Matter of Raab

• Citation: 100 N.Y.2d 305,793 N.E.2d 1287,763 N.Y.S.2d 213
• Parties: In the Matter of IRA J. RAAB, a Justice of the Supreme Court, Nassau County, Petitioner. STATE COMMISSION ON JUDICIAL CONDUCT, Respondent.
• Decision Date: 10 June 2003
• Court: New York Court of Appeals Court of Appeals

100 N.Y.2d 305

793 N.E.2d 1287

763 N.Y.S.2d 213

In the Matter of IRA J. RAAB, a Justice of the Supreme Court, Nassau County, Petitioner.

STATE COMMISSION ON JUDICIAL CONDUCT, Respondent.

Court of Appeals of the State of New York.

Argued May 7, 2003.

Decided June 10, 2003.

Emery Celli Cuti Brinckerhoff & Abady P.C., New York City (John R. Cuti, Richard D. Emery and Eric Hecker of counsel), for petitioner.

Robert H. Tembeckjian, New York City, and Gerald Stern for respondent. Eliot Spitzer, Attorney General, Albany (Caitlin J. Halligan, Robert H. Easton and Edward Lindner of counsel), for Attorney General of State of New York, amicus curiae.

Locke Liddell & Sapp LLP, Houston, Texas (S. Shawn Stephens and Fermeen F. Fazal of counsel), for Ad Hoc Committee Dedicated to an Independent Judiciary, amicus curiae. Deborah Goldberg, New York City, and J.J. Gass for Brennan Center for Justice at NYU School of Law and others, amici curiae.

Chief Judge KAYE and Judges SMITH, CIPARICK, WESLEY, ROSENBLATT, GRAFFEO and READ concur in per curiam opinion.

OPINION OF THE COURT

Per Curiam.

The Commission on Judicial Conduct sustained four charges of misconduct and determined that petitioner, a justice of the Supreme Court, should be censured (see NY Const, art VI, § 22; Judiciary Law § 44). Upon our review of the record and after consideration of the legal arguments raised by petitioner, we sustain the finding of misconduct and accept the determined sanction of censure.

The Commission's complaint alleged five charges of misconduct. All but one of the charges accused petitioner of engaging in improper political activity in the course of a judicial campaign. Petitioner answered the complaint, contending that the rules restricting the political activity of judges and judicial candidates infringed his rights under the First Amendment of the United States Constitution. Thereafter, petitioner entered into an agreed statement of facts with the Commission Administrator and counsel in which he acknowledged that he committed four acts of misconduct in violation of the Rules Governing Judicial Conduct. Petitioner, however, reserved his right to challenge the constitutional validity of the rules underlying the political activity charges.

As stipulated by petitioner, the first instance of misconduct occurred in the spring of 1995 when petitioner, then a practicing attorney, was seeking the Democratic nomination for Supreme Court in his district. Petitioner met on several occasions with Democratic Party officials and the other prospective judicial candidates to discuss future campaign expenditures. He agreed that his share of joint expenses would be about $10,000 and the other candidates were to pay similar round-figure sums. After actively campaigning that summer and securing the Democratic Party nomination in September 1995, petitioner issued a personal check in the amount of $10,000 to the Nassau County Democratic Committee without having received an itemized bill or receipts detailing the expenditures made on his behalf as a judicial candidate.

Petitioner did not claim that this payment was an ordinary contribution or assessment permissible by a non-judge judicial candidate in limited circumstances (see 22 NYCRR 100.5 [A] [3]). Rather, he admitted that the money was intended to reimburse the party for past and future expenditures in connection with his campaign. In the agreed statement of facts, petitioner admitted that this conduct amounted to an impermissible contribution of funds to a political organization other than his own campaign for judicial office in violation of sections 100.5 (A) (1) and 100.5 (A) (1) (c), (d) and (h) of the Rules Governing Judicial Conduct (22 NYCRR).

Petitioner did not win a Supreme Court seat in the November 1995 election but was later elected to serve as a Nassau County District Court judge, taking office in January 1997. In March 2000, while petitioner was a District Court judge, he took part in a Working Families Party "phone bank" on behalf of a Nassau County legislative candidate. His participation included calling prospective voters—without giving his name or identifying himself as a judge—and encouraging them to vote for the candidate at an upcoming special election. Petitioner asserted that his motive was "to generate good will" with the Working Families Party in the hope that the party would endorse him as a judicial candidate in the upcoming Supreme Court race later that year. As petitioner acknowledged, this conduct violated sections 100.5 (A) (1) and 100.5 (A) (1) (c), (d), (e), (f) and (g).

Three months later, petitioner attended a Working Families Party candidate screening meeting. Although petitioner was pursuing the party endorsement for Supreme Court, he was not scheduled to be interviewed. He nonetheless sat at a table with members of the Working Families Party and asked five prospective candidates for judicial and nonjudicial office whether they would publicize the Working Families Party endorsement on their campaign literature if supported by the party. Petitioner conceded in the agreed statement of facts that this political activity is prohibited in sections 100.5 (A) (1) and 100.5 (A) (1) (c), (d) and (g).

In September 2000, petitioner was nominated for Supreme Court by the Democratic Party and endorsed by the Working Families Party. He was elected to Supreme Court and assumed office in January 2001. In April 2001, while assigned to the Matrimonial Part of Supreme Court, petitioner signed an ex parte temporary restraining order that was later vacated by an Appellate Division Justice. When the attorney who took the appeal advised petitioner that the order had been vacated, petitioner told the lawyer that he would be on the bench another 11 years, that he had a "long memory" and would remember the law firm's actions and that it was a "good thing" the firm did not practice matrimonial law. In the agreed statement of facts, petitioner recognized that these comments were intimidating and could be construed as a threat, thereby indicating bias against the lawyer and his firm should they appear before him in the future.¹

The agreed statement of facts setting forth these four instances of misconduct was presented to the full Commission. The Commission heard oral argument and issued a written determination rejecting petitioner's challenge to the constitutional validity of the pertinent political activity restrictions and finding petitioner had engaged in misconduct warranting censure. The determination is reviewable as of right, and petitioner now seeks that review.

Petitioner argues that the political activity restrictions underlying three of the charges—sections 100.5 (A) (1) and 100.5 (A) (1) (c), (d), (e), (f), (g) and (h)²—violate the First Amendment of the United States Constitution. These rules generally prohibit judges and judicial candidates from engaging in certain political activities.³ Petitioner raised his constitutional challenge to the validity of the political activity limitations before the Commission (cf. Matter of Mason, 100 NY2d 56 [2003]).

Petitioner asserts that to the extent New York imposes restrictions on the ability of judges to engage in political conduct, the pertinent rules are not sufficiently narrow in scope to serve a compelling state objective and therefore do not withstand strict scrutiny analysis. Relying heavily on Republican Party of Minn. v White (536 US 765 [2002]), he argues that the distinction drawn in the rules between the political activities of judicial candidates related to their own campaigns for judicial office and the activities they engage in on behalf of political parties or other candidates is constitutionally flawed. We disagree that White compels such a conclusion and hold that, even applying strict scrutiny review, the rules are constitutionally permissible because they are narrowly tailored to further a number of compelling state interests, including preserving the impartiality and independence of our state judiciary and maintaining public confidence in New York State's court system.

In White the Supreme Court struck down a Minnesota judicial conduct provision that prohibited a judicial candidate from announcing "his or her views on disputed legal or political issues" during a judicial campaign (id. at 768). The parties having agreed that strict scrutiny was the appropriate standard of review under the First Amendment, the Court applied that standard to determine whether the State of Minnesota had met its burden of establishing that the rule was narrowly tailored to serve a compelling state interest. Although Minnesota had identified compelling interests, the Supreme Court ruled that under a strict scrutiny analysis the "announce clause" was not sufficiently narrow to serve those interests. In so holding, the Court emphasized that statements made by a candidate in furtherance of the candidate's own campaign constitute core political speech worthy of First Amendment protection. The Court did not declare, however, that judicial candidates must be treated the same as nonjudicial candidates or that their political activity or speech may not legitimately be circumscribed. To the contrary, the Court distinguished Minnesota's announce clause from other rules restricting the speech of judicial candidates, taking no position on the validity of other judicial conduct provisions (see Republican Party of Minn. v White, 536 US at 770, 773 n 5).

We draw the same conclusion reached by the Commission: that White is significantly distinguishable from the case before us. Notably, White did not involve review of political activity restrictions analogous to those at issue here. Nonetheless, we assume without deciding that strict scrutiny analysis is appropriate to review petitioner's First Amendment claim. Accordingly, we begin by examining whether the rules petitioner challenges are narrowly tailored to serve a compelling state...