The first rule of the state court system’s Judicial Campaign Ethics Handbook is clear: Judicial candidates cannot engage in direct and indirect partisan political activity.
Albany City Court candidate LaVonda Collins recently tested the letter of those instructions on her Facebook page with thinly veiled criticism of Bill Kelly, the city of Albany’s corporation counsel and who, after Tuesday’s victory, is a City Court judge-elect.
“What is the justification provided for using the weight of the City to support a candidate that does not fit the criteria set out by this city for diversity, inclusion and equal opportunity when without the weight of the city the Judicial candidates for Albany City Court Judge were already on a level ground?” Collins wrote in an Oct. 29 Facebook post.
On Oct. 30, Mark Mishler, a defense lawyer supporting Collins’ candidacy, criticized Kelly in a racially charged post — one Collins has allowed to remain on her Facebook page up until the present.
Mishler praised Collins as a “woman of color” and for her experience. “In contrast, her opponent, Bill Kelly, represents the old Albany way of doing things,” Mishler added.
Mishler noted Kelly is the “head lawyer for the city”– and did not stop there.
“Have you noticed that the City of Albany has a deep and long-standing problem of racism and brutality in the Police Department AND a complete lack of accountability?” Mishler stated. “In my opinion, a City’s leadership could choose to help to hold the police accountable or could choose not to. Unfortunately, in Albany the leadership has consistently refused to insist on real accountability for the police. I can’t vote for someone who has failed our city in this manner.”
When asked via email to comment on the remarks in her Facebook post, Collins responded to Law Beat – then posted our questions and her responses on her Facebook page.
Collins told Law Beat we had “taken the words out of context and inserted names where they do not belong.” She said her post was about voter suppression.
Collins, a former Albany County prosecutor and public defender, is a Democrat who ran for City Court on the Working Families line. Collins, who has contributed at least $300 to the Albany County Democratic Committee since February 2016, at one point asked Law Beat: “Why didn’t you put forth an article to challenge the role of politics in judicial campaigns?”
She said that a “massive machine” was at play in the race. Collins wrote “certain Democrats have been trained to vote one way — Democrat across the board even though it hurts us to do so. This training has now become a weapon.”
Collins, in clear references to Kelly and herself, wrote one of the two candidates running for City Court was “endowed the Democratic endorsement” while the other “earned the Working Families Party endorsement.”
Law Beat asked Collins if she could elaborate on the “machine,” what it is and who is in it. Collins did not give an answer.
The Judicial Campaign Ethics Handbook also prohibits judge candidates from appealing directly or indirectly to the “fear, passion or prejudice of the electorate or from appealing purposefully to or against members of a particular race, sex, ethnic group, religion or similar group.”
Candidates’ campaign committees are told to avoid “comments on another candidate’s qualifications” on social media venues such as Facebook.
Collins appeared to test the limits of both of those rules. That Collins allowed Mishler’s post to remain (it was “liked” by at least 42 people) could certainly be seen as tacit approval.
And in her Oct. 29 post, Collins wrote she “eats and purchases products and services that are mostly inner city, independently owned, small business, black and brown owned businesses because she understands that when we fail to support our small business ventures that’s a dream lost.”
Asked about Mishler’s post on her Facebook page given the rules against indirect partisan attacks, Collins replied: “Mark Mishler is not and never has been a committee person for Citizens for LaVonda Collins. Mark Mishler is an independent citizen with First Amendment rights. There was no response to the information that was tagged to LaVonda Collins Facebook page. As a candidate I am not required to control the opinions of citizens in the community.”
Of course, Mishler was not a mere citizen. A Collins campaign ad prominently noted her endorsement by Mishler, identified as a “defense attorney and legal activist.”
Collins repeatedly refused to say why she allowed Mishler’s post to remain on her page. She told Law Beat Mishler was “free to exercise his First Amendment right.”
Pressed on the question, Collins replied: “Have a good day Mr. Gavin. I happen to value freedom of speech as it is a constitutional right.”
When contacted by Law Beat, Mishler said he did not intentionally post his endorsement on Collins’ Facebook page and thought it was on his own page. He stood by his remarks and said the city leadership, including Kelly, has failed to hold the police department accountable for brutality and racism.
Kelly, when asked to comment, declined.