Signorelli v. Evans

• Decision Date: 23 December 1980
• Docket Number: No. 1513,D,1513
• Citation: 637 F.2d 853
• Parties: Ernest L. SIGNORELLI, Plaintiff-Appellant, v. Herbert B. EVANS, as Chief Administrative Judge of the Courts of the State of New York, et al., Defendants-Appellees. ocket 80-7511.
• Court: U.S. Court of Appeals — Second Circuit

Page 853

637 F.2d 853

Ernest L. SIGNORELLI, Plaintiff-Appellant, v. Herbert B. EVANS, as Chief Administrative Judge of the Courts of the State of New York, et al Defendants-Appellees.

No. 1513, Docket 80-7511.

United States Court of Appeals Second Circuit.

Argued July 21, 1980.

Decided Dec. 23, 1980.

Joel M. Markowitz, Stony Brook, N. Y., for plaintiff-appellant.

Raymond S. Hack, New York City (Gerald Stern, Seth Halpern and Alan Friedberg, New York City, on brief), for defendant-appellee State Commission on Judicial Conduct.

Stephen G. Crane, Michael Colodner, and Cynthia Hutchinson, New York City, submitted a brief for defendants-appellees Herbert B. Evans, as Chief Administrative Judge of the Courts of the State of New York, and the Court of Appeals of the State of New York.

Robert Abrams, Atty. Gen., George D. Zukerman, Asst. Sol. Gen., Paul M. Glickman, Stephen M. Jacoby, Asst. Attys. Gen. and Frederic L. Lieberman, Legal Asst., New York City, submitted a brief for defendants-appellees Hugh L. Carey, as Governor of the State of New York and Robert Abrams, Atty. Gen., of the State of New York.

Before VAN GRAAFEILAND and NEWMAN, Circuit Judges, and NEAHER, District Judge. ^*

NEWMAN, Circuit Judge:

The Constitution of the United States specifies that no person may be a member of the House of Representatives unless that person is at least 25 years old, has been a United States citizen for at least seven years, and, at the time of election, is an inhabitant of the State from which the person was chosen. U.S.Const., Art. I, § 2, cl. 2. The State of New York has adopted restrictions on the political activity of state judges that have the effect of requiring a state judge to resign from his judicial office before campaigning for political office, including the office of United States Representative. Ernest L. Signorelli, Surrogate of Suffolk County, New York, intending to run for Congress in the fall of 1980, brought this action to challenge New York's regulatory provisions on the ground that they violate the Qualifications Clause of the Constitution by imposing an additional qualification for Congressional office that the person not be a state judge. The District Court for the Eastern District of New York (Jacob Mishler, Judge) upheld the constitutionality of the challenged provisions. Upon Signorelli's appeal, we recognized his need for an immediate ruling in order to meet candidacy filing deadlines if his challenge to the state law provisions were upheld. We ruled on his appeal at the conclusion of the oral argument on July 21, affirming the decision of the District Court. This opinion details the reasons for that decision.

Appellant has been a New York state judge for twenty-one years. He was elected to his current position as Surrogate in 1975 for a term expiring on December 31, 1985. Having been encouraged by members of his community to seek nomination as the Republican candidate for Congress in his district, appellant was confronted by three provisions of New York law that required his resignation from judicial office before taking even the most preliminary steps toward obtaining his party's nomination.

The New York State Constitution, Art. VI, § 20(b) ("the State Constitutional Provision"), requires a judge to resign from his position upon nomination for any public office other than his judgeship or automatically forfeit his judicial post in ten days. The State Constitution further provides that state judges are subject to such rules of conduct as may be issued by the Chief Administrative Judge with the approval of the New York Court of Appeals. N.Y.Const., Art. VI, §§ 20(b) & 28. Section 33.7 of the Rules Governing Judicial Conduct ("the Rule"), promulgated pursuant to the State Constitution, prohibits a state judge from participating in any political campaign, except a campaign for reelection to his judicial office. The State Commission on Judicial Conduct, subject to review by the Court of Appeals, may sanction a judge who violates the Rules of Conduct by admonishment, censure, or removal. N.Y.Const., Art. VI, § 22; N.Y. Judiciary Law §§ 40-48 (McKinney Supp.1978); 22 N.Y.C.R.R. §§ 700.1-704.12. Completing New York's regulatory framework for state judges in their pursuit of political office is the Code of Judicial Conduct, adopted by the New York State Bar Association and recognized by the state courts as establishing standards that may result in discipline if violated. See People v. La Carruba, 46 N.Y.2d 658, 416 N.Y.S.2d 203, 389 N.E.2d 799 (1979); Bartlett v. Flynn, 50 A.D.2d 401, 378 N.Y.S.2d 145 (4th Dept.), appeal dismissed, 39 N.Y.2d 942, 386 N.Y.S.2d 1029 (1976). As adopted in New York, Canon 7 A(3) of the Code ("the Canon") requires a judge to resign from his position upon becoming a candidate for non-judicial office in a party primary or in a general election.

Appellant wished to retain his judicial post while campaigning so that he could complete his term as surrogate in the event that he was unsuccessful in his pursuit of Congressional office. He therefore sought to enjoin enforcement of the three New York provisions inhibiting his candidacy and to obtain a declaration of their unconstitutionality as applied to candidates for federal office. Appellant contended, among other grounds, ¹ that the requirement that a state judge resign his judgeship upon seeking political office imposed a qualification for election to Congress in addition to those enumerated in the Qualifications Clause and was unconstitutional because of the exclusivity of that Clause. As appellant had not yet commenced any political activity, the District Court first analyzed the justiciability of the claims. Judge Mishler ruled that the challenges to the Rule and the Canon, but not to the State Constitutional Provision, were ripe for adjudication. The Court then held that those two provisions did not impose a qualification on the federal office, but rather, regulated the qualifications for state judicial office.

I. Justiciability

As appellant has not yet engaged in any political activity to trigger enforcement of New York's provisions, his appeal raises the preliminary jurisdictional issue of justiciability. The District Court held that even though appellant had not yet begun to campaign, his avowed intention to engage in political activity that would violate the Rule and the Canon created a controversy ripe for adjudication with respect to those two provisions. The Court declined to consider the objection to the State Constitutional Provision because that provision would come into operation only at a later stage in a political campaign if Signorelli obtained his party's nomination; the Court considered the challenge to that provision to be premature. We conclude that appellant's challenges to all three provisions are justiciable.

In United Public Workers v. Mitchell, 330 U.S. 75, 67 S.Ct. 556, 91 L.Ed. 754 (1947), the Supreme Court held that review of the Hatch Act, which prohibits federal employees from engaging in certain political activities, was nonjusticiable with respect to those plaintiff-employees who had not yet engaged in any of the prohibited activity. Subsequently, however, the Court relaxed Mitchell's strict approach to justiciability. If the injury is clearly impending, the Court has held that the plaintiffs need not await consummation of the injury to bring their suit. Babbitt v. United Farm Workers National Union, 442 U.S. 289, 298, 99 S.Ct. 2301, 2308, 60 L.Ed.2d 895 (1979); Regional Rail Reorganization Act Cases, 419 U.S. 102, 143, 95 S.Ct. 335, 358, 42 L.Ed.2d 320 (1974); Steffel v. Thompson, 415 U.S. 452, 459, 94 S.Ct. 1209, 1215, 39 L.Ed.2d 505 (1974); Pennsylvania v. West Virginia, 262 U.S. 553, 593, 43 S.Ct. 658, 663, 67 L.Ed. 1117 (1923).

Rule 33.7 will be violated by appellant immediately upon his taking any steps towards his candidacy, and Canon 7 will be violated either then, or, with virtual certainty shortly thereafter, for he will formally qualify as a candidate in the primary election upon obtaining signatures from only 1,250 of the 103,000 Republican voters in his district. If appellant acts in violation of the Rule or the Canon, he faces certain sanction of admonishment, censure, or removal by the State Commission on Judicial Conduct. While these sanctions are civil and not penal in nature, the reputational taint incurred by admonishment or censure, and the direct loss of livelihood from removal, clearly pose the threat of serious injury to appellant. As this Court has held in the context of considering the justiciability of a professional disciplinary rule, the threat and injury of civil sanctions may be as severe as that of the imposition of penal sanctions. Person v. Association of the Bar of the City of New York, 554 F.2d 534, 536-37 (2d Cir.), cert. denied, 434 U.S. 924, 98 S.Ct. 403, 54 L.Ed.2d 282 (1977) (disciplinary proceedings and disbarment comparable to criminal prosecution). Appellant's challenges to the constitutionality of the Rule and the Canon are clearly justiciable under the Supreme Court's current standard.

Moreover, the plaintiffs in Mitchell had stated their proposed course of conduct in only a very general manner. The Supreme Court consequently found that it could only speculate concerning both what the plaintiffs would do and how serious the subsequent threat of enforcement would be. 330 U.S. at 89-90, 67 S.Ct. at 564-565. Appellant, however, has indicated his proposed course of activity with specificity in his complaint, leaving no room for judicial speculation concerning the intended private action and the likely official response.

Operation of § 20(b) of Article VI of the New York Constitution is more remote and uncertain than that of the Rule and the Canon since appellant may be unsuccessful in his political activity and not win his party's nomination, the sole event that activates the Constitution's mandatory forfeiture of office. The...