To be argued by: William J. Dreyer
Time requested: 15 minutes
QCourt of ~ppeals
of the
~tate of jF!etu !lork
In the Matter of the Proceeding Pursuant to Section 44, subdivision 4,
of the Judiciary Law in Relation to
CATHRYN M. DOYLE,
A Judge of the Surrogate's Court, Albany County.
CATHRYN M. DOYLE,
Petitioner,
-against-
NEW YORK STATE COMMISSION ON JUDICAL CONDUCT,
Of Counsel
William J. Dreyer
Craig M. Crist
Date: January 9, 2014
BRIEF FOR PETITIONER
Respondent.
DREYER BOYAJIAN LLP
Attorneys for Petitioner
Hon. Cathryn M. Doyle
75 Columbia Street
Albany, New York 12210
Telephone: (518) 463-7784
Facsimile: (518) 463-4039
TABLE OF CONTENTS
TABLE OF AUTHORITIES ...........................•...............................•...•........•..•.•....•....•...•....•...•.....
PRELIMINARY STATEMENT.................................................................................................... 1
QUESTIONS PRESENTED........................................................................................................... 3
STATEMENT OF CASE ..........•..................................•.........•.....•.........•........•..•............................ 4
ARGUMENT ......................................•...........•....•..................•••.•...•......•..•.•....•.•.•..•.........•............... 11
POINT I
JUDGE DOYLE'S GOOD-FAITH ERROR OF LAW DOES
NOT CONSTITUTE MISCONDUCT............................................................................... 13
POINT II
THE COMMISSION MADE FINDINGS OF FACT THAT WERE NOT
BASED ON THE RECORD ..................•.....•...........•...•...•.......•............••.••.••.•..•.............•... 19
POINT III
THE EXTREME SANCTION OF REMOVAL IS EXCESSIVE UNDER THE
CIRCUMSTANCES ..•.............•....•....•.•....•....•.........•....•...•.....•........•...•....••..•.•..•........•....•... 21
A. The Alleged Misconduct Is Devoid of An Accompanying Aggravating Factor
Other Than A Wholly Unrelated Prior Discipline ...................................................... 22
B. The Existence of Petitioner's Prior and Unrelated Censure Does
Not Require Removal .................•....•.........•...............•...•...•........•............•....••••.•........... 23
C. Several Other Recognized Mitigating Factors Evidence that A Sanction of
Removal is Too Severe ..•.•....•..........•.............•....•..•...............•...•.....•.........•..•.•..•.•....•..... 25
CONCLUSION ....•..............•.................•....•...•••.............•.........•.............•...........•.............•............... 28
i
TABLE OF AUTHORITIES
Page
STATE
Matter of Assini, 94 N.Y.2d 26 (1999)…………………………………..……………...….……23
Matter of Bulger, 48 N.Y.2d 32 (1979)…………………………….…………………....………22
Matter of Conti, 70 N.Y.2d 416 (1987)...............................................................................9, 22, 23
Matter of Cunningham, 57 N.Y.2d 270 (1982)………………………….………11, 12, 21, 22, 26
Matter of Dier, 48 N.Y.2d 874 (1979)………..………………………………….…….………...22
.
Dixon v. State Comm’n On Judicial Conduct, 47 N.Y.2d 523 (1979)………….…….…17, 22, 25
Matter of Edwards, 67 NY2d 153………………………..…………………………...…...…….22
Matter of George, 2013 NY Slip Op 08195 (2013)……………………...……………...17, 22, 23
In re Intemann, 73 N.Y.2d 580 (1989)……………………………………………..……………23
In re Kelso, 61 N.Y.2d 82 (1984)…………………………………………...…….……..11, 25, 27
In re Kiley, 74 N.Y.2d 364 (1989)……………………………..……...……..11, 12, 19, 22, 24, 25
In re LaBelle, 79 N.Y.2d 350 (1992)…………………………………………..…………….13, 17
Matter of LaBombard, 11 N.Y.3d 294 (2008)………………………………………...…………23
Matter of Lonschein, 50 N.Y.2d 569 (1980)……………………………………………………..25
Matter of Marshall, 8 N.Y.3d 741 (2007)…………………………………………...…………..22
Matter of Mazzei, 81 N.Y.2d 93 (1997)……………………..…..………………………...….....21
McM. Wright, Commn. on Jud. Conduct, June 20, 1988……………………………...………...22
Matter of Myers, 67 N.Y.2d 550 (1986)…………….………….………………………………..22
Matter of Reedy, 64 N.Y.2d 299
(1985)………………………...…………………………....………………..……………………22
In re Robert, 89 N.Y.2d 745 (1997)………………………………………………..…………….23
ii
Rogers v. State Comm’n on Judicial Conduct, 51 N.Y.2d 224 (1980)……………….………….11
Matter of Shilling, 51 N.Y.2d 397 (1980)………………………………………………………..12
Matter of Sieffert, 65 N.Y.2d 278…………………………………………..………………...….22
In re Sims, 61 N.Y.2d 349 (1984)…………………….………………………………….11, 12, 23
Matter of Skinner, 91 N.Y.2d 142 (1997)………………………………..………11, 12, 19, 25, 27
Matter of Steinberg, 51 N.Y.2d 74 (1980)……………………..……………………………...…11
Quinn v. State Comm’n on Judicial Conduct, 54 N.Y.2d 386 (1980)………………………..….11
Matter of Waltemade, 37 N.Y.S.2d 989 (Jud. Ct. 1975)…………………………………….…..25
In re Watson, 100 N.Y.2d 290 (2003)……………..…………...……………11, 13, 17, 18, 21, 22
STATUTES
NY Cons, art VI § 22, subd. A………………………………………………………………..1, 11
Judiciary Law § 44(7)……………………………………………………………...…………1, 11
MISC
McGee, Commn.on Jud. Conduct, April 12, 1984………………………………………………22
Watson, Commn.on Jud. Conduct, Nov. 17, 1988………………………………………………22
PRELIMINARY ST A TEMENT
Petitioner Hon. Cathryn M. Doyle, a judge of the Surrogate's Court, County of Albany,
brings this proceeding pursuant to the State Constitution and enabling statutes (NY Cons, art VI ,
§ 22, subd. A; Judiciary Law, § 44(7)) to review the November 12, 2013 Determination of the
New York State Commission on Judicial Conduct ("Commission") which sustained three
charges of judicial misconduct and determined that the appropriate sanction is removal.
Any failure of Judge Doyle to recuse herself was the result of a good-faith
misinterpretation of the existing rules, a misinterpretation that was not unreasonable due to the
different procedures that applied to surrogate's courts. Additionally, as determined by the
Referee, the ethical rules were not entirely clear on the issue of ministerial and/or quasi-
ministerial acts, particularly where all interested persons have signed consents and/or otherwise
joined in the relief, which was the basis for Judge Doyle to conclude that there was no possibility
of partiality. Therefore, the Commission erred in finding judicial misconduct.
Judge Doyle also urges this Court to overturn certain factual determinations made by the
Commission, including, but not limited to, the assertion that her testimony at the hearing before
the Referee was "evasive" and that she failed to show a willingness to conform to ethical
requirements.
Finally, assuming that the Court sustains the finding of misconduct. when all
circumstances are considered, including the fact that there was no finding or even an allegation
of any actual or alleged favoritism, it is submitted that the appropriate sanction is not removal.
This case, which is solely an "appearance of impropriety" case and is devoid of those
aggravating factors which this Court has relied upon in upholding the sanction of removaL does
not rise to the "truly egregious" level required for removal. Additionally. there are several
circumstances present in this case which this Court has recognized as valid mitigating factors,
justifying a sanction less than removal.
2
QUESTIONS PRESENTED
I . Whether an incorrect analysis of the law by Petitioner, but, as determined by the
Referee, to have been made "in good faith," constitutes judicial misconduct.
2. Whether this Comi, as part of its plenary review, should reject ce1iain factual
determinations of the Commission lacking support in the record, and which
contradict findings of the Referee, who had the benefit of viewing witnesses and
hearing four days of testimony from the witnesses, including the consistent
testimony of Judge Doyle and her principal court attorney.
3. Whether, assuming arguendo, misconduct is found, do the circumstances of this
case constitute "truly egregious conduct" warranting the imposition of the
"ultimate sanction" of the removal of Judge Doyle?
3
STATEMENT OF CASE
Facts:
In 1979, Cathryn M. Doyle was admitted to the practice of law in New York. She served
as Chief Clerk of the Albany County Surrogate's Court from June 1980 through December 2000.
(R.97, ~ 97). 1 Judge Doyle was elected Judge of the Surrogate's Com1, Albany County, in
November 2000 and was re-elected in November 2010. (R. 441-443). Judge Doyle has, at times,
been designated an Acting Supreme Court Judge and Acting County Court Judge. (R. 456).
Judge Doyle was an adjunct professor at Albany Law School where she taught courses on Trusts
and Estates and Surrogate's Court Practice. (R. 454). She has been selected to serve as a
frequent lecturer for the New York State Bar Association, the Surrogate's Association and the
New York State Office of Court Administration. (R. 455).
By Determination dated February 26, 2007, Judge Doyle was censured by the
Commission. (R. 671 ). This Determination heightened her attention to applicable ethical rules.
In furtherance thereof, the uncontroverted testimony at the hearing established that Judge Doyle
and her principal court attorney reviewed all ethics opinions published by the Advisory
Committee on Judicial Ethics and the latest court decisions on a regular basis. (R. 456). This
review produced discussions and research memos on a number of ethical topics, including some
of the very ethical matters at issue in this proceeding.
As part of her heightened attention to ethical issues, in July 2011 (after the dates of the
relevant conduct herein), Judge Doyle implemented new "Surrogate's Court Protocols" in
response to an April 28, 2011 Opinion 11-43 from the Advisory Committee on Judicial Ethics
1 ''R'' refers to the Record and page numbers therein. All exhibits referred to herein were entered
into evidence at the hearing.
4
regarding a mandatory disqualification and remittal in Surrogate's Court, (R. 363; 175; R. 1676).
These changes in protocol essentially allowed Judge Doyle to review preliminarily incoming
papers and orders to identify possible conflicts. In response, the District Chief Administrative
Judge for Upstate Courts (DCAJ) issued a written report directing Judge Doyle to return to the
original Court Clerk's intake procedures, in direct contravention of the requirements of the
aforementioned Opinion 11-43. As a result, this de facto rejection of Opinion 11-43, among
other things, made it difficult for Judge Doyle to identify potential conflicts prior to the issuance
of citation in compliance with Opinion 11-43. (R. 372-374, Ex. 01, R. 1690).
Judge Doyle has a very busy court. During the time period at issue in the proceeding
(from 2007 through 2010), Judge Doyle has presided over approximately 14,090 proceedings in
Albany County Surrogate's Court, an average of 3,522 per year. (R. 352). In addition, Judge
Doyle was an Acting Supreme Court and County Court Judge. As noted above, the alleged
misconduct involves only a handful of the thousands of proceedings Judge Doyle presided over
during this time period at issue.
As detailed below, on September 17, 2012, Judge Doyle was served with a Formal
Written Complaint containing three charges of alleged misconduct which stemmed from her
involvement in a handful of mostly uncontested, non-adversarial proceedings brought by three
attorneys. (R. 96). In none of the proceedings at issue was it alleged or determined that Judge
Doyle's attorneys, political campaign supporters and friends received, or appeared to have
received. any special treatment or favors in her court. The proceedings were questioned by
Respondent based solely on the assertion that the nature of the relationship raises an appearance
of impropriety.
5
Prior Proceedings:
Summary Of Formal Written Complaint
There are three charges set forth in the Commission's Formal Written Complaint dated
September 17, 2012. (R. 96). The time period of the charges is from 2007 to 2010. All three
charges relate to an alleged disqualifying factor and Judge Doyle's subsequent failure to
disqualify herself. Charge I relates to estate proceedings wherein Thomas J. Spargo, a close
friend of Judge Doyle, appeared as an attorney. Charge II relates to estate proceedings wherein
Matthew J. Kelly, Esq., a campaign volunteer, appeared as an attorney. Charge 111 relates to a
single estate proceeding wherein Judge Doyle's former attorney, William J. Cade, appeared as an
attorney.
At the hearing held on March 19, 20, 21 and 28, 2013, Judge Doyle contested certain
factual allegations in the Formal Written Complaint and the legal conclusions that her conduct
constituted judicial misconduct. 1
The Referee's Proposed Findings of Fact and Conclusions of Law
On June 25, 2013, Referee H. Wayne Judge released the "Referee's Findings of Fact and
Conclusions of Law." ("Referee's Report" or "Report"). Due to its length, the reader is referred
to the full Report for a more detailed statement of its contents. (R. 1845-1875). However,
certain findings and conclusions contained within the Report are worthy of note.
The Referee's Report, unlike the Commission's Determination, pays special attention to
the many unique procedures that apply only in Surrogate's Court. On this topic, the Referee
1 An overview of the charges and application of the hearing testimony related thereto is
set forth in R. 1943-1958 and is therefore not repeated herein.
6
noted: "Although the same rules of conduct apply to all judges in all courts, there are procedural
differences that exist in the Surrogate's Court that may have an effect on how these ethical rules
apply to Surrogates." (R. 1850). The Referee fmther added that: "[ m ]ost matters in Surrogate's
Court are not adversarial in nature" and "do not take place in public, in a courtroom, or in the
Judge's Chambers," and that "most of the work done in Surrogate's Court does not take place in
the presence of the public, interested parties, or even in the presence of the attorneys." (R. 1850-
1851 ).
Thereafter, the Referee addressed Judge Doyle's assertion that her impartiality could not
be reasonably questioned, in light of the fact that all necessary parties had waived and/or
consented to the relief sought. He reviewed Advisory Opinion 11-43, issued after the
commission of the charged conduct at issue and addressed the determination therein that a
surrogate judge's duty to inquire is what makes that judge's action not ministerial in nature.
After quoting that portion of Advisory Opinion 11-43, he commented:
The foregoing statement lends a whole new meaning to the term
'inquire'. After the Surrogate's Clerk receives the death
certificates and the self-proving affidavits no Surrogate makes any
such inquiries. The process described above for sections 1408 and
1004 of the SCPA does not take place in Judge Doyle's Surrogate
Court or in any other Surrogate Court anywhere in the real world
except in adversarial situations.
(R. 1851-1852).
The Referee then detailed the proceedings and actions at issue. Thereafter. the Referee
turned to the application of the facts and rules at issue. Importantly, he began this analysis by
first addressing "the credibility of Judge Doyle." (R. 1857). He determined:
[S]he was a credible and candid witness in my judgment and 1
believe she told the truth. She believed that the actions she took in
7
(R. 1857).
the estates described in Charges I and III were mechanical,
ministerial acts to which there was no alternative actions available.
She disqualified herself when the proceedings developed
otherwise.
After discussing applicable opinions, he concluded that a Surrogate should be
"disqualified from all matters where ce11ain named individuals are involved." (R. 1858).
Thereafter, and directly addressing the reasonableness of Judge Doyle's mistaken belief that
recusal was not necessary, he made special note of the lack of clarity of the applicable opinions:
(R. 1858).
In hindsight the Ethics Opinions could have clearly stated that
there are no mechanical, administrative or ministerial acts that
can be performed by any sitting judge. Such a holding would have
been better than the pretense that mechanical judicial acts are
actually deliberative judicial acts. The Opinions could have stated
that when an attorney in the tainted class enjoys a kind of access to
any judge that is not shared by every other attorney there is an
appearance of impropriety regardless of how innocuous the judicial
activity may be.
In spite of his apparent understanding and acceptance of Petitioner's position, the Referee
then inexplicably found misconduct, sustaining each of the charges as a result of Judge Doyle's
non-recusal. (R. 1858-1875).
The Commission's Determination
By Determination dated November 12, 2013, the Commission voted to sustain the three
charges of misconduct set forth in the Complaint and imposed the sanction of removal. (R. 1 ).
Two members of the Commission dissented as to the sanction, concluding that a censure was a
more appropriate sanction in consideration of all of the circumstances.
8
The Commission found that virtually all of the proceedings at issue were non-adversarial
and/or for which consents were signed and/or for which all interested persons had joined in the
reliefrequested. (See, e.g., R. 5, 6, 16; ~~ 11, 13, 17, 59).
The crux of the Commission's Determination is that by failing to recuse herself, Judge
Doy le created an appearance of impropriety that undermines the public's confidence in the
judiciary. (R. 1 7). Most importantly, the Commission found that "[ e ]xacerbating the
impropriety," the claimed misconduct began within months after the issuance of Judge Doyle's
2007 censure, showing a degree of "insensitivity to the demands of judicial ethics" (citing Matter
of Conti, 70 N.Y.2d 416, 419 (1987)) that "was underscored by her failure to recognize the
impropriety of her actions and by her evasive testimony at the hearing before the referee." (R.
17). The Commission concluded by determining that the foregoing "requires the sanction of
removal." (R. 17).
The Commission rejected Judge Doyle's argument that any error she made was the result
of a good-faith misapplication of the law by asserting that it did not even need to reach that
argument because, even if that was true, "her conduct shows exceedingly poor judgment and an
inability to recognize impropriety" and cited to Advisory Opinion 11-43. ((R. 21-22). The
Commission concluded its analysis by stating: "[i]f not for her disciplinary history, respondent
may have had a more credible argument to retain her judgeship." (R. 24).
There were two dissenters as to the sanction. Their dissenting opinion began by noting
that "for the most part, these Surrogate's Court proceedings were not adversarial. contested
matters." (R. 26). It further noted the absence of any "allegation or finding that these attorneys
or their clients received any special treatment or pecuniary benefit because of her relationships
with the attorneys.'' (R. 26). It noted that the same results would have been achieved by the
9
attorneys in question regardless of whether Judge Doyle exercised recusal, and furthermore, that
even the purported campaign manager himself did not believe that his level of involvement
disqualified Judge Doyle. (R. 26).
The dissent further explained: "Her analysis of the law was wrong, but I credit her
explanation that she made that determination in good faith." (R. 26).
As to the majority's assertion that Judge Doyle's testimony at the hearing was "evasive,"
the dissenters noted:
(R. 26-27).
the referee who heard and saw respondent testify at the hearing
found her to be a 'credible and candid witness' who 'told the
truth'. I do not believe that respondent should be penalized because
we reject her testimony about her perspective on Mr. Kelly's role
and her own actions in her 2007 campaign.
As to the Judge Doyle's prior censure, the dissent noted: "I do not believe that it elevates
the sanction to removal on these facts, especially since the earlier discipline was not related to
the misconduct here." (R. 27). The dissenters concluded that the facts of this case did not rise to
the level warranting removal and therefore concluded that a sanction of censure was more
appropriate. (R. 27).
10
ARGUMENT
Applicable Standard of Review
The scope of this Court's review in this proceeding is far broader than that traditionally
assigned to an appellate court. "[T]his court when reviewing a determination of the commission
is vested not only with the authority to review the commission's findings of facts and
conclusions of law but also to determine the appropriate sanctions for the misconduct found and
to impose a less or more severe sanction." In re Sims, 61 N.Y.2d 349, 353 (1984) (citing N.Y.
CONST., art VI, § 22(d); JUDICIARY LA w § 44(9); Matter of Cunningham, 57 N.Y.2d 270, 274
(1982); Matier a/Steinberg, 51 N.Y.2d 74, 77 (1980). "Under this statutory framework, the
court is not restricted to reviewing the proceedings below for errors of law alone but, on the
contrary, we are required to review the findings of fact made by the commission. Thus, in
essence, there is a determination de novo." Cunningham, 57 N.Y.2d at 274; see also, Quinn v.
State Comm 'non Judicial Conduct, 54 N.Y.2d 386, 391 (1980) ("[l]n matters involving the
conduct and continued fitness of judicial officers the Constitution has conferred upon this court
broad plenary power to determine the facts and appropriate sanction in the exercise of its own
discretion and judgment."); In re Watson, 100 N.Y.2d 290, 298 (2003) (explaining that the
Court's review of determinations of the Judicial Commission is plenary).
Jn furtherance of this broad plenary review, this Court has repeatedly overturned the
Commission's determinations, including sanctions of removal. See Walson. 100 N.Y.2d 290;
Skinner. 91 N .Y.2d 142 (1997); Jn re Kiley, 74 N. Y.2d 364 (1989); Sims, 61 N. Y.2d 349: Jn re
Kelso, 61 N.Y.2d 82 ( 1984); Cunningham, 57 N.Y.2d 270; Rogers v. S/ale Comm 'non Judicial
Conduc/, 51 N. Y .2d 224 ( 1980).
11
Standard For Judicial Removal
The oft-cited standard for judicial removal was set by this Court over thirty years ago:
Removal is an extreme sanction and should be imposed only in the
event of truly egregious circumstances. Indeed, we have indicated
that removal should not be ordered for conduct that amounts
simply to poor judgment, or extremely poor judgment.
Cunningham, 57 N.Y.2d at 275 (internal citations omitted); see also, Sims, 61 N.Y.2d at 356
(citing Matter of Shilling, 51N.Y.2d397, 403 (1980)); Skinner, 91 N.Y.2d at 144 ("Removal is
excessive where the misconduct amounts solely to poor judgment, even extremely poor
judgment"); Kiley, 74 N.Y.2d at 369 ("We have repeatedly noted that removal is the ultimate
sanction and should be imposed only in the event of truly egregious circumstances"); Shilling, 51
N.Y.2d at 403 ("[T]he ultimate sanction ofremoval is not normally to be imposed for poor
judgment, even extremely poor judgment.").
It is submitted that the Court had in mind circumstances like those present in this
proceeding when it articulated the aforementioned extremely high standard.
12
POINT I
JUDGE DOYLE'S GOOD-FAITH ERROR OF LAW DOES NOT
CONSTITUTE MISCONDUCT
Where the application of the law "is sufficiently debatable" a "petitioner's actions
pursuant to a different interpretation cannot be said to constitute misconduct." Jn re LaBelle , 79
N.Y.2d 350, 360 (1992). In LaBelle, the Court concluded that since there was the possibility of
ambiguity in the application of a statute, "petitioner's reading of the statutes one way or the other
cannot constitute misconduct." Id. at 361. In Watson, although the Court did not find a
sufficiently debatable misunderstanding of the law, it noted the judge's asserted "failure to enlist
aid from people knowledgeable in the conduct of judicial campaigns" was "relevant in weighing
the appropriate sanction." Watson, 100 N.Y.2d at 303.
Charges I and III
The two Commission dissenters2 found that Judge Doyle's non-recusal was the result of a
good-faith error of law. They succinctly stated:
Her analysis of the law was wrong, but I credit her explanation that
she made that determination in good faith.
(R. 26).
The Referee, who had the benefit of four days of witness testimony including the lengthy
and consistent testimony of both Judge Doyle and her principal court attorney, also determined
that Judge Doyle both acted in good faith and that her asse1ied misinterpretation of the Rules was
not unreasonable:
[S]he was a credible and candid witness in my judgment and I believe
she told the truth . She believed that the actions she took in the estates
2 Said dissent was limited to the penalty imposed .
13
(R. 1857). 3
described in Charges I and III were mechanical, ministerial acts to which
there was no alternative actions available. She disqualified herself when
the proceedings developed otherwise.
As noted above, this determination was forged after hearing both Judge Doyle and her
principal court attorney testify that they had both examined the ethical rules at issue and applied
them to the circumstances at issue.
In fact, both Judge Doyle and her principal court attorney consistently testified, following
their research of the ethical opinions in place at the time, that they concluded there was no
possibility of partiality-and therefore no possible appearance of impropriety-because Judge
Doyle, in these non-adversarial proceedings, was doing what she was essentially mandated to do
by statute and because, in most instances, there were filed consents and waivers to the relief
requested by all persons deemed "interested parties" by the governing Surrogate's Court statutes.
(R.275-276; 356; 488; 1612-1614, ~~ 4b, 13, 21). The Referee also heard Judge Doyle testify
how this belief was grounded in her over 34 years of experience as both the Chief Clerk and
Surrogate and her attendant processing of literally tens of thousands of such proceedings during
that time period (over 3,500 per year during the time period in question). (R. 350-352; 1668-
1675. He also heard the testimony of the law clerk as to her of the practices of other New York
State Surrogate's Courts. (R. 359).
A glaring gap in the Commission's analysis is its complete disregard of the many
procedural differences between Surrogate's Court and other courts, as well as the unclear nature
of some of the ethics opinions at the time of the charged conduct. In contrast, the Referee
recognized the importance of the procedural differences and ambiguous ethics opinions.
3 To the extent that the Commission appears to have at least impliedly rejected this factual determination ,
this is addressed in Point II. below.
14
The Referee, an experienced practitioner of almost fifty years, with significant experience
and knowledge of the practices and procedures of several surrogate's courts in the state,
concluded these circumstances were highly relevant. As to the procedural differences, he noted:
(R. 1850).
Although the same rules of conduct apply to all judges in all
courts, there are procedural differences that exist in the Surrogate's
Court that may have an effect on how these ethical rules apply to
Surrogates.
In furtherance of his determination as to Judge Doyle's good-faith basis for her belief that
her actions could not reasonably be viewed as partial and therefore could not give rise to an
appearance of impropriety, the Referee examined Opinion 11-43, the ethics opinion relied upon
extensively by the Commission (and notably issued after Judge Doyle's alleged misconduct) to
support its assertion that Judge Doyle's actions were not ministerial acts because of the
requirement of inquiry:
The foregoing statement lends a whole new meaning to the term
'inquire.' After the Surrogate's Clerk receives the death
certificates and the self-proving affidavits no Surrogate makes any
such inquiries. The process described above for sections 1408 and
I 004 of the SCPA does not take place in Judge Doyle's Surrogate
Court or in an other Surrogate Court anywhere in the rea l world
except in adversarial situations.
(R. 1851-1852) (emphasis added).
Significantly, and consistent therewith, the Referee also noted that the ethics opinions in
place at the time of the alleged misconduct were unclear on the rules at issue, stating:
[I]n hindsight the Ethics Opinions could have clearly stated that
there are no mechanical, administrative or ministerial acts that can
be performed by any sitting judge. Such a holding would have
been better than the pretense that mechanical judicial acts are
actually deliberative judicial acts. The Opinions could have stated
that when an attorney in the tainted class enjoys a kind of access to
15
(R. 1858).
any judge that is not shared by every other attorney there is an
appearance of impropriety regardless of how innocuous the judicial
activity may be.
Importantly, said finding followed the testimony of both Judge Doyle and her highly
qualified principal court attorney (a former Appellate Division clerk whose term was extended
based upon her quality work, R. 343) following their extensive research and application of the
Rules to the proceedings at issue. Her principal court attorney testified:
If it's on waivers and consents, it's not an issue. Based upon an
administration and a probate, there is only one thing you can do in
the law. No other judge in New York State would or could do
anything different than what you would be doing by signing a
decree. You know, it always was and it's still my belief that an
appearance of impropriety requires not just you and a friend
appearing before you. You have to take some type of judicial
action. And this judicial action was just ministerial.
(R. 378, see also, R. 376-409).
Consistent therewith, Judge Doyle's rationale never changed. In fact, Judge Doyle's
statements early on in the investigation as to the basis for her belief never wavered. 4 At her
examination by the Commission, prior to any charges being brought against her, she provided
her rationale and made clear that she would proceed in any manner desired by Commission.
Notably, none of the alleged violative conduct took place after that date.
4 From Judge Doyle's response to the Commission's initial inquiry letter: "All four estates were
uncontested probate proceedings and/or administrative proceedings. There were no adverse
parties to whom a disclosure could have been made. Mr. Spargo represented the Estates and the
decrees were entered on consent of all the parties . Further, SCPA 100 I cited above. provides in
relevant part that, "[l]etters of administration must be grated [sic] to the persons who are
distributes of an intestate and who are eligible and qualify" (see also SCPA 1408 [2]).
Accordingly. I have no judicial discretion in such proceedings. My actions were ministerial and
required by law to be performed."" (R. 1614, ~ 21 ).
16
Further indicative that any misinterpretation by Judge Doyle was in good faith are the
uncontroverted and sweeping changes she made after receiving her censure and following the
issuance of Opinion I 1-43 to help her better identify possible conflicts (all of which were
subsequently ordered undone by the New York State Office of Court Administration). These
actions further demonstrate her good-faith desire to comply with the rules as well as her arguably
not unreasonable application of the Rules at issue. (R. 456; 358-3 71; I 676-1689).
It is anticipated that Respondent will assert that Judge Doyle's state of mind is not
relevant. In furtherance thereof it is anticipated that Commission Counsel will cite to the Court's
dicta in Maller o.l George that "a judge's perception of the nature or seriousness of the subject
matter of the litigation has no bearing on the duty to recuse or disclose a relationship with a
litigation or attorney when necessary to avoid the appearance of bias or favoritism." Jn re
George, 2013 NY Slip Op 08195 (2013), at *4-5. However, the circumstances present in George
are different than the circumstances at hand. The obligation in George to recuse was not
"sufficiently debatable," unlike in LaBelle or the present proceeding. Unlike the petitioner in
George, Judge Doyle had a good-faith belief that her conduct was not violative of the Rules. 5
Additionally, even if the Court adheres to a rigid application of George, it does not preclude
consideration of good faith as a valid mitigating factor in terms of the sanction to be imposed.
See Watson , 100 N.Y .2d 290 (2003); Dixon v. State Comm 'n On Judicial Conduct. 47 N.Y.2d
523, 525 (1979).
Chmxe II
5Notably, the petitioner in Geor;.;e failed to recuse himself after receiving a Commission warning in the
form of a Letter of Caution about a prior failure to recuse himself in a matter involving someone from the
very same family. This was in addition to other wholly unrelated and "aggravating" misconduct that was
found against Justice George . This case is more fully addressed in Point Ill, below.
17
As to the second charge, the sworn testimony of Matthew Kelly, a former Commission
referee and the asserted campaign manager, was that he did not believe his level of involvement
warranted disqualification. (R. 588-589). Moreover, an examination of the ethics opinions in
place at that time show that they did not proscribe the heightened level of disqualification and
disclosure applied today to individuals who played "an active and significant role in the judge's
[election] campaign." (See Advisory Op. 07-26, 12-164).6
In conclusion, although Judge Doyle and her principal court attorney may have been
incorrect in their application of the governing rules, as determined by the Referee, their error was
made in good faith and was a result of different procedures between surrogate's court and other
courts. Said misapplication, which is limited to a handful of the over 15,000 proceedings she
presided over during the years at issue, does not render Judge Doyle, with her excellent record of
service and recognized expertise in the area of law in question, unfit and in need of removal to
safeguard the bench. See Watson, 100 N. Y.2d at 303 ("[T]he purpose of judicial disciplinary
proceedings is not punishment but the imposition of sanctions where necessary to safeguard the
Bench from unfit incumbents.").
6 Both the Referee and Commission found that, based upon the totality of his acts, Mr. Kelly held a
" leadership role'' in Judge Doyle ' s brief seven week campaign for Supreme Court, (Referee's Repol1, R.
1858; Determination, R. 6, ~ I 8), and did not find that Mr. Kelly was Judge Doyle ' s campaign manager.
In 2007, the Advisory Opinions held that with respect to a "campaign manager" the judge must recuse for
a period of two years following the campaign ' s end. (Advisory Op. 07-26). With respect to individuals
who played "an active and significant role in the judge's [election] campaign," the Committee advised
judges to "disclose and in some cases disqualify themselves from presiding over matters" in which those
individuals appear (see Advisory Op. 12-28, 04-106, 02-108). Opinion 04-106 states that a Judge must
take numerous considerations into account before reaching a recusal decision and if the ' 'judge concludes
that the specific circumstances might give rise to a publicly perceived appearance of partiality. the judge
should disclose and recuse. subject to remittal under section I 00.3 (F) of the Rules."[Emphasis added].
Judge Doyle testified that after taking numerous considerations into account, she did not campaign in the
traditional sense, for seven weeks she sought and was unsuccessful in obtaining a Supreme Court
nomination. ( R. 446-449). She did not appear on the November ballot. (R. 8, ~ 25 ). A II of the
proceedings before her wherein Mr. Kelly appeared as counsel were uncontested .
18
POINT II
THE COMMISSION MADE FINDINGS OF FACT THAT WERE NOT
BASED ON THE RECORD
As detailed above, the Commission's determinations, even determinations factual in
nature, are subject to de novo review.
This Court has given special attention to Judicial Commission determinations that a
petitioner was not candid or forthright. See Skinner, 91 N.Y.2d at 144 (1997) ("discrepancies in
petitioner's testimony before the Commission d[ o] not necessarily reflect dishonesty or
evasiveness."); Kiley, 74 N.Y.2d at 370-371. In fact, the Court has gone so far as to caution
against the utilization of the alleged lack of candor as an aggravating factor. Kiley, 74 N.Y.2d at
370-71 (refusing to accept Commission's finding of lack of candor as to charge while
emphasizing that the use of an alleged lack of candor as an aggravating element "should be
approached cautiously").
The need for such review is especially important in this proceeding because the
Commission inexplicably found that Judge Doyle ' s hearing testimony was "evasive and
misleading" and "violated her obligation to be forthright and candid." (R. 23-24 ). This
determination was inexplicably made despite the Referee's previously detailed finding that she
was a "credible and candid witness" who "told the truth." (R. 1857). Petitioner finds no
reported cases where the Commission and the Referee's determination on this issue of candor
were so radically different. 7
Another determination by the Commission that is perhaps even more disturbing is the
assertion that Judge Doyle presents a threat to the integrity of the bench if she were to remain a
judge. The Commission attempts to paint a picture of a judge who, following her censure.
7 This is the second time the Commission Respondent has rejected the referee's determination as to Judge Doyle's
candor. (R. 719)
19
brazenly disregarded clear rules . This is absolutely not the case and is more fully addressed
below.
20
POINT III
THE EXTREME SANCTION OF REMOVAL IS EXCESSIVE UNDER THE
CIRCUMSTANCES
Assuming, arguendo, that the Court upholds the Commission's finding of misconduct,
numerous factors, in addition to those already mentioned above, suggest that a sanction including
removal would be unduly harsh and is not warranted. As this Court has stated: "[r]emoval is an
extreme sanction and should be imposed only in the event of truly egregious circumstances.
Indeed, we have indicated that removal should not be ordered for conduct that amounts simply to
poor judgment, or extremely poor judgment." Cunningham, 57 N.Y.2d at 275. The two
Commission dissenters as to the sanction aptly noted this, stating:
(R. 27).
The Court has often stated that the sanction of removal requires a
showing of 'truly egregious circumstances' (e.g., Matter of Mazzei,
81 NY2d 93, 97 [1997]). My position is simple: ifthe findings of
misconduct do not firmly place the judge over the line into the
removal realm of 'truly egregious circumstances,' I think we must
censure.
The case at bar stems from what the Referee determined was Petitioner's good faith
misapplication of governing rules. A good faith misunderstanding of the applicable Rules is
"relevant in weighing the appropriate sanction." Watson, 100 N.Y.2d at 303 (reducing sanction
of removal to censure for judge who attributed misconduct to inexperience and his "failure to
enlist aid from people knowledgeable in the conduct of judicial campaigns.") In addition,
several factors recognized as mitigating against removal in other proceedings by this Court are
present in this proceeding.
21
A. The Alleged Misconduct Is Devoid of An Accompanying
Aggravating Factor Other Than A WhoHv Unrelated Prior Discipline
Cases in which this Court has imposed or upheld a sanction of removal, especially in
failure to disclose and/or recuse cases, reveal the presence of one or more "aggravating factors"
in addition to the charged misconduct:
While no similar mitigating factors inhere in petitioner's actions in
the Begg case, there likewise are no aggravating factors and thus a
sufficient basis for removal is lacking (compare, Matter of
Edwards, 67 NY2d 153; Matter of Dier, 48 NY2d 874; Matter of
Bulger, 48 NY2d 32; Matter of Dixon, 47 NY2d 523; Matter of
McM. Wright , Commn. on Jud . Conduct, June 20, 1988; Matter of
Watson , Commn.on Jud. Conduct, Nov. 17, 1988; Matter of
McGee , Commn.on Jud. Conduct, April 12, 1984; Matter of De
Luca, Commn.on Jud Conduct, July 2, 1984; with Matter of Conti,
70 NY2d 416; Matter of Myers, 67 NY2d 550, Matter of Sieffert,
65 NY2d 278; Matter of Reedy, 64 NY2d 299.
In re Kiley, 74 N.Y.2d 364, 370 (1989); see also, Matter of Marshall, 8 N.Y.3d 741 (2007)
(removal warranted where, in addition to ex parte conversations with defendants and dismissal of
cases in advance of adjourned dates, judge found to have testified falsely at a Commission
proceeding and used white out to alter her court calendar).
The predicate of an aggravating factor for removal is entirely consistent with the
reservation that removal is to be ordered only in circumstances going beyond "extremely poor
judgment." Cunningham , 57 N.Y.2d at 275 . In appearance cases it appears that this Court has
been especially reluctant to order removal without additional aggravating factors. 8
8 The December 2013 decision in Muller of George advances this principle . 2013 N.Y. Slip Op. 08195.
In George this Court pointed to a variety of circumstances which it stated were sufficiently egregious to
justify removal from office, including a "significant aggravating factor." Id. Beyond the failure to recuse,
th is Court in Gemxe found remova I was warranted because the two unrelated acts of misconduct could
not be viewed as an "uncharacteristic lapse in judgment" because of the "significant aggravating
factor" that Justice George elected to preside over a matter involving someone from the very same
family, and even took unilateral action in dismissing a ticket against that family member, despite having
22
In such cases, recognized aggravating factors have included, among other things, actual
favoritism (see, e.g., Sims, 61 N.Y.2d at 356; Matter of LaBombard, 11 N.Y.3d 294 (2008)),
continuing failures to recuse despite warnings from the Commission as to the need to recuse (see,
e.g., George, 2013 N.Y . Slip. Op. 08195; Sims, 61 N.Y.2d at 356; Matter of Assini, 94 N.Y.2d 26
(1999); In re Robert , 89 N.Y.2d 745 (1997); In re Conti, 70 N.Y.2d 416 (1987)), obstructive
and/or fraudulent behavior during the investigation (see, e.g., Conti,- In re Intemann, 73 N.Y.2d
580 (1989)). None of these aggravating circumstances are present in this case.
The sole additional aggravating factors found by the Commission were Judge Doyle's
2007 censure for lack of candor and the assertion that she was not candid in this proceeding
(addressed in Point II, above).
B. The Existence of Petitioner's Prior and Unrelated Censure Does Not Require
Removal
Other than Respondent's unsupported asse11ions of lack of candor in this proceeding, it
claims as an aggravating factor Judge Doyle's wholly unrelated 2007 censure. The Commission
Determination essentially concedes this:
(R. 24).
Under the circumstances, we are constrained to view respondent's
misconduct with particular severity since, in view of her censure in
2007, she should have been especially sensitive to her ethical
obligations, including the duty to avoid even the appearance of
impropriety. If not for her disciplinary history, respondent may
have had a more credible argument to retain her judgeship.
been issued a prior Letter of Caution terminating charges of misconduct relating to his hearing of four
cases involving another person of that same family. Id. at *7 . Additionally the Court expressly noted that
"[t]hese concerns are compounded." Id. at *6, by an unrelated incident of misconduct involving Justice
George apparently favoring one litigant over another by essentially communicating ex parle his expected
determination on the merits of a case that had not even been filed yet, seemingly so as to discourage the
filing of the suit against a known person.
23
Although the Commission makes much of the conduct at issue happening in the wake of
her 2007 censure, the conduct that is the subject of this proceedings-and ethical rules at issue-
are wholly unrelated to the 2007 matter. The two Commission members who dissented as to the
sanction succinctly stated why the prior disciplinary history does not support removal. They
stated:
(R. 27).9
[W]hile respondent's disciplinary history should be considered, I
do not believe that it elevates the sanction to removal on these
facts, especially since the earlier discipline was not related to the
misconduct here.
The record is simply not that of a recalcitrant judge, but instead a judge who was attuned
to ethical issues to such a degree that she read every ethics opinion and required same to be read
by her staff. There is no evidence of "repeated and unrelenting display of unjudicial
temperament." Matter of Wal remade, 37 N.Y.S.2d 989, 1003 (Jud. Ct. 1975).
9 The cautionary words of Kiley are appropriate here as to the expansive use employed by the
Commission of Judge Doyle ' s prior censure which is based entirely on the assertion of her lack of candor:
"[T]he use of a Judge's "lack of candor' as an aggravating circumstance shou Id be approached cautiously
to minimize the risk that the investigative process itself will be used to generate more serious sanctions."
Kiley, 74 N.Y.2d at 371 . Notably, Judge Doyle's censure was imposed in that matter by the Commission
despite the recommendations of the referee to the contrary. (R. 719).
24
C. Several Other Recognized Mitigating Factors Evidence that A Sanction of
Removal is Too Severe
There are present in this case a variety of circumstances that have been acknowledged in
other cases to mitigate against removal.
1. No Favoritism Or Personal Gain Was Alleged or Found.
As noted by the Commission dissent, "[t]here is no allegation or finding that these
attorneys or their clients received any special treatment or pecuniary benefit because of her
relationships with the attorneys." (R. 26; see also Referees Report at p. 3 (R. 184 7): "The
complaint does not charge that ... Respondent's attorneys, political campaign supporters and
friends received , or appeared to have received, any special treatment, or favors, in her court that
could have created an appearance of impropriety[.]").
This Court has found that a mitigating factor exists where "petitioner neither sought nor
obtained any personal benefit" as a result of the actions at issue. Dixon, 47 N.Y.2d at 525
(reducing Commission's sanction of censure to admonishment); Kiley, 74 N .Y.2d at 370
(overturning removal, in part, because "[p ]etitioner was not motivated by personal gain");
Skinner, 91 N.Y.2d at144 (finding lack of personal gain or profit a factor that warranted a
sanction of censure and overturning the sanction of removal imposed by the Commission);
Kelso, 61 N.Y.2d 82 (1984) ; Mutter of'Lonschein, 50 N.Y.2d 569, 573 (1980) (overturning
Commission ' s sanction as .excessive given absence of venal or malevolent purpose); Dixon, 47
N.Y.2d at 525.
Moreover, as also noted by the Commission dissent and the Referee, the subject case is
purely an appearance of impropriety case in that it was determined that another judge would
have been constrained to have done the very same thing as Judge Doyle in the cases at issue.
Therefore, it is relevant that in Cunningham, where there was an appearance of impropriety
25
violation which was "limited to the eyes of only one person" and no actual harm had been done,
the Court found that the limited negative effects of the violation weighed in favor of a penalty
other than removal. Cunningham, 57 N.Y.2d at 275. Notably, in the case at bar, since almost all
of the proceedings were not contested and/or were submitted on consent, the possible perception
of the failure to recuse was also limited.
2. Judge Doyle Has Demonstrated a Willingness and Effort to Comply With All
Ethical Rules
It is uncontroverted that Judge Doyle stopped the conduct at issue once it was brought to
her attention. This was communicated by Judge Doyle during her initial examination by
Commission Counsel, before any charges being brought against her.
The record does not depict a judge who obstinately refuses to adhere to ethical
requirements. In fact, the testimony at the hearing further established the previously detailed
sweeping changes she implemented upon the issuance of opinion 11-43 in order to help her and
her staff better identify possible conflicts. (R. 1676-1689; 358-371; 456).
3. Judge Doyle 's Length v.f Service and Activities in Support of the Surrogate's
Court
Judge Doyle has served the Surrogate's Court for over 33 years, including 21 years as the
Chief Clerk of Albany County Surrogate's Court and as the Surrogate since 2001. (R. 2, ~ 1 ). In
addition, she served as adjunct faculty at Albany Law School teaching courses in Surrogate's
Court Practice and Trust and Estates and has been selected as "a frequent lecturer for the New
York State Bar Association. the Surrogates Judges Association and the Office of the Court
Administration.'' (Id. at~ 2). As such, there is no evidence that Judge Doyle lacks the ability of
26
fitness to perform the duties imposed upon her as a judge of the Albany County Surrogate's
Court.
In Skinner, this Court ove1turned the Commission's determination ofremoval in part
upon that judge's lengthy record of service, despite having been found to have two separate
instances of "serious misconduct deserving sanction" involving improper displays of favoritism
as well as violation of the duty to advise a defendant of the right to counsel. 91 N.Y.2d at 144.
4. Number of Proceedings at Issue
From 2007 through 2010 Judge Doyle's court "processed an average of approximately
3,500 proceedings per year." (Determination,~ 3, R. 3). At issue are only a handful of
proceedings, almost all of which were uncontested matters upon which all interested persons had
filed written consents requesting the issuance of the relief ultimately granted. (Dissent, p. I).
5. Remoteness in Time of the Challenged Conduct
Charge I was from February 2008 through December 2009 (Determination,~ 4); Charge
II covered conduct from 2007 through 2011 and Charge III covers actions taken in 2008. As
such, most of the conduct at issue dates back over five years ago. Additionally, as also noted
above, such conduct was terminated once an issue was raised by the Judicial Commission.
6. Judge Doyle Was Candid and Truthful
As more fully detailed above, the Referee determined that Judge Doyle was candid and
truthful, a factor recognized as mitigating against recusal by this Court. LaBelle, 79 N.Y.2d 350;
Kelso, 61 N.Y.2d 82.
7. Judge Doyle explained that all of her uncontested consent applications were
turned around in one day, and that this was the policy of the court. To recuse herself in the
subject cases and send the cases to another court undermines the administration of justice.
27
CONCLUSION
For all the foregoing reason, it is respectfully submitted that the Court should overturn
the Judicial Commission's finding of misconduct or, if that relief is not granted, to overturn the
Commission's sanction of removal.
Dated: January 10, 2014
J:\WJD\Doylca-12009\COA Appeal\Brief to Court of Appeals 1-9-2014 docx
28
DREYER BOY AJIAN LLP
William J. Dreyer, sq.
Craig M. Crist, Esq.
Attorneys for Hon. Cathryn M. Doyle
75 Columbia Street
Albany, N.Y. 12210
(518) 463-7784