He 6B ios REE

party to, or able to intervene in the pending state action.

The decision of the Second Circuit in so holding is out of

step with case law and establishes a dangerous precedent

that risks turning Younger into a vehicle for denying due

process rights and access to a federal forum.

It is beyond dispute that no state court proceeding

was ongoing to which petitioners McNally or Kermani

were or could be a party. To deny them access to the

Federal court and the relief which, on the merits, Judge

Hurd of the Northern District found they were entitled,

has the practical effect of extinguishing their federal

claims. Younger does not require, nor does it support such

an outcome. “[O]ne of the strengths of our Federal system

is that it provides a double source of protection for the

rights of our citizens. Federalism is not served where the

federal half of the protection is crippled.” Brennan, State

Constitutions and the Protection of Individual Rights, 90

Harv. L. Rev. 489, 503 (1977).

To correct this misapplication of Younger and rectify

this conflict with jurisprudence of this Court and numer-

ous Circuits, the writ of certiorari must be granted.

ll. ABSTENTION WAS IMPROPER AS THE

CHALLENGED PROVISIONS WERE FLA-

GRANTLY AND PATENTLY VIOLATIVE OF

EXPRESS CONSTITUTIONAL PROHIBITIONS

UNDER REPUBLICAN PARTY OF MINNESOTA

v. WHITE

Another critical point counseling the importance that

this Court review the erroneous decision in Spargo is that

while the Circuit Court ordered the District Court to

abstain, that directive came only after the District Court

had reached and addressed the merits of petitioners’

constitutional claims. In a lengthy and scholarly opinion,

Judge Hurd held that the challenged provisions of the

Code were facially unconstitutional as prior restraints of

protected speech and unduly vague, contravening long-

standing First Amendment jurisprudence including this

Court’s recent decision directly on point. Republican Party

of Minnesota v. White, 536 U.S. 765 (2002).

Younger abstention is inappropriate in situations such

as this where a challenged state statute is “flagrantly and

patently violative of express constitutional prohibi-

tions.... ” Younger, 401 U.S. at 53-54. See also, New

Orleans Public Service, Inc. v. Council of the City of New

Orleans, 491 U.S. 350, 366-67 (1989); Public Utilities

Commission of Ohio v. United Fuel Gas Company, 317

U.S. 456, 469 (1943) (the Supreme Court upheld an Order

of the District Court enjoining the State Public Utilities

Commission from attempting directly to regulate inter-

state gas prices because such actions were “on their face

plainly invalid”).

As an initial matter, the Supreme Court has “been

particularly reluctant to abstain in cases involving facial

challenges based on the First Amendment.” City of Hous-

ton v. Hill, 482 U.S. 451, 467 (1987). In Dombrowski v.

Pfister, 380 U.S. 479 (1965), it was held that “abstention

. is inappropriate for cases [where] ... statutes-_are

justifiably attacked on their face as abridging free expres-

sion.” Id. at 489-90. “In such case[s] to force the plaintiff

who has commenced a federal action to suffer the delay of

state court proceedings might itself affect the impermissi-

ble chilling of the very constitutional right he seeks to

protect.” Zwickler v. Koota, 389 U.S. 241, 252 (1967).

In the matter before the Court, a facial challenge was

made under the First Amendment to select provisions of

the Code of Judicial Conduct. The District Court, citing to

the massive amount of First Amendment jurisprudence

counseling that statutory schemes virtually identical to

the New York State Code are violative of core rights and

freedoms bestowed by the Constitution, struck down the

provisions as a prior restraint and as unduly vague.

(App., pp. 83-94). There can be no question in light of this

RAT AGED SM RR IIH RET DELS DORE DONS BSI Ol

poke alr ear SR

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analysis as well as this Court’s recent holding in Republi-

can Party of Minnesota v. White that the Code is flagrantly

and patently violative of the First Amendment to the

United States Constitution. As such, Younger abstention is

not appropriate, and in fact, this: Court must exercise

jurisdiction to protect the integrity of its own decisions.

The Code provisions at issue, and challenged by

Justice Spargo, McNally, and Kermani in the federal

action, prohibit fundamental forms of political speech and

association that no construction could save from constitu-

tional invalidity. New York State Supreme Court Justice is

an elective office. Many of the charges against Justice

Spargo arise from his campaign or political activities. “It is

axiomatic that candidates for elected office do not lose the

protection of the First Amendment when they choose to

run in a political race.” Ackerson v. Kentucky Judicial

Retirement and Removal Commission, 776 F. Supp. 309,

313 (W. D. Ky. 1991). Indeed, “the notion that the special

context of electioneering justified an abridgment of the

right to speak out on disputed issues sets our First

Amendment jurisprudence on its head.” Republican Party

of Minnesota v. White, 536 U.S. 765, 781 (2002) (emphasis

in original). -

“Freedom of association confers a right to join with

others to pursue activities independently protected by the

First Amendment. Because political advocacy and partici-

pation in partisan politics are lodged at the heart of the

First Amendment, freedom of association necessarily

includes a right of political association.” Republican Party

of Connecticut v. Tashiian, 770 F.2d 265, 278 (2nd Cir.

1985), aff'd, 479 U.S. 208 (1986). “Freedom of association

therefore is to be protected as a fundamental component of

our personal liberty.” Id. at 277. Likewise, speech about

the qualifications of candidates for public office is central

to recognized First Amendment freedoms. See White, 536

US. at 781.

The Second Circuit relies heavily on this Court’s

decision in Middlesex County Ethics Committee v. Garden

State Bar Ass’n, 457 U.S. 423 (1982), to support its errone-

ous exercise of Younger abstention. Initially, as already

discussed, this decision clearly left open the question of

abstention as to parties such as McNally and Kermani

who were not party to the State administrative proceed-

ing, Middlesex, 457 U.S. at 437 n.17, which the Second

Circuit has decided in a way that impermissibly broadens

Younger abstention and bars federal cases despite the

absence of an opportunity for non-parties to be heard.

Moreover, Middlesex is sufficiently distinct from the

matter at hand on the fundamental constitutional ques-

tions, so as to be of little guidance. Significant distinctions

exist between the New Jersey Code at issue in that case

and the New York Code at issue here. In fact, a review of

Middlesex and the code at issue underscores the flagrant

unconstitutionality of the New York Code provisions.

Unlike the New York Code, the New Jersey Code

afforded procedural protections to ensure meaningful

consideration of constitutional challenges. Specifically, the

New Jersey Code expressly provided a vehicle for raising

constitutional claims. Rule 1:20-2(j) provided:

All constitutional questions shall be withheld for

consideration by the Supreme Court as part of its

review of the final decision of the Disciplinary

_ Review Board....

Id. at 426 n.2. Moreover, the New Jersey Code permitted a

writ of interlocutory appeal of constitutional questions

during the administrative proceeding. Jd. at 431 n.9. No

such procedural protections exist in the New York Code

and only add to the flagrant unconstitutionality counseling

against abstention.

“Tf the State chooses to tap the energy and the

legitimizing power of the democratic process, it must

accord the participants in that process ... their First

Amendment rights that attach to their roles.’” White, 536

————eor_

Ee ——

- ‘is Se tad ee ae Se

U.S. at 788, quoting Renne v. Geary, 501 U.S. 312, 349

(1991) (Marshall, J., dissenting). Indeed, where a State

has made the decision to popularly elect its trial judges, as

New York has done, it must recognize that with that

decision comes the right of the judicial candidates to

express their viewpoints to the public and moreover that

the public has a right to know. See, ACLU of Fla. v. The

Fla. Bar, 744 F. Supp. 1094, 1098 (N. D. Fla. 1990) (tem-

porarily enjoining defendants from enforcing certain

provisions of the Florida rules governing judicial conduct

on First Amendment grounds). In ACLU of Florida, the

Court analogized to the situation once barring attorney

advertising, noting that if the advertising was misleading,

the proper remedy was more information not less. Id. at

1098. The same reasoning holds true for the public

charged with the right to elect judges.

The “principle of impartial justice under law [does not

mean al state is free to circumscribe [judicial candidates

and judges’] freedom of speech by a rule so sweeping that

only complete silence would comply with a literal, which is

also so far as it appears the intended and the reasonable,

interpretation of the rule.” Buckley v. Illinois Judicial

Inquiry Bd., 997 F.2d 224, 931 (7th Cir. 1993) (declaring

invalid a provision of the Illinois code of judicial conduct as

violative of the First Amendment).

The flagrantly unconstitutional Code provisions effect

a total and uncompromising ban on the free expression

and free association of judges and judicial candidates, such

as Justice Spargo. They are overly broad, and a far cry

from the “narrow specificity” required of limitations on

First Amendment rights. NAACP v. Button, 371 U.S. 415,

433 (1963). While the State may have an interest in an

impartial judiciary, the offending Code provisions bear no

reasonable relationship to accomplishing this end. Beshear

v. Butt, 863 F. Supp. 913, 917 (E. D. Ark. 1994) (invalidat-

ing State law as overly broad and impermissibly vague).

“Any government regulation that limits or conditions

in advance the exercise of protected First Amendment

activity constitutes a form of prior restraint, ... and any

such restraint comes ‘bearing a heavy presumption

against its constitutional validity.” See, Fantasy Book

Shop, Inc. v. City of Boston, 652 F.2d 1115, 1120 (1st Cir.

1981), quoting Southeastern Promotions, Ltd. v. Conrad,

420 U.S. 546, 558 (1975). As the District Court acknowl-

edged, the Code provisions are, on their face, prior re-

straints on petitioners’ First Amendment rights.

The precedent is legion, in various factual settings,

declaring that statutes or regulations restraining free

speech cannot survive constitutional scrutiny. “[U]nfettered

discretion, coupled with the power of prior restraint,

intimidates parties into censoring their own speech, even

if the discretion and power are never actually abused.”

City of Lakewood v. Plain Dealer Publishing Company, 486

U.S. 750, 757 (1988). “It is not merely the sporadic abuse

of power by the censor but the pervasive threat inherent in

its very existence that constitutes the danger to freedom of

discussion.” Thornhill v. Alabama, 310 U.S. 88, 97 (1940).

See, also, Illinois v. Telemktg. Assocs. Inc., 538 U.S. 600

(2003); New York Mag. v. Metro. Transp. Auth., 136 F.3d

123 (2nd Cir. 1998); Beal v. Stern, 184 F.3d 117 (2nd Cir.

1999).

As the Supreme Court found in Grayned v. City of

Rockford, 408 U.S. 104 (1972), statutes that are unduly

vague offend the Constitution in a number of ways.

First, because we assume that man is free to

steer between lawful and unlawful conduct, we

insist that laws give the person of ordinary intel-

ligence a reasonable opportunity to know what is

prohibited, so that he may act accordingly. Vague

laws may trap the innocent by not providing fair

warning. Second, if arbitrary and discriminatory

enforcement is to be prevented, laws must pro-

vide explicit standards for those who apply them.

Ce een ee) ae Pe ae eee Ok a eS

eS Se

ea ee SS eee eee

A vague law impermissibly delegates basic policy

matters to policemen, judges, and juries for reso-

lution on an ad hoc and subjective basis, with the

attendant dangers of arbitrary and discrimina-

tory application. Third, but related, where a

vague statute ‘abut[s] upon sensitive areas of ba-

sic First Amendment freedoms,’ it ‘operates to

inhibit the exercise of [those] freedoms.’ ... Un-

certain meanings inevitably lead citizens to

‘“steer far wider of the unlawful zone”... than if

the boundaries of the forbidden areas were

clearly marked.’

Id. at 108-109 (internal citations omitted).

Whether a given statute or Code provision is unduly

vague is, in the first instance, a sui generis determination.

However, a review of several cases detailing unconstitu-

tionally vague language demonstrates that abstention was

inappropriate given the flagrant unconstitutionality of the

Code.

At issue in Gentile v. State Bar of Nevada, 501 U.S.

1030 (1991) was statutory language which prohibited

attorneys from making statements likely to prejudice an

ongoing adjudicative proceeding, but provided a safe

harbor provision stating that an attorney “may state

without elaboration ... the general nature of the ...

defense.” Id. at 1048. The Court found this unduly vague

for constitutional requirements because “(tlhe lawyer has

no principle for determining when his remarks pass from

the safe harbor of the general to the forbidden sea of the

elaborated.” Id. at 1048-1049.

In Kolender v. Lawson, 461 U.S. 352 (1983), the Court

was faced with a California statute requiring a person

loitering on the streets to provide a “credible and reliable”

identification when requested by a peace officer. See, id. at

356. As the Kolender court noted,

folur Constitution is designed to maximize indi-

vidual freedoms within a framework of ordered

RE EEE ESE TT TI

liberty. Statutory limitations on those freedoms

are examined for substantive authority and con-

tent as well as for definiteness or certainty of ex-

pression. ... As generally stated, the void for

vagueness doctrine requires [a statute to have]

. sufficient definiteness that ordinary people

can understand what conduct is prohibited and

in a manner that does not encourage arbitrary

and discriminatory enforcement.... Although

the doctrine focuses both on actual notice to citi-

zens and arbitrary enforcement, we have recog-

nized recently that the more important aspect of

vagueness doctrine ‘is not actual notice, but the

other principle element of the doctrine — the re-

quirement that a legislature establish minimal

guidelines to govern law enforcement.’

Id. at 357-58, quoting Smith v. Goguen, 415 U.S. 566, 574

(1974).

The obvious risk when the Legislature fails to provide

guidelines is that the offeriding statute may permit the

agents charged with enforcement to pursue their “personal

predilections” without regard to appropriate standards.

See Kolender, 461 U.S. at 358, quoting Smith, 415 U.S. at

575. The court held the use of the terms “credible” and

“reliable” impermissibly vague vesting “virtually complete

discretion in the hands of the police”, Kolender, 461 U.S. at

358, encouraging “arbitrary enforcement by failing to

describe with sufficient particularity what a suspect must

do in order to satisfy the statute.” Jd. at 361.

The offending Code sections are so imprecisely drawn

that they fail to give a person of reasonable intelligence

warning as to what conduct is being regulated. For exam-

ple, Section 100.1 states that judges should maintain and

enforce “high standards of conduct” to preserve the integ-

rity and independence of the judiciary (App., p. 102). Yet

nowhere is the term “high standards of conduct” defined.

Section 100.2(A) requires judges to “promote the public

\ Ra Nes RORY a tt ae ets

confidence in the integrity and impartiality of the judici-

ary”, again without any elaboration or specificity. (App., p.

102). Section 100.5(A)(4)(a) mandates that incumbent

judges and judicial candidates maintain the dignity

“appropriate to judicial office”. (App., p. 119). Nowhere is

the type of conduct deemed “appropriate” defined. Further,

Section 100.5(A)(1)(c) forbids “partisan political activity,”

(App., p. 117) while Section 100.5(A)(1)(g) prohibits attend-

ing “political gatherings”. (App., p. 118). Neither of the

latter two sections provide guidance and definition as to

what is deemed “partisan political activity” or “political

gatherings”. Because of the poor draftsmanship of these

Code provisions, incumbent judges and judicial candidates

are left to guess at the meaning of these proscriptions, and

are left to fall victim to subjective predilections as demon-

strated above.

The ambiguity and vagueness contained in the Code

may result in impermissible arbitrary enforcement by the

Commission. See Fantasy Book Shop, Inc. v. City of Bos-

ton, 652 F.2d 1115, 1123 (1st Cir. 1981). Because the Code

contains no direction or elaboration, the Commission is

free to utilize its “unbridled discretion.” Jd. at 1123.

“Similarly, in numerous other cases, [the Supreme Court]

ha[s] condemned broadly worded [enactments] which

grant such standardless discretion to public officials that

they were free to censor ideas and enforce their own

personal preferences.” Grayned, 408 U.S. at 113, citing

Shuttlesworth v. Birmingham, 394 U.S. 147, 149 (1969)

(“public welfare, peace, safety, health, decency, good order,

morals or conscience”); Staub v. City of Baxley, 355 U.S.

313 (1958) (unbridled discretion vested in mayor and city

council to grant or deny permission to organizations

seeking to solicit new members from the general public);

Saia v. New York, 334 U.S. 558 (1948); Schneider wu. State,

308 U.S. 147 (1939); Lovell v. Griffin, 303 U.S. 444 (1938);

Hague v. Committee for Indus. Org., 307 U.S. 496 (1939).

In light of this overwhelming precedent, there can be

no question that the bar to political speech and expression

imposed on judges and judicial candidates by the chal-

lenged Code provisions and the sweeping admonition to

uphold the integrity of the office patently and flagrantly

violate fundamental First Amendment freedoms. In such a

setting, the doctrine of Younger abstention has no place.

CONCLUSION

The petition for writ of certiorari should be granted.

Respectfully submitted,

DAVID F. KuNzZ, Esq.

GEORGE J. SZARY, ESQ.

DEGRAFF, Foy, KUNZ &

DEVINE, LLP

90 State Street |

Albany, New York 12208

(518) 462-5300

Attorneys for Petitioners

Thomas J. Spargo,

Jane McNally, and Peter Kermani

Co ee Te ee eee |

App. 1

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2003

(Argued: September 29, 2003 Decided: December 9, 2003)

Docket No. 03-7250, 03-7289

THOMAS J. SPARGO, JANE MCNALLY and PETER KERMANI,

Plaintiffs-Appellees-Cross-Appellants,

—-V.—

NEW YORK STATE COMMISSION ON JUDICIAL CONDUCT,

GERALD STERN, individually and as Administrator of the

State Commission on Judicial Conduct and

HENRY T. BERGER, individually and as Chairperson of the

New York State Commission on Judicial Conduct,

Defendants-Appellants-Cross-Appellees.

Before:

MINER, CALABRESI, and STRAUB, Circuit Judges.

Appeals and cross-appeal from the judgment of the

United States District Court for the Northern District of

New York (David N. Hurd, Judge), declaring various

provisions of the New York Rules Governing Judicial

Conduct facially unconstitutional and permanently enjoin-

ing defendants from enforcing the provisions. Because we

find that Younger abstention applies to all of the plaintiffs’

claims, we vacate the judgment and injunction of the

District Court and remand with instruction to abstain.

App. 2

DaAvID F. KUNZ, DeGraff, Foy, Kunz & Devine, LLP

(George J. Szary, on the brief), Albany, NY, for

Plaintiffs-Appellees-Cross-Appellants.

CAITLIN J. HALLIGAN, Solicitor General, (Eliot Spitzer,

Attorney General of the State of New York,

Robert H. Easton, and Edward Lindner, Assis-

tant Solicitors General, of counsel), New York,

NY, for Defendants-Appellants-Cross-Appellees.

Peter Vollmer, Vollmer & Tanck, LLP, Jericho, NY, for

Amicus Curiae The Constitution Project’s

Courts Initiative.

Deborah Goldberg and J.J. Gass, Brennan Center for

Justice at NYU School of Law, New York, NY,

(Victor A. Kovner, Davis Wright Tremaine LLP,

of counsel), for Amicus Curiae Brennan Center

for Justice at NYU School of Law.

Alfred P. Carlton, American Bar Association, Chicago,

IL, (K. Jane Fankhanel, W. Wendell Hall, and

Warren S. Huang, of counsel), for Amicus Cu-

riae American Bar Association.

Steven C. Krane, Proskauer Rose LLP, New York, NY,

for Amici Curiae New York State Bar Associa-

tion, Suffolk County Bar Association, and

Asian American Bar Association.

Daniel Murdock and Joan Salzmann, Association of

the Bar of the City of New York, New York, NY,

(Scott A. Rosenberg, Kirsten E. Gillibrand, and

Robert Newman, of counsel), for Amicus Cu-

riae The Association of tiie Bar of the City of

New York.

App. 3

STRAUB, Circuit Judge:

Plaintiffs, Thomas J. Spargo (“Spargo”), an elected

New York state judge, and two of his political supporters,

Jane McNally (“McNally”) and Peter Kermani (“Ker-

mani”), bring First Amendment and Equal Protection

challenges to three specific New York rules of judicial

conduct:’ (1) 22 N.Y.C.R.R. § 100.1 — which directs judges

to maintain “high standards of conduct” to preserve “the

integrity and independence of the judiciary;” (2) 22

N.Y.C.R.R. § 100.2(A) — which instructs judges to avoid the

appearance of impropriety by “act[ing] at all times in a

manner that promotes public confidence in the integrity

and impartiality of the judiciary;” and (3) 22 N.Y.C.R.R.

§§ 100.5(A)(1)(c)-(g) and 100.5(A)(4)(a) — which prohibit

incumbent judges and judicial candidates from engaging

in partisan political activities that are unrelated to their

own campaign for judicial office and which require all

judicial candidates to “maintain the dignity appropriate to

judicial office.”

After the New York State Commission on Judicial

Conduct (“Commission”), the official agency responsible for

enforcing New York’s judicial conduct rules,’ see N.Y.

* The judicial conduct rules are codified in Title 22 of the Official

Compilation of Codes, Rules & Regulations of the State of New York.

The rules are also set forth in Part 100 of the Rules of the Chief

Administrator of the Courts. For consistency, we adopt the same

citation format as the District Court below and refer to the rules of

judicial conduct “generally as the ‘Rules’ or specifically as ‘22 NYCRR

§ xx.’” See Spargo v. N.Y. State Comm’n on Judicial Conduct, 244

F. Supp. 2d 72, 76 n.3 (N.D.N.Y. 2003).

* The Commission is composed of eleven appointed members

representing lawyers, judges, and members of the public, each of whom

(Continued on following page)

a ee

App. 4

Const. art. VI § 22, charged Spargo with five counts of

judicial misconduct, plaintiffs filed suit under 42 U.S.C.

§ 1983, alleging that the judicial conduct rules at issue

violated their First Amendment and Equal Protection

rights and seeking to enjoin the Commission from proceed-

ing with the pending disciplinary proceedings against

Spargo or otherwise enforcing the challenged rules. Rely-

ing on the Supreme Court’s decision in Republican Party of

Minnesota v. White, 536 U.S. 765, 768 (2002) (concluding

that a Minnesota canon of judicial conduct that prohibited

judicial candidates from announcing their views “on

disputed legal or political issues” violated the First

Amendment as a restriction on core political speech), the

United States District Court for the Northern District of

New York (David N. Hurd, Judge ) declared 22 N.Y.C.R.R.

§§ 100.1, 100.2(A), 100.5(A)(1)(c)-(g) and 100.5(A)(4)(a)

facially unconstitutional and permanently enjoined defen-

dants from enforcing the challenged provisions. See

Spargo v. N.Y. State Comm’n on Judicial Conduct, 244

F. Supp. 2d 72, 92 (N.D.N.Y. 2003).

On appeal, defendants and amici curiae urge us to

reverse the District Court on the merits, arguing that the

challenged judicial conduct rules are narrowly tailored to

serve the compelling state interest in preserving the

reality as well as the appearance of judicial independence

and impartiality. However, because state disciplinary

serves a term of four years. The Governor of New York appoints four

members of the Commission, the Chief Judge of the Court of Appeals

appoints three members, and each of the four leaders of the State

Legislature appoints one of the remaining four positions. All members

of the Commission serve part-time without financial compensation. See

N.Y. Const. art. VI § 22(b); N.Y. "ud. Law § 41(a).

App. 5

proceedings were pending against Spargo at the time the

federal suit was filed, this case raises the threshold

question of whether the District Court should have ab-

stained from exercising jurisdiction over the plaintiffs’ suit

in deference to the ongoing disciplinary proceeding. See

generally Younger v. Harris, 401 U.S. 37, 44-45 (1971)

(cautioning that federal courts should generally refrain

from enjoining pending state court proceedings). Defen-

dants accordingly focus their arguments on the question of

who should have the first opportunity to decide the plain-

tiffs’ constitutional claims, arguing that the pending state

disciplinary proceeding provides Spargo with a fully

adequate forum to raise his constitutional challenges and

that principles of federalism and comity mandate that the

District Court abstain from deciding Spargo’s claims and

the interrelated claims of co-plaintiffs McNally and Ker-

mani.

Citing concerns as to whether Spargo could seek

mandatory review of the Commission’s decision before the

New York Court of Appeals, the District Court declined to

abstain from exercising jurisdiction over Spargo’s claims

under Younger. See Spargo, 244 F. Supp. 2d at 83-85. The

District Court further found no basis to abstain from

hearing the claims of McNally and Kermani, as neither

was a party to the pending disciplinary proceeding against

Spargo. See id. at 82. As we explain more fully below,

because the New York Court of Appeals has subsequently

confirmed that its review of the Commission’s disciplinary

decisions is mandatory, see In re Raab, 763 N.Y.S.2d 213,

215 (N.Y. 2003) (per curiam); In re Watson, 763 N.Y.S.2d

219, 223 (N.Y. 2003) (per curiam), erasing any doubt as to

Spargo’s ability to seek judicial review of his constitutional

claims, and because the claims of all three plaintiffs are

App. 6

inextricably intertwined, we hold that proper deference to

New York’s paramount interest in regulating its own

judicial system mandates the exercise of Younger absten-

tion over plaintiffs’ claims. Accordingly, we vacate the

judgment and injunction of the District Court and remand

with instruction to the District Court to abstain from

exercising jurisdiction over the plaintiffs’ action.

Background

This case arises from an investigation involving

plaintiff Thomas J. Spargo’s potential violation of several

judicial conduct rules. The Commission initiated the

investigation into Spargo’s campaign conduct and political

activity in December 2000 while Spargo was serving as an

elected Town Justice for the Town of Berne in Albany

County, New York. While the investigation was pending,

Spargo ran successfully for the position of Justice of the

Supreme Court in the Third Judicial District of New York,

the position which he currently holds. Eventually the

Commission’s investigation expanded to include allega-

tions that Spargo authorized inappropriate payments of

$5,000 to two political supporters.’

On January 25, 2002, the Commission served Spargo

with a formal written complaint, charging Spargo with

four counts of judicial misconduct. Charge I alleges that

Spargo “failed to observe high standards of conduct ...

failed to act at all times in a manner that promotes public

* During the course of the pending investigation, Spargo was

represented by counsel, testified four times, and was afforded the

opportunity to submit materials in his own defense.

App. 7

confidence in the integrity and impartiauty of the judici-

ary ... [and] failed to maintain the dignity appropriate to

judicial office,” in violation of 22 N.Y.C.R.R. §§ 100.1,

100.2(A), and 100.5(A)(4)(a), by offering items of value

such as cider and donuts to induce voters to vote for him

during his campaign for Town Justice. Charge II alleges

that Spargo “failed to avoid impropriety and the appear-

ance of impropriety and failed to act ... in a manner that

promotes public confidence in the integrity and impartial-

ity of the judiciary,” in violation of 22 N.Y.C.R.R. §§ 100.1

and 100.2(A), by accepting the Albany County District

Attorney-Elect as a client in connection with the contested

election for District Attorney, notwithstanding the fact

that the District Attorney’s office regularly appeared in

criminal cases before Spargo as a sitting Town Justice.

Charge II also alleges that Spargo violated N.Y.C.R.R.

§§ 100.1 and 100.2(A) by presiding over criminal cases

prosecuted by the Albany County District Attorney’s Office

without disclosing to defense counsel that Spargo had

previously represented the District Attorney and that the

District Attorney’s campaign committee still owed Spargo

$10,000 in legal fees.

Charges III and IV allege that Spargo violated 22

N.Y.C.R.R. §§ 100.5(A)(1)’s prohibitions on partisan politi-

cal activity by: (1) attending “governmental sessions for

the recount of presidential votes” during the November

2000 Florida recount as an observer for the Republican

Party and the Bush/Cheney presidential campaign; (2)

“participat[ing] in a loud and obstructive demonstration

against the recount process outside the offices of the

Miami-Dade County Board of Elections” in an attempt to

disrupt the recount process; and (3) serving as the keynote

speaker at the 39th Annual Monroe County Conservative

App. 8

Party Dinner, a fundraising event for the Conservative

Party.

On May 12, 2002, Spargo was served with a supple-

mental complaint charging him with additional violations

of 22 N.Y.C.R.R. §§ 100.1, 100.2, and 100.5(A)(4)(a) for

allegedly authorizing improper payments to two consult-

ants involved in his campaign for Supreme Court Justice.

The supplemental complaint charges that Spargo author-

ized his judicial campaign committee to pay McNally

$5,000, although McNally “had agreed to volunteer her

services [to Spargo’s election campaign] without pay,” for

“consulting services” purportedly rendered on October 30,

2001, the same day that McNally nominated Spargo as the

Democratic Party’s candidate for Supreme Court Justice.

Similarly, the supplemental complaint alleges that Spargo

authorized a second $5,000 payment from his campaign

committee “to Empire Strategy Consultants, the principal

of which is Thomas Connolly, the Rensselaer County

Independence Party Chairman and a delegate to the

Independence Party Judicial Nominating Convention,

after Mr. Connolly supported and worked for [Spargo’s]

nomination as the Independence Party candidate on

October 8, 2001, notwithstanding that neither [Spargo]

nor [Spargo’s] campaign was legally obligated to pay any

money to Mr. Connolly or to Empire Strategy Consult-

ants.”

In his answers to the Commission’s complaints,

Spargo asserted as an affirmative defense that his cam-

paign activities were constitutionally protected and that

the judicial conduct rules that he was charged with violat-

ing were overly broad and unduly vague in violation of

the First Amendment as well as the Constitution of the

State of New York. On July 12, 2002, the Commission

ee ~—s—h

App. 9

designated a referee to conduct a hearing and prepare a

report on the misconduct charges.* See N.Y. Jud. Law

§ 43(2) (authorizing the Commission to appoint a referee

to conduct hearings on judicial misconduct complaints).

The hearing was scheduled for October 21-24, 2002.

However, shortly before the hearing was to commence,

Spargo unsuccessfully requested an adjournment.

On October 17, 2002, immediately following the denial

of the adjournment and only four days before the discipli-

nary hearing was scheduled to begin, plaintiffs filed suit in

federal court bringing facial and as-applied constitutional

challenges to 22 N.Y.C.R.R. §§ 100.1, 100.2(A), 100.5(A)(1)

(c)-(g) and 100.5(A)(4)(a). In their complaint, plaintiffs

assert that “[t]he purpose of this action is to obtain de-

claratory and injunctive relief,” declaring the challenged

rules of judicial conduct unconstitutional, “in violation of

the First and Fourteenth Amendment|s] to the United

States Constitution and Article I, §§ 8, 9, and 11 of the

New York State Constitution.” Plaintiffs also sought to

obtain a permanent injunction barring defendants from

pursuing the pending disciplinary charges against Spargo.

In support of their independent First Amendment

claims, McNally and Kermani both allege that they have

been adversely affected by the defendants’ actions in

pursuing judicial misconduct charges against Spargo.

McNally alleges that “the threat of sanctions against

Spargo” and other judicial candidates whom McNally may

‘ For a more detailed explanation of the underlying facts, the

development of the New York Code of Judicial Conduct, and the judicial

disciplinary process, we refer readers to the District Court’s thorough

discussion at 244 F. Supp. 2d at 74-81.

App. 10

support in the future “impedes her freedom of speech,

including her ability and desire to nominate and show

support for particular candidates as a delegate to future

Democratic Judicial Nominating Conventions.” Similarly,

Kermani contends that he is “adversely affected because,

as a member and chairman of the Republican Party, he is

restrained from associating with Spargo out of concern

that [the] association would adversely impact Spargo.”

Kermani also alleges that he “has declined to invite

Spargo to address [the Republican Party], despite a desire

to do so, out of concern that such activity would result in

[additional] charges being brought against Spargo.”

In expedited proceedings before the District Court,

plaintiffs obtained a temporary restraining order barring

the Commission from taking any further disciplinary

action against Spargo. Deeming the matters in dispute to

be strictly questions of law, the District Court consolidated

the preliminary injunction hearing with a trial on the

merits of plaintiffs’ First Amendment and Equal Protec-

tion claims. On February 20, 2003, the District Court

issued its order and decision, declaring the challenged

judicial conduct rules facially unconstitutional and per-

manently enjoining defendants from enforcing the chal-

lenged rules. See Spargo, 244 F. Supp. 2d at 92.

In reaching its decision, the District Court acknowl-

edged that “[t]here is ‘a strong federal policy against

federal-court interference with pending state judicial

proceedings absent extraordinary circumstances.” Id. at

82 (quoting Middlesex County Ethics Comm. v. Garden

State Bar Ass’n, 457 U.S. 423, 431 (1982)). However, the

District Court determined that Younger abstention did

not extend to McNally’s and Kermani’s constitutional

claims as neither was a party to the pending disciplinary

App. 11

proceeding against Spargo, or otherwise subject to the

Commission’s authority, and McNally and Kermani would

therefore have no opportunity to raise their claims in

Spargo’s disciplinary proceeding. See id. at 82-83. As for

Spargo himself, the District Court determined that while

the other prerequisites for Younger abstention were

present, Younger did not apply because the pending

disciplinary proceedings failed to provide Spargo with an

adequate opportunity to raise his constitutional chal-

lenges. See id. at 85.

First, the District Court expressed concern that

Spargo’s constitutional claims would go unheard if the

pending misconduct charges were found to be unsubstan-

tiated or if the Commission declined to pursue the charges

for other reasons. See id. at 83. Second, the District Court

noted that it was unclear under state law, see N.Y. Jud.

Law § 44(7),° whether Spargo could seek mandatory

review of the Commission’s disciplinary determination

before the New York Court of Appeals or whether such

review was discretionary. See Spargo, 244 F. Supp. 2d at

83-84.° Third, the District Court questioned whether

* Section 44(7) provides that “lalfter a hearing, the commission

may determine that a judge be admonished, censured, removed or

retired [and] ... [t]he judge involved may either accept the determina-

tion of the commission or make written request to the chief judge . . . for

a review thereof by the court of appeals.” N.Y. Jud. Law § 44(7)

(emphasis added).

* In its decision, the District Court specifically recognized that the

question of whether review of the Committee’s disciplinary findings is

mandatory or discretionary is a question of state law “more properly

answered by the New York Court of Appeals.” Spargo, F. Supp.2d at 84

n.9. However, lacking authority to certify the question to the Court of

Appeals, the District Court felt compelled to reach the abstention

(Continued on following page)

App. 12

“[clonsideration cf the validity of the [judicial conduct]

Rules themselves is outside the scope of the Commission’s

authority despite any constitutional defense” that might

be raised by a judge charged with violating the rules. Jd.

at 84. Finally, the District Court observed that the New

York Court of Appeals would review “the [C]ommission’s

findings of fact and conclusions of law” based “on the

record of the proceedings” before the Commission. Id.

(quoting N.Y. Jud. Law § 44(9) with emphasis omitted).

Noting that a disciplinary hearing is not the equivalent of

a full trial, where the rules of evidence apply, and that the

Commission need not provide extensive analysis in reject-

ing proffered constitutional defenses, the District Court

worried that the resulting administrative record would be

too “spare” and “scant” to permit adequate appellate

review. See id.

~ On the merits of plaintiffs’ claims, the District Court

agreed that the judicial conduct rules restricting partisan

political activity, 22 N.Y.C.R.R. §§ 100.5(A)(1)(c)-(g) and

100.5(A)(4)(a), imposed a prior restraint on protected

speech. See id. at 86-87. Relying heavily on the Supreme

Court’s decision in Republican Party of Minnesota v. White,

536 U.S. 765 (2002), the District Court concluded that the

rules were not narrowly tailored to serve the state’s

interest in maintaining and promoting an independent

question based on the record provided by the parties. Cf. Butler v. Ala.

Judicial Inquiry Comm’n, 245 F.3d 1257 (11th Cir. 2001) (certifying

procedural questions to the Alabama Supreme Court to determine

whether plaintiff could raise constitutional challenges to state canons of

judicial ethics during the course of state disciplinary proceedings, thus

satisfying the requirements for Younger abstention).

———————————

App. 13

judiciary.’ See Spargo, 244 F. Supp. 2d at 86-89. Although

New York does not impose the same restrictions on judicial

candidates,’ the District Court reasoned that the chal-

lenged provisions of 22 N.Y.C.R.R. § 100.5 imposed even

broader restrictions, “[e]ssentially ... prohibit[ing] judges

and judicial candidates from [engaging in] any political

activity except their own judicial campaign.” Jd. at 88. The

District Court further rejected defendants’ argument that

the political activity restrictions are narrowly tailored to

advance the compelling state interest in preserving judi-

cial independence, reasoning that judicial candidates may

have been active in politics prior to seeking judicial office,

and “[t]here is no support for the proposition that one-time

participation in political activity,” which the rules do not

address, “impedes the making of independent judgments

any less than current participation in some political

7 In White, the Supreme Court determined that a Minnesota

provision prohibiting judicial candidates from announcing their views

on disputed legal and political issues violates the First Amendment. See

White, 536 U.S. at 788. The majority in White specifically noted “[t]here

is an obvious tension between the article of Minnesota’s popularly

approved Constitution which provides that judges shall be elected, and

the Minnesota Supreme Court’s announce clause which places most

subjects of interest to the voters off limits.” Jd. at 787.

* Under New York law, judicial candidates may announce their

views on disputed issues, as long as they avoid “makling] pledges or

promises of conduct in office other than the faithful and impartial

performance of the duties of the office,” and refrain from issuing

“statements that commit or appear to commit the candidate with

respect to cases, controversies or issues that are likely to come before

the court.” 22 N.Y.C.R.R. § 100.5(A)(4)(d)(i)-(ii). Plaintiffs do not

contend that these provisions violate the First Amendment. Cf. Watson,

763 N.Y.S.2d at 224-26 (interpreting 22 N.Y.C.R.R. § 100.5(A)(4)(d)(i)

and concluding that the judicial conduct rules’ limited ban on pledges or

promises survives First Amendment scrutiny).

App. 14

activity.” Id. The District Court also reasoned that judicial

bias could be effectively remedied through voluntary

recusal instead of broad restrictions on political speech

and activity. See id. at 88-89.

As for 22 N.Y.C.R.R. §§ 100.1 and 100.2(A), which

affirmatively direct judges and judicial candidates to

observe “high standards of conduct” and act “in a manner

that promotes public confidence in the integrity and

impartiality of the judiciary,” the District Court held that

both provisions were void for vagueness, because the

provisions failed to give adequate notice of the specific

activity prohibited and consequently were likely to chill

protected activity. See id. at 90-91. Finally, although the

District Court ruled for plaintiffs on their First Amend-

ment challenge, it rejected plaintiffs’ parallel equal protec-

tion claim, explaining that New York could impose special

restrictions on the speech of judicial candidates, because

“[j]udicial candidates and candidates for other public office

are not similarly situated.” Jd. at 86.

The parties now appeal. Defendants argue that: (1)

the District Court should have abstained from hearing

plaintiffs’ suit in deference to the pending disciplinary

proceeding against Spargo, (2) plaintiffs McNally and

Kermani lack Article III standing to bring independent

constitutional claims because their allegations of injury

are too conclusory, and (3) the District Court erred in

analyzing the merits of plaintiffs’ First Amendment

challenge. Plaintiffs have filed a cross-appeal on the denial

of their equal protection claim.

App. 15

While the appeal was pending,’ the New York Court of

Appeals issued two decisions that erased any doubt as to

the mandatory nature of its review of Commission disci-

plinary decisions. See Raab, 763 N.Y.S.2d at 215 (noting

that the Commission’s “determination is reviewable as of

right”); Watson, .763 N.Y.S.2d at 223 (stating that

“(pletitioner appeals to this Court as of right”). Moreover,

Raab and Watson confirm that judges and judicial candi-

dates subject to disciplinary proceedings have the oppor-

tunity to raise First Amendment challenges before the

Court of Appeals. See Raab, 763 N.Y.S.2d at 216-19 (dis-

tinguishing the Supreme Court’s decision in White and

concluding that the restrictions on partisan political

activity contained in 22 N.Y.C.R.R. § 100.5(A)(1)(c)-(h) are

narrowly tailored to address the state’s compelling inter-

ests in preventing political bias and corruption and the

appearance of such corruption); Watson, 763 N.Y.S.2d at

224-26 (considering but rejecting First Amendment chal-

lenge to 22 N.Y.C.R.R. § 100.5(A)(4)(d)(i)’s ban on the

making of “pledges or promises” by judicial candidates).

We conclude that in declining to abstain under

Younger the District Court placed too much weight on the

uncertainty of state procedures for raising constitutional

claims in disciplinary proceedings. In addition, we recog-

nize that the Court of Appeals has subsequently clarified

the scope of available review of constitutional challenges

* After the District Court denied defendant’s request for a stay

pending appeal, see Spargo v. N.Y. State Comm’n on Judicial Conduct,

2003 WL 2002762 (N.D.N.Y. Apr. 29, 2003), this Court granted defen-

dants’ motion for an expedited briefing schedule and for a stay of

judgment pursuant to FED. R. APP. P. 8(a)(2).

App. 16

to the judicial conduct rules. While the opinions in Raab

and Watson were not available at the time the District

Court issued its decision, they now make explicit that

plaintiffs have a sufficient opportunity to raise their

constitutional claims during the course of state proceed-

ings, and this precludes the District Court from exercising

jurisdiction over a parallel action that seeks to disrupt the

state proceeding. Finally, we find that abstention applies

to the derivative claims of plaintiffs McNally and Ker-

mani, as their First Amendment interests are inextricably

intertwined with the First Amendment interests asserted

by Spargo.

In deciding this case on abstention grounds, we are

sensitive to the importance of the free speech issues raised

on appeal and emphasize that our decision should not be

read as revealing any view on the merits of plaintiffs’

claims. As amici curiae point out, all fifty states have

adopted codes of judicial conduct, containing provisions

identical, or substantially similar, to the judicial conduct

rules challenged in this case. Moreover, like New York, see

N.Y. Const. art. VI §§ 6, 10, 12-13, 15-17, the majority of

states in this country have adopted a system of judicial

elections, raising potential concerns about how broadly the

speech of elected judicial and judicial candidates may be

restricted. See White, 536 U.S. at 790 (O’Connor, J.,

concurring). Accordingly, any ruling on the merits of

plaintiffs’ First Amendment challenge may have wide-

spread influence and impact. That being the case, our

ruling does not deny plaintiffs the opportunity to raise

their constitutional challenge; we simply direct plaintiffs

to the alternative state forum where proceedings have

already begun. It is to the State Commission on Judicial

Conduct and the New York Court of Appeals that plaintiffs

Ta ee eee ee Ee ee ee ee Teel ee ee

App. 17

must make their arguments, and to which other interested

parties must look, for further guidance and development of

the law in the context of this controversy. Beyond that, the

parties have available whatever review the Supreme

Court opts to offer them. Cf. Guido Calabresi, Federal and

State Courts: Restoring a Workable Balance, 78 N.Y.U.L.

REV. 1293, 1303 (2003) (Madison Lecture).

Discussion

As a threshold matter, because defendants raise both

standing and abstention concerns, and because we have an

independent obligation to ensure that standing exists, see

N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d

316, 324-25 (2d Cir. 2003), we must determine whether we

may decide the case on Younger grounds without confirm-

ing the existence of constitutional standing. Steel Co. v.

Citizens for a Better Environment, 523 U.S. 83 (1998),

directs federal courts to resolve questions of Article III

jurisdiction before reaching the merits of a plaintiff’s

claim. While dismissal or a stay of claims is mandatory

when the requirements for Younger abstention are satis-

fied, see Diamond “D” Constr. Corp. v. McGowan, 282 F.3d

191, 197 (2d Cir. 2002), Younger is mot a jurisdictional bar

based on Article III requirements, *«? instead a prudential

limitation on the court’s exercise ©! jurisdiction grounded

in equitable considerations of comity. See, e.g., Benavidez

v. Hu, 34 F.3d 825, 829 (9th Cir. 1994) (“Younger absten-

tion is not jurisdictional, but reflects a court’s prudential

decision not to exercise jurisdiction which it in fact pos-

sesses.”) (emphasis in original); Schachter v. Whalen, 581

F.2d 35, 36 n.1 (2d Cir. 1978) (per curiam) (“Younger

abstention goes to the exercise of equity jurisdiction, not to

App. 18

the jurisdiction of the federal district court as such to hear

the case.”).

Despite the prudential nature of the abstention

inquiry, we may still proceed to decide a case under

Younger without addressing the plaintiffs’ constitutional

standing to bring suit. As the Supreme Court clarified in

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 584-85

(1999), Steel Co. does not mandate a strict “sequencing of

jurisdictional issues,” as it does not violate separation of

powers principles to dismiss an action on a non-merits

ground before finding subject-matter jurisdiction. Thus,

while Steel Co. may bar the exercise of hypothetical

jurisdiction to dismiss on the merits of a claim,” RuArgas

reaffirms the inherent flexibility that federal courts

exercise “to choose among threshold grounds” for disposing

of a case without reaching the merits. Jd. at 585. Accord-

ingly, we may decide that abstention is proper under

Younger without deciding whether plaintiffs have demon-

strated Article III injury-in-fact. See id. (citing Ellis v.

Dyson, 421 U.S. 426, 433-34 (1975)).

A. Younger Abstention

We review the District Court’s Younger analysis de

novo, see Diamond “D” Constr., 282 F.3d at 197, and begin

by analyzing the underlying principles and policies that

dictate deference towards pending state proceedings. As

° But see Ctr. for Reproductive Law & Policy v. Bush, 304 F.3d 183,

193-95 (2d Cir. 2002) (indicating that there may be certain exceptional

cases where the court may dispose of the case on the merits to avoid

deciding a novel and difficult question of standing).

App. 19

the Supreme Court emphasized in Younger v. Harris, 401

U.S. 37, 43-45 (1971), federal courts should generally

‘refrain from enjoining or otherwise interfering in ongoing

‘state proceedings. This principle of abstention is grounded

in interrelated principles of comity and federalism. See

Schlagler v. Phillips, 166 F.3d 439, 442 (2d Cir. 1999).

Both considerations require federal courts to be “cognizant

that ‘the National Gewernment will fare best if the States

and their institutions are left free to perform their sepa-

rate functions in their separate ways.’” Younger, 401 U.S.

at 44. “Our Federalism” in its ideal form, as the Supreme

Court explained in Younger, strives towards “a system in

which there is sensitivity to the legitimate interests of

both State and National Governments, and in which the

National Government, anxious though it may be to vindi-

cate and protect federal rights and federal interests,

always endeavors to do so in ways that will not unduly

interfere with the legitimate activities of the States.” Id.

In recognition of this balance of interests, Younger gener-

ally prohibits courts from “taking jurisdiction over federal

constitutional claims that involve or call into question

ongoing state proceedings” so as to avoid unnecessary

friction. Diamond “D” Constr., 282 F.3d at 198. Giving

states “the first opportunity ... to correct their own

mistakes” when there is an ongoing state proceeding

serves the vital purpose of “reaffirm[ing] the competence of

the state courts,” and acknowledging the dignity of states

as co-equal sovereigns in our federal system. Jd. at 200.

Younger itself involved a First Amendment challenge

to a pending state criminal proceeding. However, the same

comity and federalism concerns are equally applicable to

state administrative proceedings “in which important

state interests are vindicated.” Ohio Civil Rights Comm’n

App. 20

v. Dayton Christian Schs., Inc., 477 U.S. 619, 627 (1986).

Accordingly, Younger abstention is mandatory when: (1)

there is a pending state proceeding, (2) that implicates an

important state interest, and (3) the state proceeding

affords the federal plaintiff an adequate opportunity for

judicial review of his or her federal constitutional claims.”

See Diamond “D” Constr., 282 F.3d at 198.

In this case, there is no dispute that the first two

requirements for Younger abstention are satisfied. Plain-

tiffs filed suit after the Commission initiated a disciplinary

proceeding against Spargo, a proceeding that undeniably

implicates a vital state interest. Indeed, few interests can

be considered more central than a state’s interest in

regulating its own judicial system. See Landmark Com-

munications, Inc. v. Virginia, 485 U.S. 829, 848 (1978)

(Stewart, J., concurring in the judgment) (emphasizing

that “[t]here could hardly be a higher governmental

interest than a State’s interest in the quality of its judici-

ary”); cf. Pincham v. Ill. Judicial Inquiry Bd., 872 F.2d |

1341, 1347 (7th Cir.) (recognizing that the state has a vital

_interest in “preserving a fair and impartial judiciary”),

cert. denied, 493 U.S. 975 (1989); Anonymous v. Ass’n of

the Bar of the City of New York, 515 F.2d 427, 430 (2d Cir.)

(noting that “[i]t would appear axiomatic that the effective

" “Despite the strong policy in favor of abstention,” even where

Younger would otherwise apply, a federal court may still intervene in

state proceedings if the plaintiff demonstrates “bad faith, harassment

or any other unusual circumstance that would call for equitable relief.”

Diamond “D” Constr., 282 F.3d at 198 (quoting Younger, 401 U.S. at 54

and delineating scope of the “bad faith” and “extraordinary circum-

stances” exceptions to Younger abstention). However, plaintiffs do not

allege that any of these exceptions apply here.

i acre scr cca were ccm emcee ne

TOE ABS Bee eee, at DUN BE AS Ms

App. 21

functioning of any court depends upon its ability to com-

mand respect not only from those licensed to practice

before it but also from the public at large”), cert. denied,

423 U.S. 863 (1975).

Plaintiffs primarily argue that abstention is inappro-

priate, because there is no opportunity for Spargo to

meaningfully pursue his constitutional claims in the ~

pending disciplinary proceeding, and because McNally and

Kermani are not party to any pending Commission pro-

ceeding or other state action. In analyzing plaintiffs’

arguments against abstention, we note that the underly-

ing facts and claims in this case are strikingly similar to

the facts and issues raised in Middlesex County Ethics

Committee vu. Garden State Bar Ass’n, 457 U.S. 423 ( 1982),

the seminal Supreme Court case that first clearly ex-

tended Younger to state administrative proceedings. In

Middlesex, plaintiffs brought a federal action, alleging that

several attorney disciplinary rules promulgated by the

New Jersey Supreme Court violated the First Amendment.

Prior to the initiation of the federal action, one of the

plaintiffs, Lennox Hinds (“Hinds”), a practicing New

Jersey attorney, was formally charged with violating the

disciplinary rules by a county ethics committee after he

allegedly made statements disparaging the judicial system

during the course of a criminal trial. See id. at 427-28.

Instead of answering the charges, Hinds filed suit in

federal court along with other plaintiff legal organizations,

claiming that the New Jersey disciplinary rules violated

the First Amendment and were facially overbroad and

vague. See id. at 429. The district court dismissed the suit

under Younger, but a divided panel of the Third Circuit

reversed, concluding that abstention was improper be-

cause the state disciplinary proceedings did not provide

ee eee

iN a aye epoca are oe ee

App. 22

plaintiffs with a meaningful opportunity to adjudicate

their constitutional claims. See Garden State Bar Ass’n,

643 F.2d at 121.

In rejecting the application of Younger, the Third

Circuit focused on the fact that the state disciplinary

proceedings were nonadjudicative in nature, and primarily

“designed to elicit facts, not legal arguments,” id. at 126,

and concluded that even if Hinds could raise a constitu-

tional challenge during his pending disciplinary proceed-

ings, New Jersey:

rules [made] no provision for the filing of an

opinion by the District Ethics Committee or the

Disciplinary Review Board [and hence] ... [t]he

very privacy of the proceeding militate[d] against

a meaningful constitutional adjudication, since

the determination [would] not provide any rem-

edy against the chill which the rules and the fil-

ing of charges allegedly created in the minds of

other members of the New Jersey bar.

Id. “On petition for rehearing petitioner attached an |

affidavit from the Clerk of the New Jersey Supreme Court |

which stated that the New Jersey Supreme Court would

directly consider Hinds’ constitutional challenges and that

the court would [also] consider whether such a procedure

should be made explicit in the Supreme Court rules.”

Middlesex County Ethics Comm., 457 U.S. at 430. How-

ever, the Third Circuit panel declined to alter its original

decision, reasoning that it was not established that Hinds

could have obtained such judicial review when the federal

complaint was filed, and that, in any event, such discre-

tionary action by the New Jersey Supreme Court was not

sufficient to trigger mandatory abstention. See Garden

App. 23

State Bar Ass’n v. Middlesex County Ethics Comm., 651

F.2d 154, 156-57 (3d Cir. 1981).

The Supreme Court reversed, noting that the impor-

tance of the state interest in “maintaining and assuring

the professional conduct of the attorneys it licenses ...

calls Younger abstention into play,” and concluding that

“[s]o long as the constitutional claims of [plaintiffs] can be

determined in the state proceedings .. . the federal courts

should abstain.” Middlesex County Ethics Comm., 457 U.S.

at 434-35. The Supreme Court’s decision further empha-

sized that in conducting the Younger inquiry, considera-

tions of comity “preclude[] any presumption that the state

courts will not safeguard federal constitutional rights.” See

id. at 431. Noting that abstention is based on the funda-

mental principle that parties should assert any available

constitutional defenses in state proceedings unless it is

plainly apparent that they are barred from raising such

constitutional claims, the Supreme Court placed the

burden of establishing the inadequacy of state proceedings

squarely on the party seeking to avoid abstention. See id.

at 435-36.

In addition, while the Supreme Court in Middlesex

acknowledged that whether Hinds could seek judicial

review of his constitutional claims during the course of

state proceedings was initially unclear, the Court also

recognized that the New Jersey Supreme Court had

subsequently considered Hinds’s claims sua sponte and

formally amended its rules to permit interlocutory review

of constitutional challenges to attorney disciplinary

proceedings. See id. at 427, 436. Concluding that “[t]here

[was] no reason for the federal courts to ignore . . . subse-

quent development|s]” demonstrating that Hinds had had

an opportunity to raise his constitutional claims during

App. 24

the course of state proceedings, the Supreme Court held

that the mandatory abstention applied to Hinds’s First

Amendment claims. See id. at 436-37.

B. Adequate Opportunity to Raise Constitutional

Claims in State Proceedings

Here, as in Middlesex, abstention largely turns on the

question of whether Spargo has an adequate opportunity

to raise his constitutional claims in the pending state

proceeding. On appeal, despite the intervening decisions

by the New York Court of Appeals, plaintiffs still contend

that state law does not clearly grant the Commission

jurisdiction to consider constitutional arguments or

provide for mandatory review of the Commission’s disci-

plinary decisions by the Court of Appeals. Plaintiffs also

argue that abstention would still be unwarranted, even if

the Commission were willing to consider Spargo’s constitu-

tional claims, because: (1) the misconduct charges against

Spargo could be dismissed on alternate grounds, leaving

the constitutionality of the challenged judicial conduct

rules still in question, (2) the Commission may choose to

summarily reject Spargo’s constitutional claims, effectively

limiting Spargo’s ability to seek meaningful review before

the Court of Appeals, and (3) the Commission’s decision

will remain confidential, and thus have limited preceden-

tial value even if Spargo prevails on his constitutional

challenges.

None of these arguments have any merit given Mid-

dlesex’s unequivocal statement that abstention is appro-

priate where the plaintiff has an “opportunity to raise

and have timely decided by a competent state tribunal”

the constitutional claims at issue in the federal suit.

ett ee

SE LD Grek, “2 FE,

App. 25

Middlesex County Ethics Comm., 457 U.S. at 437 (quoting

Gibson v. Berryhill, 411 U.S. 564, 577 (1973)); see also

Juidice v. Vail, 430 U.S. 327, 337 (1977) (reasoning that

where it is “abundantly clear that appellees had an oppor-

tunity to present their federal claims in the state proceed-

ings ... [nlo more is required to invoke Younger

abstention”). More importantly, under Younger, any uncer-

tainties as to the scope of state proceedings or the avail-

ability of state remedies are generally resolved in favor of

abstention. See Butler v. Ala. Judicial Inquiry Comm’n,

261 F.3d 1154, 1159 (11th Cir. 2001) (concluding that

abstention was required even without authoritative

guidance as to whether plaintiff could raise his First

Amendment claims in the pending state judicial discipline

proceeding).

Accordingly, to avoid abstention, plaintiffs must

demonstrate that state law bars the effective consideration

of their constitutional claims. See Middlesex County Ethics

Comm., 457 U.S. at 432 (where pending administrative

proceedings implicate important state interests, “a federal

court should abstain ‘unless state law clearly bars the

interposition of the constitutional claims’”) (quoting Moore

v. Sims, 442 U.S. 415, 426 (1979)); Ohio Civil Rights

Comm'n, 477 U.S. at 629 (holding that abstention was

mandatory where plaintiff could cite no state authority

preventing judicial review of his constitutional claims);

Kirschner v. Klemons, 225 F.3d 227, 235 (2d Cir. 2000) (to

establish the inadequacy of state remedies, the plaintiff

must “show[] that the State’s laws, procedures, or prac-

tices would prevent his effective interposition of his

federal contentions”). In this case, the District Court

declined to abstain, noting that defendants had failed to

cite any cases in which the Commission or the Court: of

App. 26

Appeals had ever addressed a constitutional challenge to

the judicial conduct rules. See Spargo, 244 F. Supp. 2d at

85. However, under Younger, it is the plaintiff’s burden to

demonstrate that state remedies are inadequate, and

defendants need not establish that state law definitively

permits the interposition of constitutional claims.

In opposition to abstention, the plaintiffs have merely

pointed to potential ambiguities in state statutes and

regulations. But in applying Younger, federal courts may

not “assume that state judges will interpret ambiguities in

state procedural law to bar presentation of federal claims.”

Pennzoil Co. v. Texaco, Inc., 481 U.S. 1, 15 (1987). Even if

we accept that no other constitutional challenges to the

New York judicial conduct rules have ever been addressed,

“in the history of state proceedings” as the District Court

found, see Spargo, 244 F. Supp. 2d at 85, plaintiffs have

not pointed to any state law or firmly established state

practice that would effectively bar Spargo from asserting

constitutional defenses to the Commission’s disciplinary

charges.”

* Moreover, while “Younger abstention often involves a level of

uncertainty,” a plaintiff, like Spargo, who decides to file a federal action

before presenting his constitutional claims in state proceedings may

himself preclude the federal court from knowing with any assurance

“how the state court would have responded.” Butler, 261 F.3d at 1159

n.6; cf. Middlesex County Ethics Comm., 457 U.S. at 435 (concluding

that Younger abstention was warranted where the plaintiff had not

attempted to raise his constitutional challenges in his state disciplinary

proceeding and could point to no regulatory or statutory authority that

would have barred the ethics committee from considering his constitu-

tional claims).

App. 27

In addition, as in Middlesex, any doubts about the

Commission’s willingness to consider constitutional

challenges or the availability of judicial review have been

resolved pending appeal, and there is no reason for this

Court to ignore the New York Court of Appeals’ subsequent

decisions in In re Raab, 763 N.Y.S.2d 213 (N.Y. 2003) (per

curiam) and In re Watson, 763 N.Y.S.2d 219 (N.Y. 2003)

(per curiam), both of which unambiguously affirm that the

Commission will consider First Amendment arguments

and, further, establish that sanctioned judges may seek

mandatory review of the Commission’s decision before the

Court of Appeals.” Such ability to raise constitutional

claims in subsequent “state-court judicial review of [an

underlying] administrative proceeding” is sufficient to

provide plaintiffs with a meaningful opportunity to seek

effective relief through state proceedings and bar federal

courts from taking jurisdiction over the same claims while

the state proceeding is pending.“ See Ohio Civil Rights

* We acknowledge that the District Court did not have the benefit

of these Court of Appeals decisions when faced with the threshold

abstention question, and in this case, unlike in Middlesex, “proceedings

of substance on the merits” had taken place in federal court prior to the

subsequent clarification of the scope of state proceedings. Middlesex

County Ethics Comm., 457 U.S. at 436 (quoting Hicks v. Miranda, 422

U.S. 332, 349 (1975)). Even under these circumstances, we believe that

abstention is still appropriate. Perhaps the balance of equities would be

different in another situation where state law changes substantially

during the pendency of the federal case. But here, where there was

merely initial ambiguity as to the scope of available judicial review, a

possibility that does not prevent the application of Younger, abstention

is not precluded solely because the District Court ruled on the merits of

plaintiffs’ constitutional claims. .

“ Indeed, some courts would hold that abstention is required even

where only discretionary judicial review is available. In Hirsch v.

Justices of the Supreme Court of California, 67 F.3d 708, 712-13 (9th

(Continued on following page)

App. 28

Comm'n, 477 U.S. at 629; Cullen v. Fliegner, 18 F.3d 96,

103 (2d Cir. 1994).

Significantly, this conclusion is not altered by the fact

that Spargo’s disciplinary charges may be dismissed on

other grounds, such as for lack of substantial evidence, or

by the fact that the Court of Appeals may choose to nar-

rowly construe the judicial conduct rules to avoid a poten-

tial constitutional confrontation, as the plaintiffs suggest.

The relevant question under Younger is “whether the

state’s procedural remedies could provide the relief

sought [not] ... whether the state will provide” the

constitutional ruling which the plaintiff seeks. Kirschner,

225 F.3d at 234-35 (emphasis added) (noting that “it

[was] irrelevant to the application of Younger that [plain-

tiff’s] constitutional claims ... [had] not [been] addressed

by the Appellate Division” where the Appellate Division

found for plaintiff on alternate grounds). Indeed, insist-

ing on the priority of federal constitutional claims would

undermine the considerations of comity and deference

that underlie Younger. As the Supreme Court has ex-

plained, an “important reason for [Younger] abstention is

Cir. 1995) (per curiam), for example, the Ninth Circuit affirmed the

dismissal of plaintiffs’ constitutional challenges to the California

attorney discipline system although constitutional claims could not be

considered during the initial disciplinary proceeding and the California

Supreme Court’s review of the disciplinary decision was wholly

discretionary. The Ninth Circuit reasoned that “[j]udicial review is

inadequate” under Younger “only when state procedural law bars

presentation of the federal claims” and “[t]he fact that review is

discretionary does not bar presentation of [plaintiff’s] federal claims.”

Id. at 713; see also Fieger v. Thomas, 74 F.3d 740, 748-49 (6th Cir. 1996)

(rejecting argument that Younger can only apply where the plaintiff has

an appeal as of right from an adverse administrative decision).

CD net ees OP th A LTE RTA 2 tt te a tent NO Kamel nto tik Oe Sot

App. 29

to avoid unwarranted determination of federal constitu-

tional questions” where it is possible that state courts may

resolve the case on state law grounds “without reaching

the federal constitutional questions.” Pennzoil, 481 U.S. at

11-12. “Younger abstention in situations like this ‘offers

the opportunity for narrowing constructions that might

obviate the constitutional problem and _ intelligently

mediate federal constitutionai concerns and state inter-

ests.’” Id. at 12 (quoting Moore v. Sims, 442 U.S. at 429-

30); see also Yamaha Motor Corp., U.S.A., v. Stroud, 179

F.3d 598, 603 (8th Cir. 1999) (noting that “[c]omity favors

permitting the [state] court system to decide issues of

state statutory law, and abstention is called for when it is

possible that the state court might interpret the underly-

ing law in such a way as to foreclose the need to review at

least some of the plaintiff’s federal claims,” and indicating

that “[t]his rationale applies with even more force when

abstention might allow the federal court to avoid unneces-

sary constitutional questions”).’ Thus, the argument that

Spargo’s disciplinary proceeding could be resolved on

alternative grounds, without deciding the constitutional

issues raised in the federal suit, actually weighs in favor

of, and not against, the exercise of abstention.”

6 The same considerations that weigh in favor of abstention also

counsel in favor of certification to state courts to avoid “premature

adjudication of constitutional questions ... when a federal court is

asked to invalidate a State’s law.” See Arizonans for Official English v.

Arizona, 520 U.S. 43, 79 (1997).

tional challenges from reaching the Court of Appeals by strategically

dismissing misconduct charges. However, these allegations are merely

speculative, and there is no reason to believe that the Commission

would so act, in direct contravention of its statutory duty.

App. 30

Plaintiffs also challenge the adequacy of state pro-

ceedings, because the Commission’s findings are kept

confidential unless a sanctioned judge requests further

review by the Court of Appeals, see N.Y. Jud. Law §§ 44(7)

& 45, and the Commission has no obligation to issue a full

decision should it reach the merits of Spargo’s constitu-

tional challenge. In assessing these arguments, we begin

by noting that the record gives us no reason to question

the ability of either the Commission or the Court of Ap-

peals to fully and fairly address Spargo’s constitutional

claims despite plaintiffs’ intimations to the contrary. In

addition, while plaintiffs point to procedural differences

between the state administrative process and federal

litigation, Younger implicitly recognizes that states may

adopt a variety of different procedures to resolve legal

disputes, yet it directs federal courts to defer to state

procedures, leaving state institutions “free to perform

their separate functions in their separate ways.” Younger,

401 U.S. at 44. Moreover, similar arguments about the

adequacy of state proceedings were rejected by the Su-

preme Court in Middlesex, a case which also involved a

disciplinary hearing before a state ethics committee whose

primary mission was fact-finding. See Middlesex County

Ethics Comm., 457 U.S. at 429. The Supreme Court

determined that the availability of further judicial review

before the state’s highest court triggered mandatory

abstention under Younger although the ethics committee

was not required to issue a formal written opinion of its

disciplinary decision and proceedings before the committee

were confidential. See id. at 436-37.

We emphasize that Younger merely “presupposes that

the plaintiff be able to interpose his federal defense ... in

the state court; it does not [additionally] require all

App. 31

procedures for the interposition of the federal defense to be

as advantageous in the state court as in the federal ac-

tion.” Kirschner, 225 F.3d at 235; see also Brooks v. New

Hampshire Supreme Court, 80 F.3d 633, 639 (1st Cir.

1996) (rejecting plaintiff’s argument that a state attorney

discipline proceeding “is less than adequate because of its

confidential character,” and noting that “the Supreme

Court has never suggested that having an adequate

opportunity to present a federal claim requires [that] the

parallel state proceeding be open to the public.”). In sum,

while Spargo may prefer a federal forum, he may pursue

his constitutional claims in state proceedings, and there-

fore, the District Court should have abstained. See 31

Foster Children v. Bush, 329 F.3d 1255, 1279 (11th Cir.)

(concluding that “[iJn determining whether the state

remedies are adequate ... the relevant question is not

whether the state courts can do all that Plaintiffs wish”

but rather whether plaintiffs may pursue their federal

claims in state proceedings) (internal quotation marks

omitted), cert. denied sub nom. Reggie B. v. Bush, 124

S.Ct. 483 (2003).

In so holding, we do not ignore the importance of the

First Amendment interests at stake or disregard the costs

of delay in postponing a decision on the merits. However,

Younger itself warns that “the existence of a ‘chilling

effect,’ even in the area of First Amendment rights,” is not

“a sufficient basis, in and of itself, for prohibiting state

action.” Younger, 401 U.S. at 51. Accordingly, while we

recognize that abstention may impose significant costs, the

“costs of duplication and delay caused by Younger,” For

Your Eyes Only, Inc. v. City of Columbus, 281 F.3d 1209,

1219-20 (11th Cir. 2002), must be balanced against the

risk of undue interference and unnecessary conflict with

App. 32

state proceedings. Cf. Younger, 401 U.S. at 44 (rejecting

notion that federalism contemplates the “centralization of

control over every important issue” in the federal courts).

Consequently, while the significance of the First Amend-

ment interests at stake may play a role in Younger analy-

sis, in this case, where the requirements for abstention are

clearly satisfied, and Spargo can seek timely review before

the New York Court of Appeals, the First Amendment

concerns raised by the plaintiffs do not justify any excep-

tion to ordinary Younger principles.”

C. Abstention Over the Related Claims of Third-

Parties

In support of the District Court’s decision, plaintiffs

also argue that Younger does not permissibly extend to the

claims of McNally and Kermani as neither was a party to

the ongoing disciplinary proceeding against Spargo — a

question that the Supreme Court left unresolved in Mid-

dlesex. See Middlesex County Ethics Comm., 457 U.S. at

437 n.17 (noting that “[i]t is not clear whether the Court of

Appeals decided whether abstention would be proper as to

the [plaintiff] organizations who are not parties to the

" We note that plaintiffs are not entitled to any presumption

against abstention simply because they have challenged multiple

provisions of the judicial conduct rules and seek sweeping injunctive

relief. Generally, “[t]he breadth of a challenge to a complex state

statutory scheme... militate[s] in favor of abstention, not against it...

[due] to the primacy of the State in the interpretation of its own laws

and the cost to our federal system ... inherent in federal-court inter-

pretation and subsequent invalidation of parts of an integrated

statutory framework.” Moore v. Sims, 442 U.S. 415, 427 (1979) (empha-

sis in original); see also Fieger v. Thomas, 74 F.3d 740, 745 (6th Cir.

1996) (same).

dR a ld ah LAREN eh RE pe RAR tn Citi Pore te teak mt

Tied Saeinte Sue) fom

App. 33

state disciplinary proceedings,” and “leav[ing] this issue to

the Court of Appeals on remand”). As we explain more

fully below, we reject plaintiffs’ attempt to apply Younger

in a mechanical fashion and find under the circumstances

of this case that the legal interests of McNally and Ker-

mani are sufficiently intertwined with those of Spargo to

make abstention applicable to all of the plaintiffs’ claims.

See generally Doran v. Salem Inn, Inc., 422 U.S. 922, 928

(1975) (warning that while plaintiffs should not “auto-

matically be thrown into the same hopper for Younger

purposes,” there may plainly “be some circumstances in

which legally distinct parties are so closely related that

they should all be subject to the Younger considerations

which govern any one of them”).

As the Supreme Court has recognized, in certain

circumstances, Younger may apply to the claims of third-

parties who are not directly involved in any pending state

proceeding. For example, in Hicks v. Mirandu, 422 US.

332, 348-49 (1975), the Supreme Court held that Younger

barred the claims of two theater owners who sought to

enjoin enforcement of a state obscenity statute. Although

no state proceedings were pending against the theater

owners at the time the federal complaint was filed, crimi-

nal charges had been filed against two employees of the

theater, and authorities had seized four copies of the

allegedly obscene film. The Court concluded that Younger

could not be avoided under these circumstances, because

the interests of the theater owners and the employees

“were intertwined|[,] and ... the federal action sought to

interfere with the pending state prosecution.” Jd.

This principle was reaffirmed in Doran v. Salem Inn,

Inc., 422 U.S. 922, 928 (1975), where the Supreme Court

reiterated that there may be some circumstances where

App. 34

plaintiffs “are so closely related” that abstention will be

warranted although not all plaintiffs are subject to the

pending state proceeding. Doran involved a suit by three

bar owners who sought to enjoin enforcement of a local

ordinance prohibiting topless dancing. See id. at 924.

Although all three bar owners had similar business

interests and were represented by the same counsel, only

one of the owners had been criminally prosecuted in state

court. See id. at 928-30. Because, the plaintiffs were

otherwise “unrelated in terms of ownership, control, and

management,” the Court declined to apply Younger to the

two bar owners who had not been subject to state prosecu-

tion. See id. at 928-29.

While both Hicks and Doran arguably focus on the

fact of joint ownership and control, neither decision limits

the application of Younger to cases where the parties are

financially related or linked by mutual management.

Courts have _ consistently recognized that while

“[clongruence of interests is not enough,” by itself, to

warrant abstention, where the plaintiffs’ interests are so

inextricably intertwined that “direct interference with the

state court proceeding is inevitable,” Younger may extend

to bar the claims of plaintiffs who are not party to the

pending state proceeding. See, e.g., Green v. City of Tucson,

255 F.3d 1086, 1100 (9th Cir. 2001) (en banc); see also

Cedar Rapids Cellular Tel., L.P., v. Miller, 280 F.3d 874,

881-82 (8th Cir. 2002) (noting that for Younger purposes,

“the parties in federal and state court need not be identical

where the interests of the parties seeking relief in federal

court are closely related to those of [the] parties in pending

state proceedings and where the federal action seeks to

interfere with pending state proceedings”) (internal

quotation marks omitted).

dain ailiak ak b e

ae ate ee rn eee eT) ot cee ee paicsete leat

App. 35

In applying Younger to third-parties, courts should be

sensitive to the fact that, “abstention from the exercise of

federal jurisdiction is the narrow exception, not the rule,”

Cecos Int'l, Inc. v. Jorling, 895 F.2d 66, 70 (2d Cir. 1990),

and that there is “no doctrine requiring abstention merely

because resolution of a federal question may result in the

overturning of a state policy.” Zablocki v. Redhail, 434 U.S.

374, 380 n.5 (1978); see also Green, 255 F.3d at 1099

(warning that Younger abstention “is not intended to cut a

broad swath through the fabric of federal jurisdiction,

relegating parties to state court whenever state court

litigation could resolve a federal question”); cf. Robinson v.

Stovall, 646 F.2d 1087, 1090 (5th Cir. Unit A 1981) (noting

that “[e]xcept in extraordinary circumstances, a civil

rights plaintiff’s ability to sue to vindicate his rights in

federal court is not affected by the simultaneous pendency

of a state prosecution against someone else” unless the

federal plaintiff seeks to directly enjoin the pending state

prosecution).

Although plaintiffs may seek the same relief, parallel

challenges to the constitutionality of a state statute or

policy are typically not barred by Younger absent other

factors indicating that the plaintiffs’ interests are legally

interwoven or interconnected. See generally Steffel v.

Thompson, 415 U.S. 452 (1974) (plaintiff was not barred

from seeking federal declaratory relief, where only his

companion had been arrested for distributing handbills,

and no state criminal proceeding was pending against

plaintiff at the time the federal complaint was filed); Casa

Marie, 988 F.2d at 267-68 (noting that “unrelated, legally

App. 36

distinct parties” may “mount separate but simultaneous

legal challenges to the constitutionality of a state stat-

ute”). In this case, however, McNally and Kermani do not

assert independent First Amendment rights, nor do they

bring truly separate challenges to the judicial conduct

rules.

Because the judicial conduct rules apply only to judges

and judicial candidates, McNally and Kermani are not

directly regulated by the challenged rules. Instead,

McNally and Kermani claim standing to bring suit based

on their interest in receiving political speech from judges

and judicial candidates and in associating politically with

elected judges without the restrictions imposed by the

conduct rules. While it is well-established that the First

Amendment protects not only the right to engage in

protected speech, but also the right to receive such speech,

see Va. State Bd. of Pharmacy v. Va. Citizens Consumer

Council, 425 U.S. 748, 756 (1976) (noting that where a

willing speaker exists, First Amendment protection

extends to both the source as well as the recipient of the

protected communication), — it remains true that the

rights of the recipients of speech (such as McNally and

Kermani) derive in the first instance from the primary

rights of the speaker. See In re App. of Dow Jones & Co.,

842 F.2d 603, 608 (2d Cir.), cert. denied sub nom. Dow

Jones & Co. v. Simon, 488 U.S. 946 (1988); N.A.A.C.P,, Los

’* As the Supreme Court explained in Doran, the existence of such

parallel suits is simply a necessary cost of our federal system which

vests concurrent jurisdiction over constitutional issues in both federal

and state courts. See Doran, 422 U.S. at 928.

Weer ere st a thee

eins Sets. acu x

App. 37

Angeles Branch v. Jones, 131 F.3d 1317, 1322 & n.5 (9th

Cir. 1997), cert. denied, 525 U.S. 813 (1998).

As a result, McNally and Kermani may claim no

greater First Amendment protection than Spargo, and

their “[s]uccess on the merits ... is entirely derivative” of

whatever rights that Spargo may have to engage in the

prohibited speech and political activity.” See In re App. of

have refrained from associating with and supporting other judges and

judicial candidates because of the disciplinary charges against Spargo.

However, McNally and Kermani have not specifically identified any

other judges or judicial candidates who wish to engage in allegedly

prohibited speech or political activity, nor does the record demonstrate

that there is a likelihood of future disciplinary action against any judge

or judicial candidate whom McNally and Kermani wish to support

politically.

Under these circumstances, there is substantial doubt as to

whether plaintiffs have standing to seek equitable relief based on the

speech of other judges, and even if plaintiffs could demonstrate such

standing, whether the controversy is sufficiently ripe for adjudication.

See, e.g., Competitive Enter. Inst. v. U.S. Dept. of Transp., 856 F.2d 1563,

1566 (D.C. Cir. 1988) (noting that “[w]hether the injury is phrased as a

deprivation of information that the listener would find useful or the

interference with a relationship between speaker and listener, a

government regulation cannot cause that injury unless [plaintiffs] can

identify a willing speaker”); Basiardanes v. City of Galveston, 682 F.2d

1203, 1211 (5th Cir. 1982) (“Recipients of protected communications

have standing only if there is a speaker who wishes to express himself

or herself.”); cf. Nutritional Health Alliance v. Shalala, 144 F.3d 220,

225-27, 228 (2d Cir.) (dismissing preenforcement First Amendment

facial challenge to federal dietary supplement labeling regulations as

unripe), cert. denied, 525 U.S. 1040 (1998).

In any event, plaintiffs’ allegations about other judges and judicial

candidates are too speculative to avoid the application of Younger.

Throughout this litigation, plaintiffs have relied almost exclusively on

their close relationship with Spargo to establish an interest in the

challenged judicial conduct rules, and therefore, cannot now seek to

(Continued on following page)

App. 38

Dow Jones & Co., 842 F.2d at 608 (explaining that plaintiff

news agencies’ “right to receive speech does not enlarge

the rights of those directly subject to the [challenged]

restraining order”); Jones, 131 F.3d at 1322-23 (concluding

that “voter plaintiffs, as recipients of campaign speech,

have no greater rights than the candidates to have candi-

dates publish statements,” and “plaintiffs’ status as voters

in an election does not extend their First Amendment

rights to include a more general right to receive publicly

funded campaign speech”). Because McNally and Kermani

could have a protected interest in hearing Spargo speak

and in associating politically with Spargo only if Spargo

has an underlying First Amendment right to engage in

such speech and political activity, the legal analysis of the

plaintiffs’ claims are unavoidably intertwined and insepa-

rable. McNally’s and Kermani’s claims are largely the

mirror-image of Spargo’s First Amendment challenge, and

it would be impossible for the District Court to analyze

plaintiffs’ claims independently without first analyzing

Spargo’s constitutional mght to engage in the charged

conduct, a matter which, under Younger, must be resolved

in the pending state disciplinary proceeding.

Because plaintiffs’ claims are essentially derivative,

this case presents one of the narrow circumstances in

which Younger may properly extend to bar claims of third-

parties who are not directly involved in the pending state

downplay the connection to prevail on Younger grounds. Cf. Collins v.

County of Kendall, 807 F.2d 95, 102 (7th Cir. 1986) (concluding that

court would not ignore the parties’ close relationship in determining the

scope of Younger abstention where the plaintiff had previously urged

the court to view the facts as a whole and treat the plaintiffs as tightly

connected), cert. denied, 483 U.S. 1005 (1987).

‘alebars

“iar ALA ABN PLN AL STP tin hate A DiS 8

wine

Re ee ee ee Te

App. 39

action.” Cf, Allee v. Medrano, 416 U.S. 802, 830-31 (1974)

(Burger, J., concurring in the judgment in part and dis-

senting in part) (reasoning that Younger abstention should

also apply to a union’s First Amendment claims, where the

union is seeking to assert the interests of members prose-

cuted in state court); but see N.J.-Philadelphia Presbytery

of the Bible Presbyterian Church v. NJ. State Bd. of

Higher Educ., 654 F.2d 868, 877-88 (3d Cir. 1981) (in a

First Amendment challenge to a state licensing regime,

abstention did not extend to plaintiffs who were not party

to the state proceeding, because the parents, students, and

teachers involved in the suit asserted First Amendment

rights distinct from those of the religious college involved

in the ongoing state litigation). }

Moreover, the second prerequisite for extending

Younger is present, as plaintiffs seek to directly interfere

with the pending disciplinary proceeding against Spargo

by requesting that the District Court permanently enjoin

defendants from pursuing the disciplinary proceeding or

otherwise enforcing the challenged judicial conduct rules.

In addition, there is no suggestion that Spargo would fail

to adequately represent plaintiffs’ interests in the state

disciplinary proceeding, and it appears that McNally and

Kermani could seek to appear as amici curiae, see 22

N.Y.C.R.R. § 500.11(e), should the case eventually reach

9 Although not dispositive, we note that the case for abstention is

particularly strong as to McNally, as Spargo is specifically charged with

authorizing an improper payment to McNally in violation of 22

N.Y.C.R.R. §§ 100.1, 100.2, and 100.5(A)(4)a). In addition, while

McNally is technically not a party to the pending disciplinary proceed-

ing, she was subpoenaed to testify before the Commission during the

course of its investigation into Spargo’s campaign activities.

App. 40

the Court of Appeals, see In re Raab, 763 N.Y.S.2d 213

(N.Y. 2003) (per curiam) (permitting the filing of amici

curiae briefs in analyzing First Amendment challenge to

judicial conduct rules); In re Watson, 763 N.Y.S.2d 219

(N.Y. 2003) (per curiam) (same), or attempt to bring a

separate declaratory judgment action challenging the

constitutionality of the rules. See N.Y. C.P.L.R. § 3001

(authorizing the state supreme court to “render a declara-

tory judgment having the effect of a final judgment as to

the rights and legal relations of the parties to a justiciable

controversy”); Schultz v. City of Port Jervis, 662 N.Y.S.2d

591, 592 (2d Dep't 1997) (mem.) (noting that “a declaratory

judgment action is the appropriate procedural vehicle to

challenge the constitutionality of a [state] statute or

ordinance”).”

Conclusion

In sum, for the reasons stated above, we conclude that

Spargo has an adequate opportunity to raise his constitu-

tional claims in the pending disciplinary proceeding and

accordingly hold that the District Court should have

abstained from exercising jurisdiction over Spargo’s claims

in deference to the state proceeding. In addition, we find

that the First Amendment interests of plaintiffs McNally

* Although some courts have suggested that Younger can only be

applied to third-party plaintiffs whose interests are closely aligned with

a state court litigant if the third-party plaintiffs can intervene in the

state proceeding to protect their interests, see, e.g., Robinson, 646 F.2d

at 1092, Casa Marie, 988 F.2d at 267, New Jersey-Philadelphia

Presbytery of the Bible Presbyterian Church, 654 F.2d at 882, we believe

in the particular circumstances before us, that Younger need not be

read so restrictively.

App. 41

and Kermani are derivative of Spargo’s right to engage in

protected speech. Because plaintiffs’ legal claims are

: inextricably intertwined, and the federal suit seeks to

directly interfere with the pending state disciplinary

proceeding, we conclude that Younger extends to bar the

claims of McNally and Kermani although neither is a

party to the state disciplinary proceeding. We therefore

vacate the judgment of the District Court and remand

with instruction to the District Court to abstain from

exercising jurisdiction over the plaintiffs’ action.”

BAN TES MBN RAC BAe ot

Batt what age LE,

te a

* In so doing, we again caution that we express no view on the

ls merits of the plaintiffs’ claims or the substance of the District Court’s

First Amendment analysis.

ilk AA MoD AR EEE a sSIR Y Rett an m mas

Prides estat ad

App. 42

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

THOMAS J. SPARGO, JANE McNALLY,

and PETER KERMANI,

Plaintiffs,

-v- 1:02-CV-1320

NEW YORK STATE COMMIS-

SION ON JUDICIAL CONDUCT,

GERALD STERN, individually

and as Administrator of the State

Commission on Judicial Conduct,

and HENRY T. BERGER, indi-

vidually and as Chairperson of the

New York State Commission on

Judicial Conduct,

Defendants.

APPEARANCES: OF COUNSEL:

DeGRAFF FOY HOLT DAVID F. KUNZ, ESQ.

HARRIS & KUNZ, LLP

Attorneys for Plaintiffs

90 State Street

Albany, NY 12207

GREEN & SEIFTER, DONALD T. KINSELLA,

ATTORNEYS, PLLC ESQ.

Attorneys for Plaintiff DANIEL J. FRENCH, ESQ.

Thomas J. Spargo

90 State Street, Suite 1440

Albany, NY 12207

App. 43

HON. ELIOT SPITZER PATRICK MACRAE, ESQ.

Attorney General for the SENTA SUIDA, ESQ.

State of New York Ass’t Attorneys General

Attorney for Defendants

615 Erie Boulevard West

Suite 102

Syracuse, NY 13204

DAVID N. HURD

United States District Judge

DECISION and ORDER

(Filed Apr. 29, 2003)

I. INTRODUCTION

On March 7, 2003, defendants filed a Notice of Appeal

regarding the Memorandum-Decision and Order filed on

February 20, 2003, permanently enjoining defendants

from enforcing certain sections of the New York State Code

of Judicial Conduct (“Code”). Defendants now move for a

stay of that permanent injunction pending a resolution of

the appeal. Plaintiffs oppose. The motion was taken on

submission of the papers without oral argument. Familiar-

ity with the February 20, 2003, Memorandum-Decision

and Order is assumed. See Spargo v. New York State

Comm’n on Judicial Conduct, 244 F. Supp. 2d 72 (N.D.N.Y.

2003).

II. DISCUSSION

A. Standard

Four factors must be considered in determining

whether to issue a stay pending appeal. Mohammed uv.

Reno, 309 F.3d 95, 100 (2d Cir. 2002). The factors are “the

App. 44

likelihood of success on the merits, irreparable injury if a

stay is denied, substantial injury to the party opposing a

stay if one is issued, and the public interest.” Jd. (citing

Hilton v. Braunskill, 481 U.S. 776, 776, 107 S. Ct. 2113

(1987)). The required degree of likelihood of success on the

merits varies according to the assessment of the other

three factors. Jd. at 101. In other words, where there is

lower quantum of irreparable injury to the movant if a

stay is denied, then a higher showing of likelihood on the

merits is required. See id. The inverse is also true. See id.

Additionally, “mere repetition of arguments previously

considered and rejected cannot be characterized as a

‘strong showing’” of success on the merits. Schwartz v.

Dolan, 159 F.R.D. 380, 383 (N.D.N.Y. 1995), vacated in

part, 86 F.3d 315, 318 (2d Cir. 1996) (noting that it also

denied a stay pending appeal). Because the degree of the

likelihood of success on the merits varies depending upon

the other factors, it will be considered last.

B. Analysis

1. Irreparable Injury to Defendants

Defendants argue that absent a stay pending appeal,

the Commission is impeded from carrying out its mandate

under the New York Constitution, and there is confusion

and delay in its proceedings. However, as was previously

made clear, the Commission is free to pursue misconduct

proceedings pursuant to any Code provisions that were not

challenged. See 244 F. Supp. 2d at 92. Further, should the

decision be reversed on appeal, the Commission could then

proceed with any charges. The only possible injury is delay

in Commission proceedings. Any delay would not constitute

irreparable injury, because proceedings would recommence

upon resolution of the appeal. Concern regarding delay

}

]

}

App. 45

pending appeal would better be resolved by requesting an

expedited appeal rather than a stay. In sum, a delay in

pursuing charges based upon the provisions found to be

unconstitutional will result in no irreparable injury to

defendants.

Defendants further contend that irreparable injury

results because no other Code provisions prohibit unlawful

conduct. Again, the only harm from not proceeding with

misconduct charges based upon unlawful activity would be

delay, lasting only as long as the appeal is pending. In

addition, as defendants point out, misconduct based upon

unlawful conduct could be pursued while the appeal is

pending based upon the state constitutional provision

permitting removal of judges “for cause.” Further, unlaw-

ful conduct should be addressed by a criminal prosecution.

There is no irreparable injury to defendants if the stay

is denied.

2. Substantial Injury to Plaintiffs

Permitting the Commission to proceed with miscon-

duct charges based upon unconstitutional provisions of the

Code would result in substantial injury to plaintiff Spargo.

Defendants assert that any such harm can be avoided by

continuing the injunction solely as to Spargo. Then the

Commission could proceed with misconduct charges

against other judges based upon the unconstitutional

provisions of the Code. In effect, defendants argument is

that harm to Spargo could be prevented, while permitting

substantial injury to all those judges against whom

charges are brought based upon unconstitutional Code

provisions. In other words, remove the risk of harm as to

App. 46

Spargo — at the same time subjecting countless others to

the same harm. This argument is rejected out of hand.

3. The Public Interest

Defendants argue that the public interest weighs in

favor of granting the stay. They argue that delays will

occur absent a stay, and that lengthy delays would create

havoc in the Commission’s carrying out of its (state)

constitutional mandate.

Defendants first assert that the significance of the

public interest is demonstrated by the derivation of the

Code from the American Bar Association provisions and

the similarity to the code of conduct applicable to federal

judges.' That similar provisions may apply to judges

outside of the New York State judiciary does demonstrate

that there is a significant public interest at stake. How-

ever, the public interest will not be served by permitting

pursuit of misconduct charges, in New York, based upon

unconstitutional Code provisions. Rather, the public

interest of New Yorkers will be served by prohibiting the

Commission from bringing misconduct proceedings that

impinge upon constitutional rights, demonstrating that

constitutional rights are of the highest import in New

York. Similarly, the public interest of other jurisdictions

would not be served by permitting constitutional violations

but would be served by preventing such violations. Thus,

defendants’ argument about the significance of the public

* Defendants’ concern is that other jurisdictions may follow the

finding that similarly worded provisions are unconstitutional, thus

impacting similar judicial conduct commissions beyond New York.

App. 47

interest is not helpful to their contention that it is in the

public interest to grant a stay.

Defendants also argue that absent a stay, political

parties might pressure judges to becoine involved in

partisan political activity. The argument goes that if

judges succumb to this pressure, then the dignity appro-

priate to judicial office will be denigrated. This argument,

if valid, might help demonstrate that maintaining the

dignity of the judicial office outweighs the constitutional

rights of some of its citizens (judges and judicial candi-

dates), but not that permitting the continuing impinge-

ment of constitutional rights is in the public interest.

Moreover, the appropriate solution would be rules that are

narrowly tailored to serve the interest in maintaining the

integrity of the judiciary (in other words, rules that do not

unduly impinge upon First Amendment rights).

While confusion and delay in misconduct proceedings

may be a temporary result of the injunction, it cannot be

said that it is in the public interest to allow the Commis-

sion to violate judges’ constitutional rights, including core

First Amendment rights. Rather, the public interest lies in

denying the stay, thereby preventing continued constitu-

tional violations.

4. Likelihood of Success on the Merits

Given the lack of irreparable injury to defendant if the

stay is denied, the substantial harm to plaintiffs if the stay

is granted, and the public interest in denying the stay,

there must be an extremely high likelihood of success on

the merits to justify granting the stay. See Mohammed,

309 F.3d at 101. Defendants’ arguments regarding success

on the merits are simply attempts to re-argue issues

App. 48

previously decided — with the introduction of contentions

not previously made or made but not adequately sup-

ported. Such reargument cannot support a finding of a

strong likelihood of success on the merits. See Schwartz,

159 F-R.D. at 383. However, a few matters merit mention.

On the abstention issue, defendants argue that

Nicholson v. State Comm’n on Judicial Conduct, 50 N.Y.2d

597 (1980) (per curiam) illustrates that a request for

review is not the only way to assert constitutional chal-

lenges; Article 78 is available.” The defendants never

argued that Article 78 was a viable avenue for constitu--

tional challenges to Code provisions. Therefore, the avail-

ability of Article 78 cannot now be sustained as a basis for

finding that a state forum was available, making absten-

tion appropriate. Further, it is again noted that Nicholson

is inapposite because the Article 78 proceeding was not in

the context of a misconduct proceeding against the plain-

tiff.

In additional support for their argument that there is

a likelihood of success on the abstention issue, defendants

cite In re Sims, 61 N.Y.2d 349 (N.Y. Ct. App. 1984). This

case was not previously cited, despite a direct request by

the Court for case law in which the Court of Appeals

* First, it is not at all clear that Article 78 is available to Spargo, as

administrative proceedings are ongoing. See N.Y. C.P.L.R. § 7801

(McKinney 1994). It is even more unclear how this provision would be

available to McNally and Kermani, as defendants have merely stated

Article 78’s availability to them, without giving any clue as to how such

an action would be framed or citing any analogous cases from which a

clue could be derived. See id. § 7801 & Practice Commentaries (explain-

ing the situations in which Article 78 actions may be brought).

‘

Si site Mire her TKS Ea

App. 49

reached a constitutional question on a review of a Com-

mission determination.

Moreover, defendants mischaracterize the decision.

Defendants state that the Court of Appeals “discussed the

[constitutional] issues and referred to both statutory law

and prior decisions ... [then] specifically rejected Judge

Sims [sic] contention that the phrase ‘appearance of

impropriety’ was unconstitutionally vague.” (Defs.’ Mem.

at 7.) To the contrary, the court did not discuss the consti-

tutional issues, and the statutory and case law referenced

did not even mention the constitutionality of Code provi-

sions. In answer to Sims’ contention that her due process

rights were violated, the court merely found that “the

investigation was thus based on adequate factual and

legal requirements as required by the Judiciary Law and

the commission’s rules.” In re Sims, 61 N.Y.2d at 358

(internal citations omitted). The court went on to state

Sims’ contention that the phrase “appearance of impropri-

ety” was unconstitutionally vague, and noted that the

appearance of impropriety rules “have [been] repeatedly

upheld.” Jd.

The complete analysis of the vagueness question was

as follows:

Finally, petitioner contends that the ethical

mandate that Judges avoid even an appearance

of impropriety is unconstitutionally vague and

will result in her punishment for acts which she

could not know were proscribed. We have repeat-

edly upheld the appearance of impropriety rules

and stated that Judges may be held to this ad-

mittedly high standard of conduct in performing

their duties or even when performing nonjudicial

duties (see Matter of Aldrich v. State Comm. on

App. 50

Judicial Conduct, 58 N.Y.2d 279, 283; Matter of

Cunningham, 57 N.Y.2d 270, 274-275, supra.;

see, also, Matter of Shilling, 51 N.Y.2d 397, su-

pra.; Matter of Lonschein, 50 N.Y.2d 569, 572;

Matter of Spector v. State Comm. on Judicial

Conduct, 47 N.Y.2d 462, 469, supra).

Id. Clearly this is not a specific rejection of Sims’

contention that the phrase is unconstitutionally vague — it

is not a constitutional analysis at all. This is particularly

evident upon perusal of the case law cited as authority

that the appearance of impropriety rules had been repeat-

edly upheld. No constitutional question is raised in any of

the cases cited. See Aldrich v. State Comm’n on Judicial

Conduct, 58 N.Y.2d 279, 280-286 (N.Y. Ct. App. 1983); In re

Cunningham, 57 N.Y.2d 270, 272-278 (N.Y. Ct. App. 1982);

In re Shilling, 51 N.Y.2d 397, 399-411 (N.Y. Ct. App. 1980);

In re Lonschein, 50 N.Y.2d 569, 571-575 (N.Y. Ct. App.

1980); Spector v. State Comm’n on Judicial Conduct, 47

N.Y.2d 462, 464-70 (N.Y. Ct. App. 1979). These were

merely cases on review of misconduct determinations

grounded in the appearance of impropriety provision. See

Aldrich, 58 N.Y.2d at 282; In re Cunningham, 57 N.Y.2d at

274-75; In re Shilling, 51 N.Y.2d at 401-02; In re Lon-

schein, 50 N.Y.2d at 572; Spector, 47 N.Y.2d at 468-69.

Thus, the inference — that this provision had repeatedly

passed constitutional muster — drawn from the iteration of

Sims’ constitutional challenge followed by the “repeatedly

upheld” language is invalid. What was actually “repeat-

edly upheld” were misconduct charges brought for viola-

tions of this provision. Therefore, the defendants have

again failed to provide a single case in which the Court of

Appeals accepted and analyzed constitutional claims such

as those raised by the plaintiffs.

Sieh hee oa

App. 51

Some particularly apt comments were made in dissent

in Spector. The dissenter noted concern “with what can be

a very subjective and often faulty public perception,”

stating “The ‘appearance of impropriety’ concept is beset

by legal and moral complexity.” 47 N.Y.2d at 472 (Fuchs-

berg, J., dissenting). It was further noted that the “lack of

specificity as to what conduct makes a Judge vulnerable to

a charge of appearance of impropriety may bear serious

due process implications.” Id. at 473. (This is the only hint

of a constitutional concern in all of the authority cited by

the Sims Court for the proposition that the provision had

been repeatedly upheld.) United States Supreme Court

Justice Arthur Goldberg was quoted characterizing the

appearance of impropriety standard as “unbelievably

ambiguous.” Jd.

Defendants raise a new argument in support of their

contention, previously made, that Court of Appeals review

of misconduct determinations is mandatory.’ They argue

that the Court of Appeals rules, as well as the jurisdic-

tional statement in cited case law, imply that a request

initiates the review, rather than requiring a grant or

denial of the review. First, a statement such as “[s]he

initiated this proceeding to review a determination .. .”

cannot be taken as a determination that review is manda-

tory. See In re Sims, 61 N.Y.2d at 351. Rather, the wording

indicates that it is merely a statement of background,

* They also cite the Court of Appeals’ acceptance of more than 79

requests for review, and no denials of requests, in the last 24 years as

indicative of the mandatory nature of review. Again, this is new

information not previously provided. Moreover, even if all requests for

review have been granted to date, that does not mean that review is

mandatory.

App. 52

introducing the case. See id.; In re Greenfeld,

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