To be Argued by:
Hon J. Marshall Ayres
Time Requested: 10 Minutes for Presentation
15 Minutes to Answer Questions from Judges
5 Minutes for Rebuttal
Court of Appeals
State of New York
In the Matter of the Proceeding
Pursuant to Section 33, Subdivision 4,
Of the Judiciary Law in Relation to:
Hon. J. Marshall Ayres
a Justice for the Town of Conklin,
Broome County,
-against-
State Commission on Judicial Conduct,
BRIEF FOR APPELLANT
Hon. J. Marshall Ayres
Pro-Se
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June 24, 2017
JCR-2017-0006
Appellant
Respondent
TABLE OF CONTENTS
Table of Authorities ............................................. .
1. Matter of Qmningbam, 57 NY2d 270, 275 [1982]
2. McKinney's Consolidated Laws of New York
Annotated, Section 1704
3. VonderHeide, 72 NY2d 93 [1997]
Page . \
11
Legal Precedents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ........ iii
Legal Discrepan.cies ...................................................... 1
1. Improper Investigative Techniques... . . . . . . . . . . . . . . . . . . . . . . . . 1
2. Improper Search and Seizure: ................ ·.. . . . . . . . . . . . . . . . 2
3. Improper and Biased Actions .................................. 4
4. Violation of Constitutional Rights ............................. 6
s. Provided Immunity ................... ~ .......................... 7
6. Determination on based inappropriate issues ................ 9
Charge I Argum.en.ts ..................................................... 10
1. Rigb.ts as a Parent .............................. : . . . . . . . . . . . . . . . . . 10
2. Lending Prestige of Judicial Office ........................... 11
3. Failure ofRecusal by Local Judge ............................ 12
4. Daughter as Capable Adult. .................................... 13
5. Issues with Assistant District Attorney ........................ 15
6. Concl"USions ....................................................... 16
Charge II Argum.ents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 7
1. Mens rea defense ................................................ 18
2. Statements made were factually correct ...................... 19
3. Basis of finding solely on the tone of responses ............. 19
4. Selective nature of quotes ....................................... 19
5. Adequate Legal Counsel unavailable .................... : .... 20
6. Function of discipline is to instruct. .......................... 20
7. Concl"USions ...................................................... 21
Table of Authorities
1. Matter of Cunningham, 57 NY2d 270, 275 [1982]
2. Matter ofVonderHeide, 72 NY2d, 93 [1997]
3. 2017 Edition McKinney's Consolidated Laws ofNew York
Annotated, Section #1704
..
11
Legal Precedents
1. In the Matter of Cunningham, the Court has ruled that the sanction of
removal is to be reserved for cases demonstrating "truly egregious
circumstances". As neither on the actions noted in Charges I & II fall
within the concept of ''truly egregious circumstances", and as the
definition includes the wording "reserved for" meaning for extreme
and limited cases, for which these charges do not qualify, the
Commission's Determination of removal from office should be
overturned.
2. The Matter of Cunningham further states that "removal should not be
ordered for conduct that amounts simply to poor judgment". While
mistakes were made, all in a good faith effort, the inclusion of the
words "should not" in this statement clearly demonstrates that
removal for "poor judgment" is not allowed. As the basis for Charge
II is the overall tone of the letters, it should be noted that removal
from office is excessive, especially when you compare these
comments to those in the Matter of Mahon [1997] and the Matter of
McKevitt [1997], both of whom used profane remarks inappropriate
to repeat here. In both cases it was determined that censure was a
more appropriate disposition.
3. McKinney's Consolidated Laws of New York (See Record for View,
page 69, #13) discusses in detail the issues facing Town and Village
Judges and that "appellate courts have some discretion to forgive
defects". We are requesting that you exercise this discretion.
4. The Matter ofVonderHeide, 72 NY2d 93 [1997] notes that the
decision of remov~ should rest on the ''threat" that the Justice poses
to the proper administration of justice. It is abundantly clear that I do
not present a "threat" of this nature and a revision of the
Commission's Determination is warranted .
. . '
II I
To: New York State Court of Appeals
Re: Hon. J. Marshall Ayres
Dear Judges:
Per your request the following is our brief regarding the appeal of the
Commission on Judicial Conduct's recommendation that I be removed from
office. It is our belief that this decision should be overturned or amended for
the following reasons.
1. Improper investigative techniques: In June of2015 I was informed
that the Commission wished to investigate records within our Court. I called
the Commission requesting to speak to Ms. Misjak with the intent of
rescheduling the assigned appointment to a time when I could be present
during the review of these records. Rather than speaking to Ms. Misjak, my
call was transferred to Cathleen S. Cenci who aggressively accused me of
"harassing" her staff. I at no time was rude, abrasive, or unprofessional to
anyone and do not understand how simply asking for a date to be
rescheduled is considered harassment. Indeed it seems to instead
demonstrate a bias against me on Ms. Cenci's part. During this
conversation, I pointed out to Ms. Cenci that we are a paperless Court and
1
many of the records are password protected. Ms. Cenci responded that not
only was my presence unnecessary as the Commission reviewed my files,
but I specifically should not be present, and that I should provide my
passwords to the Court Clerk so that she could access all the information
within the files. The basic question is if proper procedure was followed. Is
it proper procedure to exclude the Judge when his records are being
reviewed within his office? Doesn't a Judge have the right and responsibility
to be present when his records are reviewed? Is it proper procedure to accuse
a Judge of harassment when he is simply attempting to reschedule an
appointment to review his records?
2. Improper search and seizure: Pursuant to Judiciary Laws of the
State ofNew York it is the responsibility of the State Commission on
Judicial Conduct to investigate charges against sitting judges. Within
Article 2-A, Sections 42 and 44 the authority to "conduct hearings and
investigations" is clearly outlined. However, there is no authority outlined
within either of these sections allowing the Commission to examine personal
records dming normal investigative procedures. The Commission is not
allocated super powers to conduct research into a complaint outside of
2
normal practices nor to ignore protections guaranteed under the United
Stat~s and New York State Constitutions. It has been, and continues to be,
fundamental that a Judge's notes are private in nature and that no one,
including the Commission, has the right to a Judge's personal notes. This
code has been a bedrock principle of jurisprudence throughout our country's
history and should not be lightly ignored or over-ruled. Over-ruling this
bedrock principle could mean that all judges' notes would be open for
scrutiny, not only by the Commission but by any other group asking for
them. Do we really want all Judges to have to turn over their personal notes
to the New York Times newspaper, or worse some blogger with an ax to
grind, for all current and prior cases upon request? It is in the best interest of
jurisprudence to allow a judge to take notes during a case in order to have
the ability to reflect on them when making his determination. This can only
be effective if the judge is assured that his notes will remain private.
Clearly, the need for privacy in Judge's notes has been, and continues to be,
a critical and fundamental element of jurisprudence. Alternatively, at the
very least, the Commission should be required to present a subpoena to the
judge prior to examining his personal notes. While most of the records
3
within a defendant's file are public information, the judge's personal notes
are by definition "personal" and would be subject to subpoena requirements.
Therefore, because the Commission collected this Judge's notes regarding
these cases in an improper manner, rendering them inadmissible, and the
material within these notes has been used in a direct or indirect manner in
building of the Commission's case, we respectfully request that this case be
dismissed due to improper/illegal search and seizure. We would further
request that as this activity was so egregious in nature and the proper
consequence of this action would be the exclusion of all material discovered
directly or indirectly as a result of the exploitive act, that the Commission's
case be dismissed with prej~dice.
3. Improper and biased actions by the Commission: On November
16, 2015 I appeared before the Commission to provide testimony as
requested. Upon arriving at their offices I was escorted into a conference
room where I overheard Ms. Cenci state that she was going to sit in on this
case. The manner and tone of this statement led me to believe this was not
normal procedure. The staff attorney scheduled to lead this collection of my
testimony appeared initially taken aback by Ms. Cenci's statement but
4
recovered and handled the issue as well as could be expected. I did ask if it
was proper procedure for Ms. Cenci to sit in on an investigation and
specifically what percentage of cases did Ms. Cenci sit in on; unfortunately I
never received an answer to this question. During my testimony Ms. Cenci
interrupted the investigator on multiple occasions, whispering in her ear
what questions to ask, to the point where over half of the questions I
received were generated by Ms. Cenci. Was it proper procedure for Ms.
Cenci to interfere with this investigation? If so, why did she have the
investigator state the questions rather than having Ms. Cenci simply ask
them herself? When the investigator hesitated to ask a question Ms. Cenci
wanted her to ask, Ms. Cenci went so far as to grab her arm and forcefully
state to the investigator, "Ask the question!" Could the various actions
taken by Ms. Cenci directly inserting herself into the investigation be
considered obstruction of governmental administration? If so, is this proper
procedure, or even legal? Based on Ms. Cenci taking my phone call
intended for other people, sitting in as I provided testimony to the
Commission, and interfering with the investigator's line of questioning, it is
incumbent to question just how impartial Ms. Cenci is regarding this specific
5
case. As the Court is aware, I was investigated once before, and it was
determined that I did nothing wrong - a decision I hope repeats itself here.
During that previous investigation Ms. Cenci and I disagreed on several
issues regarding procedure. Would it be wrong to assume that her actions in
this current case are a manifestation of my having the audacity to question
her authority during my previous case? Most importantly, and the crux of
this issue, is how her actions influenced the decisions and future proceedings
taken by the investigator and others who are clearly subordinate to her. This
influence by Ms. Cenci on the investigator and others was demonstrated
when I inquired if there was an option for me to plead guilty and receive a
decision short of removal from office. The investigator stated that she was
only authorized to offer a settlement of removal from office with a waiver of
confidentiality.
4. Violation of Constitutional Rights: Throughout the investigation by
the Commission, I was repeatedly instructed that my failure to testify could
be construed in an adverse or negative manner. A verbal warning at the
beginning of this process indicated that my failure to testify ~ould result in
the Commission making an inference in the most negative way possible.
6
During my hearing, the hearing officer stated that an "adverse inference"
could be drawn from my failure to testify. The investigator also stated that a
''negative inference" could be drawn from my failure to testify. ~tis a core
principle of our Constitution that an individual is to be considered innocent
until proven guilty. It is also a core principle of jurisprudence, as noted in
the Fifth Amendment of the United States Constitution, that the defendant is
not responsible to prove his or her innocence but rather it is incumbent on
the prosecution to prove its position. In fact, as judges we are trained to
instruct juries that they are not to draw any conclusions based on whether the
defendant testifies or chooses not to testify or to assume any inference from
that decision. The Commission cannot disregard these principles simply out
of convenience. Due to the threatening nature of the statements by the
Commission and hearing officer and the negative effect generated on our
attempt to provide a proper defense, we hereby make a request to have these
charges dismissed with prejudice.
5. Provided Immunity: During the "Taking the Bench" education
classes sponsored by the Office of Court Administration and the Resource
Center in December 2008, new judges in attendance were informed that, as
7
most of those in attendance were not trained in the field of law nor passed
any Bar Exam, judges should call the Resource Center for guidance should
questions arise regarding specific instances of law. In return for utilizing the
services of the Resource Center, judges would receive immunity from
prosecution by the Commission on Judicial Conduct if they followed the
guidance offered by the Resource Center. Clearly the purpose of this offer
of immunity was to encourage new and existingjudges to take advantage of
the expertise offered by the Resource Center and to have faith that the
information they provided was accurate and would not place the individual
judge in jeopardy. It would be inconceivable for the Office of Court
Administration to set up an office where judges can seek guidance without
some guarantee that the advice was accurate and would not place the judge
in danger of retaliatory action by the Commission. Without this protection,
no judge would take advantage of the Resource Center, and obviously this
was not the intent of the Office of Court Administration when they created
the Resource Center. By confirming the immunity pledge that was given to
the judges, you will allow the Resource Center to perform its stated mission,
and judges will feel safe in contacting them for information and guidance.
8
We ask you to confirm this immunity pledge both to provide clarification to
judges such as myself who use the Resource Center on a regular basis and as
this promised immunity is the primary basis of my appeal. The
Commission's stated position is that no such immunity exists. We disagree
with this position and believe the very future of the Resource Center rests on
your decision.
6. Determination based on inappropriate issues: As noted in Mr.
Stoloffs Opinion, (Record for View, page 31, 1st paragraph), the
Commission's finding on Charge II was based solely on the tone of my
letters and not on their factual nature. As the record demonstrates that the
letters were factually correct, and it is the tone of them that is in question,
can the Commission find me guilty of a charge that does not appear within
the Formal Written Complaint? It is our belief that as the tone of the letters
does not appear within the Formal Written Complaint, and therefore we
were unable to prepare an appropriate defense due to this omission, Charge
II should be dismissed.
9
Based on the individual actions noted above, and more importantly the
cumulative effect of those actions, we would respectfully request that these
· charges against me be dismissed.
The primary reason for this appeal results from the Commi$sion's
decision regarding two specific issues. Charge I involves the accusation that
I used my judicial office in an attempt to get my daughter out of a vehicle
and traffic cell phone ticket. As noted above, I was relying on the advice of
the Resource Center and subsequent statements by the Commission when I
participated in one of her three hearings. During their series of "Talcing the
Bench" classes, members from the Resource Center instructed us that it was
permissible for a judge to be present at their child's court hearing, provided
they were there only as a parent and did not attempt to use their judicial
position in an effort to obtain special favors or outcomes. The concept of
allowing judges to be present at their family member's court proceedings has
been additionally presented on numerous occasions, the latest being
September, 2016 at the New York State Magistrates' Convention held in
Lake Placid, NY. During this convention, the Commission itself stated, in
10
two different instances, that it was permissible for a judge to be present at
their family's court proceeding subject to the aforementioned conditions. In
its Determination the Commission argued that I had lent the prestige of my
judicial office to advance the private interests of my daughter. It is
interesting to note that the Commission could not provide a single witness
who would state that I was present at any meeting concerning my daughter
in any capacity other than as a parent. To the contrary, all witnesses,
including all of the Commission's witnesses, agreed that I was present only
as a parent (See Record for View, {page 81, lines 16-18}, {page 82, lines 2-
5}, {page 87, lines 18-25}), and at no time requested nor received any
preferential treatment based on the fact I was a judge. When during the pre-
trial conference it was brought up that I was a judge, it was not by me, and I
told the Assistant District Attorney I was not asking for any special favors
due to being a judge. In fact, in the May 19, 2017 edition of the Press &
Sun-Bulletin, (See Record for View, page 80), the local Binghamton, NY
newspaper, it is noted that I specifically told the Assistant District Attorney,
"You've got to make your own decision. You can't let Judge Coe or myself
11
influence you." The Commission's position that I lent the prestige of
judicial office to this proceeding is simply erroneous.
As noted in the testimony provided to you, clearly there was a history
of disagreement between the judge in the Town of Kirkwood who was
assigned this case and myself. When I had taken office after the 2008
election, Judge Coe's wife was working as the Court Clerk in the Town of
Conklin. After approximately nine months, I chose to fire Ms. Coe because
the quality of her work was insufficient for the level of service we were
trying to establish. Subsequent to that action, the Coes filed charges with the
Commission along with bringing a civil suit against me and the Town of
Conklin. Both of these suits were dismissed, as appropriate; however hard
feelings have existed since then and continue to this day. My concern was
that Judge Coe would use his position of power in my daughter's case to
retaliate, a concern that I believe was warranted considering Judge Coe' s
actions. My inquiries about procedures to have my daughter's case
transferred to the other judge in the Town of Kirkwood were not intended to
influence the disposition of the ticket but simply an action to ensure my
daughter would receive a fair and impartial hearing. As noted in the
12
information provided to you, Judge Weingartner stated that he has received
similar requests from parents in the past, and he went further to state that he
had no direct knowledge of my calling in any capacity other than as a parent,
(See Record for View, page 82, lines 2-5). Had Judge Coe simply recused
himself, as we believe was required, no further protective action on my part
would have been necessary, and there never would have been an issue.
The Commission's Determination further mentions that my daughter
was a capable adult. While I agree with this statement, in the course of
family interactions it is normal for a child, even an adult child, to seek
advice from his or her parents. If in the course of events a daughter is
diagnosed with cancer, and her mother is a Nurse Practitioner, would it not
be prudent for the daughter to consult with her mother even though the
mother would not be the person directly treating the ailment? My daughter
came to me as a source of infonnation on how to proceed with this ticket,
and I explained the logistics to her as I would to anyone who asked this type
of question. Court proceedings can be very intimidating for those unfamiliar
with the process, especially considering the history involving the Town of
Kirkwood judge. My providing her with logistical information, and all
13
actions I took, were exclusively as a parent as sanctioned by the
Commission.
The Commission's Determination also references my actions
regarding Ms. Parker, the Assistant District Attorney .. The Commission's
assertion that I used the prestige of my office to assist my daughter is proven
incorrect within the testimony provided to you where Ms. Parker is quoted
as stating to me, "I didn't lmow who you were, actually, at the time." It is
difficult to comprehend how the Commission can claim I used my judicial
influence when Ms. Parker admits she did not realize I was a judge until near
the end of the pre-trial conference. The testimony provided additionally
makes note of the fact that when Ms. Parker came out into the Courtroom
and asked my daughter back into the conference room, she looked at me and
asked if I was her father. When I aclmowledged I was, she then told me to
also come back for the conference. It is clear that all parties were working
under the assumption I was present as a parent and only as a parent. It
should be noted that evidence provided shows that at no time did I request
nor receive any special favors, i.e. reduced fine or dismissal, based on my
being a judge. In fact, the only specific request made was for Ms. Parker to
14
follow the law. The ticket received by my daughter involved the use of a
cell phone. Within the statute there is a definition of''using" (See Record
for View, page 56, section 2[b]), a cell phone. As my daughter was simply
passing the phone back to her son, and evidence provided proved that the
phone was not engaged at the time, this action does not fall within the
parameters of ''using" a cell phone and as such the case should be dismissed.
Simply pointing out that this ticket was improper and therefore no crime was
committed does not constitute using the prestige of my office to further my
daughter's interest. My actions were only to ensure she be treated in a fair
and proper manner and not be penalized because of the Town of Kirkwood
judge's bias against me.
The Commission's final item in its Determination involves my actions
and demeanor towards the Assistant District Attorney. I am accused of
speaking to her in a forceful and authoritative manner. The evidence
provided to you however demonstrates that Ms. Parker acknowledged I did
not scream, swear, nor raise my voice (See Record for View, page 83, line
23 to page 84, line 2) to her. As the definition of authoritative is
"substantiated or supported by documentary evidence and accepted by most
15
authorities in a field", then yes, I did speak to her in an authoritative manner.
However, simply by acknowledging that I did commit the action within the
Commission's Determination does not prove, or even suggest, that the action
itself is improper. Speaking in an authoritative manner is an action which is
not only proper but generally one which is desirable and is usually
commended.
Therefore, as the Commission has directly acknowledged that it is
permissible for a judge to appear in court as a parent, and all witnesses,
including the Commission's witnesses, agreed my actions were exclusively
as a parent, and as I never requested nor received any preferential treatment
due to being a judge, and as I followed the Commission's directive regarding
appearing as a parent precisely, and because this case must rest on the facts
and not assumptions nor Commission-provided implications, the proper
conclusion would be that the Commission erred in its Determination that I
should be removed from office.
While I feel that my actions were legal and did not cross any ethical
boundaries, I do recognize with the benefit of hindsight and literally years of
reflection that other choices would have been more prudent. I should have
16
advised my daughter to request Judge Coe's recusal at her first appearance
rather than expecting him to do so on his own. If her case had been heard by
any other judge, I would not have felt defensive for her and would have been
confident she would receive a fair and unbiased hearing. I also should have
suggested she hire an attorney to plead her case if indeed it remained within
Judge Coe' s court rather than attempting to guide her myself. This
experience has taught me how easily words and actions can be
misinterpreted and to avoid any occasion or situation that could be
misconstrued.
The second major issue mentioned as Charge II within the
Commission's Determination concerns my actions during an appeal of my
restitution decision involving the defendant Mr. Finch. This issue originated
when I received a letter from Broome County Court Judge Smith. Upon
receipt of this letter, I responded to Judge Smith outlining my reasoning for
making the decisions that were being appealed. Not being an attorney, and
relying on my training in the private sector of responding directly to the
person who contacted you, I forwarded my letter back to Judge Smith (See
Record for View, page 72 & 77). As you are aware, the concept of mens rea
17
revolves around the notion of intent. While the information provided to you
will show I brought up this mens rea issue on multiple occasions, the
Commission thus far has failed to address my intent. Intent must be proven
by specific evidence, and as the Commission has no specific evidence
regarding my intent, they simply are unable to address this issue. It was and
remains our contention that all of the actions taken were done in a good faith
effort to handle this case to the best of my training and ability.
Within this sec~ion of the Commission's Determination they
specifically referenced that it was my position that the appeal should "be
dismissed as it has not been perfected as required". As noted in Mr.
Stoloffs opinion, that statement is factually correct, (See Record for View,
page 31, 1st paragraph), a sentiment shared by and confirmed by the Court of
Appeals in People v Smith 27 NY3d 643, 647 (2016). The Commission
goes further by criticizing my statement that "the main question" concerning
any appeal is ''whether substantial justice had been performed". Reviewing
the material provided to you will illustrate though that it is precisely that
criteria, using those exact words, that is used by the County Court in
determining whether the underlying court handled the case properly, (See
18
Record for View, page 79). Because my comments were factually correct as
illustrated in Mr. Stoloff.,s opinion, the finding of misconduct was based
solely on the tone of my responses and not on issues alleged within the
Formal Written Complaint. As the Commission's Determination is based on
something not within the Formal Written Complaint can they even act on it?
Regarding the issue of"tone", the Commission took great care to
selectively choose comments that could be easily misrepresented when taken
out of context. The Commission specifically chose such terms as "ludicrous"
and "defies logic" that appear hostile in nature when expressed individually
but when placed within the context where they were actually used are
substantially less aggressive. (See provided letters to Judge Smith, Record
for View, pages 72 & 77). I have agreed that these terms, although factually
correct, could be interpreted as being "snarky" in nature. Considering that
all judges are human and subject to their own personalities, some leeway
should be given to allow judges to express their own individuality. The tone
of a comment, letter, or action is most certainly subject to interpretation, and
as such is it not up to the voters within a municipality to select someone who
19
represents their perceptions and beliefs rather than an outside party
detennining what is politically correct?
Finally, we would like to take particular notice of the opinion written
by Ms. Yeboah attached to the Commission's Determination. Her written
opinion includes two specific issues to which we wholeheartedly agree. The
first is her "concerns about a disciplinary system that provides no support for
a judge who, due to :financial constraints, is unable to present an adequate
· defense." (See Record for View, page 36, 2nd paragraph). It is patently
improper that a murderer or drug dealer is always provided skilled legal
defense while a judge is not offered the same protections. The second item
within her opinion is that she believes "that the function of discipline is not
only to punish but also to instruct." (See Record for View, page 37 3rd
paragraph). It has always been our position that this has been an enormous
learning opportunity for us and, while we freely admit mistakes were made,
this experience will make me a better judge in the future. The Town of
Conklin would be better served by having an experienced judge who has
learned from his mistakes and will be thoughtful in his actions and responses
20
•
rather than installing a new inexperienced justice who may repeat the same
mistakes I have made. (See Record for View, page 58 - 71).
While multiple parties have made mistakes during this entire episode,
I can only correct and take responsibility for my own actions. I have from
the start freely admitted my mistakes and regret those events that
precipitated this proceeding. It is readily apparent that I have learned from
this experience and will be a better judge because of it. The Court of
Appeals has multiple options at its disposal short of full removal from office
from which it can choose. We respectfully request you consider all of these
options during your deliberations.
Respectfully submitted,
Hon. J. Marshall Ayres
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